United States Court of Appeals

For the First Circuit

No. 09-2269

UNITED STATES OF AMERICA,

Appellee,

v.

ALEXIS ALVERIO-MELÉNDEZ,

Defendant, Appellant.

No. 09-2277

UNITED STATES OF AMERICA,

Appellee,

v.

ARMANDO GÓMEZ-ORTIZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Torruella, Lipez, and Thompson,

Circuit Judges.

Raymond L. Sánchez-Maceira, for appellant Alverio.

Antonio Bauzá-Torres, with whom Rubén Morales, were on brief

for appellant Gómez.

Mariana Bauzá, Assistant United States Attorney, with whom

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson PérezSosa, Assistant United States Attorney, Chief, Appellate Division,

and Julia M. Meconiates, Assistant United States Attorney, were on

brief for appellee.
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April 1, 2011
We recite the facts in the light most favorable to the verdict 1

because the defendants challenge the sufficiency of the evidence.

See United States v. García-Álvarez, 541 F.3d 8, 11 (1st Cir.

2008).

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TORRUELLA, Circuit Judge. Alexis Alverio-Meléndez

("Alverio") and Armando Gómez-Ortiz ("Gómez") challenge their

convictions for (1) conspiracy to possess with intent to distribute

cocaine and (2) aiding and abetting in the possession of a firearm

in furtherance of a drug trafficking crime. Gómez argues that the

evidence was insufficient to convict him on either count; Alverio

challenges the sufficiency of the evidence against him on the

firearm count. Gómez also contends that the government committed

a Brady violation, and both defendants argue that the district

court erred in instructing the jury as to the firearm count. For

the reasons below, we affirm both convictions.

I. Background1

Rafael Rodríguez-Morales ("Rodríguez"), a paid

confidential informant and one of the government's key witnesses at

trial, first met Alverio in approximately 2004. At that time, one

of Rodríguez's co-workers set up a meeting between Rodríguez and

Alverio because the co-worker wanted Rodríguez to re-enter the drug

trafficking business. Gómez also attended the meeting, which was

at Rodríguez's mother's house. Rodríguez did not find out Gómez's

real name at that meeting, but learned that his nickname was

"Flaco" or "El Flaco" (i.e., "the skinny one"). During the
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meeting, Gómez spoke to Rodríguez about cocaine prices. Alverio

said nothing about prices and instead, according to Rodríguez's

testimony at trial, "look[ed] at El Flaco, the one that would

dictate the drug prices."

Approximately one and a half years later, Alverio started

calling Rodríguez and offering to sell him cocaine. Rodríguez, who

was by then an informant for the DEA, contacted the DEA but did not

receive authorization to proceed with a drug transaction.

In January 2009, Alverio again called Rodríguez. This

time, the DEA authorized Rodríguez to proceed and worked with him

to record two conversations between him and Alverio. On

January 29, 2009, Alverio said, among other things, that he would

contact Rodríguez as soon as he had drugs. On February 4, 2009,

Rodríguez spoke to Alverio about purchasing six "eighths" (i.e.,

eighths of a kilogram) of cocaine. The two men agreed to meet at

ten o'clock the next day. Alverio said he was going to call a

friend in order for the friend to give him the cocaine. Rodríguez

asked if "the man," or the owner of the drugs, could reduce the

price by one or two hundred dollars. Later in the conversation,

Rodríguez asked Alverio if the drugs belonged to the skinny man to

whom Alverio had introduced Rodríguez, and Alverio responded that

they did.

On February 5, 2009, Rodríguez called Alverio to confirm

that they were ready for the drug transaction. When Alverio
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arrived at the K-Mart in Fajardo, Puerto Rico, the appointed

meeting place, he called Rodríguez, who was inside the store at

that point. Alverio guided Rodríguez to the spot where his car was

parked, and Rodríguez noticed that there was another man in

Alverio's car. When Rodríguez asked Alverio if the second man was

"El Flaco," Alverio said that he was. Alverio also said, in

response to a question from Rodríguez, that the other man was the

owner of the drugs.

When the time came to verify the drugs, Alverio asked

Rodríguez if they could move to Rodríguez's car. Rodríguez replied

that his car was far away and asked to verify the drugs in

Alverio's car. Alverio said that the other man in the car did not

want Rodríguez to verify the drugs in the car. When Rodríguez

asked again if the second man was the owner of the drugs, Alverio

replied affirmatively. Before visually verifying the drugs in

Alverio's car, Rodríguez attempted to say hello to Gómez. Several

seconds passed before Gómez responded, but when Rodríguez asked

Gómez if Gómez remembered him, Gómez said that he did. According

to Rodríguez's testimony at trial, Gómez was sitting sideways in

the passenger seat of the car with his right hand near his thigh,

giving Rodríguez the impression that there was a firearm in the

car.

After greeting Gómez, Rodríguez opened a small package,

which Alverio had placed in the middle of the car's rear seat, that
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looked like a child's lunch box. The substance inside smelled like

cocaine. Rodríguez then said that the air seemed charged and

suggested that they move to another location, Monte Brisas. The

defendants agreed that they should go to Monte Brisas and proceeded

to pull away. Rodríguez, who had one leg inside the car and the

other outside, was able to get out before the car departed. Once

out of the car, Rodríguez reported to a DEA official that he felt

his life was in danger because there were firearms in the car, and

said that the defendants took the cocaine away in their vehicle.

As the defendants drove toward Monte Brisas, they were

stopped by a marked police vehicle. DEA Special Agent Jimmy

Alverio ("Agent Alverio"), who had been conducting surveillance in

the K-Mart parking lot and who had followed the defendants toward

Monte Brisas, assisted. From the driver's side of the car, Agent

Alverio noticed a gun with an extended magazine in the passenger

door "pocket." A firearm examiner later tested the weapon, a Glock

.40 caliber pistol, and discovered that it was capable of firing

automatically. Agent Alverio also saw, and later opened, the lunch

box in the back seat, which a chemist subsequently determined

contained just under three-fourths of a kilogram of 70.7% pure

cocaine.

When law enforcement officers arrested Gómez and Alverio,

they seized a green fanny pack that Gómez was wearing. The fanny

pack contained, among other things, three .40 caliber bullets, a
 They were already aware of the number of the phone that Alverio 2

used because Alverio had called Rodríguez on that phone.

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magazine that contained fifteen .40 caliber bullets, a slide back

cover for a Glock, a drug ledger, and nine vials of crack cocaine.

Officers also seized cellular phones from Alverio and Gómez and

learned the number of the phone that Gómez was carrying. By 2

analyzing toll records, DEA Agent Álvaro Agreló learned that on at

least two occasions, immediately after Rodríguez spoke with

Alverio, Alverio's phone was used to dial the phone that Gómez had

with him on the day of the arrest.

II. Discussion

A. The Sufficiency of the Evidence

We review de novo whether the evidence presented at trial

is sufficient to support a conviction. United States v. RosadoPérez, 605 F.3d 48, 52 (1st Cir. 2010). In doing so, "[w]e take

the evidence and draw all reasonable inferences in the light most

favorable to the prosecution." Id. We will affirm "[i]f a

reasonable jury could find the defendants guilty beyond a

reasonable doubt of all elements of the charged offense." Id.

1. Gómez's Drug Conviction

Gómez argues that the evidence was insufficient to

support his conviction for conspiracy to possess with intent to

distribute cocaine. Gómez notes that Alverio, not he, spoke to and

negotiated with Rodríguez, and that he was never seen handling the
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drugs. In addition, Gómez contends that because the government did

not perform any fingerprint analysis on the lunch box containing

the drugs, it is unclear whether or not he owned the drugs.

Furthermore, Gómez points out that no government agent could

corroborate Rodríguez's testimony that Alverio identified Gómez as

the owner of the drugs on the day of the arrest. Gómez suggests

that Rodríguez's testimony alone is insufficient to sustain his

conviction because Rodríguez, who has been convicted of homicide

and various other crimes, is not a credible witness.

In order to sustain a conviction for conspiracy under 21

U.S.C. § 846, the evidence must show that (1) a conspiracy existed,

(2) the defendant had knowledge of the conspiracy, and (3) the

defendant knowingly and voluntarily participated in the conspiracy.

United States v. Pomales-Lebrón, 513 F.3d 262, 267 (1st Cir. 2008).

To prove the underlying offense of possession with intent to

distribute, see 21 U.S.C. § 841(a)(1), the government must

establish that a defendant "knowingly and intentionally possessed,

either actually or constructively, a controlled substance with the

specific intent to distribute." United States v. GarcíaCarrasquillo, 483 F.3d 124, 130 (1st Cir. 2007). In light of these

standards, we conclude that the government presented sufficient

evidence for a rational trier of fact to find Gómez guilty.

The government provided abundant evidence that Gómez

provided the drugs for the transaction and was not merely an
 Gómez argues that Agent Agreló's testimony explaining the toll 3

records was impermissible "overview" testimony and should not be

considered when analyzing whether the evidence was sufficient to

support the verdict. This argument, which Gómez presents in one

sentence in his brief, has been waived because it has not been

sufficiently developed. See United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990).

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unlucky bystander. First, Rodríguez testified at trial that Gómez

was present when he first met with Alverio at his mother's house to

discuss re-entering the drug business, and that Gómez, whom

Rodríguez knew as "El Flaco," was the person who told him about

prices while Alverio looked on silently. In addition, the

government played a recording of a conversation between Alverio and

Rodríguez from February 4, 2009, during which Rodríguez asked if

the drugs he was going to buy belonged to "the skinny guy" whom he

had met at his mother's house, and Alverio responded affirmatively.

Furthermore, toll records showed that after Alverio spoke

with Rodríguez on February 4, the same phone that Alverio had used

to speak with Rodríguez was used to dial a cell phone number that

corresponded to the cell phone that Gómez had on the day of the

arrest. Given Alverio's comment during the recorded phone call

that he was going to call the friend who had the cocaine, the fact

that his phone was used to call Gómez's phone provides particularly

strong support for the conclusion that Gómez was the source of the

drugs. A second phone call from Alverio's phone to Gómez's phone,

placed immediately after Rodríguez called Alverio on the morning of

February 5th, also supports the government's theory.3
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In addition, Rodríguez testified at trial that Alverio

said on the day of the drug transaction that the man with him in

the car was the owner of the drugs. Rodríguez also noted that

Gómez, after some delay, acknowledged that he remembered Rodríguez,

which supports the government's theory that the man in the car was

the same man that Rodríguez met initially at his mother's house.

Moreover, the very fact that Gómez was in the car when

the drug transaction took place provides support for the

government's theory that he was a coconspirator. As Agent Alverio

testified, it is not common for drug traffickers to bring innocent

people to drug transactions. Of course, however, "mere presence at

the scene of conspiracy activities or simple association with

conspirators is not enough, standing alone, to establish

participation in a conspiracy." United States v. Rodríguez-Ortiz,

455 F.3d 18, 23 (1st Cir. 2006).

Finally, Gómez's argument that the evidence against him

was insufficient because Rodríguez was not a credible witness is

meritless. "It is not for us to make credibility determinations in

the course of a review of the sufficiency of the evidence." United

States v. Morales-Machuca, 546 F.3d 13, 21 (1st Cir. 2008). "A

conviction may be based solely on the uncorroborated testimony of

a confidential informant so long as the testimony is not incredible

or insubstantial on its face." United States v. Gonzalez-Vazquez,

219 F.3d 37, 46 (1st Cir. 2000) (internal quotation marks omitted).
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Here, Rodríguez's testimony is not "incredible or insubstantial on

its face," nor is it entirely uncorroborated. Toll records and

recordings of phone conversations support his version of events.

For all these reasons, the evidence was sufficient to

enable a rational factfinder to convict Gómez on the drug count.

2. Gómez's Firearm Conviction

Gómez argues that the evidence was insufficient to

support his firearm conviction. In order to convict a defendant of

possessing a firearm during and in relation to a drug trafficking

crime under 18 U.S.C. § 924(c)(1)(A), "the government must prove

that the defendant[] 1) committed a drug trafficking crime; 2)

knowingly possessed a firearm; and 3) possessed the firearm in

furtherance of the drug trafficking crime." United States v. Pena,

586 F.3d 105, 112 (1st Cir. 2009).

As discussed above, there was sufficient evidence here to

support the conclusion that Gómez committed a drug trafficking

crime. In addition, the government presented sufficient evidence

that Gómez knowingly possessed a firearm. Agent Alverio testified

at trial that he saw a handgun in the "pocket" of the front

passenger door when the defendants were arrested, and that Gómez

was in the passenger's seat. Another government witness testified

that the fanny pack that Gómez was wearing when he was arrested

contained three .40 caliber bullets and a magazine containing

fifteen more .40 caliber bullets, both of which could be used to
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fire the gun, a Glock .40 caliber pistol, as well as a slide back

cover that "is the rear part of the Glock." Finally, Rodríguez

testified at trial that he thought Gómez had a gun based on the way

that Gómez was positioned. This evidence was sufficient for a

rational finder of fact to determine that Gómez knowingly possessed

the firearm.

Finally, as discussed in the following section, the

evidence was sufficient to support the conclusion that the

possession was in furtherance of the drug trafficking crime. Thus,

we will not disturb the verdict on Gómez's firearm count.

3. Alverio's Firearm Conviction

Citing 18 U.S.C. § 924(c)(1)(A), Alverio argues that the

government had to prove that he "1) committed a drug trafficking

crime; 2) knowingly possessed a firearm; and 3) possessed the

firearm in furtherance of the drug trafficking crime." He insists

that the "evidence was insufficient to convince a rational jury

beyond a reasonable doubt that [he] possessed the Glock 'in

furtherance of' a drug trafficking crime." He was indicted,

however, for aiding and abetting in the possession of a firearm in

furtherance of a drug trafficking offense, which requires proof

that he knew to a practical certainty that Gómez would possess the

gun in furtherance of a drug trafficking crime and that he took

some step to facilitate the possession. See, e.g., United States

v. Medina-Román, 376 F.3d 1, 6 (1st Cir. 2004). Consequently, we
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need only consider that part of his argument that also applies to

an aiding-and-abetting conviction -- namely, his claim that the

evidence was insufficient to sustain his firearm conviction because

the government failed to show that the possession of the firearm

was in furtherance of a drug trafficking crime. To support this

contention, Alverio points to Rodríguez's testimony at trial that

Alverio specifically told Rodríguez he did not want Rodríguez to

verify the drugs in his vehicle, that Alverio said Gómez did not

want the transaction to take place in Alverio's car, and that

Alverio proposed that they go to Rodríguez's car instead. If the

gun had been possessed in furtherance of the drug trafficking

crime, Alverio claims, Alverio and Gómez would not have wanted

Rodríguez to verify the drugs in his own car.

Alverio's argument is meritless because a gun need not be

present at the moment that drugs are verified, or at the moment

that money or drugs change hands, in order to be possessed in

furtherance of a drug trafficking crime. Possession of a firearm

"to protect drugs or sales proceeds" can constitute possession in

furtherance of a drug trafficking crime. United States v. Marin,

523 F.3d 24, 27 (1st Cir. 2008). Here, a rational factfinder could

conclude that Gómez had the gun to protect the cocaine on the way

to the transaction and the money that the defendants expected to

receive -- $3,300 for each of the six "eighths" -- on the way back

from the transaction. The evidence would have been sufficient to
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support the conclusion that the gun was possessed in furtherance of

the drug trafficking crime regardless of where the transaction

occurred. Thus, we will not overturn the verdict on Alverio's gun

count.

B. The Jury Instructions

Having concluded that the evidence was sufficient to

support both defendants' convictions, we must separately address

the claim of instructional error. See United States v. Baldyga,

233 F.3d 674, 682 n.8 (1st Cir. 2000) (noting that a court could

consistently conclude both that the evidence was sufficient to

support a verdict and that the jury instructions constituted

reversible error because of the different legal standards governing

the two claims).

The defendants contend that the district court's

instructions on the firearm count were flawed in three ways.

First, the court erred by instructing the jury on the meaning of

"us[ing] or carr[ying]" a firearm "during and in relation to" a

drug trafficking crime, 18 U.S.C. § 924(c)(1)(A), when the

defendants were charged with "possess[ing] a firearm" "in

furtherance of" a drug trafficking crime, id. Second, the court

failed to instruct the jury that the mere presence of a firearm in

the area where a drug trafficking offense occurs is insufficient to

find a defendant guilty of possessing a firearm in furtherance of

a drug trafficking crime. Finally, the defendants allege that the
 The government raises the possibility that the district court 4

might have constructively amended the indictment when it instructed

the jury on using or carrying a firearm during and in relation to

a drug trafficking crime. We need not address this issue. Even if

the district court did constructively amend the indictment, the

defendants must still prove that prejudice resulted. See United

States v. Brandao, 539 F.3d 44, 62 (1st Cir. 2008) (holding that a

defendant who alleges constructive amendment of an indictment "must

make the required showing of prejudice under Olano and its

progeny"). For the reasons discussed below, they cannot do so.

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court improperly coached the jury by incorporating details that

mirrored those of their own case into the jury instructions.

We review challenges to jury instructions for plain error

where, as here, the defendants failed to object at trial. United

States v. Riccio, 529 F.3d 40, 46 (1st Cir. 2008). Thus, we will

not disturb the convictions unless the defendants can prove "(1)

that an error occurred; (2) that the error was clear or obvious;

(3) that the error affected [their] substantial rights; and (4)

that the error also seriously impaired the fairness, integrity, or

public reputation of judicial proceedings." United States v.

Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009) (internal quotation marks

omitted); see also United States v. Olano, 507 U.S. 725, 732

(1993). "[P]lain error review tends to afford relief to 4

appellants only for 'blockbuster[]' errors." United States v.

Moran, 393 F.3d 1, 13 (1st Cir. 2004) (quoting United States v.

Griffin, 818 F.2d 97, 100 (1st Cir. 1987)); see also United States

v. Gomez, 255 F.3d 31, 37 (1st Cir. 2001) ("[T]he plain-error
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exception is cold comfort to most defendants pursuing claims of

instructional error.").

1. Background

The district court gave the following instructions

regarding the firearm count, referring throughout to the language

of 18 U.S.C. § 924(c)(1)(A) that addresses using and carrying a

firearm during and in relation to a drug trafficking crime:

The defendants are accused of using or

carrying a firearm during and in relation to a

drug trafficking crime. Basically, what that

means is that while they conspired to commit

the offence of possessing with intent to

distribute, they at the same time used or

carried a firearm.

. . . . 

. . . You have to figure out from the

evidence you received here whether indeed

there was a gun here to begin with; and,

number two, whether this gun was possessed,

used, carried during the commission of a drug

trafficking offence. 

So the following things have to be

proven. First, that the defendant that you're

considering indeed committed the first

offence, the possession, the conspiracy to

possess with intent to distribute narcotics,

cocaine in this case.

Number two, that during and in relation

to the commission of that crime, that

particular defendant knowingly used or carried

a firearm. . . .

To carry a firearm means -- or to carry

a firearm during and in relation to a drug

trafficking crime means to move or transport

the firearm on one's person or in a vehicle or

in a container during and in relation to the

crime. The firearm need not be immediately

accessible.

To use a firearm during and in relation

to a crime of this kind means to employ the

firearm actively, such as brandishing,
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displaying it, striking it, attempting to fire

it. In this case it's basically carrying it.

The firearm must have played some sort

of important role in the commission of the

offense, must have been intended by the

defendant to play an important role in the

commission of the offence. And the role could

have been protection, the role could have been

security, whatever it may be. Okay.

Neither defendant objected to these instructions.

2. Analysis

The government does not contest that the district court

erred by instructing the jury regarding "us[ing] or carr[ying]" a

firearm "during and in relation to" a drug trafficking crime rather

than instructing it on "possess[ing] a firearm" "in furtherance of"

a drug trafficking crime. 18 U.S.C. § 924(c)(1)(A). The

government argues, however, and we agree, that there was no

reversible error here.

Instructing the jury regarding "use and carry" instead of

"possession" was not reversible error because "use and carry"

necessarily includes possession. A person cannot "use" a firearm

without possessing it. See Pena, 586 F.3d at 114 ("[E]ven if the

jury thought it had to find 'use[]' [instead of 'possession,'] that

would have been a benefit not a detriment to [the defendant].").

One also cannot "carry" a firearm without possessing it. See

United States v. Gill, 513 F.3d 836, 851 (8th Cir. 2008).

In addition, the instructions on "use" of a firearm

"during and in relation to" a drug trafficking crime did not
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constitute reversible error. "[W]e have understood 'in furtherance

of' to demand showing a sufficient nexus between the firearm and

the drug crime such that the firearm advances or promotes the drug

crime. For example, we have held that possession of a firearm to

protect drugs or sales proceeds can establish such a nexus."

Marin, 523 F.3d at 27 (internal citations omitted). Here, the

court noted that "the firearm must have played some sort of

important role in the commission of the offense, must have been

intended by the defendant to play an important role in the

commission of the offence," and specifically gave the example cited

in Marin, see id., when explaining that "the role could have been

protection, the role could have been security, whatever it may be."

This circuit has noted before that "the 'in furtherance

of' element of a firearm possession charge imposes a 'slightly

higher standard' of liability than the nexus element corresponding

to the different charges of using or carrying a firearm, which need

only occur 'during and in relation to' the underlying crime."

United States v. Delgado-Hernandez, 420 F.3d 16, 25 (1st Cir. 2005)

(quoting H.R. Rep. No. 105-344, at 11 (1997)). We are not

suggesting otherwise here. We cannot see, however, how the jury

could have concluded that the firearm here played an important role

in the commission of the offense without concluding that the weapon

met the "in furtherance of" requirement. Thus, reviewing for plain

error, we will not overturn the jury's verdict.
 As we have noted previously, "although pattern instructions are 5

often helpful, their use is precatory, not mandatory." United

States v. Jadlowe, 628 F.3d 1, 17 n.29 (1st Cir. 2010) (internal

quotation marks and citations omitted).

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In light of the jury instructions described above, in

convicting the defendants on the firearm charges, the jury must

have concluded that the weapon was not merely present at the scene,

but that it played an important role in the commission of the

offense. Thus, we reject the claim that the district court's

failure to give a "mere presence" instruction constituted

reversible error.

Finally, we reject the defendants' coaching argument.

The defendants contend that the district court improperly coached

the jury when it explained that "to carry a firearm during and in

relation to a drug trafficking crime means to move or transport the

firearm on one's person or in a vehicle or in a container during

and in relation to the crime." That this very language is part of

the First Circuit's pattern jury instructions emphasizes that,

rather than coaching, the district court was merely explaining in

general terms the charge against the defendants. See Pattern

Criminal Jury Instructions for the District Courts of the First

Circuit § 4.07 (1998). The defendants also allege that the 5

district court improperly coached the jury when it instructed that

the firearm "must have played some sort of important role in the

commission of the offense" and noted that "the role could have been
 The government also contends that the district court properly 6

denied the defendant's motion under Federal Rule of Criminal

Procedure 33 for a new trial because the motion was untimely.

Because we resolve this issue on the merits and in favor of the

government, we need not address the timeliness argument.

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protection, . . . security," or some other role. This guidance

does not constitute coaching either. See United States v.

Hernández, 490 F.3d 81, 84 (1st Cir. 2007) ("It is unquestioned

that, when instructing a jury, a judge 'may explain, comment upon

and incorporate the evidence into the instructions in order to

assist the jury to understand it in light of the applicable legal

principles.'" (quoting United States v. Maguire, 918 F.2d 254, 268

(1st Cir. 1990))).

C. The Brady Claim

Gómez argues that the government committed a Brady

violation by failing to provide a fingerprint analysis of the

weapon found in Alverio's car. See Brady v. Maryland, 373 U.S. 83

(1963). The government responds that no fingerprint analysis was

ever performed, and thus there cannot have been a Brady violation.6

"Review of the district court's decision to deny a

defendant's motion for a new trial on the basis of alleged Brady

violations is for manifest abuse of discretion." United States v.

Brandao, 539 F.3d 44, 64 (1st Cir. 2008).
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1. Background

At trial, during cross-examination by Gómez's attorney,

Agent Agreló testified as follows regarding fingerprints on the

weapon:

Q. Any fingerprints were taken from the

pistol?

A. A step was taken to take fingerprints

of the evidence.

Q. Were any fingerprints taken?

A. No. Steps were taken, but they were

not able to do the analysis.

Q. I didn't hear your answer, sir.

A. They were not done. They were not

performed, sir.

Q. You do have the equipment to do that

job; is that correct?

A. Our lab, yes, sir.

Q. You didn't feel it necessary to take

the fingerprints?

A. Like I said before, yes, sir, I

requested the test for the lab.

After hearing this testimony, neither defense attorney requested a

continuance in order to obtain a fingerprint analysis report for

the weapon. The Brady issue did not arise until more than ten

months later, when Gómez's attorney filed an emergency motion

requesting a new trial. The motion noted that, according to Agent

Agreló's testimony, fingerprinting tests of the gun were ordered

but never performed, and argued that the results of such tests were

exculpatory evidence and should have been disclosed pursuant to

Brady. The district court denied this motion. Gómez now appeals

the district court's determination that no Brady violation

occurred.
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At oral argument, we questioned counsel for the

government about the possibility that a fingerprint analysis report

existed. Counsel explained that she had never received notice from

the government lab confirming that a fingerprint analysis report

had not been completed, but that she also had never received any

such report. Because the government "'has a duty to learn of any

favorable evidence known to the others acting on the government's

behalf,'" Moreno-Morales v. United States, 334 F.3d 140, 146 (1st

Cir. 2003) (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)), we

requested that counsel for the government submit a proffer

regarding whether or not the government lab ever produced a

fingerprint analysis report on the machine gun. The proffer

confirmed that no fingerprint analysis was ever conducted; the

firearm was only examined for "operability."

2. Analysis 

To establish a Brady violation, "a defendant must make

three showings. 'The evidence at issue (whether exculpatory or

impeaching) must be favorable to the accused; that evidence must

have been either willfully or inadvertently suppressed by the

government; and prejudice must have ensued.'" United States v.

Mathur, 624 F.3d 498, 503 (1st Cir. 2010) (quoting United States v.

Connolly, 504 F.3d 206, 212 (1st Cir. 2007)). "Although it hardly

bears mention, an implicit prerequisite of any Brady claim is that

favorable, material evidence actually exists." United States v.
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Garvin, 270 F. App'x 141, 144 (3d Cir. 2008). Here, because no

fingerprint analysis report existed, the government did not commit

a Brady violation in failing to turn over such a report. The

failure to create exculpatory evidence does not constitute a Brady

violation. See Arizona v. Youngblood, 488 U.S. 51, 59 (1988)

("[T]he police do not have a constitutional duty to perform any

particular tests."); see also United States v. Nguyen, 98 F. App'x

608, 609 (9th Cir. 2004) ("Brady does not require the government to

interview witnesses or otherwise create exculpatory evidence not

then in existence." (citing United States v. Monroe, 943 F.2d 1007,

1011 n.2 (9th Cir. 1991))).

III. Conclusion

For the reasons stated, we affirm both defendants'

convictions.

Affirmed.