864 F.2d 544 (1988)
On October 8, 1987, a six-count indictment was filed charging six defendants with drug-related offenses.1 Four defendants pleaded guilty.2 Jose Pineiro and Reynaldo Diaz were tried together before a jury.3 Pineiro was acquitted.4 Diaz was convicted of conspiracy to possess and distribute cocaine, possession and distribution of cocaine, and use of a firearm in relation to a drug trafficking crime.5 He was sentenced to five years on each count, with the possession and firearm sentences consecutive to each other and concurrent with the conspiracy sentence, plus a four-year supervised release term on the possession count.6
The indictment alleged the conspiracy successfully distributed cocaine on four occasions, the last being the sale of one kilogram to a DEA agent on September 9, 1987.7 At trial coconspirators who had pleaded guilty testified that Diaz supplied cocaine on three of the four occasions.8 A DEA agent purchased cocaine from Carmen Diaz and Gerardo Perez on July 23, 1987, with no testimony linking Reynaldo Diaz to that sale.9 Perez later contacted Luis Rodriguez to locate a supplier.10 Rodriguez arranged a meeting with Diaz, after which Diaz agreed to supply drugs to Perez.11
On August 21 and September 3, 1987, Perez sold two ounces of cocaine each time to DEA Agent Patricia Collins.12 Perez testified he obtained the drugs from Diaz.13 Rodriguez and Perez stated they dropped the money at Diaz's house after the second sale, though agents in the neighborhood could not verify the claim.14 For the September 9 transaction Perez and Rodriguez went to a designated location to meet Diaz and sell one kilogram to Agent Collins.15 Diaz arrived after telephone contact, followed shortly by David Peirallo who had transported the kilogram from Miami that day.16
The group waited an hour for Agent Collins.17 Peirallo left and asked to be paged when she arrived.18 Upon her arrival Diaz telephoned Peirallo's pager.19 Perez counted the money in Agent Collins's car then confirmed with Diaz that Peirallo was returning.20 After Peirallo parked, the cars lined up with Peirallo's first, Diaz's in the middle, and Agent Collins's last.21 Surveillance officers saw substantial movement and conversation among Diaz, Peirallo, and Rodriguez.22 Diaz opened the hood of his car.23 Peirallo told Perez he had a gun he would use if anyone tried to steal the drugs.24 Perez delivered the cocaine to Agent Collins, who gave the arrest signal.25
Diaz did not testify.26 Through witnesses and counsel he claimed he was merely visiting friends in the neighborhood and was present only because his car had broken down.27 He asserted he telephoned a mechanic, but telephone records did not show that number dialed and officers observed no one examine the engine.28 Before the judge instructed the jury, the appellant’s counsel objected to the use of a conscious avoidance of knowledge instruction (ostrich instruction) that was submitted by the government.29 Counsel for appellant also objected to the government instruction that permitted the conspiracy count to be considered a “drug trafficking crime” for purposes of conviction under the firearm possession charge.30 The district court overruled the objection.31 Diaz appealed his convictions to the Seventh Circuit.32
Whether a conviction for using or carrying a firearm during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1) may rest on a defendant's participation in a conspiracy to possess and distribute cocaine?33
Section 924(c)(2) defines a drug trafficking crime as any felony violation of Federal law involving the distribution, manufacture, or importation of any controlled substance, which includes conspiracy to distribute under 21 U.S.C. § 846.34 Under the Pinkerton doctrine, a conspirator may be held liable for a co-conspirator's substantive offense committed in furtherance of the conspiracy if the offense was reasonably foreseeable.35
Yes. The plain wording of the statute permits a defendant to be convicted of carrying a firearm in relation to the drug trafficking crime of conspiracy to possess and distribute cocaine.36 Because section 924 defines a drug trafficking crime as any felony violation of Federal law involving distribution, the plain language of the statute includes the federal violation of conspiracy to distribute. The special and continuing dangers incident to group activity support this result, as concerted action increases the likelihood that the criminal object will be successfully attained and a weapon can embolden participants in the conspiracy.37
The Pinkerton doctrine applies to impute Peirallo's firearm possession to Diaz.38 The jury was instructed to find guilt if Peirallo committed the offense in furtherance of the conspiracy and Diaz was a member at the time.39 Carrying a gun was a reasonably foreseeable consequence in a street transaction involving a kilogram of cocaine.40
A conviction under 18 U.S.C. § 924(c)(1) may rest on the defendant's participation in the conspiracy.41
Whether the district court erred by giving the jury a conscious avoidance of knowledge instruction when the defendant maintained he had no involvement in the charged conspiracy?42
A conscious avoidance or ostrich instruction is proper when the defendant claims a lack of guilty knowledge and the evidence supports an inference of deliberate ignorance.43 The instruction is not reversible error if the instructions as a whole require the jury to find knowing participation beyond a reasonable doubt and the evidence permits an inference of avoidance.44
No. Although Diaz claimed he had nothing to do with the group's activity and was merely visiting friends with a disabled car, the trial record contained ample evidence to support the inference that his modus operandi was to insulate himself from the actual drug transaction so that he could deny knowledge of it.45 During the other observed transactions, he had absented himself from the scene.46 On this occasion, while present, he claimed preoccupation with his disabled vehicle and did not realize he was facilitating the transaction by raising the hood.47 The instructions as a whole treated the issues fairly and adequately by also instructing the jury that mere presence at the scene of the crime and knowledge that a crime is being committed are not sufficient to establish guilt.48
The government had to establish beyond a reasonable doubt that Diaz knowingly participated in the conspiracy.49
The district court did not err by giving the conscious avoidance of knowledge instruction.50