USCA1 Opinion
November 10, 1993 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1375
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM DELEON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Selya, Cyr and Stahl, Circuit Judges.
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Marie T. Roebuck on brief for appellant.
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Edwin J. Gale, United States Attorney, Stephanie S. Browne
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and Gerard B. Sullivan, Assistant United States Attorneys, on
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brief for the United States.
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Per Curiam. Defendant-appellant William DeLeon appeals
Per Curiam.
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his conviction on one count of using a firearm during and in
relation to the commission of drug trafficking offenses.1 See
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18 U.S.C. 924(c)(1) (1988). He posits three claims of error.
None suffice.
I
I
Appellant's challenge to the sufficiency of the
evidence is unavailing. Following a guilty verdict, a reviewing
court must scrutinize the record, drawing all reasonable
inferences in favor of the verdict, to ascertain if a rational
jury could have found that the government proved each element of
the crime beyond a reasonable doubt. See United States v.
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Echeverri, 982 F.2d 675, 677 (1st Cir. 1993); United States v.
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Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied, 113 S.
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Ct. 1005 (1993). The government can satisfy its burden of proof
by either direct or circumstantial evidence. See Echeverri, 982
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F.2d at 679; United States v. Rivera-Santiago, 872 F.2d 1073,
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1079 (1st Cir.), cert. denied, 492 U.S. 910 (1989). To sustain a
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conviction, a reviewing court need not conclude that only a
guilty verdict could appropriately be reached; it is enough that
the jury's determination draws its essence from a plausible
reading of the record. See Echeverri, 982 F.2d at 677; Ortiz,
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966 F.2d at 711. Using these guideposts, the quantum of evidence
adduced here, though largely circumstantial, is adequate to the
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1Appellant was simultaneously charged with two drug
trafficking counts. He pled guilty to those charges and they are
not before us.
2
task.
In United States v. Hadfield, 918 F.2d 987 (1st Cir.
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1990), cert. denied, 111 S. Ct. 2062 (1991), a section 924(c)(1)
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case, we made it pellucid that where a drug trafficker is not
carrying a gun on his person, but has one nearby, the court's
critical concern is not whether the weapon was "instantly
available" or "exclusively dedicated to the narcotics trade," but
whether it was "available for use" in connection with the
narcotics trade. Id. at 998. See also Smith v. United States,
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113 S. Ct. 2050, 2059 (1993) (explaining that a weapon meets the
statutory test if its presence, rather than being accidental or
coincidental, facilitates, or has the potential of facilitating,
the drug trafficking offense). We think the case at hand is
largely governed by Hadfield.
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DeLeon was apprehended in an uninhabitable apartment
that served or so the jury supportably could have found as a
drug distribution outlet. Drugs and a handgun were thrown from
the window as the police effected an entry. Appellant was the
sole person discovered inside the apartment. He admitted to an
INS agent, Bernstein, that he knew the pistol was kept at the
premises where drugs were being sold. We think this evidence is
more than ample. Applying the Hadfield standard, a rational jury
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could certainly find a facilitative nexus, that is, the jury
could reasonably conclude that the weapon was kept in the
apartment to be "available for use" during and in relation to the
ongoing drug trafficking and that appellant knew as much. See
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3
United States v. Abreu, 952 F.2d 1458, 1466 (1st Cir.) ("Even
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though a weapon is never fired, if it is kept nearby by a drug
dealer, it is 'used' so as to satisfy the statutory
requirement."), cert. denied, 112 S. Ct. 1695 (1992); United
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States v. Castro-Lara, 970 F.2d 976, 983 (1st Cir. 1992)
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(collecting cases), cert. denied, 113 S. Ct. 2935 (1993); see
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generally United States v. Ingraham, 832 F.2d 229, 240 (1st Cir.
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1987) ("The law is not so struthious as to compel a criminal jury
to ignore that which is perfectly obvious."), cert. denied, 486
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U.S. 1009 (1988). The jury was also free to conclude from the
collocation of circumstances that appellant constructively
possessed the firearm. See, e.g., United States v. Winslow, 962
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F.2d 845, 852 (9th Cir. 1992); Hadfield, 918 F.2d at 998; United
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States v. Malin, 908 F.2d 163, 168-69 (7th Cir.), cert. denied
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498 U.S. 991 (1990). No more was exigible.2
II
II
Appellant next complains that the prosecution failed to
fulfill the requirements imposed by Brady v. Maryland, 373 U.S.
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83, 87 (1963), and by the Jencks Act, 18 U.S.C. 3500 (1988).
This complaint misconstrues the constraints under which the
government must operate in a criminal case.
Appellant brands three different pieces of "evidence"
as improperly withheld. The first item is a supposed Bureau of
Criminal Identification report. The record fails to show that
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2Appellant's furtive actions he admitted, for example,
having defenestrated the narcotics inventory as trouble loomed
were frosting on the cake, so to speak.
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any such report ever existed. The second item, never precisely
described, concerns "Jose Garcia." The reference is puzzling:
although the prosecutor mentioned Garcia fleetingly in cross-
examining appellant, the record does not contain even a whisper
of a hint of a suggestion that the government possessed any
statement from, report concerning, or other concrete information
anent "Jose Garcia." The government is surely not required to
disclose nonexistent documents or information unknown to it.
See, e.g., United States v. Aichele, 941 F.2d 761, 764 (9th Cir.
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1991); United States v. Glaze, 643 F.2d 549, 552 (8th Cir. 1981).
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The last piece of evidence is a so-called "N.C.I.C.
report." This report was, in fact, given to appellant, albeit
belatedly but appellant neglected to seek a continuance when he
received the report and, what is more, he has failed to show the
slightest prejudice arising from the delayed disclosure.3 Thus,
even assuming, arguendo , that the N.C.I.C. report comes within
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the Brady realm, the assignment of error founders. See, e.g.,
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United States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990); United
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States v. Ingraldi, 793 F.2d 408, 413 (1st Cir. 1986).
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III
III
Appellant's final claim of error relates to the
district court's admission of the handgun into evidence. The
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3The N.C.I.C. report contained only a single piece of
(negative) information: it indicated that the handgun was not
listed as stolen property. It is hard to see how this tidbit
comprised relevant evidence. See Fed. R. Evid. 402.
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centerpiece of this claim is the asseveration that the government
did not satisfactorily forge the chain of custody. We have
examined the record closely and are satisfied that, here, the
arguable gaps in the chain of custody go to the weight of the
evidence rather than to its admissibility. See, e.g., United
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States v. Ladd, 885 F.2d 954, 956 (1st Cir. 1989). No error
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inhered.
IV
IV
We need go no further. Our perscrutation fully
persuades us that appellant's legal arguments lack merit and
that, therefore, his conviction must stand.
Affirmed. See 1st Cir. Loc. R. 27.1.
Affirmed. See 1st Cir. Loc. R. 27.1.
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