                           NOT FOR PUBLICATION                            FILED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.
                                          1
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,


                                           2
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


      1
       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.
                                            3
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




                                           4
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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