Unpublished Disposition, 940 F.2d 669 (9th Cir. 1991)

No. 89-10624.

United States Court of Appeals, Ninth Circuit.

Before TANG and NOONAN, Circuit Judges, and SHUBB^* , District Judge.

MEMORANDUM^** 

A jury convicted appellant Lisbon Hall of conspiring to possess cocaine with the intent to distribute, 21 U.S.C. §§ 841(a) (1), 846; attempted possession with intent to distribute cocaine, 21 U.S.C. §§ 841(a) (1), 846; and use of a firearm in a drug trafficking crime, 18 U.S.C. § 924(c). The district court denied Hall's pretrial motion to suppress evidence seized during a residential search, on the ground that the officers executed the search warrant in good faith. Hall appeals the district court's denial of his suppression motion, the sufficiency of the evidence to support his convictions, and the district court's failure to instruct the jury on the possible existence of multiple conspiracies. We affirm Hall's convictions for conspiracy and attempted possession with intent to distribute cocaine. We reverse his conviction for use of a firearm in a drug trafficking crime.

DISCUSSION

Prior to trial, the district court held that the police officers lacked probable cause to search Hall's residence. The court nonetheless declined to suppress the evidence on the ground that the officers conducted the search in good faith. Hall appeals this holding.

Evidence from a search based on a facially valid warrant, subsequently found to be constitutionally deficient, may still be admitted as evidence if the officers obtaining the warrant and executing the search acted in good faith. United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988). Good faith will be found where the officers' reliance on the warrant was objectively reasonable. Id. at 140. The subjective beliefs of the officers have no relevance to this determination. Id. Officers may not rely upon the good faith exception if the warrant is " 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' " Id. at 139 (quoting United States v. Leon, 468 U.S. 897, 923 (1984)). The officers' reliance will be deemed reasonable if the affidavit supporting the warrant could " 'create disagreement among thoughtful and competent judges as to the existence of probable cause.' " Id. (quoting Leon, 468 U.S. at 926).

The government bears the burden of demonstrating that its officers acted in good faith. United States v. Michaelian, 803 F.2d 1042, 1048 (9th Cir. 1986). In meeting its burden, the government must rely on the facts actually presented to the magistrate in the warrant application. Hove, 848 F.2d at 140. "Leon does not extend ... to allow the consideration of facts known only to an officer and not presented to a magistrate." Id.

This case falls within the Leon exception. First, the fact that the deputy district attorney and a neutral and detached magistrate both approved the warrant evidences the reasonableness of the officers' reliance. In evaluating reasonable reliance, we have attached great significance to an officer's consultations with a government attorney and her obtainment of approval by a neutral magistrate. See, e.g., Ortiz v. Van Auken, 887 F.2d 1366, 1370-71 (9th Cir. 1989) (finding reasonable reliance where officer secured advice from deputy district attorney and obtained warrant from a judge); United States v. Freitas, 856 F.2d 1425, 1431 (9th Cir. 1988) (obtaining approval both of government attorney and magistrate was "sufficient to establish objectively reasonable behavior"); see also Arnsberg v. United States, 757 F.2d 971, 981 (9th Cir. 1985), cert. denied, 475 U.S. 1010 (1986) ("It would be plainly unreasonable to rule that ... officers ... must take issue with the considered judgment of an assistant United States Attorney and the federal magistrate. Not only would such a rule cause an undesirable delay in the execution of warrants, but it would also mean that lay officers must at their own risk second-guess the legal assessments of trained lawyers. The Constitution does not require that allocation of law enforcement duties.").

Second, this is not a case where the warrant application was "so bereft of probable cause" that no reasonable officer would rely on the warrant. Michaelian, 803 F.2d at 1047.¹  While the evidence linking Hall's residence to the drug transaction was less than overwhelming, the officers' belief in the existence of probable cause was not " 'entirely unreasonable.' " Hove, 848 F.2d at 139 (quoting Leon, 468 U.S. at 923). The timing of coconspirator George Brown's visits to the residence (immediately prior to the scheduled exchange and during the time when Brown was supposed to be testing the cocaine sample) suggested that the residence might play a role in the drug trafficking scheme. The fact that all of the players in the conspiracy congregated at the residence prior to departing for Carrows Restaurant also indicated that the residence might be a central point for coordinating the drug conspiracy. Given these facts, thoughtful and competent judges might debate the existence of probable cause. Consequently, the officers' reliance was reasonable. See id.

In Hove, we rejected an attempted invocation of the good faith exception because the affidavit offered "no hint as to why the police wanted to search th [e] residence." 848 F.2d at 139-40. In Hove, the affidavit simply listed the residence as a location to be searched. Id. at 140. Here, by contrast, a significant connection between the location searched and criminal activity was shown. We therefore conclude that the officers' belief that probable cause existed was not "entirely unreasonable." The district court thus did not err in relying on the good faith exception.

II. Sufficiency of the Evidence to Support the Convictions for Conspiracy and Attempted Possession with Intent to Distribute Cocaine

Hall argues that the prosecution introduced insufficient evidence to support his conviction for conspiracy and attempted possession of cocaine with intent to distribute. He contends that the evidence merely demonstrated his presence at Carrows Restaurant and his association with Brown, which is not enough to permit a finding that he conspired to possess or attempted to possess cocaine with the intent to distribute. We reject this claim because, taking the evidence in the light most favorable to the verdict, reasonable jurors could have concluded that the evidence proved more than Hall's presence and association. It demonstrated his active role in the attempt to purchase drugs from the officers.

Hall does not dispute that the evidence demonstrated the existence of a conspiracy. He challenges only the sufficiency of the evidence connecting him to the conspiracy. Once the prosecution proves a conspiracy, "evidence establishing beyond a reasonable doubt a knowing connection of the defendant with the conspiracy, even though the connection is slight, is sufficient to convict him of knowing participation in the conspiracy." United States v. Meyers, 847 F.2d 1408, 1413 (9th Cir. 1988).

Brown's testimony sufficiently connected Hall to the conspiracy to sustain his conviction. Brown testified that Hall was his "money man" for the deal--that is, that Hall was the source of his funds to purchase the drugs. Brown also stated that he was purchasing the cocaine on Hall's behalf. Brown's testimony further indicated that Hall played some role in coordinating the trip to Carrows Restaurant on the evening of December 5, 1988.

The direct testimony of Brown alone suffices to link Hall with the conspiracy. The uncorroborated testimony of an accomplice will sustain a conviction unless the testimony is incredible or insubstantial on its face. United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986), cert. denied, 481 U.S. 1030 (1987); United States v. Turner, 528 F.2d 143, 161 (9th Cir.), cert. denied, 423 U.S. 996 (1975).

Hall suggests that we discount Brown's testimony because it was the product of a plea agreement and was offered with the expectation of obtaining leniency in sentencing. This does not demonstrate, however, that Brown's testimony was incredible or insubstantial. In fact, the testimony of the undercover officers corroborated those parts of Brown's testimony connecting Hall to the conspiracy as his "money man." Unless a witness's testimony is patently unbelievable or untrustworthy, we leave credibility determinations to the jury. United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989); United States v. Foster, 711 F.2d 871, 877 (9th Cir. 1983), cert. denied, 465 U.S. 1103 (1984).

We note, moreover, that other evidence besides Brown's testimony connected Hall to the conspiracy. Officers surveilled him meeting with Brown immediately before the drug transaction was to take place. Hall traveled to the exchange site and then followed Brown into the restaurant. Evidence also established Hall's control of the house where the three codefendants met prior to the exchange. While standing alone this evidence might not support a conspiracy conviction, see United States v. Weaver, 594 F.2d 1272, 1274 (9th Cir. 1979), it complements Brown's and the officers' testimony indicating that Hall was the "money man" for the drug deal. We have sustained conspiracy convictions based on comparable evidence. See, e.g., United States v. Vargas-Rios, 607 F.2d 831, 834-35 (9th Cir. 1979); United States v. Young, 573 F.2d 1137, 1139 (9th Cir. 1978).

B. Attempted Possession with Intent to Distribute

Hall contends that the government failed to prove his attempted possession with intent to distribute cocaine. The same evidence that linked him to the conspiracy, however, demonstrates that he attempted to exercise control over the cocaine. To prove attempted possession under 21 U.S.C. § 841(a) (1), the government need not show that the defendant attempted to obtain exclusive actual possession. The requirement " 'may be satisfied by proof of constructive or joint possession.' " United States v. Chambers, 918 F.2d 1455, 1457 (9th Cir. 1990) (quoting United States v. Soto, 779 F.2d 558, 560 (9th Cir.), amended, 793 F.2d 217 (1986), cert. denied, 484 U.S. 833 (1987)). A conviction for possession or attempted possession will stand "if there is a rational basis for attributing interest in the contraband to one party because of [his] relationship with another." United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.), cert. denied, 488 U.S. 943 (1988). Brown's testimony identifying Hall as the person both financing the drug deal and on whose behalf the drugs were being purchased sufficed to establish constructive attempted possession of the cocaine or, at a minimum, attempted joint possession of the cocaine with Brown.

Additionally, the amount of cocaine involved established Hall's intent to distribute the cocaine. See United States v. Tavelman, 650 F.2d 1133, 1140 (9th Cir. 1981), cert. denied, 455 U.S. 939 (1982).

III. Sufficiency of the Evidence to Support the Conviction for Use of a Firearm

Hall raises a separate sufficiency of the evidence claim with respect to his conviction for use of a firearm in a drug trafficking crime, under 18 U.S.C. § 924(c).

In order to convict a defendant under section Sec. 924(c), the government must prove that the defendant (1) used or carried (2) a firearm (3) during the commission of a drug offense. The key element in doubt in this case is whether Hall "use [d] or carrie [d]" a gun from the time he left his house until his arrest at Carrows Restaurant. Three possible bases for conviction were presented to the jury in this case. The jury could have found that Hall (1) actually used or carried a firearm himself; (2) aided, abetted, counselled, or induced his codefendant Smith and/or Brown to use or carry a firearm; or (3) was responsible for the use or carrying of a gun by one of his coconspirators (Smith or Brown) because conspirators are liable for all foreseeable criminal acts committed by their coconspirators in the course of the conspiracy. We hold that the prosecution failed to introduce sufficient evidence to sustain a conviction on any of these three grounds. Accordingly, we reverse Hall's conviction under 18 U.S.C. § 924(c).

Under the law of this circuit, the prosecution must prove that the firearm "facilitated" or "emboldened" a defendant in her or his commission of a drug trafficking crime before a section 924(c) conviction will stand. United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985). This is a much stiffer test than showing mere possession. Indeed, we have indicated that the mere possession of a firearm during the commission of a drug crime does not violate section 924(c). United States v. Torres-Medina, No. 90-50257, slip op. 7131, 7135 n. 2 (June 7, 1991).

Accordingly, showing only the defendant's knowledge or awareness of a gun's presence (a sub-element of possession) would also be insufficient to sustain a guilty verdict. We have further held that "the government must do more than show that the defendant was present as a passenger in the vehicle and within reach of the weapon." United States v. Behanna, 814 F.2d 1318, 1320 (9th Cir. 1987). Evidence revealing the "mere proximity of a weapon to a passenger in a car" will not suffice to sustain a conviction. Soto, 779 F.2d at 560.

The government's evidence does not support a finding that Hall himself actually used or carried a firearm. He did not drive or own the cars in which the guns were transported to the restaurant. Cf. Torres-Medina, slip op. at 7137 (evidence showed defendant owned the gun and house where gun was found). There is no evidence that he directed that the guns be placed in the cars. Cf. id. (evidence that defendant had in the past directed associate to retrieve gun). None of the guns were registered to Hall. He did not carry a gun on his person. Hall's fingerprints did not appear on any of the guns. Nor, during the time he served as lookout in the restaurant, did Hall have access to a firearm. Thus the guns could not have facilitated or emboldened his service as a lookout. See United States v. Ocampo, Nos. 89-50332, -50344, -50434, slip op. 8031, 8038 (9th Cir. July 1, 1991) (insufficient evidence to support finding of possession of cocaine, where cocaine was located in a truck in defendant's garage and defendant had neither keys nor title to the truck).

In his testimony, Brown denied any knowledge of the guns' presence in the car or of how they got there. Despite repeated questioning by the prosecution, Brown was unable to connect these guns to Hall. He never saw Hall with them. Brown's testimony suggested only that the guns first appeared in his car when he left Hall's house after the meeting.

Brown did testify that he believed the rifle found in Smith's car was carried out of Hall's house. Brown said he saw Smith with the rifle in the house. Brown stated, though, that he did not know where Hall was at the time he saw Smith with the rifle. He further denied any knowledge of who placed the rifle in Smith's car.

Given the tenuity of this evidence, no reasonable jury could have concluded beyond a reasonable doubt that Hall actually used or carried a firearm himself. See United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 179 (1989).

In addition to being instructed that they could find Hall guilty of actually using or carrying a firearm, the jury was told that Hall could be convicted as a principal if he "caus [ed] the firearm to be transported" or "aid [ed], abet [ted], counsel [led], command [ed], or induce [d]" Brown or Smith to carry a firearm during the drug transaction.

The prosecution introduced no evidence demonstrating that Hall induced Brown to carry the two guns. Brown did not claim that Hall pressured him or even asked him to take the guns. Indeed, Brown testified that he was not aware of the guns' presence. Nothing in the testimony indicates that Hall and Brown ever discussed the guns. The prosecution thus did not meet its burden of proving that Hall induced or abetted Brown's use or carrying of the firearms.

The prosecution also failed to introduce evidence showing that Hall advised or induced Smith to bring a gun. The evidence, taken in the light most favorable to the verdict, shows only that Brown saw Smith with the rifle at Hall's house. Brown specifically stated that he did not recall whether Hall was present when Smith was holding the rifle. The prosecution failed to evince any conversation or communication between Smith and Hall concerning the use or carrying of guns during the drug transaction. The dearth of evidence supporting a finding that Hall persuaded or caused Smith to carry or use a gun means that the government again fell short of meeting its burden of proof.

In Pinkerton v. United States, 328 U.S. 640, 646-47 (1946), the Supreme Court held that a defendant convicted of conspiracy is liable for the criminal acts of her or his coconspirators if commission of the offense could reasonably be foreseen as a necessary or natural consequence of the unlawful agreement. See also Hernandez v. United States, 300 F.2d 114, 122 (9th Cir. 1962). This is true even though she or he was not aware of the performance of those acts, nor even of the existence of the other actors in the conspiracy. See Pinkerton, 328 U.S. at 646-47. In United States v. Johnson, 886 F.2d 1120, 1123 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 1830 (1990), we held that a conviction under section 924(c) could be maintained under a Pinkerton theory. We noted that the use of guns in a drug transaction is certainly foreseeable. Id.

A conspirator (such as Hall) can only be convicted for crimes under Pinkerton, however, if the jury finds that one of the defendant's coconspirators actually committed the charged crime in the course of the conspiracy. See United States v. Thomas, 887 F.2d 1341, 1345 (9th Cir. 1989); United States v. Crespo de Llano, 838 F.2d 1006, 1019 (9th Cir. 1987); see also Committee on Model Jury Instructions, Ninth Circuit, Manual of Model Criminal Jury Instructions for the Ninth Circuit Sec. 8.05E (Supp.1991). For Hall's verdict to stand on Pinkerton grounds, in other words, the jury would have had to find that (1) either Smith or Brown (2) carried or used a firearm (3) in the course of the conspiracy. No such findings could have been made by the jury in this case.

Smith does not qualify as a Pinkerton coconspirator. While the jury did find Smith guilty of using or carrying firearms in the course of the drug transaction, the jury also acquitted Smith on the conspiracy count. Thus, while the jury found that Smith had violated section 924(c), it also found that he did not use or carry the firearm in the course of a conspiracy with Hall or Brown. Smith thus does not qualify as a coconspirator of Hall's. Cf. Johnson, 886 F.2d at 1123 (section 924(c) conviction sustained under Pinkerton where both defendants were convicted of conspiracy).

Brown also does not provide the predicate for convicting Hall under the Pinkerton doctrine. Brown pleaded only to conspiracy to possess cocaine and attempted possession with intent to distribute. He was not convicted of using or carrying a firearm during the drug transaction. Nor was the jury ever instructed on the Pinkerton doctrine. It was never told that it could convict Hall of using or carrying a firearm if it found that Brown used or carried a firearm and that Brown was a coconspirator of Hall's. Cf. id. (Pinkerton instruction actually given to the jury). The jury thus made no finding that Brown used or carried a firearm and did so in the course of a conspiracy with Hall.

In sum, the government failed to carry its burden of proving beyond a reasonable doubt that Hall used or carried a firearm within the meaning of 18 U.S.C. § 924(c). No evidence establishes beyond a reasonable doubt that Hall actually carried or used a firearm, that Hall aided or abetted anyone else in carrying or using a firearm, or that another member of the conspiracy used or carried a firearm in the course of the conspiracy. We accordingly reverse this conviction and vacate the sixty month consecutive sentence imposed by the district court on this count.

IV. Failure to Instruct the Jury on the Law of Multiple Conspiracies

Hall argues that the district court should have instructed the jury on the possible existence of additional conspiracies between Brown and others involved in the drug trade. He contends that, had the jury found these other conspiracies existed, it would have had to acquit him of the conspiracy count. In support of his position, Hall invokes our opinions in United States v. Abushi, 682 F.2d 1289 (9th Cir. 1982); United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979) (per curiam); and United States v. Perry, 550 F.2d 524 (9th Cir.), cert. denied, 431 U.S. 918 (1977). Hall's reliance on these opinions, however, is misplaced.

The cases cited by Hall reveal that an instruction on multiple conspiracies is necessary only when the evidence before the jury would permit it to find "separate and independent agreements" among conspirators, other than the general conspiracy alleged in the indictment. Abushi, 682 F.2d at 1299. See also Eubanks, 591 F.2d at 518 & n. 4; Perry, 550 F.2d at 532-33. While Hall suggests that other persons may have been involved in the conspiracy with which he was charged, he offers no argument and cites no evidence suggesting that separate and independent conspiracies existed. The mere fact that the government did not indict all of the possible players in a single conspiracy does not entitle a defendant to a jury instruction on the law of multiple conspiracies. A defendant must be able to point to evidence of multiple separate and independent conspiracies, rather than just evidence of multiple players in a single conspiracy, before an Abushi instruction will be mandated.

AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART.