USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 94-1520
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS BERGODERE,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
_________________________
Before
Selya, Cyr, and Stahl, Circuit Judges.
______________
_________________________

David A.F. Lewis for appellant.

________________
Zechariah Chafee, Assistant United States Attorney, with
_________________
whom Sheldon Whitehouse, United States Attorney, was on brief,
__________________
for appellee.
_________________________
November 30, 1994
_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

first impression

in this

This appeal raises questions of

circuit concerning

how courts

apply the lessons of Batson v. Kentucky, 476 U.S. 79

______
________
its progeny.

After answering

the district

court did not

eliminate

the

lone

(1986), and

those questions, we conclude

err in permitting the

African-American

peremptory challenge.

should

Since

juror

appellant's

by

that

government to
means

of

other assignments

of

error are equally unavailing, we affirm the judgment below.

I.
I.

BACKGROUND
BACKGROUND
On March

9, 1993, a

team of law

enforcement officers

executed a search warrant at the residence of defendant-appellant

Carlos Bergodere in

Providence, Rhode Island.

arrived, only appellant and his

When the officers

wife, Cynthia Eastwood, were

on

the premises.
Appellant's apartment consisted of
area,

living room,

and two

bedrooms.

officers discovered three "browns" of

an operable
seat

During the

not

living room sofa.

corresponding

appellant's bedroom.

to

search, the

heroin in the kitchen1 and

.9 millimeter Luger pistol, fully

cushions of the

ammunition,

a kitchen, dining

loaded, under the

Several rounds of live

the

Luger,

The officers arrested

were

found

in

appellant and seized

additional quantities of heroin from his person.

In
indictment

due

season,

federal

grand

jury

returned

an

charging appellant with possession of a firearm after

____________________

1A "brown" is a common unit of sale in the heroin trade.

One brown comprises 50 glassine packets, each containing a dose
of heroin. A brown has a street value of approximately $500.
2

previous

felony

possession of heroin

conviction,

see
___

18

U.S.C.

with intent to distribute, see

___

922(g)(1),
21 U.S.C.

841(a)(1) & (b)(1)(C), and using a firearm during and in relation

to

drug-trafficking

crime,

see
___

18

U.S.C.

924(c)(1).

Appellant

entered a

empaneled a jury.

"not

Contrary

guilty"

plea.

In

time, the

court

to the more common federal practice,

the judge permitted the attorneys to conduct the voir dire.

In the course of jury selection, the following colloquy

took

place

between

the prosecutor

and

black venireperson,

Robert Goodrum.
Mr. Chafee:
Mr. Chafee:
sir?

Mr. Goodrum, where do you work,

Mr. Goodrum:
I work in Newport.
I'm area
Mr. Goodrum:
director for an adolescent outreach program.
Mr. Chafee: . . . [A]re these young people
Mr. Chafee:
who are having trouble in the community?
Mr. Goodrum: Yes, it varies from kids doing
Mr. Goodrum:
well, to kids in places like this.
*

Mr. Chafee:
Obviously you have a big heart
Mr. Chafee:
for people in trouble.
You're going to be
asked to sit in judgment on somebody.
Can
you be fair and
impartial to both the
Government and the defendant in this case,
listen to the evidence and call it . . .
according to the law given to you by Judge
Lagueux?
Mr. Goodrum: Well, it will be a struggle but
Mr. Goodrum:
I know I can do it right, yeah.
Later

on, defense counsel

engaged in a

colloquy with

Mr. Goodrum.
Mr. Gillan: . . . Why do you feel it would
Mr. Gillan:
be a struggle for you to sit in judgment on
3

this case?
Mr. Goodrum: I just have problems I guess
Mr. Goodrum:
with adults and drugs as I deal with kids and
drugs.
*

Mr. Gillan: And what if an adult is addicted

Mr. Gillan:
to drugs. How does that make you feel?
Mr. Goodrum:
. . . I can deal with that. I
Mr. Goodrum:
mean, you know, when I think about people who
might be soliciting I have problems.
Mr. Gillan:
Mr. Gillan:
children?

People

Mr. Goodrum:
Mr. Goodrum:

might

be

soliciting

Right.

Mr. Gillan:
Okay.
but if that's not the
Mr. Gillan:
evidence in this case then . . . you won't
have a problem with that?
Mr. Goodrum:
Mr. Goodrum:
with it.
The
service.

Then I wouldn't have a problem

prosecution

Appellant

dismissed

objected.

strike, apparently finding

The

Goodrum

from

district court

further

upheld the

that appellant failed to make a prima

facie showing
animus.

that

In the

the strike

was

motivated by

race-based

process, the judge specifically noted

Goodrum's

avowed doubts as to whether he could be an impartial juror.

A

jury devoid

appellant on all counts.

II.
II.

of black

members eventually

convicted

This appeal followed.

THE PEREMPTORY CHALLENGE

THE PEREMPTORY CHALLENGE
Appellant's

prosecution's

most

challenge of

striking
the

argument

concerns

juror, Goodrum.

We begin

the

by

tackling that matter.

A.
A.

The Framework for Inquiry.

The Framework for Inquiry.
_________________________
4

The
criminal

Supreme Court

has recognized

trials potential jurors, as well

that

in civil

and

as litigants, have an

equal protection right to jury selection procedures that are free

from group stereotypes

rooted in, and reflective

prejudice.

v. Alabama, 114 S. Ct. 1419,

_______

See J.E.B.
___ ______

(finding gender, like race,

of, historical

to be an unconstitutional

1421 (1994)

proxy for

juror competence and impartiality); Powers v. Ohio, 499 U.S. 400,

______
402 (1990) (stating
of jurors

____

that racial discrimination in

offends the

dignity of persons

the selection

and the

integrity of

courts).
In

evaluating

an

equal

protection

challenge

to

prosecutor's use of

a peremptory strike, a

should be employed.

See Batson, 476 U.S. at 96-98; United States

___ ______
_____________

v. Perez, ___
_____
op.

at 3-4].

showing

See
___

fulfills this
of a

proffer
juror.
___, ___

First,

the

(1st Cir. 1994) [No.

defendant must

of discrimination in

strike.

case

F.3d ___, ___

Batson, 476
______

a race-neutral

93-1320, slip

make

a prima

the prosecutor's launching

U.S.

requirement by

racially driven

three-part framework

at 96-97.

If

explanation

of the

the defendant

establishing, say,
impetus,2 then

facie

a prima

the prosecutor

for having

facie

must

challenged

the

See id. at 97; see also United States v. Lewis, ___ F.3d
___ ___
____ ____ _____________
_____
(1st Cir.

prosecutor's

1994) [No. 93-1819,

burden is

burden of persuasion.

merely

a burden

slip op.
of

at 32].

production, not

If the prosecutor complies,

The

then, at the

____________________
2The three-part framework is the
race. See J.E.B., 114 S. Ct. at 1429.
___ ______
5

same for

gender as

for

third and final stage, the district court must decide whether the
defendant has

carried the ultimate

strike

constituted purposeful

race.

See Hernandez
___ _________

burden of

discrimination

v. New York,
________

proving that
on

500 U.S. 352,

the basis

the

of

358-59 (1991)

(discussing Batson); Perez, ___ F.3d at ___ [slip op. at 3-4].

______
_____

In making a Batson challenge, the defendant retains the

______
burden

of proof throughout.

As part

and parcel of this burden,

he must carry the devoir of persuasion regarding the existence of

a

prima

facie case

selection

of

process.

race-based discrimination

See
___

Batson,
______

476

U.S.

at

in

the jury

96-97.

The

combination of factors needed to establish a prima facie case are

limned in

Chakouian v. Moran, 975 F.2d 931, 933 (1st Cir. 1992).

_________
_____

Initially, the defendant must demonstrate that the

challenge
group.3

was directed

See Batson, 476 U.S. at

___ ______

Next, the defendant

rather

at

than

member

of

cognizable

thus

racial

96; Chakouian, 975 F.2d at 933.

_________

must show that the challenge

for cause,

prosecution's

bringing

into play

Court's admonition that "peremptory challenges

was peremptory
the

Supreme

constitute a jury

selection practice that permits `those to discriminate who are of

a

mind to discriminate.'"

Batson, 476 U.S. at 96 (quoting Avery

______
v. Georgia,
_______
must

345 U.S. 559,

_____

562 (1953)).

show circumstances sufficient,

antecedent

facts,

to

raise an

Finally,

the defendant

when combined with

inference

that

the two

the prosecutor

____________________

3The defendant and the challenged juror need not be members

of the same race. See Powers, 499 U.S. at 409-10 (eliminating
___ ______
Batson's "racial identity" requirement); Chakouian, 975 F.2d at
______
_________
934. Thus, the fact that appellant is not himself of AfricanAmerican ancestry does not end our inquiry.
6

struck the

venireperson on account of race.

prima facie

case requirement is

See id.
___ ___

While the

not onerous, neither can

it be

taken for granted.

B.
B.
This
standard

court

has

against which

defendant has

or

Standard of Review.
Standard of Review.
__________________
yet

to test

has not

to

articulate

a trial
made out

connection with a Batson challenge.

______

the

appropriate

court's ruling
a prima

that a

facie case

We do so today.

in

A careful reading of Batson convinces us that, although

______
this determination
law and
reviewed

can be characterized

fact, it is

fact-sensitive, and,

review applicable

trier's

to mixed

question,

resolution of

clearly erroneous.").
Court's

questions

U.S. at 97.

the

same

manner.

See generally
___ _________

it will

usually depends
continuum:

likely

be accepted

upon

the more

it is

that

unless shown

the

to be

Our holding is consistent with the Supreme

that trial judges, experienced

supervising voir dire, will likely

identify prima facie

the five

the more

expression of confidence

in conducting and

be

1328 (1st Cir. 1993) ("The standard

where they fall along a degree-of-deference

fact-dominated the

question of

therefore, should

under the familiar clear-error standard.

In re Howard, 996 F.2d 1320,

____________
of

as a mixed

cases of discrimination.

be able to

See Batson,
___ ______

476

Our holding is also consistent with the decisions of

other courts of

appeals that thus far

standard-of-review

problem and

have confronted

resolved

See United States v. Vasquez-Lopez,

___ ______________
_____________

it

22 F.3d

in like

900, 901

(9th Cir.), cert. denied, 115 S. Ct. 239 (1994); United States v.
_____ ______
_____________
7

Branch, 989
______

F.2d 752, 755 (5th

Cir.), cert. denied,

_____ ______

3060 (1993); United States v. Casper,

_____________
______

113 S. Ct.

956 F.2d 416, 418 (3d Cir.

1992); United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990);
_____________
_____
United States
_____________

v. Grandison, 885
_________

F.2d 143, 146 (4th

Cir. 1989),

cert. denied, 495 U.S. 934 (1990).

_____ ______

We
rejection
the

detect no

Analysis.
Analysis.
________

clear

error

of appellant's proffered

striking of

sufficient
certain

C.
C.

the

only juror

in

the

district

court's

prima facie case.

of

a particular

Although

race

can be

to ground a permissive inference of discrimination in

circumstances, see, e.g.,

___ ____

United States v.
_____________

Roan Eagle,
__________

867 F.2d 436, 441 (8th Cir.), cert. denied, 490 U.S. 1028 (1989),
_____ ______
such

strike

discrimination,

does
see
___

not

mere fact

only

of

give

discriminatory

intent.

necessary
22 F.3d

that the

particular

automatically

argument ordinarily

Vasquez-Lopez,
_____________

another way, the

juror

raise

rise

to
A

without
inescapable

defendant

should "come

902.

who

more,

the

does

not

inference

of

advances

forward with

of

Phrased

prosecutor challenges

race,
an

at

inference

facts, not

Batson
______

just

numbers

alone."

Moore, 895 F.2d at 485; accord United States v.

_____
______ _____________

Dawn, 897 F.2d 1444, 1448 (8th

____

Cir.), cert. denied, 498 U.S. 960

_____ ______

(1990).
Here,
either

direct

statistic on

the defendant
or

provided nothing

circumstantial proof

which he

relies.

This

to

in

the way

buttress

failure is

of

the naked

all the

more

glaring because the circumstances attendant to the Goodrum strike

8

point

away

from an

inference

of

discrimination.

involves a single strike, not multiple strikes.

other peremptories

were exercised in an

Appellant essayed no
prosecutor
pattern

or the

of suspicious strikes.

case

The government's

unexceptionable manner.

proffer showing that either

prosecutor's office

This

the particular

regularly

engaged in

The prosecutor's

questions and

statements during voir dire do not suggest racial discrimination,

but,

instead, seem

to reflect

juror's ability to reach

of

considerable

a concern

with the

prospective

a fair and impartial verdict.

importance,

as the

Court

has

This is

directed trial

judges

in

such

questions

and

circumstances
statements

to

during

purposeful discrimination.

and

drugs."
talesman

had a

The

further service.

"problem" with

prosecutor,

"ha[d] a

obligation either to

for

signs

of

colloquy between

lawyers reflects a legitimate,

it would "be a struggle"

that he

prosecutor's

why conscientious counsel

the juror from

admitted that

dire"

course, is that the

the prospective juror and the two

to exclude

voir

"the

Batson, 476 U.S. at 97.

______

The capstone, of

nondiscriminatory reason

examine

After

all, Goodrum

to achieve impartiality,

cases involving

"adults and

understandably

concerned

for people

in trouble,"

big heart

ignore these comments or to

value Goodrum's prediction

might desire

that
had

the

no

accept at face

that, in the end, he

could put aside

his "problem" and "do it right."

Voir

dire

represents

not

potential jurors to the factual and

only the

introduction

of

legal issues to be aired

at

trial,

see
___

Powers, 499
______

introduction to

U.S.

the venire.

at

412,

Its core

but also

the

purpose is to

lawyers'

provide a

firm foundation for

that

careful

stereotypes.

ferreting out bias.

voir

See
___

dire

between

eliminates

J.E.B., 114 S. Ct.

______

Whitt, 718 F.2d 1494,

_____

always easily drawn.

and

As

need

on

at 1429; United States

_____________

v.

1983).

to

Withal, the
strikes

courts labor to plot it, trial

the end, jury selection is not

are judgment, flexibility,
be permitted to

any

nondiscriminatory

are entitled, at a bare minimum, to

cannot

healthy byproduct is
rely

1497 (10th Cir.

discriminatory

line

is

lawyers

a bit of breathing room.

an exact science.

and discretion.

In

Its watchwords

Although

attorneys

exercise peremptory challenges

race or gender, they are not prohibited

not

based on

altogether from striking

venirepersons of a particular race or gender.

We

will

not

paint the

lily.

Evaluative judgments

concerning juror suitability are often made partially in response

to

nuance,

demeanor,

considerations.

body

Thus,

language, and

host

the trial judge, who sees

of

kindred

and hears both

the prospective juror and the opposing attorneys in action, is in

the

best

position

Recognizing that
district

to

we ought

judge who

pass

judgment

to cede

observes the

on

counsel's

motives.

considerable deference to
voir dire

at first

hand, see
___

Batson, 476 U.S. at 97, we refuse to second-guess Judge Lagueux's

______
implicit
doubts

finding that the

about

prosecutor struck Goodrum

Goodrum's "big

heart"

rather than for some evil purpose.

and

because of

impending "struggle,"

It follows that the court did

10

not err
facie

in finding

that appellant failed

to establish

a prima

case of race-based discrimination in the prosecution's use

of its peremptory challenges.4

III.
III.

OTHER ASSIGNMENTS OF ERROR

OTHER ASSIGNMENTS OF ERROR
Appellant

error.

three

We consider two of them,

of evidentiary
error

advances

raises

counsel.

sufficiency.5
the

This claim

boggart of

additional

7 F.3d

Appellant's

final assignment

ineffective

assistance

was not asserted in the

extraordinary
ineffective

1058, 1063

(1st Cir.

circumstances,

cases to like

A.
A.

of trial

See United States v.

___ _____________

claims

are not cognizable

that absent

asserting

on direct

effect), cert. denied,

_____ ______

Ct. 1839 (1994).

Standard of Review.
Standard of Review.
__________________

of

district court and

1993) (holding

fact-specific

assistance of counsel

appeal; collecting

of

both of which relate to matters

is not properly before us on direct appeal.

Mala,
____

assignments

114 S.

The

path

that

this

court

traverses

to

review

____________________

4Because appellant failed to make the requisite first-stage

showing, the burden never shifted to the prosecutor to articulate
a race-neutral explanation for the strike.
Even so, it might
have been wise for the judge to have asked the prosecutor to
proffer an explicit statement of the basis for the strike, if
only to confirm the judge's intuition and flesh out the record on
appeal. See United States v. Johnson, 873 F.2d 1137, 1140 n.3
___ _____________
_______
(8th Cir. 1989), cert. denied, 498 U.S. 924 (1990).
_____ ______

5The jury convicted appellant on three counts, namely,

possession of a firearm after a previous felony conviction (count
1), possession of heroin with intent to distribute (count 2), and
using a firearm in relation to a drug-trafficking crime (count
3).
In the district court, appellant unsuccessfully sought
judgment of acquittal on all three counts.
On appeal, however,
he challenges the sufficiency of the evidence only in regard to
counts 2 and 3.
11

sufficiency challenges is well worn.

We inspect the evidence in

the light most friendly to the verdict, indulging

inferences in the

verdict's favor and resolving

disputes in the same way.

jury

could find

United States
_____________

all reasonable

all credibility

We then determine whether a

guilt beyond

v. Echeverri, 982
_________

a reasonable

rational

doubt.

See, e.g.,
___ ____

F.2d 675, 677 (1st

Cir. 1993);

United States
_____________

v. Maraj,
_____

United States v.
______________
denied,
______

947 F.2d 520,

Boylan, 898
______

United States v.
_____________

243 (1st

Cir.), cert.
_____

The conviction

verdict comports with

record."

Cir. 1991);

F.2d 230,

498 U.S. 849 (1990).

the guilty

522-23 (1st

stands so long as

"a plausible rendition

Ortiz, 966 F.2d

_____

707, 711

of the

(1st Cir.

1992), cert. denied, 113 S. Ct. 1005 (1993).

_____ ______
C.
C.
To

Count 2.
Count 2.
_______

sustain a conviction

under 21 U.S.C.

841(a)(1),

the prosecution must establish beyond a reasonable doubt that the

defendant

knowingly

or

intentionally

possessed

substance with intent to distribute it.

See, e.g., United States

___ ____ _____________

v. De Jesus-Rios, 990 F.2d 672, 680 (1st Cir. 1993).

_____________
of

possession can

either

be satisfied

by

controlled

evidence that

actual or constructive possession.

The element

demonstrates

See United States v.

___ _____________

Gomez-Vallamizar, 981 F.2d 621, 624 (1st Cir. 1992).

________________
Appellant

does not

seriously contest

the

element of

possession, but, instead, concentrates his fire on the element of

specific

intent.

congenially

He alleges

to the

possessed heroin

that

government's

(say, for

the

case,

evidence, taken
merely

shows

personal consumption),
12

most

that

he

not that

he

intended to distribute it.

intent to

distribute

We read the record differently.

drugs

does

not demand

proof

by

An

direct

evidence but can be made manifest through circumstantial evidence

alone.

See
___

Echeverri,
_________

Desmarais,
_________

938

connection,

we

F.2d

1406,

F.2d at

678;

United States
______________

(1st

Cir.

1991).

352

recognized that

of intent to

Cir.

1992);

v.

this

as the

the authorities

distribute.

F.2d at 678; United States

_____________

1410 (1st

In

factors such

of the drugs confiscated by

an inference

Echeverri, 982
_________
F.2d

347,

have long

quantity and purity

can support

982

See, e.g.,
___ ____

v. Ocampo-Guarin, 968
_____________

United States
_____________

v.

Batista________

Polanco, 927 F.2d 14, 18-19 (1st Cir. 1991).

_______
In this case,
of intent to

distribute.

appellant's kitchen

the evidence easily sustained

The officers seized

a finding

three browns from

and eleven glassines from his pocket.

Thus,

both the quantity of heroin and the method of packaging militated

toward a

conclusion that

total value of the

appellant was himself

heroin seized

over $1,500

a dealer.
suggested

The

the

same conclusion.
that, in his

Furthermore, an experienced detective testified

expert opinion, the quantity,

packaging, and value

of the heroin indicated that it was intended for distribution.

To

be

sure, this

appellant

notes, it

possessed

the heroin

requires only that

supporting

the

evidence

did not
for

rule out

not

ironclad.

the possibility
___________

personal consumption.

the evidence,
jury's

was

fairly viewed,

verdict,

hypothesis consistent with a claim

not

that

it

of innocence.

As

that he

But the

law

be capable

of

exclude

every

See Echeverri,
___ _________

13

982 F.2d

at 678; Boylan, 898 F.2d at

______

no infirmity in

243.

Accordingly, we find

appellant's conviction for possession

of heroin

with intent to distribute.

D.
D.

Count 3.
Count 3.
_______

The final portion of appellant's sufficiency

concerns the charged
well

settled that,

violation of 18 U.S.C.
under this

statute,

challenge

924(c)(1).

the emphasis

It is

is on

firearm's

availability for use, regardless of whether the weapon

is actually

used in the commission of

See United States v. Paulino,

___ ______________
_______
United States v.
______________
(collecting
instant

13 F.3d

Hadfield, 918
________

cases),

20, 26 (1st

F.2d 987,

cert. denied,
_____ ______

500

Cir. 1994);

998 (1st

U.S. 936

Cir. 1990)

(1991).

The

case falls squarely within the boundaries established in

Hadfield, a case
________

in which we stated that,

the principal inquiry should focus

a

a drug-trafficking crime.

"facilitative nexus"

discovered firearm.

between

under section 924(c),

on the presence or absence of

the

charged

offense

See Hadfield, 918 F.2d at 998.

___ ________

In

and

the

applying

Hadfield, an inquiring court's primary concern is not whether the

________
gun

was "instantly available"

or "exclusively dedicated

narcotics trade," but whether it

regard.

to the

was "available for use" in that

Id.; accord United States v. Castro-Lara, 970 F.2d 976,

___ ______ ______________
___________

983 (1st Cir. 1992), cert. denied, 113 S. Ct. 2935 (1993).
_____ ______
this test,
a

room

storage

or

Under

if an operable firearm is found in close proximity to

rooms in

occurs,

then

which
the

drug

distribution, processing,

factfinder

ordinarily

is

free

or

to

conclude that a defendant having evident ties to the premises and

14

the drugs knew about the gun and intended it to be

use in relation

to the narcotics enterprise.

available for

See Hadfield, 918

___ ________

F.2d at 998.
The

authorities arrested

appellant in

From the quantity of heroin found on

the premises the jury could

reasonably conclude that the dwelling served

at least some
outlet.
the

his apartment.

as a storehouse for

of appellant's heroin or, perhaps,

See, e.g, Echeverri,

___ ___ _________

apartment and

person

a retail sales

982 F.2d at 678.

residing

significant degree of control over

As a lessee

there, appellant

had

of

the contents of the premises.

See id.
___ ___

Within wide limits, he had the ability to determine who

and what

could enter his place

weapon

under

the seat

of abode.

cushions

of

the

Officers located the

living room

couch

proximate to the drugs and easily accessible to an individual who

knew its whereabouts.
loaded.

The police

Of pivotal importance, the

found additional ammunition

bedroom which, although,

juror

surely could

handy

to protect

"[t]he law is not

in appellant's

of a different caliber,

appellant was no stranger to firearms.

conclude that
his heroin

indicated that

On this basis, a rational

appellant kept

supply.

gun was fully

As

we have

so struthious as to compel a

a loaded

gun

said before,

criminal jury to

ignore

that

which

Ingraham, 832
________

is

perfectly obvious."

F.2d 229, 240

United States v.
______________

(1st Cir. 1987), cert.

_____

denied, 486
______

U.S. 1009 (1988).

We recognize that
and-shut.

For

example,

the government's case was

the proof

at

not open-

trial established

that

15

appellant's landlord,
and appellant makes
is relevant

Felipe Moronto, actually owned the pistol,

much of this fact.

but it is

We agree that this datum

hardly determinative.

What

that the totality of the evidence suffices to permit

estimation to support quite amply
nexus

existed

distribution
Mercado,
_______
26;

between

the

activities.

22 F.3d 363,

Castro-Lara, 970
___________

evidentiary insufficiency fails.

IV.
IV.

CONCLUSION
CONCLUSION

weapon

See, e.g.,
___ ____

at

and in our

a finding that a facilitative

and

983.

appellant's

United States v.
______________

367 (1st Cir. 1994);

F.2d

matters is

drug-

Reyes______

Paulino, 13 F.3d at
_______

Therefore,

the claim

of

We

need

go no

further.

For

aught

that

appears,

appellant was fairly tried and justly convicted before a lawfully

constituted jury.
judgment

of

For the reasons stated herein,

conviction,

without

prejudice,

we affirm the
however,

to

appellant's right to pursue his ineffective assistance of counsel

claim at a proper time and in a proper venue.

It is so ordered.
It is so ordered.
________________

16