The evidence was insufficient to support any one of those charges.
Use is "active employment of the firearm by the defendant." Bailey v.
United States, 116 S.Ct. 501, 505-06 (1995) (emphasis in original).
Neither Mr. Camacho nor Irizarry used the firearm on January 28. No party
Since there was no use of the firearm, there could be no aiding or
abetting of use of a firearm.
Without elaborating on the various definitions of "carry" given in the
cases, the short answer stated in Muscarello v. United States, 118 S.Ct.
1911, 1917 (1998), is that "`Carry' implies personal agency and some
degree of possession," and Camacho's conduct does not qualify. Irizarry,
not Mr. Camacho, carried the gun in his waistband (Tr. 317). The gun was
not on Mr. Camacho's person. It was not within his reach. He had no
possession of it. He had no control over it, for Irizarry refused to
comply with his request that it be placed safely under the back seat.
Sensibly, the government told the jury that "the government is not
claiming and has never claimed that Gabriel Camacho himself had drugs on
him or himself was carrying a gun." (Tr. 613.)
Thus, what remains is whether Mr. Camacho aided and abetted Irizarry's
carrying of the gun.
Irizarry and the Gun
To prevent unfair prejudice to Mr. Camacho and his co-defendant, who
were not involved in the gunfight, wounding and death which followed the
attempted robbery of the supposed buyers of heroin (who were actually an
undercover agent and a confidential informant), the trial of that portion
of the case was severed and conducted separately. The simpler and less
dramatic trial of Mr. Camacho and his co-defendant Rampersaud on the
narcotics charges and the § 924(c) count was held first.
Nevertheless, because Irizarry's acquisition of the gun took place in
connection with the attempted robbery (which Irizarry planned, but in
which he did not participate), most of the evidence concerning how and
why he obtained the gun, and when he carried it, was elicited in the
second trial, in which the defendants were Juan Garcia and Abelardo
Fulgencia Garcia. References to the transcript of that trial will be
identified as "Garcia Tr."
At the Garcia trial, Irizarry testified that he knew that Eddie and
Roberta (the supposed heroin buyers, who were the targets of the robbery)
were aware of his address, because he had taken them there. He was
concerned that after the robbery they might come to that address seeking
revenge. For that reason he asked Michael Chaparro to give him the gun
which Chaparro had upstairs, so that he could defend himself in case
Eddie and Roberta came after him. As Irizarry testified, (Garcia Tr.
A. . . . So I didn't want Michael Chaparro to know
that I had took them there, so I suggested to him
to give me the gun which he had upstairs, which
was the .9 millimeter.
Q. Did he give you that gun?