
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1016                                    UNITED STATES,                                      Appellee,                                          v.                                FELIPE RAMIREZ-FERRER,                                Defendant - Appellant.                                 ____________________          No. 94-1017                                    UNITED STATES,                                      Appellee,                                          v.                                JORGE L. SUAREZ-MAYA,                                Defendant - Appellant.                                 ____________________          No. 94-1018                                    UNITED STATES,                                      Appellee,                                          v.                                  PAUL TROCHE-MATOS,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________               Roxana  Matienzo-Carri n, by  Appointment of the  Court, for               ________________________          appellant Felipe Ram rez-Ferrer.               Ram n Garc a-Garc a for appellant Jorge L. Su rez-Maya.               ___________________               Francisco Serrano-Walker for appellant Ra l Troche-Matos.               ________________________               Kathleen A.  Felton, Attorney,  Department of  Justice, with               ___________________          whom  Guillermo  Gil, United  States  Attorney,  Jos  A.  Quiles-                ______________                             ________________          Espinosa, Senior  Litigation Counsel, and  Epifanio Morales-Cruz,          ________                                   _____________________          Assistant United States Attorney,  were on supplemental brief for          appellee.                                 ____________________                                    April 29, 1996                                 ____________________                                         -2-                    TORRUELLA,   Chief    Judge.      Defendants-appellants                    TORRUELLA,   Chief    Judge.                                 ______________          (collectively,  "defendants")  Felipe  Ram rez-Ferrer  ("Ram rez-          Ferrer"), Jorge L. Su rez-Maya ("Su rez-Maya"),  and Ra l Troche-          Matos ("Troche-Matos") appeal their firearm convictions  under 18          U.S.C.   924(c)(1).  A previous  panel of this court affirmed the          convictions of Ram rez-Ferrer and Su rez-Maya for using a firearm          in  relation  to  a  drug  trafficking offense,  but  reversed  a          corresponding conviction of Troche-Matos.   However, the original          panel's opinion was withdrawn  when the government's petition for          an  en banc  was granted.    The government  has  decided not  to              _______          contest   the   original   panel's   reversal   of  Troche-Matos'          conviction.  As a result, we reiterate that holding; our focus is          on the appeals of Ram rez-Ferrer and Su rez-Maya.                    Although  the  firearm  convictions  were  also  to  be          reconsidered en banc, after  the en banc oral argument  was heard                       _______             _______          but  before the  en banc  opinion was  issued, the  Supreme Court                           _______          rendered  its opinion in Bailey  v. United States,  ___ U.S. ___,                                   ______     _____________          ___,  116 S.  Ct.  501, 505  (1995),  clarifying the  meaning  of          section  924(c)(1).    In light  of  Bailey,  the  en banc  court                                               ______        _______          remanded the firearm  convictions for the  panel's consideration.          We  today affirm  the convictions  of Ram rez-Ferrer  and Su rez-          Maya.                                    I.  BACKGROUND                                    I.  BACKGROUND                    The evidence,  taken in the light most favorable to the          government,  United  States v.  Abreu, 952  F.2d 1458,  1460 (1st                       ______________     _____          Cir.), cert. denied, 503  U.S. 994 (1992), permitted the  jury to                 ____________                                         -3-          find  the  facts  that follow.    Because  the  en banc  decision                                                          _______          affirmed related  drug possession  convictions and  reversed drug          importation  convictions  for  all  three  defendants,  the  sole          remaining issue is  the validity of  the firearm convictions  for          using or  carrying a  firearm during  and in  relation to  a drug          trafficking  crime  pursuant  to  section 924(c)(1).    Thus,  we          emphasize the facts pertinent to the firearms charge.                    On March 13,  1993, the Police of Puerto  Rico ("POPR")          received an  anonymous telephone call.   The caller  informed the          POPR  that  defendant  Su rez-Maya  and three  other  individuals          planned to bring a load of cocaine by boat to the main island  of          Puerto  Rico.   Using  a helicopter,  the  United States  Customs          Service (USCS) and POPR located the subject boat and Su rez-Maya,          accompanied  by three  other  men as  described.   The  boat  was          interdicted about  one mile  off the  southwest  coast of  Puerto          Rico.                    After  the boat was seized, it was found to be carrying          about  16 kilograms of cocaine.  A subsequent inventory search of          the  boat turned  up a  firearm.   The seized  firearm, a  loaded          revolver,  was  found covered  by  a  T-shirt, behind  a  storage          compartment  near the  location  where  Ram rez-Ferrer  had  been          seated at the time of the interdiction.  The search also revealed          evidence linking the vessel to a relative of Su rez-Maya.                    On March  31, 1993, a grand jury indicted defendants on          charges of possessing  and carrying  a firearm in  relation to  a          drug trafficking crime  (count 3), 18 U.S.C.    924(c)(1) (1994).                                         -4-          On September 28, 1993,  a jury convicted all three  defendants on          this  count.   On count  1, later  upheld by  the en  banc court,                                                            ________          relating to possession  and importation  of cocaine,  Su rez-Maya          was  sentenced to life imprisonment,  Ram rez-Ferrer to a term of          240  months, and  Troche-Matos to  a term  of 120  months.1   The          sentences of Su rez-Maya  and Ram rez-Ferrer were  enhanced under          21 U.S.C.    841(b) and  960(b) on account of prior  drug crimes.          On count 3, the firearm count,  each appellant was sentenced to a          mandatory minimum term  of 60 months to  be served consecutively,          as required by the statute.                                   II.  DISCUSSION                                   II.  DISCUSSION                    Count 3 of the  indictment charged that "the defendants          herein, aiding and abetting  each other, did knowingly, willfully          and  intentionally possess and carry a .32 caliber Smith & Wesson          revolver during and in  relation to a drug trafficking  crime" in          violation  of 18  U.S.C.    924(c)(1).    In the  original  panel          opinion,  we held that there was insufficient evidence for a jury          to infer that defendant Troche-Matos  was guilty of violating the          statute or  aiding and abetting in  its violation.  There  was no          evidence  that Troche-Matos actually  or constructively possessed          the  gun;  nor  was  there  evidence that  he  was  aware  of its          existence.  In view  of the circumstances, we held that  the only          way a jury could  link Troche-Matos to  the gun would be  through          sheer speculation  and conjecture.   As  the  government did  not                                        ____________________          1  As noted, supra, the convictions of each appellant on count 2,                       _____          for importation of  a controlled substance, were reversed  by the          en banc court.          _______                                         -5-          challenge these holding in its petition for rehearing en banc, we                                                                _______          reiterate that Troche-Matos' conviction on  the gun count must be          reversed for lack of sufficient evidence.                    As for Su rez-Maya and Ram rez-Ferrer, the scope of our          present review was established by the en banc opinion, which held                                                _______          that  "defendants' conviction  for 'use'  should be  vacated, and          they should face only  reconsideration of their convictions under          the carry prong."  Ram rez-Ferrer, slip op. at 10 (citing Bailey,                             ______________                         ______          ___ U.S. at ___, 116 S. Ct.  at 508-09).  The en banc panel based                                                        _______          its  holding on its understanding of Bailey as having limited the                                               ______          word 'use' to the extent that it cannot apply in the instant case          and  having emphasized that "'carry' has  meanings not covered by          'use.'"  Id., slip op. at 10.                   ___                    Although the  defendants continue to style their appeal          as  an objection to sufficiency of the evidence, it is clear that          the Supreme Court's  decision in Bailey  requires us to  consider                                           ______          whether the convictions on the gun count can be sustained despite          the erroneous instruction of  the district court.  When  we wrote          the original panel opinion,  the district court's instruction was          an accurate  account of the law  of the circuit; but  in light of          Bailey,  it  is plainly  incorrect in  regard  to the  meaning of          ______          "use."                    The  district   court  gave  the  jury   the  following          instruction on the elements of 18 U.S.C.   942(c)(1):                      [T]he Government is not required to prove                      that the defendant or defendants actually                      fired the  weapon or brandished it  . . .                      at someone in order to prove use, as that                                         -6-                      term  used  [sic] in  these instructions.                      However, you  must be convinced  beyond a                      reasonable doubt that the  firearm played                      a  role in or facilitating the commission                      of the drug offense, in  other words, you                      must   find  that  the   firearm  was  an                      integral part of the offense charged.                      Now, to prove that a defendant carried  a                      firearm,  the  Government  does not  only                      have  to prove that a defendant carried a                      firearm, the Government  need only  prove                      that  a firearm was accessible during and                      in relation to a drug offense.          The  district  court's instruction,  which  could be  heard  by a          reasonable  jury to  endorse  the "fortress  theory" rejected  by          Bailey, was  (in hindsight)  erroneous.  However,  the defendants          ______          did not  object to it;  we therefore review  only under  a "plain          error"  standard.  This standard requires not only that the error          be plain -- which in light of Bailey this probably is -- but also                                        ______          that affirmance  would result in a "miscarriage  of justice," one          that would jeopardize  public confidence in the  integrity of the          judicial process.  United States v. Olano,  113 S. Ct. 1770, 1779                             _____________    _____          (1993); United  States v.  Randazzo, Nos. 95-1489,  95-1768, slip                  ______________     ________          op. at 17 (1st Cir., April 8, 1996).                    In this  case, the  standard would require  reversal of          Su rez-Maya's and Ram rez-Ferrer's  convictions only  if we  have          substantial doubt  about the certainty of  the defendants' guilt.          In  making  this determination,  we  consider  both the  evidence          presented  by the  government  and what  we  can infer  from  the          verdict that the jury did in fact decide.                    We begin by defining "carry" for purposes of  18 U.S.C.            924(c)(1).  We take our lead from United States v. Manning, No.                                              _____________    _______                                         -7-          95-1199, slip op. (1st Cir. March 21, 1996), in which we affirmed          a  district court's denial of a motion for acquittal on 924(c)(1)          charges based on Bailey's treatment of "use," because even though                           ______          "use" no  longer could  cover defendant's actions,  those actions          met "any reasonable construction"  of "carry."  Id., slip  op. at                                                          ___          6.   In  Manning, detectives  ordered a  defendant to  stop while                   _______          defendant  was  holding a  briefcase,  which later  was  found to          contain illegal  drugs and a loaded handgun.  Id., slip op. at 7.                                                        ___          We  note in  passing that  either defendant  may be  convicted as          "aiding and abetting" if one defendant is found to have carried a          firearm in violation of section 924(c)(1), and if the evidence is          sufficient for a jury to infer that the other defendant aided and          abetted this conduct.                    As  we noted in Manning, which was decided after the en                                    _______                              __          banc  oral argument was heard and after Bailey, but before the en          ____                                    ______                 __          banc opinion  was issued,  "[b]y narrowing the  interpretation of          ____          'use'  to  instances  of  active  employment,  the  Bailey  court                                                              ______          recognized  that   the  'carry'  prong   would  take  on   a  new          significance."   Id., slip op.  at 6.   Although in  Manning, the                           ___                                 _______          court  found that  it  did not  have  to delineate  the  "precise          contours" of the "carry" prong, id., slip op. at 6, it noted that                                          ___          "the  word  'carry'  is  variously  defined  as  'to  move  while          supporting (as  .  . . in  one's  hands or  arms),'  'to move  an          appreciable distance  without dragging,'  and 'to bring  along to          another  place,'" id., slip op. at 7 (quoting Webster's Third New                            ___                         ___________________                                         -8-          International Dictionary 343 (1986)).2   This focus on dictionary          ________________________          meanings  follows   naturally  from  Bailey's  reliance   on  the                                               ______          "ordinary  and natural" meanings in construing  the term "use" in          section 924(c)(1).   See Bailey,  116 S. Ct.  at 506  (discussing                               ___ ______          definitions taken from Webster's New International Dictionary  of                                 __________________________________________          English Language  and Black's Law  Dictionary).  In  Manning, the          ________________      _______________________        _______          court  concluded that  the defendant's  "alleged  actions readily          me[t]  all of the[] definitions" of "carry" taken from Webster's.                                                                 _________          Manning, slip op. at 7; see also United States v. Hern ndez, 1996          _______                 ________ _____________    _________          WL 34822, *3, ___ F.3d ___ (9th Cir. 1996) (quoting Webster's and                                                              _________          Black's).          _______                    Our  decision in  Manning  limits the  construction  of                                      _______          "carry"  to situations in which the "firearm" has been "moved" or          "brought  along to another place,"  since all three  parts of the          definition adopted there contain  this element of transportation.          See also United States v. Murrietta-N  ez, 1996 WL 65240, *5 (9th          ________ _____________    _______________          Cir. 1996)  (rejecting the  possibility of a  "carry" prong-based          conviction where a firearm was found under a bed near a bundle of          marijuana, noting that "storing the gun for possible, later  use"          does not constitute "carrying"  under Bailey); Hern ndez, 1996 WL                                                ______   _________                                        ____________________          2   With the first  two of the three  parts of the  definition of          "carry" relied  on by the  court in Manning,  there is  a seeming                                              _______          ambiguity as  to whether the subject of "to move" is the actor or          the  firearm  --  that  is, whether  "move"  is  used  here as  a          transitive  or  intransitive verb.    The  discussion in  Manning                                                                    _______          proceeds as though  "move" were  transitive.  Because  we do  not          believe it alters our analysis, we continue with this assumption,          without deciding the question.  From the evidence, the jury could          reasonably  infer both that the firearm moved and that defendants          moved it (by having it aboard a moving boat).                                         -9-          34822 at *3,  ___ F.3d at  ___ (concluding that  "in order for  a          defendant to be  convicted of  'carrying' a gun  in violation  of          section  924(c)(1),  the  defendant  must  have  transported  the                                                           ___________          firearm  on  or about  his  or  her  person")  (emphasis  added).          Furthermore,  we  must  bear  in mind  that  the  government must          present  evidence from  which a  reasonable juror  could conclude          that this transportive function was "during" and "in relation to"          the  crime of possession with intent to distribute.  See Manning,                                                               ___ _______          slip op. at 7 (quoting   924(c)(1)).                    However, unlike the court in Manning, we have no record                                                 _______          evidence from  which a  jury could  reasonably infer  that either          Su rez-Maya   or   Ram rez-Ferrer   moved   the   firearm   while          "supporting"   it  "in   [their]  hands   or  arms."     However,          transporting a firearm on a boat would certainly implicate moving          it "an appreciable distance  without dragging" it or bringing  it          "along to another place."  As a result, we are forced move beyond          Manning  and  map the  contours  of  "carry"  in further  detail.          _______          Specifically, we  must decide whether there  exists some required          degree of  proximity in conjunction with  this drug crime-related          transportation,   which  demands  delving   into  a  line-drawing          problem.  At one extreme, "carry" could be defined so narrowly as          to  only allow  convictions where  a factfinder  could reasonably          conclude  that  the  defendant  moved  while  maintaining  actual          physical contact with a  firearm.  At the other  extreme, "carry"          might be so loosely construed that a defendant could be deemed to          "carry"  the  firearm when  he or  she  merely had  transported a                                         -10-          firearm  without touching  it  or  having  it accessible  --  for          example, in  a car  trunk or  in some  hard-to-reach recess of  a          boat.  We must  address this question because while  evidence was          presented  from which  the jury  could have  reasonably inferred:          (a) that the firearm was transported  (on the boat) during and in          relation  to the drug crime in  question and (b) that the firearm          was within  easy reach  of defendant Ram rez-Ferrer,  no evidence          was  proffered to  justify a  reasonable  inference (c)  that any          defendant  had any degree of physical contact with the weapon, or          had otherwise "support[ed]" it, as "in one's hands or arms."                    Since   Bailey,  was  decided,   a  few  circuits  have                            ______          addressed  the scope  of the  "carry" prong.   In  Hern ndez, the                                                             _________          Ninth Circuit confronted a  situation in which a gun was found in          a  locked toolbox  together  with cocaine  in defendant's  garage          after defendant was arrested during a controlled buy.  Hern ndez,                                                                 _________          1996  WL 34822 at *1-2.  The  Ninth Circuit concluded that, for a          "carrying" conviction  under  section 924(c)(1),  "the  defendant          must  have  transported the  firearm  on  or about  his  person,"          meaning that  "the firearm  must have been  immediately available          for use  by the defendant."  Id.  at *3.  As  a result, the Ninth                                       ___          Circuit  refused to find that the defendant carried a firearm for          the purposes of section 924(c)(1).                    Two  circuits  have  specifically addressed  situations          involving  the presence  of guns  and drugs  in automobiles.   In          United  States  v. Riascos-Su rez,  73  F.3d 616,  623  (6th Cir.          ______________     ______________          1996), the  Sixth Circuit found a  defendant's conduct sufficient                                         -11-          for  conviction under the "carry" prong where the defendant had a          gun on the driver's side  of the dashboard console of a  car that          also contained drugs.   The  court there stated  that it  "h[e]ld          that  [defendant]  carried the  weapon  for  purposes of  section          924(c)(1) because  the firearm  was within reach  and immediately          available for use."  Id. at 623.  The Sixth Circuit clarified its                               ___          definition of "carry" in United States v. Moore, 76 F.3d 111, 113                                   _____________    _____          (6th Cir. 1996).  There,  the court remanded a case in  which the          defendant  also  had guns  within easy  reach.   Id.  at 113-114.                                                           ___          However, the court distinguished the conduct of the defendant  in          Moore from  that of the  defendant in Riascos-Su rez  because the          _____                                 ______________          defendant in Moore did not bring the drugs with him in the course                       _____          of his drug trade.  Id. at  113.  The court noted that "immediate                              ___          availability is [] a  necessary, but not sufficient determinant."          Id.          ___                    The Eleventh Circuit has also addressed the carry prong          in  an  automotive context.   United  States  v. Farris,  1996 WL                                        ______________     ______          82490,  *1-3 (11th Cir. 1996).   In Farris,  the Eleventh Circuit                                              ______          confronted a situation  where a  firearm was found  in the  glove          compartment of  a co-conspirator's car used  to transport illegal          drugs  to the controlled buy at which defendant was arrested, and          which  contained drugs.  Id.   Though it  upheld conviction under                                   ___          the "carrying"  prong,  the Eleventh  Circuit did  not state  its          opinion  as to  the government's  broader argument in  that case,          unqualified by any requirement of "accessibility,"  that "section                                         -12-          924(c)  applies when a defendant  carries a firearm  in a vehicle          that is being used as a base for drug distribution."  Id. at *3.                                                                ___                    Defendants  here do  not  dispute that  the weapon  was          aboard   a  moving  boat,  and  the  en  banc  court  has  upheld                                               ________          defendants' possession convictions.   Thus, they do not challenge          the  proposition  that  they  physically  caused  the  weapon  in                                        __________          question  to  be transported  and  that  this transportation  was          during -- in the sense of  contemporaneous with -- their crime of          possession with intent to distribute illegal drugs.  The evidence          here,  including  diagrams  of  the  boat  with  the  position of          defendants and the weapon clearly indicated, was sufficient for a          reasonable  jury to  infer that  the loaded  gun was  within easy          reach of  defendant Ram rez-Ferrer.   Given the  above persuasive          authority emphasizing accessibility and  transport and given  the                                              ___          facts of  the instant case, we hold that Ram rez-Ferrer's conduct          suffices for conviction under an ordinary  and natural meaning of          the word "carry."  We express no opinion, however,  on the theory          that a  conviction for "carrying" may be upheld whenever a gun is          merely present  on a  boat or  other vehicle  employed in  a drug          possession crime, regardless of accessibility.   Ram rez-Ferrer's          proximity  also suffices  for  a jury  reasonably  to infer  that          Su rez-Maya, as captain  of the boat and the defendant apparently          responsible for the particular boat  (it allegedly belonged to  a          relation  of  his), aided  and abetted  Ram rez-Ferrer's conduct.          See,  e.g., United States  v. Price, 1996  WL 67398,  *4 (3d Cir.          ___   ____  _____________     _____          1996) (upholding conviction of  defendant for aiding and abetting                                         -13-          co-defendant's  924(c)(1)  violation,   since  jury  could   have          concluded,  from   ample  evidence, that  defendant  knew of  and          benefitted from co-defendant's  gun-related conduct).   Thus,  we          uphold  both  defendants' convictions  under  section 924(c)(1)'s          "carry" prong.                    Ram rez-Ferrer  and Su rez-Maya also argue that even if          they "carried" the gun "during" their drug crime, they did not do          so "in relation" to  their drug crime.  Specifically,  they argue          that they  did not know the  gun was there, pointing  out that it          was rusty and  that the boat  did not belong  to either of  them.          But the  defendants do not allege that there was any error in the          jury instructions in this regard.  Therefore, the short answer to          this  objection  is  that we  affirm  a  jury's  conviction if  a          rational  trier of fact  could have  found the  defendants guilty          beyond a reasonable doubt.  See  Farris at *3.  The evidence need                                      ___  ______          not exclude every  hypothesis of innocence.  Id.   The jury could                                                       ___          reasonably have  attributed knowledge and intent  to benefit from          the  gun  to  both  Ram rez-Ferrer and  Su rez-Maya,  the  boat's          captain and the self-admitted principal with respect to the  drug          possession offense.   Thus, the evidence is  sufficient to uphold          both defendants' convictions under section 924(c)(1).                                      CONCLUSION                                      CONCLUSION                    As a  result  of the  foregoing,  the judgment  of  the          district court is reversed in part and affirmed in part.                            reversed in part     affirmed in part                            ________________     ________________                                         -14-
