                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     December 20, 2006
                                  TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

                Plaintiff - Appellee,                     No. 05-2331
          v.                                            (D. New M exico)
 A LBER TO BETO BEC ER RA ,                       (D.C. No. CR-04-1312-RCB)

                Defendant - Appellant.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, A ND ER SO N, and M cCO NNELL, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument.      See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.

      Following a jury trial, Alberto Beto Becerra was found guilty of possession

with intent to distribute 500 grams or more of a substance containing


      *
       This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff.
Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A),

conspiracy, in violation of 21 U.S.C. § 846, and carrying a firearm during and in

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i).

He was sentenced to 235 months on the conspiracy and drug possession counts,

and sixty months on the firearm count, to run consecutively to the 235-month

sentence, for a total sentence of 295 months. Becerra appeals his conviction,

which we affirm.



                                  BACKGROUND

      Becerra’s arrest and conviction occurred as a result of a multi-year

investigation into a methamphetamine trafficking conviction organization run by

Guadalupe Lopez. 1 In December 2003, federal agents working with a confidential

informant purchased four pounds of methamphetamine from Lopez. Based upon

this seizure and other information gleaned from their investigation, the agents

obtained a wiretap on a cellular phone used by Lopez. Federal authorities began

intercepting calls in M arch 2003.

      On April 5, 2004, federal agents learned from intercepted calls that Lopez

was planning to deliver four pounds of methamphetamine to Becerra. The agents

began conducting surveillance of Becerra. They believed that Lopez would



      1
      W e recently affirmed the conviction of one of Becerra’s co-defendants,
Abraham Amaya. United States v. Amaya, __ Fed. Appx. __ (10th Cir. 2006).

                                         -2-
deliver the methamphetamine using the same black Dodge pickup with Texas

license plates that he had used in the December 2003 sale. Through intercepted

calls and surveillance, the agents found the truck at a Budget Inn in Roswell, New

M exico, on April 6, 2004. At approximately 11:45 a.m., Becerra arrived at the

Budget Inn in a small gray car, which agents learned was registered to Becerra’s

wife, Elizabeth Tarrango.

      Shortly thereafter, the black truck, driven by co-defendant Amaya, and the

small gray car, driven by Becerra, left the Budget Inn and drove to 7018 LaVanne

in Hagerman, New M exico. No one was home at the residence. Amaya and

Becerra got out of their vehicles and looked underneath the back of the truck.

      Approximately an hour later, after a brief intervening trip into Hagerman to

make a telephone call from a pay phone, Amaya drove the truck to Becerra’s

house at 400 Kansas in Hagerman, while Becerra followed in the gray car. They

remained at Becerra’s house for several hours. At approximately 6 p.m., Amaya

drove the black truck back to 7018 LaVanne and parked in the carport, with

Becerra again following in his car. After Becerra and Amaya arrived at the

residence, agents observed Becerra in his gray car and another individual in a

blue Ford Probe conducting “heat runs” to check for the presence of law

enforcement personnel in the area. After observing the activities of the gray and

blue cars, and observing Becerra’s gray car begin driving away, agents stopped

Becerra’s car, fearing that the methamphetamine they suspected was in the black

                                        -3-
truck had been unloaded. Becerra was driving the car w hen it w as stopped.

Agents found a loaded Taurus 9 mm. handgun on the driver’s side of the car.

They arrested Becerra.

      Agents also detained the blue Probe parked near the residence. They found

the driver, Pedro Becerra, who is defendant Becerra’s nephew, in the driver’s seat

with a loaded 9 mm. Astra handgun on his lap. Shortly thereafter, agents

discovered R.J. Becerra lying on top of a nearby RV camper. Agents secured the

residence and obtained a search warrant to search the premises, including any

vehicles. Amaya was arrested near the black truck, in which agents discovered

507.6 grams of methamphetamine in a hidden compartment in the truck’s axle.

      Following Becerra’s arrest, at 7:45 p.m. on that same day (April 6),

Becerra’s niece, Angie B ecerra, called Lopez and left a message asking him to

call her “as soon as possible.” Appellant’s App. at 213. At 7:52 p.m., Lopez,

also known as “Lupe,” had the following conversation with Angie Becerra:

      ANGIE:       Hello.
      LUPE:        Ey, what’s happened?
      ANGIE:       No nothing. Uhm . . .
      LUPE:        Uh?
      ANGIE:       . . . Nothing happened with your people yesterday?
      LUPE:        W hy, what happened?
      ANGIE:       Because my uncle is over here being detained.
      LUPE:        W hat uncle?
      ANG IE:      W ell which? W hat uncle do you hang out with? Oh my
                   God . . . (crying).
      LUPE:        W hen did they detain him?
      A N G IE:    We’re right here now.
      LU PE:       Y ou’re there right now?

                                        -4-
      ANGIE:        Yes.
      LUPE:         W here?
      ANGIE:        They’re here in town.
      LUPE:         They have him detained?
      ANGIE:        Yes.
                                           ...
      LUPE:         Him and who else?
      ANGIE:        Him and another guy.
      LUPE:         W hat or why?
                                           ...
      LUPE:         Ask them w hat’s happened.
      ANGIE:        Oh my God. No, man . . .
      LUPE:         W hat happened?
      ANGIE:        I’ll call you back in a little bit.

Appellee’s App. at 38-40. Other phone calls between Angie Becerra and Lopez

were also recorded.

      Becerra was indicted in a three-count superceding indictment charging him

with conspiracy, in violation of 21 U.S.C. § 846, possession with intent to

distribute 500 grams or more of a substance containing methamphetamine, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and carrying a firearm during

and in relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A )(i). 2 Becerra, Amaya and Huerta-Varela proceeded to trial.

      During the trial, the government sought to introduce recordings and

corresponding transcripts of the telephone conversations between Angie Becerra

and Lopez which occurred shortly after Becerra’s arrest. Becerra objected on

      2
       Becerra’s co-defendants Amaya, Francisco Huerta-Varela, the owner of the
residence at 7018 LaVanne, and Lopez were indicted on the first two counts along
with Becerra. Lopez has not been prosecuted, however, as he has remained a
fugitive living in M exico.

                                            -5-
hearsay and confrontation clause grounds. The district court overruled the

objection in part, allowing some of the recorded conversations to be admitted into

evidence. At the close of the government’s case, all three defendants moved for

judgment of acquittal, which the court denied. The jury then found Becerra guilty

of all three counts w ith w hich he was charged, found Amaya guilty of the two

counts with which he was charged and acquitted Huerta-Varela. This appeal

followed.

      Becerra argues: (1) the district court violated his Sixth Amendment right to

confront the witnesses against him when it admitted evidence of the telephone

calls between Becerra’s niece and Lopez following Becerra’s arrest; (2) there was

insufficient evidence supporting Becerra’s conviction for carrying a firearm

during and in relation to a drug trafficking offense; and (3) the district court erred

in admitting evidence that Becerra’s nephew, Pedro, was found with a weapon in

his car at the time of Becerra’s arrest, even though Pedro was not a co-defendant

or a specific named co-conspirator.



                                    D ISC USSIO N

      I. Telephone conversations

      As indicated, shortly after Becerra’s arrest, Becerra’s niece, Angie,

telephoned Lopez and told him about Becerra’s arrest. The government sought to

introduce evidence of several of these phone calls as “co-conspirator statements”

                                          -6-
which were “not testimonial in nature,” or as evidence of a conspiracy. The

government further argued they were not hearsay, because they were not offered

to prove the truth of w hat was stated. Appellant’s App. at 79, 194-95. Becerra

objected to their introduction, arguing that Becerra’s niece was never charged as a

co-conspirator and the calls were prejudicial more than probative of anything.

The district court admitted evidence of the phone calls because they “are not

offered for their truth.” Id. at 199. 3

       Relying on Crawford v. W ashington, 541 U.S. 36 (2004), Becerra argues

the admission of evidence of these phone calls violated his Sixth Amendment

right to confront the witnesses against him. W e “review[] de novo the legal

question of whether the admission of a . . . statement at trial violates the

accused’s Sixth Amendment confrontation right.” United States v. Summers, 414

F.3d 1287, 1298 (10th Cir. 2005). W e review for an abuse of discretion decisions

to admit evidence which do not implicate the Sixth Amendment. United States v.

Dowlin, 408 F.3d 647, 659 (10th Cir. 2005).

       In Craw ford, the Supreme Court held that the Sixth A mendment’s

confrontation clause requires a trial court to exclude hearsay that is “testimonial”

in nature unless the declarant is unavailable and the defendant has had an

       3
        The court did not allow evidence of the phone calls in on the ground that
they were co-conspirator statements, because the court believed that the
conspiracy had ended when Becerra and his co-defendants were arrested and the
methamphetamine was seized. Additionally, only two calls were actually played
for the jury. There was simply a reference to other calls.

                                          -7-
opportunity earlier to cross-examine the declarant. Id. at 68. W hile the Court in

Craw ford did not precisely define “testimonial,” it indicated “that the term

encompasses formal statements to government officers, including at least

statements during police interrogation and prior testimony.” United States v.

Faulkner, 439 F.3d 1221, 1225 (10th Cir. 2006) (citing Crawford, 541 U.S. at 51-

52, 68). The Court subsequently indicated that a statement given under

interrogation is testimonial if “the circumstances objectively indicate . . . that the

primary purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.” Davis v. W ashington, 126 S.

Ct. 2266, 2273-74 (2006); see also Summers, 414 F.3d at 1302 (“[A] statement is

testimonial if a reasonable person in the position of the declarant would

objectively foresee that his statement might be used in the investigation or

prosecution of a crime.”). Further, “the [Confrontation] Clause restricts only

statements meeting the traditional definition of hearsay” which is “‘a statement,

other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.’” Faulkner, 439 F.3d

at 1226 (quoting Fed. R. Evid. 801(c)).

      The confrontation clause did not prohibit the admission of the phone calls

between Angie Becerra and Lopez because those calls were not testimonial

hearsay. They were not offered to prove the truth of the matters asserted in the

calls, nor were they testimonial in nature under D avis or Craw ford. They were

                                          -8-
purely private informal conversations between two individuals, and they were

introduced at Becerra’s trial simply to demonstrate a connection between Lopez

and the B ecerra family. See Faulkner, 439 F.3d at 1226-27. The district court

committed no error in admitting evidence of the calls.



      II. Sufficiency of evidence of carrying a firearm

      Becerra was convicted of carrying a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), based upon the fact

that, when he was arrested driving his wife’s gray car, there was a gun on the

driver’s side of the car. He argues the evidence was insufficient to support his

§ 924(c)(1)(A)(i) conviction.

      “W e review claims of insufficient evidence de novo” asking “only whether

taking the evidence— both direct and circumstantial, together w ith the reasonable

inferences to be drawn therefrom— in light most favorable to the government, a

reasonable jury could find the defendant guilty beyond a reasonable doubt.”

United States v. Banks, 451 F.3d 721, 725 (10th Cir. 2006) (further quotation

omitted). “W e do not assess the credibility of witnesses or weigh conflicting

evidence because these tasks are exclusively those of the jury.” Id. at 725-26.

W e accordingly may reverse “only if no rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. at 726 (further

quotation omitted).

                                        -9-
       Section 924(c)(1)(A )(i) provides that “any person who, during and in

relation to any . . . drug trafficking crime . . . uses or carries a firearm” is subject

to a mandatory five-year prison term. The “carry” part of § 924(c)(1)(A) “has

two elements: (1) possession of the weapon through the exercise of dominion or

control; and (2) transportation of the weapon.” United States v. Lindsey, 389

F.3d 1334, 1338 (10th Cir. 2004). In M uscarello v. United States, 524 U.S. 125,

126-27 (1998), the Supreme Court held it “applies to a person who knowingly

possesses and conveys firearms in a vehicle, including in the locked glove

com partment or trunk of a car, w hich the person accompanies.” Further, “we

have determined that a firearm is carried during and in relation to the underlying

crime when the defendant avails himself of the weapon and the weapon plays an

integral role in the underlying offense.” Banks, 451 F.3d at 726 (further

quotation and internal alterations omitted). The “during and in relation to”

requirement is satisfied when the government proves “a direct nexus between the

defendant’s carrying of a firearm and the underlying drug crime.” Id. (further

quotation omitted). This nexus requirement is established by evidence

demonstrating “that the defendant intended the firearm to be available for use in

the offense.” Id.

       The evidence in this case clearly meets the statutory definition of carrying a

firearm during and in relation to a drug trafficking crime. The gun was found on

the driver’s (Becerra’s) side of the car when he was arrested after being observed

                                           -10-
driving in tandem with the vehicle containing the methamphetamine, and after his

vehicle was observed conducting “heat runs.” W hile he argues there was no

evidence he ever used the firearm, that is irrelevant because he was convicted of

carrying the firearm, not using it. W e have frequently commented on the

extremely common association between firearms and drug operations. United

States v. M endoza-Salgado, 964 F.2d 993, 1008 (10th Cir. 1992) (“The courts

generally view items such as firearms . . . as ‘tools of the trade’ for distributing

drugs.”). Furthermore, as we discuss more fully below , evidence that Pedro

Becerra was also carrying a readily accessible loaded firearm suggests that both

men were using those weapons to facilitate the methamphetamine conspiracy and

protect their load of contraband. A reasonable jury could easily find Becerra

guilty beyond a reasonable doubt of carrying the firearm in connection with the

methamphetamine conspiracy.



      III. Admission of evidence of firearm in Pedro Becerra’s vehicle

      As indicated above, Becerra’s nephew, Pedro Becerra, was also stopped in

his vehicle at the same time Becerra was arrested. A firearm was taken from

Pedro Becerra’s car at that time. The government sought to have the firearm

seized from Pedro introduced into evidence as part of its proof of Becerra’s guilt

on count three— carrying a firearm during and in relation to the methamphetamine

conspiracy. The government offered the firearm “to show that other participants

                                          -11-
in the conspiracy also had firearms readily accessible” and to show that Becerra’s

carrying a firearm in his vehicle was “not just by accident or coincidence.”

Appellee’s B r. at 23. The district court allowed it, “on the notion that it is

relevant on the question . . . or . . . inference that M r. Pedro Becerra or Alberto

Becerra might simply have been carrying a gun because that was his practice.”

Appellant’s App. at 206.

      Becerra argues that the firearm was inadmissible because Pedro Becerra

was not a co-defendant or co-conspirator. The government responds that, while

Pedro Becerra was not a co-defendant of Becerra, he was clearly a co-conspirator.

W e review the decision to admit the firearm for an abuse of discretion. Dowlin,

408 F.3d at 659.

      W e agree with the government that the district court did not abuse its

discretion in admitting evidence of the firearm seized from Pedro Becerra. The

indictment charged that there were other conspirators, both known and unknown.

There was ample evidence demonstrating Pedro Becerra’s involvement in the

conspiracy— conducting heat runs after the methamphetamine was delivered and

meeting with Becerra shortly before the contraband was seized. Further, Pedro’s

possession of a firearm in his vehicle suggests that both his and Becerra’s

possession of a firearm was part and parcel of the conspiracy. Both men were

armed to protect the contraband, a familiar scenario in drug conspiracies. United




                                          -12-
States v. Sakyi, 160 F.3d 164, 169 (10th Cir. 1998) (“[A]s w e have previously

noted, guns often accompany drugs.”).



                                 C ON CLU SIO N

      For the foregoing reasons, we AFFIRM Becerra’s conviction.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                        -13-
