Page 31 - TPA Journal March - April 2018
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when he made purchases there. vides sufficient evidence to establish all three ele-
Count I of the indictment charged Suarez with ments. A conviction, especially one accompa-
conspiracy to possess with intent to distribute nar- nied by an accomplice instruction, may be sus-
cotics in violation of 21 U.S.C. § 846. Count II tained on the uncorroborated testimony of an
charged possession of the pistol and Winchester accomplice so long as the testimony is not
shotgun in furtherance of a drug trafficking incredible or otherwise insubstantial on its face.
offense in violation of 18 U.S.C. § 924(c). Counts The district court gave the jury an accomplice
III and IV alleged possession of the unregistered instruction. Gutierrez testified that Suarez assist-
Winchester and Ithaca shotguns in violation of 26 ed her in selling methamphetamine and divided
U.S.C. § 5861(d). Suarez moved for acquittal on the proceeds with her. Her testimony is neither
Counts III and IV under Federal Rule of Criminal incredible nor insubstantial on its face.
Procedure 29, but the district court denied the
motion. The proposed jury charge and verdict Gutierrezs testimony was not the only evidence
form for Count II did not require the jury to spec- of Suarezs involvement in the drug distribution
ify which firearmthe pistol or the Winchester conspiracy. Officers testified that they found
supported guilt on Count II, and Suarez did not Suarez in the master bedroom with Gutierrez and
object at trial. that the bedroom contained a distributable quanti-
ty of methamphetamine, packing and weighing
The jury found Suarez guilty on all four counts. materials, security cameras, guns, and body
armor. Puckett testified that Suarez was usually
We review claims preserved through a Rule 29 present when he bought drugs from Gutierrez,
motion de novo, but with substantial deference to Suarez had answered Gutierrezs phone before,
the jury verdict. We affirm if a reasonable trier and Puckett went to the hotel where he was arrest-
of fact could conclude . . . the elements of the ed because he assumed the male officer who
offense were established beyond a reasonable answered Gutierrezs phone was Suarez. Suarez
doubt. In reviewing the sufficiency of the evi- argues that Gutierrez and Puckett are unreliable
dence, an error is clear or obvious only if the witnesses, but we generally will not disturb (the
record is devoid of evidence pointing to guilt, or jurys) verdict [or] weigh the credibility of wit-
. . . the evidence on a key element of the offense nesses. The record is not devoid of evidence
[i]s so tenuous that a conviction would be shock- pointing to guilt, nor is the evidence so tenuous
ing. Relief is appropriate under this exacting that a conviction is shocking.
standard only if the Governments evidence is
obviously insufficient and the defendant shows To support a conviction for possession of a
a manifest miscarriage of justice. Under both firearm in furtherance of a drug trafficking crime,
standards, we view[] the evidence in the light the Government must prove that Suarez had either
most favorable to the verdict and draw[] all rea- actual or constructive possession of a firearm and
sonable inferences from the evidence to support that the possession further[ed], advance[d], or
the verdict. help[ed] forward the drug trafficking offense.
The following non-exclusive factors are relevant
To prove a drug conspiracy, the Government must to determining whether possession is in further-
prove (1) an agreement between two or more per- ance of a drug trafficking crime: (1) the type of
sons to violate narcotics laws; (2) knowledge of drug activity conducted; (2) the accessibility of
the agreement; and (3) voluntarily participation in the firearm; (3) the type of firearm; (4) whether
the agreement. Gutierrezs testimony alone pro- the firearm is stolen; (5) the legality of the pos-
March/April 2018 www.texaspoliceassociation.com • 866-997-8282 27
