Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CR-91-2161-01-AAM, D.C. No. CR-91-2157-01-AAM, D.C. No. CR-91-2162-01-AAM. Alan A. McDonald, District Judge, Presiding.
Before: William C. Canby, Jr., Charles Wiggins, and Thomas G. Nelson, Circuit Judges. Opinion by Judge T.g. Nelson.
T.G. NELSON, Circuit Judge:
At the trial of these Appellants and others for charges of using or carrying a firearm during the commission of various drug trafficking offenses under 18 U.S.C. § 924(c), the district court did not instruct the jury that the use or carrying of the firearm had to be "in relation to" the drug offenses. We hold the failure to instruct the jury on this element of the crime was reversible error.
This case arose from a joint undercover drug operation conducted by the Yakima Police and the Immigration and Naturalization Service (INS). Appellant German Silva was responsible for introducing INS undercover agent Manuel Rodriguez, who was posing as a buyer, to codefendants Ignacio Soliz and Jose Mendoza for the purpose of arranging a cocaine purchase. Silva was not present at the actual sale which took place in the parking lot of a Dairy Queen restaurant on the evening of August 8, 1991. Jose Mendoza and Soliz arrived at the parking lot in Soliz's van, followed closely by a Volkswagen Rabbit driven by Appellant Alfonso Mendoza and carrying as a passenger his brother, Appellant Sergio Mendoza. Alfonso parked the Rabbit beside Soliz's van. There was a loaded .22 caliber pistol in the Rabbit between the two front bucket seats within reach of both Alfonso and Sergio. Agent Rodriguez approached the van and asked Jose Mendoza about the men in the Rabbit. Jose replied, "Don't worry, they are my cousins, they have to be here for this deal." After Soliz showed Agent Rodriguez three kilogram bricks of cocaine, all the defendants on the scene were arrested. Silva was arrested the following day.
Appellants were convicted of conspiracy to distribute cocaine, distribution of cocaine, and use of a firearm during and in relation to a drug trafficking offense. Silva was also convicted for use of a communication facility to facilitate a drug trafficking felony. (Codefendants Jose Mendoza and Ignacio Soliz are not parties in the present appeal.) We AFFIRM Appellants' drug convictions and sentences under the Sentencing Guidelines in a separate unpublished Disposition, and REVERSE the firearm convictions in this opinion.
Appellants argue that the trial court committed reversible error in excluding from the jury instructions an essential element of the firearm charge. Appellants were charged under 18 U.S.C. § 924(c)(1) which provides:
Whoever, during and in relation to any crime of violence or drug trafficking crime . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such . . . drug trafficking crime, be sentenced to imprisonment for five years . . . .
18 U.S.C. § 924(c)(1) (West Supp. 1993) (emphasis added).
At oral argument, the Government informed us that the district court used a modification of the Ninth Circuit Model Instruction with respect to § 924(c)(1).*fn1 The district court had instructed:
Two essential elements are required to be proved in order to establish a violation of Title 18, United States Code, Section 924 (c) as charged in Count 4 of the indictment:
FIRST: that the defendants committed a drug trafficking crime which may be prosecuted in the United ...