
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1520                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  CARLOS BERGODERE,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                              _________________________                                        Before                        Selya, Cyr, and Stahl, Circuit Judges.                                               ______________                              _________________________               David A.F. Lewis for appellant.               ________________               Zechariah  Chafee,  Assistant United  States  Attorney, with               _________________          whom  Sheldon Whitehouse, United  States Attorney, was  on brief,                __________________          for appellee.                              _________________________                                  November 30, 1994                              _________________________                    SELYA,  Circuit Judge.  This appeal raises questions of                    SELYA,  Circuit Judge.                            _____________          first impression  in this  circuit concerning  how courts  should          apply the lessons of Batson v. Kentucky, 476 U.S. 79  (1986), and                               ______    ________          its progeny.  After answering  those questions, we conclude  that          the district  court did not  err in permitting the  government to          eliminate  the  lone   African-American  juror  by  means   of  a          peremptory challenge.   Since  appellant's  other assignments  of          error are equally unavailing, we affirm the judgment below.          I.  BACKGROUND          I.  BACKGROUND                    On March  9, 1993, a  team of law  enforcement officers          executed a search warrant at the residence of defendant-appellant          Carlos Bergodere in  Providence, Rhode Island.  When the officers          arrived, only appellant and his  wife, Cynthia Eastwood, were  on          the premises.                      Appellant's apartment consisted of  a kitchen, dining          area,  living room,  and two  bedrooms.   During the  search, the          officers discovered three "browns" of  heroin in the kitchen1 and          an operable  .9 millimeter Luger pistol, fully  loaded, under the          seat  cushions of the  living room sofa.   Several rounds of live          ammunition,  not  corresponding  to  the  Luger,  were  found  in          appellant's bedroom.  The officers arrested  appellant and seized          additional quantities of heroin from his person.                    In  due  season,  a  federal  grand  jury  returned  an          indictment  charging appellant with possession of a firearm after                                        ____________________               1A "brown"  is a common  unit of sale  in the heroin  trade.          One brown comprises  50 glassine packets, each  containing a dose          of heroin.  A brown has a street value of approximately $500.                                          2          a   previous  felony  conviction,  see  18  U.S.C.     922(g)(1),                                             ___          possession of heroin  with intent to distribute, see  21 U.S.C.                                                             ___          841(a)(1) & (b)(1)(C), and using a firearm during and in relation          to  a  drug-trafficking   crime,  see  18  U.S.C.      924(c)(1).                                            ___          Appellant  entered a  "not  guilty"  plea.   In  time, the  court          empaneled a jury.  Contrary  to the more common federal practice,          the judge permitted the attorneys to conduct the voir dire.                    In the course of jury selection, the following colloquy          took  place  between  the prosecutor  and  a  black venireperson,          Robert Goodrum.                    Mr.  Chafee:  Mr. Goodrum, where do you work,                    Mr.  Chafee:                    sir?                    Mr. Goodrum:   I work  in Newport.   I'm area                    Mr. Goodrum:                    director for an adolescent outreach program.                    Mr. Chafee:  .  . . [A]re these young  people                    Mr. Chafee:                    who are having trouble in the community?                    Mr.  Goodrum:  Yes, it varies from kids doing                    Mr.  Goodrum:                    well, to kids in places like this.                                  *       *       *                    Mr. Chafee:   Obviously you have a  big heart                    Mr. Chafee:                    for  people in trouble.   You're going  to be                    asked  to sit in  judgment on somebody.   Can                    you  be  fair  and   impartial  to  both  the                    Government and  the defendant  in this  case,                    listen  to the  evidence and  call  it .  . .                    according  to the law  given to you  by Judge                    Lagueux?                    Mr. Goodrum:  Well, it will be a struggle but                    Mr. Goodrum:                    I know I can do it right, yeah.                    Later  on, defense counsel  engaged in a  colloquy with          Mr. Goodrum.                    Mr. Gillan:  . . .  Why do you feel it  would                    Mr. Gillan:                    be a struggle for you  to sit in judgment  on                                          3                    this case?                    Mr.  Goodrum:  I  just have problems  I guess                    Mr.  Goodrum:                    with adults and drugs as I deal with kids and                    drugs.                                  *       *       *                    Mr. Gillan:  And what if an adult is addicted                    Mr. Gillan:                    to drugs.  How does that make you feel?                    Mr. Goodrum:   . . . I can deal with that.  I                    Mr. Goodrum:                    mean, you know, when I think about people who                    might be soliciting I have problems.                    Mr.  Gillan:    People  might  be  soliciting                    Mr.  Gillan:                    children?                    Mr. Goodrum:  Right.                    Mr. Goodrum:                    Mr. Gillan:   Okay.   but if  that's not  the                    Mr. Gillan:                    evidence  in this case  then . .  . you won't                    have a problem with that?                    Mr.  Goodrum:  Then I wouldn't have a problem                    Mr.  Goodrum:                    with it.                     The   prosecution  dismissed   Goodrum  from   further          service.   Appellant  objected.   The  district court  upheld the          strike, apparently finding  that appellant failed to make a prima          facie showing  that  the strike  was  motivated by  a  race-based          animus.  In the  process, the judge specifically noted  Goodrum's          avowed doubts as to whether he could be an impartial juror.                    A  jury devoid  of black  members eventually  convicted          appellant on all counts.  This appeal followed.          II.  THE PEREMPTORY CHALLENGE          II.  THE PEREMPTORY CHALLENGE                    Appellant's   most  striking   argument  concerns   the          prosecution's  challenge of  the  juror, Goodrum.    We begin  by          tackling that matter.                            A.  The Framework for Inquiry.                            A.  The Framework for Inquiry.                                _________________________                                          4                    The  Supreme Court  has recognized  that  in civil  and          criminal  trials potential jurors, as well  as litigants, have an          equal protection right to jury selection procedures that are free          from group stereotypes  rooted in, and reflective  of, historical          prejudice.  See J.E.B.  v. Alabama, 114 S. Ct. 1419,  1421 (1994)                      ___ ______     _______          (finding gender, like race,  to be an unconstitutional  proxy for          juror competence and impartiality); Powers v. Ohio, 499 U.S. 400,                                              ______    ____          402 (1990) (stating  that racial discrimination in  the selection          of jurors  offends the  dignity of persons  and the  integrity of          courts).                    In  evaluating  an  equal  protection  challenge  to  a          prosecutor's use of  a peremptory strike, a  three-part framework          should be employed.  See Batson, 476 U.S. at 96-98; United States                               ___ ______                     _____________          v. Perez, ___  F.3d ___, ___  (1st Cir. 1994) [No.  93-1320, slip             _____          op.  at 3-4].   First,  the  defendant must  make  a prima  facie          showing  of discrimination in  the prosecutor's launching  of the          strike.    See  Batson, 476  U.S.  at 96-97.    If  the defendant                     ___  ______          fulfills this  requirement by  establishing, say,  a prima  facie          case  of a  racially driven  impetus,2 then  the prosecutor  must          proffer  a race-neutral  explanation  for having  challenged  the          juror.  See id. at 97; see  also United States v. Lewis, ___ F.3d                  ___ ___        ____ ____ _____________    _____          ___, ___  (1st Cir.  1994) [No. 93-1819,  slip op.  at 32].   The          prosecutor's  burden is  merely  a burden  of  production, not  a          burden of persuasion.   If the prosecutor complies,  then, at the                                        ____________________               2The  three-part framework  is the  same for  gender as  for          race.  See J.E.B., 114 S. Ct. at 1429.                 ___ ______                                          5          third and final stage, the district court must decide whether the          defendant has  carried the ultimate  burden of  proving that  the          strike  constituted purposeful  discrimination  on  the basis  of          race.   See Hernandez  v. New York,  500 U.S. 352,  358-59 (1991)                  ___ _________     ________          (discussing Batson); Perez, ___ F.3d at ___ [slip op. at 3-4].                      ______   _____                    In making a Batson challenge, the defendant retains the                                ______          burden  of proof throughout.  As part  and parcel of this burden,          he must carry the devoir of persuasion regarding the existence of          a  prima  facie case  of  race-based discrimination  in  the jury          selection  process.    See  Batson,  476  U.S.  at  96-97.    The                                 ___  ______          combination of factors needed to establish a prima facie case are          limned in  Chakouian v. Moran, 975 F.2d 931, 933 (1st Cir. 1992).                     _________    _____          Initially, the defendant must demonstrate that the  prosecution's          challenge  was directed  at  a  member  of  a  cognizable  racial          group.3  See Batson, 476 U.S. at  96; Chakouian, 975 F.2d at 933.                   ___ ______                   _________          Next, the defendant  must show that the challenge  was peremptory          rather  than  for cause,  thus  bringing  into play  the  Supreme          Court's admonition that "peremptory challenges  constitute a jury          selection practice that permits `those to discriminate who are of          a  mind to discriminate.'"  Batson, 476 U.S. at 96 (quoting Avery                                      ______                          _____          v. Georgia,  345 U.S. 559,  562 (1953)).  Finally,  the defendant             _______          must  show circumstances sufficient,  when combined with  the two          antecedent  facts,  to  raise an  inference  that  the prosecutor                                        ____________________               3The defendant and the challenged juror need not  be members          of the same  race.  See  Powers, 499 U.S. at  409-10 (eliminating                              ___  ______          Batson's "racial identity" requirement);  Chakouian, 975 F.2d  at          ______                                    _________          934.  Thus,  the fact that appellant  is not himself  of African-          American ancestry does not end our inquiry.                                          6          struck the  venireperson on account of race.   See id.  While the                                                         ___ ___          prima facie  case requirement is  not onerous, neither can  it be          taken for granted.                               B.  Standard of Review.                               B.  Standard of Review.                                   __________________                    This  court  has  yet  to  articulate  the  appropriate          standard  against which  to test  a trial  court's ruling  that a          defendant has    or  has not    made out  a prima  facie case  in          connection with a Batson challenge.  We do so today.                            ______                    A careful reading of Batson convinces us that, although                                         ______          this determination  can be characterized  as a mixed  question of          law and  fact, it is  fact-sensitive, and,  therefore, should  be          reviewed  under the familiar clear-error standard.  See generally                                                              ___ _________          In re Howard, 996 F.2d 1320,  1328 (1st Cir. 1993) ("The standard          ____________          of  review applicable  to mixed  questions  usually depends  upon          where they fall along a degree-of-deference  continuum:  the more          fact-dominated the  question,  the more  likely  it is  that  the          trier's  resolution of  it will  be accepted  unless shown  to be          clearly erroneous.").  Our holding is consistent with the Supreme          Court's  expression of confidence  that trial judges, experienced          in conducting and  supervising voir dire, will likely  be able to          identify prima facie  cases of discrimination.   See Batson,  476                                                           ___ ______          U.S. at 97.  Our holding is also consistent with the decisions of          the five  other courts of  appeals that thus far  have confronted          the  same  standard-of-review  problem and  resolved  it  in like          manner.   See United  States v. Vasquez-Lopez,  22 F.3d  900, 901                    ___ ______________    _____________          (9th Cir.), cert. denied, 115 S. Ct. 239 (1994); United States v.                      _____ ______                         _____________                                          7          Branch, 989  F.2d 752, 755 (5th  Cir.), cert. denied,  113 S. Ct.          ______                                  _____ ______          3060 (1993); United States v. Casper,  956 F.2d 416, 418 (3d Cir.                       _____________    ______          1992); United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990);                 _____________    _____          United States  v. Grandison, 885  F.2d 143, 146 (4th  Cir. 1989),          _____________     _________          cert. denied, 495 U.S. 934 (1990).          _____ ______                                    C.  Analysis.                                    C.  Analysis.                                        ________                    We  detect no  clear  error  in  the  district  court's          rejection  of appellant's proffered  prima facie case.   Although          the  striking of  the  only juror  of  a particular  race  can be          sufficient  to ground a permissive inference of discrimination in          certain  circumstances, see, e.g.,  United States v.  Roan Eagle,                                  ___  ____   _____________     __________          867 F.2d 436, 441 (8th Cir.), cert. denied, 490 U.S. 1028 (1989),                                        _____ ______          such   a  strike  does   not  raise  a   necessary  inference  of          discrimination,  see  Vasquez-Lopez,  22 F.3d  at  902.   Phrased                           ___  _____________          another way, the  mere fact  that the  prosecutor challenges  the          only   juror  of  a  particular  race,  without  more,  does  not          automatically   give  rise   to  an   inescapable  inference   of          discriminatory  intent.    A  defendant  who  advances  a  Batson                                                                     ______          argument ordinarily  should "come  forward with  facts, not  just          numbers  alone."  Moore, 895 F.2d at 485; accord United States v.                            _____                   ______ _____________          Dawn, 897 F.2d 1444, 1448 (8th  Cir.), cert. denied, 498 U.S. 960          ____                                   _____ ______          (1990).                    Here,  the defendant  provided nothing  in  the way  of          either  direct  or  circumstantial proof  to  buttress  the naked          statistic on  which he  relies.   This  failure is  all the  more          glaring because the circumstances attendant to the Goodrum strike                                          8          point  away  from an  inference  of  discrimination.   This  case          involves a single strike, not multiple strikes.  The government's          other peremptories  were exercised in an  unexceptionable manner.          Appellant essayed no  proffer showing that either  the particular          prosecutor  or the  prosecutor's office  regularly  engaged in  a          pattern  of suspicious strikes.   The prosecutor's  questions and          statements during voir dire do not suggest racial discrimination,          but,  instead, seem  to reflect  a concern  with the  prospective          juror's ability to reach  a fair and impartial verdict.   This is          of  considerable  importance,  as the  Court  has  directed trial          judges  in  such  circumstances  to   examine  "the  prosecutor's          questions  and  statements   during  voir  dire"  for   signs  of          purposeful discrimination.  Batson, 476 U.S. at 97.                                      ______                    The capstone, of  course, is that the  colloquy between          the prospective juror and the two  lawyers reflects a legitimate,          nondiscriminatory reason  why conscientious counsel  might desire          to exclude  the juror from  further service.  After  all, Goodrum          admitted that  it would "be a struggle"  to achieve impartiality,          and  that he  had a  "problem" with  cases involving  "adults and          drugs."    The  prosecutor,  understandably  concerned  that  the          talesman  "ha[d] a  big heart  for people  in trouble,"   had  no          obligation either to  ignore these comments or to  accept at face          value Goodrum's prediction  that, in the end, he  could put aside          his "problem" and "do it right."                    Voir  dire  represents  not  only the  introduction  of          potential jurors to the factual and  legal issues to be aired  at                                          9          trial,  see  Powers, 499  U.S.  at  412,  but also  the  lawyers'                  ___  ______          introduction to  the venire.   Its core  purpose is to  provide a          firm foundation for  ferreting out bias.  A  healthy byproduct is          that  a  careful  voir  dire  eliminates  any  need  to  rely  on          stereotypes.  See  J.E.B., 114 S. Ct.  at 1429; United States  v.                        ___  ______                       _____________          Whitt, 718 F.2d 1494,  1497 (10th Cir.  1983).  Withal, the  line          _____          between  discriminatory  and  nondiscriminatory  strikes  is  not          always easily drawn.  As  courts labor to plot it, trial  lawyers          are entitled, at a bare minimum, to  a bit of breathing room.  In          the end, jury selection is not  an exact science.  Its watchwords          are judgment, flexibility,  and discretion.   Although  attorneys          cannot  be permitted to  exercise peremptory challenges  based on          race or gender, they are not prohibited  altogether from striking          venirepersons of a particular race or gender.                    We  will  not  paint the  lily.    Evaluative judgments          concerning juror suitability are often made partially in response          to  nuance,  demeanor,  body  language, and  a  host  of  kindred          considerations.  Thus,  the trial judge, who sees  and hears both          the prospective juror and the opposing attorneys in action, is in          the   best  position  to  pass  judgment  on  counsel's  motives.          Recognizing that  we ought  to cede  considerable deference to  a          district  judge who  observes the  voir dire  at first  hand, see                                                                        ___          Batson, 476 U.S. at 97, we refuse to second-guess Judge Lagueux's          ______          implicit  finding that the  prosecutor struck Goodrum  because of          doubts  about  Goodrum's "big  heart"  and  impending "struggle,"          rather than for some evil purpose.  It follows that the court did                                          10          not err  in finding  that appellant failed  to establish  a prima          facie  case of race-based discrimination in the prosecution's use          of its peremptory challenges.4          III.  OTHER ASSIGNMENTS OF ERROR          III.  OTHER ASSIGNMENTS OF ERROR                    Appellant  advances  three  additional  assignments  of          error.  We consider two of them,  both of which relate to matters          of evidentiary  sufficiency.5   Appellant's  final assignment  of          error  raises  the  boggart of  ineffective  assistance  of trial          counsel.  This claim  was not asserted in the  district court and          is not properly before us on direct appeal.  See United States v.                                                       ___ _____________          Mala,  7 F.3d  1058, 1063  (1st Cir.  1993) (holding  that absent          ____          extraordinary  circumstances,   fact-specific  claims   asserting          ineffective  assistance of counsel  are not cognizable  on direct          appeal; collecting  cases to like  effect), cert. denied,  114 S.                                                      _____ ______          Ct. 1839 (1994).                               A.  Standard of Review.                               A.  Standard of Review.                                   __________________                    The   path  that   this  court   traverses  to   review                                        ____________________               4Because appellant  failed to make the requisite first-stage          showing, the burden never shifted to the prosecutor to articulate          a race-neutral  explanation for  the strike.   Even so,  it might          have  been wise  for the  judge to have  asked the  prosecutor to          proffer an  explicit statement  of the basis  for the  strike, if          only to confirm the judge's intuition and flesh out the record on          appeal.  See  United States v. Johnson,  873 F.2d 1137, 1140  n.3                   ___  _____________    _______          (8th Cir. 1989), cert. denied, 498 U.S. 924 (1990).                           _____ ______               5The  jury  convicted  appellant on  three  counts,  namely,          possession of a firearm after a previous felony conviction (count          1), possession of heroin with intent to distribute (count 2), and          using a  firearm in relation  to a drug-trafficking  crime (count          3).    In  the district  court,  appellant  unsuccessfully sought          judgment of acquittal  on all three counts.   On appeal, however,          he challenges the  sufficiency of the evidence only  in regard to          counts 2 and 3.                                          11          sufficiency challenges is well worn.   We inspect the evidence in          the light most friendly to the verdict, indulging  all reasonable          inferences in the  verdict's favor and resolving  all credibility          disputes in the same way.   We then determine whether a  rational          jury  could find  guilt beyond  a reasonable  doubt.   See, e.g.,                                                                 ___  ____          United States  v. Echeverri, 982  F.2d 675, 677 (1st  Cir. 1993);          _____________     _________          United States  v. Maraj,  947 F.2d 520,  522-23 (1st  Cir. 1991);          _____________     _____          United  States v.  Boylan, 898  F.2d 230,  243 (1st  Cir.), cert.          ______________     ______                                   _____          denied,  498 U.S. 849 (1990).   The conviction  stands so long as          ______          the guilty  verdict comports with  "a plausible rendition  of the          record."   United States v.  Ortiz, 966 F.2d  707, 711  (1st Cir.                     _____________     _____          1992), cert. denied, 113 S. Ct. 1005 (1993).                 _____ ______                                     C.  Count 2.                                     C.  Count 2.                                         _______                    To  sustain a conviction  under 21 U.S.C.    841(a)(1),          the prosecution must establish beyond a reasonable doubt that the          defendant  knowingly  or  intentionally  possessed  a  controlled          substance with intent to distribute it.  See, e.g., United States                                                   ___  ____  _____________          v. De Jesus-Rios, 990 F.2d 672, 680 (1st Cir. 1993).  The element             _____________          of  possession can  be satisfied  by  evidence that  demonstrates          either  actual or constructive possession.   See United States v.                                                       ___ _____________          Gomez-Vallamizar, 981 F.2d 621, 624 (1st Cir. 1992).          ________________                    Appellant  does not  seriously contest  the  element of          possession, but, instead, concentrates his fire on the element of          specific  intent.    He alleges  that  the  evidence, taken  most          congenially  to the  government's  case,  merely  shows  that  he          possessed heroin  (say, for  personal consumption),  not that  he                                          12          intended to distribute it.   We read the record differently.   An          intent to  distribute  drugs  does  not demand  proof  by  direct          evidence but can be made manifest through circumstantial evidence          alone.    See  Echeverri,  982  F.2d at  678;  United  States  v.                    ___  _________                       ______________          Desmarais,  938  F.2d  347,  352   (1st  Cir.  1991).    In  this          _________          connection,  we  have long  recognized that  factors such  as the          quantity and purity  of the drugs confiscated by  the authorities          can support  an inference  of intent to  distribute.   See, e.g.,                                                                 ___  ____          Echeverri, 982  F.2d at 678; United States  v. Ocampo-Guarin, 968          _________                    _____________     _____________          F.2d  1406,  1410 (1st  Cir.  1992);  United States  v.  Batista-                                                _____________      ________          Polanco, 927 F.2d 14, 18-19 (1st Cir. 1991).          _______                    In this case,  the evidence easily sustained  a finding          of intent to  distribute.  The officers seized  three browns from          appellant's kitchen  and eleven glassines from his pocket.  Thus,          both the quantity of heroin and the method of packaging militated          toward a  conclusion that  appellant was himself  a dealer.   The          total value of the  heroin seized    over $1,500   suggested  the          same conclusion.  Furthermore, an experienced detective testified          that, in his  expert opinion, the quantity,  packaging, and value          of the heroin indicated that it was intended for distribution.                    To  be  sure, this  evidence  was  not  ironclad.    As          appellant  notes, it  did not  rule out  the possibility  that he                                                       ___________          possessed  the heroin  for  personal consumption.    But the  law          requires only that  the evidence,  fairly viewed,  be capable  of          supporting   the  jury's  verdict,  not  that  it  exclude  every          hypothesis consistent with a claim  of innocence.  See Echeverri,                                                             ___ _________                                          13          982 F.2d  at 678; Boylan, 898 F.2d at  243.  Accordingly, we find                            ______          no infirmity in  appellant's conviction for possession  of heroin          with intent to distribute.                                     D.  Count 3.                                     D.  Count 3.                                         _______                    The final portion of appellant's sufficiency  challenge          concerns the charged  violation of 18 U.S.C.    924(c)(1).  It is          well  settled that,  under this  statute,  the emphasis  is on  a          firearm's  availability for use, regardless of whether the weapon          is actually  used in the commission of  a drug-trafficking crime.          See United  States v. Paulino,  13 F.3d  20, 26 (1st  Cir. 1994);          ___ ______________    _______          United  States v.  Hadfield, 918  F.2d 987,  998 (1st  Cir. 1990)          ______________     ________          (collecting  cases),  cert. denied,  500  U.S. 936  (1991).   The                                _____ ______          instant  case falls squarely within the boundaries established in          Hadfield, a case  in which we stated that,  under section 924(c),          ________          the principal inquiry should focus  on the presence or absence of          a  "facilitative nexus"  between  the  charged  offense  and  the          discovered firearm.  See Hadfield, 918 F.2d at 998.  In  applying                               ___ ________          Hadfield, an inquiring court's primary concern is not whether the          ________          gun  was "instantly available"  or "exclusively dedicated  to the          narcotics trade," but whether it  was "available for use" in that          regard.  Id.; accord United  States v. Castro-Lara, 970 F.2d 976,                   ___  ______ ______________    ___________          983 (1st Cir. 1992), cert. denied, 113 S. Ct. 2935 (1993).  Under                               _____ ______          this test,  if an operable firearm is found in close proximity to          a  room  or  rooms in  which  drug  distribution, processing,  or          storage  occurs,  then  the  factfinder  ordinarily  is  free  to          conclude that a defendant having evident ties to the premises and                                          14          the drugs knew about the gun and intended it to be  available for          use in relation  to the narcotics enterprise.   See Hadfield, 918                                                          ___ ________          F.2d at 998.                    The  authorities arrested  appellant in  his apartment.          From the quantity of heroin found on  the premises the jury could          reasonably conclude that the dwelling served  as a storehouse for          at least some  of appellant's heroin or, perhaps,  a retail sales          outlet.  See, e.g, Echeverri,  982 F.2d at 678.   As a lessee  of                   ___  ___  _________          the  apartment and  a  person  residing  there, appellant  had  a          significant degree of control over  the contents of the premises.          See id.   Within wide limits, he had the ability to determine who          ___ ___          and what  could enter his place  of abode.   Officers located the          weapon  under  the seat  cushions  of  the  living room  couch             proximate to the drugs and easily accessible to an individual who          knew its whereabouts.   Of pivotal importance, the  gun was fully          loaded.   The police  found additional ammunition  in appellant's          bedroom which, although,  of a different caliber,  indicated that          appellant was no stranger to firearms.  On this basis, a rational          juror  surely could  conclude that  appellant kept  a loaded  gun          handy  to protect  his heroin  supply.  As  we have  said before,          "[t]he law is not  so struthious as to compel a  criminal jury to          ignore  that  which  is  perfectly obvious."    United  States v.                                                          ______________          Ingraham, 832  F.2d 229, 240  (1st Cir. 1987), cert.  denied, 486          ________                                       _____  ______          U.S. 1009 (1988).                      We recognize that  the government's case was  not open-          and-shut.   For  example,  the proof  at  trial established  that                                          15          appellant's landlord,  Felipe Moronto, actually owned the pistol,          and appellant makes  much of this fact.  We agree that this datum          is relevant    but it is  hardly determinative.  What  matters is          that the totality of the evidence suffices to permit   and in our          estimation to support quite amply   a finding that a facilitative          nexus   existed  between   the   weapon  and   appellant's  drug-          distribution  activities.   See, e.g.,  United  States v.  Reyes-                                      ___  ____   ______________     ______          Mercado,  22 F.3d 363,  367 (1st Cir. 1994);  Paulino, 13 F.3d at          _______                                       _______          26;  Castro-Lara, 970  F.2d  at  983.   Therefore,  the claim  of               ___________          evidentiary insufficiency fails.          IV.  CONCLUSION          IV.  CONCLUSION                    We  need  go no  further.    For  aught  that  appears,          appellant was fairly tried and justly convicted before a lawfully          constituted jury.   For the reasons stated herein,  we affirm the          judgment   of   conviction,   without   prejudice,  however,   to          appellant's right to pursue his ineffective assistance of counsel          claim at a proper time and in a proper venue.                    It is so ordered.                    It is so ordered.                    ________________                                          16
