U.S. v. Reyes, 90-5401

• Decision Date: 20 May 1991
• Docket Number: No. 90-5401,90-5401
• Citation: 930 F.2d 310
• Parties: UNITED STATES of America, Appellee, v. Carlos Julio REYES, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 310

930 F.2d 310

UNITED STATES of America, Appellee, v. Carlos Julio REYES, Appellant.

No. 90-5401.

United States Court of Appeals Third Circuit.

Argued Nov. 29, 1990.

Decided April 11, 1991.

As Amended May 15, 1991.

Rehearing and Rehearing In Banc

Denied May 20, 1991.

William A. Fetterhoff (argued), Harrisburg, Pa., for appellant.

James J. West, U.S. Atty., Kim Douglas Daniel (argued), Asst. U.S. Atty., Harrisburg, Pa., for appellee.

Before BECKER, NYGAARD and ALITO, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge:

Carlos Julio Reyes (Reyes) and two co-defendants were indicted in 1989 by a federal grand jury in the Middle District of Pennsylvania. Reyes was named in three counts. Count I charged Reyes and his co-defendants with a conspiracy having three objectives: distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a); distribution of cocaine to persons under the age of 21, in violation of 21 U.S.C. Sec. 845(a); and distribution of cocaine within 1,000 feet of a school, in violation of 21 U.S.C. Sec. 845(a). Reyes was also charged with the substantive offense of distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (Count VI), and with using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c) (Count VII). After a jury trial, Reyes was convicted on all counts.

At Reyes' sentencing hearing, the judge found that the conspiracy involved more than five kilograms of cocaine and that Reyes was an organizer or leader of the conspiracy. Based on these findings, Reyes was sentenced to concurrent sentences of 250 months of incarceration on Counts I and VI. Reyes was sentenced to a consecutive term of 60 months of incarceration on Count VII.

On appeal, Reyes advances four arguments. First, he contends that the conspiracy count (Count I) charged three separate offenses and was therefore defective. Second, he argues that the evidence proved the existence of two separate conspiracies, not the single conspiracy charged in the indictment. Third, he asserts that the evidence was insufficient to support a conviction for using or carrying a firearm during and in relation to a drug trafficking offense. Finally, he asserts that there was insufficient evidence in the record to sustain the findings of the sentencing judge that the conspiracy involved more than five kilograms of cocaine and that he was an organizer or leader of the conspiracy. We reject Reyes' arguments concerning the validity of his conviction, but we vacate the sentence imposed by the district court and remand for further sentencing proceedings.

I.

Reyes contends that the conspiracy count of the indictment ¹ is defective because it charges three separate offenses. ² While Reyes is correct that each offense charged in an indictment must be set out in a separate count (Fed.R.Crim.P. 8(a); see United States v. Pungitore, 910 F.2d 1084, 1135 (3d Cir.1990); United States v. Starks, 515 F.2d 112, 116 (3d Cir.1975)), the conspiracy count of Reyes' indictment does not charge three separate offenses but a single offense, i.e., a conspiracy having multiple objectives. It is well established that "[t]he allegation in a single count of a conspiracy to commit several crimes is not duplicitous." Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1942); see also United States v. Bucey, 876 F.2d 1297, 1312 (7th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 565, 107 L.Ed.2d 560 (1989). The conspiracy is one crime " 'however diverse its objectives.' " Braverman, 317 U.S. at 54, 63 S.Ct. at 102; see also United States v. Daily, 921 F.2d 994, 1001-01 (10th Cir.1990); United States v. Sullivan, 919 F.2d 1403, 1435 n. 53 (10th Cir.1990).

II.

Reyes next contends that the trial evidence was insufficient to prove the single conspiracy charged in Count I. Specifically, Reyes maintains that the evidence did not connect the conspiracy in which he joined with the evidence of drug distribution near two schools. In assessing Reyes' argument, we must determine whether the record, viewed in the light most favorable to the government, contains substantial evidence to support the jury's verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Kelly, 892 F.2d 255, 258 (3d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3243, 111 L.Ed.2d 754 (1990); United States v. Furst, 886 F.2d 558, 565 (3d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990). Applying this standard, we find no merit in Reyes' argument.

In Blumenthal v. United States, 332 U.S. 539, 559, 68 S.Ct. 248, 257, 92 L.Ed. 154 (1947), the Supreme Court held that a single conspiracy had been proved because "[a]ll [defendants] knew of and joined in the overriding scheme.... All by reason of their knowledge of the plan's general scope, if not its exact limits, sought a common end...." This circuit has held that a single conspiracy is proved when there is "evidence of a large general scheme, and of aid given by some conspirators to others in aid of that scheme." United States v. Kenny, 462 F.2d 1205, 1216 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972); see United States v. Theodoropoulos, 866 F.2d 587, 593 (3d Cir.1989); United States v. Adams, 759 F.2d 1099, 1109-10 (3d Cir.), cert. denied, 474 U.S. 906, 106 S.Ct. 275, 88 L.Ed.2d 236 (1985).

We have reviewed the record, and we find sufficient evidence to support a finding of a single conspiracy that included the distribution of drugs near the schools. For example, there was evidence that Reyes and Juan Basilio Montilla-Davila were partners in the distribution of drugs, and the evidence strongly tied Montilla-Davila to the drug distribution near the schools. In addition, there was evidence that Reyes conspired with Jorge Porte, who was also closely tied to the activity near the schools. Taken together, the evidence was sufficient to permit the jury to infer that the drug distribution near the schools and the other overt acts were all part of the large general scheme in which Reyes joined.

III.

Reyes asserts that there is insufficient evidence to sustain his conviction for "us[ing] or carry[ing]" a firearm "during and in relation to ... a drug trafficking offense," in violation of 18 U.S.C. Sec. 924(c)(1). We cannot agree. ³

The underlying facts giving rise to the firearms charge are as follows: Just prior to his arrest, Reyes was observed on a street in a housing project in York, Pennsylvania, where Reyes had previously delivered drugs and had received cash in return. Reyes was observed by police surveillance opening the trunk of a car with a key and putting what appeared to be a white bag inside. At the time of Reyes' arrest several minutes later, a .22 magnum bullet was found in his pants pocket, and a key fitting the trunk was found wedged inside the front passenger door panel. After the car was towed to a city lot and a search warrant was obtained, the trunk was searched. A gym bag was found inside the trunk. Within the bag, the police found a white pullover shirt with $9,020 cash in a sleeve. Also inside the gym bag, only inches away from the shirt containing the cash, was a .22 caliber pistol. The bullet found in Reyes' pants pocket fit the .22 caliber pistol.

Reyes contends that the circumstances surrounding the presence of the pistol would not permit a jury to conclude that the pistol was being "used" or "carried" within the meaning of 18 U.S.C. Sec. 924(c)(1). He asserts that conviction under that statute necessitates evidence of more than mere possession, and he contends that the evidence presented in this case showed nothing more than mere possession because there was no proof that the pistol had been fired or used to threaten anyone during the course of the conspiracy.

Reyes relies on United States v. Theodoropoulos, 866 F.2d 587 (3d Cir.1989), in which we addressed the circumstances in which possession of a firearm may constitute use "during and in relation to a crime of violence or drug trafficking crime" under 18 U.S.C. Sec. 924(c). Adopting the test formulated in United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988), we held in essence that such a violation may be established by showing that the defendant intended to have the firearm available for use or possible use during a crime of violence or drug trafficking crime and that the firearm was placed in a spot where it was readily accessible at that time. ⁴

This test is satisfied in the present case. Based upon the evidence noted above, the jury could have reasonably concluded that Reyes had collected $9,020 in drug proceeds; that he was transporting those proceeds at the time of his arrest; that this activity was in furtherance of the drug conspiracy; that Reyes intended to have the firearm available for use or possible use; and that the pistol's location, within inches of the drug proceeds, made it readily accessible to Reyes while he was engaged in activities furthering the conspiracy. Thus, we hold that the evidence was sufficient to prove illegal use in violation of 18 U.S.C. Sec. 924(c).

This conclusion is completely consistent with the decision in Theodoropoulos. There, four weapons were found in an apartment that "the jury could have believed was a staging and storing area for drugs and drug paraphernalia." 866 F.2d at 596. A loaded shotgun was found in plain view inside the apartment, and two handguns and a disassembled machine pistol were found in a trash can on the porch. The court held that the circumstances were sufficient to prove a violation with respect to the shotgun because it was found "in plain sight ... where it was readily accessible to the occupants" of the apartment. Id. at 597. But the court concluded that the circumstances relating to the three weapons in the trash can on the porch were insufficient because the circumstances merely showed...