USCA1 Opinion

June 2, 1992
____________________
No. 91-2301
UNITED STATES OF AMERICA,
Appellee,
v.
RONALD J. PLUMMER,
Defendant, Appellant.
____________________
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.
______________
____________________

Marvin H. Glazier with whom Vafiades, Brountas & Kominsky was

_________________
______________________________
brief for appellant.
F. Mark Terison, Assistant United States Attorney, with w

________________
Richard S. Cohen, United States Attorney, was on brief for the Uni
_________________
States.
____________________
____________________

____________________
*Of the District of Puerto Rico, sitting by designation.

CAMPBELL,

Senior Circuit Judge.

____________________

Plummer, appeals from

the United

Defendant, Ronald

his conviction after a bench

States District Court

for the District

trial in
of Maine

for using and carrying a firearm during and in relation

drug

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

investigation, confidential informant Paul Kinney arranged to

purchase cocaine
buyer.
had never

from defendant

While defendant had

met or dealt

allegedly making the

to

an interested

known Kinney for

six years, he

with the

purchase.

bring the drugs to

payment.

on behalf of

buyer for whom

Kinney was

Initially, defendant

agreed

Kinney's door where

he would receive

At some point, however, defendant

told Kinney that

he would not be able to procure any cocaine and that he could

only provide marijuana.
defendant

While Kinney

that the buyer was

accepted this, he told

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.
-2-

several miles to make this deal.

through,

defendant was apparently

After the cocaine deal fell

reluctant to

deliver the

marijuana directly

to Kinney's house.

Taped

conversations

revealed that defendant tried to get Kinney to meet him

store.

Upon cross-examination,

defendant admitted that

did not want to go anywhere near

at a
he

the unknown buyer after the

cocaine deal fell through.

Eventually,
wait

defendant agreed to

residence

and

for Kinney

purchase.

On February 27, 1991,

his automobile, sold

for

$750.

At

to

come

out

to make

of the

sale, Kinney

outside of the car on the driver's side.

William Keegan

to Kinney

was standing

After defendant was

noticed a

fully functioning

Titan Tiger, .38 caliber revolver tucked into the

of the car

"sitting against

where the driver

holster with

the barrel

loaded, Keegan found a

on

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

easy reach of defendant and "immediately accessible."

-3-

not

the console

testified

the handgun that

directly

gun was

.38 caliber cartridge in

used in

the

defendant, while sitting in

a quarter pound of marijuana

the time

arrested, Agent

drive to Kinney's

further

After administering Miranda warnings

a

written

waiver of

rights,

defendant about the gun.

he

Agent

and receiving

Peter Arno

questioned

Arno testified that defendant said

had the weapon for approximately one week and that Norman

Allen had given

it to him "to hold."

Arno testified further

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

Later, at trial, defendant testified

or moved the gun after Allen placed it

he simply "left it in the vehicle"

gun was on the passenger seat

behind him.

and that

next to him as opposed to

He also testified that he did not know there was

a bullet in the car and that he had no idea how it might have
gotten there.
testimony that
given

it

tucked

Norman

Allen

he was the owner

to defendant

of the gun and

to hold.

the gun between the

confirmed defendant's

Allen testified

where

a little

the driver

bit."

He

would sit.

defendant

any

ammunition,

certainly

did

not."

that he

driver's seat and passenger seat

of defendant's car with "the barrel end

the seat

that he had

of the gun just into

denied having
When
Allen

He further

asked if
replied
testified

defendant were "[n]ot really" good friends.

placed the
he
that
that

gun

had given
he

"most
he

and

After
parties'

hearing all the

briefs the

district

beyond a reasonable doubt.

testimony and reviewing the

court found

defendant guilty

This appeal followed.

-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

convicted provides in pertinent part that

[w]hoever, during and in relation to any
crime of violence or drug trafficking
crime . . . 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 of not more than 5 years
. . . .
18 U.S.C.
this

924(c)(1).

statute,

the

government

reasonable doubt (1) that

to"

or played a

To establish defendant's guilt under

needed

to

prove

the firearm at issue was

role in an

underlying drug

beyond

"related

crime; and (2)

that the defendant

States
______

"used" or "carried" the firearm.

v. Torres-Medina,
_____________

1991).

935 F.2d

Defendant concedes that

1047, 1048-49

the presence of

United
______
(9th Cir.

the gun in

his vehicle was sufficient to establish the second element of

the

crime

States
______
495

-- that

he "carrie[d]

firearm."

v. Eaton, 890 F.2d 511, 512 (1st Cir.), cert. denied,

_____
____________

U.S. 906 (1989).

Defendant

argues, however,

evidence was

insufficient to establish the

the

that

crime

he carried the

defendant, the

gun was

that the

first element of

gun "in relation

drug trafficking crime for which he was convicted.

to

See United
___ ______

not loaded,

to" the
According

it remained

in its

-5-

holster and he
toward it.

neither brandished it

nor made any

Furthermore, defendant contends

is devoid

of evidence that the

to have a

gun or

conversations with

movement

that the record

informant expected defendant

that defendant exhibited

the informant.

fear during

his

Rather, defendant argues,

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

committed the drug trafficking

of a

gun

during the

course of

criminal conduct will not support a conviction, United States

_____________
v. Payero, 888 F.2d 928, 929 (1st Cir. 1989).
______
III.
III.
In assessing a challenge
evidence, this

court

including reasonable
most

favorable

to

looks

to the

the

verdict,

beyond a reasonable doubt.

14,

17

(1st Cir.

United States v.
______________

be

to

whole,

in the light

determine

whether

found the defendant guilty

1991).

The

evidence

may

the factfinder may choose

reasonable interpretations of it.

credibility must

as

United States v. Batista-Polanco,

_____________
_______________

entirely circumstantial and

of

evidence

inferences drawn from it,

rational trier of fact could have

927 F.2d

to the sufficiency of the

Id.
___

resolved in

among

Moreover, all issues

favor of

Passos-Paternina, 918
________________

-6-

be

the verdict.

F.2d 979,

983 (1st

Cir. 1990), cert. denied,

____________

111 S. Ct. 1637 and

___

cert. denied,
____________

111 S. Ct. 2809 (1991).

Viewing the evidence in the light most favorable to
the verdict,

we believe that the evidence

was sufficient to

allow a rational trier of fact to conclude that defendant was

guilty beyond

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

defendant's sole purpose in carrying the weapon need not have

been facilitation

of the

888 F.2d

It

at 929.

drug trafficking crime."

Payero,
______

could reasonably be inferred

that the

gun found

here in defendant's car was

available

for possible

transaction.
gun.

use or

intended by him to be

otherwise to

facilitate the

There was evidence that defendant had moved the

Agent Keegan testified that the gun was found "sitting

against the back seat

Norman Allen

who

directly where the driver

allegedly gave the gun to

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

There was also evidence

about the

buyer and

when he

and the

that defendant was

because of

cocaine

gun to

deal

the unknown

fell

through.

-7-

Finally,

defendant's

bullet,
car

usable

in

the

easily accessible

to

gun,
the

was

found

driver.

in

Allen

testified that he never gave defendant any ammunition for the

gun.

He further testified

really" good friends.

From

that he and

defendant were "not

this evidence the district court

judge drew the following inferences:

I

draw the clear inference from

these
circumstances
and
beyond
a
reasonable
doubt
that
the
weapon
facilitated
his
involvement
in
trafficking
by
being
visible
and
available and strategicly [sic] located
so as to be quickly and easily available.
I do not find that he could have
forgotten its location there.
It was
there every time he got in and out. I do
not have to find, in order to find him
guilty, that it was in the car solely to
facilitate the Kinney transaction.

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

were not unreasonable.2

certainly reasonable to believe that

It

a person who while

____________________
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

carrying the gun in

relation to the

drug transaction.
It is true

the gun

was not loaded,

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

the case show that the

But

was that the

All

that

"circumstances of

firearm facilitated or had a

emboldening

an

actor

himself or

intimidate others,

display or discharge in
v.

U.S. 837 (1989); Payero,

______
may permit
choose

among reasonable

Batista-Polanco, 927 F.2d

_______________
Hilton, 894
______

970 (7th Cir.),

888 F.2d at 929.

other inferences,

F.2d 485, 487

had

not such

United States
_____________

cert. denied, 493

____________
While the

the factfinder is

interpretations of

the

weapon to

whether or

fact occurred. . . ."

Rosado, 866 F.2d 967,

______

role in

who

opportunity or ability to display or discharge the

protect

was

facts

entitled to

the evidence.

at 17; see also United States

_________ _____________
(1st Cir. 1990)

v.

(the prosecution

"need not exclude every reasonable hypothesis of innocence so

long as

the total

evidence permits

-9-

a conclusion of

guilty

beyond a
the

reasonable doubt.").

"Ultimately, whether

or not

gun[] helped appellant commit the drug crime is a matter

for a [trier of fact] applying common sense theories of human

nature and causation."
22,

26 (1st

United States v. Wilkinson, 926

_____________
_________

Cir.), cert. denied, 111

_____________

Moreover, "assessing

no

2813 (1991).

the credibility of witnesses

the province of the trier of fact."

887

S. Ct.

in the

district

court's

is solely

United States v.
_____________

F.2d 25, 28 (1st Cir. 1989) (citation omitted).

error

F.2d

finding that

Green,
_____
Finding

defendant

carried the gun in relation to the drug trafficking crime, we

affirm defendant's conviction.
Affirmed.
________

-10-