U.S. v. Gunn
| Citation | 369 F.3d 1229 |
| Decision Date | 12 May 2004 |
| Docket Number | No. 02-13256.,02-13256. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Manuel GUNN, Rolando Rodriguez, Gilberto Rivero, Roberto Fernandez Cuesta, a.k.a. Roberto Fernandez Cuerto, Lazaro Cantillo, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
John F. O'Donnell (Court-Appointed), Ft. Lauderdale, FL, Rene Palomino, Jr. and Sheryl Joyce Lowenthal (Court-Appointed), Beatriz Galbe Bronis, Asst. Fed. Pub. Def., Miguel Caridad and Kathleen M. Williams, Fed. Pub. Defenders, Miami, FL, David Johnathon Joffe (Court-Appointed), Plantation, FL, Manuel Gonzalez, Jr. (Court-Appointed), Coral Gables, FL, for Defendants-Appellants.
Robert B. Cornell, Anne R. Schultz, U.S. Atty., Harriett R. Galvin, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before EDMONDSON, Chief Judge, and CARNES and DUHÉ*, Circuit Judges.
Defendants-Appellants Lazaro Cantillo, Roberto Fernandez Cuesta, Manuel Gunn, Gilberto Rivero, and Rolando Rodriguez were convicted of (1) conspiracy to possess cocaine with intent to distribute five kilograms or more under 21 U.S.C. § 846; (2) attempted possession of cocaine with intent to distribute five kilograms or more under § 846; (3) conspiracy to use and carry a firearm during and in relation to a drug trafficking crime under 18 U.S.C. § 924(o); and (4) using and carrying a firearm during and in relation to a drug trafficking crime under § 924(c). Cantillo, Fernandez-Cuesta, and Rivero were also convicted of possession of a firearm by a convicted felon under § 922(g)(1).
All defendants appeal their convictions. Fernandez-Cuesta and Rivero appeal their sentences. We affirm the convictions and sentences of Cantillo, Fernandez-Cuesta, Gunn, and Rodriguez. We affirm all of Rivero's convictions except for his conviction for possession of a firearm by a convicted felon, which we vacate.
In March 2001, after Cantillo asked a government informant about robbery targets, the informant arranged a meeting between Cantillo and Agent Carlos Canino, who pretended to be a drug courier wanting to rob his source. On 16 March, Cantillo met with Agent Canino to plan the armed robbery of no less than 10 kilograms of cocaine. Cantillo brought Fernandez-Cuesta and Gunn to the meeting, but Gunn stayed in the car.
At the meeting, Agent Canino commented on Cantillo's Latin Kings (a gang) tattoo. The tattoo displayed a crown, an AK-47, and the words "100% Killer." Cantillo then introduced Fernandez-Cuesta, and the three men discussed the robbery. Defendants agreed they would split 7 kilograms of the cocaine, and Agent Canino would keep the other 3 kilograms. Agent Canino promised to provide a car with a hidden compartment to stash the drugs, and he told Cantillo and Fernandez-Cuesta that armed people would be at the stash house.
On 21 March, Agent Canino met again with Cantillo and Gunn. The three discussed the cocaine and the possible gunfire at the robbery. Agent Canino also spoke with Cantillo and Fernandez-Cuesta by telephone several times to discuss details of the robbery. During one call, Agent Canino told Fernandez-Cuesta that Gustavo, an informant, would tell defendants where the stash house was. On 5 April, Agent Canino called Cantillo to tell him the cocaine was arriving that day. That day, Gustavo told Cantillo to meet him at a certain gas station.
Cantillo and the other defendants met Gustavo at the station and followed him to a warehouse. Cantillo and Rivero arrived at the warehouse in a Buick, and Gunn, Fernandez-Cuesta, and Rodriguez arrived in a Mitsubishi with a tag registered to Gunn. After defendants entered the warehouse, Agent Canino telephoned with the address of the stash house, which Cantillo started writing down.
Thereafter, the police arrested defendants. Fernandez-Cuesta and Gunn were placed in one police car and Cantillo, Rivero, and Rodriguez in another. Both cars had recording devices. In the car, Fernandez-Cuesta and Gunn lamented their bad luck and how they had been fooled by Agent Canino. The two also discussed the firearms and their legal liabilities. In the other police car, Cantillo begged Rivero and Rodriguez to keep quiet. Rivero and Rodriguez compared their cover stories for the police. The three defendants also discussed the firearms, expressing relief that the guns were clean of fingerprints and found in the car rather than on defendants.
The district court admitted the police-car recordings and the gang-related testimony but denied jury instructions on entrapment. The jury convicted defendants on all counts charged.
This Court reviews de novo whether sufficient evidence supports a conviction. United States v. Tarkoff, 242 F.3d 991, 993 (11th Cir.2001). On review, the Court views the evidence in the light most favorable to the government, reversing only if no reasonable trier of fact could have found guilt beyond a reasonable doubt. Id.
All defendants challenge the sufficiency of the evidence for their § 924(c) convictions. To sustain a conviction under § 924(c), the government must show that, during and in relation to their conspiracy to rob cocaine, defendants used, carried, or possessed a firearm in furtherance of that conspiracy. See 18 U.S.C. § 924(c). Possession may be actual or constructive, joint or sole. United States v. Crawford, 906 F.2d 1531, 1535 (11th Cir.1990).
To establish constructive possession, the government must show that the defendant exercised ownership, dominion, or control over the firearm or the vehicle concealing the firearm. Id. The government must also establish some nexus between the firearm and the drug trafficking offense to show possession was in furtherance of the crime. United States v. Timmons, 283 F.3d 1246, 1252-53 (11th Cir.2002). And under § 924(c), a defendant may be liable for a co-conspirator's possession if possession was reasonably foreseeable. United States v. Bell, 137 F.3d 1274, 1274-75 (11th Cir.1998).
In this case, the loaded firearms were found in the Mitsubishi automobile in the warehouse where defendants were waiting for the address of the stash house. As occupant of the Mitsubishi and owner of the tags on the vehicle, Gunn, controlled the vehicle and, therefore, had — at least — constructive possession of the firearms. Because defendants conspired to commit armed robbery of cocaine, possession of firearms by their co-conspirator Gunn was reasonably foreseeable. And the conspiracy satisfies the nexus requirement between the firearms and the drug trafficking offense. Therefore, we conclude the evidence was sufficient to convict defendants of firearms possession.
Cantillo, Fernandez-Cuesta, and Rivero also challenge the sufficiency of the evidence for their § 922(g)(1) convictions of being a felon-in-possession of a firearm. Although Cantillo, Fernandez-Cuesta, and Rivero were found guilty of firearms violations under § 924(c), it does not necessarily follow that they are guilty of being felons-in-possession under § 922(g)(1). Sections 924(c) and 922(g)(1) are separate statutes with separate and distinct elements, and evidence sufficient to support a conviction under one statute may not be sufficient for conviction under the other.
More important, under § 924(c), a defendant may be found guilty based upon the acts of a co-conspirator. While co-conspirator liability may be available under § 922(g)(1), we need not decide that question today because at oral argument the government expressly disavowed reliance upon that theory of liability. Therefore, we consider only whether the evidence was sufficient to convict defendants of being felons-in-possession based upon their own acts, without regard to co-conspirator liability.
At trial, the district court properly charged the jury that a defendant could be found guilty of violating § 922(g)(1) if the government proved beyond a reasonable doubt that the defendant knowingly possessed a firearm and had been previously convicted of a felony. On possession specifically, the district court used these words:
A person who knowingly has direct physical control of something is then in actual possession of it. A person who is not in actual possession, but who has both the power and the intention to later take control over something either alone or together with someone else, is in constructive possession of it.
The jury instructions were not challenged on appeal and are consistent with the law of this Circuit.
A defendant has constructive possession if he exercises ownership, dominion, or control over the firearm. Crawford, 906 F.2d at 1535. A defendant also has constructive possession if he has the power and intention to exercise dominion or control. United States v. Smith, 591 F.2d 1105, 1107 (5th Cir.1979). The defendant may exercise that dominion and control either directly or through others. See, e.g., United States v. Thomas, 321 F.3d 627, 636 (7th Cir.2003); United States v. Van Horn, 277 F.3d 48, 55 (1st Cir.2002); United States v. Hardin, 248 F.3d 489, 498 (6th Cir.2001).
We conclude that the evidence was sufficient to sustain the convictions of Cantillo and Fernandez-Cuesta. But we conclude, based on the evidence presented, that an objectively reasonable jury could not have made the same finding about Rivero.
The evidence showed that Cantillo was the leader of the conspiracy. Briefly stated, he solicited the opportunity to steal narcotics; he organized the attempted robbery; and he recruited his co-defendants. During one conversation about the robbery, Cantillo stressed his leadership by telling Agent Canino: "I'm ready; my warriors, my soldiers are ready."
Because Cantillo led the conspiracy, a rational jury could have inferred that he, directly...
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