Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1989)

MEMORANDUM^* 

Garcia-Quintana and Dunlap appeal their convictions for conspiracy, distribution of over 500 grams of cocaine, and the use of a firearm. We affirm the district court on all points.

FACTS

Events. On February 8, 1988, an informant named Roy Patrick introduced Officer Ronald Lewis of the Tacoma Police Department to William Dunlap. Dunlap sold Lewis one ounce of cocaine for $1,200 and the two discussed the possibility of future transactions. The next day Dunlap sold Lewis another ounce for $1,200 and indicated that he could provide kilogram quantities without difficulty. Dunlap, Lewis, and other (not including Garcia-Quintana) discussed the use of weapons in connection with the distribution of drugs and agreed that no one would carry a weapon during their future dealings.

On February 11, Lewis and his partner, Officer Karen Kelly, met with Dunlap and Jesus Alonso Garcia-Quintana. In the course of bargaining for the sale of cocaine, Kelly asked to see "the product." Garcia-Quintana walked with Lewis to a car from which Garcia-Quintana retrieved a kilogram package of cocaine. As the pair walked towards Lewis's car to get the purchase money, Lewis triggered an electronic device to alert other officers. There was a squeal of tires as police cars came to the scene. Lewis saw Garcia-Quintana reach toward his waist. Lewis later testified that he thought Garcia-Quintana was "going for some type of weapon." [RT 13:51] Lewis grabbed Garcia-Quintana, wrestled him to the ground, pointed his revolver at him, identified himself as a police officer and ordered him not to move. Garcia-Quintana was face down on the ground. The other officers arrived. Garcia-Quintana was rolled over and was found to be in possession of a loaded revolver tucked into his waistband, a knife/brass knuckle-type weapon, and two hotel keys.

After obtaining a warrant to search the hotel rooms, police officers and DEA agents seized another one-half kilogram of cocaine, an Ohaus scale, a roll of masking tape, another loaded gun, a radio, and a total of $29,580.

Proceedings below. The grand jury returned a five-count indictment that charged Dunlap with two counts of distribution of cocaine, 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (C); and both Dunlap and Garcia-Quintana with conspiracy to distribute cocaine, 21 U.S.C. § 846; possession, with intent to distribute, over 500 grams of cocaine in furtherance of the conspiracy, 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B)812; and carrying a firearm during and in relation to a drug trafficking crime in furtherance of the conspiracy, 18 U.S.C. §§ 2 and 924(c).

After a jury trial, both were convicted on all counts. On July 15, 1988, each was sentenced to a total of ten years of imprisonment. Each filed a timely notice of appeal. On February 3, 1989, this court consolidated the appeals.

ANALYSIS

First. Garcia-Quintana complains there was not sufficient evidence to sustain his conviction for carrying a firearm during and in relation to a drug trafficking crime. There is sufficient evidence to support a conviction if, reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir. 1984). Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction, United States v. Talbert, 710 F.2d 528, 530 (9th Cir. 1983), cert. denied, 464 U.S. 1052 (1984), but mere suspicion or speculation is insufficient. United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir. 1986).

Garcia-Quintana concedes that his co-defendant had agreed with undercover officer Lewis that "guns and drugs didn't belong in the same business" and "all of their transactions would not include firearms." [Garcia-Quintana brief at 8.] The concession is made to support the argument that guns had nothing to do with the drug transaction. In other words, Garcia-Quintana asks this court to treat the resolution made during the conversation as his own. At the time of the transaction, of course, both Garcia-Quintana and Officer Lewis were armed with loaded revolvers. To argue that the defendants may have deceived Lewis about whether firearms were to be used does nothing to advance their cause. Indeed, the combination of the false statements about firearms, the presence of an easily accessible loaded revolver hidden in Garcia-Quintana's waistband at the time of the transaction, and Garcia-Quintana's reaching for his waist upon hearing the sudden approach of cars gives rise to the inference from circumstantial evidence that the firearm facilitated the crime by emboldening Garcia-Quintana. A rational jury could draw the inference. The evidence was therefore sufficient.

Second. Garcia-Quintana contends that the trial court erred by admitting into evidence the firearms found on the hotel premises. Relevant evidence may be excluded at the discretion of the trial judge if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Fed.R.Evid. 403. A district court's decision regarding the exclusion of evidence on account of unfair prejudice will not be disturbed in the absence of an abuse of discretion. United States v. Crespo de Llano, 838 F.2d 1006, 1018 (9th Cir. 1987). Under the abuse of discretion standard, we cannot reverse unless we have a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached. United States v. Van Cauwenberghe, 827 F.2d 424, 431 (9th Cir. 1987), cert. denied, 108 S. Ct. 733 (1988).

In Crespo de Llano, 838 F.2d at 1018, as well as in United States v. Martin, 599 F.2d 880, 889 (9th Cir. 1979), cert. denied, 441 U.S. 962 (1979), guns seized in the defendant's house were properly admitted to show involvement in the narcotics trade. The admission of seized firearms has been upheld to support a charge of drug distribution because firearms are a drug dealer's tools of the trade. E.g., United States v. McDaniel, 773 F.2d 242, 247 n. 4 (8th Cir. 1985). Courts have recognized that the presence of firearms is "of great probative value" and is relevant in the proof of a narcotics charge. Id.

In the present case the government produced evidence to show that Garcia-Quintana had met with the informant in the hotel room, that Garcia-Quintana was in possession of the key to the room at the time of his arrest, and that hotel personnel identified Garcia-Quintana as the person who regularly paid for the room. Garcia-Quintana lived in the room; one-half kilogram of cocaine was found there. Under these circumstances and in light of our precedents, no definite and firm conviction that the court below committed a clear error of judgment arises. The gun was properly admitted.

Third. Garcia-Quintana contends that the trial court erred in its instructions to the jury because Instruction 12 improperly stated the elements required to violate 18 U.S.C. § 924(c) (2). We review the question of whether a jury instruction correctly defines the elements of an offense under a de novo standard. United States v. Pemberton, 853 F.2d 730, 734 (9th Cir. 1988).

In 1984 Congress revised section 924(c), combining former subsections 924(c) (1) and 924(c) (2). The amendment substituted for the word "during" the phrase "during and in relation to." The Ninth Circuit has cited the legislative history of the statute showing that the statute was "directed at persons who chose to carry a firearm as an offensive weapon for a specific criminal act." S.Rep. No. 225, 98th Cong., 1st Sess. 312-14 (1983) reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3490-92, and in the light of that history has ruled that the statute is violated if a firearm is within the possession or control of a person who commits an underlying crime as defined by the statute, and "the circumstances of the case show that firearm facilitated or had a role in the crime, such as emboldening an actor who had the opportunity or ability to display or discharge the weapon to protect himself or intimidate others, whether or not such display or discharge actually occurred. United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985) (emphasis added).

It is the duty of the district court to instruct the jury on all the essential elements of the crime charged. United States v. Combs, 762 F.2d 1343, 1346 (9th Cir. 1985). When a person is prosecuted under a statute, the requirements of the statute should be explained to the jury so that they may determine whether or not the defendant's conduct fits within the statute. Id. In the present case, the jury instruction did nothing more than incorporate the language of Stewart to explain the elements of a violation of section 924(c). It is not error to incorporate controlling precedent concerning the elements of a crime into a jury instruction. Garcia-Quintana's argument fails.

Fourth. Dunlap claims that there was insufficient evidence to convict him of the firearm offense pursuant to Pinkerton v. United States, 328 U.S. 640 (1946). There is sufficient evidence to support a conviction if, reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Marabelles, 724 F.2d at 1377. Under Pinkerton, a defendant is liable for every crime committed by every other member of a conspiracy if a) the substantive offense is committed in furtherance of the conspiracy, b) the offense fell within the scope of the unlawful project, and c) the offense could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement. Pinkerton, 328 U.S. at 647-48; United States v. Douglass, 780 F.2d 1472, 1475-76 (9th Cir. 1986).

Dunlap admits that there is ample evidence that he was a party to a conspiracy to distribute cocaine, but contends that no evidence was presented to show that he could reasonably foresee, as a natural or necessary consequence of the agreement, that Garcia-Quintana would possess a firearm. [Dunlap brief at 5.]

The illegal drug business is a dangerous, violent business. United States v. Diaz, 864 F.2d 544, 549 (7th Cir. 1988). When a person conspires to distribute a kilogram of cocaine it is reasonable to assume that a weapon of some kind would be carried. Id.; see also Douglass, 780 F.2d at 1475-76 (evidence was sufficient to convict marijuana distribution co-conspirator of firearm violation). " [T]rafficking in narcotics is very often related to the carrying and use of firearms." United States v. Ramos, 861 F.2d 228, 231 n. 3 (9th Cir. 1988).

Dunlap's contention is contradicted by the record. There is evidence showing that Dunlap knew that guns might be involved. Officer Lewis testified that on February 9, 1988 he discussed the relationship between guns and the drug business with Dunlap at Dunlap's residence. [RT 13:27-28].

Lewis further testified that he, Dunlap and others present all agreed to conduct their transactions without weapons. Because the evidence showed that Dunlap addressed the question of whether guns were involved, and promised that no guns would be involved, a rational jury could infer that Dunlap could reasonably have foreseen his partner's possession of a firearm as a consequence of the conspiracy.

Dunlap invites this court to re-examine settled concepts of criminal law in light of the circumstances of this case. In particular, Dunlap asks this court to rule as a matter of law that a co-conspirator must have actual knowledge of a co-conspirator's possession of a weapon in order to be vicariously liable for the criminal use of that weapon. We decline the invitation.

AFFIRMED.