Unpublished Disposition, 907 F.2d 155 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 155 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Wayne Thomas WAGNER, Defendant-Appellant.

No. 89-30243.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 1990.Decided June 25, 1990.

Before SCHROEDER, FERGUSON and WIGGINS, Circuit Judges.


Wayne Thomas Wagner appeals his convictions, following a jury trial, for use of a firearm in a drug trafficking crime in violation of 18 U.S.C. § 924(c) (1). Wagner raises three issues concerning his conviction. First, he argues that 18 U.S.C. § 924(c) (1), which makes illegal the carrying of a firearm during and in relation to any drug trafficking crime, requires that the government actually charge the defendant in the indictment with a federal offense. Wagner also alleges that there was insufficient evidence to sustain his conviction of Count 1 for use of a firearm in a drug trafficking crime. Finally, Wagner claims that the prosecution was vindictive. We reject the three arguments and affirm.

Wagner was arrested during a cooperative effort between federal and state authorities investigating the illegal cultivation of marijuana on National Forest lands northeast of Libby, Montana. On August 17, 1988, the same week that Wagner had been released after pleading guilty to state drug charges arising from the same investigation, he was followed to a camp in the Montana woods. There, after obtaining a search warrant, law enforcement officers found a loaded .22 caliber rifle and also quantities of marijuana. Subsequently, Wagner was captured as he stalked a United States Forest Service law enforcement officer who was searching for him.

After a jury trial Wagner was convicted of a two-count indictment in violation of 18 U.S.C. § 924(c). Count I charged him with having a .22 caliber rifle, which was found at the camp in the woods, in his possession during a drug trafficking crime. Count II charged him with having a .44 caliber handgun, with which he stalked the officer, also in violation of 18 U.S.C. § 924.

Wagner first argues that in order to be convicted under section 924(c) (1) he must formally be charged with a drug trafficking crime. Section 924(c) (1) provides:

Whoever, during and in relation to any crime of violence or drug trafficking crime ..., uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.



* * *

18 U.S.C. § 924(c) (1).

We have previously rejected Wagner's argument. In United States v. Hunter, 887 F.2d 1001 (9th Cir. 1989), cert. denied, 110 S. Ct. 1159 (1990), this court held:

[A] defendant charged with violating section 924(c) (1) must be proven to have committed the underlying crime, but nothing in the statute or the legislative history suggests he must be separately charged with and convicted of the underlying offense.

Id. at 1003 (emphasis added). "We have long held section 924(c) (1) defines a separate crime rather than merely enhancing the punishment for other crimes." Id. (citing United States v. Dixon, 558 F.2d 919, 921 (9th Cir. 1977), cert. denied, 434 U.S. 1063 (1978)). In Wagner's case, the district court instructed the jury that the United States needed to prove a violation of 21 U.S.C. § 841(a) (1)1  as the predicate offense to a section 924 conviction. The evidence was sufficient to prove a violation of section 841(a) (1). This is all that is required under section 924.

Government of the Virgin Islands v. Frett, 684 F. Supp. 1324 (D.V.I. 1988), is not contrary. In that case, the predicate offense was not a crime punishable under federal law.

Wagner's second argument is that there was insufficient evidence to convict him of Count I. The standard of review is whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. United States v. Power, 881 F.2d 733, 736-37 (9th Cir. 1989).

Wagner argues that the only reasonable inference a jury could make was that the .22 caliber rifle was present in the camp. There is no evidence, he argues, to show that he was "emboldened" from the weapon, or that the weapon had any role in the predicate crime.

However, in this and every other circuit to consider the issue, a firearm within the possession or control of a defendant in order to "prevent someone from stealing the narcotics" is sufficient to sustain a conviction. See, e.g., United States v. Wilson, 884 F.2d 174, 177 (5th Cir. 1989); Power, 881 F.2d at 737. United States v. Raborn, 872 F.2d 589, 595 (5th Cir. 1989); United States v. Ramos, 861 F.2d 228, 230 (9th Cir. 1988). Here, the jury could reasonably conclude that the gun inside the tent was within the possession or control of Wagner and that the proximity of the contraband to the loaded gun supported an inference that Wagner intended to protect himself or the contraband with the weapon. This constitutes sufficient evidence to satisfy the "in relation to" language of section 924, Power, 881 F.2d at 737; Ramos, 861 F.2d at 230, and to support Wagner's conviction.

Wagner claims that there was vindictive prosecution by federal officials because his violation occurred only two days after he had pleaded guilty to state charges for a different offense which was obtained as part of the same cooperative state and federal investigation. Wagner contends that the federal officials colluded with the state officials, and apparently convinced the state officials to release Wagner subsequent to his guilty plea in state court in order to arrest him again on federal charges.

In Bartkus v. Illinois, 359 U.S. 121 (1959), the Supreme Court opened the possibility that if prosecution by one sovereign is a "sham and a cover" for prosecution by another, double jeopardy concerns might be implicated. Id. at 124. In United States v. Bernhardt, 831 F.2d 181 (9th Cir. 1987), this court ruled, however, that if a "Bartkus exception" exists, it is extremely narrow.

Wagner presents an even far less compelling case than Bernhardt. The federal government in Bernhardt initiated an investigation after a state court dismissed charges against the defendant. Here, federal agents were involved in the investigation from its inception. As this court has held, " [i]t is clear that the underlying Bartkus exception does not bar cooperation between prosecuting sovereignties." Bernhardt, 831 F.2d at 182. More important, here, the state and federal prosecutions did not even arise out of the same conduct. Wagner had pleaded guilty to the state offenses before he committed the violations that resulted in his federal conviction. No double jeopardy concerns are implicated.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


This section provides:

(a) except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--


To manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or


To create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance

21 U.S.C. § 841(a).