U.S. v. Wight

Citation968 F.2d 1393
Decision Date07 May 1992
Docket NumberNo. 91-2212,91-2212
PartiesUNITED STATES, Appellee, v. Phillip A. WIGHT, Defendant, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Martin K. Glennon with whom Martin K. Glennon Professional Ass'n was on brief for defendant, appellant.

Peter E. Papps, First Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., was on brief for appellee.

Before CYR, Circuit Judge, CAMPBELL, Senior Circuit Judge, and FUSTE, * District Judge.

FUSTE, District Judge.

After a jury trial, appellant Phillip Wight was convicted of four counts of a multi-count indictment charging both controlled substances and firearms violations. 1 On appeal, he argues that the evidence was insufficient to support his firearms convictions under 18 U.S.C. § 924(c)(1) (possession of a firearm during a drug trafficking crime) and 18 U.S.C. § 922(g)(1) (felon in possession of a firearm). Finding that there is sufficient evidence to sustain the convictions, we affirm.

I. Background

The facts giving rise to Wight's appeal, for the most part, are not in dispute. Codefendant Edward Dunbar was approached by an undercover police officer who sought to buy a large quantity of marijuana. After several days of searching for potential sources, Dunbar determined that appellant Wight could supply the potential buyers ten pounds of marijuana. On March 9, 1990, law enforcement agents made arrangements to purchase the controlled substance. Dunbar agreed to meet them at a Dunkin Donuts parking lot in Manchester, New Hampshire. At the initial meeting, Dunbar and Wight agreed to sell the marijuana to the agents later that day. After a telephone call between the parties, they met at a Burger King parking lot, also in Manchester. Wight arrived at the meeting in a van driven by codefendant Michael Fields. Wight was seated in the front passenger seat. Codefendant Dunbar arrived in a different vehicle. An undercover officer approached the passenger side of the van and asked Wight whether he had the marijuana. Wight turned around, pointed to a large plastic bag located behind him containing what appeared to be marijuana, and pulled out a small plastic sandwich bag containing a drug sample. At that point, the officer gave a signal and Wight, Dunbar, and Fields were arrested.

At the moment of the arrest, law enforcement personnel seized, but did not search, the van. The vehicle was taken to the Manchester police station, where an inventory search was conducted. During the search, police discovered an operable 9mm Interdynamic pistol. The weapon was located underneath some newspapers behind the two front seats of the van. The pistol was in a partially unzipped case with the opening facing the passenger seat of the van where appellant Wight sat.

Testimony at trial revealed that on the morning prior to the drug sale, Dunbar had brought the weapon to the residence shared by Wight and Fields. Dunbar gave the weapon to Fields, instructing him that it was available for use if necessary.

Based on these facts Wight, Dunbar, and Fields were indicted. While Dunbar pled guilty, Fields and Wight went to trial. Both Fields and Wight were convicted of the controlled substances counts; however, while the jury convicted Wight of the two firearms violations, they acquitted Fields of possessing the Interdynamic pistol during a drug trafficking crime. The two firearms convictions form the basis for Wight's appeal.

II. Discussion

Appellant's sole argument on appeal is that the evidence at trial was insufficient to support his convictions for carrying a firearm during or in relation to a drug trafficking crime 2 and for being a felon in possession of a firearm in or affecting interstate commerce. 3

In reviewing a sufficiency of the evidence challenge, this court will look to the evidence as a whole, including reasonable inferences drawn from the evidence, in the light most favorable to the government, seeking to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Abreu, 952 F.2d 1458, 1466 (1st Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1695, 118 L.Ed.2d 406 (1992); United States v. Sabatino, 943 F.2d 94, 97 (1st Cir.1991); United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.1991); United States v. Ruiz, 905 F.2d 499, 502 (1st Cir.1990) (same standard in Fed.R.Crim.P. 29 motion for judgment of acquittal). It is not our role to weigh witness credibility and we will resolve all such issues in favor of the government. Batista-Polanco, 927 F.2d at 17; United States v. Passos-Paternina, 918 F.2d 979, 983 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 1637, 113 L.Ed.2d 732 (1990), and cert. denied, --- U.S. ----, 111 S.Ct. 2809, 115 L.Ed.2d 981 (1991). Also, evidence sufficient to convict may be entirely circumstantial, with the factfinder remaining free to choose among reasonable interpretations of the evidence. Batista-Polanco, 927 F.2d at 17; United States v. McDowell, 918 F.2d 1004, 1010 (1st Cir.1990); United States v. Boylan, 898 F.2d 230, 243 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990).

A. Section 924(c)(1)

To establish a violation of 18 U.S.C. § 924(c)(1), the government had to prove beyond a reasonable doubt (1) that the firearm "was 'related to,' or played some other role in, the underlying crime"; and (2) that "the defendant must have 'used' or 'carried' the firearm." United States v. Torres-Medina, 935 F.2d 1047, 1048-49 (9th Cir.1991). Wight admits that he procured the marijuana at the request of Dunbar, was a passenger in the van which carried the marijuana, and engaged in the process of selling the drug to an undercover police officer at the time of his arrest. There is no controversy as to the fact that the Interdynamic 9mm pistol was found in the van used to transport the drugs only one day after the pistol had been delivered by Dunbar to the residence shared by Fields and Wight to be used if necessary. While this constitutes sufficient evidence to establish that the weapon was related to the drug crime, Wight's challenge goes to whether there was sufficient evidence to establish that he used or carried the firearm. Specifically, he argues that the government failed to prove beyond a reasonable doubt that he knew the weapon was in the van and, without such proof, the section 924(c)(1) count should not have been submitted to the jury. We disagree.

In Abreu, 952 F.2d at 1466, we found 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). See also United States v. Hadfield, 918 F.2d 987, 997-98 (1st Cir.1990) (in a "drug fortress" context, "the critical concern is the presence or absence of a facilitative nexus"), cert. denied, --- U.S. ----, 111 S.Ct. 2062, 114 L.Ed.2d 466 (1991); United States v. Payero, 888 F.2d 928, 929 (1st Cir.1989) (conviction sustained if possessor of a weapon intended it to be available for possible use during or immediately following the transaction); United States v. Featherson, 949 F.2d 770, 776 (5th Cir.) (sufficient for the government to show that the weapon "could have been used" to protect or facilitate the drug trafficking), cert. denied, --- U.S. ----, 112 S.Ct. 1771, 118 L.Ed.2d 430 (1992); United States v. Young-Bey, 893 F.2d 178, 181 (8th Cir.1990). Examining the circumstances surrounding the firearm's presence in the van, we find that there is sufficient evidence in the record to support a jury finding connecting the weapon to appellant Wight's drug trafficking.

It is undisputed that Dunbar originally delivered the firearm to the residence shared by Wight and Fields with the understanding that the weapon was for their use if necessary. Wight supplied the marijuana and played a principal role in the drug transaction. One day later, the firearm was found in the van used to transport the drug to the place where the drug transaction was held. When found, the weapon was in a partially-opened case, facing appellant and within his grasp. Given these facts, it was reasonable for a rational trier of fact to infer that appellant knew the weapon's location, had ready access to it, and possessed it in the van to facilitate the drug deal.

Appellant also suggests that the jury's acquittal of codefendant Fields with respect to Count IX for a section 924(c)(1) violation is further evidence that the government failed to establish the necessary elements beyond a reasonable doubt. The government argues that even if we were to view the verdicts as inconsistent, based on the reasoning of United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), inconsistency is not a sufficient reason to set aside the verdict provided that sufficient evidence supports the count of conviction. See also United States v. Bernal-Rojas, 933 F.2d 97, 100 (1st Cir.1991); United States v. Bucuvalas, 909 F.2d 593 (1st Cir.1990) (rationale of Powell applied where two coconspirators involved). We have found that there was sufficient evidence to support appellant's conviction pursuant to section 924(c)(1). In addition, the Wight and Fields section 924(c)(1) verdicts are, in fact, consistent. Obviously, the jury found that Wight's leadership role in the criminal activity, coupled with the fact that the weapon appeared to be more accessible to him than it was to Fields, made it more likely that it was he, and not Fields, who sought the benefit of the weapon's presence during the drug transaction. Appellant's conviction for possessing a firearm during the commission of a drug offense, 18 U.S.C. § 924(c)(1), shall stand.

B. Section 922(g)(1)

Appellant also challenges his...

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