U.S. v. Paz

• Decision Date: 04 March 1991
• Docket Number: No. 90-5307,90-5307
• Citation: 927 F.2d 176
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rafael Antonia PAZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 176

927 F.2d 176

UNITED STATES of America, Plaintiff-Appellee, v. Rafael Antonia PAZ, Defendant-Appellant.

No. 90-5307.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 11, 1991.

Decided March 4, 1991.

David F. Tamer, argued (Thomas Jeffery Keith, on brief), Winston-Salem, N.C., for defendant-appellant.

Paul Alexander Weinman, Asst. U.S. Atty., argued (Robert H. Edmunds, Jr., U.S. Atty. and David B. Smith, Asst. U.S. Atty., Sr. Litigation Counsel, on brief), Greensboro, N.C., for plaintiff-appellee.

Before SPROUSE and WILKINS, Circuit Judges, and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

SPROUSE, Circuit Judge:

Rafael Antonia Paz pled guilty to four counts of drug trafficking and was found guilty by the district court on a fifth count--the use of a firearm in relation to drug trafficking. On appeal, Paz alleges a host of errors concerning his conviction on the firearm count and his sentencing. We affirm.

I

On May 31, 1989, the Guilford County Sheriff's Department executed a valid search warrant of a residence located in Greensboro, North Carolina. At the time of the search, four people were in the house. Paz and another Hispanic male were found in one bedroom, later determined to be Paz's bedroom. A bag containing 10.5 grams of cocaine and another bag containing 55.5 grams of cocaine base ("crack") were found in Paz's bedroom, as well as $1,800 in a false spray can. Desiring to cooperate, Paz told police that there was a gun underneath the mattress. The police then retrieved a 9 mm. pistol from underneath the mattress. Additionally, police uncovered a bag containing 429.6 grams of cocaine from under the house, another bag containing 189.5 grams of cocaine from an upstairs kitchen, $6,500 from another bedroom and a bag containing glassine bags, commonly used to package drugs. Police subsequently arrested all four persons in the house.

On June 26, 1989, the United States grand jury for the Middle District of North Carolina returned a five-count indictment against Paz and the three other persons arrested at the Greensboro residence. Counts One through Four charged Paz and his co-defendants with conspiracy to possess quantities of cocaine base with intent to manufacture, 21 U.S.C. Secs. 846, 841(a)(1) and (b)(1)(A); possession of cocaine base with intent to distribute, 21 U.S.C. Secs. 841(a)(1) and (b)(1)(A); possession of cocaine hydrochloride with intent to manufacture cocaine base, 21 U.S.C. Secs. 841(a)(1) and (b)(1)(A); and maintenance of a residence for purposes of manufacturing cocaine base, 21 U.S.C. Secs. 856(a)(1) and (b). Count Five charged Paz with the use of a firearm during and in relation to drug trafficking in violation of 18 U.S.C. Sec. 924(c)(1).

Paz pled guilty to the first four counts, but not guilty to Count Five. ¹ After a bench trial, the district court found Paz guilty on Count Five. The district court subsequently sentenced Paz to a term of imprisonment of 210 months on Counts One through Four. In addition, the court imposed a sentence of five years on Count Five, to run consecutive to the sentence imposed for the first four counts.

II

On appeal, Paz contends that the district court made several errors in his conviction and sentencing. First, Paz contends that there was insufficient evidence to convict him of a violation of 18 U.S.C. Sec. 924(c)(1). Section 924(c)(1) states in pertinent part:

Whoever, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years....

Paz contends that the government offered no evidence that he owned the gun or that he "used" the gun "during and in relation to" the drug trafficking crimes to which he pled guilty. Moreover, Paz contends that the inaccessibility of the gun, placed under the mattress, demonstrates that he did not use the gun in relation to the crime.

A verdict of guilty, of course, "must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it." Glasser v United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Here, we find substantial evidence to support the district court's conclusion. Ownership is not essential to the possession and use of a firearm. Moreover, constructive possession of firearms in relation to a drug transaction is sufficient to establish "use." See United States v. Matra, 841 F.2d 837, 841-42 (8th Cir.1988). As we stated in United States v. Brockington, 849 F.2d 872 (4th Cir.1988), the weapon need not be brandished or displayed. Rather, "it is enough if the firearm is present for protection and to facilitate the likelihood of success, whether or not it is actually used." Id. at 876. Here, the gun was present and accessible, even though under a mattress, and there is little question that its presence would help facilitate the success of the criminal undertaking.

Second, Paz contends that the district court committed reversible error when it refused to permit him to testify. After both parties had presented proof, rested, and made closing arguments, the district court found the defendant guilty on Count Five and set a date for sentencing. The court then ordered defendant returned to custody, after which defendant indicated through an interpreter that he wanted to testify in his own behalf. In response, the district court stated:

Well, the case is over now; and he didn't call it to my attention. I asked him this morning when I was taking his plea ["]Is there anything else he would like to say or do,["] and it didn't come to my attention at that time.

A bench conference subsequently ensued off the record.

The reopening of a criminal case after the close of evidence is within the discretion of the trial judge. See United States v. Walker, 772 F.2d 1172, 1177 (5th Cir.1985); United States v. Molinares, 700 F.2d 647, 652 (11th Cir.1983). In the instant case, Paz had been provided an opportunity to speak and chose not to. The trial had concluded and a verdict reached; only then did Paz request to testify. Moreover, the record fails to indicate any "reasonable explanation" for Paz's failure to present his testimony during his case-in-chief. Based on these facts, we are not prepared to say that the district court abused its discretion in refusing to reopen the trial after a verdict had been decided.

Next, Paz contends that the district court erred in shifting the burden of proof to Paz to prove that he did not "use" a firearm in relation to drug trafficking. In reaching its decision that Paz had violated Sec. 924(c)(1), the district court stated that: "I have considered everything you have indicated with reference to whether or not the defendant is guilty. I cannot see any factual basis raised by you to amount to a reasonable doubt, and for that reason I have found him guilty." Paz argues that this statement demonstrates that the court placed the burden of proof on him to prove that he had not used a firearm in relation to drug trafficking and, consequently, Paz contends that he was denied his constitutional right to a presumption of innocence. We disagree.

The government had the burden of proof to establish beyond a reasonable doubt that Paz knowingly used a firearm "during and in relation to the commission of a drug trafficking crime." Paz admitted knowledge of the gun; Paz pled guilty to drug trafficking charges committed on the day of his arrest; and the...