UNITED STATES of America, Appellee, v. Thomas Otis EATON, Defendant, Appellant, 890 F.2d 511

BREYER, Circuit Judge. Thomas Eaton appeals from his convictions for conspiring to possess with intent to distribute, and possessing with intent to distribute, more than 500 grams of cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 18 U.S.C. § 2, and for using or carrying a firearm during, and in relation to, a drug trafficking crime, 18 U.S.C. § 924(c)(1). See United States v. Eaton, 680 F.Supp. 51 (D.Me.1988) (post-trial opinion); United States v. Eaton, 676 F.Supp. 362 (D.Me.1988) (opinion on motions to suppress).

The evidence at trial showed that in September 1987 Eaton agreed to supply a friend, Tod Alexander, with a kilogram of cocaine, which Alexander would sell to “Jim” (who, unbeknownst to them, was an undercover government informant) for $45,000. After several conversations (recorded by government agents) and various false starts, on the evening of September 15, 1987 Alexander and Jim drove Jim's car while Eaton drove his truck to Roller World near Tobsham, Maine, where they had agreed that the sale would take place.

Alexander walked about 200 yards down the road to Eaton’s truck and returned to Jim’s car with a sample of the cocaine. At that point, government agents, who had the area under surveillance, arrested Alexander. Government agents then went to Eaton’s truck, ordered him out, arrested him, and removed a gun from under the front seat of the truck. Later, the agents found a kilogram of cocaine by a tree at the place where, earlier, a Corvette had been sitting, a Corvette next to which Eaton had parked his truck. On this appeal, Eaton makes three legal arguments, none of which we find convincing.

First, Eaton claims that the evidence is not sufficient to support his firearms conviction, a conviction for violating a statute that says Whoever, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, shall [receive an additional punishment of] imprisonment for five years.... 18 U.S.C. § 924(c)(1). Eaton concedes, as he must, that the presence of the gun, under the front seat of the truck he was driving, is sufficient to show that he “carrie[d] a firearm.” United States v.

Feliz-Cordero, 859 F.2d 250, 253 (2d Cir.1988) (weapon must be within reach to be “carried”); United States v. Brockington, 849 F.2d 872, 874 (4th Cir.1988) (loaded weapon under car seat is “carried” under § 924(c)). Rather, he argues that the undisputed evidence that he and his father (who is a gun collector) often carried guns when they drove means that the government failed to show that the “carr[ying]” was “in relation to” the drug crime. In our view, however, as in the view of the district court, the evidence (

a) that Eaton told Alexander, the day before the exchange, that Eaton did not know whom he was dealing with, that he did not want to “take a chance on his life” or “risk ... one kilo of cocaine being stolen,” and that he would therefore carry a gun for “protection,” (

b) that the gun was easily within reach under the seat of the truck, (

c) that it was loaded, and (

d) that the safety catch was off permitting the gun to be fired instantly, taken together, are more than sufficient to show that the “carrying]” on September 15 was “in relation to” the drug crime. At the least, these facts show that the presence of the gun served to “embolden” Eaton by giving him “the opportunity or ability to display or discharge the weapon to protect himself or intimidate others,” United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985), cert. denied, 484 U.S. 867, 108 S.Ct. 192, 98 L.Ed.2d 144 (1987), which is enough to support a conviction.

Similarly, the evidence was sufficient to show either that Eaton “intended to have [the gun] available for possible use during the [drug] transaction,” or that Eaton placed the gun where it was “strategically located so as to be quickly and easily available for use during such a transaction.” Feliz-Cordero, 859 F.2d at 253. Either of those facts is sufficient to support a conviction under § 924(c). Id.

See also Brockington, 849 F.2d at 874 (loaded weapon under car seat and drugs on defendant’s person suffice for conviction under § 924(c)); Stewart, 779 F.2d at 540 (carrying of weapon during drug crime can be sufficient to show violation of the statute “whether or not ... display or discharge in fact occurred”); United States v.

Castro, 776 F.2d 1118, 1125 (3rd Cir.1985) (gun beneath car seat and prior statements of intent suffice to prove intenmo use gun to protect contraband), cert. denied, 475 U.S. 1029, 106 S.Ct. 1233, 89 L.Ed.2d 342 (1986); S.Rep No. 225, 98th Cong., 2d Sess. 1, 314 n. 10 (1983) reprinted in 1984 U.S. Code Cong. & Admin.News 3182,3492 n. 10. (Where presence of weapon payed no

part in crime the statute is not violated, but where the person carrying the gun intended to use it if a contingency arose, the statute is violated). Second, Eaton argues that the district court should have suppressed a statement that he made in response to a question asked by arresting officer Cuniffe before Eaton received a Miranda warning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The question (in Cuniffe’s words) was “whether he had a weapon,” to which Eaton replied “that he had a weapon and that it was under the seat in the truck.” We need not decide whether the court should have suppressed the statement, for the court admitted the gun itself into evidence without any objection by Eaton. Eaton does not claim that the seizure of the gun was the “fruit of the poisonous tree,” Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963), i.e., that the seizure stemmed from his statement.

Nor, given the virtual inevitability that the police would lawfully search the truck, do we see how such a claim could have prevailed had he made it. See Nix v. Williams, 467 U.S. 431, 448, 104 S.Ct. 2501, 2511, 81 L.Ed.2d 377 (1984); United States v. Bienvenue, 632 F.2d 910, 914 (1st Cir.1980). Given the admission in evidence of the gun itself, the admission of the statement Eaton made in answer to the question, that he had a gun under the seat, if error, is in our view harmless, and it is harmless beyond any reasonable doubt. See Fed.R.Crim.P. 52(a); Chapman v.

California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Crocker, 788 F.2d 802, 807 (1st Cir.1986); Bienvenue, 632 F.2d at 914-15. Because we find no reversible error in the admission of the statement, we need not address Eaton’s failure to object to its admission at trial. Third, Eaton objects to .'the admission of certain answers he gave to questions after he received Miranda warnings. He agrees that one who receives Miranda warnings may waive his right to remain silent and his right to counsel and respond to questions. Colorado v.

Connelly, 479 U.S. 157, 167-71, 107 S.Ct. 515, 522-24, 93 L.Ed.2d 473 (1986); Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410 (1986); North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). He also agrees that a defendant may waive Miranda rights selectively, answering some questions but not others. Bruni v. Lewis, 847 F.2d 561, 563-64 (9th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 403, 102 L.Ed.2d 391 (1988) and — U.S. -, 109 S.Ct. 1319, 103 L.Ed.2d 587 (1989); United States v. Thierman, 678 F.2d 1331, 1335 (9th Cir.1982).

He concedes that, in essence, when Officer Cuniffe “asked him whether he would be willing to waive his rights and answer questions,” Eaton (in Officer Cuniffe’s words): said that it would depend on the questions and he would answer some questions if he thought it appropriate, basically- (Tr. of suppression hearing, p. 59.) But, Eaton says that this response and his subsequent answers to questions did not amount to a “waiver,” because his answer to Officer Cuniffe was “equivocal.” We assume for present purposes that, when a defendant’s response is equivocal, in the sense that it indicates to the questioning officer that the defendant may want an attorney, the officer should not continue evidentiary interrogation.

See United States v. Fouche, 833 F.2d 1284, 1287 (9th Cir.1987) (statement that defendant “might want to talk to a lawyer” is an equivocal request for counsel, barring further interrogation except to clarify the request), cert. denied, — U.S. -, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988); United States v.

Porter, 776 F.2d 370 (1st Cir.1985) (order of court) (“where the accused’s words and actions are ambiguous as to whether he wishes a lawyer ... the questioning officers must find out more specifically whether he wants a lawyer before they can proceed further with other questioning”) (denying petition for rehearing and suggestion for rehearing en banc of 764 F.2d 1 (1st Cir.1985)); Thompson v.

Wainwright, 601 F.2d 768, 771-72 (5th Cir.1979) (defendant asserted right to an attorney when, after signing Miranda waiver, he said he wanted to talk to attorney, and police should then only have questioned defendant to clarify the equivocal request); Nash v. Estelle, 597 F.2d 513 (5th Cir.) (en banc) (upon equivocal request for counsel, police must cease interrogation except to clarify request), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62 L.Ed.2d 409 (1979). But cf. Connecticut v.

Barrett, 479 U.S. 523, 529-30 & n. 3, 107 S.Ct. 828, 832-33 & n. 3, 93 L.Ed.2d 920 (1987) (declining to address question of equivocal requests for counsel; finding defendant’s agreement to answer oral questions, but not to give any written statement without counsel present, to be unequivocal waiver of his right to remain silent in counsel’s absence); Smith v.

Illinois, 469 U.S. 91, 95-96, 105 S.Ct. 490, 492-93, 83 L.Ed.2d 488 (1984) (per curiam) (declining to address question of equivocal responses; finding defendant’s request for counsel unequivocal when, after being told that he had a right to have counsel present, he replied, “Uh, yeah. I’d like to do that.”); United States v. Rondon, 614 F.Supp. 667, 669-70 (S.D.N.Y.1985) (finding assertion of right to counsel implicit in fact that defendant said he would “talk to Legal Aid” about treatment by police); United States v.

Olsen, 609 F.Supp. 1154, 1158-60 (D.Me.1985) (same where defendant asserted right to an attorney when evidence showed that “at some point” defendant “discussed with [the questioning postal inspector] his need for an attorney”). In the present case, however, the defendant’s statement is not an assertion of his right to an attorney, nor is it an “equivocal” assertion. There is nothing about the statement (nor anything we can find elsewhere in the record) that suggests he wanted an attorney. Rather, he simply says that whether he will “waive his rights and answer” depends on the questions asked.

The district court found a knowing, voluntary “waiver.” The law permits a “selective” waiver.

See Barrett, 479 U.S. at 529-30, 107 S.Ct. at 832-33 (finding defendant’s agreement to give oral, but not written, statements was unequivocal waiver of right to counsel during oral interrogation); Bruni, 847 F.2d at 563-64 (defendant waived right to counsel during interrogation when, even though defendant had just asked for an attorney, he then said “Well, ask your questions and I will answer those I see fit.”); Thierman, 678 F.2d at 1335 (defendant waived rights when he told police they could ask questions and he would respond to those he wanted to answer).

At no point during the brief questioning did Eaton equivocate or hesitate in a way that would indicate his interest in advice of counsel. Consequently, we cannot find support in the law for Eaton’s claim. For these reasons the judgment of the district court is Affirmed.