
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1832                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    ROBERTO VALLE,                                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, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               William J. Murphy for appellant.               _________________               Margaret E. Curran,  Assistant United States Attorney,  with               __________________          whom Sheldon  Whitehouse, United States Attorney,  and Kenneth P.               ___________________                               __________          Madden,  Assistant United  States  Attorney, were  on brief,  for          ______          appellee.                              _________________________                                  December 26, 1995                              _________________________                    SELYA,  Circuit  Judge.    Defendant-appellant  Roberto                    SELYA,  Circuit  Judge.                            ______________          Valle challenges  his convictions for possession  of cocaine with          intent  to distribute, see 21 U.S.C.   841(a)(1) & (b)(1)(B), and                                 ___          use of  a firearm during  and in relation  to a drug  trafficking          crime, see  18 U.S.C.   924(c).   We affirm the  drug trafficking                 ___          conviction but reverse the firearms conviction.          I.  BACKGROUND          I.  BACKGROUND                    On  April  17,  1991,  nine  law  enforcement  officers          converged  upon   an  apartment   located  at  82   Glenham  St.,          Providence, Rhode  Island, to execute a search  warrant.  Inside,          they  found three  individuals:   the appellant,  his grandmother          (who  leased the  apartment),  and Rafael  Tavarez.   The  police          immediately  segregated the  trio  in different  chambers.   They          placed the appellant  in the  kitchen under the  watchful eye  of          Detective Michael Panzarella.   The search team then started  its          treasure hunt.                    In short order,  a narcotics detective, Guy  DeAngelis,          discovered a  plastic bag  secreted between  the cushions  of the          living  room couch.  Inside  the bag were  forty-seven cut straws          with  the ends burned shut.  Subsequent tests confirmed that each          straw  contained  cocaine  base, known  colloquially  as "crack."          Another gendarme, Robert Clements, spied two firearms under a day          bed in the  dining room.  A third  officer, John Corley, rummaged          through  the rear hall closet and found a plastic bag, containing          an additional 101 crack-filled  straws, in the pocket of  a green          jacket.                                          2                    Promptly   upon  the   discovery  of   the  contraband,          Panzarella  read  the  appellant  his rights.    See  Miranda  v.                                                           ___  _______          Arizona,  384  U.S.  436,  479  (1966).    Meanwhile, the  search          _______          continued.  DeAngelis  proceeded to examine  the contents of  the          rear hall  closet, poring over  items of  apparel one by  one and          dropping  each  piece  on the  floor  when  he  had finished  his          inspection of it.  The appellant (who enjoyed a clear view of the          closet from  the kitchen)  harangued DeAngelis not  to throw  his          clothing  on the  floor as  he  might want  to wear  it upon  his          release.  When DeAngelis asked the appellant whether he owned the          clothes, the  appellant responded affirmatively.   In reply  to a          specific inquiry, the appellant identified the crack-laden  green          jacket as belonging to  him.  Later on, DeAngelis  descended into          the  basement   an  area to which  all occupants  of the building          enjoyed  common access   and came across a triple-beam scale of a          type commonly associated with the packaging  of illegal drugs for          retail distribution.                    Near the end of the  search, Corley asked the appellant          where he  slept.  The  appellant pointed  toward the day  bed and          said "there."  To put the ribbon on the package, Sergeant Stephen          Bathgate  (the  officer  in  charge of  the  operation)  elicited          incriminating comments from the appellant in the course of making          the formal arrest.                    The  police  transported the  appellant to  the station          house.   After  again receiving  Miranda warnings,  the appellant                                           _______          signed a form  that signified his understanding of  those rights.                                          3          He then called a friend and asked her to contact his attorney.          II.  PROCEEDINGS BELOW          II.  PROCEEDINGS BELOW                      In  due course,  a federal  grand jury  handed  up an          indictment.  The appellant  responded in part by filing  a motion          to  suppress the statements he had  made to the police during the          search.  He  advanced two  arguments.  First,  he insisted  that,          while still  at Glenham St., he  had invoked his right  to remain          silent and  asked if he could contact  his attorney, but that the          police ignored his importuning and did  not permit him to do  so.          Second, he  contended that DeAngelis  had dumped the  clothing on          the  floor  in a  wily  effort  to  provoke him  into  making  an          inculpatory  comment, and  that,  therefore,  DeAngelis's  antics          should be treated as an impermissible constructive interrogation.          See Rhode  Island  v.  Innis, 446  U.S.  291, 301  (1980).    The          ___ _____________      _____          government denied that the appellant invoked  his right to remain          silent or that he sought counsel while at the apartment.  It also          argued that his initial complaint  concerning the handling of his          vestments was  a spontaneous  utterance, and that  his subsequent          statements amounted to a waiver of his Miranda rights.                                                 _______                    Following  an evidentiary  hearing, the  district court          ruled that DeAngelis's rearrangement  of the appellant's wardrobe          did not  amount  to an  interrogation, and  that the  appellant's          original  objection  to DeAngelis's  behavior  could  properly be          admitted into evidence as a spontaneous statement.  Sweeping more          broadly, the court found  as a matter of fact  that the appellant                                          4          had neither invoked  his rights nor  requested an attorney  while          the  search was  ongoing.   Consequently, the  court ruled  that,          given  the  adequate  warnings  which   proceeded  the  officers'          questions, the appellant's replies could be used against him.                    At trial,  the appellant did not  seriously dispute his          possession of  crack cocaine, but, rather,  concentrated his fire          on  the issue of distributive  intent.  Some  of the government's          proof  on  this  point came  in  the  form  of opinion  testimony          rendered  by  DeAngelis.    In  the  end,  the  jury  bought  the          prosecution's wares  and convicted the appellant  on both counts.          The district court  sentenced him to serve  sixty-three months in          prison on  the drug trafficking  charge, and added  a consecutive          sixty-month  incarcerative term for the  firearms count.  After a          false start, the  details of  which are not  relevant here,  this          appeal blossomed.          III.  THE DRUG TRAFFICKING CONVICTION          III.  THE DRUG TRAFFICKING CONVICTION                    We begin by analyzing  the assignments of error insofar          as  they relate to the conviction for possession of crack cocaine          with  intent to distribute.  The appellant assigns error in three          respects.  We treat these claims seriatim.                                           ________                            A.  Suppression of Statements.                            A.  Suppression of Statements.                                _________________________                    Before us,  the appellant assails the  district court's          refusal to  suppress his  statements regarding the  clothing, the          day bed, and the like.  His main thesis is that he exercised  his          prerogative to remain silent  and demanded an attorney,  but that          the  police rode roughshod over his rights.  He asseverates that,                                          5          under  these circumstances,  the interrogation  conducted by  the          officers at  the search scene  contravened the teachings  of both          Miranda and  Edwards  v.  Arizona,  451 U.S  477,  484-85  (1981)          _______      _______      _______          (explaining  that an accused, having voiced a desire to deal with          the authorities  only with the aid of a lawyer, is not subject to          further  police  interrogation   until  counsel  has   been  made          available to him).1  We find no error.                    In reviewing  orders  granting or  denying  suppression          motions,  this  court  scrutinizes  a  district  court's  factual          findings, including its credibility determinations, for traces of          clear error.   See United States v. Zapata, 18 F.3d 971, 975 (1st                         ___ _____________    ______          Cir. 1994).  By contrast, we indulge plenary review of the  lower          court's  answers  to questions  of  law,  including its  ultimate          resolution of the constitutional issue.  See id.                                                   ___ ___                    In this case, whether or not to suppress the challenged          statements  boils down  to a  credibility call.   Such  calls are          grist for the district court's mill.  See, e.g., United States v.                                                ___  ____  _____________          Rutkowski,  877  F.2d 139,  144 (1st  Cir.  1989).   The district          _________          court, having seen and  heard the witnesses at first  hand, chose          to  believe  the  mustered  testimony  of  four  law  enforcement          officers    Bathgate, DeAngelis,  Panzarella, and Corley  (two of          whom  testified  unequivocally  that the  appellant  had  neither                                        ____________________               1Except for his  contention that he  invoked certain of  his          rights  prior to  questioning, the  appellant has  not maintained          that his  responses to  police queries represented  anything less          than a knowing and intelligent waiver of his Miranda rights.  Any                                                       _______          such argument  is,  therefore,  waived.   See  United  States  v.                                                    ___  ______________          Zannino, 895 F.2d 1,  17 (1st Cir.), cert. denied,  494 U.S. 1082          _______                              _____ ______          (1990).                                          6          expressed  a desire to stay  silent nor requested  counsel)   and          rejected the appellant's contradictory version of his interaction          with  the  police.    If  we  are  to   remain  faithful  to  the          jurisprudence of  clear error,  we cannot disturb  this finding.2          See id. (acknowledging that  a judge's credibility choice between          ___ ___          two plausible accounts of the events in question cannot be deemed          clearly erroneous);  see also  Cumpiano v. Banco  Santander P.R.,                               ___ ____  ________    _____________________          902 F.2d 148,  152 (1st Cir. 1990) (explaining that  there can be          no clear error "unless, on the whole of the record, [the court of          appeals] form[s]  a strong, unyielding belief that  a mistake has          been made").                         B.  Admission of Opinion Testimony.                         B.  Admission of Opinion Testimony.                             ______________________________                    At trial, DeAngelis,  after chronicling his  experience          as a  narcotics detective  and his encyclopedic  familiarity with          the mores of  the crack  cocaine community, testified  as to  the          approximate "street value" (all told, roughly  $1,500) of the 148          straws of crack found during the search.  He  also explained that          so  large a quantity of crack was consistent with distribution as          opposed  to  personal  use.    Finally,  he  listed  the  visible          characteristics of the prototypical  crack addict, and noted that                                        ____________________               2Since  we  uphold  the   lower  court's  finding  that  the          appellant  did not  assert his  rights, but,  rather, voluntarily          elected to answer the officers' questions, we need not assess the          correctness of  the court's holding that  the appellant's initial          statement comprised  a spontaneous  utterance, not a  response to          constructive interrogation.  Though the detective's special brand          of   valet  service   was   heavy-handed   (both  literally   and          figuratively),  there  is no  basis  on  the  present record  for          suppression of the appellant's retort.                                          7          the appellant manifested none of these symptoms.3                    The appellant labors to convince us that this testimony          should not have been admitted for two reasons:  first, it did not          afford the jury appropriate assistance in determining his intent;          and second, it comprised  an impermissible opinion concerning his          supposed mental state.  We are not persuaded.                    1.    Rule 702.  Under the  Federal Rules  of Evidence,                    1.    Rule 702.                          ________          expert testimony  is admissible  if the witness  qualifies as  an          expert and the proffered testimony "will assist the trier of fact          to  understand the  evidence or  to determine  a fact  in issue."          Fed.  R.  Evid. 702.    The decision  to admit  or  reject expert          testimony is committed to the sound discretion of the trial court          and  the court's determinations are  reviewable only for abuse of          that discretion.  See  United States v. Echeverri, 982  F.2d 675,                            ___  _____________    _________          680 (1st Cir.  1993); United  States v. Hoffman,  832 F.2d  1299,                                ______________    _______          1310 (1st Cir.  1987).   Typically, appellate  courts give  trial          judges  a wide berth in  respect to these  kinds of discretionary          judgments.  See Echeverri, 982 F.2d at 680.                      ___ _________                    Viewed through this lens, the district court's decision          to admit  DeAngelis's testimony  appears to be  properly focused.          DeAngelis's  qualifications as  an  expert  were  not  challenged          either below or in  the appellant's brief, and we  readily accept                                        ____________________               3DeAngelis's  testimony assisted  the  appellant in  certain          particulars.  For example,  he admitted on cross-examination that          many of the tools of the drug trafficking trade were not found in          the apartment,  and that no direct  evidence (e.g., fingerprints)          linked  the appellant to the scale that the authorities unearthed          in the basement.                                          8          them  as  sufficient.4    Turning  to  the  testimony,  DeAngelis          explained  the amount  of crack  that users  normally carry,  the          effects  of an  individual dose,  and the  price of  each packet.          Matters involving dosages, prices, and other  particulars endemic          to the ingestion and distribution of crack cocaine are beyond the          ken of  the average  juror.   Consequently,  expert testimony  on          these  subjects is  likely  to  help  the  jury  and,  hence,  if          sanctioned  by the trial judge,  is admissible in  evidence.  See                                                                        ___          United States v.  Ladd, 885 F.2d  954, 959, 964  (1st Cir.  1989)          _____________     ____          (approving admission of testimony that the quantity and packaging          of  certain heroin indicated  its suitability  for distribution).          Other  courts,  apparently  reaching  the  same  conclusion, have          regularly upheld the admissibility of such expert testimony based          upon the trial judge's belief that it would help the jurors.  See                                                                        ___          United States v. Tapia-Ortiz,  23 F.3d 738, 741 (2d  Cir.), cert.          _____________    ___________                                _____          denied, 115  S. Ct. 206,  286 (1994);  United States v.  Brown, 7          ______                                 _____________     _____          F.3d 648, 652  (7th Cir.  1993); United States  v. McDonald,  933                                           _____________     ________          F.2d 1519, 1522 (10th  Cir.), cert. denied, 502 U.S.  897 (1991);                                        _____ ______          United  States v.  Safari, 849  F.2d 891,  895 (4th  Cir.), cert.          ______________     ______                                   _____          denied, 488 U.S. 945 (1988).          ______                    In  this  instance,  the   district  court  heard   and          overruled the appellant's objections  to the proffered testimony.                                        ____________________               4To be sure, DeAngelis is not an expert in the sense that he          possesses  formal education  in  his  field.    But  as  we  have          recognized before,  street  savvy and  practical  experience  can          qualify a witness as an expert as surely as "a string of academic          degrees or multiple memberships  in learned societies."  Hoffman,                                                                   _______          832 F.2d at 1310.                                          9          On this record, there is no principled way for us to second-guess          that ruling.    Nor will  we strain  to  do so:   we  think  that          DeAngelis's  testimony was  likely  welcomed by  the jurors,  who          otherwise might not  have understood the  significance of such  a          large number of crack-filled straws.  Seen from this perspective,          the  testimony  provided  a   factual  predicate  for  the  jury,          presumably  inexperienced in  the  customs of  the crack  cocaine          community,  to draw  the inference  that the  appellant possessed          cocaine base for the purpose of retail distribution.                    2.  Rule  704(b).   In a related  vein, the  appellant,                    2.  Rule  704(b).                        ____________          citing  Fed.  R. Evid.  704(b),  suggests  that the  trial  court          improvidently  allowed DeAngelis  to  testify to  the appellant's          state  of  mind   (intent  to  distribute).5     We  reject   the          suggestion.                    Rule 704(b) is of fairly recent vintage.  It emerged in          1984  as  an offshoot  of  Congress's retooling  of  the insanity          defense.  See S. Rep.  No. 225, 98th Cong., 2d Sess.  230 (1984),                    ___          reprinted in 1984 U.S.C.C.A.N. 3182, 3412 (explaining the need to          _________ __          limit psychiatric testimony  as to the  ultimate issue of  sanity                                        ____________________               5The rule provides:                    No expert witness testifying with  respect to                    the mental state or  condition of a defendant                    in a  criminal case  may state an  opinion or                    inference as to whether  or not the defendant                    did  or  did not  have  the  mental state  or                    condition  constituting  an  element  of  the                    crime charged or of  a defense thereto.  Such                    ultimate issues are matters for the  trier of                    fact alone.          Fed. R. Evid. 704(b).                                          10          under  the law).   Congress  recommended that  the new  regime be          applied broadly.  To this end, the Senate Report stated:                    [T]he   rationale  for   precluding  ultimate                    opinion psychiatric  testimony extends beyond                    the insanity defense  to any ultimate  mental                    state of  the defendant  that is  relevant to                    the legal  conclusion  sought to  be  proven.                    The  Committee has  fashioned  its  Rule  704                    provision  to  reach   all  such   "ultimate"                    issues,  e.g.,  premeditation  in a  homicide                             ____                    case,   or   lack   of    predisposition   in                    entrapment.          Id. at 3413.  Thus, both the letter of Rule 704(b) and the spirit          ___          that animates  it preclude  psychiatrists or other  mental health          professionals  from  testifying directly  to  a  mental state  or          condition that constitutes an element of  the crime charged (such          as  a  criminal  defendant's  intent).    See  United  States  v.                                                    ___  ______________          Childress,  58 F.3d 693, 728  (D.C. Cir. 1995);  United States v.          _________                                        _____________          Cameron, 907 F.2d 1051,  1060 (11th Cir. 1990); United  States v.          _______                                         ______________          Pohlot, 827 F.2d  889, 906 (3d Cir. 1987), cert. denied, 484 U.S.          ______                                     _____ ______          1011 (1988).                    By  like token, Rule 704(b)  has not been restricted to          testimony  offered  by  psychiatrists  and  other  mental  health          professionals.  To the precise contrary, courts have consistently          read the rule to  apply to cases in which intent is an element of          the offense  and an  expert    whether or  not a  psychiatrist or          other  mental  health professional     seeks  to testify  to  the          defendant's actual intent.  See, e.g., United States v. Buchanan,                                      ___  ____  _____________    ________          ___ F.3d  ___, ___ (5th Cir.  1995) [No. 93-8730, slip  op. at 8]          (discussing   narcotics   officer's   opinions  in   respect   to          defendant's specific  intent to possess drugs);  United States v.                                                           _____________                                          11          Orr, 68  F.3d 1247,  1252  (10th Cir.  1995) (discussing  opinion          ___          evidence of  witness skilled in  banking practices in  respect to          defendant's  intent to  commit  bank fraud),  petition for  cert.                                                        ________ ___  _____          filed, No. 95-6890 (U.S.  Nov. 27, 1995); United States  v. Boyd,          _____                                     _____________     ____          55  F.3d 667, 670  (D.C. Cir. 1995)  (discussing police officer's          opinions in respect to defendant's intent to distribute cocaine);          United  States v. Windfelder, 790  F.2d 576, 582  (7th Cir. 1986)          ______________    __________          (discussing IRS agent's opinions in respect to defendant's intent          to evade taxes).   We, too, have indicated, albeit  sub silentio,                                                              ___ ________          that  Rule 704(b)  potentially could  apply to  opinion testimony          offered by a person other than a mental health professional.  See                                                                        ___          United  States v.  Lamattina,  889 F.2d  1191, 1193-94  (1st Cir.          ______________     _________          1989) (discussing FBI  agent's testimony in  loan-sharking case).          Given  the unambiguous  language of  the rule  and the  weight of          authority,6 we  hold that Rule 704(b) prohibits all direct expert          testimony concerning a criminal defendant's intent, regardless of          the witness's field of expertise, so long as intent is an element          of the crime charged.                    This conclusion does  not end our  inquiry.  No  matter          how expansively  Rule 704(b) is read, it  is not limitless in its          reach.    Though Rule  704(b) bars  experts  from opining  on the          ultimate  issue of a defendant's  felonious intent, the rule does                                        ____________________               6The Seventh  Circuit has expressed a  certain reluctance to          read  Rule 704(b) so generously, but has felt constrained by "the          fact  that this court and others have routinely assumed that Rule          704(b) imposes  an additional limitation, however  slight, on the          expert testimony of law enforcement officials."  United States v.                                                           _____________          Lipscomb, 14 F.3d 1236, 1242 (7th Cir. 1994).          ________                                          12          not  prohibit experts  from  testifying to  predicate facts  from          which a jury might infer  such intent.  See, e.g., Brown,  7 F.3d                                                  ___  ____  _____          at 651 (explaining  that Rule  704(b) does "not  preclude []  [an          expert] from suggesting  inferences to be  drawn from the  facts,          including inferences that embrace an ultimate issue").                    The case  at hand  fits neatly within  this integument.          Here,   the  witness   offered   no   testimony   that   directly          characterized the  appellant's  intent to  distribute  controlled          substances.    Instead,  DeAngelis   merely  explained  that  the          quantity  of crack found at  the search site  was consistent with          distribution, as opposed to personal  use.  Because this evidence          does no more than supply suggested predicate facts,  allowing the          jury to draw its own conclusions as to intent from those facts if          it chooses to credit  the testimony, it does not  transgress Rule          704(b).  See United  States v. Lipscomb, 14 F.3d  1236, 1240 (7th                   ___ ______________    ________          Cir.  1994)  (upholding  the introduction  of  opinion  testimony          suggesting that  a particular amount of  crack indicated intended          distribution,  and distinguishing  such testimony  from testimony          that the defendant intended to distribute crack).                    Discerning no  error, we  hold that the  district court          acted within the realm  of its discretion in permitting  the jury          to hear and consider the contested opinion testimony.                           C.  Sufficiency of the Evidence.                           C.  Sufficiency of the Evidence.                               ___________________________                    A   convicted   defendant  who   presses  a   claim  of          evidentiary insufficiency faces an uphill climb.  If the evidence          presented, taken in  the light most agreeable to  the government,                                          13          is  adequate to  permit a  rational jury  to find  each essential          element of the  offense of conviction beyond  a reasonable doubt,          then the defendant's claim  fails.  See United States  v. Olbres,                                              ___ _____________     ______          61  F.3d 967, 970 (1st  Cir. 1995); United  States v. Gifford, 17                                              ______________    _______          F.3d 462, 467 (1st Cir.  1994).  Phrased another way, as  long as          the aggregate  evidence justifies  a judgment of  conviction, "it          need not rule out other hypotheses more congenial to a finding of          innocence."  Gifford, 17 F.3d at 467.                       _______                    When  a  criminal  defendant undertakes  a  sufficiency          challenge, all  the evidence, direct and  circumstantial, must be          viewed from  the government's  coign of  vantage, and  the viewer          must accept all reasonable inferences from it that are consistent          with the verdict.  See United States v. Taylor, 54  F.3d 967, 974                             ___ _____________    ______          (1st Cir. 1995); United States v. O'Brien, 14  F.3d 703, 706 (1st                           _____________    _______          Cir.  1994).  In other  words, "the trial  judge must resolve all          evidentiary   conflicts  and   credibility   questions   in   the          prosecution's   favor;   and,   moreover,   as   among  competing          inferences,  two or more of  which are plausible,  the judge must          choose the  inference that best fits the  prosecution's theory of          guilt."  Olbres,  61 F.3d at  970.  Because the  district court's                   ______          disposition of a motion  for judgment of acquittal is  subject to          de novo review, see  id., this court, like the trial  court, must          __ ____         ___  ___          "scrutinize  the evidence in  the light most  compatible with the          verdict, resolve all credibility disputes in the verdict's favor,          and then reach  a judgment  about whether a  rational jury  could          find guilt beyond a reasonable doubt."  Taylor, 54 F.3d at 974.                                                  ______                                          14                    Applying  these  straightforward rules  to  this record          makes short shrift of the appellant's claim.  The elements of the          offense  of conviction  are  knowing possession  of a  controlled          substance (here, crack) and  intent to distribute that substance.          See United  States v.  Marin, 7  F.3d 679,  688 (7th  Cir. 1993),          ___ ______________     _____          cert.  denied, 114 S. Ct. 739  (1994).  Here, these elements were          _____  ______          amply proven.                    The  discovery of  sizable quantities  of crack  at the          appellant's place of abode  and in his jacket, together  with the          appellant's admissions to the authorities, form a sturdy platform          on which to load a  finding of guilt.  The opinion  evidence that          we have  recounted furnishes additional support  for the finding.          It is clear to  us that a rational jury, impartially assaying all          the evidence, could  have found  beyond a reasonable  doubt    as          this  jury did   that the prosecution had successfully proved the          essential elements of the drug trafficking charge.7          IV.  THE FIREARMS CONVICTION          IV.  THE FIREARMS CONVICTION                    The jury  also convicted the  appellant on a  charge of          violating 18 U.S.C.   924(c)(1).8  The appellant challenges  this                                        ____________________               7The  appellant places  great  reliance on  the decision  in          United States v.  Boissoneault, 926 F.2d 230 (2d Cir. 1991).  But          _____________     ____________          Boissoneault  does  not  assist  his  cause.    Here,  unlike  in          ____________          Boissoneault,   there  is  sufficient  corroborative  evidence             ____________          including but  not limited to  the admissions, the  firearms, and          the  sheer quantity of drugs   to reinforce the opinion testimony          and support a guilty verdict.               8The statute of conviction provides in pertinent part:                    Whoever, during and in relation to any .  . .                    drug trafficking crime . . . for which he may                    be  prosecuted  in  a  court  of  the  United                                          15          conviction,  asserting  that  the  evidence  is  insufficient  to          sustain the verdict.                    While  this case  was  pending on  appeal, the  Supreme          Court  decided Bailey v. United  States, 64 U.S.L.W. 4039 (1995).                         ______    ______________          The Bailey Court concluded  that, in order to convict  an accused              ______          for "use" of a  firearm under section 924(c)(1), "the  Government          must show active employment of the firearm."  Id. at 4041.  Thus,                                                        ___          "liability  attaches only to cases  of actual use"  of a firearm,          id. at  4042, a standard that  "includes brandishing, displaying,          ___          bartering,  striking  with,   and  most   obviously,  firing   or          attempting to fire, a firearm."  Id.                                           ___                    This  construction  of  the  "use"  prong  of   section          924(c)(1)  resolved a split in  the circuits, see  id. at 4040-41                                                        ___  ___          (citing  representative cases),  and, in  the  bargain, abrogated          earlier decisions of this court that permitted conviction under a          more  inclusive definition of "use."  See, e.g., United States v.                                                ___  ____  _____________          McFadden, 13 F.3d 463, 465 (1st Cir. 1994) (holding that evidence          ________          of the presence of a gun under a mattress, with cash, near drugs,          sufficed  to  show "use").    Consequently,  we acknowledge  that          McFadden and its siblings are no longer good law.          ________                    Bailey is  directly on point  here.  At  oral argument,                    ______          the  government  confessed  error, candidly  admitting  that  its          evidence  was  insufficient  to   show  "use"  under  the  Bailey                                                                     ______                                        ____________________                    States, uses or carries  a firearm, shall . .                    . be [subjected to additional punishment].          18 U.S.C.   924(c)(1) (1988 & Supp. II 1990).                                          16          standard.  Because our  assessment of the record conduces  to the          same conclusion,  we reverse the appellant's  conviction under 18          U.S.C.   924(c) and  direct the district court to  enter judgment          in Valle's favor on that count.9          V.  CONCLUSION          V.  CONCLUSION                    To recapitulate,  we affirm the  appellant's conviction          on  the drug trafficking charge and reverse his conviction on the          firearms charge.  Since it is conceivable that our disposition of          the latter count  might affect the sentencing  calculus in regard          to  the former count, we honor counsels' joint request and remand          to  the  district  court  for  possible  reconsideration  of  the          sentence  originally imposed on the drug  trafficking count.  See                                                                        ___          generally United States  v. Pimienta-Redondo, 874 F.2d 9, 14 (1st          _________ _____________     ________________          Cir.)  (en  banc)  (discussing,  in a  pre-Guidelines  case,  the          district court's  "authority to reshape a  sentence when multiple          convictions garner mixed reviews on appeal    some affirmed, some          reversed"), cert. denied, 493 U.S. 890 (1989).                      _____ ______                    We  need go  no further.   We  intimate  no view  as to          whether  the district  court should  undertake to  reconsider the          sentence previously imposed or, if it chooses to do so,  what the          appropriate outcome of such reconsideration might be.                    Affirmed in part, reversed in part, and remanded.                    Affirmed in part, reversed in part, and remanded.                    ________________________________________________                                        ____________________               9Although the Bailey Court did not address the "carry" prong                             ______          of 18 U.S.C.    924(c)(1), the government concedes that,  in this          case,  it has  no  evidence that  the appellant  carried firearms          during  and in relation to  the commission of  a drug trafficking          offense.                                          17
