U.S. v. Ramirez-Ferrer

• Decision Date: 10 November 1994
• Docket Number: D,RAMIREZ-FERRE,SUAREZ-MAY,Nos. 94-1016,TROCHE-MATO,s. 94-1016
• Parties: UNITED STATES, Appellee, v. Felipeefendant-Appellant. UNITED STATES, Appellee, v. Jorge L.efendant-Appellant. UNITED STATES, Appellee, v. Raulefendant-Appellant. to 94-1018. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1149

82 F.3d 1149

UNITED STATES, Appellee, v. Felipe RAMIREZ-FERRER, Defendant-Appellant.

UNITED STATES, Appellee, v. Jorge L. SUAREZ-MAYA, Defendant-Appellant.

UNITED STATES, Appellee, v. Raul TROCHE-MATOS, Defendant-Appellant.

Nos. 94-1016 to 94-1018.

United States Court of Appeals, First Circuit.

Heard Nov. 10, 1994.

Decided April 29, 1996.

Appeals from the United States District Court, for the District of Puerto Rico [Hon. Juan M. Perez-Gimenez, U.S. District Judge].

Roxana Matienzo-Carrion, Hato Rey, PR, by Appointment of the Court, for appellant Felipe Ramirez-Ferrer.

Ramon Garcia-Garcia, Santurce, PR, for appellant Jorge L. Suarez-Maya.

Francisco Serrano-Walker, New York City, for appellant Raul Troche-Matos.

Kathleen A. Felton, Attorney, Department of Justice, Washington, DC, with whom Guillermo Gil, United States Attorney, Hato Rey, PR, Jose A. Quiles-Espinosa, Senior Litigation Counsel, San Juan, PR, and Epifanio Morales-Cruz, Assistant United States Attorney, Cagus, PR, were on supplemental brief for, appellee.

Before TORRUELLA, Chief Judge, and CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

TORRUELLA, Chief Judge.

Defendants-appellants (collectively, "defendants") Felipe Ramirez-Ferrer ("Ramirez-Ferrer"), Jorge L. Suarez-Maya ("Suarez-Maya"), and Raul Troche-Matos ("Troche-Matos") appeal their firearm convictions under 18 U.S.C. § 924(c)(1). A previous panel of this court affirmed the convictions of Ramirez-Ferrer and Suarez-Maya for using a firearm in relation to a drug trafficking offense, but reversed a corresponding conviction of Troche-Matos. However, the original panel's opinion was withdrawn when the government's petition for an en banc was granted. The government has decided not to contest the original panel's reversal of Troche-Matos' conviction. As a result, we reiterate that holding; our focus is on the appeals of Ramirez-Ferrer and Suarez-Maya.

Although the firearm convictions were also to be reconsidered en banc, after the en banc oral argument was heard but before the en banc opinion was issued, the Supreme Court rendered its opinion in Bailey v. United States, --- U.S. ----, ----, 116 S.Ct. 501, 505, 133 L.Ed.2d 472 (1995), clarifying the meaning of section 924(c)(1). In light of Bailey, the en banc court remanded the firearm convictions for the panel's consideration. We today affirm the convictions of Ramirez-Ferrer and Suarez-Maya.

I. BACKGROUND

The evidence, taken in the light most favorable to the government, United States v. Abreu, 952 F.2d 1458, 1460 (1st Cir.), cert. denied, 503 U.S. 994, 112 S.Ct. 1695, 118 L.Ed.2d 406 (1992), permitted the jury to find the facts that follow. Because the en banc decision affirmed related drug possession convictions and reversed drug importation convictions for all three defendants, the sole remaining issue is the validity of the firearm convictions for using or carrying a firearm during and in relation to a drug trafficking crime pursuant to section 924(c)(1). Thus, we emphasize the facts pertinent to the firearms charge.

On March 13, 1993, the Police of Puerto Rico ("POPR") received an anonymous telephone call. The caller informed the POPR that defendant Suarez-Maya and three other individuals planned to bring a load of cocaine by boat to the main island of Puerto Rico. Using a helicopter, the United States Customs Service (USCS) and POPR located the subject boat and Suarez-Maya, accompanied by three other men as described. The boat was interdicted about one mile off the southwest coast of Puerto Rico.

After the boat was seized, it was found to be carrying about 16 kilograms of cocaine. A subsequent inventory search of the boat turned up a firearm. The seized firearm, a loaded revolver, was found covered by a T-shirt, behind a storage compartment near the location where Ramirez-Ferrer had been seated at the time of the interdiction. The search also revealed evidence linking the vessel to a relative of Suarez-Maya.

On March 31, 1993, a grand jury indicted defendants on charges of possessing and carrying

                a firearm in relation to a drug trafficking crime (count 3), 18 U.S.C. § 924(c)(1) (1994).   On September 28, 1993, a jury convicted all three defendants on this count.   On count 1, later upheld by the en banc court, relating to possession and importation of cocaine, Suarez-Maya was sentenced to life imprisonment, Ramirez-Ferrer to a term of 240 months, and Troche-Matos to a term of 120 months. 1  The sentences of Suarez-Maya and Ramirez-Ferrer were enhanced under 21 U.S.C. §§ 841(b) and 960(b) on account of prior drug crimes.   On count 3, the firearm count, each appellant was sentenced to a mandatory minimum term of 60 months to be served consecutively, as required by the statute
                

II. DISCUSSION

Count 3 of the indictment charged that "the defendants herein, aiding and abetting each other, did knowingly, willfully and intentionally possess and carry a .32 caliber Smith & Wesson revolver during and in relation to a drug trafficking crime" in violation of 18 U.S.C. § 924(c)(1). In the original panel opinion, we held that there was insufficient evidence for a jury to infer that defendant Troche-Matos was guilty of violating the statute or aiding and abetting in its violation. There was no evidence that Troche-Matos actually or constructively possessed the gun; nor was there evidence that he was aware of its existence. In view of the circumstances, we held that the only way a jury could link Troche-Matos to the gun would be through sheer speculation and conjecture. As the government did not challenge these holding in its petition for rehearing en banc, we reiterate that Troche-Matos' conviction on the gun count must be reversed for lack of sufficient evidence.

As for Suarez-Maya and Ramirez-Ferrer, the scope of our present review was established by the en banc opinion, which held that "defendants' conviction for 'use' should be vacated, and they should face only reconsideration of their convictions under the carry prong." Ramirez-Ferrer, 82 F.3d at 1135 (citing Bailey, --- U.S. at ----, 116 S.Ct. at 508-09). The en banc panel based its holding on its understanding of Bailey as having limited the word "use" to the extent that it cannot apply in the instant case and having emphasized that " 'carry' has meanings not covered by 'use.' " Id., 82 F.3d at 1134.

Although the defendants continue to style their appeal as an objection to sufficiency of the evidence, it is clear that the Supreme Court's decision in Bailey requires us to consider whether the convictions on the gun count can be sustained despite the erroneous instruction of the district court. When we wrote the original panel opinion, the district court's instruction was an accurate account of the law of the circuit; but in light of Bailey, it is plainly incorrect in regard to the meaning of "use."

The district court gave the jury the following instruction on the elements of 18 U.S.C. § 924(c)(1):

[T]he Government is not required to prove that the defendant or defendants actually fired the weapon or brandished it ... at someone in order to prove use, as that term used [sic] in these instructions. However, you must be convinced beyond a reasonable doubt that the firearm played a role in or facilitating the commission of the drug offense, in other words, you must find that the firearm was an integral part of the offense charged.

Now, to prove that a defendant carried a firearm, the Government does not only have to prove that a defendant carried a firearm, the Government need only prove that a firearm was accessible during and in relation to a drug offense.

The district court's instruction, which could be heard by a reasonable jury to endorse the "fortress theory" rejected by Bailey, was (in hindsight) erroneous. However, the defendants did not object to it; we therefore review only under a "plain error" standard. This standard requires not only that the error be plain--which in light of Bailey this probably is--but also that affirmance would In this case, the standard would require reversal of Suarez-Maya's and Ramirez-Ferrer's convictions only if we have substantial doubt about the certainty of the defendants' guilt. In making this determination, we consider both the evidence presented by the government and what we can infer from the verdict that the jury did in fact decide.

result in a "miscarriage of justice," one that would jeopardize public confidence in the integrity of the judicial process. United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993); United States v. Randazzo, 80 F.3d 623, 632 (1st Cir.1996).

We begin by defining "carry" for purposes of 18 U.S.C. § 924(c)(1). We take our lead from United States v. Manning, 79 F.3d 212 (1st Cir.1996), in which we affirmed a district court's denial of a motion for acquittal on 924(c)(1) charges based on Bailey 's treatment of "use," because even though "use" no longer could cover defendant's actions, those actions met "any reasonable construction" of "carry." Id., 79 F.3d at 216. In Manning, detectives ordered a defendant to stop while defendant was holding a briefcase, which later was found to contain illegal drugs and a loaded handgun. Id., at 216. We note in passing that either defendant may be convicted as "aiding and abetting" if one defendant is found to have carried a firearm in violation of section 924(c)(1), and if the evidence is sufficient for a jury to infer that the other defendant aided and abetted this conduct.

As we noted in Manning, which was decided after the en banc oral argument was heard and after Bailey, but before the en banc opinion was issued, "[b]y narrowing the interpretation of 'use' to instances of active employment, the Bailey court recognized that the 'carry' prong would take on a new significance." Id., 79 F.3d at 216. Although in Manning, the court found that it did not have to delineate the "precise contours" of the "carry" prong,...