USCA1 Opinion

July 7, 1992

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 91-2212
UNITED STATES,
Appellee,
v.
PHILLIP A. WIGHT,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
___________________
____________________
Before
Cyr, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Fuste,* District Judge.
______________
____________________
Martin K. Glennon
___________________

with

whom

Martin K. Glennon Professio

______________________________

Association was on brief for appellant.

___________
Peter E. Papps, First Assistant United States Attorney, with w
_______________
Jeffrey R. Howard, United States Attorney, was on brief for appelle
_________________
____________________
____________________
_____________________
*Of the District of Puerto Rico, sitting by designation.

FUSTE, District Judge.

______________
Phillip

Wight was

indictment

convicted

charging

violations.1

On

both

crime)

appeal,

(possession of a

and 18

firearm).

U.S.C.

Finding

of four

controlled

insufficient to support his

924(c)(1)

After a

he

argues

jury trial, appellant

counts

of a

substances
that

the

multi-count
and

firearms

evidence

was

firearms convictions under 18 U.S.C.

firearm during a

922(g)(1)

(felon

drug trafficking

in possession

that there is sufficient evidence

the convictions, we affirm.

affirm
I.

of

to sustain

I.
Background
Background
__________
The
part,

are

approached

not

facts giving rise to Wight's

in

dispute.

Codefendant

by an undercover police

large quantity of marijuana.

potential sources,

appeal, for the most

Edward

Dunbar

officer who sought

was

to buy a

After several days of searching for

Dunbar determined that appellant

Wight could

supply the potential buyers ten pounds of marijuana.

On March 9,

1990, law

enforcement agents

controlled substance.
Donuts

made arrangements to

Dunbar agreed

to meet them

parking lot in Manchester, New Hampshire.

purchase the
at a

Dunkin

At the initial

____________________

1Count I of the indictment charged appellant Wight and other

codefendants with conspiracy to distribute marijuana in violation
of 21 U.S.C.
846; Count V charged appellant with possession
with intent to distribute marijuana in violation of 21 U.S.C.
841(a)(1); Counts VI and VII charged appellant with possession
of a firearm during a drug trafficking crime in violation of 18
U.S.C.
924(c)(1), and with possession of a firearm by a felon
in violation of 18 U.S.C.
922(g)(1). Count IX charged only
codefendant Fields with possessing the same firearm during a drug
trafficking crime, 18 U.S.C.
924(c)(1).
-22

meeting, Dunbar and

agents

Wight agreed

later that

parties,

they

day.

met

at

After
a

Wight

arrived at

codefendant

Michael

Fields.

seat.

vehicle.

parking

Wight was

Wight whether

he had

between
lot,

a van

seated

Dunbar arrived

the

in

the

also

in

driven by

in

the front

different

the passenger side of

the marijuana.

Wight

around, pointed to a large plastic bag located behind him

containing
plastic
the

King

the meeting in

Codefendant

and asked

marijuana to

telephone call

An undercover officer approached

the van
turned

Burger

Manchester.

passenger

to sell the

what appeared to be marijuana, and pulled out a small

sandwich bag containing a

officer gave

a signal

drug sample.

and Wight,

At that point,

Dunbar, and

Fields were

arrested.
At the moment of
seized, but
the

did not search, the

Manchester police

conducted.

the arrest, law enforcement personnel

station,

van.

The vehicle

where an

inventory search

pistol.

The

weapon was

located underneath

newspapers behind the two front seats of the van.

a

was

During the search, police discovered an operable 9mm

Interdynamic

in

was taken to

partially

unzipped

case

with

the

some

The pistol was

opening

facing

the

passenger seat of the van where appellant Wight sat.

Testimony at

trial revealed that on

the morning prior

to the drug sale, Dunbar had brought the weapon to the

shared by Wight and

Fields.

Dunbar gave

the weapon to

residence

Fields,

instructing him that it was available for use if necessary.

-3-

Based
indicted.
trial.

While

on these

facts Wight,

Dunbar pled

Both Fields and

Dunbar, and

guilty, Fields and

Wight were convicted

Fields were

Wight went

to

of the controlled

substances counts; however, while the jury convicted Wight of the

two firearms violations, they
Interdynamic

pistol during

acquitted Fields of possessing the

a drug

trafficking crime.

The two

firearms convictions form the basis for Wight's appeal.

II.
II.
Discussion
Discussion
__________
Appellant's

sole

argument

on

appeal

is

that

the

evidence at trial was insufficient to support his convictions for

carrying

a firearm during or

crime2 and for

being a felon

in relation to
in possession of

a drug trafficking
a firearm in

or

affecting interstate commerce.3

____________________
2The statute, 18 U.S.C.

924(c)(1), in relevant part, provides:

Whoever, during and in relation to any

crime of violence or drug trafficking crime
. . . for which he may be prosecuted in a
court of the United States, uses or carries a

firearm, shall, in addition to the punishment

provided for such crime of violence or drug
trafficking
crime,
be
sentenced
to
imprisonment for five years.
18 U.S.C.

924(c)(1).

3Section 922(g)(1) of Title 18 provides:

(g)

It shall be unlawful for any person --

(1) who has been convicted in any court

of, a crime punishable by imprisonment for a
term exceeding one year; to . . . possess in
or
affecting
commerce, any
firearm or
ammunition.
-44

In reviewing
this

court will

look

a sufficiency of the
to the

evidence

evidence challenge,

as a

whole,

reasonable inferences drawn from the evidence, in the

favorable
rational

to the
trier

government, seeking
of fact

could have

offense beyond a reasonable doubt.

to determine
found

including

light most

whether any

the elements

of the

Jackson v. Virginia, 443 U.S.

___________________

307, 319 (1979); United States v. Abreu, 952 F.2d 1458, 1466 (1st
______________________
Cir.),

cert. denied, ___ U.S. ___, 112 S.Ct. 1695 (1992); United
____________
______

States

v.

Sabatino, 943

F.2d 94,

97

(1st Cir.

1991); United

____________________

______

States v. Batista-Polanco, 927

___________________________

F.2d

14, 17

United States v. Ruiz, 905 F.2d 499,

______________________
standard

in

acquittal).
we

will

Fed.
It is

1637

with

927

P. 29

such issues
F.2d

at

motion

in

17;

cert. denied,
____________

sufficient to convict

the factfinder

interpretations of
17;

502 (1st Cir. 1990)

for

favor of

judgment

of

the government.

United States v. Passos___________________________

111 S.Ct.
may be

remaining free
the evidence.

United States v. McDowell,

__________________________

1990); United States v. Boylan,

________________________

2809 (1991).

A.
A.

to choose

922(g)(1).
-55

among reasonable

Batista-Polanco, 927
_______________
918 F.2d

1004, 1010

898 F.2d 230,

Section 924(c)(1)
Section 924(c)(1)
_________________

____________________

Also,

entirely circumstantial,

cert. denied, ___ U.S. ___, 111 S.Ct. 139 (1990).

____________

18 U.S.C.

(same

918 F.2d 979, 983 (1st Cir.), cert. denied, 111 S.Ct.
____________

(1990), and
___

evidence

Crim.

Cir. 1991);

not our role to weigh witness credibility and

resolve all

Batista-Polanco,
_______________
Paternina,
_________

R.

(1st

F.2d at

(1st Cir.

243 (1st

Cir.),

To establish a violation of 18 U.S.C.

government
firearm

had to prove beyond

"was 'related

underlying

to,' or

F.2d

1047,

procured
in

1048-49

process

(9th Cir.

which

carried the

the time of his arrest.

that the Interdynamic
transport

the drugs

delivered by Dunbar to
used

other role

in, the

"the defendant must have 'used'

1991).

Wight

935

admits that

Specifically,

9mm pistol was

only

one day

he

found in

the

after

While this

that the

the pistol

he

argues that

constitutes

weapon was related

goes to

whether there
used

the

or

proof, the section 924(c)(1)

have been submitted to the jury.

We disagree.

had

to

been

and Wight

sufficient
to the

drug

was sufficient

carried the

government

fact

the van used

firearm.

failed to

beyond a reasonable doubt that he knew the weapon was

and, without such

in

police officer at

the residence shared by Fields

establish that
he

and engaged

There is no controversy as to the

Wight's challenge
to

marijuana,

to an undercover

if necessary.

evidence to establish

evidence

(1) that the

United States v. Torres-Medina,

______________________________

of selling the drug

crime,

played some

the

the marijuana at the request of Dunbar, was a passenger

the van

to be

a reasonable doubt

crime"; and (2) that

or 'carried' the firearm."

924(c)(1),

prove

in the van

count should not

In
government

952

need not

only that
use"

Abreu,
_____

F.2d

at

1466,

prove actual

we

found

possession by

that

"the

the defendant,

the firearm was readily accessible for the defendant's

and that

operation

"[p]lacing

a weapon

nearby

to protect

drug

comes within the definition of 'used'" for purposes of

-66

section 924(c).

See also
___ ____

987, 997-98 (1st Cir.

critical concern
nexus"),

United States v. Hadfield, 918

__________________________

1990) (in a "drug fortress"

is the presence

(conviction
available for

context, "the

or absence

of a

facilitative

U.S.

___, 111

S.Ct.

2062 (1991);

888 F.2d

928,

929 (1st

cert. denied, ___

_____________

United States v. Payero,

_________________________

F.2d

Cir.

1989)

sustained if possessor of a weapon intended it to be

possible use

during or immediately

following the

transaction); United States v. Featherson, 949 F.2d 770, 776 (5th

___________________________
Cir.)
"could

(sufficient for
have

trafficking),

been

the government

used"

to

cert. denied,
_____________

protect
60

to show
or

U.S.L.W.

that the

facilitate

the

3735 (1992);

weapon

drug

United
______

States v. Young-Bey,
_____________________

893

F.2d

178,

181

(8th

Cir.

1990).

Examining the circumstances surrounding the firearm's presence in

the van, we find that there is sufficient
to support

a jury

finding connecting

evidence in the record

the

weapon to

appellant

Wight's drug trafficking.

It is undisputed
firearm

to the

understanding

that Dunbar originally delivered

residence shared
that the

weapon was for

Wight supplied the marijuana

drug transaction.
van

used

by Wight

transaction was held.

the

their use

drug to

firearm was found

the place

with the

if necessary.

and played a principal role

One day later, the

to transport

and Fields

the

where

in the

in the

the drug

When found, the weapon was in a partially-

opened

case, facing appellant and within his grasp.

facts,

it was reasonable

for a rational trier

Given these

of fact to infer

-77

that appellant knew

the weapon's location,

had ready access

to

it, and possessed it in the van to facilitate the drug deal.

Appellant also suggests

that the

jury's acquittal

of

codefendant

Fields

with respect

924(c)(1)

violation

failed to

establish the

doubt.

is

to

further

Count

evidence

IX

for

that

section

the government

necessary elements beyond

The government argues that

a reasonable

even if we were

to view the

verdicts as inconsistent, based on the reasoning of United States

_____________

v. Powell, 469 U.S. 57 (1984), inconsistency is not a sufficient

__________

reason to set aside the verdict provided that sufficient evidence

supports

the count

Bernal-Rojas,
____________
Bucuvalas,
_________

of conviction.

See
___

also United States v.

____ _________________

933 F.2d 97, 100 (1st Cir. 1991); United States v.

________________

909 F.2d

593 (1st

Cir. 1990)

(rationale

applied where two co-conspirators involved).

there was

sufficient evidence to support

pursuant to section 924(c)(1). In addition,

section 924(c)(1) verdicts are,
the

jury found

activity,

that

have found that

appellant's conviction

the Wight and Fields

in fact, consistent.

Wight's leadership

coupled with the fact

We

of Powell
______

role

Obviously,

in the

that the weapon

criminal

appeared to be

more accessible to him than it was to Fields, made it more likely

that it

was he, and

weapon's

presence

conviction

not Fields, who

during

the drug

for possessing a

drug offense, 18 U.S.C.

B.
B.

sought the benefit

transaction.

firearm during the

924(c)(1), shall stand.

Section 922(g)(1)
Section 922(g)(1)
_________________

of the

Appellant's

commission of a

-88

Appellant
U.S.C.

also

922(g)(1).

establish

challenges

Under

that: (1)

his

this statute,

appellant

conviction

under

the government

was previously

18

must

convicted of

an

offense punishable by imprisonment for a term exceeding one year;

and

(2) he

knowingly

interstate commerce.
op.

possessed

firearm

Cir. 1989) (sufficiency of

to

App.

(1982

Ed.)

922(g)),

admits that

the government established

in

the evidence challenge

1202(a)(1),

statute to

the

predecessor

cert. denied, 491 U.S. 908 (1989).

____________

and he does not

slip

United States v. Rumney, 867 F.2d

_______________________

714, 721 (1st

interstate commerce.

affecting

1992); United States v. Smith, 940

______________________

F.2d 710, 713 (1st Cir. 1991);

offense

or

United States v. Ramos, No. 91-1702,

_______________________

at 4 (1st Cir. April 21,

18 U.S.C.

in

the requisite

Wight

predicate

challenge the firearm's relationship to

Rather, Wight argues that his mere presence

the van is, by itself, insufficient to establish the "knowing

possession"

element of

section 922(g)(1).

We

find sufficient

evidentiary support in the record for the jury determination that

appellant was a felon in possession of the firearm.

In

the context

of drug offenses,

"[k]nowledge may be inferred from

Lochan, 674
______

F.2d 960,

possession."

966 (1st Cir.

either actual or constructive,

Vargas, 945 F.2d 426, 428
______

we have

1982).

found that

United States v.
________________
Possession

sole or joint.

can be

United States v.
_________________

(1st Cir. 1991); Batista-Polanco,

_______________

927

F.2d at 19; United States v. Martinez, 922 F.2d 914, 923-24 (1st
__________________________
Cir. 1991); United States v. Latham, 874 F.2d
_______________________
1989);

United States v. Calle-Cardenas,

________________________________

852, 861 (1st Cir.

837

F.2d 30,

32 (1st

-99

Cir.), cert. denied, 485

_____________

U.S. 1024 (1988).

constructive

the

possession,

defendant

"had dominion

contraband

was found."

549

and

In

government must
control over

order to
prove

the

United States v. Barnes,

________________________

show

that

the

area where

the

890 F.2d 545,

(1st Cir. 1989), cert. denied, 494 U.S. 1019 (1990); Vargas,

____________
945 F.2d

at 428

(constructive possession found

was sole tenant

and occupant of

police raid); Lochan, 674

______
driver

owned

constructive

apartment immediately prior

cocaine

through the

evidence; however,

another who

found behind

passenger).

possession

circumstantial
with

by

possessed

establish constructive

where defendant

F.2d at 966 (reasonable to

knowingly possessed

automobile

______

government

use

of

possession.

may

of

show

either direct

mere presence

the contraband

infer that

rear seat

The

to

or

or association

is insufficient

to

Batista-Polanco, 927 F.2d at

_______________

18; Barnes, 890 F.2d at 549.

______
While
violations
949 F.2d 8,
S.Ct.

this

of 18 U.S.C.

court

has

upheld

convictions

922(g)(1), United States v. Minnick,

_________________________

10 (1st Cir. 1991), cert. denied,

____________

___ U.S. ___, 112

1698 (1992); United States v. Donlon, 909 F.2d 650, 655-56

_______________________

(1st Cir. 1990); United States v. Rumney, 867 F.2d 714,

_______________________
Cir.

1989)4, and

has discussed

context of 18 U.S.C.
3, 5-6

for

(1st Cir.

719 (1st

constructive possession

in the

922(h), United States v. Lamare, 711 F.2d

________________________

1983), we have

not passed

upon a

conviction

____________________

4Rumney was convicted as a felon in possession of a firearm under

18 U.S.C. App.
1202(a)(1).
This section was repealed and
reenacted in broader form, and recodified at 18 U.S.C.
922(g).

-1010

under

section

possession.5
the element

922(g)(1)
Today, we

felon

theory

of

constructive

make explicit the obvious and

find that

section 922(g)(1) may

proving that the defendant was in constructive

of a firearm.

We hold

knowingly has the power and

of exercising dominion
area

on

of "knowing possession" under

be established by
possession

based

and control

that as long

as a convicted

the intention at a given time

over a firearm

or over

the

in which the weapon is located, directly or through others,

he is in possession of the firearm.

circuits

which

possession

have

in the

applied

context

the

In so holding, we join other

concept

of prosecutions

of
under

constructive
18 U.S.C.

922(g)(1).6
____________________

5Constructive possession of a firearm has been discussed in First

Circuit cases in a different context.
In United States v.
__________________
Parent, 954 F.2d 23 (1st Cir. 1992), we vacated a judgment of
______
conviction under section 922(g)(1) where the trial court erred in
giving the jury a supplemental instruction on constructive
possession without first informing the attorneys of the jury's
request.
In the instruction, attached as an appendix to the
opinion, constructive possession was defined. 954 F.2d at 28.
In the second case, United States v. Jackson, 918 F.2d 236, 243
________________________

(1st Cir. 1990), we simply alluded to the fact that there was
overwhelming evidence of either actual or constructive possession
of the firearm in dismissing an alleged ineffective assistance of
counsel claim.

6United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992); United
_____________________
______
States v.
McKnight, 953 F.2d
898, 901 (5th
Cir. 1992)
_____________________
(constructive possession where defendant knowingly has ownership,
dominion or control over contraband itself or over premises where
contraband is located), petition for cert. filed, 60 U.S.L.W.
_________________________
___, (U.S. Apr. 30, 1992) (No. _____); United States v. Moreno,
________________________
933 F.2d 362, 373 (6th Cir.), cert. denied, ___ U.S. ___, 112
____________
S.Ct. 265 (1991); United States v. Wainwright, 921 F.2d 833, 836
___________________________
(8th Cir. 1990); United States v. Sullivan, 919 F.2d 1403, 1430
__________________________
(10th Cir. 1990); United States v. Terry, 911 F.2d 272, 278 (9th
______________________
Cir. 1990); United States v. Garrett, 903 F.2d 1105, 1110 (7th
_________________________
Cir.) ("[c]onstructive possession exists when a person does not
_________________________________________________________
have actual possession but instead knowingly has the power and
_________________________________________________________________
-1111

While
established

appellant

only his

weapon was located,

light

mere
we think

Wight

argues

presence in

that
the

the

government

vehicle where

that the evidence,

viewed in

the

the

most favorable to the government, allowed the jury to find

beyond a reasonable doubt that he was

of the

weapon.

First,

it was established that

taken to the residence he

drug transaction was

in constructive possession

shared with Fields the day

scheduled to occur and then

the van sometime prior to the actual meeting.

entirely

reasonable for

with Fields,

the firearm was

the jury to

exercised dominion

transferred to

It would have been

infer that

and control

before the

Wight, jointly

over the

which the gun had been delivered and, accordingly,

house to

had knowledge

of the weapon's presence in the residence and its transfer to the

van.

See United States v. Munoz-Romo,

___ ____________________________

947 F.2d

170, 177 (5th

Cir. 1991), petition for cert. filed, 60 U.S.L.W. 3761 (U.S. Jan.
________________________
7,

1992) (No. 91-1593); United States v. Smith,

_______________________

1085-86

(5th

Cir.

1991).

appellant to argue that he

by Fields.
contact

The evidence

with the

the buyers

and, at

transacted

the sale.

it

is

disingenuous

was merely present in the

established that Dunbar

buyers because

pounds of marijuana.

that he, and

Second,

930 F.2d 1081,

of his

van driven

put Wight

ability to

for

in

supply ten

Wight participated in the negotiations with

the time

of the

drug deal,

It was reasonable

not Fields, was in charge of

it was

for the jury

he who

to infer

the operation and, as

____________________

the intention at a given time to exercise dominion and control

_________________________________________________________________
over an object, either directly or through others") (emphasis in
__________________________________________________
original), cert. denied, ___ U.S. ___, 111 S.Ct. 272 (1990).
____________
-1212

such, exercised

control over Fields, the van,

its contents, and

the firearm.
We

think

that

participation and presence

the

facts

in the van

surrounding

Wight's

are different from

cases

where courts have absolved vehicle passengers of weapons charges.

See Blue, 957 F.2d at 107-08 (only evidence produced was weapon's
___ ____
discovery

in vehicle

and testimony

that defendant

"dipped his

shoulder" as police officer approached vehicle); United States v.

________________
Soto, 779
____

F.2d 558, 560 (9th Cir.

weapon to a

passenger in a car

not

dominion or

to the

(1987).
presence
it

goes only to

its accessibility,

control"), cert. denied, 484

_____________

U.S. 833

Here, there was ample evidence to establish that Wight's

in the van was for the

could be inferred

U.S.C.

1986) ("[m]ere proximity of a

922(g)(1),

from this

he, as

purpose of drug trafficking and

fact that,

convicted

dominion or control over the vehicle

the firearm.

The gun

for purposes

of 18

felon, exercised

joint

and its contents, including

was contained in a zippered case

partially open and readily accessible to Wight.

that was

The proximity of

the

firearm to the passenger

fact-finder to

convict of both

commission

of a

drug

possessing

the

gun

922(g)(1).

and the illegal

See
___

possessing a firearm

offense, 18
after

cargo allowed the

U.S.C.

felony

924(c)(1), and

conviction,

United States v. Wright,

________________________

during the

932 F.2d

18

U.S.C.

868, 881

(10th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 428 (1991).
____________
Affirmed.
Affirmed
________

-1313

of