U.S. v. Chairez

• Decision Date: 30 January 1995
• Docket Number: No. 92-4095,92-4095
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio CHAIREZ, also known as Joel Chairez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 823

33 F.3d 823

UNITED STATES of America, Plaintiff-Appellee, v. Antonio CHAIREZ, also known as Joel Chairez, Defendant-Appellant.

No. 92-4095.

United States Court of Appeals Seventh Circuit.

Argued Nov. 17, 1993.

Decided Aug. 29, 1994.

Rehearing and Suggestion for Rehearing En Banc

Denied Jan. 30, 1995.

Rodney Cubbie (argued), Office of the U.S. Atty., Milwaukee, WI, for plaintiff-appellee.

Richard L. Zaffiro, Wauwatosa, WI (argued), for defendant-appellant.

Before PELL, CUDAHY and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

Antonio Chairez was convicted for violating 18 U.S.C. Sec. 924(c), after a loaded gun was discovered under the passenger seat of a car in which Chairez had been sitting. Pursuant to a bench trial the district court found that Chairez had personally possessed the firearm. We have determined that the evidence was insufficient to establish Chairez' direct personal liability and remand for a determination whether Chairez may be guilty under the Pinkerton doctrine.

I.

Chairez was sitting in the passenger seat of a 1985 Oldsmobile Cutlass driven by Edgar Cruz; the car contained twenty pounds of marijuana. Cruz and Chairez arrived at 1713 West Becher in Milwaukee where Jacobo Huerta waited. Huerta had already arranged the sale of the marijuana to Raymond Melick. Unbeknownst to Huerta, Melick was a Drug Enforcement Agency (DEA) agent. Several other DEA agents, and Detective Thomas Gorecki of the City of Milwaukee Police, knowing of the planned sale, were engaged in surveillance of the area. After Huerta retrieved the marijuana from the Oldsmobile, the Oldsmobile circled the area for the next hour and one-half. On one occasion Cruz and Chairez left the car and stood in a nearby alley.

Members of the DEA Task Force and Detective Gorecki eventually stopped the Oldsmobile. After they removed Cruz and Chairez from the car, Detective Gorecki reached under the front seat on both the driver's side and the passenger side. He recovered a loaded .38 caliber Rossi handgun from a place approximately six inches under the passenger seat. ¹

The car was not registered to either Cruz or Chairez; it was registered to an unidentified woman. The government did not investigate her or learn anything about her relationship to Cruz or Chairez. There was a serial number on the gun, but no check was performed on the identity of the owner due to the age of the revolver. There were no fingerprints on the gun. No one spoke to Chairez or Cruz about the gun.

Chairez was charged in a three-count indictment with conspiring to possess with intent to distribute twenty pounds of marijuana, in violation of 21 U.S.C. Secs. 841(a)(1) and 846, distributing twenty pounds of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1), and knowingly using or carrying a firearm during or in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c)(1) and (2). Pursuant to a written plea agreement, Chairez pleaded guilty to the distribution charge, and the conspiracy charge was dismissed.

A bench trial followed on the firearm charge. Chairez testified that he had known Cruz for two or three months. When Chairez initially entered the car, Chairez thought that he and Cruz were going to get a beer. Once in the car Chairez saw the marijuana, and Cruz told him that they were going to take the marijuana to someone. Chairez testified that he had not known Cruz to deliver drugs in the past. He also testified that he had no knowledge of the gun under his seat.

The district court determined that Chairez was not credible and found him guilty of possessing a firearm in connection with drug trafficking activity. Chairez received a fifteen-month sentence for the conviction for distribution and a consecutive sixty-month sentence for violating Sec. 924(c). Chairez argues on appeal that the evidence was insufficient to find that he knowingly possessed the firearm.

II.

A conviction under Sec. 924(c) requires the government to prove beyond a reasonable doubt that the defendant: 1) possessed a gun; and 2) used it in relation to a drug offense. United States v. Carson, 9 F.3d 576, 582 (7th Cir.1993), petition for cert. filed (May 16, 1994); United States v. Edun, 890 F.2d 983 (7th Cir.1989). Chairez challenges the sufficiency of the evidence on the first requirement: his possession. He argues that the evidence presented at trial was insufficient to prove that he knowingly possessed the gun. ²

In reviewing a challenge to the sufficiency of the evidence, we ask "whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A defendant must know of the firearm's existence in order to have possession or control of it. Edun, 890 F.2d at 987; see United States v. Wilson, 884 F.2d 174, 179 (5th Cir.1989) ("requisite mental state for a violation of Sec. 924(c) is knowledge of the facts constituting the offense"); United States v. Nelson, 733 F.2d 364, 370-71 (5th Cir.), cert. denied, 469 U.S. 937, 105 S.Ct. 341, 83 L.Ed.2d 276 (1984).

But the government failed to produce even a shred of evidence that Chairez knew about the gun. The government rather maintained that, because the gun was found under Chairez' seat during a drug transaction, Chairez must have known of the gun's existence. The government supported its case with expert testimony that firearms are usually involved in drug transactions. The expert testified that the firearm in question was very old, easily concealable and strategically placed. He also testified that "in as high as sixty percent of the [narcotics] cases there's a firearm somewhere in the case." Tr. at 41.

The mere fact that both Chairez and the gun were in the same car is an insufficient basis for a factfinder to determine that Chairez had knowledge of a firearm. United States v. Soto, 779 F.2d 558, 560 (9th Cir.1986) (where firearm was found underneath defendant's seat, court held "mere presence as a passenger ... does not establish possession" and "proximity of a weapon ... goes only to its accessibility, not to the dominion or control"), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 70 (1987); United States v. Blue, 957 F.2d 106, 108 (4th Cir.1992) (officer's claim that he saw defendant's shoulder "dip" and the discovery of a pistol under defendant's seat not enough to show possession) (citing United States v. Soto with approval); United States v. Flenoid, 718 F.2d 867, 868 (8th Cir.1983) (mere presence as a passenger does not establish possession, but testimony that defendant placed something in spot where weapon was later found can support such a finding); see United States v. Evans, 950 F.2d 187, 192 (5th Cir.1991) (evidence of knowledge insufficient where defendant drove car that had been driven immediately before by other drug dealers, gun was found on rear floorboard and officer observed him lean onto the floorboard); see also United States v. Windom, 19 F.3d 1190, 1200 (7th Cir.) (mere proximity, mere presence or mere association is insufficient to support a finding of possession), cert. denied, --- U.S. ----, 115 S.Ct. 174, --- L.Ed.2d ---- (1994).

The government presented no evidence that Chairez had ever carried a firearm, or that he made a gesture towards the gun United States v. Ocampo, 890 F.2d 1363 (7th Cir.1989) (sufficient evidence where officer observed the defendant bend over inside a vehicle, place an object on the floor and attempt to kick it under the seat); United States v. Coe, 718 F.2d 830 (7th Cir.1983) (sufficient evidence where defendant reached for glove compartment), or that he acted suspiciously when approached by the officers. Cf. United States v. Bell, 954 F.2d 232, 236 (4th Cir.1992) (evidence of defendant's presence in the car, brief attempt to leave when the car was stopped, apparent relationship with co-defendant on other occasions and nervous response to the search "sufficient, though barely so" to infer possession of drugs). No one asked Chairez about the gun and the gun was not traced to him; the gun did not have fingerprints that could have been his. United States v. Wilson, 922 F.2d 1336, 1339 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 155, 116 L.Ed.2d 120 (1991) (gun found under the mattress in an apartment where the defendant sometimes spent the night could have been "possessed" by the defendant because it had fingerprint that could have been the defendant's). Chairez did not own or drive the car or exercise any control or dominion over the car, Edun, 890 F.2d at 987 (defendant had exclusive control over the car in which gun was found); United States v. Whitley, 905 F.2d 163 (7th Cir.1990) (court determined defendant had dominion and control over gun found in defendant's apartment); United States v. Garrett, 903 F.2d 1105, 1111 (7th Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990) (in a conviction under Sec. 922 defendant demonstrated constructive possession by attempting to open car with proper set of keys where a bag of cocaine and a weapon were found under the driver's seat), and the gun was not found inside anything which belonged to Chairez. See United States v. Hernandez, 13 F.3d 248, 252 (7th Cir.1994) (one factor that demonstrated possession of drugs was that defendant had claim ticket to suitcase containing drugs); United States v. Barbee, 968 F.2d 1026, 1035 (10th Cir.1992) (defendant exercised control over briefcase that contained gun). The government produced no evidence that the defendant touched the gun, see United States v. Gutierrez, 978 F.2d 1463, 1466 (7th Cir.1992) (defendant had pistol in waistband of pants), owned a gun or had ever been given a gun, see United States v. Wight, 968 F.2d 1393, 1397 (1st Cir.1992) (firearm discovered in van used to transport drugs combined with...