USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 95-1832

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERTO VALLE,

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, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

_________________________

William J. Murphy for appellant.

_________________
Margaret E. Curran,
__________________

Assistant United States Attorney,

with

whom Sheldon Whitehouse, United States Attorney,

___________________

and Kenneth P.
__________

Madden,

on brief,

Assistant United

States

Attorney, were

for

______
appellee.

_________________________

December 26, 1995

_________________________

SELYA,
SELYA,

Circuit
Circuit

Judge.
Judge.

Defendant-appellant

Roberto

______________

Valle challenges

his convictions for possession

intent

to distribute, see 21 U.S.C.

___

use of

a firearm during

crime, see
___

18 U.S.C.

841(a)(1) & (b)(1)(B), and

and in relation

924(c).

of cocaine with

to a drug

We affirm the

trafficking

drug trafficking

conviction but reverse the firearms conviction.

I.
I.

BACKGROUND
BACKGROUND

On

converged

April

upon

17,

an

1991,

nine

apartment

law

located

enforcement

at

Providence, Rhode

Island, to execute a search

they

found three

individuals:

(who

leased the

immediately

apartment),

segregated the

82

the appellant,

and Rafael

trio

Glenham

warrant.

St.,

Inside,

his grandmother

Tavarez.

in different

officers

The

chambers.

police

They

placed the appellant

in the

kitchen under the

Detective Michael Panzarella.

watchful eye

The search team then started

of

its

treasure hunt.

In short order,

discovered a

living

with

a narcotics detective, Guy

plastic bag

room couch.

secreted between

Inside

the ends burned shut.

straw

contained

cocaine

the bag were

DeAngelis,

the cushions

of the

forty-seven cut straws

Subsequent tests confirmed that each

base, known

colloquially

as "crack."

Another gendarme, Robert Clements, spied two firearms under a day

bed in the

through

dining room.

A third

the rear hall closet and found a plastic bag, containing

an additional 101 crack-filled

jacket.

officer, John Corley, rummaged

straws, in the pocket of

a green

Promptly

Panzarella

Arizona,
_______

continued.

rear hall

dropping

read

384

upon

the

U.S.

DeAngelis

the

appellant

436,

479

piece

of

his rights.

(1966).

on the

items of

floor

when

the

contraband,

See
___

Miranda
_______

Meanwhile, the

proceeded to examine

closet, poring over

each

discovery

search

the contents of

apparel one by

he

v.

the

one and

had finished

his

inspection of it.

closet from

The appellant (who enjoyed a clear view of the

the kitchen)

harangued DeAngelis not

he

might want

to wear

his

it upon

his

clothing

on the

release.

When DeAngelis asked the appellant whether he owned the

clothes, the

floor as

to throw

appellant responded affirmatively.

In reply

specific inquiry, the appellant identified the crack-laden

jacket as belonging to

the

basement

enjoyed

an

him.

Later on, DeAngelis

area to which

common access

all occupants

to a

green

descended into

of the building

and came across a triple-beam scale of a

type commonly associated with the packaging

of illegal drugs for

retail distribution.

Near the end of the

where he

slept.

said "there."

The

search, Corley asked the appellant

appellant pointed

toward the day

bed and

To put the ribbon on the package, Sergeant Stephen

Bathgate

(the

officer

in

charge of

the

operation)

elicited

incriminating comments from the appellant in the course of making

the formal arrest.

The

house.

After

signed a form

police

transported the

again receiving

appellant to

the station

Miranda warnings,
_______

the appellant

that signified his understanding of

those rights.

He then called a friend and asked her to contact his attorney.

II.
II.

PROCEEDINGS BELOW
PROCEEDINGS BELOW

In

indictment.

to

due course,

The appellant

a federal

He

while still

silent and

advanced two

arguments.

at Glenham St., he

Second, he

contended that DeAngelis

the

in a

inculpatory

effort

comment, and

that,

First,

to

a motion

he insisted

had invoked his right

asked if he could contact

wily

up an

made to the police during the

police ignored his importuning and did

floor

handed

responded in part by filing

suppress the statements he had

search.

grand jury

that,

to remain

his attorney, but that the

not permit him to do

had dumped the

provoke him

therefore,

into

so.

clothing on

making

DeAngelis's

an

antics

should be treated as an impermissible constructive interrogation.

See Rhode Island

___ _____________

v.

Innis, 446
_____

U.S.

291, 301

government denied that the appellant invoked

(1980).

his right to remain

silent or that he sought counsel while at the apartment.

argued that his initial complaint

vestments was

a spontaneous

The

It also

concerning the handling of his

utterance, and that

his subsequent

statements amounted to a waiver of his Miranda rights.

_______

Following

an evidentiary

ruled that DeAngelis's rearrangement

did not

original

amount

to an

objection

hearing, the

of the appellant's wardrobe

interrogation, and

to DeAngelis's

that the

behavior

could

admitted into evidence as a spontaneous statement.

broadly, the court found

district court

as a matter of fact

appellant's

properly be

Sweeping more

that the appellant

had neither invoked

the

given

search was

the

his rights nor

ongoing.

adequate

requested an attorney

Consequently, the

warnings

which

court ruled

proceeded

the

while

that,

officers'

questions, the appellant's replies could be used against him.

At trial,

possession of

the appellant did not

seriously dispute his

crack cocaine, but, rather,

concentrated his fire

on

the issue of distributive

proof

on

rendered

this

by

point came

DeAngelis.

prosecution's wares

The district court

prison on

intent.

in

In

the

form

end,

of opinion

the

sentenced him to serve

jury

details of

testimony

bought

on both counts.

a consecutive

firearms count.

which are not

the

sixty-three months in

charge, and added

incarcerative term for the

false start, the

of the government's

and convicted the appellant

the drug trafficking

sixty-month

the

Some

After a

relevant here,

this

appeal blossomed.

III.
III.

THE DRUG TRAFFICKING CONVICTION

THE DRUG TRAFFICKING CONVICTION

We begin by analyzing

as

with

the assignments of error insofar

they relate to the conviction for possession of crack cocaine

intent to distribute.

The appellant assigns error in three

respects.

We treat these claims seriatim.

________

A.
A.

Before us,

refusal to

Suppression of Statements.
Suppression of Statements.
_________________________

the appellant assails the

suppress his

day bed, and the like.

statements regarding the

clothing, the

His main thesis is that he exercised

prerogative to remain silent

the

district court's

and demanded an attorney,

police rode roughshod over his rights.

his

but that

He asseverates that,

under

these circumstances,

the interrogation

conducted by

officers at

the search scene

Miranda and
_______

Edwards
_______

(explaining

that an accused, having voiced a desire to deal with

v.

contravened the teachings

the

Arizona,
_______

451 U.S

477,

of both

484-85

(1981)

the authorities

only with the aid of a lawyer, is not subject to

further

interrogation

police

available to him).1

this

court

counsel

has

been

made

We find no error.

In reviewing

motions,

until

orders

granting or

scrutinizes

denying

district

suppression

court's

factual

findings, including its credibility determinations, for traces of

clear error.

See United States v. Zapata, 18 F.3d 971, 975 (1st

___ _____________
______

Cir. 1994).

court's

By contrast, we indulge plenary review of the

answers

to questions

of

law,

resolution of the constitutional issue.

including its

lower

ultimate

See id.
___ ___

In this case, whether or not to suppress the challenged

statements

boils down

to a

credibility call.

Such

calls are

grist for the district court's mill.

See, e.g., United States v.

___ ____ _____________

Rutkowski,
_________

Cir.

877

F.2d 139,

court, having seen and

to

believe

officers

whom

the

144 (1st

The district

heard the witnesses at first

mustered

testimony

Bathgate, DeAngelis,

testified

1989).

unequivocally

of

four

law

hand, chose

enforcement

Panzarella, and Corley

that the

appellant

had

(two of

neither

____________________

1Except for his

rights

prior to

contention that he

questioning, the

invoked certain of

appellant has

his

not maintained

that his

responses to

police queries represented

anything less

than a knowing and intelligent waiver of his Miranda rights.

_______
such argument

is,

Zannino, 895 F.2d 1,

_______

therefore,

waived.

See
___

United States
______________

17 (1st Cir.), cert. denied,

_____ ______

Any

v.

494 U.S. 1082

(1990).

expressed

a desire to stay

silent nor requested

counsel)

and

rejected the appellant's contradictory version of his interaction

with

the

police.

If

we

are

to

remain

faithful

to

the

jurisprudence of

clear error,

See id. (acknowledging that

___ ___

we cannot disturb

this finding.2

a judge's credibility choice between

two plausible accounts of the events in question cannot be deemed

clearly erroneous);

902 F.2d 148,

see also
___ ____

Cumpiano v. Banco Santander P.R.,

________
_____________________

152 (1st Cir. 1990) (explaining that

there can be

no clear error "unless, on the whole of the record, [the court of

appeals] form[s]

a strong, unyielding belief that

a mistake has

been made").

B.
B.

Admission of Opinion Testimony.

Admission of Opinion Testimony.
______________________________

At trial, DeAngelis,

as a

narcotics detective

the mores of

the crack

after chronicling his

and his encyclopedic

experience

familiarity with

cocaine community, testified

as to

the

approximate "street value" (all told, roughly

straws of crack found during the search.

so

He

$1,500) of the 148

also explained that

large a quantity of crack was consistent with distribution as

opposed

to

personal

use.

Finally,

characteristics of the prototypical

he

listed

the

visible

crack addict, and noted that

____________________

2Since
appellant

we

uphold

did not

the

lower

assert his

court's

rights, but,

finding

that

the

rather, voluntarily

elected to answer the officers' questions, we need not assess the

correctness of

the court's holding that

statement comprised

a spontaneous

constructive interrogation.
of

valet

service

figuratively),

there

was
is no

the appellant's initial

utterance, not a

response to

Though the detective's special brand

heavy-handed
basis

on

suppression of the appellant's retort.

(both
the

literally

present record

and

for

the appellant manifested none of these symptoms.3

The appellant labors to convince us that this testimony

should not have been admitted for two reasons:

first, it did not

afford the jury appropriate assistance in determining his intent;

and second, it comprised

supposed mental state.

1.
1.

expert testimony

an impermissible opinion concerning his

We are not persuaded.

Rule 702.
Rule 702.
________

Under the

is admissible

Federal Rules

if the witness

of Evidence,

qualifies as

an

expert and the proffered testimony "will assist the trier of fact

to

understand the

Fed.

R.

evidence or

Evid. 702.

to determine

The decision

a fact

to admit

or

in issue."

reject expert

testimony is committed to the sound discretion of the trial court

and

the court's determinations are

that discretion.

680 (1st Cir.

1987).

a wide berth in

judgments.

United States v. Echeverri, 982

_____________
_________

1993); United States v. Hoffman,

______________
_______

1310 (1st Cir.

judges

See
___

reviewable only for abuse of

Typically, appellate

respect to these

F.2d 675,

832 F.2d

1299,

courts give

trial

kinds of discretionary

See Echeverri, 982 F.2d at 680.

___ _________

Viewed through this lens, the district court's decision

to admit

DeAngelis's testimony

DeAngelis's

qualifications as

appears to be

an

expert

were

properly focused.

not

challenged

either below or in

the appellant's brief, and we

readily accept

____________________

3DeAngelis's
particulars.

testimony assisted

For example,

the

appellant in

certain

he admitted on cross-examination that

many of the tools of the drug trafficking trade were not found in
the apartment,
linked

and that no direct

evidence (e.g., fingerprints)

the appellant to the scale that the authorities unearthed

in the basement.

them

as

sufficient.4

Turning

to

the

testimony,

DeAngelis

explained

effects

the amount

of an

of crack

individual dose,

that users

and the

normally carry,

price of

Matters involving dosages, prices, and other

the

each packet.

particulars endemic

to the ingestion and distribution of crack cocaine are beyond the

ken of

these

the average

subjects is

sanctioned

juror.

likely

Consequently,

to

help

by the trial judge,

United States v.
_____________

Ladd, 885 F.2d

____

the

expert testimony

jury

and,

is admissible in

954, 959, 964

hence,

evidence.

(1st Cir.

on

if

See
___

1989)

(approving admission of testimony that the quantity and packaging

of

certain heroin indicated

Other

courts,

apparently

its suitability

reaching

the

same

for distribution).

conclusion, have

regularly upheld the admissibility of such expert testimony based

upon the trial judge's belief that it would help the jurors.

See

___

United States v. Tapia-Ortiz,

_____________
___________

denied, 115
______

S. Ct. 206,

F.3d 648, 652

(7th Cir.

F.2d 1519, 1522 (10th

United States v.
______________

23 F.3d 738, 741 (2d

286 (1994);

United States v.
_____________

1993); United States

_____________

F.2d 891,

Brown, 7
_____

v. McDonald,
________

Cir.), cert. denied, 502 U.S.

_____ ______

Safari, 849
______

Cir.), cert.
_____

895 (4th

933

897 (1991);

Cir.), cert.
_____

denied, 488 U.S. 945 (1988).

______

In

this

instance,

the

overruled the appellant's objections

district

court

heard

and

to the proffered testimony.

____________________

4To be sure, DeAngelis is not an expert in the sense that he

possesses

formal education

recognized before,

street

in

his

savvy and

field.
practical

But

as

we

experience

have

can

qualify a witness as an expert as surely as "a string of academic

degrees or multiple memberships

in learned societies."

Hoffman,
_______

832 F.2d at 1310.

On this record, there is no principled way for us to second-guess

that ruling.

Nor will

we strain

DeAngelis's

testimony was

likely

otherwise might not

to

welcomed by

have understood the

large number of crack-filled straws.

do so:

we

think

that

the jurors,

significance of such

who

Seen from this perspective,

the

testimony

provided

factual

presumably

inexperienced in

community,

to draw

the

predicate

customs of

the inference

that the

for

the

the crack

jury,

cocaine

appellant possessed

cocaine base for the purpose of retail distribution.

2.
2.

citing

Fed.

Rule 704(b).
Rule 704(b).
____________

R. Evid.

improvidently

state

of

mind

In a related

704(b),

suggests

allowed DeAngelis

(intent

to

to

vein, the

that the

testify to

distribute).5

appellant,

trial

court

the appellant's

We

reject

the

suggestion.

Rule 704(b) is of fairly recent vintage.

1984

as

an offshoot

of

Congress's retooling

of

defense.

See S. Rep.
___

No. 225, 98th Cong., 2d Sess.

It emerged in

the insanity

230 (1984),

reprinted in 1984 U.S.C.C.A.N. 3182, 3412 (explaining the need to

_________ __

limit psychiatric testimony

as to the

ultimate issue of

____________________

5The rule provides:

No expert witness testifying with

respect to

the mental state or

condition of a defendant

in a

may state an

criminal case

inference as to whether
did

or

did not

condition

have

crime charged or of

or not the defendant

the

constituting

opinion or

an

mental state
element

of

a defense thereto.

ultimate issues are matters for the

fact alone.

Fed. R. Evid. 704(b).

10

or
the
Such

trier of

sanity

under

the law).

applied broadly.

[T]he

Congress

recommended that

rationale

for

precluding

to any ultimate

state of

the defendant

the legal

conclusion

Committee has

provision
issues,

to

or

that is

all

lack

of

be

its

such

premeditation

mental

relevant to

sought to

fashioned

reach

e.g.,
____

ultimate

testimony extends beyond

the insanity defense

case,

regime be

To this end, the Senate Report stated:

opinion psychiatric

The

the new

proven.
Rule

704

"ultimate"

in a

homicide

predisposition

in

entrapment.

Id. at 3413.
___

Thus, both the letter of Rule 704(b) and the spirit

that animates

it preclude

professionals

from

psychiatrists or other

testifying directly

to

mental health

mental state

or

condition that constitutes an element of

the crime charged (such

as

See
___

criminal

Childress,
_________

defendant's

58 F.3d 693, 728

Cameron, 907 F.2d 1051,

_______

Pohlot, 827 F.2d

______

intent).

United States
______________

(D.C. Cir. 1995);

v.

United States v.
_____________

1060 (11th Cir. 1990); United States v.

______________

889, 906 (3d Cir. 1987), cert. denied, 484 U.S.

_____ ______

1011 (1988).

By

testimony

like token, Rule 704(b)

offered

professionals.

other

mental

psychiatrists

and

other

mental

health

To the precise contrary, courts have consistently

read the rule to

the offense

by

has not been restricted to

apply to cases in which intent is an element of

and an

expert

whether or

health professional

not a

seeks

psychiatrist or

to testify

to

the

defendant's actual intent.

___ F.3d

See, e.g., United States v. Buchanan,

___ ____ _____________
________

___, ___ (5th Cir.

(discussing

narcotics

defendant's specific

1995) [No. 93-8730, slip

officer's

opinions

intent to possess drugs);

in

op. at 8]

respect

to

United States v.
_____________

11

Orr, 68
___

F.3d 1247,

evidence of

1252

(10th Cir.

witness skilled in

1995) (discussing

banking practices in

opinion

respect to

defendant's

intent to

commit

filed, No. 95-6890 (U.S.

_____

55

F.3d 667, 670

bank fraud),

petition for
________ ___

Nov. 27, 1995); United States

_____________

(D.C. Cir. 1995)

cert.
_____

v. Boyd,
____

(discussing police officer's

opinions in respect to defendant's intent to distribute cocaine);

United States v. Windfelder, 790

______________
__________

F.2d 576, 582

(7th Cir. 1986)

(discussing IRS agent's opinions in respect to defendant's intent

to evade taxes).

We, too, have indicated, albeit

that

potentially could

Rule 704(b)

apply to

sub silentio,
___ ________

opinion testimony

offered by a person other than a mental health professional.

United States v.
______________

Lamattina,
_________

1989) (discussing FBI

Given

the unambiguous

889 F.2d

1191, 1193-94

agent's testimony in

language of

the rule

See
___

(1st Cir.

loan-sharking case).

and the

weight of

authority,6 we

hold that Rule 704(b) prohibits all direct expert

testimony concerning a criminal defendant's intent, regardless of

the witness's field of expertise, so long as intent is an element

of the crime charged.

This conclusion does

how expansively

not end our

Rule 704(b) is read, it

reach.

Though Rule

704(b) bars

ultimate

issue of a defendant's

inquiry.

No

matter

is not limitless in its

experts

from opining

on the

felonious intent, the rule does

____________________

6The Seventh

Circuit has expressed a

certain reluctance to

read

Rule 704(b) so generously, but has felt constrained by "the

fact

that this court and others have routinely assumed that Rule

704(b) imposes

an additional limitation, however

expert testimony of law enforcement officials."

Lipscomb, 14 F.3d 1236, 1242 (7th Cir. 1994).
________

slight, on the

United States v.
_____________

12

not

prohibit experts

from

which a jury might infer

at 651 (explaining

such intent.

that Rule

expert] from suggesting

testifying to

predicate facts

See, e.g., Brown,

___ ____ _____

704(b) does "not

inferences to be

from

7 F.3d

preclude []

drawn from the

[an

facts,

including inferences that embrace an ultimate issue").

The case

at hand

fits neatly within

this integument.

Here,

the

witness

characterized the

substances.

quantity

offered

appellant's

Instead,

no

testimony

intent to

DeAngelis

of crack found at

distribute

merely

use.

directly

controlled

explained

the search site

distribution, as opposed to personal

that

that

the

was consistent with

Because this evidence

does no more than supply suggested predicate facts,

allowing the

jury to draw its own conclusions as to intent from those facts if

it chooses to credit

704(b).

Cir.

the testimony, it does not

transgress Rule

See United States v. Lipscomb, 14 F.3d

___ ______________
________

1236, 1240 (7th

1994)

(upholding

suggesting that

distribution,

the introduction

a particular amount of

and distinguishing

of

opinion

testimony

crack indicated intended

such testimony

from testimony

that the defendant intended to distribute crack).

Discerning no

error, we

hold that the

district court

acted within the realm

of its discretion in permitting

the jury

to hear and consider the contested opinion testimony.

C.
C.

Sufficiency of the Evidence.

Sufficiency of the Evidence.
___________________________

convicted

defendant

who

presses

claim

of

evidentiary insufficiency faces an uphill climb.

If the evidence

presented, taken in

the government,

the light most agreeable to

13

is

adequate to

element of the

permit a

rational jury

offense of conviction beyond

then the defendant's claim

61

F.3d 967, 970 (1st

F.3d 462, 467 (1st Cir.

the aggregate

to find

fails.

each essential

a reasonable doubt,

See United States

___ _____________

v. Olbres,
______

Cir. 1995); United States v. Gifford, 17

______________
_______

1994).

Phrased another way, as

evidence justifies

a judgment of

long as

conviction, "it

need not rule out other hypotheses more congenial to a finding of

innocence."

Gifford, 17 F.3d at 467.

_______

When

challenge, all

viewed from

criminal

defendant undertakes

the evidence, direct and

the government's

coign of

sufficiency

circumstantial, must be

vantage, and

the viewer

must accept all reasonable inferences from it that are consistent

with the verdict.

See United States v. Taylor, 54

___ _____________
______

(1st Cir. 1995); United States v. O'Brien, 14

_____________
_______

Cir.

1994).

In other

evidentiary

conflicts

and

credibility

favor;

and,

moreover,

prosecution's

inferences,

choose the

guilt."

two or more of

61 F.3d at

disposition of a motion

de novo review, see

__ ____
___

F.3d 703, 706 (1st

judge must resolve all

questions

as

among

which are plausible,

inference that best fits the

Olbres,
______

"scrutinize

words, "the trial

970.

F.3d 967, 974

the

competing

the judge must

prosecution's theory of

Because the

district court's

for judgment of acquittal is

id., this court, like the trial

___

the evidence in

in

the light most

subject to

court, must

compatible with the

verdict, resolve all credibility disputes in the verdict's favor,

and then reach

a judgment

about whether a

find guilt beyond a reasonable doubt."

rational jury

could

Taylor, 54 F.3d at 974.

______

14

Applying

these

straightforward rules

makes short shrift of the appellant's claim.

offense

of conviction

are

substance (here, crack) and

to

this record

The elements of the

knowing possession

of a

controlled

intent to distribute that substance.

See United States v.

___ ______________

cert.
_____

Marin, 7
_____

denied, 114 S. Ct. 739

______

F.3d 679,

(1994).

688 (7th

Cir. 1993),

Here, these elements were

amply proven.

The

discovery of

appellant's place of abode

sizable quantities

of crack

and in his jacket, together

at the

with the

appellant's admissions to the authorities, form a sturdy platform

on which to load a

we have

The opinion

recounted furnishes additional support

It is clear to

jury did

for the finding.

have found

beyond a reasonable

doubt

as

that the prosecution had successfully proved the

essential elements of the drug trafficking charge.7

IV.
IV.

evidence that

us that a rational jury, impartially assaying all

the evidence, could

this

finding of guilt.

THE FIREARMS CONVICTION

THE FIREARMS CONVICTION

The jury

also convicted the

violating 18 U.S.C.

924(c)(1).8

appellant on a

charge of

The appellant challenges

this

____________________

7The

appellant places

United States v.
_____________
Boissoneault
____________
Boissoneault,
____________
including but
the

great

reliance on

the decision

Boissoneault, 926 F.2d 230 (2d Cir. 1991).

____________

does

not

there

assist
is

his

sufficient

not limited to

cause.

Here,

corroborative

the admissions, the

sheer quantity of drugs

unlike

to reinforce the opinion testimony

Whoever, during and in relation to any .

. .

drug trafficking crime . . . for which he may

in

in

firearms, and

8The statute of conviction provides in pertinent part:

prosecuted

But

evidence

and support a guilty verdict.

be

in

court

15

of

the

United

conviction,

asserting

that

the

evidence

is

insufficient

to

sustain the verdict.

While

Court

this case

was

pending on

Supreme

decided Bailey v. United States, 64 U.S.L.W. 4039 (1995).

______
______________

The Bailey Court concluded

______

for "use" of a

that, in order to convict

an accused

firearm under section 924(c)(1), "the

Government

must show active employment of the firearm."

"liability

id. at

appeal, the

attaches only to cases

4042, a standard that

Id. at 4041.
___

of actual use"

Thus,

of a firearm,

"includes brandishing, displaying,

___

bartering,

striking

with,

and

attempting to fire, a firearm."

This

924(c)(1)

(citing

construction

of

resolved a split in

most

obviously,

or

Id.
___

the

"use"

prong

the circuits, see

___

representative cases),

firing

and, in

the

of

section

id. at 4040-41
___

bargain, abrogated

earlier decisions of this court that permitted conviction under a

more

inclusive definition of "use."

See, e.g., United States v.

___ ____ _____________

McFadden, 13 F.3d 463, 465 (1st Cir. 1994) (holding that evidence
________

of the presence of a gun under a mattress, with cash, near drugs,

sufficed

to

show "use").

Consequently,

we acknowledge

that

McFadden and its siblings are no longer good law.

________

Bailey is

directly on point

here.

At

oral argument,

______

the

government

evidence

was

confessed

insufficient

error, candidly

to

show

"use"

admitting

under

that

the

____________________

States, uses or carries

a firearm, shall . .

. be [subjected to additional punishment].

18 U.S.C.

924(c)(1) (1988 & Supp. II 1990).

16

its

Bailey
______

standard.

Because our

same conclusion,

U.S.C.

assessment of the record conduces

we reverse the appellant's

924(c) and

to the

conviction under 18

direct the district court to

enter judgment

in Valle's favor on that count.9

V.
V.

CONCLUSION
CONCLUSION

To recapitulate,

on

we affirm the

appellant's conviction

the drug trafficking charge and reverse his conviction on the

firearms charge.

Since it is conceivable that our disposition of

the latter count

might affect the sentencing

calculus in regard

to

the former count, we honor counsels' joint request and remand

to

the

sentence

district

court

for

possible

originally imposed on the drug

generally United States

_________ _____________

reconsideration

of

the

trafficking count.

See
___

v. Pimienta-Redondo, 874 F.2d 9, 14 (1st

________________

Cir.)

(en

banc)

district court's

(discussing,

in a

pre-Guidelines

"authority to reshape a

case,

the

sentence when multiple

convictions garner mixed reviews on appeal

some affirmed, some

reversed"), cert. denied, 493 U.S. 890 (1989).

_____ ______

We

whether

need go

the district

no further.

We

intimate

court should

undertake to

no view

as to

reconsider the

sentence previously imposed or, if it chooses to do so,

what the

appropriate outcome of such reconsideration might be.

Affirmed in part, reversed in part, and remanded.

Affirmed in part, reversed in part, and remanded.
________________________________________________
____________________

9Although the Bailey Court did not address the "carry" prong
______
of 18 U.S.C.

924(c)(1), the government concedes that,

in this

case,

it has

during

no

evidence that

and in relation to

the appellant

the commission of

offense.

17

carried firearms

a drug trafficking