Unpublished Disposition, 886 F.2d 1321 (9th Cir. 1988)

MEMORANDUM^** 

Tiggs and Lenard, convicted on six counts, raise several issues spawning from the prosecution of a cocaine distribution conspiracy involving a Los Angeles-based gang. We affirm.

In October 1987 several members of a Los Angeles gang, the "Crips," began to distribute crack cocaine in the Seattle area. In May 1988 Kelvin Tiggs and Varian Lenard, members of the "Crips," were charged in a seven-count indictment with conspiracy, intent to distribute a cocaine base and use of a firearm.¹  Six other gang members, also charged in the indictment, pleaded guilty before trial. Following the trial, a jury convicted Tiggs and Lenard on six counts. The court sentenced them each to a total term of imprisonment of 15 years.² 

APPELLANTS' CHALLENGES

Lenard and Tiggs raise several errors. They contend that the court erred (1) in admitting evidence of a drive-by shooting; (2) in giving the jury a Pinkerton instruction; and (3) in denying their motion of acquittal based on insufficiency of evidence to convict under 18 U.S.C. § 924(c) (1).

At trial, the court admitted evidence that the conspiracy's leader, Hargress, had participated in a drive-by shooting. Testimony revealed that Hargress, believing that a young male wearing red belonged to a rival gang, shot him. Appellants assert that the court abused its discretion by admitting this evidence. We disagree.

In United States v. Patterson, 819 F.2d 1495 (9th Cir. 1987), the indictment alleged that defendants, charged with a conspiracy to distribute heroin, used violence to maintain control and to expand their distribution areas. Id. at 1504-05. This court upheld the admission of evidence of a shooting. We found the evidence relevant to the charges alleged, proper under Fed.R.Evid. 404(b) and not unfairly prejudicial under Fed.R.Evid. 403. Id.

Similarly, the indictment here alleged that in furtherance of the conspiracy, the conspirators "possessed, utilized, and displayed numerous firearms ... for the purpose of providing security for their crack cocaine distribution activities." It also included the shooting incident as an overt act. Expert testimony established that Los Angeles-based gangs, such as the "Crips," shoot randomly at rival gang members to guard and expand their turf. The evidence was relevant.

We conclude also that the evidence was not unfairly prejudicial. The government furnished only minimal details of the shooting. See United States v. Meester, 762 F.2d 867, 875 (11th Cir.), cert. denied, 474 U.S. 1024 (1985). Several witnesses discussed it in a general manner, focusing on the allegation that Hargress believed the victim was a member of the "Bloods," a rival gang known to wear red. We have characterized Rule 403 as " 'an extraordinary remedy to be used sparingly because it permits the trial court to exclude otherwise relevant evidence.' " Patterson, 819 F.2d at 1505 (quoting Meester, 762 F.2d at 875). Admission of the evidence was proper.

Lenard and Tiggs argue that the court violated due process by instructing the jury on Pinkerton liability. See Pinkerton v. United States, 328 U.S. 640 (1946). They contend that the instruction diminished the government's burden of proving that they had actual knowledge of each substantive offense because Pinkerton requires only that each offense be reasonably foreseeable.³ 

Their argument lacks merit. They misinterpret the theory of liability underlying Pinkerton. The government still must prove beyond a reasonable doubt that a conspirator committed each element of the substantive offense charged. A jury may find a coconspirator guilty of that offense if it concludes that the act was committed in furtherance of the conspiracy, fell within the scope of the unlawful project, and could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement. Pinkerton, 328 U.S. at 645-48; United States v. Douglass, 780 F.2d 1472, 1475-76 (9th Cir. 1986).

By suggesting that a coconspirator must have actual knowledge of a criminal act in order to be vicariously liable, appellants invite the court to reexamine well-settled concepts of conspiracy liability.⁴  "The criminal intent to do the [substantive criminal] act is established by the formation of the conspiracy." Pinkerton, 328 U.S. at 647. We have upheld similar convictions resting on a Pinkerton theory. See, e.g., Douglass, 780 F.2d at 1475-76 (conviction under firearm statute); United States v. Vasquez, 858 F.2d 1387, 1393 (9th Cir. 1988) (conviction under drug distribution statute), cert. denied, 109 S. Ct. 1161 (1989); accord United States v. Raborn, 872 F.2d 589, 596 (5th Cir. 1989) (conviction under Sec. 924(c)).

III. Sufficiency of the Evidence Underlying Firearm Convictions

Lenard and Tiggs challenge the sufficiency of the evidence to support their convictions on Counts III and IV under 18 U.S.C. § 924(c) (1). They suggest that the evidence does not support the necessary connection or relation between the firearms recovered and the distribution of crack cocaine.

At the close of the government's case, they moved for judgment of acquittal. The court denied the motion. Because they did not renew it at the close of all the evidence, they waived their objection to the sufficiency of the evidence. United States v. Ramirez, 880 F.2d 236, 238 (9th Cir. 1989). We review only for plain error. Id.; United States v. Comerford, 857 F.2d 1323, 1324 (9th Cir. 1988), cert. denied, 109 S. Ct. 812 (1989).

A. Firearms at 3533 South Bennett (Count III)

Police officers recovered two handguns while conducting a search of 3533 South Bennett, one of the Seattle houses from which the conspiracy sold crack cocaine. Testimony revealed that police recovered a loaded handgun under a mattress and another in a suit carrier hanging by a second suit carrier containing rock cocaine.

Appellants' claim that the evidence shows nothing more than mere possession of handguns, insufficient to convict under 18 U.S.C. § 924(c) (1), lacks merit. We have reviewed the trial transcript and find sufficient evidence establishing the link between the conspiracy's narcotics activities and the use of firearms. See United States v. Ramos, 861 F.2d 228, 231 n. 3 (9th Cir. 1988) (noting that "trafficking in narcotics is very often related to the carrying and use of firearms").

Police officers recovered four loaded handguns at the Aloha Motel, where they arrested four conspirators, including Tiggs. They found the guns on or near those persons. The surveillance of the Motel revealed activity that led the officers to believe that some drug activity had occurred.

Appellants argue that the police seized guns, ledgers containing narcotics transactions and cash, but no drugs. They claim that the link between cocaine distribution and the guns was insufficient. At trial, testimony revealed that, prior to the arrest, several conspirators left the motel with $20,000-$25,000 earned from drug sales. We find no plain error in the verdict.

TIGGS' CHALLENGES

Additionally, Tiggs urges reversal of his conviction because the court erred (1) in admitting statements elicited from government agents in violation of his right to counsel and (2) in instructing the jury on his withdrawal defense.

Tiggs contends that the court should have suppressed statements made on March 2, 1988 because agents continued to interrogate him after he had invoked his right to counsel under the Fifth and Sixth Amendments.

On February 17, he was arrested at the Aloha Motel with several others. Detective Buckland advised him of his Miranda rights, but did not interrogate him because of the activity at the arrest scene. Tiggs, while in custody, was charged almost immediately in state court for violation of Washington's Uniform Firearms Act. See Wash.Rev.Code Sec. 9.41.040. He was arraigned on that charge on February 23.

Buckland and Special Agent Aleff interviewed Tiggs in the jail on February 29. Buckland asked Tiggs if he still understood his rights. He said yes. After a short pause, Tiggs said that "No attorney has come to see me yet." Buckland and Aleff then asked Tiggs if he wanted to talk. He responded affirmatively and made several incriminating statements. Before leaving, Buckland asked Tiggs if he could return to talk to him, and Tiggs said yes.

On March 2, Buckland visited Tiggs again and asked him if he still understood his rights. Tiggs said yes, agreed to talk and gave details to Buckland on the drive-by shooting and the conspiracy's drug activities.

Before law enforcement officers conduct a custodial interrogation of a suspect, they must inform him of his right to counsel under the Fifth Amendment. Miranda v. United States, 384 U.S. 436, 479 (1966). They may not interrogate him until he knowingly and intelligently waives that privilege. Id. at 475. Similarly, the Sixth Amendment guarantees a defendant the right to counsel at postarraignment interrogations. Michigan v. Jackson, 475 U.S. 625, 629 (1986).

A request for counsel triggers important procedural safeguards designed to protect a suspect's Fifth and Sixth Amendment rights. After the suspect invokes his right to counsel, officials must discontinue interrogation of him until (1) he meets with counsel or (2) initiates further discussions with his interrogators and knowingly and intelligently waives his right to counsel. Edwards v. United States, 451 U.S. 477, 484-85 (1981); Jackson, 475 U.S. at 636 (extending Edwards rule to Sixth Amendment context).

1. Right To Counsel for Questioning Not Triggered Automatically with Attachment of Sixth Amendment Right

Tiggs first contends that because his Sixth Amendment right to counsel attached with his arraignment, government officials could not question him without an attorney regardless of whether he sought to exercise his right to have counsel present.

His argument was considered and rejected in Patterson v. Illinois, 108 S. Ct. 2389 (1988). In Patterson, the Court held that a defendant whose Sixth Amendment right to counsel has attached may not equate himself with one who has asserted his right to counsel. Id. at 2394. Tiggs' argument that the attachment of his right to counsel automatically triggers the stringent waiver requirements adopted in Jackson fails.

Second, Tiggs urges that he made an equivocal request for counsel when he stated that no attorney had come to see him yet. E.g., Norman v. Ducharme, 871 F.2d 1483, 1486 (9th Cir. 1989) (holding that when a defendant makes an ambiguous or equivocal request, questioning must cease, except inquiry limited strictly to clarifying the request). He contends that, because Buckland continued to ask questions not limited to clarifying his request, the court should have suppressed statements made on February 29 and March 2.

We conclude that Tiggs' statement on February 29 did not rise to an equivocal request. "Mere mention of an attorney does not constitute an equivocal request for counsel, as the word 'attorney' is not talismanic." E.g., Norman, 871 F.2d at 1486 (defendant's question to a police officer of whether he should see a lawyer not an equivocal request for counsel); Bruni v. Lewis, 847 F.2d 561, 564 (9th Cir. 1988) (statement that defendant would answer questions "he thought his attorney would probably advise him to answer" not an equivocal assertion of his present right to counsel), cert. denied, 109 S. Ct. 1319 (1989).

We conclude also that Tiggs made a valid waiver of his right to counsel on March 2. Buckland testified that, prior to questioning on this date, he asked Tiggs if he still understood his rights. Tiggs responded that he did and answered Buckland's questions voluntarily. Based on the circumstances surrounding the interrogation and Tiggs' background and experience, the court found that he had made a voluntary, knowing and intelligent waiver of his rights. See, e.g., Patterson, 108 S. Ct. at 2394-95; Grooms v. Kenney, 826 F.2d 883, 887 (9th Cir. 1987). We agree. The court properly admitted Tiggs' March 2 statements.

II. Jury Instruction of Withdrawal from Conspiracy

Tiggs alleges error in the jury instruction on his withdrawal defense given by the court. He asserts that his proposed instruction, similar to the Seventh Circuit Pattern Instruction 5.13, presents a clearer statement of the law.

The court did not abuse its discretion by giving the Ninth Circuit Model Instruction 5.02. The instruction taken as a whole was not misleading and did not represent a statement inadequate to guide the jury's deliberations. E.g., United States v. Kessi, 868 F.2d 1097, 1101 (9th Cir. 1989).

AFFIRMED.