Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1990)

MEMORANDUM^** 

Appellant Alfredo Camacho appeals his conviction for conspiracy to distribute cocaine and maintaining a building for narcotics trafficking. He alleges inter alia that the statute under which he was prosecuted for cocaine trafficking is void for vagueness, that the affidavit securing the warrant to search his building was defective, and that he was denied effective assistance of counsel. We find no merit in these claims and affirm the conviction.

* Appellant Camacho managed "The Hayloft Too Tavern" ("Hayloft") located in the tri-cities area of the State of Washington. The Hayloft was under investigation by the Tri-Cities Task Force for alleged violations of narcotics statutes. Pursuant to this investigation, Detective Greg Eppling, operating in an undercover capacity, entered the tavern and informed the bartender that he wished to purchase some cocaine. The bartender then spoke to Camacho and returned to ask Eppling how much cocaine he wanted. After receiving this information, the bartender spoke with Camacho again at which time Camacho rose from his seat and went into the kitchen area. Upon his return, Camacho motioned to the bartender to join him. The detective then observed Camacho "remov [ing] something from his pocket and giv [ing] it to the bartender." Clements affidavit at 3. The bartender then motioned to Eppling to join him in the men's room where he delivered the cocaine to the detective.

Approximately one week later, Eppling again entered The Hayloft with the intention of purchasing cocaine. He approached a different bartender who informed him that there was no cocaine available at that time. The detective returned to the tavern later that evening after Camacho had been observed entering the premises by surveilling agents.¹  At that time, Eppling was able to purchase one ounce of cocaine from the same bartender who had facilitated the transaction the previous week.

An affidavit in support of a search warrant was subsequently filed in federal district court by G. Keith Clements, a Special Agent with the U.S. Drug Enforcement Administration ("DEA") who had been assisting Eppling in his investigation of The Hayloft. The search uncovered over 200 grams of cocaine and nine firearms.

Camacho was charged and convicted of one count of conspiracy to distribute cocaine and one count of maintaining a building for narcotics trafficking. The court imposed concurrent 40-month sentences for these offenses. The instant appeal followed.

II

Appellant first claims that the statute under which he was convicted of maintaining a building for narcotics trafficking is void for vagueness. To prevail on this argument, Camacho must show that the statute " 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden ...' or is so indefinite that 'it encourages arbitrary and erratic arrests and convictions.' " Colautti v. Franklin, 439 U.S. 379, 390 (1979) (citations omitted); Planned Parenthood v. Arizona, 718 F.2d 938, 947 (9th Cir. 1983).

The relevant statutory provision reads that

It shall be unlawful to-- ...

(2) manage or control any building, room, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, and knowingly and intentionally rent, lease, or make available for use, with or without compensation, the building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.

21 U.S.C. § 856(a) (2) (1988). We do not find this language to be ambiguous or indefinite. It clearly provides notice to individuals such as Camacho that the knowing and intentional manufacture, storage, use or distribution of a controlled substance from a premises over which they have legal control will amount to a violation of federal law.

III

Camacho next contends that the district judge abused his discretion by admitting into evidence the nine firearms seized by law enforcement officials in searching The Hayloft. This argument is without merit. We have previously recognized that trafficking in narcotics is very often related to the possession of firearms. United States v. Willis, 899 F.2d 873, 875 (9th Cir. 1990). Thus, as the firearms were relevant to appellant's alleged participation in cocaine trafficking, they were properly admitted under Federal Rules of Evidence 402 and 403.

IV

Appellant also claims that the district court abused its discretion in denying his "motion to suppress evidence and to have a hearing in support of that motion." The linchpin of the suppression motion and the request for a hearing was the alleged inadequacy of the Clements affidavit which secured ex parte the warrant authorizing the search of The Hayloft. Camacho contends that the affidavit, by "contain [ing] erroneous information and fail [ing] to disclose [certain] evidence, ... significantly departed from the degree of candor required [when] addressing a magistrate."

In the seminal case of Franks v. Delaware, the Supreme Court held that to support a motion for an evidentiary hearing, such allegations of "deliberate falsehood or reckless disregard for the truth" must include an offer of proof. 438 U.S. 154, 171 (1978); United States v. Johns, 851 F.2d 1131, 1133 (9th Cir. 1988). In addition,

[t]hey should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.... Finally, if these requirements are met, and if, when material that is subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.

Franks, 438 U.S. at 171-72; Johns, 851 F.2d at 1133.

The only portion of the affidavit which Camacho alleges to be false is the contention that appellant "removed something from his pocket and gave it to the bartender." The government concedes that Detective Eppling could see only the back of Camacho and that his view of the bartender was totally blocked; it notes, however, that "the detective saw Camacho move as one normally would to remove something from a trouser pocket and hand the object to someone." While the wording in the affidavit is perhaps too deliberate, it is not fallacious nor does it constitute reckless disregard for the truth.

The remaining "falsehoods" alleged by Camacho are simply facts which Camacho wishes Clements had included in the affidavit, e.g., that the affiant had never personally visited The Hayloft, that he knew nothing about Detective Eppling's background, that Eppling's first contact with the tavern was facilitated by an individual unaffiliated with law enforcement. We are unaware of any authority mandating the inclusion of such non-dispositive detail, and appellant does not provide any.

Thus, in light of the sufficiency of the affidavit securing the warrant to search The Hayloft, we find that the district court did not abuse its discretion in denying either a Franks hearing or appellant's motion to suppress.² 

V

Finally, Camacho brings an ineffective assistance of counsel claim based on his trial attorney's failure to introduce copies of surveillance videotapes at trial. According to appellant, these tapes "revealed that defendant was never seen entering or leaving the Hayloft ... nor was defendant's car seen parked outside the tavern." To prevail on such a claim, appellant must show

both that the counsel's performance fell below an objective standard of reasonableness, and that [he] suffered prejudice because of that failure. There must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

United States v. Hardin, 846 F.2d 1229, 1231 (9th Cir. 1988) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

Camacho cannot prevail under this standard. First, he has failed to show that his counsel's failure to attempt to introduce the videotapes contravened any objective standard of reasonableness. The fact that counsel elicited testimony concerning two of the tapes suggests that he was not unaware of their potential evidentiary value; he most likely concluded, however, that they were not of sufficient utility to warrant introduction into evidence. This exercise of professional judgment is not objectively unreasonable.

Even if Camacho were able to establish objective unreasonableness, he could not successfully claim ineffective assistance of counsel due to the absence of any discernible prejudice from the alleged error. Since the government's case did not turn on the content of these tapes or on Camacho's presence at The Hayloft at the time in question, it cannot be said that but for counsel's error, "the result of the proceeding would have been different."

VI

For the foregoing reasons, we find no reversible error in this case. The judgment of the district court is accordingly AFFIRMED.