Unpublished Disposition, 842 F.2d 1295 (9th Cir. 1988)

MEMORANDUM^* 

James Louis Perkins appeals his conviction of conspiracy to manufacture a controlled substance in violation of 21 U.S.C. §§ 846 and 841(a) (1) (1982). On appeal, Perkins contends 1) the jury's verdict was not supported by sufficient evidence; 2) the jury instructions on attempt were improper; 3) the search warrant pursuant to which evidence against Perkins was seized was not supported by probable cause; and 4) his counsel was ineffective. Perkins' contentions are without merit; we affirm the judgment of the district court.

Perkins argues that his conviction of conspiracy was not supported by sufficient evidence. As part of that argument, he contends there is no evidence he conspired with any other person. However, Perkins was in the process of moving to the premises on which drugs as well as chemicals and equipment commonly used to manufacture drugs were found. Also, methamphetamine was found in Perkins' car and in the trailer Perkins rented and backed up to a warehouse. The warehouse contained chemicals and equipment commonly used to manufacture methamphetamine. Co-defendant Eveland and others assisted Perkins in moving to the property and refurbishing the warehouse. Eveland also dumped trash that contained methamphetamine at a nearby landfill. Also, Perkins was standing next to the trailer and the warehouse when police executed a search warrant. Such evidence is sufficient to enable a reasonable jury to conclude beyond a reasonable doubt that Perkins unlawfully conspired to manufacture a controlled substance. United States v. Peacock, 761 F.2d 1313, 1316-17 (9th Cir.), cert. denied, 474 U.S. 847 (1985).

Perkins also contends that there was insufficient evidence to support the jury's verdict that he was guilty of the unlawful attempt and aiding and abetting the attempt to manufacture a controlled substance. We need not reach that issue because there was no conviction on the attempt charge. Moreover, any claimed error on the attempt charge did not affect the conspiracy verdict.

Perkins contends that the trial court committed reversible error in failing to refer to the requirement of "substantial step" in the jury instruction on attempt. Again, we need not reach that issue because there was no conviction on the attempt charge.

Perkins contends that the district court should have granted his motion to suppress the evidence seized pursuant to execution of a search warrant. Perkins argues that the warrant was not supported by probable cause. However, the affidavit in support of the warrant stated that trash removed from the property to be searched contained methamphetamine and that extensive nocturnal activity and an odor consistent with methamphetamine production were observed on the property. This evidence is more than sufficient to establish probable cause under the totality of the circumstances test of Illinois v. Gates, 462 U.S. 213, 238 (1983); see United States v. Espinosa, 827 F.2d 604, 610 (9th Cir. 1987).

Perkins contends that he was denied effective assistance of counsel by his attorney's failure to object to the admission of evidence of weapons seized at 3533 Brian Way. In United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir. 1986) we recognized that there is an evidentiary link between guns and narcotic crimes. Moreover, Perkins' counsel's failure to object to the evidence of the guns may have been a result of trial strategy rather than incompetence. See Inge v. Procunier, 758 F.2d 1010, 1016 (4th Cir.), cert. denied, 474 U.S. 833 (1985) (trial strategy could justify counsel's failure to object to the presence of shotgun in the courtroom). Finally, Perkins has failed to show his counsel's alleged error was, with reasonable probability, the cause of his conviction. Therefore, Perkins has failed to establish ineffective assistance of counsel under the two-part test of Strickland v. Washington, 466 U.S. 668, 687 (1984).

AFFIRMED.