United States v. Eduardo Arriaga ( 2018 )

NOT FOR PUBLICATION FILED
SEP 20 2018
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10519
Plaintiff-Appellee, D.C. No. 5:13-cr-00510-EJD
v.
MEMORANDUM*
EDUARDO ARRIAGA, AKA Moreno,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted September 4, 2018
San Francisco, California
Before: BERZON and FRIEDLAND, Circuit Judges, and DOMINGUEZ,
District Judge.
Eduardo Arriaga appeals from his conviction following a jury trial for
possession with intent to distribute and distribution of methamphetamine, in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

The Honorable Daniel R. Domínguez, United States District Judge for
the District of Puerto Rico, sitting by designation.
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violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii), and possession of a firearm
in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). He
challenges: (1) the sufficiency of the evidence presented by the government that
the possession of the firearm was in furtherance of a drug crime; (2) the district
court’s alleged failure to provide sufficient supplemental instructions to the jury in
response to its request for clarification of the “in furtherance of” element of the
section 924 offense; (3) the admission of the government’s law enforcement
expert’s testimony; and (4) the admission of Arriaga’s 15-year-old prior sales
conviction and evidence of his gang ties. We affirm.
When reviewing for sufficiency of the evidence, we examine whether,
viewing the evidence in the light most favorable to the prosecution, the jury could
have found the essential elements of each crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[C]ircumstantial evidence is
sufficient to sustain a conviction.” United States v. Harris, 792 F.2d 866, 868 (9th
Cir. 1986).
To prove a section 924(c) offense, the “government must show that the
defendant intended to use the firearm to promote or facilitate the drug crime.” United
States v. Rios, 449 F.3d 1009, 1012 (9th Cir. 2006). The government may do so by
proving that the gun was within “easy reach, giving rise to the ready inference that
the firearm was strategically located to protect [Arriaga].” United States v. Thongsy,
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577 F.3d 1036, 1042 (9th Cir. 2009). There was substantial evidence for a jury to
convict Arriaga for the firearm count. The handgun was on the couch in the room
where Arriaga’s supply of drugs and drug paraphernalia were located. Viewing these
facts, the jury could have concluded that Arriaga was using the gun to protect his
methamphetamine and facilitate the sale.
Whether there was sufficient evidence to prove that Arriaga possessed the
firearm to further the specific drug transaction with the informant is not the relevant
question. Arriaga was charged with possession that day, with intent to distribute
more than 50 grams of methamphetamine, considerably greater than the quantity
involved in the drug sale with the informant. The government presented evidence
that Arriaga possessed a pound of methamphetamine in the garage, and that the
firearm was readily accessible to him in the garage both immediately before and
after the transaction.1
As to the supplemental instruction regarding the “in furtherance of” charge,
we hold that the original instruction was adequate and complied with applicable case
law. Our analysis of the district court’s response to the jury’s request for clarification
is guided by United States v. Lopez, 477 F.3d 1110, 1115 (9th Cir. 2007), which held
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Because the government need not prove that Arriaga possessed a firearm in
furtherance of the specific drug transaction with the informant, any error in
admitting expert testimony about the nexus between the gun and the specific drug
sale and about Arriaga’s motivations for handing the gun to the informant is
harmless.
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a similar section 924(c) instruction to have been adequate because it “separately
listed the requirements that ‘the defendant knowingly possessed a firearm’ and that
‘the defendant possessed the firearm in furtherance of the crime.’” By the same
reasoning, the instruction here clearly delineated between mere possession and
possession “in furtherance,” requiring the jury to find both elements to convict
Arriaga. Especially because Arriaga articulated a more detailed instruction for the
first time on appeal, we find no error in the clarification provided by the district
court.
The district court acted within its discretion by admitting Arriaga’s cocaine
sale conviction from 1997 and evidence of his gang ties. As an initial matter, the
district court never decisively ruled on the admissibility of the 1997 conviction, and
Arriaga brought up both matters when he took the stand, inviting the prosecution’s
cross-examination. And even if the admission of the 1997 conviction was an error,
it was harmless considering the other substantial evidence of predisposition that was
presented to the jury, including two much more recent prior drug convictions in 2013
involving methamphetamine. See United States v. Hegwood, 977 F.2d 492, 496 (9th
Cir. 1992) (“[W]hen the defendant ‘opens the door’ to testimony about an issue by
raising it for the first time himself, he cannot complain about subsequent government
inquiry into that issue.”). The gang evidence was similarly consistent with other
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evidence submitted by the prosecution. Thus, if there was any error in admitting
Arriaga’s gang ties it was also harmless.
AFFIRMED.
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