US v. Fortes

• Decision Date: 14 January 1998
• Docket Number: No. 96-1981.,96-1981.
• Citation: 141 F.3d 1
• Parties: UNITED STATES, Appellee, v. Edwin FORTES, aka Charles Brookshire, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

141 F.3d 1

UNITED STATES, Appellee, v. Edwin FORTES, aka Charles Brookshire, Defendant, Appellant.

No. 96-1981.

United States Court of Appeals, First Circuit.

Heard July 29, 1997.

Decided January 14, 1998.

As Modified April 28, 1998.

Robert Godfrey, Hingham, MA, by appointment of the Court, for appellant.

Timothy Q. Feeley, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney and Antoinette E.M. Leoney, Assistant United States Attorney, Boston, MA, were on brief, for appellee.

Before SELYA and LYNCH, Circuit Judges, and POLLAK,^* Senior District Judge.

POLLAK, Senior District Judge.

This appeal challenges the conviction and the subsequent sentence of Edwin Fortes (a.k.a. Charles Brookshire). A four-count indictment, handed up on December 6, 1995, charged that on January 13, 1994 Fortes (1) was a felon in possession of firearms and ammunition (18 U.S.C. § 922(g)(1)); (2) possessed a firearm with an obliterated serial number (18 U.S.C. § 922(k)); (3) possessed cocaine with intent to distribute (21 U.S.C. § 841(a)(1)); and (4) used and carried firearms during and in connection with the cocaine possession alleged in count 3 (18 U.S.C. § 924(c)(1)). Prior to trial the fourth count was dropped. In May of 1996, having waived a jury trial, Fortes was tried to the bench on counts 1, 2 and 3. After a week's trial Fortes was found guilty on all three counts.

Fortes was sentenced in July of 1996. Finding that under count 1 — felon in possession of firearms and ammunition — Fortes was subject to enhanced penalties pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), and the armed career criminal sentencing guideline, U.S.S.G. § 4B1.4, the district court sentenced Fortes to a prison term of 262 months on count 1. The district court also imposed concurrent sentences of 60 months on count 2 and 262 months on count 3.

On appeal Fortes challenges several aspects of his conviction and sentence. Two of the issues he raises merit discussion. To these we now turn.

I.

Fortes argues that findings made by the district court in connection with the conviction under count 3 — possession of cocaine with intent to distribute — are incompatible with a verdict of guilty. Fortes' precise contention is that certain of the district court's findings are directly at odds with a conclusion that, within the intendment of 21 U.S.C. § 841(a)(1), he "knowingly" possessed the particular units of cocaine that he was charged with possessing.

The cocaine in question consisted of nine "jums" — wrapped packages of crack. Law enforcement officers executing a search warrant on January 13, 1994, at Fortes' aunt's apartment at 5 Cardington Street in the Roxbury section of Boston, found the jums on a bureau located in a guest room frequented by Fortes.¹ The search marked the culmination of several months of law enforcement efforts inquiring into drug-and-firearms-related activities of Fortes and others at the Roxbury apartment. These law enforcement efforts included two controlled drug transactions in which cocaine was sold at the Roxbury apartment to a confidential informant: in the first transaction, in September of 1993, Fortes was the seller; in the second transaction, in early January of 1994, a Fortes confederate was the seller.

The district court made extended findings with respect to the three counts of conviction — felon in possession of firearms and ammunition; possession of a firearm with an obliterated serial number; and possession of cocaine with intent to distribute. In order fairly to assess Fortes' challenge to his conviction on the cocaine-possession count it will be helpful to quote the entirety of the district court's findings on that count. To place those findings in proper context, the concluding portions of the district court's preceding discussion — the discussion of the two firearms counts — will also be set forth:

So with respect to Count 1, I find that the defendant did have constructive possession of the items alleged in Count 1.

Now, let me just say that possession may well have been joint. I'm not called upon to decide fully whether it was joint. It's sufficient that the defendant has possession. The evidence does indicate that it was joint with others, perhaps, because other people came and went at the same time.

And, of course, question of ownership is not at issue. Possession is to be determined apart from ownership, some preference as to whose guns they were and that is, I think, legally beside the point.

With respect to Count 2, Count 2 relates to the weapon with the obliterated serial number. That was the Interdynamic semiautomatic pistol. It was found in the right-hand bedroom and is one of the items that I conclude the defendant constructively possessed knowingly.

I reach essentially similar conclusion sic with respect to Count 3 which alleges the defendant possessed a controlled substance knowingly with the intent to distribute it.

First of all, I think it's clear that it's a controlled substance. I've read the report of one of the items. I don't know if it matters the other sic weren't analyzed, whether the one is cocaine base, I don't think it matters the others are not. I don't think it matters.

Applying the same principles of possession, I would conclude from defendant's participation in a drug sale in September that he knew that was a drug-selling place and that he intended to participate in it, intended to possess the drugs that were available for sale within the premises from time to time; and that as a willing, knowing participant in that conspiracy to sell drugs as well as firearms, the defendant knew that drugs, particularly cocaine base, would be available and would be sold.

And I find further that he had the intention to exercise control over — perhaps jointly with others — over such drugs as were in the apartment for sale at any given time through the date of the indictment, date alleged in the indictment. I'm sorry, through the date alleged in the Count 3 in the indictment.

I may say that I do not find that the government has proved beyond a reasonable doubt that the defendant knew of these specific nine items being on top of the bureau at the particular time.

There's not evidence that the defendant was there in such a time — in proximity to the search that he knew specifically that there were nine individually wrapped jums on top of the bureau.

I don't think that is necessary because of my conclusion that he knew of the presence of crack for sale in the premises generally and intended to possess that which was present.

But to the extent that may make any difference legally, I mention that; and I'm not convinced that he knew of those specific items. And I distinguish those from the firearms, for example, because I think much more likelihood, likely that that was a transitory condition, that nine individually wrapped jum doses would not remain very long on the top of a bureau whereas I think firearms stored in safes and behind — in briefcases behind cabinets, so on, so forth, were there for longer term storage.

But it's not clear who in the events of the day may have deposited those individual packages and for how long they were there. I could not find the defendant knew of those specifically, but I don't think that's necessary to the proof.

I think that it's sufficient for the government to have proved participation in the conspiracy which was the sale of cocaine, cocaine base, knowing that there would be a supply and that intended to participate in that by possessing and exercising control over the supply as it may been from time to time.

I find further that possession by the defendant was with the intent to distribute. I find from all the evidence that sales was sic going on, including his own participation in the sale and in addition from the evidence the defendant himself did not use cocaine or cocaine base so that the element — I find the government has proved possession with intention to distribute.

Fortes argues that the key to the district court's finding that he knowingly possessed cocaine was "that as a willing, knowing participant in that conspiracy to sell drugs as well as firearms, the defendant knew that drugs, particularly cocaine base, would be available and would be sold." Fortes goes on to point out that he was not charged with participation in a conspiracy. In arguing that the district court's characterization of him as a conspirator undercuts the district court's verdict on the possession count, Fortes invokes language of this court in United States v. Zavala Maldonado, 23 F.3d 4 (1st Cir.), cert. denied, 513 U.S. 975, 115 S.Ct. 451, 130 L.Ed.2d 360 (1994). Defendant Zavala — like Fortes in the case at bar — was charged with possession of cocaine with intent to distribute. And in Zavala's case, we pointed out that, "given that these offenses conspiracy, and aiding and abetting an attempt were not charged, it is hardly sufficient to say that this record contained evidence to support such a conviction," and we there went on to state that "the conviction for possession can stand only if a reasonable jury could find that Zavala did possess the cocaine within the meaning of 21 U.S.C. § 841." Id. at 6.

It is true that here, as in Zavala Maldonado, no conspiracy charge was laid against the defendant. Thus here, as there, a charge of possession could not be proved by demonstrating vicarious accountability — i.e., possession by a co-conspirator is not possession by the defendant where the defendant has not been charged with conspiracy. But — as in Zavala Maldonado, so here — proof of the defendant's possession rested on the defendant's own conduct, not on that of co-conspirators. To be sure, in the case at bar the district court referred to Fortes' participation in a "conspiracy to sell drugs as well as firearms," but the district court also referred to "defendant's participation in a drug sale in September of 1993," a datum from...