In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2532

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARK PIKE,

Defendant-Appellant.


Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 98 CR 48--Robert L. Miller, Jr., Judge.


Argued December 8, 1999--Decided May 1, 2000



  Before HARLINGTON WOOD, JR., COFFEY and FLAUM, Circuit
Judges.

  COFFEY, Circuit Judge. On September 11, 1998, a
federal grand jury sitting in the Northern
District of Indiana returned a six count
indictment against Mark Ira Danewood Pike./1 On
October 28, 1998, the defendant pled guilty to
counts one, five, and six of the indictment (the
government moved to dismiss counts two and four)
but prior to sentencing, and after he obtained
new counsel, Pike filed a motion to vacate his
plea of guilty pursuant to Fed. R. Crim. P.
32(e). Pike contended that he had a valid defense
to the section 924(c)(1)(A) charge, contained in
count six, in that he did not carry the firearm
"in relation to" his drug trafficking crime. Pike
later filed another motion, in an attempt to
vacate his guilty plea, contending that his plea
was not knowingly and voluntarily made because of
his original trial counsel’s failure to explain
the phrase "in relation to" contained in section
924(c)(1)(A). The district court denied Pike’s
motions, and sentenced him to 87 months’
imprisonment, three years’ supervised release,
and a $300 special assessment. We affirm.

I.   BACKGROUND

  On five occasions in the month of July, 1998,
Pike used his Chevrolet Camaro to deliver and
sell marijuana and LSD to an undercover police
officer of the Multi-County Drug Task Force in
Plymouth, Indiana./2 On July 22, 1998,
approximately five minutes after Pike made his
last drug sale to an undercover police officer,
officers from the Plymouth, Indiana, Police
Department arrested Pike and conducted a search
of the vehicle pursuant to the arrest, recovering
a .410 caliber shotgun from the hatchback of his
automobile./3

  As stated before, Pike initially pled guilty,
but before sentencing, on January 5, 1999, Pike’s
original counsel, Timothy P. McLaughlin, filed a
motion to withdraw because Pike informed him that
he wished to retain other counsel. The district
court granted the motion. On January 8, 1999,
Pike’s new counsel, John Theis, filed a Motion to
Vacate Plea of Guilty, arguing that Pike could
not be guilty of the section 924(c)(1)(A) charge
to which he had pled guilty because although Pike
carried his shotgun "during" a drug trafficking
crime, he did not carry it "in relation to" that
crime. On February 1, 1999, Pike filed an amended
motion to vacate his plea of guilty, arguing that
his previous counsel, McLaughlin, had not
provided him with the effective assistance of
counsel by allegedly failing to adequately
explain the "in relation to" element of section
924(c)(1)(A)./4

  The district court held a two-day hearing on
the Rule 32 motion. At the hearing, Pike claimed
that he purchased the shotgun for hunting
purposes only and that the gun was normally kept
at his grandmother’s house and not in his car.
Pike, in an obvious fabrication, further
testified that a friend brought the gun to him
and placed it in the trunk of the Camaro, where
it was found by police officers, in between the
time of the first and second drug transactions on
July 22nd, the date of his arrest. Pike explained
that he only told the officers on the scene that
the shotgun was always kept in his car because he
did not want his grandmother to lose her home; a
concern that has no basis in the law. Finally,
Pike claimed that he would not have pled guilty
if McLaughlin had adequately explained the "in
relation to" element of section 924(c).

  The government countered Pike’s arguments at the
Rule 32 hearing by pointing out that at no other
time during the investigation of this case had
Pike claimed to have used the shotgun for hunting
purposes. The government also pointed out that
Pike purchased the shotgun and ammunition during
the time frame he was engaged in the sale and
distribution of narcotics, and had informed
police officers on the scene at the time of his
arrest that he kept the weapon in his car at all
times during the drug transactions with the
undercover police officer. Finally, the
government argued that Pike, on July 22, 1998,
invited the undercover police officer into his
car to complete the narcotics transaction, and
even though the officer did not observe the
weapon at that time, the gun was found minutes
later when police officers arrested Pike and
searched the hatchback of his Camaro.

  At the hearing, attorney McLaughlin did admit
that he never discussed the "in relation to"
element with Pike "in those terms . . . not with
the words ’in relation to.’" But, contrary to
Pike’s assertion that his original attorney
failed to advise him of the meaning of the phrase
"in relation to", McLaughlin stated that he did
advise Pike that there was a relationship between
Pike’s firearm and his drug trafficking because
Pike carried the shotgun in his car during a drug
transaction: "because the weapon--the firearm was
found in the car at the time of his arrest, that
he was not going to be able to beat this case."
Moreover, Pike admitted that McLaughlin discussed
the "in relation to" element, although not in
those exact terms, with him "two or three times."

  In denying Pike’s amended motion to withdraw
his guilty plea, the judge stated that:

Mr. Pike was his only witness, and he was not a
credible witness in any respect. He contradicted
countless of his own prior statements--statements
reportedly (and admittedly) made to law
enforcement agents, statements made in writing to
his lawyer, statements this court finds to have
been made verbally to his lawyer, and statements
(oral and written) made to the court during the
guilty plea process. His smirking while
testifying further detracted from his
credibility. Whatever support Mr. Pike is to find
for his motion [to withdraw his guilty plea]
then, he must find outside his own testimony."

  The judge went on to conclude that:

[t]he issue before the court, of course, is not
whether Mr. Pike might have been convicted at
trial, but whether fair and just reason exists to
withdraw his plea. Mr. McLaughlin advised that
Mr. Pike--having been arrested minutes later with
a gun in the car in which the drugs were
distributed--probably would not be able to beat
the gun charge. Why should reliance on sound
legal advice warrant the plea’s withdrawal? Mr.
Pike points to Mr. McLaughlin’s concession that
he never explained the "in relation to" element
to Mr. Pike. . . .

* * *

  [But] Mr. Pike plainly understood that "in
relation to" was an element, and recognized that
it might present an impediment to conviction:
notwithstanding having carried the shotgun during
the transaction, he told Mr. McLaughlin that he
did not believe that he was guilty--a belief that
could find logical basis only in this allegedly
inadequate explained element. Perhaps Mr.
McLaughlin might have explained the law more
fully to Mr. Pike, rather than simply stating his
ultimate opinion, but doing so would have
amounted to explaining the absence of a defense
not the availability of a defense.

(Emphasis added). Based on these findings, the
trial judge concluded that Pike failed to
convince the court that a fair and just reason
existed for withdrawing his guilty plea. Pike
appeals.

II.    ISSUES

  On appeal, Pike argues that the district court
erred in denying his motion to vacate his guilty
plea because he presented two "fair and just"
reasons: 1) he had a valid defense to the section
924(c)(1)(A) charge; and 2) his plea was not
"knowing and voluntary" because it was the
product of his lawyer’s ineffective assistance.

III.    ANALYSIS

A.    Standard of Review

  It is axiomatic that defendants do not have an
absolute right to withdraw their guilty pleas.
See United States v. Schilling, 

, 398
(7th Cir. 1998). Of course prior to sentencing,
a judge may permit an individual to withdraw his
plea, upon the filing of the proper motion, if
the defendant presents a "fair and just" reason
for doing so to the court, see Fed. R. Crim. P.
32(e); United States v. Abdul, 

, 329
(7th Cir. 1996), but the burden of justifying
relief always rests with the defendant. See
United States v. Coonce, 

, 1275 (7th
Cir. 1992). Therefore, we review a district
court’s denial of a defendant’s motion to
withdraw a guilty plea for abuse of discretion.
See United States v. Salgado-Ocampo, 

, 325 (7th Cir. 1998). "In reviewing the
district court’s decision, findings regarding
whether the defendant has demonstrated a ’fair
and just reason’ will be upheld unless they are
clearly erroneous." United States v. LeDonne, 

, 1423 (7th Cir. 1994). "A factual
determination is clearly erroneous only if, after
considering all of the evidence, we are left with
the definite and firm conviction that a mistake
has been committed." United States v. Messino, 

, 1247 (7th Cir. 1995).
B.   A Legal Defense

  Initially, Pike argues that the district court
committed error in not allowing him to withdraw
his guilty plea and go to trial because he had a
"viable, triable, and valid defense" to the
section 924(c)(1)(A) charge. In so arguing, Pike
contends that he did not carry his shotgun "in
relation to" his drug offense because there is no
relationship between his shotgun and his drug
offense. That is, according to Pike, the fact
that he never "brandished, made reference to, or
committed any act relating to the shotgun during
the drug transaction" requires that he be allowed
to withdraw his guilty plea.

  Contrary to Pike’s assertions, sufficient
evidence exists to satisfy the "in relation to"
element of section 924(c). As the Supreme Court
has noted, the "in relation to" element of
section 924(c)(1)(A) is satisfied by evidence
that the defendant carried his weapon to further
the "purpose or effect" of his crime. See Smith
v. United States, 

, 238 (1993)
(emphasis added). That is,

[t]he "during and in relation" element of sec.
924(c)(1) has also certainly been met for "if the
drugs and gun are together in the same place it
is nearly an inescapable conclusion that they
satisfy the in relation to prong of sec.
924(c)(1)." 

(emphasis in
original). The "during and in relation to"
determination is based on the location of the
firearm with respect to the drugs. 

between the firearm and the drugs--which
is, after all, the core of the offense--is best
established by their relation to each other, and
not by the distance between owner and gun at the
moment of arrest." 

for a firearm to
satisfy the "in relation to" prong of the offense
it must at least "’facilitat[e], or ha[ve] the
potential of facilitating,’ the drug trafficking
offense." 

, 113 S. Ct. at
2059 (quoting United States v. Stewart, 

, 540 (9th Cir. 1985)). "This explanation of
the ’in relation to’ element is valid precedent,
unaffected by Bailey." 

.
The facts of this case reveal that the gun was
located in a plastic bag positioned directly on
top of the drugs and therefore Wilson would have
had to, at the very least, remove the gun and
hold it in order for him to gain access to the
drugs. Thus, in this case, just as in Molina, the
firearm was "surely carried in relation to the
crime when it was transported in a car in the
same compartment that contain[ed] drugs possessed
with the intent to distribute." 

.


(emphasis in original).
See also United States v. Hayes, 

,
1047 (7th Cir. 1999) ("Drug dealers do not bring
guns to a deal unless they wish to instill fear
in their business associates or they feel the
need for protection."); United States v. Hubbard,

, 1270 (7th Cir. 1995) ("[F]irearms
are recognized as tools of the drug trade; thus,
courts have sustained the admission of weapons
evidence in narcotics cases because the
possession of a weapon is often a hallmark of
drug trafficking."); United States v. Cooper, 

, 1163 (7th Cir. 1994) ("[t]his Court
has previously held that weapons are ’tools of
the trade’ of drug dealers"). Bearing this
standard in mind, we are convinced that there is
sufficient evidence in the record to support the
"in relation to" element in this case; that is,
that the shotgun in the trunk of the hatchback
and the drugs were sufficiently connected.

  Initially, let us point out that in both his
plea agreement and again during his plea hearing
Pike stated that he was guilty of the section
924(c)(1)(A) charge, specifically stating that he
carried the shotgun in his car during the July
22nd drug transaction. This representation is
entitled to a presumption of verity, see United
States v. Ellison, 

, 693 (7th Cir.
1987), and "the district court is generally
justified in discrediting the proffered reasons
for the motion to withdraw and holding the
defendant to [his] admissions at the Rule 11
hearing." United States v. Groll, 

,
758 (7th Cir. 1993).

  In addition to Pike’s own representations, the
evidence reflects that Pike carried the shotgun
with him during each of the five drug
transactions with the undercover officer;/5 that
Pike’s shotgun was "accessible though not
gracefully or rapidly so" from within Pike’s
car;/6 and that Pike bought the shotgun during
the time he was engaging in his drug trafficking
activity. This evidence establishes that the
presence of the shotgun in Pike’s Chevy Camaro
was neither the result of accident nor mere
coincidence. See 

.
Accordingly, we conclude that the district
court’s determination that there was a
relationship between Pike’s shotgun and his drug
offense was not clearly erroneous, and therefore
the trial judge did not abuse his discretion in
denying Pike’s motion to withdraw his guilty
plea.

C.   Ineffective Assistance of Counsel

  Pike next argues that the judge should have
allowed him to withdraw his guilty plea because
he was denied the effective assistance of
counsel. "In order to succeed on such a claim,
[Pike] must show that the advice on which his
plea was predicated not only was not within the
range of competence demanded of attorneys in
criminal cases, but also that there is a
reasonable probability that but for
[McLaughlin’s] unprofessional errors, the result
would have been different." United States v.
Malave, 

, 147 (7th Cir. 1994)
(internal quotations and citations omitted). And,
as we have long held, courts begin with the
presumption that a defendant has not suffered
prejudice. See Strickland v. Washington, 

, 689 (1984).

  In an attempt to demonstrate prejudice, Pike
argues that because his original attorney,
McLaughlin, failed to adequately explain the "in
relation to" element of section 924(c)(1)(A), he
did not understand the meaning of "in relation
to," and his plea was therefore not "knowing and
voluntary." Cf. United States v. Musa, 

, 1305 (7th Cir. 1991). But Pike ignores the
facts of this case.

  Let us initially make clear that the record in
this case is entitled to a presumption of verity.
See United States v. Standiford, 

,
868 (7th Cir. 1998). "When, as here, a defendant
wishes to withdraw his plea after he states at a
Rule 11 hearing that it was given freely and
knowingly, he faces an uphill battle in
persuading the judge that his purported reason is
fair and just." 

(internal quotations and citations omitted).

  Furthermore, we are of the opinion that in
relation to is an understandable phrase common in
ordinary speech; evidenced by the fact that it is
the precise language used in the jury instruction
for section 924(c)(1)(A) offenses. See Seventh
Circuit Federal Jury Instructions: Criminal 236
(1999); see also United States v. Malin, 

, 168 (7th Cir. 1990) ("The phrase ’in
relation to’ speaks for itself; any further
explanation is superfluous.").

  Additionally, count six of the indictment
charged that Pike "knowingly and intentionally
carried a firearm, specifically, a .410 shotgun,
during and in relation to drug trafficking crimes
. . . ." Moreover, the plea agreement Pike signed
recited that he "told his lawyers the facts and
surrounding circumstances as known to me
concerning the matters mentioned in the
Indictment and the complaint and believe and feel
that my lawyer is fully informed as to all such
matters. My lawyer has since informed me and has
counseled and advised me as to the nature and
cause of every accusation and as to any possible
defense I might have in this case." Furthermore,
in the plea agreement, Pike specifically admitted
that

In particular, I [Pike] acknowledge that on July
10, 1998, I knowingly possessed with intent to
distribute and then distributed to a person who
turned out to be an undercover police officer
approximately 1 oz. of marijuana, all in
Plymouth, Indiana. I also acknowledge that on
July 22, 1998 I knowingly possessed with intent
to distribute and distributed to a person who
turned out to be an undercover police officer 17
hits of LSD acid in Plymouth, Indiana. Further,
I acknowledge that during and in relation to the
drug trafficking crime on July 22, 1998 described
above, I knowingly carried in my car a .410
shotgun which belonged to me[.]

(Emphasis added). Also in the plea agreement,
Pike acknowledged, when referring to his original
counsel, McLaughlin, that "I believe and feel
that my lawyer has done all that anyone could do
to counsel and assist me, and that I now
understand the proceedings in this case against
me." (Emphasis added).

  Not only did Pike acknowledge his understanding
of the charges against him and his guilt by
signing the plea agreement, but at the plea
hearing, the following dialogue took place with
the presiding judge:

THE DEFENDANT: I acknowledge that during and in
relation to the drug trafficking crime on July
22, 1998 described above, I knowingly carried in
my car a .410 shotgun which belonged to me. . .
.

THE COURT:   Everything in there is right?

THE DEFENDANT:   Yes.

Also during the plea hearing, the prosecutor
listed the essential elements of the section
924(c)(1)(A) charge:

With respect to count 6, your Honor, carrying a
weapon during a drug trafficking crime, the
government would have to prove that the defendant
knowingly carried a firearm during and in
relation to a drug trafficking crime, in this
case, the distribution and possession with intent
to distribute LSD.

The district court then asked Pike if he still
believed that he was guilty, and Pike responded
that he was.
  Finally, although McLaughlin admitted that he
never discussed the phrase "in relation to" with
Pike "in those terms . . . not with the words ’in
relation to,’" he did, contrary to Pike’s
assertions, clearly admonish and advise Pike that
there was a relationship between Pike’s firearm
and his drug trafficking in view of the fact that
Pike carried the shotgun in his car during a drug
transaction: "because the weapon--the firearm was
found in the car at the time of his arrest, that
he was not going to be able to beat this
case."/7 Moreover, Pike admitted, in further
contrast to his claim that his original counsel
failed to adequately explain "in relation to,"
that McLaughlin had discussed the "in relation
to" element with him "two or three times."
Furthermore, Pike testified at the Rule 32
hearing that he believed there was an "in
relation to" element of the section 924(c)
offense "because of the way it’s stated."

  After reviewing the record before us, we agree
with the trial judge’s determination that, based
on the facts set forth above, Pike "knowingly and
voluntarily" chose to plead guilty to the section
924(c)(1)(A) charge.

  The district court’s decision is

AFFIRMED.



/1 The indictment charged the defendant with counts
one and four, distribution and possession with
intent to distribute marijuana, in violation of
21 U.S.C. sec. 841(a)(1); counts two, three, and
five, distribution and possession with intent to
distribute LSD acid, in violation of 21 U.S.C.
sec. 841(a)(1); and count six, possession of a
firearm during a drug trafficking crime, in
violation of 18 U.S.C. sec. 924(c).

/2 Pike made these drug sales on July 10, 1998, July
15, 1998, July 16, 1998, and on two occasions on
July 22, 1998.

/3 Pike testified at the Rule 32 hearing that the
shotgun was accessible from inside his car,
though not from the front seat: "you can reach
from the back of the car and into the hatch."

/4 In Wilson v. United States, 

, 1093
(7th Cir. 1997), this circuit held that "[i]n
order for a firearm to satisfy the ’in relation
to’ prong of the offense it must at least
’facilitat[e], or ha[ve] the potential of
facilitating’ the drug trafficking offense."
(quoting Smith v. United States, 

,
238 (1993) (other quotation omitted).

/5 At the Rule 32 hearing Pike testified that he put
the shotgun in his car "knowing that [he was]
going to conduct [the second July 22 drug]
transaction."

/6 It is not necessary that the defendant have
immediate access to the weapon. See Muscarello v.
United States, 

, 137-38 (1998).

/7 We note that lawyers are not expected to carry
around dictionaries and the latest electronic
research in order that they be prepared to give
their client multiple descriptions of how their
conduct violated the law. Instead, Pike’s
attorney informed Pike, albeit in layman’s terms,
that there was little likelihood that Pike could
"beat" the gun charge.