U.S. v. Benevides

• Decision Date: 11 December 1992
• Docket Number: No. 92-1737,92-1737
• Parties: UNITED STATES, Appellee, v. Joseph S. BENEVIDES, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 629

985 F.2d 629

UNITED STATES, Appellee, v. Joseph S. BENEVIDES, Defendant, Appellant.

No. 92-1737.

United States Court of Appeals First Circuit.

Heard Dec. 11, 1992.

Decided Feb. 11, 1993.

Randy Olen with whom John M. Cicilline was on brief, for defendant, appellant.

Margaret E. Curran, Asst. U.S. Atty., with whom Lawrence D. Gaynor, Asst. U.S. Atty. and Lincoln C. Almond, U.S. Atty., were on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

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. 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 considered purchasing. Ramirez expressed interest.

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 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 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, 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, 5811 ², and 5812(a) ³ of the National Firearms Act ("the Act"), all in violation of 18 U.S.C. § 371. ⁴

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. 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 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, 984 F.2d 1299, 1300 (1st Cir.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, 981 F.2d 613, 616 (1st Cir.1992). The unlawful agreement may be either express or tacit. Tejeda, 974 F.2d at 212. Its existence may be proven 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, at 618; United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.), cert. denied, 492 U.S. 910, 493 U.S. 832, 109 S.Ct. 3227, 110 S.Ct. 105, 106 L.Ed.2d 576, 107 L.Ed.2d 68 (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, 68 S.Ct. 248, 256, 92 L.Ed. 154 (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...