
USCA1 Opinion

	




          February 11, 1993                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1737                                    UNITED STATES,                                      Appellee,                                          v.                                 JOSEPH S. BENEVIDES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                          Bownes, Senior Circuit Judge, and                                  ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            Randy  Olen  with  whom  John  M.   Cicilline  was  on  brief  for            ___________              ____________________        appellant.            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Lawrence D.  Gaynor, Assistant United  States Attorney and  Lincoln C.        ___________________                                         __________        Almond, United States Attorney, were on brief for appellee.        ______                                 ____________________                                  February 11, 1993                                 ____________________                      STAHL, Circuit Judge.  At his jury trial, defendant                             _____________            Joseph S. Benevides was convicted of conspiracy to transfer a            firearm  illegally.    On  appeal,  defendant  challenges the            sufficiency   of  the  evidence  supporting  his  conviction.            Finding  sufficient evidence  to sustain  the  conviction, we            affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      We summarize the evidence in a light most favorable            to the government.  United States v. Nueva, 979 F.2d 880, 881                                _____________    _____            (1st  Cir. 1992).  Defendant was employed at Handy and Harmon            Jewelry  Company  ("Handy  and Harmon")  in  East Providence,            Rhode Island.  On May 15, 1991, Officer Genaro Ramirez of the            East Providence Police Department began undercover work as an            employee  of  Handy  and   Harmon.    Although  his  original            assignment was  to investigate complaints of  gold theft from            the  company,  Ramirez  began  investigating  other  possible            criminal  activity as  well.   As part of  his investigation,            Ramirez told Yee Yang, another employee  of Handy and Harmon,            that  he was  interested  in purchasing  a  gun for  his  own            protection.  Soon thereafter, defendant approached Ramirez at            work  and told  him that  he had  a friend  who could  supply            Ramirez with guns.  Defendant mentioned specifically that his            friend  had a  "beautiful"  sawed-off shotgun  that defendant            himself had consideredpurchasing.  Ramirezexpressed interest.                                         -2-                                          2                      On June 27, 1991, defendant advised Ramirez that he            had  made arrangements for  Ramirez to meet  his friend after            work.  Ramirez was reluctant  to meet defendant's friend that            day  because  he  had  advised neither  his  supervisors  nor            federal  officers from  the  Bureau of  Alcohol, Tobacco  and            Firearms  of the  meeting.   Defendant  was very  persistent,            however, and for  the sake of the investigation, Ramirez felt            he had no choice but  to go.  Defendant and Ramirez  drove in            separate cars to a  liquor store parking lot where  defendant            had arranged to meet his friend, Hans Lunder ("Smitty").                       Smitty, accompanied  by his  wife,  arrived at  the            parking  lot in a black van.  Defendant introduced Ramirez to            Smitty and  his wife.   After introductions,  defendant asked            "Why don't you  guys get to business[?]"  In  the presence of            defendant, Ramirez told Smitty that he had no money with him,            but  that  he  was  interested in  purchasing  the  sawed-off            shotgun.  In the course of the  conversation, defendant asked            Smitty  if Smitty had the  shotgun with him.   Smitty replied            that he did.   Smitty  mentioned that he  could also  provide            Ramirez with a .357 handgun, although he did not have it with            him.                        Ramirez  then asked  to  see the  shotgun.   Smitty            disappeared  momentarily and returned.   With defendant still            present, Smitty told Ramirez  to proceed to a white  car that            was parked about twenty-five feet away in the parking lot, to                                         -3-                                          3            get  into the  passenger  side, and  to  "make it  look  cool            because of the cops."                        Ramirez  proceeded   to  the  car   alone,  leaving            defendant with Smitty and his wife.  Upon getting in the car,            Ramirez met William  Dawson.  Dawson showed  Ramirez a sawed-            off  shotgun, and assured him that it functioned.  Dawson and            Ramirez agreed on a price of $200 for the gun.   Ramirez told            Dawson that  he had no money,  but that when he  was ready to            purchase the gun, he would let Dawson know through defendant.                      Ramirez then returned  without the gun  to Smitty's            van.  With defendant still  present, Ramirez told Smitty that            he would  let Smitty  know,  through defendant,  when he  had            enough money to buy the sawed-off shotgun.                        Less  than  one  month  later, on  July  22,  1991,            defendant approached Ramirez  and asked him  if he was  still            interested  in  buying  the  sawed-off shotgun  or  the  .357            handgun that Smitty had  mentioned.  When Ramirez replied  in            the  affirmative,  defendant  said  that he  would  make  the            necessary  arrangements  for  the  purchases  by  telephoning            Smitty.                        Two days later,  on July  24, defendant  approached            Ramirez at work and told  him that the deal had been  set for            the  following day.  The next day, July 25, defendant advised            Ramirez that  the deal was set  for later that day,  but that                                         -4-                                          4            defendant  would have to contact  Smitty to make  sure of the            time and  place of  the meeting.   That afternoon,  defendant            approached Ramirez to tell him that he had spoken with Smitty            and  that Smitty had arranged a meeting for that afternoon at            the  same liquor  store  parking lot  where  the parties  had            previously met.    Defendant  stated  that he  would  not  be            present because he had to buy parts for his truck.  Defendant            said that Smitty would not be present either, but that Dawson            would arrive with both the shotgun and the .357 handgun.                        Ramirez  arrived alone  at the  parking lot  at the            appointed  time  and  found  Dawson  standing  outside  of  a            minivan.   Dawson  told  Ramirez that  he  had the  sawed-off            shotgun which  Ramirez had previously seen,  and that another            person,  located  across the  street  from  where Dawson  and            Ramirez  were standing,  had the  .357 handgun  which Ramirez            could purchase.                        Ramirez began haggling with Dawson about the  price            of the shotgun.   Dawson said that he could  go no lower than            $170 because Smitty  was getting $50  of the purchase  price.            When asked whether defendant was receiving any portion of the            money, Dawson replied that he was not.  Ramirez purchased the            gun from Dawson for $170.                       After placing the shotgun in  the trunk of his car,            Ramirez returned  to Dawson's minivan and  inquired about the            .357  handgun.   Dawson directed  Ramirez across  the street,                                         -5-                                          5            where Ramirez met a man named "Bill" who showed  him the .357            handgun.  Ramirez and Bill negotiated a price of $450 for the            .357  handgun.   Subsequently, Bill  departed the  scene, and            though  Ramirez expected  his return, Bill  never reappeared.            Ramirez left without purchasing the handgun.                           The following day at  work, defendant asked Ramirez            if he had purchased  a gun, and  Ramirez replied that he  had            purchased  the shotgun.  Five days later, on July 31, Ramirez            told defendant that he had sold the shotgun for a profit.  On            August 1, Ramirez told  defendant he was still  interested in            the .357 handgun.  From a telephone at work, defendant called            Smitty, and handed  the phone to Ramirez.   Smitty apologized            to  Ramirez for  the  disappearance  of  Bill, and  asked  if            Ramirez was satisfied with his purchase of the shotgun.                        On August 9,  1991, defendant  again called  Smitty            from  work, and again handed  the phone to  Ramirez.  Ramirez            asked about the .357  handgun, and Smitty told him  that Bill            had gone to Florida,  and that he  could not get the  handgun            until  a later date.  That day, defendant gave Smitty's phone            number to Ramirez.                      On October  17, 1991,  defendant was  arrested. The            indictment against defendant  charged him with conspiracy  to            transfer a  firearm in  violation of  26 U.S.C.     5861(e)1,                                            ____________________            1.  26 U.S.C.   5861(e)  makes it unlawful for any  person to            "transfer  a firearm in  violation of the  provisions of this            chapter."                                         -6-                                          6            58112,  and  5812(a)3  of  the National  Firearms  Act  ("the            Act"), all in violation of 18 U.S.C.   371.4                                            ____________________            2.  26 U.S.C.   5811 provides in relevant part:                 (a) Rate.   There  shall be levied,  collected, and                     Rate.                 paid on firearms transferred  a tax at the rate  of                 $200 for each firearm transferred . . . .                 (b) By  whom paid.   The tax imposed  by subsection                     By  whom paid.                 (a)  of   this  section   shall  be  paid   by  the                 transferor.            3.  26 U.S.C.   5812(a) provides:                 A firearm  shall not be transferred  unless (1) the                 transferor  of  the  firearm  has  filed  with  the                 Secretary  [of the Treasury] a written application,                 in duplicate, for the transfer and registration  of                 the firearm  to the  transferee on  the application                 form prescribed  by  the  Secretary;  (2)  any  tax                 payable on the transfer is paid as evidenced by the                 proper  stamp affixed  to the  original application                 form;  (3)  the  transferee  is  identified in  the                 application form  in such  manner as  the Secretary                 may by regulations prescribe, except that, if  such                 person  is an  individual, the  identification must                 include  his fingerprints  and his  photograph; (4)                 the transferor of the  firearm is identified in the                 application form  in such  manner as the  Secretary                 may  by regulations prescribe;  (5) the  firearm is                 identified in  the application form in  such manner                 as the Secretary may by regulations prescribe;  and                 (6) the  application form shows that  the Secretary                 has approved the  transfer and the  registration of                 the firearm to the transferee.   Applications shall                 be denied if the  transfer, receipt, or  possession                 of  the  firearm  would  place  the  transferee  in                 violation of the law.            4.  18 U.S.C.   371 provides in relevant part:                 If two  or more  persons conspire either  to commit                 any  offense  against  the  United  States,  or  to                 defraud the United States, or any agency thereof in                 any manner or for  any purpose, and one or  more of                 such persons do any act to effect the object of the                 conspiracy,  each  shall  be fined  not  more  than                                         -7-                                          7                      At trial, the government's evidence showed that the            gun  which Ramirez purchased from Dawson was a firearm within            the  meaning  of  26  U.S.C.      5845(a)(2),5  that  it  was            unregistered,   and  that  it  was  transferred  without  the            required application  to transfer and without  payment of the            required transfer tax.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      Defendant   challenges   the  sufficiency   of  the            evidence  supporting  his  conviction.    More  specifically,            defendant argues  (1) that  there  was insufficient  evidence            that  he entered  into an  agreement to  commit the  unlawful                                            ____________________                 $10,000 or imprisoned not  more than five years, or                 both.            5.  26 U.S.C.   5845(a)(2) provides:                 The  term  "firearm" means  a  weapon  made from  a                 shotgun if  such weapon as modified  has an overall                 length  of  less  than 26  inches  or  a  barrel or                 barrels of less than 18 inches in length.            The weapon which was transferred was a modified  shotgun with            an  overall length of twenty  one and one-half  inches, and a            barrel length of twelve and one-half inches.                                           -8-                                          8            act,6  and (2) that he was  indifferent to the outcome of the            conspiracy.                       In reviewing  a claim of  insufficient evidence, we            view the evidence in the light most favorable to the verdict,            and determine  whether a  rational trier  of fact  could have            found  guilt beyond  a  reasonable doubt.   United  States v.                                                        ______________            Tejeda, 974 F.2d 210, 212 (1st Cir. 1992).            ______                      "The  `essence'  of conspiracy  is an  agreement to                                                             _________            commit a crime."   United States v. Moran, No.  91-1772, slip                               _____________    _____            op. at 3  (1st Cir.  Jan. 20, 1993)  (emphasis in  original).            Thus, a  sustainable  conspiracy conviction  requires  "proof            beyond a  reasonable doubt that the  conspirators intended to            agree and to commit whatever substantive criminal offense may            have been  the object of  their unlawful agreement."   United                                                                   ______            States v. Cruz, No. 91-1047, slip op. at 7 (1st Cir. Dec. 18,            ______    ____            1992).    The unlawful  agreement  may be  either  express or            tacit.  Tejeda, 974 F.2d at 212.  Its existence may be proven                    ______                                            ____________________            6.  In that part  of his  brief which argues  that there  was            insufficient evidence of an agreement, defendant also asserts            that the  government's evidence failed  to show that  he "had            the  necessary intent to commit the substantive offense."  To            the  extent that  this statement  is an  attempt to  raise an            issue  other than  the  sufficiency of  the  evidence, it  is            plainly inadequate to warrant our review.  We have repeatedly            warned  parties that  "issues  adverted to  in a  perfunctory            manner,   unaccompanied   by   some   effort   at   developed            argumentation, are deemed waived."  United States v. Zannino,                                                _____________    _______            895  F.2d 1,  17  (1st Cir.),  cert.  denied, 494  U.S.  1082                                           _____  ______            (1990).  Accordingly, we decline to engage in  speculation or            to forge  beyond  the line  of  argument that  defendant  has            explicitly pursued in his appeal.                                           -9-                                          9            by direct or  circumstantial evidence.   Id.   Moreover,  the                                                     ___            government is not  required to prove that the  defendant knew            about, or took part in, all aspects of the conspiracy.  Cruz,                                                                    ____            slip  op. at  8; United States  v. Rivera-Santiago,  872 F.2d                             _____________     _______________            1073, 1079 (1st Cir.),  cert. denied, 492 U.S. 910,  493 U.S.                                    _____ ______            832 (1989).  All that is required is that the government show            "`the  essential nature  of  the plan  and the  [defendant's]            connection  with it.'"    Id. (quoting  Blumenthal v.  United                                      ___           __________     ______            States,  332 U.S.  539, 557  (1947)).   The record  before us            ______            discloses ample evidence to support defendant's conviction of            conspiring to transfer a firearm illegally.                      The  government's  evidence  showed that  defendant            approached Ramirez  and told  him  about a  friend who  could            supply guns, that defendant arranged the first meeting in the            parking lot,  that he persisted  in bringing  Ramirez to  the            first meeting, that he arrived at the first meeting and asked            Smitty  whether  Smitty  had  brought the  shotgun,  that  he            remained in  the parking lot with Smitty throughout the first            meeting, that he approached Ramirez about the second meeting,            that  he  arranged  the  second  meeting  when  the  gun  was            transferred, and that he continued  to phone Smitty after the            transfer.  In our view, such evidence is more than sufficient            for a reasonable  jury to have inferred  an agreement between                                         -10-                                          10            Smitty  and  defendant  to  transfer  the  gun  to  Ramirez.7            Accordingly,   we   find  defendant's   sufficiency  argument            unpersuasive.                                            ____________________            7.  In  his  motion to  the  district court  for  judgment of            acquittal,  and  again on  appeal,  defendant  has relied  on            United States  v. Tyler, 758 F.2d  66, 69 (2d Cir.  1985), to            _____________     _____            argue  that he merely helped a willing buyer locate a willing            seller.   As  the district  court properly  noted in  denying            defendant's motion, however, Tyler differs significantly from                                         _____            the case before us.                  In Tyler, the defendant met an undercover police officer                    _____            who  expressed an  interest in  purchasing drugs.   Defendant            Tyler then approached drug dealers in the street on behalf of            the officer.    Eschewing  the  first dealer  he  met,  Tyler            arranged for  the officer  to purchase heroin  from a  second            dealer.  There was no evidence that Tyler knew either seller.            Finding that "[t]he evidence adduced by the government merely            shows that  Tyler  helped a  willing buyer  locate a  willing            seller,"  id.  at 69,  the  Second  Circuit reversed  Tyler's                      ___            conspiracy   conviction,   reasoning  that   "such  evidence,            standing alone, is insufficient to establish the existence of            ________ _____            an agreement between [Tyler] and the  seller."  Id. (emphasis                                                            ___            supplied).                   In  the  instant case,  the government's  evidence shows            that  defendant  approached  Ramirez   at  work  on   several            occasions regarding  the  transfer, that  he  placed  several            phone calls,  arranged two  meetings, and attended  the first            meeting.   Therefore, unlike  the spontaneous sale  in Tyler,                                                                   _____            which provided  no evidence of an agreement between Tyler and            the seller, the record before us presents ample evidence from            which  the  jury  could   have  found  an  agreement  between            defendant and Smitty to transfer the shotgun.                 Defendant further  argues  that the  district court,  in            reaching its decision that Tyler did not apply, unduly relied                                       _____            on  the  government's  assertion that  defendant  "initiated"            discussions  about  the  gun.    Our  review of  the  record,            however, shows  that the district court did  not limit itself            to evidence regarding the  initiation of the sale.   Instead,            the district court properly considered all of the evidence of            an   agreement,  including   defendant's  phone   calls,  his            arrangement of the meetings  and his later conversations with            Ramirez about the transfer, when it denied defendant's motion            for judgment of acquittal based on Tyler.                                               _____                                         -11-                                          11                      Defendant's second argument suffers a similar fate.            A  conspiracy  conviction  will   not  be  sustained  if  the            government's evidence shows that a defendant "was indifferent            to the [conspiracy's] outcome  altogether."  United States v.                                                         _____________            Aponte-Suarez,  905  F.2d 483,  491  (1st  Cir. 1990),  cert.            _____________                                           _____            denied,  111  S.  Ct. 531  (1990),  111  S.  Ct. 975  (1991).            ______            Instead,  "[a]n  accused must  `in  some  sense promote  [the            conspiracy] himself, make  it his  own, have a  stake in  its            outcome.'"  Id. (quoting  United States v. Falcone, 109  F.2d                        ___           _____________    _______            579, 581 (2d Cir.), aff'd, 311 U.S. 205 (1940)).  In the case                                _____            at bar, there was  evidence that defendant approached Ramirez            on  numerous   occasions,  planned  meetings,   persisted  in            bringing them about,  and asked about  the transfer after  it            occurred.  Far from showing indifference, this evidence tends            to  indicate  that defendant  actively promoted  the transfer            which  underlies  his  conviction.    Accordingly, we  reject            defendant's contention that a reasonable jury only could have            found  that   he  was  indifferent  to  the  outcome  of  the            conspiracy.8                                             ____________________            8.  In arguing  that he  was indifferent to  the conspiracy's            outcome, defendant relies almost exclusively on the fact that            he  received no money for the transfer.  However, a defendant            "may  be guilty  of  participation in  a criminal  conspiracy            without actually profiting from or having any financial stake            in  it."  United States v. Alemany  Rivera, 781 F.2d 229, 237                      _____________    _______________            n.9 (1st Cir. 1985), cert. denied, 475 U.S. 1086 (1986).  See                                 _____ ______                         ___            also Aponte-Suarez, 905 F.2d at 491.  Simply put, in the face            ____ _____________            of the  aforementioned evidence,  we do not  find defendant's            lack of a financial stake in the  sale of the shotgun to be a            sufficient basis for overturning the jury's verdict.                                         -12-                                          12                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For the foregoing  reasons, defendant's  conviction            is affirmed.  Affirmed.                          ________                                         -13-                                          13
