Beruflich Dokumente
Kultur Dokumente
June 2, 1992
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No. 91-2301
UNITED STATES OF AMERICA,
Appellee,
v.
RONALD J. PLUMMER,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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____________________
Before
Cyr, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Fuste,* District Judge.
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____________________
________________
Richard S. Cohen, United States Attorney, was on brief for the Uni
_________________
States.
____________________
____________________
____________________
*Of the District of Puerto Rico, sitting by designation.
CAMPBELL,
Defendant, Ronald
trial in
of Maine
trafficking
924(c)(1).1
evidence
His
crime,
sole
was insufficient
in
violation
argument
to
on
I.
I.
18
U.S.C.
is
that
the
conviction.
We
appeal
support his
affirm.
of
to a
In
February
1991,
pursuant
to
police
from defendant
an interested
six years, he
with the
purchase.
payment.
on behalf of
Kinney was
Initially, defendant
agreed
he would receive
While Kinney
rather upset as
he had driven
____________________
1. Defendant was
also
charged with
distribution
of
marijuana, in violation of 21 U.S.C.
841(a)(1) and with
possession of a firearm after having been convicted of a
felony, in violation of 18 U.S.C.
922(g)(1) & 924(a)(2).
He pled guilty to these two counts and was tried only for
using and carrying a firearm during and in relation to a drug
trafficking crime. As to this count, defendant waived his
right to a jury trial.
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deliver the
marijuana directly
to Kinney's house.
Taped
conversations
Upon cross-examination,
at a
he
defendant agreed to
residence
and
for Kinney
purchase.
$750.
At
to
come
out
to make
of the
sale, Kinney
to Kinney
was standing
noticed a
fully functioning
"sitting against
the barrel
the
transmission
cartridge could be
that
it appeared
testified that
the back of
would sit."
to
The gun
end down.
front seat
the seat
was in an
While the
hump.
be
both the
Keegan
a live
gun and
unsnapped
that
the
was found
and
cartridge.
He
the cartridge
were within
-3-
not
the console
testified
directly
gun was
used in
the
the time
arrested, Agent
drive to Kinney's
further
written
waiver of
rights,
Agent
and receiving
Peter Arno
questioned
had the weapon for approximately one week and that Norman
that defendant had told him that the gun "was in the driver's
seat behind his back."
that he never touched
in the car
the
behind him.
and that
a bullet in the car and that he had no idea how it might have
gotten there.
testimony that
given
it
tucked
Norman
Allen
to defendant
to hold.
confirmed defendant's
Allen testified
where
a little
the driver
bit."
He
would sit.
defendant
any
ammunition,
certainly
did
not."
that he
that he had
denied having
When
Allen
He further
asked if
replied
testified
placed the
he
that
that
gun
had given
he
"most
he
and
After
parties'
briefs the
district
defendant guilty
-4-
II.
II.
Defendant's only
evidence
was
carrying
trafficking
argument
insufficient
to
firearm
during
and
crime.
The statute
on appeal
support
in
his
is that
the
conviction for
relation
under which
to
drug
defendant was
924(c)(1).
statute,
the
government
or played a
to
prove
role in an
underlying drug
beyond
"related
v. Torres-Medina,
_____________
1991).
935 F.2d
1047, 1048-49
the presence of
United
______
(9th Cir.
the gun in
crime
States
______
495
-- that
he "carrie[d]
firearm."
Defendant
argues, however,
evidence was
the
that
crime
he carried the
defendant, the
gun was
that the
first element of
See United
___ ______
not loaded,
to" the
According
it remained
in its
-5-
holster and he
toward it.
neither brandished it
is devoid
to have a
gun or
conversations with
movement
fear during
his
the
evidence
Norman
Allen
defendant
to
was
uncontroverted that,
placed
the
gun in
hold.
The
government's
one
week
defendant's
earlier,
vehicle
for
evidence, defendant
asserts, does nothing more than establish that the gun was in
his possession at the time he
offense.
Mere possession
gun
during the
course of
court
including reasonable
most
favorable
to
looks
to the
the
verdict,
17
(1st Cir.
United States v.
______________
be
to
whole,
in the light
determine
whether
1991).
The
evidence
may
as
of
evidence
927 F.2d
Id.
___
resolved in
among
Passos-Paternina, 918
________________
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be
the verdict.
F.2d 979,
983 (1st
cert. denied,
____________
was sufficient to
Payero,
______
court
this
reasonable
sustained under
intended to
the
have it
stated
that
statute if
In
"a
United States
______________
conviction
the possessor
available for
immediately following
the transaction
doubt.
possible
the transaction, or
by lending
will
of a
v.
be
weapon
use during
or
if it facilitated
courage to the
possessor.
The
of the
888 F.2d
It
at 929.
Payero,
______
that the
gun found
available
for possible
transaction.
gun.
use or
intended by him to be
otherwise to
facilitate the
who
would sit."
defendant "to
hold"
however,
defendant,
he placed
passenger seat.
nervous
testified that
it between the
the
drug transaction
fact
that the
gave the
driver's seat
about the
buyer and
when he
and the
because of
cocaine
gun to
deal
the unknown
fell
through.
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Finally,
defendant's
bullet,
car
usable
in
the
easily accessible
to
gun,
the
was
found
driver.
in
Allen
He further testified
From
that he and
If the weapon
had no role
or
advantage, it would have been a simple
matter to have removed it
from the
car . . . .
It is sufficient in this
case
for
it
to have
been
there
strategically located, easily accessible,
visible and available.
The district court's conclusions
was
It
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2. The Assistant United States Attorney conceded during
argument that the court's finding that the weapon was
"visible" was probably incorrect.
There was no evidence
Kinney saw it while defendant, before his arrest, was sitting
in the car. But we agree with the Assistant United States
Attorney that whether or not the revolver was then visible
was immaterial.
It was, in any event, as the court found,
"strategically located,
easily accessible, .
. . and
available."
-8-
undertaking
risky
drug
prominent, accessible
transaction
and awkward
keeps a
place in his
gun
in
car (behind
his back), and who also keeps an easily accessible bullet for
the gun
in his car, is
relation to the
drug transaction.
It is true
the gun
it was
never
brandished
and Norman
Allen corroborated
defendant's claim
that the gun belonged to him and that he had placed it in the
car
for defendant
to
hold.
determinative of whether
drug
transaction
necessary under
had
the
crime,
or not the
been
such
as
these
facts
were
not
necessary nexus to
the
established.
the statute
But
All
that
"circumstances of
an
actor
himself or
intimidate others,
display or discharge in
v.
among reasonable
other inferences,
had
not such
United States
_____________
the factfinder is
interpretations of
the
weapon to
whether or
role in
who
was
facts
entitled to
the evidence.
v.
(the prosecution
the total
evidence permits
-9-
a conclusion of
guilty
beyond a
the
reasonable doubt.").
"Ultimately, whether
or not
26 (1st
Moreover, "assessing
no
2813 (1991).
S. Ct.
in the
district
court's
is solely
United States v.
_____________
F.2d
finding that
Green,
_____
Finding
defendant
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