                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3397
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the Northern
Fabian A. Espinosa,                      * District of Iowa.
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: June 11, 2002

                                   Filed: August 29, 2002
                                    ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and MURPHY, Circuit Judges.
                          ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Fabian Espinosa appeals his conviction in the district court1 for aiding and
abetting the use, carrying, or possession of a firearm in relation to drug trafficking.
See 18 U.S.C. § 2(a) and § 924(c)(1). We affirm.




      1
      The Honorable Donald E. O'Brien, United States District Judge for the
Northern District of Iowa.
                                          I.
       Sioux City police officers stopped a vehicle that Mr. Espinosa was driving for
traffic violations and smelled marijuana inside. While Mr. Espinosa and his
passenger, Richard Lofton, were detained, an officer observed a handgun on the floor
of the vehicle at Mr. Lofton's feet. Mr. Lofton told police that the gun belonged to
him and that he had it because he and Mr. Espinosa were traveling. The officers then
searched the vehicle and found methamphetamine and marijuana. Both men were
arrested and subsequently indicted for possession of methamphetamine with intent
to distribute it and for possession of marijuana with intent to distribute it. See 21
U.S.C. §§ 841(a)(1). They were also indicted in a single count for using or carrying
a firearm during and in relation to a drug trafficking crime, or possessing a firearm
in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1), or aiding and
abetting such offenses, see 18 U.S.C. § 2(a). Mr. Espinosa pleaded guilty to the drug
offenses. He pleaded not guilty to the firearms charge, but was convicted by a jury
on that count as an aider and abettor. Mr. Lofton pleaded not guilty to all three
charges, but a jury convicted him on all counts.

       Mr. Espinosa appeals from the denial of his motion for judgment of acquittal
and, in the an alternative, for a new trial. A motion for judgment of acquittal should
be granted only "where the evidence, viewed in the light most favorable to the
government, is such that a reasonably minded jury must have a reasonable doubt as
to the existence of any essential elements of the crime charged." United States v.
Mundt, 846 F.2d 1157, 1158 (8th Cir. 1988). The standard for granting a motion for
new trial is somewhat less exacting because the evidence need not be viewed in the
light most favorable to the government; but a defendant is nevertheless not entitled
to a new trial unless " 'the evidence weighs heavily enough against the verdict that a
miscarriage of justice may have occurred.' " United States v. Lacey, 219 F.3d 779,
783-84 (8th Cir. 2000) (quoting United States v. Lanier, 838 F.2d 281, 284-85 (8th
Cir. 1988) (per curiam)). We will not reverse a district court's order denying a motion



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for a new trial, moreover, unless the court clearly abused its discretion. See United
States v. Worley, 88 F.3d 644, 646 (8th Cir. 1996).

       To sustain the conviction, we must find sufficient evidence on two points: first,
Mr. Espinosa must have aided and abetted the use, carrying, or possession of a
firearm; and, second, that firearm must have been used or carried "during and in
relation to" a drug trafficking crime or possessed "in furtherance of" a drug
trafficking crime. See 18 U.S.C. §§ 2(a), 924(c)(1). Mr. Espinosa argues that neither
he nor Mr. Lofton "use[d]" a firearm, as that term is employed in § 924(c)(1), and
therefore he could not have aided and abetted the "use" of a firearm.

       Mr. Espinosa directs our attention to Bailey v. United States, 516 U.S. 137,
144, 148 (1995), in which the Supreme Court held that "use" of a firearm requires
more than passive possession of one; there must instead be "active employment" of
the weapon as, for instance, by "brandishing, displaying, bartering, striking with, and,
most obviously, firing or attempting to fire" it. We agree with Mr. Espinosa that there
is insufficient evidence in the record that he or Mr. Lofton "used" the weapon in this
case because there was no active employment of it. But Mr. Espinosa was also
charged with aiding and abetting Mr. Lofton in carrying or possessing a firearm, and
the jury returned a general verdict convicting him of aiding and abetting the use,
carrying, or possession of a firearm.

       "When the district court submits to the jury two or more grounds for
conviction, for one of which there was insufficient evidence, and it is impossible to
tell on what grounds the jury decided the defendant's guilt, we cannot reverse the
jury's general verdict of guilty." United States v. Dreamer, 88 F.3d 655, 658 (8th Cir.
1996) (citing Griffin v. United States, 502 U.S. 46, 56-60 (1991)) (additional citation
omitted). "As long as there is sufficient evidence to support at least one of the
grounds for conviction, we must affirm the jury's general verdict." Dreamer, 88 F.3d
at 658.

                                          -3-
       In this case, there is more than sufficient evidence to allow a reasonable jury
to conclude that Mr. Espinosa aided and abetted Mr. Lofton in carrying a firearm.
The fact that the firearm was at Mr. Lofton's feet is evidence that he possessed it, and
the fact that it was in plain view raises a clear inference that Mr. Espinosa knew about
it. Mr. Espinosa was driving the car, so the jury could have reasonably concluded
that he was deliberately helping Mr. Lofton transport (i.e., carry) the weapon to their
destination. Indeed, the circumstances are rife with the implication that the
defendants were engaged in an arrangement under which one of them would "ride
shotgun", see, e.g., United States v. Muehlbauer, 892 F.2d 664, 668-669, (7th Cir.
1990), that is, would have the weapon in his possession for their mutual protection,
while the other did the driving. In such circumstances, a jury could properly conclude
that the driver was aiding and abetting the passenger in carrying the gun from one
place to another.

       The remaining issue, namely, whether the firearm was carried during and in
relation to a drug trafficking crime, is even more straightforward. We have long
recognized the role of firearms in protecting drugs or drug proceeds. See, e.g., United
States v. Edwards, 994 F.2d 417, 421 (8th Cir. 1993), cert. denied, 510 U.S. 1048
(1994). Based on the evidence before it, the jury was justified in concluding that the
two defendants were traveling for the purpose of distributing drugs. The jury could
thus reasonably infer that Mr. Espinosa and Mr. Lofton had the firearm with them to
protect their drugs and any cash that they might receive from their sale.

      For these reasons, we affirm the district court's order denying Mr. Espinosa's
motion for acquittal. We likewise see no reason to believe that the verdict was
against the weight of the evidence, and so we affirm the order of the district court
denying the motion for a new trial as well.




                                          -4-
      We note, however, that the order of judgment that the district court entered
incorrectly states that Mr. Espinosa was convicted of "Possession and Aiding and
Abetting Possession of Firearm During a Drug Trafficking." First of all, the verdict
form indicates that Mr. Lofton was convicted only as an aider and abettor. The
general nature of the verdict, moreover, should be reflected in the order of judgment
because the jury did not specify which of the acts charged in the indictment (whether
using, carrying, or possessing a firearm) it was convicting Mr. Espinosa for.
Accordingly, we remand the case to the district court for correction of its judgment.

                                           II.
        Mr. Espinosa also maintains that he received ineffective assistance of counsel
at trial. Such claims generally "are not cognizable on direct appeal." United States v.
Sanchez, 927 F.2d 376, 378 (8th Cir. 1991) (per curiam). "The rare exception to this
rule occurs when the district court has developed a record on the ineffectiveness
issue." United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994). Because there
is no such record before us, we will not consider this issue.

                                             III.
       Finally, Mr. Espinosa argues that the district court erred in denying his motion
to continue his trial, a motion filed less than a week before trial was to begin. We can
reverse a trial court's refusal to grant a continuance only if that court abused its
discretion and the moving party was prejudiced by the denial. United States v. Scott,
243 F.3d 1103, 1106 (8th Cir. 2001). In this case, we find neither an abuse of
discretion nor prejudice. Mr. Espinosa had already received a continuance on
August 6, 2000, so that he could engage in plea negotiations with the government.
At that time, his trial date was set for December 4, 2000. On November 8, 2000,
Mr. Espinosa requested a hearing to change his plea from not guilty to guilty, and the
court scheduled that hearing for November 29, 2000. On the date of that hearing,
Mr. Espinosa changed his mind on the firearms charge and pleaded not guilty. The
district court's decision to proceed with the originally scheduled trial was, under those

                                          -5-
circumstances, altogether reasonable. As far as prejudice is concerned, Mr. Espinosa
notes only that no evidence was presented on his behalf; he does not assert that he has
any evidence that likely would have changed the outcome of his trial. Thus he has
not, as a matter of law, demonstrated any prejudice. Cf. Stewart v. Nix, 31 F.3d 741,
744 (8th Cir. 1994).

                                       IV.
      The judgment of the district court is affirmed, but the order of judgment is
reversed in part and remanded for corrections in accordance with this opinion.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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