United States of America v. John Riccio

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3776
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UNITED STATES OF AMERICA
v.
JOHN RICCIO,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 06-cr-00702)
District Judge: Honorable Lawrence F. Stengel
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Submitted Under Third Circuit LAR 34.1(a)
June 11, 2009
Before: McKEE, HARDIMAN and VAN ANTWERPEN, Circuit Judges.
(Filed: August 13, 2009)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
John Riccio appeals his judgment of conviction for possession of a firearm in
furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) and aiding
and abetting in violation of 18 U.S.C. § 2. We will affirm.
Riccio argues that the Government failed to introduce sufficient evidence that he
knowingly possessed a firearm in furtherance of a drug-trafficking crime. “We apply a
particularly deferential standard of review when deciding whether a jury verdict rests on
legally sufficient evidence” and “we must view the evidence in the light most favorable to
the government . . . .” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998).
Riccio and his half-brother, James Miller, were involved in a drug trafficking
conspiracy that was thwarted through undercover police work. With the assistance of a
confidential informant, the undercover officer made four visits between October 13, 2006
and November 15, 2006 to 102 Bruce Lane in Wind Gap, Pennsylvania, a single-story,
nine-hundred-square-foot abode where Riccio and Miller lived. After the officer
purchased marijuana and methamphetamine from Riccio and Miller during October and
November of 2006, search and arrest warrants were issued on November 16, 2006 and
executed on November 20, 2006.
During the search, a metal ammunition can containing a large amount of
methamphetamine and marijuana was found under the bed in Miller’s bedroom. A
second ammunition can containing $69,500 in cash also was recovered. In addition,

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several bags of marijuana were found under the bed, along with drug paraphernalia. In
total, more than one kilogram of methamphetamine and more than two kilograms of
marijuana were recovered during the search.
In addition to the drugs, two firearms were recovered from Miller’s bedroom: a
loaded .22 caliber rifle propped up against the wall and an unloaded .22 caliber handgun
in a case in Miller’s dresser drawer. Finally, approximately 1,400 rounds of ammunition
were found throughout the abode and a detached shed on the property. Some of the
ammunition was found in Riccio’s bedroom.
The gravamen of Riccio’s appeal is that the evidence was insufficient for the jury
to conclude that Riccio constructively possessed the firearms because they were found in
his half-brother’s bedroom, one of the guns was less than fully functional, and the guns
were neither discussed nor displayed during the drug transactions involving the
undercover officer. This argument is unpersuasive for several reasons. First, the
dwelling was very small, containing only four rooms and a bathroom within nine hundred
square feet. In addition, ammunition was found throughout the house, including Riccio’s
bedroom. The home, about which a pit bull roamed freely, was equipped with security
cameras and an alarm system that alerted Riccio and Miller when anyone drove up the
gravel road to the house. Large quantities of drugs and cash were recovered at the home
as well. The firearms, one of which was loaded, were located just feet away from where
Riccio sold drugs to the officer on more than one occasion. Viewing the evidence in the

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light most favorable to the Government, a jury could reasonably conclude that the
firearms — like the surveillance equipment, drug paraphernalia, and ammunition — were
possessed by both co-conspirators in furtherance of their drug business. See United States
v. Sparrow, 371 F.3d 851, 853-54 (3d Cir. 2004).
Riccio attempts to distinguish our decision in Sparrow by arguing that the
Government failed to satisfy the “in furtherance” and “dominion and control”
requirements of 18 U.S.C. § 924(c). Because the firearms were in Miller’s bedroom,
Riccio argues, the Government failed to prove that Riccio exercised dominion and control
over them. We reject this argument because, although a reasonable juror may have
concluded that Riccio did not exercise dominion and control over the firearms, this was
not the only rational inference that could be drawn from the facts presented at trial. In
light of the aforementioned facts, the jury was free to conclude that Riccio exercised
dominion and control over the firearms.
As for the “in furtherance” requirement, Riccio applies the eight “non-exclusive”
factors we outlined in Sparrow and argues that those factors compel a finding of
insufficient evidence. We disagree. Although there was no evidence that the firearms
were stolen or that they were possessed illegally, the guns were found in a home that was
used essentially to wholesale methamphetamine and marijuana (factor one), the rifle was
accessible and the handgun was not far away (factor two), the rifle could be deployed
quickly by Riccio or Miller if a drug deal were going bad (factor three), the rifle was

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loaded (factor six), the firearms were found in the midst of active drug trafficking (factor
seven), and the firearms were very close to the drugs, the cash, and the ammunition
(factor eight). Although Riccio correctly notes that Miller acknowledged that he bought
the loaded .22 caliber rifle for his grandson to shoot squirrels and that it was never used to
assist or intimidate during drug transactions, the jury was not required to find that
testimony credible. For the foregoing reasons, there was ample evidence from which a
reasonable juror could conclude that the “in furtherance” requirement was satisfied.
Finally, Riccio relies on two closed-container cases where there was no evidence
to indicate that the defendants were aware of the existence of the firearms. See, e.g.
United Staes v. Cunningham, 517 F.3d 175, 179 (3d Cir. 2008), and United States v.
Garth, 188 F.3d 99, 114 (3d Cir. 1999). Here, there is ample evidence that Riccio knew
about the firearms because he testified as to the handgun, the rifle was in plain view, and
the ammunition was in his room and strewn about the house.
Riccio’s reliance on United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996), and
United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993), is equally misplaced. There, we
reversed convictions of defendants who had been present or had some knowledge of the
drugs but who had no control or dominion over them. Such is plainly not the case here
because Riccio was involved in storing, packaging, and distributing drugs from a small
home where he and his half-brother resided and each had full access thereto.
For the foregoing reasons, we will affirm Riccio’s judgment of conviction.

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