114 F.3d 906
97 Cal. Daily Op. Serv. 4244, 97 Daily Journal
D.A.R. 7134
UNITED STATES of America, Plaintiff-Appellee,
v.
Ernesto Manuel FONSECA-CARO, Defendant-Appellant.
No. 95-16649.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 5, 1997.
Decided June 5, 1997.
Kenneth G. Parker, O'Melveny & Myers, Newport Beach, California, for defendant-appellant.
Robert L. Miskell and James D. Whitney, Assistant United States Attorneys, Tucson, Arizona, for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona; Alfredo C. Marquez, Senior District Judge, Presiding. D.C. Nos. CV-95-00343-ACM, CR-90-00297-ACM.
Before: BROWNING, and SCHROEDER, Circuit Judges and RESTANI, Judge.*
OPINION
PER CURIAM.
Ernesto Manuel Fonseca-Caro appeals the denial of his second motion for relief under 28 U.S.C. § 2255. We affirm.1
Fonseca-Caro was found guilty under a Pinkerton instruction of violating 18 U.S.C. § 924(c) based solely upon the use and carrying of a gun by a co-conspirator. Under Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S. Ct. 1180, 1184, 90 L. Ed. 1489 (1946), a co-conspirator is vicariously liable for reasonably foreseeable substantive crimes committed by a co-conspirator in furtherance of the conspiracy. Fonseca-Caro argues that since Bailey v. United States held "use" under § 924(c)(1) was limited to cases in which the defendant actively employed a firearm, the Pinkerton doctrine of vicarious liability is not applicable to offenses under § 924(c)(1) and Fonseca-Caro's conviction under the statute must be vacated. See Bailey v. United States, --- U.S. ----, ----, 116 S. Ct. 501, 505, 133 L. Ed. 2d 472 (1995).2
In arguing Bailey overruled Pinkerton in § 924(c) cases by implication, Fonseca-Caro relies solely on the Supreme Court's statement that "924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant." See Bailey, --- U.S. at ----, 116 S. Ct. at 505 (second emphasis added). It is unlikely in the extreme that the Supreme Court intended by this single sentence to overrule sub silentio years of decisional law applying Pinkerton to § 924(c)(1).
The Supreme Court granted review in Bailey only "to clarify the meaning of 'use' under § 924(c)(1)." Bailey, --- U.S. at ----, 116 S. Ct. at 505. The Court discussed the text and legislative history of § 924(c)(1) only to determine the proper construction of this statutory term. See id. at ---- - ----, 116 S. Ct. at 505-09. Bailey did not address the application of Pinkerton to § 924(c)(1). Neither of the cases consolidated for review in Bailey involved more than one defendant. The Court did not mention co-conspirator liability at all. See id. at ---- - ----, 116 S. Ct. at 503-504.
This court has applied Pinkerton to uphold co-conspirator liability for a § 924(c) charge after Bailey, stating "[b]ecause the district court gave the jury a proper Pinkerton instruction and informed the jury that each coconspirator was vicariously liable for all acts taken by the other conspirator in furtherance of the conspiracy, we hold that the evidence was sufficient to support [co-conspirator] Lopez's conviction under section 924(c)." United States v. Lopez, 100 F.3d 98, 101 (9th Cir.1996) (footnote omitted). Pre-Bailey decisions of this court also applied Pinkerton to § 924(c)(1). See United States v. Castaneda, 9 F.3d 761, 765 (9th Cir.1993) ("A conviction under § 924(c) may be based on Pinkerton."); United States v. Johnson, 886 F.2d 1120, 1123 (9th Cir.1989) (applying Pinkerton to § 924(c)(1) charge).
Fonseca-Caro argues Lopez does not control whether Bailey was inconsistent with vicarious liability under Pinkerton because the issue was not specifically raised. See United States v. Vroman, 975 F.2d 669, 672 (9th Cir.1992) (holding that a prior case was not controlling because the issue before the court had not been raised). We now reject Fonseca-Caro's argument specifically and hold that the Pinkerton doctrine is applicable to a § 924(c)(1) charge after Bailey.
Other Courts of Appeals have reached the same conclusion. See United States v. Wilson, 105 F.3d 219, 221 (5th Cir.1997) (rejecting the appellant's argument that Bailey rendered the factual basis for his plea inadequate because his conviction was based upon the acts of his co-conspirators and noting that "even after Bailey, a co-conspirator may be held responsible under § 924(c) for the acts that another member of the conspiracy took in pursuit of their unlawful scheme"); United States v. Myers, 102 F.3d 227, 238 (6th Cir.1996) ("Pinkerton's viability in § 924(c) cases was not altered by Bailey."); United States v. Rodger, 100 F.3d 90, 91 n. 2 (8th Cir.1996) ("We believe Bailey does not preclude the continued application of a coconspirator theory of liability to section 924(c)(1) offenses."). Other circuits have assumed Pinkerton liability applied to § 924(c). See, e.g., United States v. Washington, 106 F.3d 983, 1011 (D.C.Cir.1997) (citing numerous other circuits applying Pinkerton to a § 924(c)(1) charge).
Applying the Pinkerton doctrine, substantial evidence supports Fonseca-Caro's conviction. To establish Pinkerton liability, the prosecution must demonstrate "(1) the substantive offense was committed in furtherance of the conspiracy; (2) the offense fell within the scope of the unlawful project; and (3) the offense could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement." United States v. Douglass, 780 F.2d 1472, 1475-76 (9th Cir.1986). The firearm was used in furtherance of the conspiracy--Koons-Barbosa testified he carried the gun to protect himself and the money he had brought to purchase the drugs. Carrying the firearm was within the scope of the drug conspiracy because it was available for Koons-Barbosa's use during the drug transaction and provided his protection. Fonseca-Caro could reasonably have foreseen that it was a necessary or natural consequence of the drug conspiracy that one of the participants would carry a firearm. In similar earlier transactions, Fonseca-Caro himself had carried a gun.
AFFIRMED.
The Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by designation
We address Fonseca-Caro's other arguments in an unpublished memorandum disposition filed today
Whether Pinkerton applies to 924(c) after Bailey is a purely legal question. We may address such an issue raised for the first time on appeal if the opposing party will not suffer prejudice because it was not raised in the district court. See United States v. Thornburg, 82 F.3d 886, 890 (9th Cir.1996). Since the issue has been briefed fully on the merits, the government will not be prejudiced if we consider it. See id