U.S. v. Marin, 06-1912.
| Decision Date | 11 April 2008 |
| Docket Number | No. 06-1912.,06-1912. |
| Citation | 523 F.3d 24 |
| Parties | UNITED STATES of America, Appellee, v. Antonio MARIN, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Leslie W. O'Brien for appellant.
Paul Hart Smyth, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellant.
Before BOUDIN, Chief Judge, SELYA, Senior Circuit Judge, and HOWARD, Circuit Judge.
Appellant Antonio Marin ("Marin") was convicted by a jury of possessing a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c).1 On appeal Marin claims that the evidence was insufficient to prove that the firearm was possessed "in furtherance of" drug activities. He also asserts the trial judge committed reversible evidentiary errors. We affirm.
We recite the facts in the light most favorable to the jury's verdict. United States v. Isler, 429 F.3d 19, 22 (1st Cir. 2005). During the fall of 2004 the United States Drug Enforcement Administration ("DEA") used a cooperating witness known as "Gijo" to make a series of cocaine purchases from Marin in Springfield, Massachusetts. The first occurred in November, when Gijo purchased 50 grams of cocaine from Marin for $1500 outside a grocery store. After the sale, Marin drove to his home. A month later Gijo purchased an additional "100 to 125" grams of cocaine from Marin for $3700. Marin drove from his home to a car wash to make this second sale. A third sale, in February 2005, involved 50 grams for $1500. Again, Marin arrived at the sale location-a restaurant-from his home.
The DEA arrested Marin on February 24, 2005, the day after the third controlled cocaine purchase. In order to make the arrest, the DEA had Gijo order 100 grams of cocaine from Marin, who drove from his home to the arranged sale point. Marin was arrested upon his arrival, after DEA agents trapped his car with their own vehicles. Although Marin got out of his car brandishing what was described as a two or three foot long billy club, he dropped the club at the demand of approaching agents. A clear plastic bag containing 100 grams of cocaine was found in his pocket. Simultaneous with the arrest, other DEA agents executed a search warrant at Marin's apartment. In a bedroom nightstand, they found 70-75 grams of cocaine, a digital scale and packaging materials. They also found, under the bed mattress, a loaded .38 caliber semiautomatic handgun with a defaced serial number and a spare clip loaded with .38 caliber ammunition. The search yielded $1500 in cash, discovered in a bedroom bureau. Agents also found roughly 700 grams of cocaine in a plastic bucket in the basement. In post-arrest interviews, Marin admitted to DEA agents that all of the cocaine, the gun and ammunition were his, as was the bedroom in which the gun, ammunition and the smaller amount of the cocaine were discovered. He told the agents he had purchased the gun from a cocaine dealer approximately six months prior to his arrest.
The cocaine recovered in Marin's bedroom and basement formed the basis for the charge of possession with intent to distribute, which, in turn, was the predicate drug crime for the firearm count on which Marin was ultimately convicted and which he now appeals.
Marin argues, as he did at trial,2 that the government's evidence was insufficient as a matter of law to prove that he possessed the recovered firearm "in furtherance of" his admitted drug dealing. Specifically Marin notes the uncontroverted evidence that he was not seen carrying a gun at any of the arranged deals. Thus, he argues, the only connection between the firearm and the cocaine was the gun's "mere presence" in the bedroom, which, Marin points out, did not even hold the lion's share of the stash. While Marin accurately recounts the two facts he relies on — he was not seen carrying the gun during the subject drug deals, and the significantly greater share of the cocaine was located in another part of the residence — his legal conclusion misses the mark by a wide margin.
In analyzing Marin's sufficiency claim,3 we must affirm the conviction if after de novo review of the evidence taken in the light most favorable to the government, we conclude that a rational factfinder could find that the government proved the essential elements of its case beyond a reasonable doubt. United States v. Stark, 499 F.3d 72, 79 (1st Cir.2007).
Marin was convicted of violating 18 U.S.C. § 924(c)(1), which prescribes various mandatory punishments for "any person who, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm...." To obtain a conviction, the government must prove beyond a reasonable doubt the defendant: 1) committed a drug trafficking crime; 2) knowingly possessed a firearm; and 3) possessed the firearm in furtherance of the drug trafficking crime. United States v. Delgado-Hernandez, 420 F.3d 16, 24 (1st Cir.2005). Here, there is no dispute that Marin committed a drug trafficking crime and knowingly possessed a firearm. Marin's appellate argument is aimed at the "in furtherance of" requirement.
The "in furtherance of" element does not have a settled, inelastic, definition. See id. (meaning is "fluid"); United States v. Felton, 417 F.3d 97, 104 (1st Cir.2005), cert. denied, 547 U.S. 1048, 126 S.Ct. 1639, 164 L.Ed.2d 349 (2006) (meaning is not "well-settled"). Our cases, however, do provide sufficient guidance for the task here. In the context of a drug trafficking predicate, we have understood "in furtherance of" to demand showing a sufficient nexus between the firearm and the drug crime such that the firearm advances or promotes the drug crime. United States v. Grace, 367 F.3d 29, 34-35 (1st Cir.2004); United States v. Garner, 338 F.3d 78, 81 (1st Cir.2003). For example, we have held that possession of a firearm to protect drugs or sales proceeds can establish such a nexus. United States v. Robinson, 473 F.3d 387, 399 (1st Cir.2007); Delgado-Hernandez, 420 F.3d at 31-32; Garner, 338 F.3d at 81.
We have also analyzed "in furtherance of" evidence from both subjective and objective standpoints. Felton, 417 F.3d at 104-5.4 In applying an objective analysis, we have often considered the proximity of the firearm to the contraband. In Grace, for example, we found evidence sufficient where an unloaded firearm was found in the same residence as drugs and sales proceeds. 367 F.3d at 34-35. And in United States v. Luciano, 329 F.3d 1 (1st Cir.2003), we affirmed a conviction where the firearms were located in a crawl space also containing heroin and drug paraphernalia.
Marin argues that the objective evidence "consisted only" of the presence of the handgun a few feet from an amount of drugs far smaller than what was found in the basement. This, he claims, in combination with the fact that there was no evidence of him carrying the gun while actually engaging in the drug deals, proves no more than "mere presence" of the firearm, insufficient to support a conviction. But there was much more to the evidence, which, taken in sum, supports a different conclusion. As noted, DEA agents discovered a loaded gun in Marin's bedroom where it would be easily accessible to him if surprised in the night. The weapon was found, with a loaded spare clip, under Marin's mattress, in the same room as — and only a few feet from — 75 grams of cocaine and a digital scale, and in the same house as an additional 700 grams of cocaine and proceeds from drug sales.5 We have little doubt that a jury could have reasonably inferred from this evidence that Marin possessed the firearm to protect his drug trafficking activities. Moreover, the jury also heard testimony that drug traffickers often possess firearms for protection of their trafficking activities. And, as we have noted, Felton, 417 F.3d at 105 (footnote omitted).
Our conclusion is no different with respect to the evidence of Marin's subjective intent to possess the firearm "in furtherance of" his drug trafficking. Where direct evidence of subjective intent is lacking, the jury is free to infer intent from objective circumstances. Id. Here, in addition to the objective facts as noted above — the proximity of the gun to the cocaine, cash and paraphernalia, as well as it being easily accessed by Marin when he was otherwise vulnerable — the facts that the gun had an obliterated serial number and that Marin admitted that he purchased the gun from another cocaine dealer also support an inference that he subjectively intended to possess the weapon in furtherance of the underlying drug crime. Accordingly, the district court did not err in denying Marin's motion for judgment of acquittal.
Appellant next argues that the district court improperly allowed DEA Agent John Barron to testify that, during an interview of Marin, he did not ask Marin why he had the gun because "it was obvious." Marin claims this was improper expert testimony in violation of Fed.R.Evid. 702. We disagree.
The testimony came during re-direct examination. On cross-examination by defense counsel, Barron had testified that Marin never admitted to him that the gun recovered in his bedroom was related to drug dealing. He also described Marin as forthright during two conversations with him. The testimony was as follows:
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