
USCA1 Opinion

	




        July 7, 1992        UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2212                                    UNITED STATES,                                      Appellee,                                          v.                                  PHILLIP A. WIGHT,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                             and Fuste,* District Judge.                                         ______________                                 ____________________            Martin  K.  Glennon  with  whom  Martin  K.  Glennon  Professional            ___________________              _________________________________        Association was on brief for appellant.        ___________            Peter  E. Papps, First Assistant United States Attorney, with whom            _______________        Jeffrey R. Howard, United States Attorney, was on brief for appellee.        _________________                                 ____________________                                 ____________________        _____________________        *Of the District of Puerto Rico, sitting by designation.                    FUSTE, District Judge.   After a  jury trial, appellant                           ______________          Phillip  Wight was  convicted  of four  counts  of a  multi-count          indictment  charging  both  controlled  substances  and  firearms          violations.1    On  appeal,  he  argues  that  the  evidence  was          insufficient to support his  firearms convictions under 18 U.S.C.            924(c)(1)  (possession of a  firearm during a  drug trafficking          crime)  and 18  U.S.C.    922(g)(1)  (felon  in possession  of  a          firearm).  Finding  that there is sufficient evidence  to sustain          the convictions, we affirm.                              affirm                                          I.                                          I.                                      Background                                      Background                                      __________                    The  facts giving rise to Wight's  appeal, for the most          part,  are  not  in  dispute.    Codefendant  Edward  Dunbar  was          approached  by an undercover police  officer who sought  to buy a          large quantity of marijuana.  After several days of searching for          potential sources,  Dunbar determined that appellant  Wight could          supply the potential buyers ten pounds of marijuana.  On March 9,          1990, law  enforcement agents  made arrangements to  purchase the          controlled substance.   Dunbar agreed  to meet them  at a  Dunkin          Donuts  parking lot in Manchester, New Hampshire.  At the initial                                        ____________________          1Count  I of  the indictment  charged appellant  Wight  and other          codefendants with conspiracy to distribute marijuana in violation          of 21 U.S.C.    846;  Count V charged  appellant with  possession          with  intent to  distribute marijuana in  violation of  21 U.S.C.            841(a)(1); Counts VI and  VII charged appellant with possession          of a firearm  during a drug trafficking crime in  violation of 18          U.S.C.   924(c)(1), and with  possession of a firearm by  a felon          in violation of  18 U.S.C.    922(g)(1).  Count  IX charged  only          codefendant Fields with possessing the same firearm during a drug          trafficking crime, 18 U.S.C.   924(c)(1).                                         -2-                                          2          meeting, Dunbar and  Wight agreed  to sell the  marijuana to  the          agents  later that  day.   After  a  telephone call  between  the          parties,  they  met  at  a  Burger  King  parking  lot,  also  in          Manchester.   Wight  arrived at  the meeting in  a van  driven by          codefendant  Michael  Fields.    Wight was  seated  in  the front          passenger  seat.    Codefendant  Dunbar arrived  in  a  different          vehicle.  An undercover officer approached  the passenger side of          the van  and asked  Wight whether  he had  the marijuana.   Wight          turned  around, pointed to a large plastic bag located behind him          containing  what appeared to be marijuana, and pulled out a small          plastic  sandwich bag containing a  drug sample.   At that point,          the  officer gave  a signal  and Wight,  Dunbar, and  Fields were          arrested.                    At the moment of  the arrest, law enforcement personnel          seized, but  did not search, the  van.  The vehicle  was taken to          the  Manchester police  station,  where an  inventory search  was          conducted.   During the search, police discovered an operable 9mm          Interdynamic  pistol.   The  weapon was  located underneath  some          newspapers behind the two front seats of the van.  The pistol was          in  a  partially  unzipped  case  with  the  opening  facing  the          passenger seat of the van where appellant Wight sat.                    Testimony at  trial revealed that on  the morning prior          to the drug sale, Dunbar had brought the weapon to the  residence          shared by Wight and  Fields.  Dunbar gave  the weapon to  Fields,          instructing him that it was available for use if necessary.                                         -3-                                          3                    Based  on these  facts Wight,  Dunbar, and  Fields were          indicted.  While  Dunbar pled  guilty, Fields and  Wight went  to          trial.   Both Fields and  Wight were convicted  of the controlled          substances counts; however, while the jury convicted Wight of the          two firearms violations, they  acquitted Fields of possessing the          Interdynamic  pistol during  a drug  trafficking crime.   The two          firearms convictions form the basis for Wight's appeal.                                         II.                                         II.                                      Discussion                                      Discussion                                      __________                    Appellant's  sole  argument  on  appeal   is  that  the          evidence at trial was insufficient to support his convictions for          carrying  a firearm during or  in relation to  a drug trafficking          crime2 and for  being a felon  in possession of  a firearm in  or          affecting interstate commerce.3                                        ____________________          2The statute, 18 U.S.C.   924(c)(1), in relevant part, provides:                       Whoever,  during and  in  relation to  any                    crime of violence or drug  trafficking crime                     . . .  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  violence or drug                    trafficking    crime,    be   sentenced    to                    imprisonment for five years.           18 U.S.C.   924(c)(1).          3Section 922(g)(1) of Title 18 provides:                    (g)  It shall be unlawful for any person --                          (1) who has been convicted  in any court                    of, a  crime punishable by imprisonment for a                    term exceeding one year; to .  . . possess in                    or   affecting   commerce,  any   firearm  or                    ammunition.                                         -4-                                          4                    In reviewing  a sufficiency of the  evidence challenge,          this  court will  look  to the  evidence  as a  whole,  including          reasonable inferences drawn from the evidence, in the  light most          favorable  to the  government, seeking  to determine  whether any          rational  trier  of fact  could have  found  the elements  of the          offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S.                                              ___________________          307, 319 (1979); United States v. Abreu, 952 F.2d 1458, 1466 (1st                           ______________________          Cir.),  cert. denied, ___ U.S. ___, 112 S.Ct. 1695 (1992); United                  ____________                                       ______          States  v.  Sabatino, 943  F.2d 94,  97  (1st Cir.  1991); United          ____________________                                       ______          States  v.  Batista-Polanco, 927  F.2d  14, 17  (1st  Cir. 1991);          ___________________________          United States v.  Ruiz, 905 F.2d 499,  502 (1st Cir. 1990)  (same          ______________________          standard   in  Fed.  R.  Crim.  P. 29   motion  for  judgment  of          acquittal).  It is  not our role to weigh witness credibility and          we  will  resolve all  such issues  in  favor of  the government.          Batista-Polanco,  927  F.2d  at  17;  United  States  v.  Passos-          _______________                       ___________________________          Paternina,  918 F.2d 979, 983 (1st Cir.), cert. denied, 111 S.Ct.          _________                                 ____________          1637  (1990), and  cert. denied,  111 S.Ct.  2809 (1991).   Also,                        ___  ____________          evidence  sufficient to convict  may be  entirely circumstantial,          with  the factfinder  remaining free  to choose  among reasonable          interpretations of  the evidence.   Batista-Polanco, 927  F.2d at                                              _______________          17;  United States  v. McDowell,  918 F.2d  1004, 1010  (1st Cir.               __________________________          1990); United States  v. Boylan,  898 F.2d 230,  243 (1st  Cir.),                 ________________________          cert. denied, ___ U.S. ___, 111 S.Ct. 139 (1990).          ____________                                A.  Section 924(c)(1)                                A.  Section 924(c)(1)                                    _________________                                        ____________________          18 U.S.C.   922(g)(1).                                         -5-                                          5                    To establish a violation of 18 U.S.C.   924(c)(1),  the          government  had to prove beyond  a reasonable doubt  (1) that the          firearm  "was 'related  to,' or  played some  other role  in, the          underlying  crime"; and (2) that  "the defendant must have 'used'          or 'carried' the firearm."   United States v. Torres-Medina,  935                                       ______________________________          F.2d  1047,  1048-49  (9th Cir.  1991).    Wight  admits that  he          procured  the marijuana at the request of Dunbar, was a passenger          in  the van  which  carried the  marijuana,  and engaged  in  the          process  of selling the drug  to an undercover  police officer at          the time of his arrest.   There is no controversy as to the  fact          that the Interdynamic  9mm pistol was  found in  the van used  to          transport  the drugs  only  one day  after  the pistol  had  been          delivered by Dunbar to  the residence shared by Fields  and Wight          to be  used  if necessary.    While this  constitutes  sufficient          evidence to establish  that the  weapon was related  to the  drug          crime,  Wight's challenge  goes to  whether there  was sufficient          evidence  to  establish that  he  used  or  carried the  firearm.          Specifically,  he  argues that  the  government  failed to  prove          beyond a reasonable doubt that he knew the weapon was  in the van          and, without such  proof, the section 924(c)(1)  count should not          have been submitted to the jury.  We disagree.                    In  Abreu,  952  F.2d  at  1466,  we  found  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                                         -6-                                          6          section 924(c).   See also  United States v.  Hadfield, 918  F.2d                            ___ ____  __________________________          987, 997-98 (1st Cir.  1990) (in a "drug fortress"  context, "the          critical concern  is the presence  or absence  of a  facilitative          nexus"),  cert.  denied, ___  U.S.  ___, 111  S.Ct.  2062 (1991);                    _____________          United  States v.  Payero,  888 F.2d  928,  929 (1st  Cir.  1989)          _________________________          (conviction  sustained if possessor of a weapon intended it to be          available for  possible use  during or immediately  following the          transaction); United States v. Featherson, 949 F.2d 770, 776 (5th                        ___________________________          Cir.)  (sufficient for  the government  to show  that the  weapon          "could  have  been  used"  to  protect  or  facilitate  the  drug          trafficking),  cert.  denied,  60  U.S.L.W.  3735 (1992);  United                         _____________                               ______          States  v.  Young-Bey,  893  F.2d  178,  181  (8th   Cir.  1990).          _____________________          Examining the circumstances surrounding the firearm's presence in          the van, we find that there is sufficient  evidence in the record          to support  a jury  finding connecting  the  weapon to  appellant          Wight's drug trafficking.                    It is undisputed  that Dunbar originally delivered  the          firearm  to the  residence shared  by Wight  and Fields  with the          understanding  that the  weapon was for  their use  if necessary.          Wight supplied the marijuana  and played a principal role  in the          drug transaction.   One day later, the  firearm was found  in the          van  used  to transport  the  drug to  the place  where  the drug          transaction was held.  When found, the weapon was in a partially-          opened  case, facing appellant and within his grasp.  Given these          facts,  it was reasonable  for a rational trier  of fact to infer                                         -7-                                          7          that appellant knew  the weapon's location,  had ready access  to          it, and possessed it in the van to facilitate the drug deal.                      Appellant also suggests  that the  jury's acquittal  of          codefendant  Fields  with respect  to  Count  IX  for  a  section          924(c)(1)  violation  is  further  evidence  that  the government          failed to  establish the  necessary elements beyond  a reasonable          doubt.   The government argues that  even if we were  to view the          verdicts as inconsistent, based on the reasoning of United States                                                              _____________          v.  Powell, 469 U.S. 57 (1984), inconsistency is not a sufficient          __________          reason to set aside the verdict provided that sufficient evidence          supports  the count  of conviction.   See  also United  States v.                                                ___  ____ _________________          Bernal-Rojas,  933 F.2d 97, 100 (1st Cir. 1991); United States v.          ____________                                     ________________          Bucuvalas,  909 F.2d  593 (1st  Cir. 1990)  (rationale  of Powell          _________                                                  ______          applied where two co-conspirators involved).  We  have found that          there was  sufficient evidence to support  appellant's conviction          pursuant to section 924(c)(1). In addition,  the Wight and Fields          section 924(c)(1) verdicts are,  in fact, consistent.  Obviously,          the  jury found  that  Wight's leadership  role  in the  criminal          activity,  coupled with the fact  that the weapon  appeared to be          more accessible to him than it was to Fields, made it more likely          that it  was he, and  not Fields, who  sought the benefit  of the          weapon's  presence  during  the drug  transaction.    Appellant's          conviction  for possessing a  firearm during the  commission of a          drug offense, 18 U.S.C.   924(c)(1), shall stand.                                  B.  Section 922(g)(1)                                B.  Section 922(g)(1)                                    _________________                                         -8-                                          8                    Appellant  also  challenges  his  conviction  under  18          U.S.C.    922(g)(1).   Under  this statute,  the government  must          establish  that: (1)  appellant  was previously  convicted of  an          offense punishable by imprisonment for a term exceeding one year;          and  (2) he  knowingly  possessed   a  firearm  in  or  affecting          interstate commerce.  United  States v. Ramos, No. 91-1702,  slip                                _______________________          op.  at 4 (1st Cir. April 21,  1992); United States v. Smith, 940                                                ______________________          F.2d 710, 713 (1st Cir. 1991);  United States v. Rumney, 867 F.2d                                          _______________________          714, 721 (1st  Cir. 1989) (sufficiency of  the evidence challenge          to  18 U.S.C.  App.  (1982  Ed.)    1202(a)(1),  the  predecessor          statute to   922(g)),  cert. denied, 491 U.S. 908 (1989).   Wight                                 ____________          admits that  the government established  the requisite  predicate          offense  and he does not  challenge the firearm's relationship to          interstate commerce.  Rather, Wight argues that his mere presence          in  the van is, by itself, insufficient to establish the "knowing          possession"  element of  section 922(g)(1).   We  find sufficient          evidentiary support in the record for the jury determination that          appellant was a felon in possession of the firearm.                      In  the context  of drug offenses,  we have  found that          "[k]nowledge may be inferred from  possession."  United States v.                                                           ________________          Lochan, 674  F.2d 960,  966 (1st Cir.  1982).  Possession  can be          ______          either actual or constructive,  sole or joint.  United  States v.                                                          _________________          Vargas, 945 F.2d 426, 428  (1st Cir. 1991); Batista-Polanco,  927          ______                                      _______________          F.2d at 19; United  States v. Martinez, 922 F.2d 914, 923-24 (1st                      __________________________          Cir. 1991); United States v. Latham, 874 F.2d  852, 861 (1st Cir.                      _______________________          1989);  United States  v. Calle-Cardenas,  837  F.2d 30,  32 (1st                  ________________________________                                         -9-                                          9          Cir.), cert.  denied, 485  U.S. 1024 (1988).   In  order to  show                 _____________          constructive  possession,  the  government must  prove  that  the          defendant  "had dominion  and  control over  the  area where  the          contraband  was found."  United  States v. Barnes,  890 F.2d 545,                                   ________________________          549  (1st Cir. 1989), cert. denied, 494 U.S. 1019 (1990); Vargas,                                ____________                        ______          945 F.2d  at 428  (constructive possession found  where defendant          was sole tenant  and occupant of  apartment immediately prior  to          police raid); Lochan, 674  F.2d at 966 (reasonable to  infer that                        ______          driver  knowingly possessed  cocaine  found behind  rear seat  of          automobile  owned  by  passenger).     The  government  may  show          constructive  possession  through the  use  of  either direct  or          circumstantial  evidence; however,  mere presence  or association          with  another who  possessed  the contraband  is insufficient  to          establish constructive  possession.  Batista-Polanco, 927 F.2d at                                               _______________          18; Barnes, 890 F.2d at 549.              ______                      While   this   court  has   upheld   convictions  for          violations  of 18 U.S.C.    922(g)(1), United  States v. Minnick,                                                 _________________________          949 F.2d 8,  10 (1st Cir. 1991), cert. denied,  ___ U.S. ___, 112                                           ____________          S.Ct.  1698 (1992); United States v. Donlon, 909 F.2d 650, 655-56                              _______________________          (1st Cir. 1990); United States v. Rumney, 867 F.2d 714,  719 (1st                           _______________________          Cir.  1989)4, and  has discussed  constructive possession  in the          context of 18 U.S.C.   922(h), United  States v. Lamare, 711 F.2d                                         ________________________          3, 5-6  (1st Cir.  1983), we have  not passed  upon a  conviction                                        ____________________          4Rumney was convicted as a felon in possession of a firearm under          18 U.S.C.  App.    1202(a)(1).   This  section was  repealed  and          reenacted in broader form, and recodified at 18 U.S.C.   922(g).                                         -10-                                          10          under  section  922(g)(1)  based  on  a  theory  of  constructive          possession.5  Today, we  make explicit the obvious and  find that          the element  of "knowing possession" under  section 922(g)(1) may          be established by  proving that the defendant was in constructive          possession  of a firearm.   We hold  that as long  as a convicted          felon  knowingly has the power and  the intention at a given time          of exercising dominion  and control  over a firearm  or over  the          area  in which the weapon is located, directly or through others,          he is in possession of the firearm.  In so holding, we join other          circuits  which  have   applied  the   concept  of   constructive          possession  in the  context  of prosecutions  under  18 U.S.C.             922(g)(1).6                                        ____________________          5Constructive possession of a firearm has been discussed in First          Circuit  cases in  a  different context.    In United  States  v.                                                         __________________          Parent, 954 F.2d  23 (1st Cir.  1992), we vacated  a judgment  of          ______          conviction under section 922(g)(1) where the trial court erred in          giving  the  jury  a  supplemental  instruction  on  constructive          possession without  first informing  the attorneys of  the jury's          request.   In  the instruction,  attached as  an appendix  to the          opinion,  constructive possession was  defined.  954  F.2d at 28.          In the second  case, United States v. Jackson,  918 F.2d 236, 243                               ________________________          (1st  Cir. 1990),  we simply alluded  to the fact  that there was          overwhelming evidence of either actual or constructive possession          of the firearm in dismissing an alleged ineffective assistance of          counsel claim.          6United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992); United           _____________________                                     ______          States  v.   McKnight,  953  F.2d   898,  901  (5th   Cir.  1992)          _____________________          (constructive possession where defendant knowingly has ownership,          dominion or control over contraband itself or over premises where          contraband  is located),  petition for  cert. filed,  60 U.S.L.W.                                    _________________________          ___, (U.S. Apr. 30,  1992) (No. _____); United States  v. Moreno,                                                  ________________________          933  F.2d 362,  373 (6th Cir.),  cert. denied, ___  U.S. ___, 112                                           ____________          S.Ct.  265 (1991); United States v. Wainwright, 921 F.2d 833, 836                             ___________________________          (8th Cir. 1990); United  States v. Sullivan, 919 F.2d  1403, 1430                           __________________________          (10th Cir. 1990); United States v. Terry, 911  F.2d 272, 278 (9th                            ______________________          Cir.  1990); United States v.  Garrett, 903 F.2d  1105, 1110 (7th                       _________________________          Cir.) ("[c]onstructive  possession exists when a  person does not                  _________________________________________________________          have actual possession  but instead knowingly  has the power  and          _________________________________________________________________                                         -11-                                          11                    While   appellant  Wight  argues  that  the  government          established  only his  mere  presence in  the  vehicle where  the          weapon was located,  we think  that the evidence,  viewed in  the          light  most favorable to the government, allowed the jury to find          beyond a reasonable doubt that he was  in constructive possession          of the  weapon.  First,  it was established that  the firearm was          taken to the residence he  shared with Fields the day  before the          drug transaction was  scheduled to occur and then  transferred to          the van sometime prior to the actual meeting.  It would have been          entirely  reasonable for  the jury to  infer that  Wight, jointly          with Fields,  exercised dominion  and control  over the  house to          which the gun had been delivered and, accordingly,  had knowledge          of the weapon's presence in the residence and its transfer to the          van.   See United  States v. Munoz-Romo,  947 F.2d  170, 177 (5th                 ___ ____________________________          Cir. 1991), petition for cert. filed, 60 U.S.L.W. 3761 (U.S. Jan.                      ________________________          7,  1992) (No. 91-1593); United  States v. Smith,  930 F.2d 1081,                                   _______________________          1085-86  (5th  Cir.  1991).    Second,  it  is  disingenuous  for          appellant to argue that he  was merely present in the  van driven          by Fields.   The evidence  established that Dunbar  put Wight  in          contact  with the  buyers because  of his  ability to  supply ten          pounds of marijuana.  Wight participated in the negotiations with          the buyers  and, at  the time  of the  drug deal,  it was  he who          transacted  the sale.   It was reasonable  for the jury  to infer          that he, and  not Fields, was in charge of  the operation and, as                                        ____________________          the  intention at a given  time to exercise  dominion and control          _________________________________________________________________          over  an object, either directly or through others") (emphasis in          __________________________________________________          original), cert. denied, ___ U.S. ___, 111 S.Ct. 272 (1990).                     ____________                                         -12-                                          12          such, exercised  control over Fields, the van,  its contents, and          the firearm.                    We   think   that   the   facts   surrounding   Wight's          participation and presence  in the van  are different from  cases          where courts have absolved vehicle passengers of weapons charges.          See Blue, 957 F.2d at 107-08 (only evidence produced was weapon's          ___ ____          discovery  in vehicle  and testimony  that defendant  "dipped his          shoulder" as police officer approached vehicle); United States v.                                                           ________________          Soto, 779  F.2d 558, 560 (9th Cir.  1986) ("[m]ere proximity of a          ____          weapon to a  passenger in a car  goes only to  its accessibility,          not  to the  dominion or  control"), cert.  denied, 484  U.S. 833                                               _____________          (1987).  Here, there was ample evidence to establish that Wight's          presence  in the van was for the  purpose of drug trafficking and          it  could be inferred  from this  fact that,  for purposes  of 18          U.S.C.  922(g)(1),  he, as  a  convicted  felon, exercised  joint          dominion or control over the vehicle  and its contents, including          the firearm.  The gun  was contained in a zippered case  that was          partially open and readily accessible to Wight.  The proximity of          the  firearm to the passenger  and the illegal  cargo allowed the          fact-finder to  convict of both  possessing a firearm  during the          commission  of a  drug  offense, 18  U.S.C.    924(c)(1), and  of          possessing  the   gun  after  a  felony   conviction,  18  U.S.C.            922(g)(1).   See  United States  v. Wright,  932 F.2d  868, 881                         ___  ________________________          (10th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 428 (1991).                        ____________                    Affirmed.                    Affirmed                    ________                                         -13-                                          13
