U.S. v. Power

• Decision Date: 03 August 1989
• Docket Number: No. 88-5052,88-5052
• Citation: U.S. v. Power, 881 F.2d 733 (9th Cir. 1989)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael POWER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 733

881 F.2d 733

UNITED STATES of America, Plaintiff-Appellee, v. Michael POWER, Defendant-Appellant.

No. 88-5052.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 2, 1989.

Decided Aug. 3, 1989.

Mary F. Gibbons, Los Angeles, Cal., for defendant-appellant.

Ellyn M. Lindsay, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before SNEED, REINHARDT and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

Appellant, Michael Power, appeals his convictions for conspiracy to possess with intent to distribute narcotics (21 U.S.C. Sec. 846), for possession with intent to distribute narcotics (21 U.S.C. Secs. 846, 841(a)(1)), for aiding and abetting the violation of section 841(a)(1) (18 U.S.C. Sec. 2(a)), and for carrying a firearm during and in relation to a narcotics offense (18 U.S.C. Sec. 924(c)). Power was sentenced 10 years in prison followed by a five year term of supervised release for violating Sec. 846 and Sec. 2(a), and a consecutive five year term for violating Sec. 924(c).

On appeal, Power contends that the district court improperly instructed the jury as to the firearm charge, that there was insufficient evidence to convict him of the conspiracy charge or the firearm charge, that the district court erred in giving him the mandatory minimum sentence under 21 U.S.C. Sec. 841(a)(1) as he was convicted only of aiding and abetting, and finally that the government's exercise of a peremptory challenge does not withstand a Batson inquiry. We review each of these contentions in turn, and affirm.

Factual Background

In September 1987, a police informant, Miller, and an officer of the Santa Monica Police Department, Henry, contacted Power's codefendant, Brown. Brown had previously sold them narcotics, most recently in May of that year. On September 9, 1987, the parties agreed that Brown and his girlfriend, "Dee Dee," would sell Investigator Henry five kilograms of cocaine for $105,000. Dee Dee would meet investigator Henry and Miller, would view the money and would contact Brown to complete the deal.

Miller, Investigator Henry and Special Agent Hill of the Drug Enforcement Administration drove to the location. Dee Dee arrived and after viewing the money telephoned Brown from the undercover police car. Dee Dee left the location to pick up Brown.

Approximately one hour later, Brown and appellant Power arrived at the location. Brown sat in the back seat of the undercover police car. Brown stated that the five kilograms of cocaine was at a park and suggested everyone drive to that location.

Brown and Investigator Henry walked through the park in an unsuccessful attempt to locate the persons bringing the cocaine; appellant Power walked closely behind them. Brown and Power then went to make a telephone call to try and locate the cocaine. They returned and said that the cocaine was en route. Brown made several phone calls from the undercover police car; Brown told Investigator Henry he was going to find the people with the cocaine. Appellant Power stated "like man, I know they have the stuff. I seen it. I don't know what is taking them so long. They do deals like this all the time." Brown and Power left the park and were arrested.

A. Jury Instruction 18 U.S.C. Sec. 924(c)

Power argues that the district court erred in instructing the jury as to the separate elements of 18 U.S.C. Sec. 924(c), carrying a firearm during and in relation to a narcotics offense. The district court instructed the jury that:

Two essential elements must be proven beyond a reasonable doubt in order to establish the offense charged in count five:

First: That the defendant carried a firearm, and

Second: That he did so during and in relation to a federal drug trafficking crime, as charged.

Section 924(c) provides:

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

According to the appellant, the court's instruction regarding the elements of section 924(c) failed to differentiate between carrying a firearm during the commission of a crime as distinct from carrying it in relation to the felony. Relying on United States v. Stewart, (Stewart), 779 F.2d 538 (9th Cir.1985), cert. denied, --- U.S. ----, 108 S.Ct. 192, 98 L.Ed.2d 144 (1987), appellant contends that his conviction under section 924(c) must be reversed given the absence of evidence showing that the firearm bore a relation to the crime. This argument is without merit.

"Since this objection was not raised at trial, we review the jury instruction for plain error." United States v. Ramos, (Ramos), 861 F.2d 228, 230 (9th Cir.1988). "Plain error is 'highly prejudicial error affecting substantial rights.' " Id. (quoting United States v. Harris, 738 F.2d 1068 1072 (9th Cir.1984)) ("[t]here must be a high probability that error materially affected the verdict") (internal citation omitted).

In Ramos, as in this case, the district court correctly stated the elements of the firearm charge (section 924(c)) and did not define the phrase "in relation to." In Ramos, we held that the district court's failure to define the phrase was not plain error. "The 'in relation to' language connotes a causal connection between appellant's narcotics felonies and this firearm." Id. at 230. The government in Ramos provided sufficient testimony linking the firearm to the underlying narcotics felony. Id. at 231 (defendant carried and brandished firearm en route to the drug transaction). Accordingly, the court in Ramos concluded that the verdict was not materially affected by the omission of some further explanation of the term "in relation to."

In this case, the district court properly stated the elements of section 924(c) but did not provide any further explanatory instruction regarding the phrase "in relation to". The government's theory at trial was that appellant acted as "muscle" or protection for codefendant Brown during the drug deals. In support of this theory the government presented the following evidence:

The appellant was present and remained close to Brown throughout the narcotics deal. When Brown entered the undercover police car to negotiate with Investigator Henry, the appellant was in a nearby car. When Brown went to make telephone calls, Power went with him. When Brown and Investigator Henry walked through the park, the appellant walked behind them. The appellant was arrested in possession of a loaded handgun. Investigator Henry testified that those dealing in narcotics often have weapons to protect themselves from having their drugs stolen.

At closing argument, the government argued that in order to find Power guilty, the jury must find his carrying of the handgun was "in relation to" the drug deal, and that it could do so based on Power's role as "muscle." Counsel for the appellant argued that the jury should find Power not guilty because the gun was unrelated to the drug deal.

Unlike Ramos, in this case the handgun was not brandished during the narcotics deal; nevertheless, the government provided sufficient evidence linking the firearm to the underlying felonies. "Because guns are used in many drug transactions, 'it may reasonably be inferred that an armed possessor of drugs has something more in mind than mere personal use.' " United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.1988). See also Stewart, 779 F.2d at 539 ("Given the use of firearms in some drug transactions ... and the known risks of conducting an illegal drug business, the jury could infer from all of the evidence that ... possession of [a handgun] ... was intended to facilitate the drug operations or secure ... contraband.") (citations omitted).

Contrary to the appellant's contention, Stewart is not dispositive of this case. In Stewart, the court reversed Stewart's conviction for carrying a firearm during the commission of a felony because "[t]he government ... did not attempt to link possession of the firearm with the underlying felony, and the district judge did not instruct the jury that a relation between the two is required." Id. Here, the district court properly stated the elements of the crime. "Distinguishing Stewart, the government here provides sufficient testimony linking the firearm to the underlying narcotics felonies." Ramos, 861 F.2d at 231.

We cannot conclude that there is "a high probability" that appellant would have been found not guilty if the "in relation to" phrase had been defined or further explained. We conclude the verdict was not materially affected by this omission; there was no plain error. Id.

B. Sufficiency of the Evidence

In determining the sufficiency of the evidence on appeal, the standard of review is whether, in 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. Murray, 751 F.2d 1528, 1534 y (9th Cir.), cert. denied, 474 U.S. 979, 106 S.Ct. 381, 88 L.Ed.2d 335 (1985).

1. 18 U.S.C. Sec. 924(c) (1982)

Appellant contends that the evidence was insufficient to convict him under section 924(c) because he never displayed or used his weapon during the commission of the underlying felony.

The appellant, however, need not display or brandish a firearm to be convicted under section 924(c). Stewart, 779 F.2d at 540. "If the firearm is within the possession or control of a person who commits an underlying crime as defined by the statute, and the circumstances of the case show that the firearm facilitated or had a role in the crime, such as emboldening an actor who had the opportunity or ability to display or discharge the weapon to protect himself or intimidate others, whether or not such display or discharge in fact occurred, then there is a violation of the statute." Id. (...