No. 18-1648

UNITED STATES OF AMERICA,

Appellee,

v.

CHRISTIAN RIVERA GALÍNDEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Pedro A. Delgado Hernández, U.S. District Judge]

Before

Thompson, Lipez, and Barron, Circuit Judges.

Rick Nemcik-Cruz for appellant. Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

June 2, 2021 THOMPSON, Circuit Judge.

Overview

An apartment search by the Puerto Rico police led to Christian Rivera Galíndez's arrest and indictment for possessing and aiding and abetting the possession of drugs (cocaine, crack, and marijuana) with intent to distribute them; and possessing and aiding and abetting the possession of a gun (a green and black .40-caliber Glock pistol with an obliterated serial number) in furtherance of a drug-trafficking crime (we will sometimes shorten the second charge to "gun possession" or some variant of that, for easy reading).1 Culpable possession may be "actual or constructive," as well as "sole or joint." See United States v. Tanco-Baez, 942 F.3d 7, 25 (1st Cir. 2019) (quotation marks omitted).2 And the government premised its case on his having

1Per "Spanish naming conventions, if a person has two surnames, the first (which is the father's last name) is primary and the second (which is the mother's maiden name) is subordinate." United States v. Martínez-Benítez, 914 F.3d 1, 2 n.1 (1st Cir. 2019). So we use "Rivera" instead of "Rivera Galíndez" from now on. Also keep the 2 following in mind as we approach the controversy before us: • Constructive possession exists if "a person knowingly has the power at a particular time to exercise dominion and control over an object." United States v. Nuñez, 852 F.3d 141, 145 (1st Cir. 2017) (quotation marks omitted). • "Dominion and control over an object" often "may be found through inference, based on a showing of dominion and control over the area in which the object is found." Id. - 2 - constructively possessed the drugs and the gun, because when the police came to the apartment with a search warrant in hand, they found him in a room with these items and only he had a key that opened a padlock on the apartment's front gate (an officer tried a key on Rivera's key chain, and it worked).

In the run-up to trial, Rivera moved to suppress the seized evidence.3 Testifying at a motion hearing, he claimed that the police had confronted him and his girlfriend as they sat in a car near the apartment; searched them and his auto; ordered them to go upstairs to the apartment's living room, on pain of being tasered if they refused; kept them there as they rifled through the rooms; showed him the drugs and the gun, a pistol he recognized as being the one he had hidden in his car; and then hauled them away in cuffs, with the seized items in tow. The defense's major theme was that the police had taken the gun from his car and planted it in the apartment to link him to the drugs there. The district judge denied the motion, however, a ruling left unchallenged on appeal.

• And "constructive possession may be found based wholly on circumstantial evidence." Id. FYI, one codefendant found in the apartment with Rivera pled 3 guilty to the gun-possession charge and anoth