             United States Court of Appeals
                        For the First Circuit

No. 09-2109

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                        JOSÉ A. VÁZQUEZ-CASTRO,

                         Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF PUERTO RICO

             [Hon. Carmen C. Cerezo, U.S. District Judge]


                                Before

                          Lynch, Chief Judge,
                 Torruella and Siler,* Circuit Judges.


     Alvin E. Entin, with whom Richard Della Fera was on brief for
appellant.
     Vernon B. Miles, with whom Rosa Emilia Rodriguez-Vélez, United
States Attorney, Nelson Pérez-Sosa, Assistant United States
Attorney, and Luke Cass, Assistant United States Attorney, were on
brief for appellee.



                             April 7, 2011




     *
         Of the Sixth Circuit, sitting by designation.
     SILER, Circuit Judge.          Jose Vazquez-Castro was convicted by a

jury of three counts:         (1) conspiracy to possess with intent to

distribute     cocaine;      (2)    possessing     cocaine    with    intent    to

distribute; and (3) possessing a firearm in furtherance of drug

trafficking.      He appeals the sufficiency of the evidence for the

weapon charge in Count Three, and argues the district court erred

by instructing the jury on the Pinkerton theory of liability.                  For

the following reasons, we AFFIRM.

                                        I.

A.   The Undercover Sting Operation

     DEA   Agents    Miguel    Melendez-Cruz,       Roberto   Cruz-Perez,      and

Johnny Melendez organized an undercover operation to buy cocaine.

The targeted individuals included Carlos Rodriguez and Israel Ruiz.

Rodriguez had solicited Marcos Nunez-Retamar to be a "runner," or

an intermediary who earns commissions by matching suppliers of

cocaine    with    buyers.         Nunez-Retamar     became    a     confidential

informant.

     Agent Cruz-Perez instructed Nunez-Retamar to call Rodriguez

and tell him that Cruz-Perez was his brother and he wanted to buy

ten kilograms of cocaine.          Cruz-Perez, Melendez, and Nunez-Retamar

then met with Rodriguez and Ruiz.            Nunez-Retamar introduced Cruz-

Perez as his brother, and told Rodriguez and Ruiz that he wanted to

buy ten kilograms of cocaine. After conversing about the specifics

of the deal, they came to an agreement to purchase the cocaine.


                                       -2-
      The next day, Rodriguez called to report that he had spoken

with the supplier and "they wanted to do the deal" in front of a

restaurant at a shopping mall that evening.                   Rodriguez and Ruiz

arrived at the designated time, but stated that their supplier did

not   like    the   area    because    they    saw    suspicious   vehicles   and

uniformed patrols.

      Cruz-Perez made several recorded calls to Rodriguez and Ruiz

the following day.         Ruiz said that no one wants to "release the

tickets," which meant that the suppliers did not want to provide

the   drugs   without      first    seeing    the    money.    Cruz-Perez   asked

Rodriguez if he had "iron," meaning firearms.                 Rodriguez replied,

"I carry steel on my waist."

      Cruz-Perez, Melendez, Nunez-Retamar, and Rodriguez agreed to

meet at a restaurant for the exchange at 5:30 p.m. on June 23,

2006. Cruz-Perez placed agents around the premises to make arrests

once the drugs arrived.            They planned to call these agents after

seeing the drugs and ask them to "bring the money in," which was

the code phrase ordering the arrests of the dealers.

      Cruz-Perez, Melendez, and Nunez-Retamar arrived first, and

waited inside the restaurant.           Rodriguez called and said he could

not attend the meeting because his car broke down.                 At 6:30 p.m.,

a Mitsubishi automobile parked in front of the restaurant, with

Ruiz in the back seat and Angel Cruz-Perez ("Angel") driving.

Vazquez-Castro was also in the vehicle, sitting in the front


                                        -3-
passenger seat.   Ruiz exited the vehicle, and Angel and Vazquez-

Castro left the area. Ruiz entered the restaurant, told Cruz-Perez

that the "kilos were there," and asked about the money.    The agent

replied that "not a penny was going to be shown until" he "saw the

kilos." Ruiz responded that he needed to speak "with the owners of

the material."

     Ruiz left the restaurant, made a telephone call outside, and

returned to again inquire about the money.      The agents repeated

that there would be no money until the drugs were shown, and Ruiz

left to make another telephone call.   The Mitsubishi returned with

Angel driving and Vazquez-Castro in the front passenger seat. Ruiz

got into the back seat.      Cruz-Perez approached the Mitsubishi,

opened the rear passenger side door, and asked whether they were

"going to negotiate?"    Angel said "yes," and instructed Vazquez-

Castro to "go get that."

     Vazquez-Castro exited the vehicle, walked to an Isuzu "about

six vehicles away," and got into the rear passenger side.     A few

minutes later, Vazquez-Castro exited the vehicle, and returned with

his hand tucked near the left side of his body and apparently

carrying something inside his sweater.      Vazquez-Castro got back

into the Mitsubishi.    Ruiz opened the door and said, it is "here."

Cruz-Perez instructed Nunez-Retamar to check the drugs.      Nunez-

Retamar looked in the passenger's side "for several seconds," then

told Cruz-Perez to "[b]ring the money, there is a kilo."


                                 -4-
       Angel and Vazquez-Castro exited the vehicle and walked into

the restaurant, where they were arrested.                     Ruiz was arrested

outside, as were the two individuals in the Isuzu.                When Melendez

arrested the driver of the Isuzu, the driver said he was armed and

"[t]he weapon is under the carpet in the driver's seat, on the

floor." The agent then found a loaded .45 caliber pistol folded in

the floor mat on the driver's side of the Isuzu.                The agents also

retrieved a blue bag containing five kilograms of cocaine from the

back   seat   of   the    Isuzu   and   a     kilogram   of   cocaine    from   the

Mitsubishi's glove box.

B.     The Trial

       Vazquez-Castro and his co-defendants were indicted on three

counts. Count One charged Vazquez-Castro and others with knowingly

and unlawfully conspiring to possess with intent to distribute five

kilograms     or   more    of     cocaine      in   violation    of     21   U.S.C.

§§ 841(a)(1), 841(b)(1)(A), and 846.                Count Two charged him with

possessing with intent to distribute five kilograms or more of

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and

18 U.S.C. § 2.       Count Three charged, "[t]he defendants herein,

while aiding and abetting each other, did possess, use and carry .

. . a .45 caliber Ruger pistol . . . in furtherance of a drug

trafficking crime" in violation of 18 U.S.C. §§ 924(c)(1)(A) and

(c)(1)(A)(i).




                                        -5-
     At trial, Vazquez-Castro moved under Rule 29(a) for a judgment

of acquittal on Count Three. The district court denied the motion.

It held that, even though the Government had expressly charged

Vazquez-Castro under an aiding and abetting theory in Count Three,

the jury may be instructed to consider the liability theory from

Pinkerton v. United States, 328 U.S. 640 (1946), as an alternative

theory for conviction under 18 U.S.C. § 924(c)(1).           The district

court found that "since both parties argued the foreseeability

factor [of the Pinkerton theory] during the Rule 29(a) discussion,

a factor which is not an element of the standard of proof of the

aiding and abetting theory, . . . the alternative Pinkerton theory

of liability is justified." The court later instructed the jury on

both theories of liability.

     Vazquez-Castro was convicted and sentenced to 120 months for

Counts One and Two to be served concurrently, and 60 months for

Count Three to be served consecutively, for a total of 180 months

imprisonment.

                                   II.

     On appeal, Vazquez-Castro makes three related arguments.            He

argues there was insufficient evidence to convict him of the weapon

charge, and maintains that the district court therefore erred in

denying his Rule 29 motion before the case was submitted to the

jury.   He also contends that, because the government expressly

included   an   aiding   and   abetting   theory   of   liability   in   the


                                   -6-
indictment,       the   court   erred   by    instructing   the   jury   on   the

Pinkerton theory of liability.1

     We review the denial of a Rule 29 motion for acquittal de

novo.       See United States v. Rosado-Perez, 605 F.3d 48, 52 (1st Cir.

2010).       We review the jury instructions for plain error because

Vazquez-Castro did not object to them at trial.             See Fed. R. Crim.

P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).                   In

analyzing Vazquez-Castro's sufficiency claim, "we must affirm the

conviction if after de novo review of the evidence taken in the

light most favorable to the government, we conclude that a rational

factfinder could find that the government proved the essential

elements of its case beyond a reasonable doubt."             United States v.

Marin, 523 F.3d 24, 27 (1st Cir. 2008).

A.   The Pinkerton Instruction

     An aiding and abetting theory of liability requires a higher

mens rea than a Pinkerton theory of liability.               United States v.

Shea, 150 F.3d 44, 50 (1st Cir. 1998), abrogated on other grounds,

United States v. Mojica-Baez, 229 F.3d 292 (1st Cir. 2000).                   To

show aider and abettor liability, the government must prove that

the defendant knew to a "practical certainty" that the principal

would use a weapon during the commission of the crime.                   United

States v. Spinney, 65 F.3d 231, 238 (1st Cir. 1995).              "[P]ractical


        1
         We have also reviewed the pro se supplemental brief
submitted by Vazquez-Castro. It does not raise any substantial
additional claims.

                                        -7-
certainty is a rubric that calls for proof verging on actual

knowledge."      Id.   By contrast, under the Pinkerton theory of

liability, the jury must find that the defendant was a member of a

conspiracy and the use or carrying of a firearm was "reasonably

foreseeable" in furtherance of the conspiracy.          Shea, 150 F.3d at

50.

      Notwithstanding this difference, "a jury may be instructed to

consider the liability theory established in Pinkerton as an

alternative ground for conviction under § 924(c)(1) in addition to

an aiding and abetting theory." United States v. Medina-Roman, 376

F.3d 1, 3 n.4 (1st Cir. 2004) (internal citation omitted).             The

alternative instruction is justified because, "[a]s with the aiding

and   abetting   theory,   vicarious   co-conspirator    liability   under

Pinkerton is not in the nature of a separate offense."               United

States v. Sanchez, 917 F.2d 607, 612 (1st Cir. 1990) (internal

quotations omitted); accord United States v. Gobbi, 471 F.3d 302,

309 (1st Cir. 2006) ("The law is crystalline that, when the

government has advanced several alternate theories of guilt and the

trial court has submitted the case to the jury on that basis, an

ensuing conviction may stand as long as the evidence suffices to

support any one of the submitted theories.").

      In the same manner, the trial court may instruct the jury on

a Pinkerton theory even though the indictment does not plead

vicarious liability.       Sanchez, 917 F.2d at 612.      "Indeed, every


                                   -8-
court       to    consider    the    matter   has    held   that        the    individual

substantive         counts    need   not   make     reference     to    co-conspirator

liability in order for the jury to be so instructed."                                 Id.

(internal quotations omitted).

     When an indictment does not reference Pinkerton liability,

however, the defendant remains entitled to fair notice of the

government's charge against him.                 Id. at 611.      The defendants in

Sanchez were charged with conspiracy and possession of cocaine for

distribution, and the district court instructed the jury on both

aiding and abetting and Pinkerton theories of liability.                           Id. at

611-12.          Even though the indictment itself did not mention either

theory of liability, we held that the defendants were "on notice of

the essential nature of the charges against them."                            Id. at 612.

This is because aiding and abetting "is not a separate offense."

Id. at 611-12.          Rather, "[a]iding and abetting is an alternative

charge in every count, whether explicit or implicit."2                         Id. at 611

(internal         citations    omitted).      We     held   the    Pinkerton       charge

warranted "on the same reasoning."                Id. at 612.      There was also no

unfair surprise because the government submitted proposed jury

instructions on both theories prior to trial.                     Id.




        2
       We noted in Sanchez that it is "better practice," however,
"to have the indictment framed in the alternative or at least to
have noted upon it a reference to" the aiding and abetting theory
of liability. Id. at 611 n.3.

                                           -9-
     However, "a Pinkerton charge should not be given as a matter

of course."        Id. at 612 n.4 (internal quotations omitted).            The

Pinkerton charge causes concern "particularly where the jury is

being asked to make the converse inference; that is, to infer, on

the basis of a series of disparate criminal acts, that a conspiracy

existed."     Id.     In Sanchez, "there was ample evidence that [the

defendant] was a member of the alleged conspiracy to possess

cocaine for distribution."          The jury instructions on aiding and

abetting and Pinkerton were proper for the separate purpose of

determining whether the defendant's co-conspirators "committed the

substantive offense of possessing cocaine for distribution."                Id.

     Applying this reasoning, the district court here did not

plainly err by instructing the jury on the Pinkerton theory of

liability as an alternative to the aiding and abetting theory.

Even though only the aiding and abetting theory was specifically

referenced in the indictment, each theory was implicit in the

firearm charge against him.         See id. at 611-12.       "Since there was

sufficient    evidence     to   enable    a   jury   to   conclude,   beyond    a

reasonable doubt," that Vazquez-Castro and his co-defendants were

members of the cocaine conspiracy, "the Pinkerton charge was

proper" on the substantive weapon count.             See id. at 612.

     There was also no unfair surprise.               As the district court

pointed     out,    the   parties   argued     the    Pinkerton   element      of

foreseeability during trial.             See Gobbi, 471 F.3d at 309; cf.


                                     -10-
Medina-Roman, 376 F.3d at 3 n.4.                     Additionally, Vazquez-Castro's

own proposed jury instructions referenced the Pinkerton theory of

liability.     See Sanchez, 917 F.2d at 612.                        Moreover, following a

charge conference in chambers and prior to instructing the jury,

Vazquez-Castro       appears       to    have        agreed    on    the   record    to     the

Government's       request        that     the       court     include     the     Pinkerton

instruction.

B.   Sufficiency of the Evidence

     To convict a defendant under § 924(c)(1)(A), the government

must prove that the defendant (1) committed a drug trafficking

crime; (2) knowingly possessed a firearm; and (3) possessed the

firearm in furtherance of the drug trafficking crime.                                 United

States v. Pena, 586 F.3d 105, 112 (1st Cir. 2009).                                  "We have

repeatedly held that under Pinkerton, the defendant does not need

to have carried the gun himself to be liable under § 924(c)."

United States v. Flecha-Maldonado, 373 F.3d 170, 179 (1st Cir.

2004).       "So    long     as    there        is    sufficient        evidence     that    a

co-conspirator carried or used a firearm in furtherance of the

conspiracy    and     that    this        was    reasonably          foreseeable     to     the

defendant, the defendant can be held liable as if he himself

carried or used the firearm."               Id.

         It is not necessary to show that the defendant owned or

"physically        possessed"       the     firearm,          and    possession      may    be

constructive.       United States v. Rodriguez-Lozada, 558 F.3d 29, 41


                                            -11-
(1st Cir. 2009).        "Constructive possession of a firearm may be

established by showing that the person knows (or has reason to

know) that the firearm is within easy reach, so that he can take

actual possession of it virtually at will."                   United States v.

Robinson, 473 F.3d 387, 399 (1st Cir. 2007).            "The mere presence of

a firearm" in the area is insufficient, and there must be some

"nexus" between the firearm and the offense.                  Id. at 400.    In

determining whether there is a nexus, we consider whether the

firearm was loaded, whether the firearm was easily accessible, the

proximity   of   the    firearm    to    the   drugs,   and   the   surrounding

circumstances.    Id.

     "[F]irearms are often used by drug dealers to protect drug

stockpiles, to preempt encroachment into a dealer's 'territory' by

rival dealers, and for retaliation." United States v. Luciano, 329

F.3d 1, 6 (1st Cir. 2003).               In Luciano, agents searched an

apartment the defendant had been inside just prior to selling

heroin.   Id. at 3.     In a crawl space in the ceiling, an agent found

a large bag of heroin close to another bag containing two handguns

and two loaded magazines.         Id. at 3-4.    The defendant argued there

was no nexus between the drug transaction and the gun possession.

Id. at 6.   However, "[g]iven the close proximity of the firearms

and loaded magazines to the significant stockpile of heroin, we

[had] no difficulty concluding that there was a sufficient nexus




                                        -12-
between the drug trafficking crime and the firearms to sustain a

conviction under § 924."       Id. at 6.

     Viewing the evidence in the light most favorable to the jury's

verdict in Vazquez-Castro's case, there was sufficient evidence for

the jury to convict him of the weapon charge.             First, sufficient

evidence     showed    Vazquez-Castro       voluntarily     and      knowingly

participated    in    the   drug   conspiracy.    See     United    States   v.

Bristol-Martir, 570 F.3d 29, 39 (1st Cir. 2009).            The DEA agents'

testimony,    video   recordings,     and   Vazquez-Castro's       post-arrest

interview allowed the jury to reasonably infer that he was aware

of, and intended to participate in, the conspiracy.                See United

States v. Paret-Ruiz, 567 F.3d 1, 6 (1st Cir. 2009) ("An agreement

between coconspirators may be proven by circumstantial evidence,

and it may be tacit.").

     Second, sufficient evidence supports a finding that one of

Vazquez-Castro's co-conspirators constructively possessed a firearm

"in furtherance of" the drug trafficking crime. Robinson, 473 F.3d

at 399.    At the time of the arrests, the driver of the Isuzu told

the agents where to find the weapon.         The pistol was found loaded

with a magazine and easily accessible by reaching to the floorboard

of the driver's seat in the Isuzu.           See Marin, 523 F.3d at 28.

Five kilograms of cocaine were found on the floor behind the

driver's seat, in close proximity to the gun.              See Luciano, 329

F.3d at 6.     Additionally, these items were seized in the broader


                                     -13-
context of a drug deal, and the driver and passengers arrived at

the designated location carrying both the drugs and the gun in

their vehicle.     See Robinson, 473 F.3d at 400.

     Sufficient evidence also supports a finding that it was

"reasonably foreseeable" to Vazquez-Castro that a co-conspirator

would    possess   a    firearm   in    furtherance     of   the   conspiracy.

Flecha-Maldonado, 373 F.3d at 179.            In the days prior to the drug

deal, one of Vazquez-Castro's co-conspirators told an undercover

agent he carried "steel."         Although Vazquez-Castro arrived in a

different vehicle on the day of the deal, he walked to and sat

inside the Isuzu for several minutes after Angel instructed him to

"go get that."         While seated in the Isuzu, Vazquez-Castro was

within    reaching     distance   of    both    the   loaded   weapon   and   a

significant amount of cocaine.            When Vazquez-Castro exited the

Isuzu, he carried a kilogram of the cocaine back to the Mitsubishi.

The Government estimated the total value of the cocaine seized at

approximately $100,000. See United States v. Bianco, 922 F.2d 910,

912 (1st Cir. 1991) ("[W]e think it fairly inferable that a

codefendant's possession of a dangerous weapon is foreseeable to a

defendant with reason to believe that their collaborative criminal

venture includes an exchange of controlled substances for a large

amount of cash.").

     Under these circumstances, the jury could have concluded it

was reasonably foreseeable to Vazquez-Castro that one of his


                                       -14-
co-conspirators would carry a firearm. See United States v. Bucci,

525 F.3d 116, 132 (1st Cir. 2008); Flecha-Maldonado, 373 F.3d at

179; Bianco, 922 F.2d at 912.      The jury's finding of liability on

a   Pinkerton   theory   is   sufficient   to   uphold   Vazquez-Castro's

conviction on the gun charge, and we therefore need not reach the

question of whether this evidence adequately supported the higher

showing required under an aiding and abetting theory of liability.

      AFFIRMED.




                                   -15-
