
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1370                                    UNITED STATES,                                      Appellee,                                          v.                                 FRANK NIEVES-BURGOS,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Boudin, Circuit Judge,                                        _____________                          and Boyle,* Senior District Judge.                                      _____________________                                _____________________               Juan  R.  Acevedo-Cruz,  by Appointment  of  the  Court, for               ______________________          appellant.               John  F. DePue, Attorney,  Department of Justice,  with whom               ______________          Guillermo Gil, United States Attorney, Warren  V zquez, Assistant          _____________                          _______________          United States Attorney, and Nina Goodman, Attorney, Department of                                      ____________          Justice, were on brief for appellee.                                 ____________________                                   August 14, 1995                                 ____________________                                        ____________________          *  Of the District of Rhode Island, sitting by designation.                     BOYLE, Senior District  Judge.  This case  presents two                    BOYLE, Senior District  Judge.                           ______________________          issues  concerning the conviction of the appellant, Frank Nieves-          Burgos, for use of a firearm during a drug-trafficking offense in          violation  of  18  U.S.C.    924(c)(1).    Nieves-Burgos asserts,          first, that the  jury's general verdict of guilty  on the firearm          charge is ambiguous and must be set  aside, as it was returned on          a single charge containing three alleged violations, two of which          were not  supported by  the evidence at  trial.   Second, Nieves-          Burgos  asserts  that  the only  alleged  violation  supported by          evidence   at  trial  was  itself  not  supported  by  sufficient          evidence.  We conclude that the jury verdict is not ambiguous and          is adequately supported by the evidence, and we affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                    The factual background of  this appeal is set forth  in          United States v. Torres-Maldonado, 14 F.3d 95, 98-100 (1st Cir.),          _____________    ________________          cert. denied, 115 S.  Ct. 193 (1994), an appeal taken  by Nieves-          ____  ______          Burgos'  co-defendants.  We therefore recount the relevant facts,          which  for the most part are not  disputed, only briefly, and, as          is appropriate,  we  do so  in the  light most  favorable to  the          verdict.  See  United States v. Torres-Maldonado, 14  F.3d 95, 98                         _____________    ________________          (1st Cir.), cert. denied, 115 S. Ct. 193 (1994).                      ____  ______                    In  February  1991,  Nieves-Burgos and  several  others          rented rooms  310, 311, and  327 of the  Carib Inn Hotel  in Isla          Verde, Puerto Rico.  Nieves-Burgos  rented room 311 using a false          name.  The group occupied the rooms for several weeks.   On March          6, 1991, hotel  security personnel notified police  of suspicious                                         -2-          conduct in  the three rooms.  There had been frequent traffic to,          from, and between the rooms; the  three rooms received 90% of the          hotel's  incoming telephone calls; the  rooms often were paid for          together,  in cash; and,  a hotel  floor supervisor  observed two          handguns on a bureau in room 327.                    Agents of the United States Bureau of Alcohol, Tobacco,          and Firearms  (ATF) began surveillance  of the hotel on  March 6.          At approximately 11:00  p.m. that evening, they  observed Nieves-          Burgos,  H ctor  Santiago-Alicea, Teddy  Le n-Ayala,  Oscar D az-          Cruz, and  an unidentified man  in the  hotel lobby.   The agents          observed Santiago-Alicea wearing a bullet-proof jacket, which was          bulging from something concealed underneath.  The group proceeded          outside the  hotel to a  parking lot, where the  unidentified man          produced a bag and handed it to Santiago-Alicea.                    Later  that  same  evening,  another  unidentified  man          arrived at the hotel, and was met by Nieves-Burgos and Pedro Luis          Ram rez-Rivera  (Ram rez-Rivera).   After  a brief  conversation,          Nieves-Burgos and Ram rez-Rivera left the unidentified man.  They          returned  a short while later with Santiago-Alicea, who exchanged          packages with the unidentified man.                    On March 7,  1991, ATF agents executed a search warrant          at the three hotel rooms.  In room 311, they found  five persons:          Nieves-Burgos,  Marilyn  Gotay-Col n,  Catalino Torres-Maldonado,          Ram rez-Rivera, and Santiago-Alicea.  Nieves-Burgos was on one of          the room's two beds, clad in his underwear.  A search of the room          revealed  quantities of cocaine, several bundles of cash, various                                         -3-          instruments  and supplies typically used for packaging cocaine, a          bullet-proof jacket, and a loaded Beretta semi-automatic handgun.          The gun was found with  a bundle of cash in  a zippered bag on  a          sofa on which Gotay-Col n was seated.   The bag was located  less          than two feet from Nieves-Burgos.                    Rooms 310 and 327 were  also searched, as were two cars          that  were  in  the  hotel's  parking  lot.    More  cocaine  and          paraphernalia  were found in  the two rooms.   Guns were found in          the two cars.   In a green  Ford LTD, agents found  a loaded .357          revolver;  also  found were  a  picture  of Nieves-Burgos  and  a          parking ticket  on which was  Nieves-Burgos' fingerprint.   In  a          grey  Buick, a  nine-millimeter pistol  was found.    The Buick's          registration certificate was found in Santiago-Alicea's wallet.                    Nieves-Burgos  and others were indicted.  In counts one          and two of the indictment, Nieves-Burgos  and others were charged          with  possessing with the intent to distribute, and conspiring to          possess  with the  intent to  distribute, cocaine.   Count  four1                                        ____________________          1  Count four provides in full:                          On  or about  March 7,  1991, in  the                      District of  Puerto Rico  and within  the                      jurisdiction  of   this  Court,   FRANKIE                                                        FRANKIE                      NIEVES-BURGOS,   also   known   as  KENNY                      NIEVES-BURGOS,   also   known   as  KENNY                      RAMIREZ,  also  known  as  JOSE  HERRERA-                      RAMIREZ,  also  known  as  JOSE  HERRERA-                      RIVERA, PEDRO  LUIS RAMIREZ-RIVERA,  also                      RIVERA, PEDRO  LUIS RAMIREZ-RIVERA,  also                      known  as  PEDRO  MEDINA-RIVERA, CATALINO                      known  as  PEDRO  MEDINA-RIVERA, CATALINO                      TORRES-MALDONADO,   MARILYN  GOTAY-COLON,                      TORRES-MALDONADO,   MARILYN  GOTAY-COLON,                      HECTOR SANTIAGO-ALICEA, TEDDY LEON-AYALA,                      HECTOR SANTIAGO-ALICEA, TEDDY LEON-AYALA,                      and OSCAR DIAZ-CRUZ, also  known as OSCAR                      and OSCAR DIAZ-CRUZ, also  known as OSCAR                      SANTIAGO, the  defendants herein,  aiding                      SANTIAGO                      and  abetting each  other, did  knowingly                      and unlawfully use three  (3) firearms of                      the following descriptions:                                         -4-          charged Nieves-Burgos and  five others with the  knowing unlawful          use  of  three  firearms  during   and  in  relation  to  a  drug          trafficking crime  in violation of  18 U.S.C.   924(c)(1).2   The                                        ____________________                          (a)  Beretta  semi-automatic   pistol                      caliber 9mm., Model 92-F, black in color,                      serial  number  BER042822Z   loaded  with                      ammunition of its own [sic];                          (b)   Smith   and   Wesson  Revolver,                      caliber  .357 magnum;  Model 27-2,  three                      and one half (3 1/2)  inch barrel, nickel                      plated in  color with brown  grip, serial                      number N109155; loaded with ammunition of                      its own caliber;                          (c)  Norinco  semi-automatic  pistol,                      caliber 9mm., Model L213, black in color,                      serial   number   315202,   loaded   with                      ammunition of its own caliber; during and                      in  relation  to  the  commission  of  an                      offense punishable  under the  Drug Abuse                      Prevention and  Control Act,  that is,  a                      violation  of  Title  21,  United  States                      Code,  Section  841(a)(1),  involving the                      Schedule  II  Narcotic   Drug  Controlled                      Substance  cocaine, as  defined in  Title                      18,   United    States   Code,    Section                      924(c)(1), which  may be prosecuted  in a                      Court  of  the  United  States,  to  wit:                      aiding  and  abetting each  other  in the                      possession with  intent to  distribute of                      approximately   nine  hundred   fifty-six                      point one (956.1) grams (gross weight) of                      cocaine,  a  Schedule  II  Narcotic  Drug                      Controlled Substance; all in violation of                      Title  18,  United States  Code,  Section                      924(c)(1).          2  18 U.S.C.   924(c)(1) provides in part:                      Whoever,  during and  in relation  to any                      crime  of  violence or  drug  trafficking                      crime (including  a crime of  violence or                      drug trafficking crime which provides for                      an  enhanced punishment  if committed  by                      the use of  a deadly or  dangerous weapon                      or device) for which he may be prosecuted                      in  a court of the United States, uses or                      carries a firearm, shall, in addition  to                      the punishment provided for such crime of                                         -5-          firearms alleged  in count four to have been used in violation of            924(c)(1) are the three handguns found in room 311 of the hotel          and the two cars searched in the hotel parking lot.                    Evidence  of the three firearms was presented at trial.          At the close of the evidence, the trial judge instructed the jury          without  objection  and  presented  them  with   a  copy  of  the          indictment for their deliberation.  As to Nieves-Burgos, the jury          returned general verdicts of guilty on counts one, two, and four.                    Nieves-Burgos took no appeal from the guilty verdict or          his sentence.  Upon his imprisonment, he filed a motion to vacate          his  sentence  under  28  U.S.C.     2255,  claiming  ineffective          assistance  of counsel.    His  motion was  granted,  and he  was          afforded new  counsel for  resentencing.  On  count four,  he was          sentenced  to sixty months'  imprisonment, to run  consecutive to          his sentences on the other two counts.                    Nieves-Burgos now  appeals the guilty verdict  on count          four.  He asserts that the evidence was not sufficient to support          his  conviction as  to any  of the  three firearms.    The United          States argues in response that  the evidence of the firearm found          in  room 311  was  sufficient  to support  the  conviction.   The          government expressly declines  to argue that  evidence concerning          either  of  the  two  firearms  found  in   the  automobiles  was                                        ____________________          sufficient  to support  the conviction.3    During argument,  the                      violence  or drug  trafficking crime,  be                      sentenced to imprisonment  for five years                      . . . .          3  In its brief, the government states:  "The government does not          argue that Nieves-Burgos' conviction  under Section 924(c)(1)  is          supported by [evidence of] the two guns found during the searches          of the cars."  Government's Brief at 7 n.5.                                         -6-          parties were asked  to submit supplemental briefs  concerning the          issue whether the general verdict of guilty should stand where it          was returned on  a count containing  three alleged violations  of          the firearms statute, two of which concededly were unsupported by          evidence at  trial.   The parties'  arguments  were received  and          considered.  We address the issues.                                    II.  ANALYSIS                                    II.  ANALYSIS          A.  The General Verdict          A.  The General Verdict              ___________________                    Nieves-Burgos initially argues that  his conviction for          violation of  18 U.S.C.    924(c)(1) cannot  stand as  the jury's          general verdict of  guilty was ambiguous in that  it was returned          on a charge that alleged  the use of three firearms  in violation          of  18 U.S.C.    924(c)(1),  and the  evidence at  trial was  not          sufficient to  support a  conviction as to  two of  the firearms.          The  government  concedes  that the  evidence  at  trial did  not          support a conviction  as to two of  the three firearms listed  in          count  four, but argues  that the verdict  should stand as  it is          supported by sufficient evidence as to the remaining firearm.                    This issue  was  effectively determined  in Griffin  v.                                                                _______          United States, 502 U.S. 46 (1991).  In Griffin, the appellant had          _____________                          _______          been convicted by jury of  an unlawful conspiracy in violation of          18 U.S.C.   371.   See Griffin v. United States,  502 U.S. 46, 47                             ___ _______    _____________          (1991).   A  single  count  in the  indictment  charged that  the          conspiracy had two  unlawful objects:   impeding  efforts of  the          Internal  Revenue Service to ascertain income taxes; and impeding          efforts  of  the  Drug  Enforcement  Administration to  ascertain                                         -7-          forfeitable income.   See  id.  The  evidence presented  at trial                                ___  __          failed to  establish the appellant's  guilt with  respect to  the          second object.  See id. at 47-48.  The trial court's instructions                          ___ __          to the  jury permitted  them to return  a guilty verdict  if they          found the  appellant to  have participated in  either of  the two          objects of the conspiracy.   See id. at 48.  The jury  returned a                                       ___ __          general  verdict of  guilty.   See id.   The  Court  affirmed the                                         ___ __          verdict,  citing the  rule that  when  a jury  returns a  general          verdict  of guilty  on  a  single count  charging  more than  one          criminal act,  the verdict  stands if  the evidence  sufficiently          supports  any of  the  acts charged.   See  id. at  56-57 (citing                                                 ___  __          Turner v. United States, 396 U.S. 398, 420 (1970)).           ______    _____________                    Griffin provides  what was a  much-needed clarification                    _______          of the law.   Prior to Griffin, Supreme  Court authority appeared                                 _______          somewhat  disjointed, if  not downright  contradictory.   Compare                                                                    _______          Turner v. United  States, 396 U.S. at  420 ("The general rule  is          ______    ______________          that  when a  jury  returns  a guilty  verdict  on an  indictment          charging several acts in the conjunctive . . . the verdict stands          if the evidence is sufficient with respect to any one of the acts          charged.")  with  Yates  v.  United  States,  354  U.S. 298,  312                      ____  _____      ______________          (1957)("[W]e think  the proper rule  to be applied is  that which          requires a verdict to be set aside in cases where the  verdict is          supportable  on  one  ground,  but  not on  another,  and  it  is          impossible  to  tell  which  ground  the jury  selected.").    In          Griffin, the Court  articulated subtle  distinctions between  the          _______          lines of relevant cases, seeking  to reconcile them.  See Griffin                                                                ___ _______                                         -8-          v. United States, 502 U.S.  at 52-56.  It is  appropriate briefly             _____________          to  discuss the  Supreme  Court's analysis  in Griffin  before we                                                         _______          address the issue as it relates to this case.                    In  Griffin, the  Court  discussed the  long-recognized                        _______          general rule:  "a general jury  verdict [is] valid so long as  it          [is] legally supportable on one  of the submitted grounds -- even          though [this gives] no assurance that a valid ground, rather than          an invalid  one, was actually  the basis for the  jury's action."          Id.  at 49.  The  Court acknowledged that  this doctrine has been          __          settled  law  throughout  this  country's  existence.    See  id.                                                                   ___  __          Indeed, the rule  was declared by Lord Mansfield  at King's Bench          before the  Declaration of  Independence:  "if  there is  any one          count   to  support   the   verdict,   it   shall   stand   good,          notwithstanding all the rest are bad."  Peake v. Oldham, 1 Cowper                                                  _____    ______          275, 276, 98  Eng.Rep. 1083, 1084 (K.B. 1775),  quoted in Claasen                                                          ______ __ _______          v. United States, 142 U.S. 140, 146  (1891), quoted in Griffin v.             _____________                             ______ __ _______          United States, 502  U.S. at 49-50.  The  rule, Griffin notes, was          _____________                                  _______          more recently followed in Turner  v. United States, 396 U.S. 398,                                    ______     _____________          420 (1970).    In Turner,  the appellant  had been  charged in  a                            ______          single  count  with  knowingly  not  only  purchasing,  but  also          dispensing and distributing  heroin in violation of  Federal law,          and the jury returned a general verdict of guilty  on the charge.          Turner v. United States, 396 U.S. at 419-20.  The Court concluded          ______    _____________          that, because the evidence at trial was sufficient to support the          contention that the appellant had distributed heroin in violation          of the relevant statute, the verdict should be upheld, whether or                                         -9-          not the evidence was sufficient  to support the other conjunctive          allegations in the count.  See  id. at 420-21.  The Court  relied                                     ___  __          on what it labeled the "general rule" on the issue:  "when a jury          returns a guilty verdict on  an indictment charging several  acts          in the conjunctive  . . . the  verdict stands if the  evidence is          sufficient with respect to any one of  the acts charged."  Id. at                                                                     __          420, quoted in Griffin v. United States, 502 U.S. at 56-57.   See               ______ __ _______    _____________                       ___          also Turner v. United States, 396  U.S. at 420 & n.42, and  cases          ____ ______    _____________          cited.                    The  primary exception  to  the  general rule,  Griffin                                                                    _______          recognizes, finds its roots in Stromberg v. California,  283 U.S.                                         _________    __________          359  (1931).  See Griffin v.  United States, 502 U.S.  at 52.  In                        ___ _______     _____________          Stromberg, the appellant had been charged in a single count of an          _________          information of  violating a  California  statute prohibiting  the          display of a  red flag for  any of three  purposes:  "as  a sign,          symbol or emblem  of opposition to organized government[;]  or as          an invitation or  stimulus to anarchistic action[;] or  as an aid          to propaganda  that is of  a seditious character."   Stromberg v.                                                               _________          California, 283  U.S. 359,  361 (1931)  (citation omitted).   The          __________          Court determined  that the first  of the statute's  three clauses          violates  the Fourteenth  Amendment.    See id.  at  369-70.   In                                                  ___ __          setting aside the  jury's general verdict, it stated:   "[I]f any          of  the   clauses  in  question  is  invalid  under  the  Federal          Constitution,  the  conviction cannot  be upheld."   Id.  at 368,                                                               __          quoted in Griffin v. United States, 502 U.S. at 53.   The rule of          ______ __ _______    _____________          Stromberg   thereafter  was  applied   in  many  cases  involving          _________                                         -10-          "general-verdict  convictions   that  may   have  rested  on   an          unconstitutional ground."  See Griffin v. United States, 502 U.S.                                     ___ _______    _____________          at 55, and cases cited.                    In  Yates v. United  States, 354  U.S. 298  (1957), the                        _____    ______________          Court extended  the rule of  Stromberg, and in doing  so, created                                       _________          some  confusion.    Yates concerns  the  convictions  of numerous                              _____          appellants  on  a  single-count  indictment  charging  them  with          violating a  California statute  by conspiring  for two  unlawful          purposes:     (1)  advocating   the  violent  overthrow   of  the          government; and (2) organizing the  Communist Party of the United          States.  See Yates v. United States, 354 U.S. at 300.  The  Court                   ___ _____    _____________          determined that  the "organizing"  charge was  prohibited by  the          relevant statute  of limitations.   See  id. at  312.   The Court                                              ___  __          held:  "In  these circumstances we  think the proper  rule to  be          applied is that which requires a verdict to be set aside in cases          where  the verdict  is  supportable  on one  ground,  but not  on          another,  and it  is impossible  to  tell which  ground the  jury          selected."  Id. (citing Stromberg v. California, 283 U.S. at 367-                      __          _________    __________          68; Williams v. North Carolina,  317 U.S. 287, 292 (1942); Cramer              ________    ______________                             ______          v. United States, 325 U.S. 1, 36 n.45 (1945)).               _____________                    As the Court acknowledged in Griffin, Yates constitutes                                                 _______  _____          a novel and unexplained extension of the Stromberg rule:                                                   _________                      Yates . . .  was the first and only  case                      _____                      of ours  to apply Stromberg to  a general                                        _________                      verdict  in  which  one of  the  possible                      bases of  conviction did not  violate any                                         -11-                      provision  of  the Constitution  but  was                      simply legally  inadequate (because  of a                      statutory  time   bar).     As  we   have                      described,   that   was   an  unexplained                      extension,  explicitly  invoking  neither                      the  Due  Process  Clause  (which  is  an                      unlikely  basis)   nor  our   supervisory                      powers over the procedures employed in  a                      federal prosecution.          Griffin v. United States, 502 U.S.  at 55-56.  Griffin notes that          _______    _____________                       _______          none of the  three cases cited in Yates to support its holding --                                            _____          Stromberg and two of its progeny, Williams v. North Carolina, 317          _________                         ________    ______________          U.S. 287, 292 (1942), and Cramer v. United States, 325 U.S. 1, 36                                    ______    _____________          n.45  (1945)  -- in  fact  supports it.    See Griffin  v. United                                                     ___ _______     ______          States, 502 U.S. at 52, 54-55.            ______                    Griffin clarifies  Yates by explaining that  it extends                    _______            _____          only to cases in  which one of  the possible bases of  conviction          was legally erroneous.  See  id. at 51-52.  Griffin distinguishes                                  ___  __             _______          cases,  like  Turner,  which concern  convictions  that  may have                        ______          rested  on a basis that  was not supported  by the evidence, from          those concerning  convictions  possibly  resting  on  an  invalid          ground as  a result of an  error of law.   See id. at 58-59.   It                                                     ___ __          explains:                      In  one  sense   "legal  error"  includes                      inadequacy  of evidence  -- namely,  when                      the phrase  is used as  a term of  art to                                         -12-                      designate those  mistakes that it  is the                      business of judges (in jury cases) and of                      appellate courts to identify and correct.                      In this sense "legal error" occurs when a                      jury, properly instructed as to the  law,                      convicts on the basis of evidence that no                      reasonable   person   could   regard   as                      sufficient.   But in  another sense --  a                                    ___ __  _______ _____                      more natural and less artful sense -- the                                                            ___                      term "legal error"  means a mistake about                      ____ ______ ______  _____ _ _______ _____                      the  law,   as  opposed   to  a   mistake                      ___  ___    __  _______   __  _   _______                      concerning  the  weight  or  the  factual                      __________  ___  ______  __  ___  _______                      import  of the evidence.  . . .  [W]e are                      ______  __ ___ ________                      using "legal error" in the latter sense.          Id. at 59 (emphasis added).          __                    Here,   Nieves-Burgos  asserts,   and  the   government          concedes, that there was insufficient evidence presented at trial          to support  the firearms  conviction with respect  to two  of the          three guns  listed in the charge, that is,  the two guns found in          the  cars.  Turner and Griffin tell us quite clearly that Nieves-                      ______     _______          Burgos'  verdict shall  not be  set  aside on  this basis  alone.          Rather,  the verdict  must stand  so long  as it  is sufficiently          supported  by the  evidence  concerning the  third  firearm.   We          therefore  must  determine  whether   the  evidence  sufficiently          supports Nieves-Burgos' conviction under 18 U.S.C.   924(c)(1) as          to the firearm found in room 311.                                         -13-                    Before we move on, however, we acknowledge that, before          Griffin, Yates appeared to set forth a rule that differed, if not          _______  _____          conflicted,  with the  long-standing general  rule recognized  in          Turner.  Prior to Griffin, we cited authority relying on Yates in          ______            _______                                _____          support of the  proposition that a general verdict  returned on a          charge  asserting numerous grounds for conviction must be vacated          where one or  more of the grounds is  insufficiently supported by          the  evidence and it  is unclear whether  the jury  relied on the          insufficient ground.  See United States v. Moynagh, 566 F.2d 799,                                    _____________    _______          804 (1st  Cir. 1977), cert.  denied, 435 U.S. 917  (1978) (citing                                ____   ______          United States v. Natelli, 527 F.2d 311, 325 (2d Cir. 1975), cert.          _____________    _______                                    ____          denied, 425 U.S.  934 (1976) (citing Yates v.  United States, 354          ______                               _____     _____________          U.S.  298))  ("We  conclude that  Moynagh's  conviction  on these          counts   cannot  be  sustained  because  each  count  contains  a          specification  charging  concealment .  . .  and no  evidence was          introduced which supports  any fraudulent concealment . .  . .").          Griffin renders this proposition unsound.4          _______                    We  note  that  this  type  of  issue  may,  in  proper          circumstances, be avoided:  "[I]f the evidence is insufficient to          support  an alternative  legal  theory  of  liability,  it  would          generally  be preferable  for the  court to  give  an instruction          removing that theory from the jury's consideration."   Griffin v.                                                                 _______                                        ____________________          4   We  have on  numerous occasions  cited Yates  in accord  with                                                     _____          Griffin's  interpretation of  it.   See,  e.g., United  States v.          _______                             ___   ____  ______________          Ochs,  842  F.2d 515,  520  (1st  Cir.  1988); United  States  v.          ____                                           ______________          Kavazanjian, 623 F.2d  730, 739-40 (1st Cir. 1980); United States          ___________                                         _____________          v. Driscoll, 449 F.2d 894, 898 (1st Cir. 1971), cert. denied, 405             ________                                     ____  ______          U.S. 920 (1972).                                         -14-          United States,  502 U.S. at 60.  Aside from attempting to "unring          _____________          the   bell,"  however,  when  there  are  alternative  bases  for          conviction,  the trial  court may  be well  advised to  require a          proffer  of the evidence  linking a  particular defendant  with a          particular alternative.    Also, the  government should  consider          avoiding  alternative pleading  altogether,  or the  trial  court          might require  each  of the  alternatives  to be  considered  and          proved separately.          B.  Sufficiency of the Evidence          B.  Sufficiency of the Evidence              ___________________________                    Nieves-Burgos argues that the evidence at trial was not          sufficient to support his conviction on count four  for violation          of 18 U.S.C.   924(c)(1) as to the firearm found in room 311.                    1.  Standard of Review                    1.  Standard of Review                    In reviewing challenges to the sufficiency of evidence,          "[o]ur  task is  to review  the record  to determine  whether the          evidence  and reasonable inferences  therefrom, taken as  a whole          and in the light most favorable to the prosecution, would allow a          rational  jury to  determine beyond a  reasonable doubt  that the          defendants  were guilty  as  charged."   United  States v.  Mena-                                                   ______________     _____          Robles,  4 F.3d 1026, 1031 (1st Cir. 1993), cert. denied sub nom.          ______                                      ____  ______ ___ ___          Rivera v.  United States, 114 S.  Ct. 1550 (1994).   We therefore          ______     _____________          resolve  all credibility  issues in  favor of  the verdict.   See                                                                        ___          United  States  v.  Torres-Maldonado, 14  F.3d  at  100 (citation          ______________      ________________          omitted).  We acknowledge that a jury's determination need not be          grounded in direct  evidence;  rather  it may be based  wholly on          circumstantial  evidence.   See id.   In  addition, the  evidence                                      ___ __                                         -15-          "'need not exclude every reasonable hypothesis of innocence; that          is, the factfinder may decide among reasonable interpretations of          the evidence.'"   Id. (quoting United States v.  Cassiere, 4 F.3d                            __           _____________     ________          1006, 1011 (1st  Cir. 1993) (citation omitted)).   The court must          satisfy  itself "that  the  guilty verdict  finds  support in  'a          plausible rendition of the record.'"  United States v. Echeverri,                                                _____________    _________          982  F.2d 675,  677 (1st  Cir.  1993) (quoting  United States  v.                                                          _____________          Ortiz,  966 F.2d 707,  711 (1st Cir. 1992),  cert. denied, 113 S.          _____                                        _____ ______          Ct. 1005 (1993)).                    2.  Analysis                    2.  Analysis                    Section 924(c)(1), 18 U.S.C., makes  unlawful the "use"          of  a firearm  "during  and  in relation  to"  any Federal  drug-          trafficking crime.   18 U.S.C.   924(c)(1).5   A conviction under          this section  results in a mandatory sentence of imprisonment for          a  term  of at  least five  years.   See  id.   Nieves-Burgos was                                               ___  __          convicted of using  the firearm found in  room 311 during and  in          relation to the crime of possessing with the intent to distribute          the controlled substance cocaine.                    We   examine   the   evidence  to   determine,   first,          appellant's  possessory interest  in the  firearm  at issue,  see                                                                        ___          United States v.  Torres-Maldonado, 14 F.3d at 102 (citing United          _____________     ________________                         ______          States v.  Harrison, 931 F.2d  65, 71 (D.C. Cir.),  cert. denied,          ______     ________                                 ____  ______          502 U.S.  593 (1991))  ("in order to  establish that  a defendant          'used'   a  firearm  for  purposes  of  section  924(c)(1),  'the          government   must   prove   that   the  defendant   actually   or                                        ____________________          5  See supra note 2.                 _____                                         -16-          constructively possessed it'"), and, second, whether there exists          "some  facilitative nexus  between the  weapon  and the  criminal          activity."  United States v.  Castro-Lara, 970 F.2d 976, 983 (1st                      _____________     ___________          Cir. 1992), cert.  denied sub nom. Sarraff v.  United States, 113                      ____   ______ ___ ___  _______     _____________          S. Ct. 2935 (1993).                      a.  Possession                      a.  Possession                          __________                    Nieves-Burgos is alleged  to have been  in constructive          possession of the gun found in room 311.  Constructive possession          exists  when a person "knowingly has the power and intention at a          given time  to exercise  dominion and  control over  [a firearm],          either directly  or through others."   United  States v.  Torres-                                                 ______________     _______          Maldonado, 14 F.3d at 102.            _________                    The evidence indicates, though not overwhelmingly, that          Nieves-Burgos was in constructive possession of the firearm found          in  room  311.    The  evidence supports  the  existence  of  the          following  facts:  Nieves-Burgos rented and occupied room 311; he          was a direct participant in the drug distribution scheme; the gun          was found in a zippered bag, also containing $2,000 in cash, on a          couch in room 311; Nieves-Burgos was less than  two feet from the          gun.  Nieves-Burgos concedes in his brief that he "clearly was in          control of Room  311."  A jury reasonably could  infer from these          facts that  the cash found in the bag  that contained the gun was          drug trafficking proceeds, and that Nieves-Burgos, a principal in          the drug trafficking scheme who  concededly was in control of the          room, had  knowledge of what was in the  bag, and, because of his                                         -17-          proximity to  the gun,  had the power  and intention  to exercise          dominion over it.                    Clearly,  there is evidence  in the record  that weighs          against this conclusion:   no witness could  link the gun  or the          bag  directly to  Nieves-Burgos; the  bag concealing the  gun was          zippered;    several  co-defendants  were  found  sitting  within          several  feet of the gun, and Gotay-Col n,  who was seated on the          couch, may  have been closer  to the gun than  was Nieves-Burgos.          Nonetheless, our role is not to weigh the evidence; we are merely          to ensure that  some evidence exists to  support sufficiently the          jury's  determination.  See United States  v. Mena-Robles, 4 F.3d                                  ___ _____________     ___________          at 1031.  Again, the evidence supports the inference that Nieves-          Burgos was  in constructive possession  of the gun:   He concedes          that he "clearly  was in control of Room 311"; he was a principal          with respect to the underlying offense  of possession with intent          to distribute; and, he was found near -- less than two  feet from          -- the gun.                    This  result  is consistent  with  Torres-Maldonado, in                                                       ________________          which we concluded that the evidence at trial was insufficient to          establish that  appellants Torres-Maldonado and  Gotay-Col n were          in constructive  possession of the  gun found  in room 311.   See                                                                        ___          United  States  v.  Torres-Maldonado,  14  F.3d  at 102-03.    We          ______________      ________________          considered to  be significant the absence of evidence that either          appellant was involved in the drug  distribution scheme:  "Unlike          the  evidence against  the other  defendants .  . .  the evidence          against Torres-Maldonado and Gotay-Col n failed to  establish any                                         -18-          connection between these  two defendants, on one  hand, and those          drug distribution transactions which appeared to involve guns, on          the other."   Id. at 102.   Again, the  evidence here shows  that                        __          Nieves-Burgos was a  direct participant in the  drug distribution          scheme.                      b.  Facilitative Nexus                      b.  Facilitative Nexus                          __________________                    Use, as that term applies in   924(c)(1), requires more          than mere possession of a firearm, but does not require outwardly          apparent  utilization:   "[the] weapon  need  not be  brandished,          displayed or  discharged."   United States  v. Reyes-Mercado,  22                                       _____________     _____________          F.3d 363, 367 (1st Cir. 1994) (citations omitted).   To sustain a          conviction under  this section  for the use  of a  firearm, there          must be shown "some facilitative nexus between the weapon and the          criminal activity."  Id. (citations omitted).                                 __                    We  have stated that,  "'the government need  not prove          actual possession  by the  defendant, only that  the firearm  was          readily accessible for the defendant's use' and that '[p]lacing a          weapon  nearby to  protect  a  drug  operation comes  within  the          definition of  "used"' for purposes  of section 924(c)."   United                                                                     ______          States  v. Wight,  968 F.2d  1393, 1396  (1st Cir.  1992) (citing          ______     _____          United States  v. Abreu,  952 F.2d 1458,  1466 (1st  Cir.), cert.          _____________     _____                                     ____          denied, 502 U.S. 994 (1992)).  "[W]here a drug  trafficker is not          ______          carrying  a gun  on his person,  but has one  nearby, the court's          critical concern is not whether the gun was 'instantly available'          or 'exclusively dedicated to the narcotics trade,' but whether it          was 'available for use' in  connection with the narcotics trade."                                         -19-          United States v. Castro-Lara, 970 F.2d at 983.  Among the factors          _____________    ___________          we examine in determining whether a  gun was available for use in          connection with a drug operation are the proximity of the  gun to          the drugs and  drug proceeds and the  availability of the  gun to          the defendant.  See, e.g., United States  v. Paulino, 13 F.3d 20,                          ___  ____  _____________     _______          26  (1st  Cir. 1994)  ("Drugs, drug  paraphernalia, and  a loaded          revolver   were  located  in  close  proximity  to  one  another.          [Appellant]  had  an  apparent  possessory  interest  in,  and  a          significant  degree  of control  over,  the premises.    On these          facts, a reasonable factfinder certainly could find the requisite          facilitative nexus .  . . ."); United States  v. Castro-Lara, 970                                         _____________     ___________          F.2d at  983 ("Appellant was apprehended in his car, at the scene          of a drug pickup, with the gun inside the car's trunk. . . . [W]e          believe a rational jury was free to conclude that the location of          the firearm --  near a large sum  of cash, in close  proximity to          live ammunition, and at a place where  drugs were to be delivered          -- coupled with the timing -- [appellant] brought the gun to  the          airstrip in the  course of taking delivery of  a sizable quantity          of cocaine -- supported a finding that the firearm was 'available          for use' during and in relation to the drug trafficking crime.").                    There was testimony at trial  that the gun was found in          room 311 in a zippered bag less than two feet from Nieves-Burgos,          and  that also  found  in  the room  were  several quantities  of          cocaine,  bundles of cash,  and various instruments  and supplies          typically  utilized  for  packaging cocaine.    This  evidence is          sufficient to support a finding that the gun in room 311 was used                                         -20-          by  Nieves-Burgos  to  protect  the  drugs of  which  he  was  in          possession.  Although there is evidence in the record that weighs          against  this conclusion, the  jury presumably considered  all of          the evidence and drew the  permissible inference that the gun was          used by  Nieves-Burgos during and  in relation to  his possession          with intent to distribute  cocaine, in violation of    924(c)(1).          See United States  v. Batista-Polanco, 927 F.2d 14,  17 (1st Cir.          ___ _____________     _______________          1991)   ("the    factfinder   may    decide   among    reasonable          interpretations of the evidence").                                      CONCLUSION                                      CONCLUSION                    Nieves-Burgos' conviction is  supported sufficiently by          the  evidence  and stands  without  error.    The  conviction  is          affirmed.                    Affirmed.                    Affirmed.                    ________                                                    -21-
