United States v. Berríos-Bonilla

• Decision Date: 13 May 2016
• Docket Number: No. 15–1574.,15–1574.
• Citation: 822 F.3d 25
• Parties: UNITED STATES of America, Appellee, v. Migdoel BERRÍOS–BONILLA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

822 F.3d 25

UNITED STATES of America, Appellee

v.Migdoel BERRÍOS–BONILLA, Defendant, Appellant.

No. 15–1574.

United States Court of Appeals, First Circuit.

May 13, 2016.

Rafael F. Castro–Lang, for appellant.

Nicholas Warren Cannon, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before HOWARD, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.

TORRUELLA

, Circuit Judge.

The police found a machinegun under the passenger seat of a truck belonging to defendant-appellant Migdoel Berríos–Bonilla (“Berríos”). After fleeing the scene of the crime, Berríos contacted one of the individuals who had been in the car with him and told her to lie about knowing him. Berríos eventually turned himself in and a jury convicted Berríos for two weapons possession counts under 18 U.S.C. § 922, subsections (g)(1) and (o )(1)

, as well as witness tampering in violation of 18 U.S.C. § 1512(b)(1). Appealing from the United States District Court for the District of Puerto Rico, Berríos challenges the sufficiency of the evidence supporting his convictions and alleges several procedural errors. Unconvinced by Berríos's arguments, we affirm.

I. Background

On the night of August 16, 2014, Berríos lent his Ford pickup truck to Rolando Torres–Fernández (“Torres”). Torres picked up five other men and met up with María Rivera–Mulero (“Rivera”) and Verónica Álamo–Gómez (“Álamo”) at a bridge. Accompanied by the five unidentified males, Torres drove Berríos's truck to a bar to meet Berríos, while Rivera and Álamo followed in Rivera's car.

Berríos, Torres, Rivera, Álamo, and two of the unidentified men left and drove in Berríos's truck to a second bar. At the second bar, Berríos and Álamo danced and Álamo felt something hard around the back of Berríos's waist although she could not tell what it was. The group then left the bar to go to a restaurant. After eating, the two unidentified men (who had been sitting in the front driver and passenger seats) were dropped off.

Torres drove the remaining members of the group to a motel: Rivera was in the front passenger seat, Berríos sat behind the driver seat, and Álamo sat behind the passenger seat. Once they arrived at the motel, Torres exited and began talking to a motel employee while Berríos, Álamo, and Rivera waited in the car. Berríos left the truck when he noticed Torres and the motel employee arguing. Berríos asked Torres what he was doing and said they should leave. The group drove away from the motel (sitting in the same seats of the car as before), but the motel employee called the police to report the incident¹ and gave a description of Berríos's truck.

Three Puerto Rico Police Department officers responded to the call. The officers spotted a truck matching the dispatcher's description and followed it until it stopped in front of a restaurant. Álamo had spilled food on herself and exited the truck from the rear passenger-side door to clean up. One of the officers, Ángel Hernández–Nieves (“Officer Hernández”), exited the police car and began approaching the truck. As Officer Hernández neared, he saw Berríos stick his head out of the open rear passenger-side door and look around. Officer Hernández then announced himself and told everyone to exit the vehicle. Berríos fled, exiting from the rear driver-side door. Officer Hernández pursued Berríos but was unable to catch him.

Álamo, Rivera, and Torres remained at the scene. A second officer asked Torres to exit the vehicle and stand at the back of the truck on the passenger side. At that point, the officer noticed through the open rear passenger-side door a firearm sticking out from underneath the passenger seat. Upon further examination, the police concluded it was a Glock pistol modified to shoot automatically. The police subsequently searched Berríos's truck and found two magazines under the same seat as the pistol, Berríos's driver's license inside a pocket on the rear passenger-side door, and a cellphone inside a pocket on the rear driver-side door. They arrested Álamo, Rivera, and Torres.

Álamo was released and subsequently spoke with Berríos twice over the phone. In one conversation, Berríos told Álamo “[t]hat if [she] was asked about him [she] should say [she] didn't know who he was” and that “everything is [Torres], is from him.” Berríos eventually turned himself in to the police on August 25, 2014.

Berríos was charged with possession of a firearm by a prohibited person and possession of a machinegun as well as witness tampering. A jury found Berríos guilty on all counts. This timely appeal followed.

II. Sufficiency Claims

Berríos first argues that the Government presented insufficient evidence to convict him on all three counts. This court “review[s] the sufficiency of the evidence for a conviction de novo, ” drawing “all reasonable inferences in the light most favorable to the prosecution.” United States v. Rosado–Pérez, 605 F.3d 48, 52 (1st Cir.2010)

. We conclude Berríos has failed to meet this rigorous standard.

A. Weapons Charges

Berríos stipulated to all but the knowledge element of his weapons possession charges.² He argues, as he did at trial, that the Government failed to prove beyond a reasonable doubt that he knowingly possessed the machinegun found in his vehicle.

“Knowing possession of a firearm may be proved through either actual or constructive possession.” United States v. Williams, 717 F.3d 35, 39 (1st Cir.2013)

. An individual constructively possesses something when he or she “knowingly has the power and intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Ocampo–Guarin, 968 F.2d 1406, 1409 (1st Cir.1992) (quoting United States v. Lamare, 711 F.2d 3, 5 (1st Cir.1983) ). A jury may infer knowledge from circumstantial evidence. United States v. Ridolfi, 768 F.3d 57, 62 (1st Cir.2014). “For constructive possession of a firearm in particular, the requisite knowledge and intention can be inferred from circumstances ‘such as a defendant's control over the area where the contraband is found....’ ” Id. (quoting United States v. McLean, 409 F.3d 492, 501 (1st Cir.2005) ). In such a case, the record “must contain evidence of ‘some action, some word, or some conduct that links the individual to the [firearm] and indicates that he had some stake in it, some power over it.’ ” Id. (alteration in original) (quoting McLean, 409 F.3d at 501 ).

Contrary to Berríos's arguments, the Government did not rely on his mere proximity to the weapon to prove possession. Rather, it presented strong circumstantial evidence connecting Berríos to the machinegun and ruling out the other potential sources of the weapon. Drawing all inferences in the light most favorable to the prosecution, the timeline of events unfolded as follows: the police pulled up behind Berríos's vehicle; Álamo exited the car from the rear passenger-side door; Berríos stuck his head out the rear passenger-side door to look around; Berríos saw Officer Hernández; and Berríos ran out the rear driver-side door. This sequence of events places Berríos as the last person to occupy the rear passenger seat, close to where the police found the machinegun. Moreover, the Government presented additional evidence connecting Berríos to the rear passenger seat, including that his driver's license was in a pocket inside the rear passenger side door. A reasonable jury could accept this testimony and conclude that Berríos saw the police, became worried about them finding the machinegun on his person, and placed it in the most convenient hiding place inside the car before he fled.

This conclusion is further strengthened by two observations made by Álamo: (1) that she felt an unidentified hard object around the back of Berríos's waist earlier that night and (2) that she had not seen the machinegun until her arrest. Álamo sat in the rear passenger seat two times before the gun was discovered—on the drive from the second bar to the restaurant and from the restaurant to the truck's ultimate stopping place. The police testified (and the trial exhibits—photographs of the truck's interior—show) that the machinegun was not fully under the passenger seat, but sticking out part of the way.

The fact Álamo did not notice the machinegun earlier strongly suggests it was not under the passenger seat until she exited the vehicle and Berríos sat there. This, in turn, helps rule out any of the unidentified men or Torres and Rivera (who were sitting in the front seats) as the machinegun's owner.

We also note that the Government presented evidence of Berríos's consciousness of guilt. Berríos argues that he fled because he was on probation and did not want to be associated with Torres's actions at the motel. We reject Berríos's contention that an innocent explanation was equally as likely as a guilty one in light of the above-mentioned evidence. See Bourjaily v. United States, 483 U.S. 171, 179–80, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)

(“[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it.”). We also note that Berríos's subsequent attempt to have Álamo deny knowing him further strengthens the inference that Berríos was conscious of his guilt.

Finally, we reject Berríos's argument that the numerousness of the truck's occupants created a reasonable doubt as to who placed the machinegun under the passenger seat. The Government presented evidence that the machinegun did not belong to Torres because another firearm was found under the driver's seat. As we previously stated, the timeline of events creates a reasonable inference that the machinegun was not under the passenger seat before the police arrived and was likely placed there by Berríos. We also find it dubious that those men would have left the machinegun there after they were dropped off. “[F]...