U.S. v. Alerta

• Decision Date: 23 September 1996
• Docket Number: No. 95-10224,95-10224
• Citation: 96 F.3d 1230
• Parties: , 96 Cal. Daily Op. Serv. 7086, 96 Daily Journal D.A.R. 11,597 UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Joe ALERTA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1230

96 F.3d 1230

36 Fed.R.Serv.3d 139, 96 Cal. Daily Op. Serv. 7086,

96 Daily Journal D.A.R. 11,597

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Joe ALERTA, Defendant-Appellant.

No. 95-10224.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 7, 1996.

Decided Sept. 23, 1996.

Karon V. Johnson, Assistant United States Attorney, Agana, Guam, for plaintiff-appellee.

David J. Highsmith, Highsmith & O'Mallen, Agana, Guam, for defendant-appellant.

Appeal from the United States District Court for the District of Guam, John S. Unpingco, District Judge, Presiding. D.C. No. CR-94-00098-JSU.

Before: FLETCHER, D.W. NELSON, and CANBY, Circuit Judges.

CANBY, Circuit Judge:

I.

Defendant Jeffrey James Alerta appeals his convictions and sentences for conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 (Count 1); conspiracy to use firearms during and in relation to drug trafficking in violation of 18 U.S.C. § 371 (Count 2); distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) (Count 3); possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count 4); and use of a firearm during and in relation to drug trafficking in violation of 18 U.S.C. § 924(c)(1) (Count 5).

Alerta raises two points on appeal that have merit: (1) he contends that the fact that the weapon he used or carried was a machine gun, which added 25 years to his sentence, is an element of the crime under section 924(c)(1) that must be found by the jury; and (2) he contends that he was improperly convicted and given consecutive sentences for two conspiracies when there was only one.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We reverse the conviction on Count 5 because the jury did not expressly find that Alerta carried or used a machine gun, and nothing in the jury's verdicts leads inescapably to the conclusion that it made such a finding implicitly. We vacate the conviction and sentence on Count 2 because the charges of conspiracy to distribute drugs and the conspiracy to use firearms in distributing drugs were multiplicitous; Alerta cannot be subjected to punishment on both charges. We affirm the convictions and sentences on Counts 1, 3, and 4.

II.

Alerta and his brother, Jesse James Alerta, were involved in selling ice, a type of methamphetamine. An informant working under the supervision of the Guam police purchased ice from either Alerta or his brother on five occasions in 1994. During one of these transactions, the informant purchased from Alerta a 12-gauge shotgun and ice.

A few months later, an undercover Guam police officer purchased a Smith & Wesson 9mm pistol and ice from Alerta, and two days later he purchased a Mossberg 12-gauge shotgun from him. During the latter meeting, Alerta became suspicious that the undercover officer might work for the police. While questioning the undercover officer, Alerta held a 9mm pistol and made threatening gestures with it. During this same meeting, Alerta took out another weapon, a fully automatic Intratec TEC-9, and pointed it at the undercover officer. As Alerta talked to the undercover officer, he placed the TEC-9 on a table and spun it; he stopped the gun as it was spinning so that the barrel pointed at the undercover officer. After questioning the undercover officer, Alerta apparently was satisfied that he was not an informant and sold him the Mossberg shotgun.

The next day, the Guam police searched Alerta's residence pursuant to a search warrant. Another codefendant, Larry Charfauros, was in the front yard of the residence carrying a Taurus PT-92 AF 9mm pistol. Alerta was arrested outside the residence; he possessed a half gram of ice and was carrying an Intratec TEC-9 9mm pistol that had been converted to fire automatically. Alerta's brother Jesse was also arrested and was carrying over $6,000; five of the bills were identified as money that the undercover officer had paid Alerta during their two meetings. In the residence the police also found 3.2 grams of ice packaged in straws, a bag containing 236 grams of ice, and a Smith & Wesson .45 caliber pistol.

After being advised of his Miranda rights, Alerta directed the police to an Ingram MAC-10 9mm pistol, which had been converted to fire automatically, located in the residence. Alerta admitted receiving the TEC-9 and MAC-10 as collateral for drug debts. Alerta had personally modified the TEC-9 to fire automatically, and the MAC-10 was fully automatic when received. Alerta identified the 236-gram bag of ice as belonging to his brother Jesse. Alerta admitted he had dealt drugs for the preceding six months and that Jesse was his source of the drugs. Alerta also said that the reason he and Charfauros were in the front yard armed when the search warrant was executed was to provide protection.

Alerta, Jesse, and Larry Charfauros were indicted in October 1994. Jesse pleaded guilty to two counts of the indictment--distribution of methamphetamine and use of firearms during drug trafficking. The district court granted Charfauros's motion to sever, and Alerta's case was then tried separately to a jury. Alerta did not testify at his trial, but Jesse did. Jesse testified that he did not have an agreement with anyone to purchase ice and that he did not make an agreement with Alerta to use firearms while trafficking. He also testified that he did not have an agreement with Alerta to bring drugs into Guam and to have Alerta sell them for him. On cross-examination, however, he admitted that he had been importing ice from California and that Alerta and others had sold it for him. He admitted bringing the 236-gram bag of ice into their residence. He testified that Alerta gave him the Smith & Wesson .45 caliber pistol to hold as collateral for a drug deal.

The jury convicted Alerta on all counts of the indictment. The district court sentenced him to 120 months on Counts 1, 3, and 4 to be served concurrently, and to 360 months on Counts 2 and 5 to be served concurrently with each other, but consecutively to the 120-month sentences on the other counts, for a total of 480 months. The 360 month sentence on Count 5 was mandatory when the firearm used or carried in violation of section 924(c)(1) is a machine gun. ¹

III.

A.

We begin with a collateral matter concerning Alerta's failure to provide a complete record on appeal or to comply with Fed.R.App.P. 10(b)(3). For his appeal, Alerta ordered only the trial transcripts of witness testimony. See Fed.R.App.P. 10(b)(1). According to Fed.R.App.P. 10(b)(3), "[u]nless the entire transcript is to be included, the appellant shall [within 10 days of filing the notice of appeal] file a statement of the issues the appellant intends to present on the appeal, and shall serve on the appellee a copy of the order or certificate and of the statement." (Emphasis added.) This Alerta did not do. The government argues that because it was not given notice as required under F.R.A.P. 10(b)(3), ² it had no opportunity to expand the record by ordering additional transcripts. See F.R.A.P. 10(b)(3); Circuit Rule 10-3.2(c).

If an appellant fails to comply with Rule 10(b)(3), this Court, in its discretion, can dismiss the appeal. See Beecher v. Smithson, 205 F.2d 113, 113 (9th Cir.1953) (per curiam); United States v. Gallagher, 151 F.2d 556, 559-60 (9th Cir.1945). Failure to include the complete record, however, does not deprive us of jurisdiction over the appeal. Id. Rather than dismissing Alerta's appeal for failure to comply with Rule 10(b)(3), we will reach the merits because we conclude that the record presented to us is sufficient to permit us to resolve Alerta's appeal.

B.

Alerta argues that the jury instruction on Count 5 was erroneous, at least when combined with the failure to require a special verdict, because it did not require the jury to find that Alerta used or carried a machine gun, as opposed to some other type of firearm, during and in relation to drug trafficking. Alerta's contention presents a question of law that we review de novo. See United States v. VonWillie, 59 F.3d 922, 927 (9th Cir.1995).

Alerta requested a jury instruction that would have asked the jury to find that he used or carried particular weapons. He also proposed that the jury be furnished a special verdict form, which required the jury to find him "guilty" or "not guilty" of the use during a drug transaction of the various weapons, by name and type, to which the testimony had related. Alerta's proposed form did not correspond exactly to the allegations of Count 5, however, and it failed to list one of the machine guns.

The district court did not submit a special verdict form to the jury. In instructing the jury with regard to Count 5, the substantive section 924(c) count, the court stated the requisite element of use or carriage of a firearm as follows:

In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

* * * *

Second, the defendant knowingly used or carried any of the following firearms: a Smith & Wesson .45 caliber pistol ...; a loaded Intratec TEC-9 machine gun, a loaded Taurus Model PT-92 9mm pistol, or a loaded Ingram .45 caliber MAC-10 machine gun, while committing the crime.

(Emphasis added.) The government proposed this instruction, citing 9th Cir.Crim.Jury Instr. 8.19(U) (1992).

Thus, the jury did not find specifically what type of weapons Alerta used or carried. ³ Two of the weapons listed in the given jury instruction, the Intratec TEC-9 and the MAC-10, were machine guns and were so denominated; the rest of the named weapons were not. The jury instruction stated that if the jury found that Alerta used or carried "any" of the weapons on that list during drug trafficking, then it must find Alerta guilty of Count 5. It is therefore possible that the jury found only that Alerta used one or more of the weapons that...