Page 32 - TPA Journal March - April 2018

session; (6) whether the gun is loaded; (7) the fied that Suarezs role as a male overseer to
proximity of the weapon to the drugs; and (8) the Gutierrez was typical in drug deals.
time and circumstances under which the firearm is
found. The mere presence of a firearm is insuf- The jury was entitled to credit this evidence and
ficient. When evidence of more than one firearm testimony and find that Suarez actively assisted
is presented to the jury to support a single count Gutierrez in her drug trafficking operations. There
under 18 U.S.C. § 924(c)(1)(A), the jury is not is support for the jurys conclusion that Suarez
required to agree unanimously on which weapon possessed at least one of the two firearms found in
the defendant possessed. the master bedroom and that such possession fur-
thered the drug trafficking crimes.
There is some question as to whether the
Winchester shotgun could function as a firearm at Suarez also challenges his conviction on Count II
the time it was found in the master bedroom. The based on the failure of the district court to require
shotgun was partially disassembled and was in that the jury unanimously determine which
three pieces. The stock was not connected and was firearm formed the basis of the conviction. We
lying on the floor under the bed. The portion of the have also held that the jury need not unanimously
shotgun that contained a shell was in a black bag agree on which firearm supports the conviction for
under the mattress, and the top piece of the shot- this offense. For purposes of a conviction under
gun was along the bed rail. The testimony at trial 18 U.S.C. § 924(c)(1)(A), whether a defendant
was that in this disassembled condition, the used a particular firearm pertains to the means by
weapon could be fired but that it would not be safe which the crime was committed, and therefore a
to do so because [t]heres not a very good spot to jury is not required to determine unanimously that
hold onto the shotgun unless youre holding near a particular firearm was used when an indictment
the breach. There was a possibility, a very dis- charges that more than one firearm was possessed.
tinct one that if you had made an attempt to fire Possession of a particular type of firearm is an ele-
that weapon, you probably would have injured ment of the offense for purposes of the statutory
yourself. There was no evidence as to how quick- ten year minimum sentence but not for a convic-
ly the Winchester could have been re-assembled. tion of possession of a firearm in furtherance of
Nevertheless, we cannot say that the record is drug trafficking crime.
devoid of evidence pointing to guilt, or . . . the
evidence on a key element of the offense [i]s so Counts III and IV charged Suarez with possession
tenuous that a conviction would be shocking of unregistered firearmsthe Winchester and the
had the jury based its verdict on the Winchester Ithacain violation of 26 U.S.C. § 5861(d).
shotgun. In any event, both the Winchester and [P]ossession may be actual or constructive.
the pistol were in the same room as, and accessi- Constructive possession is established when the
ble to, Suarez when the police found him, as were evidence supports a plausible inference that the
the drugs and distribution paraphernalia, surveil- defendant had knowledge of and access to the
lance equipment, and body armor. Gutierrez testi- weapon or contraband.
fied that Suarez knew about the Winchester and
that he gave her the pistol. Suarez was an Police found parts of the Winchester in plain sight
overnight guest at the house. Officer Benavides and close proximity to Suarez, who was an
testified that Sharp identified Suarez as consul overnight guest in the house.3 Gutierrez and
for Gutierrez and stated that Suarez would sit with Benavides testified that Suarez knew of the
a firearm during drug deals. Another officer testi- Winchester and sometimes carried a sawed-off

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