
USCA1 Opinion

	




          November 10, 1993     [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1375                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   WILLIAM DELEON,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                              _________________________                                        Before                        Selya, Cyr and Stahl, Circuit Judges.                                              ______________                              _________________________               Marie T. Roebuck on brief for appellant.               ________________               Edwin J. Gale,  United States Attorney, Stephanie  S. Browne               _____________                           ____________________          and Gerard  B. Sullivan,  Assistant United  States Attorneys,  on              ___________________          brief for the United States.                              _________________________                              _________________________                    Per Curiam.  Defendant-appellant William DeLeon appeals                    Per Curiam.                    __________          his conviction  on one  count of  using a  firearm during  and in          relation to the  commission of drug  trafficking offenses.1   See                                                                        ___          18 U.S.C.   924(c)(1) (1988).   He posits three claims of  error.          None suffice.                                          I                                          I                    Appellant's  challenge   to  the  sufficiency   of  the          evidence is unavailing.  Following  a guilty verdict, a reviewing          court  must   scrutinize  the  record,  drawing   all  reasonable          inferences in  favor of the  verdict, to ascertain if  a rational          jury could have found that  the government proved each element of          the  crime beyond  a  reasonable  doubt.   See  United States  v.                                                     ___  _____________          Echeverri, 982  F.2d 675, 677  (1st Cir. 1993); United  States v.          _________                                       ______________          Ortiz, 966 F.2d  707, 711 (1st  Cir. 1992), cert. denied,  113 S.          _____                                       _____ ______          Ct. 1005 (1993).   The government can satisfy its burden of proof          by  either direct or circumstantial evidence.  See Echeverri, 982                                                         ___ _________          F.2d at  679; United  States v.  Rivera-Santiago, 872  F.2d 1073,                        ______________     _______________          1079 (1st Cir.), cert. denied, 492 U.S. 910 (1989).  To sustain a                           _____ ______          conviction,  a reviewing  court  need not  conclude  that only  a          guilty verdict could appropriately be reached; it is  enough that          the  jury's  determination  draws its  essence  from  a plausible          reading of  the record.   See Echeverri, 982 F.2d  at 677; Ortiz,                                    ___ _________                    _____          966 F.2d at 711.  Using these guideposts, the quantum of evidence          adduced here, though  largely circumstantial, is adequate  to the                                        ____________________               1Appellant  was   simultaneously  charged   with  two   drug          trafficking counts.  He pled guilty to those charges and they are          not before us.                                          2          task.                      In United  States v. Hadfield,  918 F.2d 987  (1st Cir.                       ______________    ________          1990), cert. denied, 111 S.  Ct. 2062 (1991), a section 924(c)(1)                 _____ ______          case, we  made it  pellucid that where  a drug trafficker  is not          carrying a gun  on his person,  but has  one nearby, the  court's          critical  concern  is  not  whether  the  weapon  was  "instantly          available" or "exclusively dedicated to the narcotics trade," but          whether  it  was  "available  for use"  in  connection  with  the          narcotics trade.  Id.  at 998.  See also Smith  v. United States,                            ___           ___ ____ _____     _____________          113 S. Ct. 2050, 2059 (1993)  (explaining that a weapon meets the          statutory  test if its presence, rather  than being accidental or          coincidental, facilitates, or has the potential  of facilitating,          the drug  trafficking offense).   We  think the  case at  hand is          largely governed by Hadfield.                              ________                    DeLeon was  apprehended in  an uninhabitable  apartment          that served   or so the jury supportably could have found    as a          drug distribution outlet.   Drugs and a handgun  were thrown from          the window as the  police effected an entry.   Appellant was  the          sole person discovered  inside the apartment.  He  admitted to an          INS agent,  Bernstein, that he  knew the pistol  was kept at  the          premises where drugs were being sold.   We think this evidence is          more than ample.  Applying the Hadfield standard, a rational jury                                         ________          could certainly  find a  facilitative nexus,  that  is, the  jury          could  reasonably  conclude  that  the  weapon was  kept  in  the          apartment to be "available for use" during and in relation to the          ongoing drug trafficking    and that appellant knew as much.  See                                                                        ___                                          3          United States  v. Abreu,  952 F.2d 1458,  1466 (1st  Cir.) ("Even          _____________     _____          though  a weapon is never  fired, if it is kept  nearby by a drug          dealer,   it  is   'used'  so   as  to   satisfy   the  statutory          requirement."),  cert. denied,  112 S.  Ct.  1695 (1992);  United                           _____ ______                              ______          States  v.  Castro-Lara,  970  F.2d  976,  983  (1st  Cir.  1992)          ______      ___________          (collecting cases), cert.  denied, 113  S. Ct.  2935 (1993);  see                              _____  ______                             ___          generally United States v. Ingraham,  832 F.2d 229, 240 (1st Cir.          _________ _____________    ________          1987) ("The law is not so struthious as to compel a criminal jury          to ignore  that which is perfectly obvious."),  cert. denied, 486                                                          _____ ______          U.S. 1009 (1988).   The jury was  also free to conclude  from the          collocation  of   circumstances  that   appellant  constructively          possessed the firearm.  See,  e.g., United States v. Winslow, 962                                  ___   ____  _____________    _______          F.2d 845, 852 (9th Cir. 1992);  Hadfield, 918 F.2d at 998; United                                          ________                   ______          States v.  Malin, 908 F.2d  163, 168-69 (7th Cir.),  cert. denied          ______     _____                                     _____ ______          498 U.S. 991 (1990).  No more was exigible.2                                            II                                          II                    Appellant next complains that the prosecution failed to          fulfill the  requirements imposed by Brady v.  Maryland, 373 U.S.                                               _____     ________          83, 87 (1963),  and by the Jencks  Act, 18 U.S.C.    3500 (1988).          This  complaint  misconstrues  the  constraints  under  which the          government must operate in a criminal case.                      Appellant brands  three different pieces  of "evidence"          as improperly withheld.  The  first item is a supposed  Bureau of          Criminal Identification report.   The record  fails to show  that                                        ____________________               2Appellant's  furtive actions    he  admitted,  for example,          having  defenestrated the narcotics inventory as trouble loomed            were frosting on the cake, so to speak.                                          4          any such report  ever existed.  The second  item, never precisely          described,  concerns "Jose Garcia."   The reference  is puzzling:          although  the prosecutor  mentioned Garcia  fleetingly in  cross-          examining appellant, the record does  not contain even a  whisper          of  a hint  of a  suggestion  that the  government possessed  any          statement from, report concerning, or other concrete  information          anent "Jose  Garcia."  The  government is surely not  required to          disclose  nonexistent  documents  or information  unknown  to it.          See,  e.g., United States v. Aichele, 941 F.2d 761, 764 (9th Cir.          ___   ____  _____________    _______          1991); United States v. Glaze, 643 F.2d 549, 552 (8th Cir. 1981).                 _____________    _____                    The last  piece of  evidence is  a so-called  "N.C.I.C.          report."   This report was,  in fact, given to  appellant, albeit          belatedly   but appellant neglected to seek a continuance when he          received the report and, what is more,  he has failed to show the          slightest  prejudice arising from the delayed disclosure.3  Thus,          even assuming, arguendo  , that the N.C.I.C.  report comes within                         ________          the Brady  realm, the assignment  of error founders.   See, e.g.,              _____                                              ___  ____          United States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990); United          _____________    _____                                     ______          States v. Ingraldi, 793 F.2d 408, 413 (1st Cir. 1986).          ______    ________                                         III                                          III                    Appellant's  final   claim  of  error  relates  to  the          district  court's admission  of the  handgun into evidence.   The                                        ____________________               3The  N.C.I.C. report  contained  only  a  single  piece  of          (negative) information:   it indicated that  the handgun was  not          listed as  stolen property.   It is hard  to see how  this tidbit          comprised relevant evidence.  See Fed. R. Evid. 402.                                        ___                                          5          centerpiece of this claim is the asseveration that the government          did  not satisfactorily  forge the  chain  of custody.   We  have          examined the  record closely  and are  satisfied that, here,  the          arguable  gaps in the  chain of custody  go to the  weight of the          evidence  rather than  to its  admissibility.  See,  e.g., United                                                         ___   ____  ______          States v. Ladd,  885 F.2d  954, 956  (1st Cir. 1989).   No  error          ______    ____          inhered.                                          IV                                          IV                    We  need  go  no  further.    Our  perscrutation  fully          persuades  us that  appellant's legal  arguments  lack merit  and          that, therefore, his conviction must stand.          Affirmed.  See 1st Cir. Loc. R. 27.1.          Affirmed.  See 1st Cir. Loc. R. 27.1.          _________  ___                                          6
