Opinion
No. S8 02 Cr. 1301 (GEL).
March 16, 2005
Robert Ramsey, Jr., Ramsey Price, Los Angeles, California, for Defendant Jaime Chavez.
Anirudh Bansal, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, Eric Snyder, Assistant United States Attorney, of counsel), New York, NY, for the United States of America.
OPINION AND ORDER
Following a two-week jury trial, defendant Jaime Chavez was found guilty on January 14, 2005, of conspiring to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A), and of possession of a firearm equipped with a silencer in furtherance of that offense, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(1)(B)(ii), and acquitted of an additional firearms charge. Chavez now moves for a judgment of acquittal on the firearms charge pursuant to Fed.R.Crim.P. 29(c), and in the alternative for a new trial pursuant to Fed.R.Crim.P. 33. The motions will be denied.
Chavez concedes that the evidence was sufficient to prove him guilty of the narcotics conspiracy charge, and of possession of the silencer-equipped firearm. He argues only that the evidence was insufficient to permit a reasonable jury to find beyond a reasonable doubt that he possessed the firearm in furtherance of the conspiracy, as required by 18 U.S.C. § 924(c).
In considering a motion for acquittal under Rule 29, the Court "must determine wheather upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilty beyond a reasonable doubt."United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (quoting United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (internal quotation marks omitted)). The motion must be denied if " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."United States v. Resto, 824 F.2d 210, 212 (2d Cir. 1987) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (internal quotation marks omitted; emphasis in original).
The relevant criminal statute prohibits possession of a firearm "in furtherance of" any drug-trafficking crime. 18 U.S.C. § 924(c)(1)(A). This requirement may be satisfied by proof of "some nexus between the firearm and the drug selling operation."United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001). While Chavez points out that in this case the firearm was not found in close proximity to any narcotics (Mot. 5), such proximity is neither necessary nor in itself sufficient to establish the requisite connection. As the Court of Appeals for the Ninth Circuit has recently pointed out, to "further" means "to help forward . . . promote [or] advance." United States v. Krouse, 370 F.3d 965, 967 (9th Cir. 2004) (quoting Merriam-Webster's Third New International Dictionary (2002)) (internal quotation marks omitted). Evidence that a gun was found in close proximity to a drug stash may be probative that the gun was intended to promote the trafficking offense by being available for use to protect the drugs or drug profits against the authorities, robbers, or rival drug dealers, but the jury must find furtherance beyond a reasonable doubt, and other facts may well be sufficient to establish that purpose.
Several appellate courts have identified factors that might be relevant to the jury in determining whether a firearm was possessed in furtherance of a narcotics conspiracy, including "the type of drug activity that is being conducted, accessibility of the firearm, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found." United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000). This list is non-exclusive; the ultimate question is whether the evidence in the case, taking into account the totality of the circumstances, would permit a reasonable jury to find beyond a reasonable doubt that the firearm was possessed in a manner that helped to promote or advance the drug-trafficking crime.
Here, there was ample evidence to permit such a conclusion. First, nearly all of the Ceballos-Torres factors (excepting only the proximity factor) point in the direction of furtherance. The "drug activity . . . being conducted" in this case, as charged in the indictment and found by the jury on the basis of a mountain of evidence including legally-wiretapped conversations of Chavez himself, was a nation-wide cocaine distribution organization of which Chavez was the chief operating officer. The scope of the activity itself supports an inference that firearms would be used in furtherance of the operation. The weapon was kept under the pillow of what a jury could readily have found was Chavez's bed, rendering it clearly accessible for use by Chavez. The nature of the weapon in question, a handgun equipped with a silencer and hollow-point ammunition, supports the inference that it was intended for use against people. No evidence associating Chavez with any other criminal activity other than drug dealing, still less with any legitimate purpose for possessing this type of weapon (if there be any), appears in the record. As Chavez told the authorities, the weapon was registered — but not to him. Thus, whether or not it was stolen, the jury could have found that the gun was possessed in a way that was not lawful and was calculated to obscure its ownership if it was used in furtherance of a crime. The gun was loaded, and it was found at a time when Chavez believed he was under surveillance by law enforcement and under threat of retaliation by individuals to whom he owed a drug debt. All of these factors (again, save the absence of drugs in proximity to the gun) militate in favor of a finding of nexus.
This is not a case, however, in which a gun just happens to be found in connection with the search of a drug dealer's person or premises, and the jury must resort to inferences from a generalized checklist of factors as to whether the presence of the gun was a coincidence or was related to the conspiracy. Rather, in this case there is highly specific evidence from which the jury could have specifically found that this firearm was intended for use in furtherance of the conspiracy.
In this case, for example, there was extensive evidence that the conspirators possessed any number of firearms in connection with their illegal activities. A government witness who was a member of the conspiracy maintained a stash house in New York from which three handguns were recovered. The witness's testimony established that these weapons were maintained for purposes of defending the drugs being distributed, and that this was not the first occasion on which he had possessed a weapon provided by another member of the conspiracy for this purpose. The jury could also infer that the gun in question was not merely Chavez's private property, but was associated with the conspiracy, because an arresting officer overheard one of his co-conspirators asking him, at the time of the arrest, whether the police had "found the gun. (Tr. 116.)
There was also evidence that Chavez himself possessed a number of weapons, and discussed the use of weapons in connection with the conspiracy. Tellingly, he was overheard asking an associate months before the seizure of the firearm in question about "the one with the silencer," to which the associate replied that the silencer should be tested on an automatic rifle, since "[t]hat little pistol ain't shit." (GX 5T.) The jury could reasonably have inferred that the.22 caliber firearm at issue was the same silencer-equipped "little pistol" being referred to in the earlier conversation. In the same conversation, Chavez comments that he should use that gun to kill a woman with whom he is conversing, because "she know[s] too much." (Id.) Chavez was also overheard telling another associate that he was in Phoenix to buy some guns. (GX 16T.) In another taped conversation, an associate tells Chavez that he looks "like a mother fucking Rambo" or a "commando" with a firearm that he has. (GX 17T.) In yet another conversation, Chavez is heard discussing supplying firearms to yet another colleague. (GX 28T.) Given Chavez's extensive use of the same telephones for drug-related conversations, the jury could readily have inferred that these gun conversations were related to the conspiracy.
Most important of all, the seizure of the silenced firearm occurred just days after Chavez was taped discussing with Gregorio Barraza, his chief lieutenant, his fear that he would be robbed and killed like another drug dealer of their acquaintance who had been killed over a drug debt. (GX 62T.) Chavez specifically noted that he was "crazy" and "desperate" to "cover that debt." (Id.) During the argument on defendant's motion for acquittal at the close of the government's case, there was some discussion of whether it would or would not be in furtherance of the conspiracy to possess a gun in order to defend oneself against possible retaliation by superiors within the organization. (Tr. 1021.) Upon reflection, however, the issue is beside the point. Chavez was at or near the apex of the conspiracy charged in the indictment; his uncle, Santiago Chavez-Ayon, whom the Government argued and the jury could have found was the head of the organization, was recorded similarly worrying about the possibility that drugs were being stolen from the organization (GX 11T), and that if Gregorio Barraza failed to maintain control of drugs and pay their debts the error would "get me killed and him killed at the same time." (GX 14T.) There is thus no reason to believe that the retaliation Chavez feared would have come from within the conspiracy. Even if, in some contexts, Chavez might be found to be conspiring with his own suppliers, in the context of this case there is no reason to believe that Chavez feared discipline within an organization, rather than murder at the hands of suppliers or others who are "jealous of us, or they don't like us, bro," as he confided to Barraza. (GX 62T.) Under these circumstances, possession of a weapon to defend oneself and other members of one's distribution organization against suppliers of narcotics who believe they are owed money is an act in furtherance of the distribution conspiracy charged in the indictment, because the goal of possessing the weapon is to keep the organization and its members alive and working in the face of threat from other, hostile drug dealers.
But the jury need not have adopted any such specific theory to find that Chavez possessed the firearm in furtherance of the narcotics conspiracy charged in this indictment. When a wholesale drug distributor who heads a nationwide cocaine organization that has supplied its members with guns to protect its shipments, and who himself has possessed various firearms and discussed using them with other members of the conspiracy, is overheard discussing his fear of being killed over a drug debt, and several days later is arrested with a man-killing weapon, equipped with a silencer and hollow-point bullets under his pillow, a reasonable juror would have no reasonable doubt that the weapon was connected to the conspiracy, and was not possessed coincidentally for some innocent purpose.
Accordingly, since the jury's verdict on the firearms count is supported by sufficient evidence, the motion for a judgment of acquittal on that count pursuant to Rule 29(c) is denied. As defendant cites no rationale for granting a new trial other than the purported weakness of the evidence against him, his alternative motion for a new trial on that count pursuant to Rule 33 is also denied.
SO ORDERED.