

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           
No. 94-1370

                          UNITED STATES,

                            Appellee,

                                v.

                       FRANK NIEVES-BURGOS,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Raymond L. Acosta, Senior U.S. District Judge]                                                                    

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                      Boudin, Circuit Judge,                                                     

                and Boyle,* Senior District Judge.                                                           

                                           

     Juan  R.  Acevedo-Cruz,  by Appointment  of  the  Court, for                                     
appellant.
     John  F. DePue, Attorney,  Department of Justice,  with whom                             
Guillermo Gil, United States Attorney, Warren  V zquez, Assistant                                                                
United States Attorney, and Nina Goodman, Attorney, Department of                                                  
Justice, were on brief for appellee.

                                           

                         August 14, 1995
                                           
                                                  

*  Of the District of Rhode Island, sitting by designation. 

           BOYLE, Senior District  Judge.  This case  presents two                    BOYLE, Senior District  Judge.                                                 

issues  concerning the conviction of the appellant, Frank Nieves-

Burgos, for use of a firearm during a drug-trafficking offense in

violation  of  18  U.S.C.    924(c)(1).    Nieves-Burgos asserts,

first, that the  jury's general verdict of guilty  on the firearm

charge is ambiguous and must be set  aside, as it was returned on

a single charge containing three alleged violations, two of which

were not  supported by  the evidence at  trial.   Second, Nieves-

Burgos  asserts  that  the only  alleged  violation  supported by

evidence   at  trial  was  itself  not  supported  by  sufficient

evidence.  We conclude that the jury verdict is not ambiguous and

is adequately supported by the evidence, and we affirm.

                          I.  BACKGROUND                                    I.  BACKGROUND

          The factual background of  this appeal is set forth  in

United States v. Torres-Maldonado, 14 F.3d 95, 98-100 (1st Cir.),                                           

cert. denied, 115 S.  Ct. 193 (1994), an appeal taken  by Nieves-                      

Burgos'  co-defendants.  We therefore recount the relevant facts,

which  for the most part are not  disputed, only briefly, and, as

is appropriate,  we  do so  in the  light most  favorable to  the

verdict.  See  United States v. Torres-Maldonado, 14  F.3d 95, 98                                                          

(1st Cir.), cert. denied, 115 S. Ct. 193 (1994).                                  

          In  February  1991,  Nieves-Burgos and  several  others

rented rooms  310, 311, and  327 of the  Carib Inn Hotel  in Isla

Verde, Puerto Rico.  Nieves-Burgos  rented room 311 using a false

name.  The group occupied the rooms for several weeks.   On March

6, 1991, hotel  security personnel notified police  of suspicious

                               -2-

 conduct in  the three rooms.  There had been frequent traffic to,

from, and between the rooms; the  three rooms received 90% of the

hotel's  incoming telephone calls; the  rooms often were paid for

together,  in cash; and,  a hotel  floor supervisor  observed two

handguns on a bureau in room 327.

          Agents of the United States Bureau of Alcohol, Tobacco,

and Firearms  (ATF) began surveillance  of the hotel on  March 6.

At approximately 11:00  p.m. that evening, they  observed Nieves-

Burgos,  H ctor  Santiago-Alicea, Teddy  Le n-Ayala,  Oscar D az-

Cruz, and  an unidentified man  in the  hotel lobby.   The agents

observed Santiago-Alicea wearing a bullet-proof jacket, which was

bulging from something concealed underneath.  The group proceeded

outside the  hotel to a  parking lot, where the  unidentified man

produced a bag and handed it to Santiago-Alicea.

          Later  that  same  evening,  another  unidentified  man

arrived at the hotel, and was met by Nieves-Burgos and Pedro Luis

Ram rez-Rivera  (Ram rez-Rivera).   After  a brief  conversation,

Nieves-Burgos and Ram rez-Rivera left the unidentified man.  They

returned  a short while later with Santiago-Alicea, who exchanged

packages with the unidentified man.

          On March 7,  1991, ATF agents executed a search warrant

at the three hotel rooms.  In room 311, they found  five persons:

Nieves-Burgos,  Marilyn  Gotay-Col n,  Catalino Torres-Maldonado,

Ram rez-Rivera, and Santiago-Alicea.  Nieves-Burgos was on one of

the room's two beds, clad in his underwear.  A search of the room

revealed  quantities of cocaine, several bundles of cash, various

                               -3-

 instruments  and supplies typically used for packaging cocaine, a

bullet-proof jacket, and a loaded Beretta semi-automatic handgun.

The gun was found with  a bundle of cash in  a zippered bag on  a

sofa on which Gotay-Col n was seated.   The bag was located  less

than two feet from Nieves-Burgos.

          Rooms 310 and 327 were  also searched, as were two cars

that  were  in  the  hotel's  parking  lot.    More  cocaine  and

paraphernalia  were found in  the two rooms.   Guns were found in

the two cars.   In a green  Ford LTD, agents found  a loaded .357

revolver;  also  found were  a  picture  of Nieves-Burgos  and  a

parking ticket  on which was  Nieves-Burgos' fingerprint.   In  a

grey  Buick, a  nine-millimeter pistol  was found.    The Buick's

registration certificate was found in Santiago-Alicea's wallet.

          Nieves-Burgos  and others were indicted.  In counts one

and two of the indictment, Nieves-Burgos  and others were charged

with  possessing with the intent to distribute, and conspiring to

possess  with the  intent to  distribute, cocaine.   Count  four1
                                                  

1  Count four provides in full:

                On  or about  March 7,  1991, in  the
            District of  Puerto Rico  and within  the
            jurisdiction  of   this  Court,   FRANKIE                                                        FRANKIE
            NIEVES-BURGOS,   also   known   as  KENNY                      NIEVES-BURGOS,   also   known   as  KENNY
            RAMIREZ,  also  known  as  JOSE  HERRERA-                      RAMIREZ,  also  known  as  JOSE  HERRERA-
            RIVERA, PEDRO  LUIS RAMIREZ-RIVERA,  also                      RIVERA, PEDRO  LUIS RAMIREZ-RIVERA,  also
            known  as  PEDRO  MEDINA-RIVERA, CATALINO                      known  as  PEDRO  MEDINA-RIVERA, CATALINO
            TORRES-MALDONADO,   MARILYN  GOTAY-COLON,                      TORRES-MALDONADO,   MARILYN  GOTAY-COLON,
            HECTOR SANTIAGO-ALICEA, TEDDY LEON-AYALA,                      HECTOR SANTIAGO-ALICEA, TEDDY LEON-AYALA,
            and OSCAR DIAZ-CRUZ, also  known as OSCAR                      and OSCAR DIAZ-CRUZ, also  known as OSCAR
            SANTIAGO, the  defendants herein,  aiding                      SANTIAGO
            and  abetting each  other, did  knowingly
            and unlawfully use three  (3) firearms of
            the following descriptions:

                               -4-

 charged Nieves-Burgos and  five others with the  knowing unlawful

use  of  three  firearms  during   and  in  relation  to  a  drug

trafficking crime  in violation of  18 U.S.C.   924(c)(1).2   The
                                                  

                (a)  Beretta  semi-automatic   pistol
            caliber 9mm., Model 92-F, black in color,
            serial  number  BER042822Z   loaded  with
            ammunition of its own [sic];
                (b)   Smith   and   Wesson  Revolver,
            caliber  .357 magnum;  Model 27-2,  three
            and one half (3 1/2)  inch barrel, nickel
            plated in  color with brown  grip, serial
            number N109155; loaded with ammunition of
            its own caliber;
                (c)  Norinco  semi-automatic  pistol,
            caliber 9mm., Model L213, black in color,
            serial   number   315202,   loaded   with
            ammunition of its own caliber; during and
            in  relation  to  the  commission  of  an
            offense punishable  under the  Drug Abuse
            Prevention and  Control Act,  that is,  a
            violation  of  Title  21,  United  States
            Code,  Section  841(a)(1),  involving the
            Schedule  II  Narcotic   Drug  Controlled
            Substance  cocaine, as  defined in  Title
            18,   United    States   Code,    Section
            924(c)(1), which  may be prosecuted  in a
            Court  of  the  United  States,  to  wit:
            aiding  and  abetting each  other  in the
            possession with  intent to  distribute of
            approximately   nine  hundred   fifty-six
            point one (956.1) grams (gross weight) of
            cocaine,  a  Schedule  II  Narcotic  Drug
            Controlled Substance; all in violation of
            Title  18,  United States  Code,  Section
            924(c)(1).

2  18 U.S.C.   924(c)(1) provides in part:

            Whoever,  during and  in relation  to any
            crime  of  violence or  drug  trafficking
            crime (including  a crime of  violence or
            drug trafficking crime which provides for
            an  enhanced punishment  if committed  by
            the use of  a deadly or  dangerous weapon
            or device) for which he may be prosecuted
            in  a court of the United States, uses or
            carries a firearm, shall, in addition  to
            the punishment provided for such crime of

                               -5-

 firearms alleged  in count four to have been used in violation of

  924(c)(1) are the three handguns found in room 311 of the hotel

and the two cars searched in the hotel parking lot.

          Evidence  of the three firearms was presented at trial.

At the close of the evidence, the trial judge instructed the jury

without  objection  and  presented  them  with   a  copy  of  the

indictment for their deliberation.  As to Nieves-Burgos, the jury

returned general verdicts of guilty on counts one, two, and four.

          Nieves-Burgos took no appeal from the guilty verdict or

his sentence.  Upon his imprisonment, he filed a motion to vacate

his  sentence  under  28  U.S.C.     2255,  claiming  ineffective

assistance  of counsel.    His  motion was  granted,  and he  was

afforded new  counsel for  resentencing.  On  count four,  he was

sentenced  to sixty months'  imprisonment, to run  consecutive to

his sentences on the other two counts.

          Nieves-Burgos now  appeals the guilty verdict  on count

four.  He asserts that the evidence was not sufficient to support

his  conviction as  to any  of the  three firearms.    The United

States argues in response that  the evidence of the firearm found

in  room 311  was  sufficient  to support  the  conviction.   The

government expressly declines  to argue that  evidence concerning

either  of  the  two  firearms  found  in   the  automobiles  was                                                            

sufficient  to support  the conviction.3    During argument,  the                      violence  or drug  trafficking crime,  be
            sentenced to imprisonment  for five years
            . . . .

3  In its brief, the government states:  "The government does not
argue that Nieves-Burgos' conviction  under Section 924(c)(1)  is
supported by [evidence of] the two guns found during the searches
of the cars."  Government's Brief at 7 n.5.

                               -6-

 parties were asked  to submit supplemental briefs  concerning the

issue whether the general verdict of guilty should stand where it

was returned on  a count containing  three alleged violations  of

the firearms statute, two of which concededly were unsupported by

evidence at  trial.   The parties'  arguments  were received  and

considered.  We address the issues.

                          II.  ANALYSIS                                    II.  ANALYSIS

A.  The General Verdict          A.  The General Verdict                                 

          Nieves-Burgos initially argues that  his conviction for

violation of  18 U.S.C.    924(c)(1) cannot  stand as  the jury's

general verdict of  guilty was ambiguous in that  it was returned

on a charge that alleged  the use of three firearms  in violation

of  18 U.S.C.    924(c)(1),  and the  evidence at  trial was  not

sufficient to  support a  conviction as to  two of  the firearms.

The  government  concedes  that the  evidence  at  trial did  not

support a conviction  as to two of  the three firearms listed  in

count  four, but argues  that the verdict  should stand as  it is

supported by sufficient evidence as to the remaining firearm.

          This issue  was  effectively determined  in Griffin  v.                                                                       

United States, 502 U.S. 46 (1991).  In Griffin, the appellant had                                                        

been convicted by jury of  an unlawful conspiracy in violation of

18 U.S.C.   371.   See Griffin v. United States,  502 U.S. 46, 47                                                         

(1991).   A  single  count  in the  indictment  charged that  the

conspiracy had two  unlawful objects:   impeding  efforts of  the

Internal  Revenue Service to ascertain income taxes; and impeding

efforts  of  the  Drug  Enforcement  Administration to  ascertain

                               -7-

 forfeitable income.   See  id.  The  evidence presented  at trial                                       

failed to  establish the appellant's  guilt with  respect to  the

second object.  See id. at 47-48.  The trial court's instructions                                

to the  jury permitted  them to return  a guilty verdict  if they

found the  appellant to  have participated in  either of  the two

objects of the conspiracy.   See id. at 48.  The jury  returned a                                             

general  verdict of  guilty.   See id.   The  Court  affirmed the                                               

verdict,  citing the  rule that  when  a jury  returns a  general

verdict  of guilty  on  a  single count  charging  more than  one

criminal act,  the verdict  stands if  the evidence  sufficiently

supports  any of  the  acts charged.   See  id. at  56-57 (citing                                                        

Turner v. United States, 396 U.S. 398, 420 (1970)).                                  

          Griffin provides  what was a  much-needed clarification                           

of the law.   Prior to Griffin, Supreme  Court authority appeared                                        

somewhat  disjointed, if  not downright  contradictory.   Compare                                                                           

Turner v. United  States, 396 U.S. at  420 ("The general rule  is                                  

that  when a  jury  returns  a guilty  verdict  on an  indictment

charging several acts in the conjunctive . . . the verdict stands

if the evidence is sufficient with respect to any one of the acts

charged.")  with  Yates  v.  United  States,  354  U.S. 298,  312                                                     

(1957)("[W]e think  the proper rule  to be applied is  that which

requires a verdict to be set aside in cases where the  verdict is

supportable  on  one  ground,  but  not on  another,  and  it  is

impossible  to  tell  which  ground  the jury  selected.").    In

Griffin, the Court  articulated subtle  distinctions between  the                 

lines of relevant cases, seeking  to reconcile them.  See Griffin                                                                           

                               -8-

 v. United States, 502 U.S.  at 52-56.  It is  appropriate briefly                          

to  discuss the  Supreme  Court's analysis  in Griffin  before we                                                                

address the issue as it relates to this case.

          In  Griffin, the  Court  discussed the  long-recognized                               

general rule:  "a general jury  verdict [is] valid so long as  it

[is] legally supportable on one  of the submitted grounds -- even

though [this gives] no assurance that a valid ground, rather than

an invalid  one, was actually  the basis for the  jury's action."

Id.  at 49.  The  Court acknowledged that  this doctrine has been            

settled  law  throughout  this  country's  existence.    See  id.                                                                          

Indeed, the rule  was declared by Lord Mansfield  at King's Bench

before the  Declaration of  Independence:  "if  there is  any one

count   to  support   the   verdict,   it   shall   stand   good,

notwithstanding all the rest are bad."  Peake v. Oldham, 1 Cowper                                                                 

275, 276, 98  Eng.Rep. 1083, 1084 (K.B. 1775),  quoted in Claasen                                                                           

v. United States, 142 U.S. 140, 146  (1891), quoted in Griffin v.                                                                        

United States, 502  U.S. at 49-50.  The  rule, Griffin notes, was                                                                

more recently followed in Turner  v. United States, 396 U.S. 398,                                                            

420 (1970).    In Turner,  the appellant  had been  charged in  a                                  

single  count  with  knowingly  not  only  purchasing,  but  also

dispensing and distributing  heroin in violation of  Federal law,

and the jury returned a general verdict of guilty  on the charge.

Turner v. United States, 396 U.S. at 419-20.  The Court concluded                                 

that, because the evidence at trial was sufficient to support the

contention that the appellant had distributed heroin in violation

of the relevant statute, the verdict should be upheld, whether or

                               -9-

 not the evidence was sufficient  to support the other conjunctive

allegations in the count.  See  id. at 420-21.  The Court  relied                                            

on what it labeled the "general rule" on the issue:  "when a jury

returns a guilty verdict on  an indictment charging several  acts

in the conjunctive  . . . the  verdict stands if the  evidence is

sufficient with respect to any one of  the acts charged."  Id. at                                                                       

420, quoted in Griffin v. United States, 502 U.S. at 56-57.   See                                                                           

also Turner v. United States, 396  U.S. at 420 &amp; n.42, and  cases                                      

cited.

          The  primary exception  to  the  general rule,  Griffin                                                                           

recognizes, finds its roots in Stromberg v. California,  283 U.S.                                                                

359  (1931).  See Griffin v.  United States, 502 U.S.  at 52.  In                                                     

Stromberg, the appellant had been charged in a single count of an                   

information of  violating a  California  statute prohibiting  the

display of a  red flag for  any of three  purposes:  "as  a sign,

symbol or emblem  of opposition to organized government[;]  or as

an invitation or  stimulus to anarchistic action[;] or  as an aid

to propaganda  that is of  a seditious character."   Stromberg v.                                                                        

California, 283  U.S. 359,  361 (1931)  (citation omitted).   The                    

Court determined  that the first  of the statute's  three clauses

violates  the Fourteenth  Amendment.    See id.  at  369-70.   In                                                        

setting aside the  jury's general verdict, it stated:   "[I]f any

of  the   clauses  in  question  is  invalid  under  the  Federal

Constitution,  the  conviction cannot  be upheld."   Id.  at 368,                                                                 

quoted in Griffin v. United States, 502 U.S. at 53.   The rule of                                            

Stromberg   thereafter  was  applied   in  many  cases  involving                   

                               -10-

 "general-verdict  convictions   that  may   have  rested  on   an

unconstitutional ground."  See Griffin v. United States, 502 U.S.                                                                 

at 55, and cases cited.

          In  Yates v. United  States, 354  U.S. 298  (1957), the                                               

Court extended  the rule of  Stromberg, and in doing  so, created                                                

some  confusion.    Yates concerns  the  convictions  of numerous                                   

appellants  on  a  single-count  indictment  charging  them  with

violating a  California statute  by conspiring  for two  unlawful

purposes:     (1)  advocating   the  violent  overthrow   of  the

government; and (2) organizing the  Communist Party of the United

States.  See Yates v. United States, 354 U.S. at 300.  The  Court                                             

determined that  the "organizing"  charge was  prohibited by  the

relevant statute  of limitations.   See  id. at  312.   The Court                                                     

held:  "In  these circumstances we  think the proper  rule to  be

applied is that which requires a verdict to be set aside in cases

where  the verdict  is  supportable  on one  ground,  but not  on

another,  and it  is impossible  to  tell which  ground the  jury

selected."  Id. (citing Stromberg v. California, 283 U.S. at 367-                                                         

68; Williams v. North Carolina,  317 U.S. 287, 292 (1942); Cramer                                                                           

v. United States, 325 U.S. 1, 36 n.45 (1945)).                            

          As the Court acknowledged in Griffin, Yates constitutes                                                               

a novel and unexplained extension of the Stromberg rule:                                                            

            Yates . . .  was the first and only  case                           

            of ours  to apply Stromberg to  a general                                                 

            verdict  in  which  one of  the  possible

            bases of  conviction did not  violate any

                               -11-

             provision  of  the Constitution  but  was

            simply legally  inadequate (because  of a

            statutory  time   bar).     As  we   have

            described,   that   was   an  unexplained

            extension,  explicitly  invoking  neither

            the  Due  Process  Clause  (which  is  an

            unlikely  basis)   nor  our   supervisory

            powers over the procedures employed in  a

            federal prosecution.

Griffin v. United States, 502 U.S.  at 55-56.  Griffin notes that                                                                

none of the  three cases cited in Yates to support its holding --                                                 

Stromberg and two of its progeny, Williams v. North Carolina, 317                                                                      

U.S. 287, 292 (1942), and Cramer v. United States, 325 U.S. 1, 36                                                           

n.45  (1945)  -- in  fact  supports it.    See Griffin  v. United                                                                           

States, 502 U.S. at 52, 54-55.                  

          Griffin clarifies  Yates by explaining that  it extends                                            

only to cases in  which one of  the possible bases of  conviction

was legally erroneous.  See  id. at 51-52.  Griffin distinguishes                                                             

cases,  like  Turner,  which concern  convictions  that  may have                              

rested  on a basis that  was not supported  by the evidence, from

those concerning  convictions  possibly  resting  on  an  invalid

ground as  a result of an  error of law.   See id. at 58-59.   It                                                           

explains:

            In  one  sense   "legal  error"  includes

            inadequacy  of evidence  -- namely,  when

            the phrase  is used as  a term of  art to

                               -12-

             designate those  mistakes that it  is the

            business of judges (in jury cases) and of

            appellate courts to identify and correct.

            In this sense "legal error" occurs when a

            jury, properly instructed as to the  law,

            convicts on the basis of evidence that no

            reasonable   person   could   regard   as

            sufficient.   But in  another sense --  a                                                         

            more natural and less artful sense -- the                                                               

            term "legal error"  means a mistake about                                                               

            the  law,   as  opposed   to  a   mistake                                                               

            concerning  the  weight  or  the  factual                                                               

            import  of the evidence.  . . .  [W]e are                                             

            using "legal error" in the latter sense.

Id. at 59 (emphasis added).            

          Here,   Nieves-Burgos  asserts,   and  the   government

concedes, that there was insufficient evidence presented at trial

to support  the firearms  conviction with respect  to two  of the

three guns  listed in the charge, that is,  the two guns found in

the  cars.  Turner and Griffin tell us quite clearly that Nieves-                                        

Burgos'  verdict shall  not be  set  aside on  this basis  alone.

Rather,  the verdict  must stand  so long  as it  is sufficiently

supported  by the  evidence  concerning the  third  firearm.   We

therefore  must  determine  whether   the  evidence  sufficiently

supports Nieves-Burgos' conviction under 18 U.S.C.   924(c)(1) as

to the firearm found in room 311.

                               -13-

           Before we move on, however, we acknowledge that, before

Griffin, Yates appeared to set forth a rule that differed, if not                        

conflicted,  with the  long-standing general  rule recognized  in

Turner.  Prior to Griffin, we cited authority relying on Yates in                                                                        

support of the  proposition that a general verdict  returned on a

charge  asserting numerous grounds for conviction must be vacated

where one or  more of the grounds is  insufficiently supported by

the  evidence and it  is unclear whether  the jury  relied on the

insufficient ground.  See United States v. Moynagh, 566 F.2d 799,                                                            

804 (1st  Cir. 1977), cert.  denied, 435 U.S. 917  (1978) (citing                                             

United States v. Natelli, 527 F.2d 311, 325 (2d Cir. 1975), cert.                                                                          

denied, 425 U.S.  934 (1976) (citing Yates v.  United States, 354                                                                      

U.S.  298))  ("We  conclude that  Moynagh's  conviction  on these

counts   cannot  be  sustained  because  each  count  contains  a

specification  charging  concealment .  . .  and no  evidence was

introduced which supports  any fraudulent concealment . .  . .").

Griffin renders this proposition unsound.4                 

          We  note  that  this  type  of  issue  may,  in  proper

circumstances, be avoided:  "[I]f the evidence is insufficient to

support  an alternative  legal  theory  of  liability,  it  would

generally  be preferable  for the  court to  give  an instruction

removing that theory from the jury's consideration."   Griffin v.                                                                        

                                                  

4   We  have on  numerous occasions  cited Yates  in accord  with                                                          
Griffin's  interpretation of  it.   See,  e.g., United  States v.                                                                        
Ochs,  842  F.2d 515,  520  (1st  Cir.  1988); United  States  v.                                                                       
Kavazanjian, 623 F.2d  730, 739-40 (1st Cir. 1980); United States                                                                           
v. Driscoll, 449 F.2d 894, 898 (1st Cir. 1971), cert. denied, 405                                                                      
U.S. 920 (1972).

                               -14-

 United States,  502 U.S. at 60.  Aside from attempting to "unring                       

the   bell,"  however,  when  there  are  alternative  bases  for

conviction,  the trial  court may  be well  advised to  require a

proffer  of the evidence  linking a  particular defendant  with a

particular alternative.    Also, the  government should  consider

avoiding  alternative pleading  altogether,  or the  trial  court

might require  each  of the  alternatives  to be  considered  and

proved separately.

B.  Sufficiency of the Evidence          B.  Sufficiency of the Evidence                                         

          Nieves-Burgos argues that the evidence at trial was not

sufficient to support his conviction on count four  for violation

of 18 U.S.C.   924(c)(1) as to the firearm found in room 311.

          1.  Standard of Review                    1.  Standard of Review

          In reviewing challenges to the sufficiency of evidence,

"[o]ur  task is  to review  the record  to determine  whether the

evidence  and reasonable inferences  therefrom, taken as  a whole

and in the light most favorable to the prosecution, would allow a

rational  jury to  determine beyond a  reasonable doubt  that the

defendants  were guilty  as  charged."   United  States v.  Mena-                                                                           

Robles,  4 F.3d 1026, 1031 (1st Cir. 1993), cert. denied sub nom.                                                                          

Rivera v.  United States, 114 S.  Ct. 1550 (1994).   We therefore                                  

resolve  all credibility  issues in  favor of  the verdict.   See                                                                           

United  States  v.  Torres-Maldonado, 14  F.3d  at  100 (citation                                              

omitted).  We acknowledge that a jury's determination need not be

grounded in direct  evidence;  rather  it may be based  wholly on

circumstantial  evidence.   See id.   In  addition, the  evidence                                            

                               -15-

 "'need not exclude every reasonable hypothesis of innocence; that

is, the factfinder may decide among reasonable interpretations of

the evidence.'"   Id. (quoting United States v.  Cassiere, 4 F.3d                                                                   

1006, 1011 (1st  Cir. 1993) (citation omitted)).   The court must

satisfy  itself "that  the  guilty verdict  finds  support in  'a

plausible rendition of the record.'"  United States v. Echeverri,                                                                          

982  F.2d 675,  677 (1st  Cir.  1993) (quoting  United States  v.                                                                       

Ortiz,  966 F.2d 707,  711 (1st Cir. 1992),  cert. denied, 113 S.                                                                   

Ct. 1005 (1993)).

          2.  Analysis                    2.  Analysis

          Section 924(c)(1), 18 U.S.C., makes  unlawful the "use"

of  a firearm  "during  and  in relation  to"  any Federal  drug-

trafficking crime.   18 U.S.C.   924(c)(1).5   A conviction under

this section  results in a mandatory sentence of imprisonment for

a  term  of at  least five  years.   See  id.   Nieves-Burgos was                                                      

convicted of using  the firearm found in  room 311 during and  in

relation to the crime of possessing with the intent to distribute

the controlled substance cocaine.

          We   examine   the   evidence  to   determine,   first,

appellant's  possessory interest  in the  firearm  at issue,  see                                                                           

United States v.  Torres-Maldonado, 14 F.3d at 102 (citing United                                                                           

States v.  Harrison, 931 F.2d  65, 71 (D.C. Cir.),  cert. denied,                                                                          

502 U.S.  593 (1991))  ("in order to  establish that  a defendant

'used'   a  firearm  for  purposes  of  section  924(c)(1),  'the

government   must   prove   that   the  defendant   actually   or
                                                  

5  See supra note 2.                      

                               -16-

 constructively possessed it'"), and, second, whether there exists

"some  facilitative nexus  between the  weapon  and the  criminal

activity."  United States v.  Castro-Lara, 970 F.2d 976, 983 (1st                                                   

Cir. 1992), cert.  denied sub nom. Sarraff v.  United States, 113                                                                      

S. Ct. 2935 (1993).

            a.  Possession                      a.  Possession                                    

          Nieves-Burgos is alleged  to have been  in constructive

possession of the gun found in room 311.  Constructive possession

exists  when a person "knowingly has the power and intention at a

given time  to exercise  dominion and  control over  [a firearm],

either directly  or through others."   United  States v.  Torres-                                                                           

Maldonado, 14 F.3d at 102.                     

          The evidence indicates, though not overwhelmingly, that

Nieves-Burgos was in constructive possession of the firearm found

in  room  311.    The  evidence supports  the  existence  of  the

following  facts:  Nieves-Burgos rented and occupied room 311; he

was a direct participant in the drug distribution scheme; the gun

was found in a zippered bag, also containing $2,000 in cash, on a

couch in room 311; Nieves-Burgos was less than  two feet from the

gun.  Nieves-Burgos concedes in his brief that he "clearly was in

control of Room  311."  A jury reasonably could  infer from these

facts that  the cash found in the bag  that contained the gun was

drug trafficking proceeds, and that Nieves-Burgos, a principal in

the drug trafficking scheme who  concededly was in control of the

room, had  knowledge of what was in the  bag, and, because of his

                               -17-

 proximity to  the gun,  had the power  and intention  to exercise

dominion over it.

          Clearly,  there is evidence  in the record  that weighs

against this conclusion:   no witness could  link the gun  or the

bag  directly to  Nieves-Burgos; the  bag concealing the  gun was

zippered;    several  co-defendants  were  found  sitting  within

several  feet of the gun, and Gotay-Col n,  who was seated on the

couch, may  have been closer  to the gun than  was Nieves-Burgos.

Nonetheless, our role is not to weigh the evidence; we are merely

to ensure that  some evidence exists to  support sufficiently the

jury's  determination.  See United States  v. Mena-Robles, 4 F.3d                                                                   

at 1031.  Again, the evidence supports the inference that Nieves-

Burgos was  in constructive possession  of the gun:   He concedes

that he "clearly  was in control of Room 311"; he was a principal

with respect to the underlying offense  of possession with intent

to distribute; and, he was found near -- less than two  feet from

-- the gun.

          This  result  is consistent  with  Torres-Maldonado, in                                                                       

which we concluded that the evidence at trial was insufficient to

establish that  appellants Torres-Maldonado and  Gotay-Col n were

in constructive  possession of the  gun found  in room 311.   See                                                                           

United  States  v.  Torres-Maldonado,  14  F.3d  at 102-03.    We                                              

considered to  be significant the absence of evidence that either

appellant was involved in the drug  distribution scheme:  "Unlike

the  evidence against  the other  defendants .  . .  the evidence

against Torres-Maldonado and Gotay-Col n failed to  establish any

                               -18-

 connection between these  two defendants, on one  hand, and those

drug distribution transactions which appeared to involve guns, on

the other."   Id. at 102.   Again, the  evidence here shows  that                          

Nieves-Burgos was a  direct participant in the  drug distribution

scheme.

            b.  Facilitative Nexus                      b.  Facilitative Nexus                                            

          Use, as that term applies in   924(c)(1), requires more

than mere possession of a firearm, but does not require outwardly

apparent  utilization:   "[the] weapon  need  not be  brandished,

displayed or  discharged."   United States  v. Reyes-Mercado,  22                                                                      

F.3d 363, 367 (1st Cir. 1994) (citations omitted).   To sustain a

conviction under  this section  for the use  of a  firearm, there

must be shown "some facilitative nexus between the weapon and the

criminal activity."  Id. (citations omitted).                                   

          We  have stated that,  "'the government need  not prove

actual possession  by the  defendant, only that  the firearm  was

readily accessible for the defendant's use' and that '[p]lacing a

weapon  nearby to  protect  a  drug  operation comes  within  the

definition of  "used"' for purposes  of section 924(c)."   United                                                                           

States  v. Wight,  968 F.2d  1393, 1396  (1st Cir.  1992) (citing                          

United States  v. Abreu,  952 F.2d 1458,  1466 (1st  Cir.), cert.                                                                          

denied, 502 U.S. 994 (1992)).  "[W]here a drug  trafficker is not                

carrying  a gun  on his person,  but has one  nearby, the court's

critical concern is not whether the gun was 'instantly available'

or 'exclusively dedicated to the narcotics trade,' but whether it

was 'available for use' in  connection with the narcotics trade."

                               -19-

 United States v. Castro-Lara, 970 F.2d at 983.  Among the factors                                      

we examine in determining whether a  gun was available for use in

connection with a drug operation are the proximity of the  gun to

the drugs and  drug proceeds and the  availability of the  gun to

the defendant.  See, e.g., United States  v. Paulino, 13 F.3d 20,                                                              

26  (1st  Cir. 1994)  ("Drugs, drug  paraphernalia, and  a loaded

revolver   were  located  in  close  proximity  to  one  another.

[Appellant]  had  an  apparent  possessory  interest  in,  and  a

significant  degree  of control  over,  the premises.    On these

facts, a reasonable factfinder certainly could find the requisite

facilitative nexus .  . . ."); United States  v. Castro-Lara, 970                                                                      

F.2d at  983 ("Appellant was apprehended in his car, at the scene

of a drug pickup, with the gun inside the car's trunk. . . . [W]e

believe a rational jury was free to conclude that the location of

the firearm --  near a large sum  of cash, in close  proximity to

live ammunition, and at a place where  drugs were to be delivered

-- coupled with the timing -- [appellant] brought the gun to  the

airstrip in the  course of taking delivery of  a sizable quantity

of cocaine -- supported a finding that the firearm was 'available

for use' during and in relation to the drug trafficking crime.").

          There was testimony at trial  that the gun was found in

room 311 in a zippered bag less than two feet from Nieves-Burgos,

and  that also  found  in  the room  were  several quantities  of

cocaine,  bundles of cash,  and various instruments  and supplies

typically  utilized  for  packaging cocaine.    This  evidence is

sufficient to support a finding that the gun in room 311 was used

                               -20-

 by  Nieves-Burgos  to  protect  the  drugs of  which  he  was  in

possession.  Although there is evidence in the record that weighs

against  this conclusion, the  jury presumably considered  all of

the evidence and drew the  permissible inference that the gun was

used by  Nieves-Burgos during and  in relation to  his possession

with intent to distribute  cocaine, in violation of    924(c)(1).

See United States  v. Batista-Polanco, 927 F.2d 14,  17 (1st Cir.                                               

1991)   ("the    factfinder   may    decide   among    reasonable

interpretations of the evidence").

                            CONCLUSION                                      CONCLUSION

          Nieves-Burgos' conviction is  supported sufficiently by

the  evidence  and stands  without  error.    The  conviction  is

affirmed.

          Affirmed.                    Affirmed.                            

                               -21-
