*Of the Northern District of California, sitting by

designation. 

United States Court of Appeals

For the First Circuit

No. 02-2571

UNITED STATES OF AMERICA,

Appellee,

v.

FRANKLYN LIRANZO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

 Boudin, Chief Judge,

Lynch, Circuit Judge,

Schwarzer,* Senior District Judge.

Dana A. Curhan for appellant.

Virginia M. Vander Jagt, Assistant United States Attorney,

with whom Michael J. Sullivan, United States Attorney, was on

brief, for appellee.

September 30, 2004
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LYNCH, Circuit Judge. Franklyn Liranzo was a passenger

in a car stopped by Massachusetts state troopers in the fall of

2001. A Llama .380 semi-automatic handgun was found underneath

his seat. The troopers arrested all four occupants and asked them

to whom the gun belonged. All four denied ownership. 

After jury trial, Liranzo was convicted of being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

He challenges his conviction on the grounds that 1) the evidence at

trial was insufficient to establish Liranzo's constructive

possession of the firearm, and so the trial judge improperly denied

his motion for a judgment of acquittal, and 2) admission of

testimony by the arresting officers about their assignments to a

gang task force was prejudicial error. We affirm.

I.

We recount the facts with all reasonable inferences made

in favor of the verdict. See United States v. Hernández, 218 F.3d

58, 64 (1st Cir. 2000).

In the fall of 2001, Massachusetts State Police Troopers

Thomas McCarthy and Ernest Doherty, members of a police task force

targeting gang activity, kept watch on the home of a known gang

member on Farnham Street in Lawrence, Massachusetts. On September

4, 2001, at approximately 10:40 PM, the troopers saw a green Nissan

Maxima idling in front of the driveway of the residence. Two

people entered the Nissan and then, just as the troopers pulled
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alongside the car, the Nissan quickly drove away with four

occupants inside. Troopers McCarthy and Doherty followed the

Nissan in an unmarked police car. They noticed that the Nissan's

rear license plate was only hanging by a single screw, and they

watched the Nissan go through an intersection with stop signs

without coming to a complete stop. They informed Sergeant Francis

Hughes, who was also in the general area in a separate unmarked

police car, that they intended to stop the green Nissan for those

violations. As McCarthy and Doherty caught up to the Nissan, they

observed the three passengers looking out the back window of the

car to watch the troopers' car.

The Nissan turned into Shawsheen Road, a well-lit road

next to a deserted park. The troopers' cruiser followed. McCarthy

activated the cruiser's emergency lights and the siren to get the

Nissan to pull over. After both cars stopped, the officers got out

of the car, but waited before they approached the Nissan. They

observed the occupants of the car moving around and looking back at

the troopers. Meanwhile, Hughes approached the stopped Nissan from

the opposite direction on Shawsheen Road. As Hughes stopped his

car to sandwich the Nissan between the two police cruisers, his

headlights illuminated the inside of the Nissan.

Hughes got out of his cruiser with a flashlight and

approached the Nissan from the front. Concerned that the driver of

the Nissan might attempt to run him down with the car, he carefully
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observed the two front occupants of the car and paid particular

attention to their hands partly because "[h]ands are the things

that can produce weapons." The driver and Liranzo, the front

passenger, both were looking through the rear window in the

direction from which McCarthy and Doherty would be approaching.

They did not move around inside the car and there was no indication

that Liranzo knew Hughes was approaching from the front.

When Hughes was about eight feet from the Nissan, he

shined his flashlight into the interior of the car. At that

moment, Liranzo's head "snapped" around, his eyes widened, and he

made direct eye contact with Hughes for the first time. Hughes

testified:

As soon as [Liranzo] made eye contact with me,

I observed his front upper torso move forward.

At this point, his right shoulder was slightly

cocked back. At this point, the front of his

body came forward, his right shoulder came

forward, his head lowered and he made a

reaching movement underneath the seat. His

head was now slightly below the dashboard. I

could still see his eyes.

Liranzo's movement was "of great concern" to Hughes because

"[b]ased on [his] training and [his] experience in car stops, that

movement was consistent with a movement where [Liranzo] was either

reaching for something, to grab something or either get rid of

something."

In response to Liranzo's movement, Hughes yelled "at the

top of [his] lungs" for Liranzo and the other occupants of the car
1 "It shall be unlawful for any person ... who has been

convicted in any court of, a crime punishable by imprisonment for

a term exceeding one year ... to ... possess in or affecting

commerce, any firearm or ammunition." 18 U.S.C. 922(g)(1).

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to raise their hands. Liranzo and the three others complied and

raised their hands.

As the three officers approached the car, they smelled

burnt marijuana. Officer Doherty also saw several open beer

bottles. Of the four men in the car, only Liranzo protested the

stop and demanded to know why they had been pulled over.

The officers conducted pat-frisks of the occupants for

weapons and contraband. Marijuana was found in the pocket of one

of the occupants (not Liranzo). Hughes immediately went back to

the front passenger seat of the car to search the area into which

Liranzo had been reaching. He found a Llama .380 semi-automatic

handgun containing one bullet. The gun was propped up between the

seat and the floor at a 45-degree angle, leaning on a hump of

carpet and partly on the undercarriage of the front seat. 

On October 21, 2001, a grand jury indicted Franklyn

Liranzo with one count of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1).1 During his jury trial,

Liranzo's defense focused on attacking the credibility of and

procedures used by the arresting officers. He did not testify.

The jury found him guilty. Liranzo was sentenced to 108 months

imprisonment, a three-year term of supervised release, and a
2 Section 922(g)(1) requires the government to prove that the

defendant was a convicted felon who knowingly possessed a firearm

in or affecting interstate commerce. United States v. Wight, 968

F.2d 1393, 1397 (1st Cir. 1992). Knowing possession under §

922(g)(1) may be proved through actual or constructive possession

of the firearm. Id. at 1398. Since Liranzo stipulated at trial

that he was a convicted felon and assumes, for purposes of the

present appeal, that the firearm in question traveled in interstate

commerce at some point, he is only challenging the sufficiency of

the evidence with respect to the element of constructive

possession.

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special assessment of $100. Judgment was entered on November 25,

2002, and the defendant timely appealed.

II.

Liranzo argues that there was insufficient evidence to

prove beyond a reasonable doubt his constructive possession of the

handgun.2 Constructive possession for § 922(g) purposes does not

require ownership of the gun. See United States v. Meade, 110 F.3d

190, 202 (1st Cir. 1997). The evidence was sufficient.

First, Liranzo argues that in order to meet the burden,

the government must foreclose all reasonable alternative hypotheses

inconsistent with Liranzo's possession of the firearm. On the

facts, Liranzo posits that the evidence is consistent with multiple

theories: the gun could have been put there by one of the

passengers in the rear seat, or by the driver of the car, or even

have been left there before the car stopped. While Liranzo's

movement could have been a move to hide the gun, he argues that he

could also have been "attempting to retrieve the registration from
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the glove box, tying his shoe, scratching his leg, or any one of a

number of innocent behaviors." 

This argument fails. As an initial matter, the legal

theory is incorrect: "[T]he government need not present evidence

that precludes every reasonable hypothesis inconsistent with guilt

in order to sustain a conviction. Rather, the jury is at liberty

to select freely among a variety of reasonable alternative

constructions of the evidence." United States v. Loder, 23 F.3d

586, 590 (1st Cir. 1994) (citations omitted). The reviewing court

"must uphold any verdict that is 'supported by a plausible

rendition of the record.'" Hernández, 218 F.3d at 64 (quoting

United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992)).

The evidence is sufficient to establish Liranzo's

constructive possession of the gun. The precarious, angled

position in which the gun was found negated any inference that the

gun was placed there before the Nissan came to a complete stop. As

officer Hughes testified, "[T]here is no way that gun would have

stayed in that location if the car was moving." Based on the

weight of the gun, its unusual 45-degree angle, and the fact that

it was "supported almost by the three prongs of the handgun against

the carpet," Hughes concluded that "the gun would have slid out if

the car was moving." Hughes also testified that he did not observe

any movements from the driver of the Nissan as he approached the

car from the front, negating any inference that the driver placed
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the gun underneath Liranzo's seat. As for the possibility that the

gun was placed there by the passengers in the back, Hughes

testified that it would have been impossible for someone in the

backseat to press the gun into that position due to the "small bowl

[formed by the raised carpet] directly underneath the seat" and the

wires and other pieces of the undercarriage that were in the way.

Hughes noted, "[T]here is no way the gun would have made it over

that hump and still have been balanced on the undercarriage like

that from the back. It just couldn't have happened." The

possibility that Liranzo's reaching movement was to tie his shoe or

to get his registration cannot be squared with the testimony that

Liranzo maintained eye contact with Hughes throughout the entire

sequence of his movements.

It is not the role of the reviewing court to "weigh the

evidence; [our role is] merely to ensure that some evidence exists

to support sufficiently the jury's determination." United States

v. Nieves-Burgos, 62 F.3d 431, 438 (1st Cir. 1995). Since the jury

heard evidence that the gun must have been placed in its final

position after the Nissan came to a complete stop, and that none of

the other occupants in the car could have put it there, the jury

could have inferred that Liranzo's reaching movement was not

innocent, but a move to put the gun under the seat.

Liranzo also correctly notes that "mere proximity to a

weapon is not sufficient to show actual or constructive
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possession." United States v. Weems, 322 F.3d 18, 24 (1st Cir.

2003). In support of his argument he should have been acquitted

because nothing more than "mere proximity" was shown here, Liranzo

cites a set of cases from other circuits whose facts are easily

distinguishable. See, e.g., United States v. Soto, 779 F.2d 558,

560-61 (9th Cir. 1986), opinion amended by 793 F.2d 217 (9th Cir.

1986) (insufficient evidence to establish possession where weapons

were found in the van in which defendant was a passenger for only

10 minutes, the weapons were accessible by defendant as well as the

driver and another passenger, driver testified that he owned the

weapons and that defendant did not know about them before getting

in the van, and government presented no other evidence that

defendant was connected to the weapons); United States v. Blue, 957

F.2d 106 (4th Cir. 1992) (insufficient evidence to establish

constructive possession where government's only evidence was that

police officer testified that he saw defendant's shoulder dip as he

approached vehicle and weapon was found under his seat, but no

fingerprints or other evidence linking defendant with gun were

produced). Liranzo also points out a host of supposed lacunae in

the evidentiary record: there was no evidence that he was the

registered owner of the car or its driver; there was no physical

evidence such as fingerprints; there was no evidence that the

defendant had ever been seen with the weapon or any weapon at all.
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There was much more than "mere proximity" here. As the

earlier discussion demonstrates, the evidence showed that Liranzo

exercised exclusive dominion and control over the location of the

gun. See United States v. Zavala-Maldonado, 23 F.3d 4, 7 (1st Cir.

1994) ("'Constructive' possession is commonly defined as the power

and intention to exercise control, or dominion and control, over an

object not in one's 'actual' possession."). This renders the "no

other evidence" argument irrelevant. The fact that the government

did not present certain kinds of evidence does not mean that there

was insufficient evidence for conviction. In our review, we look

at "the total evidence, with all reasonable inferences made in the

light most favorable to the government." Hernández, 218 F.3d at 64

(emphasis added) (quoting Loder, 23 F.3d at 590).

III.

Liranzo also argues that the trial court erred by

allowing the arresting officers to testify about their assignments

in the gang task force, thereby causing prejudice to Liranzo.

There was no error.

Liranzo moved in limine before trial to exclude

references to the terms "gang" and "gang unit" from the officers'

testimony. The trial judge denied the motion after a hearing.

Since Liranzo had indicated that his defense would attack the

credibility of the arresting officers and the police practices and

procedures used in this case, the trial judge concluded that
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evidence of the officers' assignments to the gang task force was

relevant to explain to the jury the appearance of "excessive police

presence for people who essentially have traffic stops."

Furthermore, the judge explained that the jury could perceive this

car stop as an incident of racial profiling. The judge held the

evidence was relevant so the government could demonstrate that

"these people weren't stopped because of their race, but because

these officers are there for the particular responsibility ... [of]

watching the house [of the known gang member on Farnham Street]."

The government told the jury in its opening statement

that "this case is nothing about gangs" and that "[t]he only

importance of what [the officers] were doing and where they were is

for you to understand that this was not a [routine] car stop."

Before any of the officers testified, the trial judge gave the

following limiting instruction to the jury:

I am allowing these officers to testify as to

their duties, because those were their duties

according to them, and so ... this testimony

about what their assignment was at the time of

the incident in question is given solely to

provide to you background and context. 

The government does not claim in this

case that the defendant is in a gang or that

he was involved in any gang activities at the

time of the event in question in this case.

And so for that reason, the fact that

witnesses may testify they were members of the

gang task force and/or that they were

investigating gang related activities has no

bearing on whether you find the defendant

guilty or not guilty of the offense with which

he has been charged. 
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During trial, the officers testified that they were

assigned to the "Suffolk County Gang Unit," whose responsibility is

to "investigate gang-related crimes." They "patrol the greater

Lawrence area to seek out gang-related issues, gang-related crime."

The officers paid particular attention to the Farnham Street house

because it was the house of a "known gang member of the outlaw gang

... based out of South Lawrence." They drive by that area "at

least twice, maybe three times a week, normal patrol" and during

the last five years have "gone by, driven by, and observed [the]

activity of ... the residence[] ... probably a couple hundred

times." During trial, Liranzo lodged repeated objections to such

references to the officers' assignments and activities at the

Farnham Street home and thus preserved his objections for appeal.

Liranzo contends on appeal that all evidence regarding

the officers' posts in the police gang task force and the gang

activity at the home on Farnham Street should have been excluded as

irrelevant and prejudicial to Liranzo. Specifically, Liranzo

argues that admission of the evidence was error because 1) the

evidence failed to establish that he was in a gang, 2) any alleged

gang affiliation had no bearing on his case, and 3) the admission

of the evidence prejudiced his defense and changed the outcome of

a close case.

Our review is for abuse of discretion. Under Federal

Rule of Evidence 403, relevant "evidence may be excluded if its
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probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury." The

process of balancing the probative value of evidence with the risk

of unfair prejudice is committed to the sound discretion of the

trial court. United States v. Fields, 871 F.2d 188, 196 (1st Cir.

1989). "[O]nly in 'extraordinarily compelling circumstances' will

we reverse a district court's 'on-the-spot judgment' concerning the

probative value and unfair effect of the proffered evidence."

United States v. Shea, 159 F.3d 37, 40 (1st Cir. 1998) (quoting

United States v. Lewis, 40 F.3d 1325, 1339 (1st Cir. 1994)). This

standard is not met here.

Liranzo's first argument fails because the evidence was

not admitted to show his gang membership and the limiting

instruction made that clear.

Second, the evidence regarding the gang task force and

the surveillance of the Farnham Street home was, for the reasons

stated by the trial judge, relevant.

Furthermore, the district court's concern for the risk of

the jury's perception of racial profiling was validated by what

occurred before and at trial. Much of the voir dire questioning

focused on potential juror bias against the defendant as a "black

Hispanic" man. The voir dire thus caused the jury to be extra

sensitive to the race of the defendant and led to one prospective

juror telling the trial judge, "I am not comfortable with a11 of my
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white peers judging a black person." The opening statement of the

defendant stressed that all of the occupants of the Nissan were

Hispanic and that the stop occurred in "a Hispanic neighborhood

with many other Hispanic people." The trial judge thus had reason

to believe that the testimony regarding the officers' gang-related

assignments and the surveillance history of Farnham Street would be

relevant in giving the jury the necessary background to understand

the police procedures and their reactions so as to counter any

impression of racial profiling.

Finally, any risk of unfair prejudice is limited by the

court's instructions to the jury and the government's explanation

of the role played by the officers' testimony. See United States

v. Taylor, 284 F.3d 95, 104 (1st Cir. 2002) (district court's

cautionary instruction to jury that "Defendants are not charged

with possessing a firearm or a gun" addressed any risk of

unwarranted inferences by jury from evidence that defendant

possessed a gun); Shea, 159 F.3d at 40 (1st Cir. 1998) (district

court's cautionary limiting instruction to jury minimized potential

prejudice to defendant from admission of a gun used in a separate

robbery and such admission was not abuse of discretion).

IV.

For the foregoing reasons, we affirm Liranzo's conviction

for being a felon in possession of a firearm. So ordered.