U.S. v. Pimentel, 1119

• Decision Date: 08 May 1996
• Docket Number: No. 1119,D,1119
• Citation: 83 F.3d 55
• Parties: UNITED STATES of America, Appellee, v. Jose PIMENTEL, Defendant-Appellant. ocket 95-1555.
• Court: U.S. Court of Appeals — Second Circuit

Page 55

83 F.3d 55

UNITED STATES of America, Appellee, v. Jose PIMENTEL, Defendant-Appellant.

No. 1119, Docket 95-1555.

United States Court of Appeals Second Circuit.

Argued Feb. 23, 1996.

Decided May 8, 1996.

Appeal from a judgment of the United States District Court for the Southern District of New York, Robert P. Patterson, Jr., Judge, convicting defendant of narcotics offenses, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, and a firearm offense, 18 U.S.C. §§ 924(c) and 2.

Alexandra A.E. Shapiro, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Steven M. Cohen and Ira M. Feinberg, Assistant United States Attorneys, New York City, on the brief), for Appellee.

Philip L. Weinstein, New York City (The Legal Aid Society, Federal Defender Division Before: NEWMAN, Chief Judge, KEARSE, Circuit Judge, and BURNS, District Judge ^*.

Appeals Bureau, New York City, on the brief), for Defendant-Appellant.

KEARSE, Circuit Judge:

Defendant Jose Pimentel appeals from a judgment entered in the United States District Court for the Southern District of New York after a jury trial before Robert P. Patterson, Jr., Judge, convicting him of conspiracy to traffic in narcotics, in violation of 21 U.S.C. § 846 (1994); distribution of, and possession with intent to distribute, narcotics, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (1994); and possession and use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2 (1994). He was sentenced principally to 10 years' imprisonment, to be followed by four years' supervised release. On appeal, Pimentel contends that the evidence was insufficient to support his conviction on the firearm count and that the trial court's instructions to the jury on that count were erroneous. For the reasons that follow, we affirm.

I. BACKGROUND

The present prosecution arose from an investigation into a Bronx, New York heroin distribution organization headed by one Rafael Cruz. The evidence at trial included testimony by law enforcement agents and by coconspirator Rafael Morell, a seller and manager in the Cruz organization. Taken in the light most favorable to the government, the evidence showed the following.

The Cruz organization sold heroin principally at 550 East 139th Street ("139th Street"); its inventory was stored in several locations, including an apartment building called Oak Terrace. The organization used a Chrysler automobile to transport drugs from Oak Terrace to 139th Street, secreting them in a compartment located on the back of the front passenger seat. The compartment could be opened by pressing the rear defogger button on the car's dashboard plus a button by the door on the driver's side of the car. In the compartment, which opened toward the back seat of the car, were kept drugs, money, and a gun. Morell testified that the gun "was used to protect the drugs."

As a co-manager of the operation, Morell had responsibility for overseeing sales, inventory, and security workers. In early 1994, Cruz instructed Morell to train Pimentel to succeed Morell as a manager because Morell, having recently been arrested for drug-related conduct, was too conspicuous. Accordingly, in March, Morell began training Pimentel daily, instructing him about the drug business, the Chrysler's secret compartment, and the presence in that compartment of drugs and a gun. On one or two occasions during this period, Pimentel took heroin from a storage location to the point of sale; at other times, he helped to supervise the workers. He was in the Chrysler once or twice, though apparently never alone.

On the evening of April 28, 1994, Morell found prospective customers at 139th Street and telephoned organization co-manager Robinson Berroa at Oak Terrace, asking Berroa to bring heroin. Berroa drove the Chrysler to 139th Street; Pimentel accompanied him, sitting in the front passenger seat. When they arrived, Morell received money from a customer, got in the car, and had Berroa open the compartment. Morell put the money into the compartment and took out drugs which he gave to the customer.

After Morell repeated this process with another customer, Morell, Berroa, and Pimentel drove off in the Chrysler. As they returned to Oak Terrace, they were arrested by agents of the Drug Enforcement Administration. A subsequent search of the car revealed the secret compartment. In it were found 14 grams of heroin, approximately $7,400, and a .38 caliber gun containing four rounds of ammunition.

Pimentel and Morell were indicted on the narcotics counts described above, and were

                charged with using and carrying a firearm in connection with their narcotics trafficking, in violation of 18 U.S.C. §§ 924(c) and 2.  Morell pleaded guilty and testified for the government at the trial of Pimentel.   The jury found Pimentel guilty on all counts, and he was sentenced as described above
                

II. DISCUSSION

On this appeal, Pimentel does not challenge his convictions on the narcotics counts, but he makes two challenges to his conviction on the firearm count. First, he contends that the firearm count should be dismissed because the evidence was insufficient to show that he used or carried the gun found in the Chrysler because it was not accessible to him; second, he contends that even if the evidence was sufficient, he should have a new trial on that count because the court's instructions to the jury were erroneous. For the reasons that follow, we find no basis for relief.

A. Sufficiency of the Evidence of "Carrying"

To the extent pertinent here, § 924(c) provides for a five-year term of imprisonment for any person who "during and in relation to any ... drug trafficking crime ... uses or carries a firearm." 18 U.S.C. § 924(c)(1). Although until recently this Court had interpreted the "use" prong of § 924(c) to encompass the strategic placement of a gun in a narcotics trafficking location where it could reasonably be inferred that the defendant kept the gun on hand for use, if necessary, in connection with a drug transaction, see generally United States v. Giraldo, 80 F.3d 667 (2d Cir. 1996) (discussing cases), the Supreme Court in December 1995 ruled in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) ("Bailey "), that the term "use" in § 924(c) means the "active employment " of the gun in some way, id. at ----, 116 S.Ct. at 505 (emphasis in original), and that "[i]f the gun is not disclosed or mentioned by the offender, it is not actively employed, and it is not 'used,' " id. at ----, 116 S.Ct. at 508. The government concedes that, in light of Bailey, there was insufficient evidence to convict Pimentel of "using" the gun.

Pimentel also argues that, from his position in the front passenger seat of the car, he could not open the compartment or reach inside to get the gun and that there was thus insufficient evidence to convict him under the "carrying" prong of § 924(c). Whether or not Pimentel himself could open the compartment or reach the gun, however, the evidence was ample to convict him of carrying the gun on a Pinkerton theory of liability, see Pinkerton v. United States, 328 U.S. 640, 646-48, 66 S.Ct. 1180, 1183-85, 90 L.Ed. 1489 (1946). Under Pinkerton, a coconspirator who does not directly commit a substantive offense may be liable for that offense if it was committed by another coconspirator in furtherance of the conspiracy and was a reasonably foreseeable consequence of the conspiratorial agreement. In United States v. Giraldo, we held that a defendant had committed the substantive offense of carrying a firearm within the meaning of § 924(c) when he drove to the site of a planned narcotics transaction with a gun concealed in a compartment in the car, the compartment was easily accessible to him from the driver's seat, and there was evidence from which it could be inferred that he had knowledge of the car's contents. See 80 F.3d at 678.

In the present case, the gun was in the secret compartment of the Chrysler as it was driven on the evening of April 28 to 139th Street by Berroa, with Pimentel in the front passenger seat. Morell's testimony was easily sufficient to establish that Pimentel had become a member of the Cruz narcotics conspiracy, of which Morell and Berroa were also members; that the gun was routinely kept in the compartment with the money and drugs for the purpose of protecting the drugs; that on the evening in question, Morell, Berroa, and Pimentel all had reason to believe that the gun was in the compartment; and that Morell and Berroa had collaborative access to the gun, as Berroa opened the compartment, which was directly in front of Morell as he sat in the back seat and removed drugs from the compartment. Accordingly, the jury could properly find that at Further, given Morell's training of Pimentel, which included instruction on the presence of narcotics and the gun in the compartment, the jury could also easily infer that the transport of the gun on April 28 in connection with the sale of narcotics was foreseeable to Pimentel. Indeed, following his arrest, Pimentel admitted that he had been in the Chrysler for some time that evening and that he was aware that there was a gun in the car.

least Berroa and Morell "carried" the gun during and in relation to a drug transaction.

The jury was properly instructed on the Pinkerton theory of liability, and we conclude that, on that theory, the evidence was ample to support Pimentel's...