Tоday we examine a family drug conspiracy involving the parents, one child, and an aunt. All were convicted and have commenced serving long sentences. The family members appeal their convictions and sentences.
I. Background
Ruby Lamb and Donald Lamb were formerly married to each other but resided sеparately at the time relevant to this case. Ruby Lamb lived in a house she owned in Fort Wayne, Indiana. One of her daughters, Necole Lamb, lived elsewhere in Fort Wayne. Helen Jackson, Ruby Lamb’s sister and Necole Lamb’s aunt, lived at yet another Fort Wayne location.
Federal authorities suspected, because informants told them so, that the Lambs and Helen Jackson trafficked in drugs. To get more evidence, FBI agent John McGauley obtained a court order pursuant to 18 U.S.C. § 2518 for a wiretap on three phone lines, including the line in Ruby Lamb’s house. During thirty days of constant monitoring, the FBI recorded scores of conversations among the four defendants.
Based on information garnered from the wiretap, federal agents obtained a warrant to search the residences of Ruby Lamb and Helen Jackson. At Ruby Lamb’s house, agents found pieces of a paper trail recording drug transactions, such as price lists аnd a ledger recording drug distributions made by members of the conspiracy. Agents also found a triple-beam scale (used for precise weighing of small quantities of drugs) and plastic baggies of the sort used to package drugs for retail sale. At Helen Jackson’s house, agents found 127 grams of cocaine pаckaged in eighteen individual plastic bags, all wrapped in a towel underneath the pillow on the left side of Helen Jackson’s bed. They also found about 25 grams of marijuana. In Jackson’s bedroom they found two guns: a loaded Taurus .357 Magnum revolver under the pillow on the right side of the bed and a Smith & Wesson .357 Magnum undernеath the bed. They also found more records of drug transactions.
The government indicted all four defendants on a battery of drug-related charges. A jury convicted all four defendants of conspiracy to distribute cocaine, 21 U.S.C. § 846, as well as using a firearm in relation to that conspiracy, 18 U.S.C. § 924(c). The jury additionally convicted Helen Jackson of making her residence available for unlawfully storing, using, manufacturing or distributing controlled substances, 21 U.S.C. § 856(a)(1), of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), plus using a firearm in relation to the possession offense. Finally, the jury convicted Donald, Ruby, and Necole Lamb of using a communications facility (a telephone) in furtherance of a conspiracy to distribute drugs. 21 U.S.C. § 843(b).
The district court sentenced Helen Jackson to 378 months (78 months plus 25 years); Necole Lamb to a total of 138 months; Donald Lamb to a total of 147 months; and Ruby Lamb to a total of 295 months.
II. Analysis
A. § 924(c)(1) Convictions
Each defendant was convicted of violating 18 U.S.C. § 924(c)(1), which provides that
Whoever, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years_ In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years....
The defendants all appeal their § 924(e)(1) convictions.
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Helen Jackson, who was convicted of two violations of § 924(c)(1), contends that there was insufficient evidence to support those convictions. She argues that there was inadequate proof that she had used the Taurus revolver “during or in relаtion to” her crimes of conspiracy and possession. To succeed, Jackson must show that, viewing the evidence in the light most favorable to the government, no rational jury could have found the essential elements of the offense beyond a reasonable doubt.
United States v. Baskin-Bey,
It is true, as Jackson reminds us, that possession of a firearm unrelated to a concurrent drug trafficking offense is not by itself enough to trigger § 924(c)(1).
Taylor,
Jackson also argues that she can be convicted only of one violation of § 924(e)(1), rather than two. She points out that both § 924(c)(1) convictions arose out of thе same general course of activity, dealing cocaine. It may be that a defendant may not be convicted twice of violating § 924(c)(1) based on a single underlying drug trafficking offense.
See United States v. Henry,
The other defendants, Ruby, Donald, and Necole Lamb, also contend that insufficient evidence existed to convict them of violating § 924(c)(1). From our review of the evidence supporting Jackson’s convictions, it is clear that there was adequate evidence to support a conclusion that the Taurus revolver was used in furtherance of the conspiracy. The question therefore becomes whether it was not reasonably foreseeable to the other defendants that a firearm would be so used.
Pinkerton v. United States,
Ruby Lamb knew that Helen Jackson kept the drugs to be distributed by the conspiracy, and she knew (as shown by her taped conversation) that Jackson kept the Taurus close to her for easy access in case the need arose to defend the drug stash. We have no doubt that sufficient evidence existed *635 that Ruby Lamb could both reasonably foresee Jackson’s use of the firearm and that she actually knew of its use.
As to Donald and Necole Lamb, no evidence suggests that either actually knew that Helen Jackson possessed a firearm. However, this Circuit has repeatedly held that “[b]ecause the drug industry is, by nature, a violent business, the presence of firearms in transactions involving sizeable quantities of drugs is reasonably foreseeable.”
Williams,
The police found 127 grams of cocaine at Helen Jackson’s house, packaged in smaller quantities for retail sale. The defendants’ own price lists established that they sold cocaine fоr $1100 for a full ounce and $550 for a half ounce. At that price, the retail worth of the 127 grams of cocaine was nearly $5,000. Even though the conspirators did not intend to sell all that cocaine in one transaction, having that amount of cocaine stored in one place for later distribution created the usual incentive to provide armed protection. A conspirator’s use of a firearm is foreseeable in those transactions where, as here, a firearm provides the participant “the security and confidence necessary to undertake” such drug distribution operations.
United States v. Ocampo,
B. Ineffective Assistance of Counsel
The bulk of the government’s case consisted simply of playing the tapes made pursuant tо a court-ordered wiretap and identifying the voices recorded. Because the tapes were crucial to the government’s ease, trial counsel moved to suppress the tapes by attacking the validity of the intercept order issued to allow the wiretap. Trial counsel’s theory wаs that FBI agent John McGauley made false allegations in his affidavit, and that without those allegations there would have been no probable cause to issue the intercept order. To expand that theory, trial counsel asked the court to hold an evidentiary hearing regarding McCauley’s affidavit. Defendants now say that trial counsel acted incompetently in requesting that hearing.
The procedure for obtaining an intercept order follows the same pattern as that for a search warrant.
See United States v. Feekes,
Trial counsel here did make a Franks motion, pointing to five alleged untruths in McCauley’s affidavit supporting the order. However, trial counsel did not claim to be *636 able to make a “substantial preliminary showing” that McGauley had deliberately or recklessly included untruths in his affidavit. Instead, trial counsel argued:
The affidavit is replete with false and/or misleading information supplied by Agent McGauley. Whether the discrepancies are due to inadvertence, failure of recollection, intentional misstatement of fact, we cannot determine because we do not have information sufficient to determine the validity of the rest of the infоrmation.
That was the crux of trial counsel’s argument. The court refused to grant an eviden-tiary hearing, stating:
The Defendants take the position that since they have shown that some of McGauley’s information was incorrect, they are entitled to a hearing so that they can cross-examine McGauley and obtain access to all of his investigative reports, in an attempt to show that McGauley’s affidavit does not support probable cause. The Defendants have misread Franks. The affidavit in support of probable cause is presumed to be valid. This presumption is rebutted only by allegations of delibеrate falsehoods or of reckless disregard for the truth, and these allegations must be accompanied by offers of proof. The Defendants have not met this standard and, consequently, the Court will not hold a Franks hearing.
To show constitutionally ineffective assistance of counsel, as the defendants allegе, they must identify specific erroneous acts or omissions that, in the context of the entire trial, amounted to ineffective assistance, and they must show that deprivation prejudiced their defense.
Strickland v. Washington,
Defendants argue that trial counsel erroneously prepared the denied Franks motion. They contend that trial counsel should have alleged that McGauley’s misstatements were deliberately or recklessly made. However, effective assistance certainly does not mean counsel must claim to have information he actually lacks, simply hoping his client will benefit from his speculation. Trial counsel here did not make the “substantial preliminary showing” of McGauley’s deliberate deception because he could not, not because he forgot to do so. Trial counsel hаd a hunch he sought to develop: he wanted to cross-examine McGauley in hopes of finding reason to cast doubt on his credibility. Franks forbids exactly that, as the district court pointed out. That meant that defendants were precluded from having an evidentiary hearing, not that counsel should have falsely clаimed to have information he lacked in hopes of finagling a hearing. 1
C. Miscellaneous
Donald Lamb challenges the sufficiency of the evidence supporting his conspiracy conviction. He points out that agents did not search his house and argues that he simply used cocaine he bought from Ruby Lamb and Helen Jackson. However, the jury heard substantial direct and circumstantial evidence of Donald Lamb’s participation in the conspiracy, including his frequent conversations about drugs with other co-conspirators and his multiple requests for significant quantities (up to half an ounce) of drugs within a short time, sometimes more than once a day. For example, Donald Lamb requested that Ruby Lamb deliver to him a half-ounce of cocaine shortly after he had already received a half-ounce shipment, and she asked him whether he had already been brought a half-ounce. Donald Lamb replied that he had “taken care of that already.” His reply could be taken to mean he had used it himself, but a rational jury could also find that he had distributed it as part of his *637 ongoing agreement to distribute cocaine with the other conspirators, especially given his multiple demands for drug deliveries in a short period of time.
III. Conclusion
The defеndants raise other arguments; all of them lack merit and do not require further discussion. We Affirm the convictions and sentences of Helen Jackson, Necole Lamb, Donald Lamb, and Ruby Lamb.
Notes
. We note, furthermore, that the argument that Agent McGauley deliberately deceived the court to obtain the warrant is unfounded. The errors defendants point to in the affidavit were minor (e.g., Ruby Lamb did indeed not have two convictions: she had one and was about to have another once a judicial proceeding in progress had finished). Probable cause would certainly have existed had the allegedly false statements been excised from the affidavit. There was no basis for accusing Agent McGauley of perjury.