U.S. v. Douglass

• Decision Date: 21 January 1986
• Docket Number: 85-1032,Nos. 85-1028,s. 85-1028
• Citation: 780 F.2d 1472
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Lee DOUGLASS and James Andrew Babb, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1472

780 F.2d 1472

UNITED STATES of America, Plaintiff-Appellee, v. Charles Lee DOUGLASS and James Andrew Babb, Defendants-Appellants.

Nos. 85-1028, 85-1032.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 6, 1985.

Decided Jan. 21, 1986.

Susan A. Ehrlich, James T. Lacey, Asst. U.S. Attys., Phoenix, Ariz., for plaintiff-appellee.

Brice E. Buehler, P.C., Phoenix, Ariz., for defendants-appellants.

Appeal from the United States District Court for the District of Arizona.

Before BROWNING, SNEED and HUG, Circuit Judges.

SNEED, Circuit Judge:

The appellants, Charles Lee Douglass and James Andrew Babb, appeal from their convictions for a number of criminal offences stemming from their alleged participation in a drug conspiracy on December 5 and 6, 1981.

I. FACTS AND PROCEEDINGS BELOW

James A. "Jay" Miller headed a narcotics ring that engaged in smuggling marijuana from 1976 until Miller's arrest in October 1982. The pattern of the operation was well established. Miller and Lee Waggoner, a trained pilot, owned a ranch located about 45 miles west of Wickenburg, Arizona. The ranch was equipped with an airstrip and a hangar/barn that housed a Piper Aztec twin-engine aircraft.

To pick up a load of marijuana, Waggoner early in the morning would fly a plane about 1000 miles south into Mexico, load the marijuana (approximately 500 pounds per trip) and return to Arizona that night. Back in Arizona, Miller would direct the activities of the "ground crew," whose duties were to clear the airstrip, set up landing lights, operate ground-to-air walkie-talkies to warn the plane not to land if necessary, and act as "spotters" of unidentified cars and aircraft approaching the area. In addition, crew members manned a refueling stop at an abandoned mine strip just south of the United States border so that, if there were trouble in the United States, Waggoner could obtain fuel to return to the base in Mexico.

Miller and Waggoner planned a marijuana run for December 6, 1981. Among their accomplices were appellants Babb and Douglass--long-time friends of Miller--as well as Roy Cooper, Larry Whigham, Tom Hodge, Bill Ream, and Steve Branagan. Whigham was Waggoner's co-pilot for the trip. Babb and Cooper picked up aviation fuel and flashlights, drove to an airstrip 20 This particular trip ended in disaster. While returning from Mexico on the evening of December 6, Waggoner and Whigham crashed their plane into a power line stanchion and were killed. Investigation of the crash site, which was located approximately 50 miles north of the Mexican border, uncovered 500 pounds of marijuana packaged in loose bulk (having a street value of roughly $225,000), a submachine gun, and a Colt .45-caliber automatic handgun. The submachine gun was not registered.

miles south of Florence, Arizona, cleared the strip, and set up the lights. Ream manned the walkie-talkie, while Branagan acted as the spotter. Douglass and Hodge drove to the abandoned mine in Mexico to stand watch in case an emergency fuel stop proved necessary.

Babb and Douglass were subsequently arrested and indicted on several federal charges: conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (Count II); conspiracy to import marijuana from Mexico in violation of 21 U.S.C. Sec. 952 (Count III); possession of an unregistered machine gun in violation of 26 U.S.C. Sec. 5861(d) and 18 U.S.C. Sec. 2 (Count VII); possession of a firearm unlawfully during the commission of a felony in violation of 18 U.S.C. Sec. 924(c)(2) (amended after the indictment) and 18 U.S.C. Sec. 2 (Count X); and interstate travel in aid of a racketeering enterprise in violation of 18 U.S.C. Sec. 1952 and 18 U.S.C. Sec. 2 (Counts XI, XII, and XIII). The count numbers are as they were before being renumbered.

Babb and Douglass were tried together on these charges along with Miller, who in addition was tried on the charge of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. In exchange for grants of immunity, Cooper and Branagan testified at trial against each defendant. Neither Babb nor Douglass called witnesses in defense. Although Miller did take the stand after calling two witnesses who attacked Cooper's reputation for truthfulness and veracity, Miller was effectively contradicted and impeached during cross-examination.

Before trial, the counts were renumbered and at the conclusion of the evidence, the trial court dismissed Count VII (Count IV as renumbered), which alleged the violation of 26 U.S.C. Sec. 5861(d) and 18 U.S.C. Sec. 2. The jury convicted the appellants of all the remaining charges levelled against them.

II. DISCUSSION

A. The Firearms Charge

(1) Jury Instructions

In the original indictment, Babb and Douglass were charged with two separate offenses relating to the submachine gun recovered at the site of the plane crash. First, they were indicted for possession of an unregistered machine gun in violation of 26 U.S.C. Sec. 5861(d) and 18 U.S.C. Sec. 2; second, they were indicted for unlawfully carrying a firearm during the commission of a felony, in violation of 18 U.S.C. Sec. 924(c)(2) and 18 U.S.C. Sec. 2.

At trial, the government introduced into evidence certificates of the custodian of the National Firearms Register and Transfer Record, to the effect that a search was conducted and no record was found that the submachine gun discovered at the crash site was registered to the defendants or any of their alleged associates. Although the district court dismissed the first firearms charge at the close of the evidence, it instructed the jury that it could consider the evidence that the weapon was unregistered when deliberating over the other firearms charge.

The district court summarized the elements of that second charge as follows:

First: that a co-conspirator or co-conspirators committed a felony or felonies in furtherance of the conspiracy for which they might be prosecuted in a United States Court;

Second: that during the commission of the felony the co-conspirator or co-conspirators carried or caused to be carried a firearm; and

Third: that the carrying of the firearm itself violated a federal law. Specifically, that the firearm was not registered to the defendants or a conspirator in the National Firearms Registration and Transfer Board in violation of Title 26, United States Code, Section 5861(d).

Reporter's Transcript at 2295-96 [hereinafter cited as R.T.].

Babb and Douglass contend that this instruction was erroneous on the ground that a weapon's unregistered status is not an element of the offense under 18 U.S.C. Sec. 924(c)(2). Because it is a question of law whether the district court's instructions to the jury misstated the elements of a statutory crime, we review this claim de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (questions of law are reviewed de novo ), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); United States v. Wilson, 720 F.2d 608, 609 n. 2 (9th Cir.1983) (interpretation of a statute is reviewed de novo ), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984).

18 U.S.C. Sec. 924(c)(2) provides:

Whoever ... carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States, shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years.

Id.

The statute makes plain that to violate 18 U.S.C. Sec. 924(c)(2), the defendant must be carrying the firearm unlawfully. See United States v. Dixon, 558 F.2d 919, 921 n. 1 (9th Cir.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1237, 55 L.Ed.2d 764 (1978). Moreover, the unlawfulness of the "carrying" must be established apart from the accompanying felony: thus, "the requisite elements for conviction under the statute [are] satisfied only if the act of carrying the firearm was in and of itself unlawful." Id. at 921; accord United States v. Garcia, 555 F.2d 708, 711 (9th Cir.1977). Unlawfulness may be established for these purposes "by resorting to any other applicable law, federal, state or local." Id. (citing United States v. Howard, 504 F.2d 1281 (8th Cir.1974) ).

Here the "carrying" of the gun was unlawful because it violated 26 U.S.C. Sec. 5861(d). That provision makes it a crime for any person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." Id. Such a failure to register is exactly the sort of legal violation that constitutes an independent basis of unlawfulness under 18 U.S.C. Sec. 924(c)(2). The trial court's instructions are above reproach. In fact, had the court heeded the appellants' exhortations and omitted from its instructions on 18 U.S.C. Sec. 924(c)(2) all reference to the alleged failure to register the firearm, it would have committed reversible error. See Garcia, 555 F.2d at 711-12. We therefore affirm the district court's jury instructions.

(2) Sufficiency of the Evidence

Babb and Douglass next assert that the district court should have dismissed the firearms charge because "there was no evidence presented to demonstrate that [they] knew or had any reason to know Waggoner possessed the [submachine gun]." Appellants' Opening Brief at 15 (emphasis omitted). They reason that, lacking knowledge of the gun's existence, they could not have aided and abetted Waggoner in carrying it during the commission of a felony. See id. They argue in addition that Waggoner's possession of the gun could not reasonably have been foreseen by them "as a natural consequence of involvement in a marijuana trafficking conspiracy." Id.

Under the rule first enunciated in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), each conspirator is liable for the criminal acts of his...