At least two of these were loaded, and ammunition for other guns was also found there. We have never before considered the application of § 924(c)(1) to facts similar to those presented here. Employing the reasoning of the Eighth Circuit in United States v. Matra, 841 F.2d 837 (8th Cir. 1988), however, we think a jury could reasonably conclude that Robinson's possession of the firearms was an integral part of the felony of possessing cocaine with the intent to distribute it. In Matra, police had found loaded weapons, ammunition, a large quantity of cocaine and cash, and drug paraphernalia in a house used by Matra and others.
Possession of a controlled substance with intent to distribute that substance is a valid predicate offense for section 924(c)(1). See United States v. Nash, 876 F.2d 1359, 1361-62 (7th Cir. 1989) (marijuana); United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir. 1988) (cocaine); United States v. Matra, 841 F.2d 837, 843 (8th Cir. 1988) (cocaine); United States v. James, 834 F.2d 92, 92-93 (4th Cir. 1987) (cocaine). We agree with the reasoning of the Eighth Circuit that: "Giving effect to the plain language of this statute . . . violations `involving' the distribution, manufacture, or importation of controlled substances must be read as including more than the crime of distribution, manufacture, or importation."
(Emphasis added). However, the argument that the definition only mentions "distribution," "manufacture," and "importation," and that "possession" offenses are thus excluded, has been universally rejected by the courts which have considered it. United States v. Torres, 862 F.2d 1025, 1030 (3rd Cir. 1988); United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir. 1988); United States v. Matra, 841 F.2d 837, 843 (8th Cir. 1988); United States v. James, 834 F.2d 92, 93 (4th Cir. 1987). We join with those courts which have concluded that "possession with intent to distribute" is a "drug trafficking crime" within the meaning of section 924(c)(2).
This court has upheld numerous § 924(c) convictions based on evidence that a gun was used during and in relation to "possession" of a controlled substance. See United States v. Williams, 982 F.2d 1209 (8th Cir. 1992) (loaded handgun found in defendant's automobile, readily accessible, and in close proximity to a large quantity of cocaine base sufficient to support a § 924(c) conviction); United States v. Curry, 911 F.2d 72 (8th Cir. 1990) (reasonable for jury to conclude that loaded handgun found in another room was readily available for protection of cash and drugs stored in defendant's townhouse), cert. denied, 498 U.S. 1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991); Young-Bey, 893 F.2d 178 (permissible for jury to infer that guns found near drugs and drug paraphernalia were used during and in relation to a drug trafficking crime for purposes of a § 924(c) conviction); United States v. Matra, 841 F.2d 837 (8th Cir. 1988) (defendant "used" a firearm for § 924(c) purposes when the gun was readily available and increased the likelihood his criminal venture would succeed); United States v. LaGuardia, 774 F.2d 317 (8th Cir. 1985) (evidence that weapons were used to protect cash and cocaine supply was sufficient to support a § 924(c) conviction). See also, Bruce, 939 F.2d at 1056 (to obtain a conviction under § 924(c), "the evidence must support the inference that the gun was used to protect the defendant's unlawful possession of drugs that he intended to distribute in the future.").
We disagree. In United States v. Matra, 841 F.2d 837 (8th Cir. 1988), we upheld a section 924(c) conviction on similar facts. There the defendant was convicted of possession with intent to distribute cocaine and of the use of a machine gun in relation to that crime.
We must uphold the verdicts if a reasonable jury could have found guilt beyond a reasonable doubt. United States v. Patterson, 886 F.2d 217, 219 (8th Cir. 1989) (per curiam); United States v. Matra, 841 F.2d 837, 840 (8th Cir. 1988). The evidence need not exclude every reasonable hypothesis other than guilt.
We think this evidence, together with the other evidence we have discussed, is more than the slight evidence needed to connect Serena Nunn to the conspiracy. To support her conviction of possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1), the government must prove that Nunn knowingly possessed cocaine with the intent to distribute it. United States v. Matra, 841 F.2d 837, 840 (8th Cir. 1988). The cocaine and cocaine base charged in count 12 was seized during the execution of a warrant on February 1, 1989, at the house where Serena lived with her mother.
In United States v. McKinnell, 888 F.2d 669, 675 (10th Cir. 1989), we agreed with other courts that the "uses" element of § 924(c)(1) is satisfied where a defendant has "ready access" to a firearm and it "was an integral part of his criminal undertaking and its availability increased the likelihood that the criminal undertaking would succeed." United States v. Matra, 841 F.2d 837, 843 (8th Cir. 1988). See also United States v. Meggett, 875 F.2d 24, 29 (2d Cir. 1989) (five firearms secreted about a defendant's apartment).
The instruction required the jury to find, at the very least, that the gun was available to the defendant, and that its availability facilitated the carrying out of the drug-trafficking crime. This language is fully supported by United States v. Matra, 841 F.2d 837 (8th Cir. 1988), as the District Court pointed out. Matra holds that if a gun is available to the defendant, and if the gun was an integral part of the crime and increased the likelihood of its success, then it was used during and in relation to the crime.
B. To convict Yerks of violating § 841(a)(1), the government had to prove that he knowingly possessed cocaine and had the intent to distribute it. United States v. Matra, 841 F.2d 837, 840 (8th Cir. 1988). Yerks contends that the district court should have granted his motion for judgment of acquittal because the evidence was insufficient to establish either of these elements.