argued submitted seattle washington: June 8, 1993.
Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-90-323-08-BJR, D.C. No. CR-90-323-05-BJR, D.C. No. CR-90-323-06-BJR, D.C. No. CR-90-323-07-BJR, D.C. No. CR-90-323-13-BJR, D.C. No. CR-90-323-14-BJR. Barbara J. Rothstein, Chief District Judge, Presiding.
Before: Eugene A. Wright, Jerome Farris and Dorothy W. Nelson, Circuit Judges. Opinion by Judge D.w. Nelson.
D.W. NELSON, Circuit Judge:
This consolidated appeal is brought by eleven individuals involved in an extensive conspiracy to distribute cocaine and heroin. Appellants raise a multitude of issues, the majority of which are considered in a separate, unpublished Disposition. Our concern here is with appellants' appeals from their jury convictions for use of a weapon in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c), and with Terezo De Jesus Umansor-Alvarez's ("Umansor-Alvarez") and Lucas Ornelas-Martinez's ("Ornelas-Martinez") appeals from their sentences. We reverse six of seven of Leticia Castaneda's ("Leticia")*fn1 firearm convictions and affirm all of Uriel Castaneda's ("Uriel"), Maria Meras' ("Meras") and Ismael Barron's ("Barron") firearm convictions. We remand Umansor-Alvarez's case for findings with respect to his sentence; we affirm the sentence of Ornelas-Martinez.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in August of 1989, the Drug Enforcement Agency ("DEA"), the Seattle police, and the Los Angeles police began three unrelated investigations into appellants' drug activities. These investigations uncovered an extensive heroin and cocaine distribution network. Barron was at the center of the network acting as both a supplier and a distributor. Barron used Uriel and Basilio Angulo-Lopez ("Angulo-Lopez") as alternative suppliers. Below Barron, Uriel, and Angulo-Lopez, there were numerous distributors including Ornelas-Martinez. Umansor-Alvarez was a small-time dealer whom Uriel supplied with drugs. Meras, Barron's common law wife, acted as his assistant. Victor Castaneda ("Victor"), Uriel's brother, and several other Castaneda family members played strong supporting roles in his organization. The role of Leticia, Uriel's wife, was slight.
The first investigation targeted Angulo-Lopez. (2 RT 150- 81) In November 1989, the DEA began a separate undercover investigation of Barron and Meras; the investigation included a wiretap of their home telephone. In May 1989, a separate undercover investigation of the Castaneda family began after the Los Angeles police received information that Uriel and his brother Rafael Castaneda ("Rafael") ran a distribution organization which had connections in Los Angeles and Seattle.
At some point in September 1990, the investigations of Angulo-Lopez and Barron were merged. On the basis of information obtained through the Barron wiretap and other sources, the Seattle police and the DEA conducted searches, pursuant to a warrant, of several of appellants' residences. Several low-level distributors were arrested as a result. Barron's intercepted conversations partially provided the basis for permission to monitor the Castaneda home telephone. Three-hundred-and-sixty phone calls were intercepted involving Leticia; six of them provided the basis for the charges against her in this case.
DEA agents conducted a series of searches of Angulo-Lopez's residences and storage lockers, uncovering a large amount of drugs and several weapons in October 1990. The agents subsequently arrested Angulo-Lopez. A few days later, authorities conducted a second series of searches of Uriel's "stash houses" and residences, and they arrested him and some of his relatives. In December 1991, a superceding indictment merged the Angulo-Lopez/Barron and Castaneda cases. After a lengthy jury trial, the eleven appellants were convicted of conspiring to distribute cocaine and heroin in violation of 21 U.S.C. § 846 and a variety of other drug related charges. Appellants were sentenced under the United States Sentencing Guidelines ("the Guidelines"), although many also were subject to statutorily mandated minimum terms.
Leticia and Uriel were convicted of seven counts and Meras and Barron were convicted of five counts of using a firearm in violation of 18 U.S.C. § 924(c) on the basis of co-conspirator liability. The predicate offense for one count was the conspiracy itself, while the predicate offenses for the remaining counts were possession with intent to distribute offenses involving other defendants. These four appellants make several challenges to their firearm convictions which we discuss in turn.
A. Consolidation of Firearm Counts
Leticia argues that the district court wrongly denied her pre-trial motion to eliminate all but one of the seven firearm charges against her on the ground that the counts were multiplicative. We review de novo the district court's ruling. United States v. Douglass, 780 F.2d 1472, 1477 (9th Cir. 1986). 18 U.S.C. § 924(c) provides that:
Whoever, during and in relation to any crime of violence or drug trafficking . . . uses or carries a firearm shall in addition to the punishment provided for such crime of violence or drug trafficking crime be sentenced to imprisonment for five years.
There are two distinct elements to a § 924(c) violation: the carrying of a firearm and the predicate drug trafficking offense in relation to which the firearm is utilized. When there are multiple § 924(c) charges, the indictment must tie each firearm charge to a separate offense. United States v. Smith, 924 F.2d 889, 894 (9th Cir. 1991).
Thus, an indictment is multiplicative if the same offense and the same underlying facts that form the basis for that offense are used to support more than one firearm count. Id. at 894. However, if the elements of the two predicate offenses are different, each may form the basis of a firearm count notwithstanding that both offenses stem from the same set of facts. United States v. Fontanilla, 849 F.2d 1257 (9th Cir. 1988) (because murder of one person and assault of another in same episode were properly charged as separate crimes, it was permissible to charge defendant with two separate firearm counts). Similarly, a defendant may properly be charged with committing the same offense more than once as long as each count depends on a different set of predicate facts.
Under the rule first pronounced in Pinkerton v. United States, 328 U.S. 640, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946), each conspirator is liable for the criminal act of a co-conspirator if: 1) the substantive offense was committed in furtherance of the conspiracy, and 2) the offense could reasonably have been foreseen to be a necessary or natural consequence of the unlawful agreement. Id. at 647-48; Douglass, 780 F.2d at 1476. A conviction under § 924(c) may be based on Pinkerton. United States v. Johnson, 886 F.2d 1120, 1123 (9th Cir. 1989), cert. denied, 494 U.S. 1089, 108 L. Ed. 2d 959, 110 S. Ct. 1830 ...