ARMANDO R. FEBLES, PETITIONER V. UNITED STATES OF AMERICA No. 90-6562 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-11a) is not reported. JURISDICTION The judgment of the court of appeals was entered on July 30, 1990. A petition for rehearing was denied on August 27, 1990. Pet. App. 12a. The petition for a writ of certiorari was filed on November 8, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a defendant may be convicted of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1), on a Pinkerton theory. STATEMENT Following a jury trial in the United States District Court for the Southern District of Texas, petitioner and a codefendant, Gustavo Gutierrez, were convicted of possession of marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(D); conspiracy to possess marijuana with intent to distribute it, in violation of 21 U.S.C. 846, 841(a)(1), and 841(b)(1)(D); and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1). Petitioner was sentenced to 93 months' imprisonment. 1. The evidence at trial showed that, on July 25, 1989, petitioner appeared at the Border Patrol checkpoint at Falfurrias, Texas, in a Jeep with Florida license plates. Petitioner was travelling north on Highway 281 from the Rio Grande Valley towards Corpus Christi, Texas. Border Patrol Agent Thomas Slowinski detected the odor of marijuana in the Jeep and observed that petitioner appeared to be nervous. Agent Slowinski referred the Jeep to a secondary inspection site, where he searched the Jeep and found a small amount of marijuana. Because drug traffickers sometimes use a lead car to create a diversion at the checkpoint while a second car smuggles through a cache of narcotics, Slowinski advised Agent Russell Strong to watch for a second car. Pet. App. 2a-3a. Several minutes later, Gutierrez arrived at the checkpoint in a rented Chevrolet. Gutierrez, like petitioner, was travelling north on Highway 281 from the Rio Grande Valley toward Corpus Christi and appeared to be nervous. Gutierrez told Agent Strong that he was from Miami. After directing Gutierrez to the secondary inspection area, Agent Strong searched the car and found two travel bags containing more than 18 kilograms of marijuana. A side pocket of one of the bags contained a loaded .38 caliber semi-automatic pistol. Pet. App. 3a. Rental papers in Gutierrez's Chevrolet showed that the car had been reserved by Gutierrez but rented by petitioner. In the Jeep, the agents found several outstanding traffic citations in Gutierrez's name. The agents also found a legal pad with eleven pages of notations and calculations, including a list of expenses incurred by "Armando" and "Gus" and a list of entries in a column headed "Weed," which totaled $5,800. /1/ Pet. App. 3a-4a. Because the pistol was not in petitioner's vehicle, the government prosecuted him for the firearms offense under the doctrine of Pinkerton v. United States, 328 U.S. 640 (1946). Pinkerton held that a defendant is liable for his co-conspirator's crimes that are in furtherance of the conspiracy and reasonably foreseeable by the defendant. Id. at 645-648. The district court instructed the jury that it could find petitioner guilty on the weapons offense if it found (1) that petitioner and Gutierrez conspired to violate the narcotics laws, (2) that Gutierrez possessed a firearm during and in relation to the offense of possession with intent to distribute marijuana, (3) that possession of the firearm was in furtherance of the conspiracy, and (4) that the possession of the firearm by Gutierrez was reasonably foreseeable by petitioner. Petitioner did not object to that instruction, nor did he object to the prosecutor's use of the Pinkerton doctrine. Pet. App. 8a-9a. 2. The court of appeals affirmed. Pet. App. 1a-11a. Because petitioner did not object to the Pinkerton instruction at trial, the court applied the plain error standard. The court of appeals concluded that the district court's instruction was correct under United States v. Raborn, 872 F.2d 589, 595-596 (5th Cir. 1989) (applying Pinkerton to 18 U.S.C. 924(c)). The court also concluded that the proximity of the weapon to the drugs was sufficient to establish that the weapon was used in furtherance of the conspiracy, and that the use of a firearm to protect the valuable and illegal cargo of the conspiracy was reasonably foreseeable. Pet. App. 8a-9a. ARGUMENT Petitioner contends (Pet. 7-9) that it was improper to base his conviction under 18 U.S.C. 924(c)(1) on the Pinkerton doctrine. Petitioner did not object to the Pinkerton instruction at trial. Accordingly, the instruction is reviewed only for plain error. See United States v. Young, 470 U.S. 1, 14-16 (1985); Henderson v. Kibbe, 431 U.S. 145, 154 (1977). There was no error here, much less plain error. Petitioner correctly observes that, in construing 18 U.S.C. 921(c), courts have applied "the general rule of construction that 'knowledge of the facts constituting the offense( ) is ordinarily implied' where a 'statute does not expressly mention any mental element.'" United States v. Wilson, 884 F.2d 174 (5th Cir. 1989) (quoting United States v. Barber, 594 F.2d 1242, 1244 (9th Cir.), cert. denied, 444 U.S. 835 (1979)). See also United States v. Joseph, 892 F.2d 118, 125 (D.C. Cir. 1989); United States v. Nelson, 733 F.2d 364, 370-371 (5th Cir.), cert. denied, 469 U.S. 937 (1984). /2/ Although the government thus is required to prove that the conspirator who carried the firearm had the requisite knowledge, it does not follow that other conspirators who lacked such knowledge may not be convicted under the Pinkerton doctrine. On the contrary, knowledge is an element of most criminal offenses. See United States v. Bailey, 444 U.S. 394, 405 (1980) ("'knowledge' corresponds loosely with the concept of general intent"). The rule of Pinkerton permits a jury to convict a defendant of an offense committed by an accomplice with the requisite mental state if the defendant and the accomplice are parties to an unlawful conspiracy and the substantive offense was committed in furtherance of the conspiracy. The mens rea of the accomplice, coupled with the fact that it was foreseeable that the offense would be committed in furtherance of the conspiracy, are sufficient to support conviction of other conspirators. Thus, it is not surprising that the courts of appeals uniformly apply the Pinkerton rule to sustain convictions under 18 U.S.C. 924(c). See, e.g., United States v. Gonzalez, 918 F.2d 1129, 1134-1136 (3d Cir. 1990), cert. denied, 111 S. Ct. 1015 (1991); United States v. Long, 905 F.2d 1572, 1577 n.8 (D.C. Cir. 1990); United States v. Romero, 897 F.2d 47, 51-52 (2d Cir.), cert. denied, 110 S.Ct. 3253 (1990); United States v. Powell, 894 F.2d 895, 899-900 (7th Cir.), cert. denied, 110 S.Ct. 2189 (1990); United States v. Raborn, 872 F.2d at 595-596. /3/ Here, petitioner was properly convicted under the Pinkerton doctrine. The evidence showed that petitioner and Gutierrez conspired to distribute marijuana. Petitioner and Gutierrez arrived within minutes of each other at the checkpoint; petitioner possessed a small amount of marijuana in his Jeep; Gutierrez's car had been rented by petitioner; petitioner's car contained documents connecting the car to Gutierrez and showing that petitioner and Gutierrez shared expenses on their trip. The weapon's close proximity to the drugs indicated that it was being used to further the conspiracy. And because firearms are the "tools of the trade" of drug traffickers, see United States v. Beverly, 921 F.2d 559, 562 (5th Cir. 1991); United States v. Armond, 920 F.2d 480, 482 (7th Cir. 1990); United States v. Sullivan, 919 F.2d 1403, 1420 (10th Cir. 1990), the firearms violation was reasonably foreseeable. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS E. BOOTH Attorney APRIL 1991 /1/ At trial, Gutierrez admitted that he and petitioner were friends and travelling companions, but denied any knowledge of the gun or the drugs. Pet. App. 4a. /2/ Petitioner incorrectly asserts (Pet. 8) that some courts of appeals have held that knowledge is not an element of the Section 924(c) offense. In United States v. Raborn, 872 F.2d at 595-596, the Fifth Circuit held only that Pinkerton applies to Section 924(c)(1) offenses, just as it applies to other criminal offenses that require proof of mens rea. Similarly, the Seventh Circuit held in United States v. Gironda, 758 F.2d 1201, 1211 (7th Cir.), cert. denied, 474 U.S. 1004 (1985), that Pinkerton applies whether or not the Section 924(c) offense itself was an objective of the conspiracy. And in United States v. Edun, 890 F.2d 983, 987-988 (1989), the Seventh Circuit expressly recognized the "authority for the proposition that 'the government does have to prove that the defendant knowingly carried a firearm in order to sustain a conviction under section 924(c)(2).'" Id. at 987 (quoting United States v. Nelson, 733 F.2d at 370). In Edun, the Seventh Circuit held that the defendant's knowledge was established by circumstantial evidence that he knew of the presence of the weapon. 890 F.2d at 987-988. /3/ For the same reason, petitioner is wrong in contending (Pet. 9) that references in the legislative history to "knowing" violations demonstrate that Congress did not intend the Pinkerton rule to apply to Section 924(c)(1).