U.S. v. Pedro

• Decision Date: 09 April 1993
• Docket Number: No. 91-6081,91-6081
• Citation: 999 F.2d 497
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel PEDRO, a/k/a Manuel Condiles, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 497

999 F.2d 497

UNITED STATES of America, Plaintiff-Appellee, v. Manuel PEDRO, a/k/a Manuel Condiles, Defendant-Appellant.

No. 91-6081.

United States Court of Appeals Eleventh Circuit.

April 9, 1993.

Linda Collins Hertz, Dawn Bowen, Rick Carey, Asst. U.S. Attys., Miami, FL, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before COX, Circuit Judge, JOHNSON, Senior Circuit Judge, and ALAIMO, ^* Senior District Judge.

ALAIMO, Senior District Judge:

Defendant Manuel Pedro ("Pedro") was convicted after a jury trial in the United States District Court for the Southern District of Florida of possession of a firearm after having been convicted of a crime punishable by imprisonment for a term exceeding one year. Defendant now appeals two aspects of his conviction. Specifically, he argues that: (1) the evidence presented at trial was insufficient to prove beyond a reasonable doubt that he constructively possessed the firearm at issue; and, (2) the indictment improperly charged him with aiding and abetting himself, constituting plain error. For the reasons which follow, Defendant's conviction will be REVERSED and the case REMANDED to the district court for the entry of a judgment of acquittal.

I. STATEMENT OF THE FACTS

On the evening of April 6, 1991, Defendant Pedro and Jose Villafani ("Villafani") were arrested for a suspected burglary of a Miami, Florida, apartment. At the site of the arrest, Villafani was carrying a suitcase that was discovered to contain, among other items, a firearm. Accordingly, on June 20, 1991, Pedro, who had been convicted of a felony offense on a prior occasion, was indicted on a single-count of knowingly possessing a firearm, after having been previously convicted of a felony, in violation of both 18 U.S.C. § 922(g)(1) ¹ and 18 U.S.C. § 2. ² Villafani was not charged as a co-defendant in the federal action. At the jury trial held on August 12, 1991, Pedro stipulated to having been previously convicted of a felony offense prior to April 6, 1991.

At trial, the Government first called Officer Lazzaro Perez who testified that on the evening of April 6, 1991, he and his partner, Officer Juan Enriquez, responded to a crime-in-progress call for a burglary of an apartment. He stated that outside the residence, he observed a chair beneath an open window, and then he and his partner proceeded to the front door of the apartment where they heard voices behind the locked door. Approximately five minutes later, Villafani exited the front door followed by Pedro who was several feet behind him. At the time, Villafani was carrying a suitcase, while Pedro was not carrying anything. Officer Perez testified that he ordered the men to "freeze," whereupon Villafani and Pedro turned toward the officers and stated that nothing improper was occurring. According to Officer Perez, when the officers ordered the men to place their hands behind their heads, Villafani placed the suitcase on the ground. Officer Perez testified that both Villafani and Pedro again stated that nothing was happening and requested to open the suitcase to show that they were just moving some property. The officers again told the men not to move, and they placed the men under arrest.

Officer Perez testified that after putting the men in the patrol car, the officers entered the residence, finding property in the front room and a general appearance that the apartment had been "ransacked." In particular, property had been moved to abnormal positions and drawers and closets were open. Officer Perez stated that he and his partner then proceeded to check the suitcase for property. He testified that "[i]nside the suitcase there [were] several items from inside the residence: clothing, some merchandise, some coins. We also observed two knives and a gun." (R. at Vol. II p. 12.) The Government ended its direct examination of Officer Perez after he identified the 9-millimeter semi-automatic Smith and Wesson found in the suitcase.

On cross-examination, Officer Perez stated that he and his partner first stopped at the residence of Deborah Nugent, the woman who called the police to report the burglary in progress and who lived across the street from the apartment in question. Perez conceded that he and his partner never saw anyone enter the apartment, but only observed Villafani and Pedro exiting. Officer Perez also agreed that the suitcase was a hard cover suitcase, not a soft duffel bag or a material through which the contents of the suitcase could be discerned. Next, he stated that a detective was called to the scene and, to Officer Perez's knowledge, no fingerprints of Pedro's were found in the residence. Finally, Officer Perez testified that although Villafani made statements at the arrest scene, he did not implicate Pedro in the burglary or indicate that Pedro had any knowledge of the burglary.

The Government then called Omar Garcia, an investigator with Metro Dade Police, who testified that upon his arrival at the residence, Villafani and Pedro were already in custody. Garcia stated that he examined and photographed the property in the suitcase, as well as the other property at the residence. He noted that although he dusted the apartment and attempted to take fingerprints, he could not find any. Moreover, he did not attempt to take any fingerprints on the firearm because he did not believe that he would be able to obtain any prints of value. Garcia's testimony about the condition of the apartment was the same as Officer Perez's. He noted, however, that a carpet was rolled up with property inside as if it were to be taken from the residence. Upon cross-examination, Garcia stated that he arrived at the scene after Villafani and Pedro had been arrested and taken into custody.

The final Government witness was George Mastin, a Special Agent with the Bureau of Alcohol, Tobacco and Firearms. Mastin testified that he was contacted by the Metro Dade Police who informed him that Pedro had been arrested while in possession of a firearm. He stated that he placed a trace on the gun, determining that it was manufactured in Springfield, Massachusetts. Additionally, he asserted that he initiated an examination of the gun for latent fingerprints. On cross-examination, however, he conceded that the lab report came back negative, and no fingerprints were found on the firearm.

The Government then rested, and Pedro, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, moved for a judgment of acquittal, arguing that "[t]he Government failed to carry the burden [to] show[ ] that [Defendant] had any knowledge, whatsoever, that there was a gun inside the suitcase that [Villafani] was carrying or to show that [Defendant] exercised any control or custody over the [gun] that was inside that suitcase." (R. at Vol. II p. 27.) The district court denied Pedro's motion.

Pedro called only one witness, Deborah Nugent, the woman who had originally contacted the Metro Dade Police to inform them of the burglary in progress. Nugent testified that she observed someone drive up to the residence across the street and climb up on to the carport of that building. She stated that the man she observed climb onto the carport was not Pedro. No further testimony was obtained from Nugent.

After Nugent's testimony, Pedro again made a Rule 29 motion, arguing that the additional testimony showed that he did not break into the residence. The district court again denied the motion. Subsequently, the jury returned a verdict of guilty, and Pedro was later sentenced to two-hundred and forty months of imprisonment, followed by five years of supervised release. ³ On December 5, 1991, Pedro filed this timely appeal.

II. ISSUES ON APPEAL

Pedro asserts two principal grounds on appeal. First, he contends that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that he exercised constructive possession over the firearm in the closed suitcase carried by Villafani. Second, he argues that, since he alone was charged with the crime, the aiding and abetting charge in the indictment was improper because a person can not aid and abet himself. He contends, therefore, that he was charged with a non-existent crime. He claims that the error in the faulty indictment was compounded by the district court's instruction to the jury on "aiding and abetting," as well as statements in the Government's closing argument improperly urging the jury to convict Pedro for aiding and abetting in the burglary. Although Pedro did not challenge the asserted "aiding and abetting" errors during the trial, he contends that they amount to "plaint error," requiring reversal of his conviction.

III. ANALYSIS

A. Sufficiency of the Evidence

In reviewing a challenge on sufficiency of the evidence grounds, an appellate court must examine such claims "in the light most favorable to the government and draw all reasonable inferences and make all credibility determinations in support of the jury's verdict." United States v. Reme, 738 F.2d 1156, 1160 (11th Cir.1984) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942)), cert. denied, 471 U.S. 1104, 105 S.Ct. 2334, 85 L.Ed.2d 850 (1985). An appellate court must uphold a conviction if, "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, 573 (1979) (emphasis omitted). However, "[a] conviction must be reversed, 'if a reasonable jury must necessarily entertain a reasonable doubt as to the defendant's guilt.' " United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983) (quoting United States v. Marx, 635 F.2d 436, 438 (5th Cir.1981)).

The only element of the crime for which Pedro was convicted that is being challenged on sufficiency of the evidence grounds is the requirement that he "possess" the firearm. Both...