*1 305 wedged expensive the between that he an years cash. Bradshaw boat several console, remarking seat the before the driver’s and his involvement the con- going spiracy. “I this.” Huber ain’t need and Even we with Bradshaw motel, leaving then entered the that the erroneously admitted, Bradshaw evidence was handgun the and the truck. Huber the driver admission of the evidence was harmless were overwhelming Bradshaw arrested after Bradshaw because there is evidence of displayed guilt. the cash to the undercover officer. Bradshaw’s See United v. Don- States ahue, 442 Huber and Bradshaw contend the evi 118 support jury’s dence insufficient to the 924(e) disagree. Although verdicts. We Accordingly, we affirm. Huber and Bradshaw chose to enter the mo they tel without the the record is clear readily handgun guard
had a accessible motel, en route the cash to facilitate departure
their from the in an motel emer
gency, and to after cocaine cases,
left the motel. Under our this evi
dence is sufficient to Huber’s and
Bradshaw’s convictions. Sеe United States Edwards, (8th Cir.1993); America, v. 994 421 Appellant, F.2d UNITED STATES of Boykin, (8th Cir.1993); Watson, CANTERBURY, Appellee. David Alan Cir.1992); LaGuardia, (8th Cir.1985). No. 92-3809. Bradshaw also contends the district Appeals, United States Court of court committed error when it admitted Eighth Circuit.
taped telephone conversations between Hu Submitted 1993. drug ber and the California dеaler and the police posing supplier. officer Under Aug. Decided 1993. 801(d)(2)(E), Federal Rule Evidence a co- conspirator’s made statemеnts
course and to conspiracy further the are hearsay. Bourjaily v. United 171, 173, 181, 2775, 2777, (1987); Edwards, Briefly, challenged 421. at conver planned participate
sаtions showed Huber drug others transaction and in negotiations purchase
cluded Huber’s motel, displayed
cocaine. At the Bradshaw
knowledge negotiations. of Huber’s earlier
Bradshaw handled cash that would exchanged
be cocaine. On this evi
dence, justifiably the district court found that conspiracy
Bradshaw was in a with Huber wеre Huber’s statements made conspiracy. furtherance of the properly thus admitted the
taped conversations.
Bradshaw also contends the district by admitting
court committed error evidence *2 charges firearm-possession the two
which of appeals. government The to dismiss. II. IA, Rapids, Cedar Papenthien, L. Janet appellant. argued, for Freisinger, 937 F.2d In United States IA, Rapids, argued, Meyer, Cedar Mark C. (8th Cir.1991), that 18 we held appellee. § doеs authorize U.S.C. than one fire carrying more prosecutions ARNOLD, Chief RICHARD S. Before drug-trafficking of one during the course arm LAY, Judge, and Judge, Senior Circuit offense distinguishеs one offense. What GIBSON, Judge. R. Circuit JOHN legal gives separate them another and to the fire the “use” attributed identities is ARNOLD, Judge. Chief S. RICHARD firearm consti separаte use of a arm: each Canterbury is with one David offense, separate even where tutes a conspira- illegal drugs, possession count drug-trafficking crime. predicate drugs, those cy possess and distribute Lucas, using possessing or a firearm counts of two , — denied drug-trafficking crime: in connectiоn with a For ex 841(b)(1)(C), § U.S.C. violations the District Court found ample, 924(c). § § On and 18 U.S.C. U.S.C. in the the fourteen firearms that one of motion, the District Court— the defendant’s pistol used to home —a defendant’s evidentiary hear- the benefit of an without —was family. The and his protect the defendant firearm-possession ing one of —dismissed pаrt un- of the held that a found another charges. The Court machine support mul- derlying drug home, offense could not a crack cocaine was used 924(e). government The tiple violations of separate laboratory. The two uses of remand. appeals; 924(c)(1). we reverse and separate violations of guns were I. III. says that when law-en- The looking fire- separate officers for controlled sub- use of a forcement What constitutes house, Canterbury’s drug-trafficking stances searched offense arm in relation to a handgun in his found a loaded .380-ealiber The question of fact. drugs. alоng a small amount of bedroom prohibited proving separate, the burden They found a 9-millimeter rifle loaded of a firearm or firearms uses house, drugs part again near another 924(e). case, violating In this charge of From drug-trafficking paraphernalia. alleges Canterbury used Mr. facts, sepa- derived the these purpose and the rifle for pistol for one charges, three firearm-possession rate another, can be or at leаst the indictment Canterbury the indictment. and four of separate alleging uses. read as of the firearm dismissal of one moved for firearm-possession one of the counts, contemplates Dismissal of arguing that underlying drug- premature. As a matter of charges one violation for many trafficking charge, rеgardless of how al- was sufficient to pleading, the indictment are involved. lege two offenses. proof, put on its and it be allowed to should judge prеtrial magistrate A reviewed stand; burden, charges carry then the can its recommended denial Canter- motions and not, motions are still if it can then the usual premature. Can- bury’s motion to dismiss as Canterbury, as a mo- to Mr. such available argument to the Dis- then took his Accordingly, the tion for directed verdict. magis- disagreed with the trict Court which reversed, Court is judgment of the District government its choice of gave trate and and the cause proceed- remanded for further tion of occurs), ings opinion. consistent with this
(1991); United States v. Henry, 878 F.2d LAY, Senior Judge, Circuit concurring. (multiple convic *3 924(c) tions under section not propеr merely join I opinion majority that because more gun used); than one Unit dismissal of the premature indictment was Fontanilla, ed States v. 1257, 849 F.2d because thе yet not had an (9th Cir.1988) curiam) (because 1258-59 (per mur opportunity prove separate use of the der and assault were properly charged as firearms involved. I a remand is re separate crimes, permissible it was charge quired under United States v. appellant with a separate firеarm charge for — 1210, denied, cert. crime). In fact in the Fifth Circuit case 112 S.Ct. Privette, a case Freisinger, decided after (1991). I believe this is the narrow basis of conceded that use of more our holding. gun than one would multiple I do not endorse the reasoning broad used 924(c) under 18 U.S.C. during a by panel our Freisinger, United Stаtes v. single drug trafficking Privette, crime. (8th 389-90 which F.2d at 1262. seems to prosecution authorize for each fire
arm a If possesses defendant plans prosеcute Can single relation a separately 924(c)(1) crime violence or drug under section trafficking regardless gun seemingly by whether endorsed Freising er, proof if use. and the As the district court defendant is convicted on multi out, pointed ple counts, other circuits have held present to the conviсtions should be contrary. ed to this United States v. court en Lindsay, banc. This court will then (2d decide (relying whether to approach on follow the legislativе history Freisinger logical conclude or the more that and common approach links sense Ninth, Sixth, to a Tenth, sin gle 924(c)(1) Fifth, Eleventh, crime one violation oc Second Circuits. The curs), (U.S. petition direction upon cert. we decide takes on substantial filed 1993) (No. 92-8626); Moore, additional significancе possi because of the (10th Cir.1992) (a bility second, 958 F.2d that a single simultaneous conviction 924(c) violation of under despite additional, occurs will call fоr an presence of multiple firearms); 20-year consecutive United sentence. See Deal v. — Hamilton, (11th 1344, 1346 U.S. -, 953 F.2d 113 S.Ct. Cir.) (use (1993).1 of more L.Ed.2d 44 gun than one during a single drug traffiсking offense sup will not
port multiple 924(c)), counts under section — denied, U.S. -, 204, 121 113 S.Ct. (1992); v. Pri
vette, Cir.1991) (use
of more than one will not support multi
ple counts under section for use of a
firearm single a drug trafficking crime), U.S. -, (1992); Henning, Cir. 1990) (where defendant been convicted of singlе drug trafficking offense and more
than involved, one firearm was viola-
1. The conceded tenced for violation. In its court, arguments however, Freisinger that under the defendant to this govern- could be sen- appears ment position. to retreat from this