United States Court of Appeals for the First Circuit · 2011-04-01
18usc924: author: Fable · not independently reviewed
Case and law context
Role: applied; posture: 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; claim: (c)(1)(A)
Uncertainty
None recorded
Misfit
Relations between elements (known item 3): the instruction rulings are statements that use/carry entail possession and that an "important role" finding entails furtherance, plus the ordering furtherance > during-and-in-relation-to. They are split across two rule-announced blocks; a case block cannot cite or assert an inter-element relation.
Role/scope single-valued (known item 1): the instruction blocks are at once procedural (plain error, unpreserved), harmless-error-like and rule-stating; `rule-announced` + `procedural` with holding not-reached loses that the conviction was affirmed despite a conceded error.
Aiding and abetting: both defendants were convicted of "aiding and abetting" possession, but the court analyses Gómez as a principal and Alverio as an aider without deciding the accomplice elements for either. The `furtherance` block is therefore qualified to the principal (Gómez) only, although the deciding paragraph sits in the section on Alverio's conviction and is what affirms it; and Alverio's affirmed accomplice liability is `not-reached` because the court decided it by default, not by analysis. The law file's `accomplice` rule is Rosemond (2014, advance knowledge); this 2011 "practical certainty" formulation has no temporal flag (known item 10).
The predicate block quotes the sufficiency analysis of a different count (21 U.S.C. 846 conspiracy) reused as the first 924(c) element; no cross-law pointer links it to the 21usc841 / 846 material.
The constructive-amendment question (indictment charged possession-in-furtherance, jury instructed on use/carry) is expressly not decided (footnote); the Brady claim about a never-performed fingerprint analysis of the gun is other law. Neither is recorded.
OCR damage: the lead defendant's name alternates "Averio" / "Alverio", and the DEA agent "Jimmy Averio" appears later as "Agent Alverio"; quotes are verbatim, so the same people appear under two spellings and an agent shares the defendant's (misspelt) name.
B · Case × element grid
Top-level elements follow claim order in panels of up to six elements. Case rows repeat across panels. Every recorded block retains its holding and basis; multiple blocks are not merged into a case-level verdict. ✓ satisfied · ✗ not satisfied · ○ not reached · · not addressed. Muted blocks are not counted. Sub-element evidence remains on case and element pages.
Elements 1–6 of 13
| Case | Qualifying federal predicate offense | Firearm object | Active employment of a firearm | Knowingly possess and convey the firearm | During and in relation to the predicate | Knowing actual or constructive possession |
|---|---|---|---|---|---|---|
| United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 (18usc924: author: Fable · not independently reviewed) | · not addressed | ○ not reached · basis not recordedNot counted: applied/merits | · not addressed | · not addressed | · not addressed | ○ not reached · basis not recordedNot counted: rule-announced/procedural |
Elements 7–12 of 13
| Case | Possession advances the specific predicate | Armor-piercing ammunition object | Use or carry the armor-piercing ammunition | Possess the armor-piercing ammunition | Section 2 aiding and abetting route | Greater minimum for the same firearm conduct displaces the lower minimum |
|---|---|---|---|---|---|---|
| United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 (18usc924: author: Fable · not independently reviewed) | ○ not reached · basis not recordedNot counted: rule-announced/procedural | · not addressed | · not addressed | · not addressed | ○ not reached · basis not recordedNot counted: rule-announced/merits | · not addressed |
Elements 13–13 of 13
| Case | Sentencing consequences after offense proof |
|---|---|
| United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 (18usc924: author: Fable · not independently reviewed) | · not addressed |
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Pattern | Exact source quotations |
|---|---|---|---|---|
| United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 — not reached (18usc924: author: Fable · not independently reviewed) | Section 2 aiding and abetting route | not_reached Excluded from merits counts rule-announced / merits claim: (c)(1)(A); party: Alverio (driver); subject: party=Alverio (driver) The court states the First Circuit aiding-and-abetting standard (pre-Rosemond: "practical certainty" knowledge plus a facilitating step) only to narrow the appeal: Alverio's brief argued principal liability, so the court considers just the furtherance point. Whether Alverio knew of the gun or facilitated its possession is not analysed, though his conviction is affirmed. | practical-certainty/driver-of-armed-drug-source | He was indicted, however, for aiding and abetting in the possession of a firearm in furtherance of a drug trafficking offense, which requires proof that he knew to a practical certainty that Gómez would possess the gun in furtherance of a drug trafficking crime and that he took some step to facilitate the possession.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [13554:13872] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8. |
| United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 — not reached (18usc924: author: Fable · not independently reviewed) | Firearm object | not_reached Excluded from merits counts applied / merits claim: (c)(1)(A) A Glock .40 pistol capable of automatic fire; firearm status not contested and the machinegun penalty tier is not discussed. | Unspecified route | No source quotation recorded for this block. |
| United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 — not reached (18usc924: author: Fable · not independently reviewed) | Possession advances the specific predicate | not_reached Excluded from merits counts rule-announced / procedural claim: (c)(1)(A); theory: unobjected jury instruction that charged "use or carry ... during and in relation to" instead of "possess ... in furtherance of"; plain-error review; also no "mere presence" instruction; subject: theory=unobjected jury instruction that charged "use or carry ... during and in relation to" instead of "possess ... in furtherance of"; plain-error review; also no "mere presence" instruction Conceded error, held not reversible on plain-error review: the instruction's requirement that the gun play (and be intended to play) "an important role", with protection/security as examples, was close enough to the furtherance nexus, and it also made a separate "mere presence" instruction unnecessary. The court reaffirms that furtherance is a slightly higher standard than during-and-in-relation-to. | instruction-error/use-carry-nexus-charged-on-possession-count | “[W]e 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. For example, we have held that possession of a firearm to protect drugs or sales proceeds can establish such a nexus.”Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [21067:21361] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.“the ‘in furtherance of element of a firearm possession charge imposes a ‘slightly higher standard’ of liability than the nexus element corresponding to the different charges of using or carrying a firearm, which need only occur ‘during and in relation to’ the underlying crime.”Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [21844:22123] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.We cannot see, however, how the jury could have concluded that the firearm here played an important role in the commission of the offense without concluding that the weapon met the “in furtherance of’ requirement.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [22274:22487] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8. |
| United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 — satisfied · proved (18usc924: author: Fable · not independently reviewed) | Possession advances the specific predicate | satisfied Counted merits instance applied / merits basis: proved; claim: (c)(1)(A); party: Gómez (principal possessor); subject: party=Gómez (principal possessor) The element decided is that GÓMEZ's possession furthered the drug crime ("Gómez had the gun to protect the cocaine"). The point was argued by Alverio, the driver convicted as an aider and abettor, in his own sufficiency challenge, and the same reasoning disposes of Gómez's furtherance challenge by cross-reference; but this block does NOT record that Alverio himself possessed a gun in furtherance. His liability runs through the aiding-and-abetting route (`accomplice` block below), whose knowledge and facilitation requirements the court did not analyse. Defendants' wish to move the drug inspection out of the car holding the gun does not negate furtherance: the gun can protect the drugs in transit and the expected proceeds on the way back. The third fact line is the court's statement of the permissible inference. | protection/drugs-or-proceeds | Averio said that the other man in the car did not want Rodriguez to verify the drugs in the car.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [3313:3409] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.When the time came to verify the drugs, Averio asked Rodriguez if they could move to Rodriguez’s car.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [3120:3221] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.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.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [15194:15445] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.From the driver’s side of the car, Agent Averio noticed a gun with an extended magazine in the passenger door “pocket.”Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [4926:5045] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.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.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [14782:15006] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.Possession of a firearm “to protect drugs or sales proceeds” can constitute possession in furtherance of a drug trafficking crime.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [15007:15137] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.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.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [15446:15629] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8. |
| United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 — satisfied · proved (18usc924: author: Fable · not independently reviewed) | Knowing actual or constructive possession | satisfied Counted merits instance applied / merits basis: proved; claim: (c)(1)(A); party: Gómez (passenger); subject: party=Gómez (passenger) The court does not say whether the possession was actual or constructive; the inference rests on the gun's position at the passenger's side plus matching ammunition, magazine and a Glock part on his person. The car was Alverio's. No cuts-against fact is discussed under this element (the missing fingerprint analysis is treated only as a Brady issue). | proximity-plus-matching-ammunition/gun-in-door-pocket-beside-passenger | 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.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [12124:12301] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.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.”Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [12302:12639] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.Finally, Rodriguez testified at trial that he thought Gómez had a gun based on the way that Gómez was positioned.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [12640:12753] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.“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.”Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [11641:11838] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.This evidence was sufficient for a rational finder of fact to determine that Gómez knowingly possessed the firearm.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [12754:12869] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8. |
| United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 — not reached (18usc924: author: Fable · not independently reviewed) | Knowing actual or constructive possession | not_reached Excluded from merits counts rule-announced / procedural claim: (c)(1)(A); theory: same instruction error: jury told to find "use or carry" rather than possession; plain-error review; subject: theory=same instruction error: jury told to find "use or carry" rather than possession; plain-error review A relation between elements (use and carry each entail possession) stated to dispose of an instruction challenge; not a finding about these defendants. | instruction-error/use-or-carry-charged-instead-of-possession | Instructing the jury regarding “use and carry” instead of “possession” was not reversible error because “use and carry” necessarily includes possession.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [20423:20575] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.One also cannot “carry” a firearm without possessing it.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [20807:20863] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8. |
| United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 — satisfied · proved (18usc924: author: Fable · not independently reviewed) | Enumerated federal drug felony | satisfied Counted merits instance applied / merits basis: proved; claim: (c)(1)(A); party: Gómez (passenger, alleged owner of the drugs); subject: party=Gómez (passenger, alleged owner of the drugs) The predicate is the 21 U.S.C. 846 conspiracy to possess cocaine with intent to distribute, itself a count of conviction; its sufficiency (reviewed as Gómez's drug conviction) is carried over as the first 924(c) element. Alverio did not contest the predicate. | csa/felony | Gómez, whom Rodriguez knew as “El Flaco,” was the person who told him about prices while Alverio looked on silentlySource: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [8471:8586] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.Rodriguez asked if the drugs he was going to buy belonged to “the skinny guy” whom he had met at his mother’s house, and Alverio responded affirmativelySource: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [8719:8871] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.Furthermore, toll records showed that after Alverio spoke with Rodriguez on February 4, the same phone that Alverio had used to speak with Rodriguez was used to dial a cell phone number that corresponded to the cell phone that Gómez had on the day of the arrest.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [8873:9135] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.Gómez notes that Alverio, not he, spoke to and negotiated with Rodríguez, and that he was never seen handling the drugs.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [6672:6792] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.Furthermore, Gómez points out that no government agent could corroborate Rodriguez’s testimony that Alverio identified Gómez as the owner of the drugs on the day of the arrest.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [6978:7154] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.In order to sustain a conviction for conspiracy under 21 U.S.C. § 846, the evidence must show that (1) a conspiracy existed, (2) the defendant had knowledge of the conspiracy, and (3) the defendant knowingly and voluntarily participated in the conspiracy.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [7352:7607] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.As discussed above, there was sufficient evidence here to support the conclusion that Gómez committed a drug trafficking crime.Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [11896:12023] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8. |