USA. v. Carrasco

• Decision Date: 14 June 2001
• Docket Number: DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,No. 00-10224,00-10224
• Citation: 257 F.3d 1045
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. MICHAEL CARRASCO,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1045

257 F.3d 1045 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. MICHAEL CARRASCO, DEFENDANT-APPELLANT.

No. 00-10224

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 14, 2001--San Francisco, California

July 23, 2001

[Copyrighted Material Omitted]

George C. Boisseau, Santa Rosa, California, for the defendant-appellant.

Haywood S. Gilliam, Jr., Assistant United States Attorney, Narcotics Division, San Francisco, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California Martin J. Jenkins, District Judge, Presiding D.C. No. CR-99-00002-MJJ

Before: Mary M. Schroeder, Chief Judge, and Donald L. Lay,^* and Robert Boochever, Circuit Judges.

Boochever, Circuit Judge:

Defendant Michael Carrasco appeals his conviction for being a felon in possession of a firearm or ammunition in violation of 18 U.S.C. §§ 922(g)(1). Carrasco contends that: (1) the trial court erred in admitting evidence that Carrasco was engaged in drug trafficking, (2) insufficient evidence supports the finding that Carrasco constructively possessed the firearm or ammunition, (3) the trial court erred in instructing the jury on the theory of joint possession, (4) the superseding indictment violated the Speedy Trial Act, and (5) section 922(g)(1) is unconstitutional on its face. For the reasons stated below, we affirm the conviction.

BACKGROUND

San Francisco Police Department Officers Matthew Faliano and David Garcia pulled over Carrasco for driving with expired registration tags. Carrasco was in the driver's seat. Brian Burgess was in the front passenger seat. After some preliminary questions, Officer Faliano asked Carrasco if he had any weapons or anything else in the car potentially harmful to the officer. Carrasco leaned out the driver's side window and said in a soft voice that there was a gun under the front passenger seat of the car. Officer Faliano ordered Carrasco and Burgess out of the car.

Officer Faliano found, under the passenger seat, a black bag containing an unloaded .44 caliber revolver and several rounds of .44 caliber ammunition. He also saw two partially full boxes of Remington .20 gauge shotgun shells on the center console between the passenger seat and the driver's seat. In the back seat of the car, underneath a jacket, was a small black scale with the residue of several narcotics, a bag full of pink baggies, a pink baggie containing a white substance (later determined not to be a controlled substance), and a glass methamphetamine pipe. When Carrasco stepped out of the car, Officer Garcia saw Carrasco turn around and throw the pink baggie with the white substance into the back seat. In Carrasco's pants pocket, Officer Faliano found a small amount of marijuana.

On December 1, 1998, the Government brought a criminal complaint charging Carrasco with one count for being a felon in possession of a firearm or ammunition in violation of 18 U.S.C. §§ 922(g)(1). On January 4, 1999, the Government brought an original indictment charging Carrasco with violating section 922(g)(1) based on possession of the revolver. On July 19, 1999, the Government brought a superseding indictment adding the bullets and shotgun shells to the charge. The jury returned a guilty verdict on the charge in the superseding indictment.

ANALYSIS

I. Drug Trafficking Evidence.

Carrasco argues that the district court abused its discretion by admitting the scale with narcotics residue and the empty pink baggies for the purpose of showing Carrasco knowingly possessed the revolver, bullets and shotgun shells. The district court's decision to admit this evidence under Federal Rule of Evidence 404(b) is reviewed for an abuse of discretion. See United States v. Chea, 231 F.3d 531, 534 (9th Cir. 2000).

In United States v. Butcher , 926 F.2d 811 (9th Cir. 1991), we held that under Rule 404(b) "evidence of narcotics trafficking may be properly admitted to show knowing possession of a weapon." Id. at 816. The Court explained, "Firearms are known tools of the trade of narcotics dealing because of the danger inherent in that line of work." Id. (quotation marks omitted). When the officers in Butcher pulled over the defendant, they found a loaded handgun along with a large quantity of drugs and cash, scales with narcotics residue, plastic baggies and "pay and owe" sheets. The court held that the above evidence of drug trafficking was "inextricably intertwined" with the possession of the handgun and, therefore, it was properly admitted to show the defendant knowingly possessed the same. Id.

Carrasco, unlike the defendant in Butcher, only had a small quantity of drugs and money in his possession. Nevertheless, the pink baggies and the scale with drug residue found in Carrasco's vehicle are by themselves indicative of drug trafficking. Plastic baggies and scales are well-known tools for the packaging and sale of drugs. See United States v. Savinovich, 845 F.2d 834, 837 (9th Cir. 1988) ("scales constitute one of the tools of the drug trade" and therefore "are probative of intent to distribute"); see, e.g., Butcher, 926 F.3d at 816 (scales and baggies are probative of drug trafficking); United States v. Conners, 825 F.2d 1384, 1387, 1390 (9th Cir. 1987) (same). Officer Garcia provided lay opinion testimony regarding this connection as well. Carrasco offers no explanation why a person who does not deal drugs would carry these implements in his car. Also, the nexus between the drug trafficking evidence and the firearm and ammunition is sufficient. The officers found the scale, plastic baggies, revolver, bullets, and shotgun shells at the same time in the same place, specifically, in Carrasco's vehicle after he had been driving it.

To mitigate the danger of unfair prejudice resulting from the admission of the drug trafficking evidence and Officer Garcia's testimony regarding the same, the trial court instructed the jury to consider such evidence "only as it bears on whether the Defendant knowingly possessed the firearm and ammunition described in the indictment." The prosecutor reiterated this admonition in closing argument. In addition, as discussed in the next section, the Government presented strong evidence that Carrasco possessed the shotgun shells, which further undercuts Carrasco's claim of prejudice.¹ Under these circumstances, the trial court properly concluded that the danger of unfair prejudice did not substantially outweigh the probative value of this evidence. See Fed. R. Evid. 403.

Accordingly, the district court did not abuse its discretion in admitting the scale and baggies for the purpose of showing that Carrasco knowingly possessed the revolver, bullets and shotgun shells.

II. Constructive Possession.

Carrasco argues that there is insufficient evidence to support the finding that he constructively possessed the revolver, bullets or shotgun shells. Because Carrasco failed to raise this challenge below, we review for plain error. See United States v. Archdale, 229 F.3d 861, 867 (9th Cir. 2000).

A showing of actual, constructive or joint possession is sufficient to establish the possession element of a section 922(g) offense. United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir. 1989). "To prove constructive possession, the government must prove a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised dominion and control over the firearms." United States v. Gutierrez, 995 F.2d 169, 171 (9th Cir. 1993) (quotation marks, alterations omitted). "In the more difficult situation where the premises are shared by more than one person, the Ninth Circuit has found that if a party has knowledge of the weapon and both the power and the intention to exercise dominion and control over it, then he has constructive possession." United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990). "Mere proximity to contraband, presence on property where it is found and association with a person or persons having control of it are all insufficient to establish constructive possession." Id. at 279 (quotation marks, alterations omitted).

With respect to the shotgun shells, the Government points out that Carrasco was the owner as well as the driver of the vehicle in which the shells were found. In addition, the shells were readily visible, identifiable and accessible to Carrasco, according to Officer Garcia. Officer Garcia testified that he found the two boxes of shells on a lidless console between the driver seat and front passenger seat with the "Remington" label facing up. Also, as discussed in the previous section, the drug trafficking evidence further supports the inference that Carrasco knew about the shells. The evidence is sufficient to support the jury's finding that Carrasco knew of the shotgun shells, had the power to exercise control over them, and had the intention to do so. See Terry , 911 F.2d at 278. That Burgess had equal access to the shells does not require a different conclusion. See United States v. Whitfield, 629 F.2d 136, 143 (D.C. Cir. 1980) (upholding firearms conviction against the owner/driver of the car, but not the passenger, because the "jurors could conclude that[the defendant], as the owner and operator of the car, had control over its contents, particularly items within easy reach of the driver's seat").

Accordingly, the jury did not plainly err in finding that Carrasco constructively possessed the two boxes of shotgun shells.²

III. Joint Possession Instruction.

Carrasco argues that the evidence in the record was insufficient to warrant a jury instruction on joint possession. The instruction provided: "More than one person can be in possession of something if each knows of its presence and has the power and intention to control it." It is undisputed that this is a correct statement of the law. Whether the required factual foundation exists to support a requested...