United States v. Alverio-Meléndez

640 F.3d 412 (2011) United States Court of Appeals for the First Circuit 2011-04-01

criminal; jury convictions of two defendants for cocaine conspiracy and for aiding and abetting possession of a firearm in furtherance of a drug trafficking crime; direct appeal on sufficiency of the evidence (both, firearm count), unpreserved jury-instruction error on the firearm count (plain error), and a Brady claim (result: claimant-won)

Facts

  1. 6 Knowing actual or constructive possession satisfied proved
    “the government must prove that 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.”
  2. 6 Knowing actual or constructive possession satisfied proved
    Agent Alverio testified at trial that he saw a handgun in the “pocket” of the front passenger door when the defendants were arrested, and that Gómez was in the passenger’s seat.
  3. 6 Knowing actual or constructive possession satisfied proved
    Another government witness testified that the fanny pack that Gómez was wearing when he was arrested contained three .40 caliber bullets and a magazine containing fifteen more .40 caliber bullets, both of which could be used to fire the gun, a Glock .40 caliber pistol, as well as a slide back cover that “is the rear part of the Glock.”
  4. 6 Knowing actual or constructive possession satisfied proved
    Finally, Rodriguez testified at trial that he thought Gómez had a gun based on the way that Gómez was positioned.
  5. 6 Knowing actual or constructive possession satisfied proved
    This evidence was sufficient for a rational finder of fact to determine that Gómez knowingly possessed the firearm.
  6. 7 Possession advances the specific predicate satisfied proved
    When the time came to verify the drugs, Averio asked Rodriguez if they could move to Rodriguez’s car.
  7. 7 Possession advances the specific predicate satisfied proved
    Averio said that the other man in the car did not want Rodriguez to verify the drugs in the car.
  8. 7 Possession advances the specific predicate satisfied proved
    From the driver’s side of the car, Agent Averio noticed a gun with an extended magazine in the passenger door “pocket.”
  9. 7 Possession advances the specific predicate satisfied proved
    Alverio’s argument is meritless because a gun need not be present at the moment that drugs are verified, or at the moment that money or drugs change hands, in order to be possessed in furtherance of a drug trafficking crime.
  10. 7 Possession advances the specific predicate satisfied proved
    Possession of a firearm “to protect drugs or sales proceeds” can constitute possession in furtherance of a drug trafficking crime.
  11. 7 Possession advances the specific predicate satisfied proved
    Here, a rational factfinder could conclude that Gómez had the gun to protect the cocaine on the way to the transaction and the money that the defendants expected to receive — $3,300 for each of the six “eighths” — on the way back from the transaction.
  12. 7 Possession advances the specific predicate satisfied proved
    The evidence would have been sufficient to support the conclusion that the gun was possessed in furtherance of the drug trafficking crime regardless of where the transaction occurred.