USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1016

UNITED STATES,
Appellee,

v.

FELIPE RAMIREZ-FERRER,
Defendant - Appellant.

____________________

No. 94-1017

UNITED STATES,
Appellee,

v.

JORGE L. SUAREZ-MAYA,
Defendant - Appellant.

____________________

No. 94-1018

UNITED STATES,
Appellee,

v.

PAUL TROCHE-MATOS,
Defendant - Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. P rez-Gim nez, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

_____________________

Roxana Matienzo-Carri n, by
________________________

Appointment of the

Court, for

appellant Felipe Ram rez-Ferrer.

Ram n Garc a-Garc a for appellant Jorge L. Su rez-Maya.
___________________
Francisco Serrano-Walker for appellant Ra l Troche-Matos.
________________________
Kathleen A. Felton, Attorney,
___________________
whom

Guillermo Gil, United

______________

Espinosa, Senior
________

Department of

States

Attorney,

Litigation Counsel, and

Assistant United States Attorney,

Justice, with

Jos A. Quiles________________

Epifanio Morales-Cruz,
_____________________

were on supplemental brief for

appellee.

____________________

April 29, 1996

____________________

-2-

TORRUELLA,
TORRUELLA,

(collectively,

Chief
Judge.
Chief
Judge.
______________

"defendants")

Felipe

Defendants-appellants

Ram rez-Ferrer

Ferrer"), Jorge L. Su rez-Maya ("Su rez-Maya"),

("Ram rez-

and Ra l Troche-

Matos ("Troche-Matos") appeal their firearm convictions

U.S.C.

924(c)(1).

A previous

under 18

panel of this court affirmed the

convictions of Ram rez-Ferrer and Su rez-Maya for using a firearm

in

relation

to

drug

trafficking offense,

but

reversed

corresponding conviction of Troche-Matos.

panel's opinion was withdrawn

an

en banc
_______

contest

was granted.

the

conviction.

However, the original

when the government's petition for

The government

original

panel's

has

reversal

decided not

of

to

Troche-Matos'

As a result, we reiterate that holding; our focus is

on the appeals of Ram rez-Ferrer and Su rez-Maya.

Although

the

firearm

reconsidered en banc, after

_______

but

before the

rendered

___,

Ct.

opinion was

501, 505

924(c)(1).

remanded the firearm

were

also

the en banc oral argument

_______

its opinion in Bailey

______

116 S.

section

en banc
_______

convictions

be

was heard

issued, the

Supreme Court

v. United States,
_____________

___ U.S. ___,

(1995),

In light

to

of

clarifying the

Bailey,
______

convictions for the

the

meaning

en banc
_______

of

court

panel's consideration.

We

today affirm

the convictions

of Ram rez-Ferrer

and Su rez-

Maya.

I.
I.

The evidence,

government,

taken in the light most favorable to the

United States v.
______________

Cir.), cert. denied, 503

____________

BACKGROUND
BACKGROUND

Abreu, 952
_____

F.2d 1458,

U.S. 994 (1992), permitted the

-3-

1460 (1st

jury to

find

the

facts

that follow.

affirmed related

importation

drug possession

convictions

remaining issue is

using or

crime

for

all

three

to

en banc
_______

decision

reversed drug

defendants,

the

sole

the firearm convictions

firearm during

pursuant

the

convictions and

the validity of

carrying a

trafficking

Because

and in

relation to

section 924(c)(1).

for

a drug

Thus,

we

emphasize the facts pertinent to the firearms charge.

On March 13,

received an

POPR

that

1993, the Police of Puerto

anonymous telephone call.

defendant

Su rez-Maya

The caller

and three

other

Rico ("POPR")

informed the

individuals

planned to bring a load of cocaine by boat to the main island

Puerto

Rico.

Using

a helicopter,

the

United States

of

Customs

Service (USCS) and POPR located the subject boat and Su rez-Maya,

accompanied

by three

interdicted about

other

one mile

men as

described.

The

boat

off the

southwest

coast of

was

Puerto

Rico.

After

about

the

the boat was seized, it was found to be carrying

16 kilograms of cocaine.

boat turned

revolver,

was

compartment

up a

firearm.

found covered

near the

A subsequent inventory search of

location

The seized

by

firearm, a

T-shirt, behind

where

seated at the time of the interdiction.

Ram rez-Ferrer

loaded

storage

had

been

The search also revealed

evidence linking the vessel to a relative of Su rez-Maya.

On March

31, 1993, a grand jury indicted defendants on

charges of possessing

drug trafficking crime

and carrying

a firearm in

(count 3), 18 U.S.C.

relation to

924(c)(1) (1994).

-4-

On September 28, 1993,

this

count.

On count

relating to possession

a jury convicted all three

1, later

upheld by

and importation

was

sentenced to life imprisonment,

240

months, and

Troche-Matos to

defendants on

the en banc court,

________

of cocaine,

Su rez-Maya

Ram rez-Ferrer to a term of

a term

of 120

months.1

The

sentences of Su rez-Maya

21 U.S.C.

841(b) and

and Ram rez-Ferrer were

960(b) on account of prior

On count 3, the firearm count,

mandatory minimum term

enhanced under

drug crimes.

each appellant was sentenced to a

of 60 months to

be served consecutively,

as required by the statute.

II.
II.

Count 3 of the

indictment charged that "the defendants

herein, aiding and abetting

and

DISCUSSION
DISCUSSION

each other, did knowingly, willfully

intentionally possess and carry a .32 caliber Smith & Wesson

revolver during and in

violation

opinion,

of 18

U.S.C.

relation to a drug trafficking

924(c)(1).

original

panel

we held that there was insufficient evidence for a jury

to infer that defendant Troche-Matos

statute or

In the

crime" in

aiding and abetting in

was guilty of violating the

its violation.

There

was no

evidence

the

gun;

existence.

that Troche-Matos actually

nor

was

there

In view

way a jury could

sheer speculation

or constructively possessed

evidence that

he

was

aware

of the circumstances, we held that

link Troche-Matos to

and conjecture.

As

the gun would be

the

of its

the only

through

government did

not

____________________

As noted, supra, the convictions of each appellant on count 2,

_____

for importation of

a controlled substance, were reversed

en banc court.
_______

-5-

by the

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 Su rez-Maya and Ram rez-Ferrer, the scope of our

present review was established by the en banc opinion, which held

_______

that

"defendants' conviction

they should face only

the carry prong."

should be

vacated, and

reconsideration of their convictions under

Ram rez-Ferrer, slip op. at 10 (citing Bailey,

______________
______

___ U.S. at ___, 116 S. Ct.

its

for 'use'

at 508-09).

The en banc panel based

_______

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

'use.'"

Id., slip op. at 10.

___

Although the

as

meanings not covered by

defendants continue to style their appeal

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 original panel opinion,

the district court.

we wrote

the district court's instruction was

an accurate

account of the law

Bailey,
______

is plainly

it

When

of the circuit; but

incorrect in

regard

to the

in light of

meaning of

"use."

The

district

court

gave

the

jury

the

following

instruction on the elements of 18 U.S.C.

942(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

-6-

term

used

However, you

[sic] in

these instructions.

must be convinced

reasonable doubt that the

a

beyond a

firearm played

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

firearm,
have

the

Government

only

to prove that a defendant carried a

firearm, the Government

that

does not

need only

prove

a firearm was accessible during and

in relation to a drug offense.

The

district

reasonable

Bailey, was
______

did not

error"

court's instruction,

jury to

endorse

(in hindsight)

object to it;

standard.

which

the "fortress

erroneous.

could be

theory" rejected

However,

we therefore review

heard

by a

by

the defendants

only under

a "plain

This standard requires not only that the error

be plain -- which in light of Bailey this probably is -- but also

______

that affirmance

would result in a "miscarriage

that would jeopardize

public confidence in the

of justice," one

integrity of the

judicial process.

United States v. Olano,

_____________
_____

(1993); United States v.

______________

113 S. Ct. 1770, 1779

Randazzo, Nos. 95-1489,

________

95-1768, slip

op. at 17 (1st Cir., April 8, 1996).

In this

case, the

standard would require

Su rez-Maya's and Ram rez-Ferrer's

substantial doubt

In

making

presented

about the certainty of

this determination,

by the

convictions only

government

we

if we

have

the defendants' guilt.

consider

and what

reversal of

we

both the

can infer

evidence

from

the

verdict that the jury did in fact decide.

We begin by defining "carry" for purposes of

924(c)(1).

18 U.S.C.

We take our lead from United States v. Manning, No.

_____________
_______

-7-

95-1199, slip op. (1st Cir. March 21, 1996), in which we affirmed

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,

met "any reasonable construction"

6.

In

defendant

Manning, detectives
_______

was

contain illegal

holding a

of "carry."

ordered a

briefcase,

those actions

Id., slip
___

defendant to

which later

drugs and a loaded handgun.

was

op. at

stop while

found to

Id., slip op. at 7.

___

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

banc
____

we noted in Manning, which was decided after the en

_______
__

oral argument was heard and after Bailey, but before the en
______
__

banc opinion
____

'use'

to

recognized

was issued,

instances

that

significance."

court

found that

the

of

"[b]y narrowing the

active

'carry'

Id., slip op.

___

it

did not

employment,

prong

at 6.

have

would

interpretation of

the

take

Although in

to delineate

Bailey
______

on

court

new

Manning, the
_______

the

"precise

contours" of the "carry" prong, id., slip op. at 6, it noted that

___

"the

word

'carry'

supporting (as

is

variously

. . in

one's

appreciable distance

another

defined

hands or

without dragging,'

as

'to

arms),'

move

while

'to move

and 'to bring

an

along to

place,'" id., slip op. at 7 (quoting Webster's Third New

___
___________________

-8-

International Dictionary 343 (1986)).2

________________________

meanings

"ordinary

follows

naturally

from

This focus on dictionary

Bailey's
______

reliance

and natural" meanings in construing

section 924(c)(1).

See Bailey,
___ ______

116 S. Ct.

on

the

the term "use" in

at 506

(discussing

definitions taken from Webster's New International Dictionary of

__________________________________________

English Language
________________

and Black's Law Dictionary).

_______________________

the defendant's

"alleged

In

Manning, the
_______

court

concluded that

actions readily

me[t]

all of the[] definitions" of "carry" taken from Webster's.

_________

Manning, slip op. at 7; see also United States v. Hern ndez, 1996
_______
________ _____________
_________

WL 34822, *3, ___ F.3d ___ (9th Cir. 1996) (quoting Webster's and
_________

Black's).
_______

Our

"carry"

decision in

Manning
_______

limits the

construction

of

to situations in which the "firearm" has been "moved" or

"brought

along to another place,"

definition adopted there contain

since all three

parts of the

this element of transportation.

See also United States v. Murrietta-N ez, 1996 WL 65240, *5 (9th

________ _____________
_______________

Cir. 1996)

(rejecting the

possibility of a

"carry" prong-based

conviction where a firearm was found under a bed near a bundle of

marijuana, noting that "storing the gun for possible, later

does not constitute "carrying"

use"

under Bailey); Hern ndez, 1996 WL

______
_________

____________________

With the first

"carry" relied
ambiguity as

two of the three

on by the

parts of the

court in Manning,
_______

definition of

there is

a seeming

to whether the subject of "to move" is the actor or

the

firearm

transitive

-or

that

is, whether

intransitive verb.

proceeds as though

"move" were

"move"
The

is

used

here as

discussion in

transitive.

Because

Manning
_______

we do

not

believe it alters our analysis, we continue with this assumption,

without deciding the question.
reasonably

From the evidence, the jury could

infer both that the firearm moved and that defendants

moved it (by having it aboard a moving boat).

-9-

34822 at *3,

___ F.3d at

defendant to be

section

___ (concluding that

convicted of

924(c)(1),

the

'carrying' a gun

defendant

must

have

"in order for

in violation

of

transported

the

___________

firearm

on

Furthermore,

present

or about

we

must

evidence from

his

bear

or

her

person")

in mind

that

which a

(emphasis

the

added).

government must

reasonable juror

could conclude

that this transportive function was "during" and "in relation to"

the

crime of possession with intent to distribute.

slip op. at 7 (quoting

See Manning,
___ _______

924(c)(1)).

However, unlike the court in Manning, we have no record

_______

evidence from

Su rez-Maya

"supporting"

which a

or

it

jury could

Ram rez-Ferrer

"in

[their]

reasonably infer

moved

hands

the

or

that either

firearm

arms."

while

However,

transporting a firearm on a boat would certainly implicate moving

it "an appreciable distance

without dragging" it or bringing

it

"along to another place."

Manning
_______

and

map the

Specifically, we

degree of

to

of

"carry"

must decide whether there

which

demands

in further

detail.

exists some required

this drug crime-related

delving

into

line-drawing

At one extreme, "carry" could be defined so narrowly as

only allow

conclude

contours

proximity in conjunction with

transportation,

problem.

As a result, we are forced move beyond

that

convictions where

the

defendant

physical contact with a

a factfinder

moved

firearm.

while

could reasonably

maintaining

At the other

actual

extreme, "carry"

might be so loosely construed that a defendant could be deemed to

"carry"

the

firearm when

he or

-10-

she

merely had

transported a

firearm

without touching

example, in

boat.

a car

We must

presented

it

trunk or

or

having

in some

from which

the jury

was within

was

to the drug crime in

easy reach

proffered to

could have

defendant

for

evidence was

reasonably inferred:

(on the boat) during and in

question and (b) that the firearm

of defendant Ram rez-Ferrer,

justify a

--

hard-to-reach recess of

address this question because while

(a) that the firearm was transported

relation

it accessible

reasonable

no evidence

inference (c)

that any

had any degree of physical contact with the weapon, or

had otherwise "support[ed]" it, as "in one's hands or arms."

Since

addressed

Bailey,
______

the scope

was

of the

Ninth Circuit confronted a

locked toolbox

together

decided,

few

"carry" prong.

In

circuits

Hern ndez, the

_________

situation in which a gun was found in

with cocaine

in defendant's

after defendant was arrested during a controlled buy.

1996

WL 34822 at *1-2.

"carrying" conviction

must

have

meaning that

The

under

transported the

"the firearm

have

garage

Hern ndez,
_________

Ninth Circuit concluded that, for a

section 924(c)(1),

firearm

on

or about

must have been

Id.
___

at *3.

"the

his

defendant

person,"

immediately available

for use

by the defendant."

As

a result, the Ninth

Circuit

refused to find that the defendant carried a firearm for

the purposes of section 924(c)(1).

Two

involving

the presence

United States
______________

1996), the

circuits

have

specifically addressed

of guns

and drugs

v. Riascos-Su rez,
______________

Sixth Circuit found a

73

situations

in automobiles.

F.3d 616,

623

In

(6th Cir.

defendant's conduct sufficient

-11-

for

conviction under the "carry" prong where the defendant had a

gun on the driver's side

also contained drugs.

that

of the dashboard console of a

The

court there stated

that it

"h[e]ld

purposes of

section

[defendant]

carried the

weapon

924(c)(1) because

the firearm

was within reach

available for use."

Id. at 623.
___

for

car that

and immediately

The Sixth Circuit clarified its

definition of "carry" in United States v. Moore, 76 F.3d 111, 113

_____________
_____

(6th Cir. 1996).

defendant

also

There,

the court remanded a case in

had guns

within easy

reach.

Id.
___

which the

at 113-114.

However, the court distinguished the conduct of the defendant

Moore from
_____

that of the

defendant in Riascos-Su rez

______________

in

because the

defendant in Moore did not bring the drugs with him in the course
_____

of his drug trade.

Id. at
___

113.

The court noted that "immediate

availability is [] a

necessary, but not sufficient determinant."

Id.
___

The Eleventh Circuit has also addressed the carry prong

in

an

82490,

automotive context.

United States
______________

*1-3 (11th Cir. 1996).

confronted a situation

compartment of

In Farris,
______

where a

v. Farris,
______

the Eleventh Circuit

firearm was found

a co-conspirator's car used

1996 WL

in the

glove

to transport illegal

drugs

to the controlled buy at which defendant was arrested, and

which

contained drugs.

Id.
___

Though it

the "carrying"

prong,

opinion

the government's

as to

the Eleventh

upheld conviction under

Circuit did

not state

broader argument in

unqualified by any requirement of "accessibility,"

its

that case,

that "section

-12-

924(c)

applies when a defendant

carries a firearm

that is being used as a base for drug distribution."

Defendants

aboard

moving

here do

boat,

and

not

the

defendants' possession convictions.

dispute that

en banc
________

in a vehicle

Id. at *3.
___

the weapon

court

has

was

upheld

Thus, they do not challenge

the

proposition

question

to

that

they

physically
__________

be transported

during -- in the sense of

and

that

caused

the

this transportation

including

diagrams

in

was

contemporaneous with -- their crime of

possession with intent to distribute illegal drugs.

here,

weapon

of

the

boat

with

the

The evidence

position of

defendants and the weapon clearly indicated, was sufficient for a

reasonable

reach of

jury to

infer that

the loaded

defendant Ram rez-Ferrer.

Given the

authority emphasizing accessibility and

___

facts of

within easy

above persuasive

transport and given

the

the instant case, we hold that Ram rez-Ferrer's conduct

suffices for conviction under an ordinary

the word "carry."

that a

gun was

and natural meaning of

We express no opinion, however,

on the theory

conviction for "carrying" may be upheld whenever a gun is

merely present

on a

boat or

other vehicle

employed in

possession crime, regardless of accessibility.

proximity

also suffices

Su rez-Maya, as captain

for

a jury

See,
___

of

his), aided

e.g., United States

____ _____________

Ram rez-Ferrer's

to infer

that

of the boat and the defendant apparently

responsible for the particular boat

relation

reasonably

a drug

(it allegedly belonged to

and abetted

Ram rez-Ferrer's conduct.

v. Price, 1996
_____

1996) (upholding conviction of

WL 67398,

*4 (3d Cir.

defendant for aiding and abetting

-13-

co-defendant's

concluded,

924(c)(1)

from

ample

violation,

evidence, that

benefitted from co-defendant's

uphold

both

since

jury

defendant

gun-related conduct).

defendants' convictions

under

could

have

knew of

and

Thus,

we

section 924(c)(1)'s

"carry" prong.

Ram rez-Ferrer

and Su rez-Maya also argue that even if

they "carried" the gun "during" their drug crime, they did not do

so "in relation" to

that they

did not know the

was rusty and

But the

their drug crime.

that the boat

Specifically,

gun was there, pointing

did not belong

they argue

out that it

to either of

them.

defendants do not allege that there was any error in the

jury instructions in this regard.

this

objection

rational

is

that we

trier of fact

reasonably have

the

gun

to

affirm

could have

beyond a reasonable doubt.

not exclude every

Therefore, the short answer to

See
___

jury's

conviction if

found the

defendants guilty

Farris at *3.
______

The evidence need

hypothesis of innocence.

Id.
___

The jury could

attributed knowledge and intent

to benefit from

both

Ram rez-Ferrer and

Su rez-Maya,

the

boat's

captain and the self-admitted principal with respect to the

possession offense.

Thus, the evidence is

drug

sufficient to uphold

both defendants' convictions under section 924(c)(1).

CONCLUSION
CONCLUSION

As a

result

of the

foregoing,

the judgment

district court is reversed in part and affirmed in part.

reversed in part
affirmed in part

of

the

________________

-14-

________________