ORAL ARGUMENT NOT YET SCHEDULED









UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



_________________________________________________________________



No.

_________________________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxx, Petitioner-Appellant.



_________________________________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



________________________________________________________________





BRIEF FOR APPELLANT



_________________________________________________________________











A.J. KRAMER

Federal Public Defender

*SANDRA G. ROLAND

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



*Counsel for oral argument



District Court

Cr. No. 90-553 (LFO)

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



Pursuant to D.C. Circuit Rule 28(a)(1), Defendant-Appellant, William Austin xxxxxxx, hereby states as follows:

A. Parties and Amici:

The parties below were defendant William Austin xxxxxxx, co-defendant Rita xxxx, and the United States of America. The parties to this appeal are defendant-appellant William Austin xxxxxxx and plaintiff-appellee the United States of America. There are no intervenors or amici.

B. Rulings Under Review:

Appellant challenges the Memorandum Opinion by the Honorable Louis F. Oberdorfer filed April 28, 1999, denying appellant's Motion To Vacate, Set Aside, Or Correct Sentence Pursuant to 28 U.S.C. 2255.

C. Related Cases:

Appellant filed a direct appeal of his conviction, Appeal No. 91-3200. This Court affirmed the conviction in an unpublished opinion dated March 23, 1993 (A. at 25). The current post-conviction 2255 case has not been before this Court previously.

TABLE OF CONTENTS





TABLE OF AUTHORITIES iii



STATUTES AND RULES 1



JURISDICTION 1



ISSUE PRESENTED FOR REVIEW 1



STATEMENT OF THE CASE 2





i. The Evidence at trial 5



ii. The Arguments and Instructions Defining a Violation of 18 U.S.C. 924(c) 8



iii. The Motion to Vacate, Set Aside, or Correct Sentence 11



SUMMARY OF ARGUMENT 12



ARGUMENT 14



THE FLAWED DEFINITIONS OF "USE" AND "CARRY" REQUIRE APPELLANT'S 924(c) CONVICTION TO BE REVERSED AND REMANDED FOR A NEW TRIAL 14



A. Standard of Review 14



B. The Jury Instructions Defining the Statutory Terms "Use" and "Carry" Were Fundamentally Flawed 15



C. The Jury Did Not "Necessarily" Find That Appellant "Carried" a Firearm 18



i. Utilizing the Instructions from the District Court, the Jury Might Have Convicted Appellant Under the "Using" Prong Without "Necessarily" Finding That He "Carried" a Firearm 19



ii. The Jury's Finding of Guilt on the Charge of Shipping or Transporting a Firearm Was Not "Necessarily" a Finding That Appellant "Carried" a Firearm for Purposes of 18 U.S.C. 924(c) 21

CONCLUSION 22



CERTIFICATE OF LENGTH 23



CERTIFICATE OF SERVICE 23



ADDENDUM

TABLE OF AUTHORITIES



CASES











UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________





No. 99-3083



_________________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



WILLIAM AUSTIN xxxxxxx, Defendant-Appellant.



_____________________________________________





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________





BRIEF FOR APPELLANT

WILLIAM AUSTIN xxxxxxx

_____________________________________________



STATUTES AND RULES



Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum.

JURISDICTION

The district court had jurisdiction over this case pursuant to 28 U.S.C. 2255. The notice of appeal having been timely filed, and a Certificate of Appealability having been granted, this Court has jurisdiction pursuant to 28 U.S.C. 1291, 2255.

ISSUE PRESENTED FOR REVIEW

Whether the district court erred by denying appellant's motion to vacate his conviction for a violation of 18 U.S.C. 924(c), using or carrying a firearm during and in relation to a crime of violence, where the jury instructions incorrectly defined the elements of "use" and "carry."

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On April 19, 1991, a jury sitting before the Honorable Louis F. Oberdorfer convicted William xxxxxxx of (Count One) conspiracy to commit kidnaping in violation of 18 U.S.C. 371; (Count Three) kidnaping in violation of 18 U.S.C. 1201 and 2; (Count Four) assault with intent to kidnap in violation of 22 D.C. Code 503 and 103; (Count Five) shipping or transportation of a firearm by an indictee in violation of 18 U.S.C. 922(n); (Count Six) use of a firearm in a crime of violence in violation of 18 U.S.C. 924(c); (Count Seven) tampering with a witness in violation of 18 U.S.C. 1512(b)(1); and (Count Eight) retaliating against a witness in violation of 18 U.S.C. 1513.

On June 28, 1991, Mr. xxxxxxx was sentenced to a total of 167 months' imprisonment: 60 months' imprisonment on Counts One and Five to be served concurrently, 107 months' on Counts Three, Four, Seven and Eight to be served concurrently with each other and all other counts, and 60 months' imprisonment on Count Six to be served consecutively to all other counts. In addition, a three-year term of supervised release and a $300 special assessment were imposed.

Mr. xxxxxxx appealed his conviction. This Court affirmed the conviction in an unpublished opinion dated March 23, 1993. United States v. xxxxxxx, No. 91-3200 (D.C. Cir. March 23, 1993) (A. at 25). (1)

On April 22, 1996, Mr. xxxxxxx filed a Motion To Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 2255, claiming that his 924(c) conviction was invalid under Bailey v. United States, 516 U.S. 137 (1995), and requesting leave to file supplemental pleadings at a later date (A. at 29). On September 29, 1997, the district court granted Mr. xxxxxxx's motion for leave to file supplemental pleadings (A. at 31).

On October 17, 1997, Mr. xxxxxxx moved to withdraw his previously submitted motion for relief pursuant to 28 U.S.C. 2255 (A. at 32). On February 11, 1998, the district court (the Honorable Paul L. Friedman) granted appellant's motion to withdraw his 2255 motion (A. at 35).

Appellant's co-defendant, Rita xxxx, also had filed a motion under 28 U.S.C. 2255 raising a Bailey claim (A. at 19). The government agreed that her conviction for a violation of 18 U.S.C. 924(c) must be vacated, and filed a 2255 motion jointly with Ms. xxxx (A. at 22). The district court (the Honorable Louis F. Oberdorfer) granted her 2255 motion to vacate her conviction on Count Six and, on February 5, 1998, reduced her sentence from 168 months' imprisonment to 108 months' imprisonment (A. at 36).

On February 23, 1998, appellant filed a pro se objection to the order granting his motion to withdraw his 2255 motion, citing his co-defendant's successful motion (A. at 44). On May 11, 1998, the district court (the Honorable Louis F. Oberdorfer) ordered the United States to respond to appellant's objection to the order granting his motion to withdraw (A. at 7).

On May 12, 1998, appellant, through counsel, and the United States filed a joint motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. 2255, arguing that appellant's conviction on Count Six charging a violation of 18 U.S.C. 924(c) could not stand after Bailey (A. at 49). On June 16, 1998, the district court ordered the parties to show cause in writing as to why their joint motion should or should not be granted (A. at 52). In response, the government withdrew their motion to vacate appellant's conviction (A. at 55). Appellant filed a response arguing why the joint motion to vacate the conviction should be granted (A. at 59).

On July 24, 1998, the district court ordered the government to respond to appellant's 2255 motion by September 15, 1998 (A. at 63). The government failed to do so. On October 1, 1998, the district court ordered the government to show cause by October 16, 1998, why appellant's motion should not be granted for lack of opposition (A. at 64). On October 16, 1998, the government filed an opposition to appellant's motion (A. at 65). On April 28, 1999, appellant filed an addendum to his 2255 motion (A. at 71).

The district court held a hearing on April 7, 1999, at which the court heard argument on appellant's 2255 motion and took the motion under advisement. On April 28, 1999, the district court denied appellant's 2255 motion in a written memorandum opinion (A. at 74).

On June 25, 1999, appellant filed a notice of appeal and request for a certificate of appealability (A. at 82, 83). On November 18, 1999, the district court granted appellant's motion for certificate of appealability on the question of whether the jury instructions at the defendant's trial were erroneous and deprived the defendant of due process (A. at 91).

B. Statement of Facts

i. The Evidence at Trial

Defendant Rita xxxx sought to kidnap her step-daughter, Marqweta Nicole Butler, so that the child might live with xxxx and her husband. Ms. xxxx enlisted appellant's help. On Halloween night, 1990, appellant kidnaped the girl as she was trick-or-treating with her mother, and escaped in a waiting car driven by Rita xxxx (Tr. 4/15/91 at 59). (2) They first went to appellant's mother's house in the District of Columbia (Tr. 4/15/91 at 127).

There was testimony that appellant possessed a gun at his mother's house. Eli Lindsay testified that appellant "pulled out" a gun that night during an "argu[ment] with somebody" (Tr. 4/15/91 at 130), but he did not say whether the incident occurred before or after the kidnaping. (3) Mr. Lindsay was impeached with his grand jury testimony that he had not seen appellant with a gun that night (Tr. 4/15/91 at 135). Charlita Brown, who was also at appellant's mother's house, testified that she saw appellant "with a gun" that night during an argument with a woman named "Ski," but did not explain what she meant by "with a gun." (Tr. 4/16/91 at 80-81). Ms. Brown was impeached with her prior statement to the police that she had not seen appellant with a gun "when he had the baby or when he was leaving" his mother's house (Tr. 4/16/91 at 127). There was no evidence suggesting that the argument with Ski was related to the kidnaping. Ms. Brown also testified that she saw a gun in Rita xxxx' purse (Tr. 4/16/91 at 81). Valerie Lyles testified that she saw appellant pack a gun in his suitcase at a time after the child had been kidnaped (Tr. 4/16/91 at 166, 203). She later admitted that she did not actually see appellant with a gun that night, but only heard xxxx ask appellant about a gun (Tr. 4/16/91 at 219-221).

At appellant's mother's house, Rita xxxx recruited Jerome Diggs and Ernie Davis to drive them (ostensibly to Virginia) in exchange for $150 and some crack cocaine (Tr. 4/16/91 at 80; Tr. 4/17/91 at 11). xxxx drove Diggs' wife's car (Tr. 4/17/91 at 8, 22). After a police chase the next day in which xxxx was able to elude the police (Tr. 4/16/91 4-15), they set out to drive across the country.

When Ernie Davis realized that they were not going just to Virginia, he said he had to turn back because he was due to go on trial the next day in Superior Court (Tr. 4/17/91 at 15). xxxx pulled the car off the road and, according to Davis and Diggs, appellant "pulled out a little gun" and pointed it at both Davis and Diggs (Tr. 4/17/91 at 24, 27, 131, 172). He told Davis, "'Go ahead and get out . . . .'" (Tr. 4/17/91 at 24, 27). xxxx, appellant and Diggs continued on to Kansas City, Missouri with the child.

Diggs was driving when a police officer stopped the car in Kansas City, Missouri (Tr. 4/17/91 at 72). Appellant sat in the front seat (Tr. 4/17/91 at 72). The officers found a .25 caliber gun "underneath the center console, arm-rest console" in the front seat (Tr. 4/17/91 at 74). Appellant claimed ownership and was arrested for carrying a concealed weapon (Tr. 4/17/91 at 75). xxxx, Diggs and the child continued on their way (4/17/91 at 80). A few days after reaching Denver, Colorado, Jerome Diggs turned himself in to the police (Tr. 4/17/91 at 96). Nine days after the kidnaping, on November 9, 1990, xxxx was arrested in Denver, Colorado, and the child was located soon thereafter (Tr. 4/17/91 at 109). (4)

ii. The Arguments and Instructions Defining a Violation of 18 U.S.C. 924(c)

The prosecutor's explanation of the elements of 18 U.S.C. 924(c) were consistent with the case law at the time (4/19/91 at 36-37):

Count Six is called carrying a firearm during the commission of a crime of violence. That makes it a crime, an additional crime, to carry a firearm or to use a firearm or to have a firearm available while you commit another crime.

So that if you have a gun available during a kidnaping, that that is a separate crime. And the kidnaping in this case is not just the October 31st snatch. The kidnaping is a continuing offense that goes on from that time to November 9, when Rita xxxx is arrested.

If you find that during that period of time she had on her, or available to her, or that it was used in furtherance of the crime of kidnaping, if she had a firearm, then she is guilty of that offense.

The jury was instructed on the elements of shipping or transporting a firearm in interstate commerce as follows (Tr.4/19/91 at 117-118) (emphasis added):

The defendant xxxxxxx is charged in Count Five of the indictment with transporting a firearm while under indictment. The indictment reads: "On or about November 1, 1990, within the District of Columbia and elsewhere, the defendant William Austin xxxxxxx, having previously been indicted for a crime punishable by imprisonment for a term exceeding one year, did transport in interstate commerce, that is from the District of Columbia to Maryland and then to Missouri, a firearm.

The relevant statute on this subject is 18 U.S.C. 922, and it reads: "It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The essential elements of the offense of transportation of a firearm by a person under indictment, each of which the government must prove beyond a reasonable doubt, are:

One, that the defendant, William Austin xxxxxxx, was under indictment for an offense that was punishable by imprisonment for a term exceeding one year, and you are instructed that the offenses charged in Superior Court felony jacket F-11012-90 are offenses punishable by imprisonment for terms exceeding one year; and Two, that the defendant transported a firearm in interstate commerce.

The government elicited testimony concerning two firearms. In order to return a guilty verdict against Mr. xxxxxxx on this count, you must be unanimous that the defendant xxxxxxx used and carried a particular firearm.

Next, the jury was instructed on the definition of using or carrying a firearm during and in relation to a crime of violence (Tr. 4/19/91 at 119-120) (emphasis supplied):

Now, Count Six: The defendants are charged in Count Six with using a firearm to commit a crime of violence or carrying a firearm during the commission of a crime of violence.



The indictment reads: "From on or about November 1, 1990, to on or about November 2, 1990, within the District of Columbia and elsewhere, the defendants William Austin xxxxxxx and Rita Shirley xxxx, during and in relation to a crime of violence, that is, kidnaping, for which they could be prosecuted in a court of the United States, did use and carry a firearm."

The relevant statute on this subject is 18 U.S.C. 924(c), which provides that: Whoever during and in relation to any crime of violence for which he or she may be prosecuted in a court of the United States carries a firearm shall be guilty of a crime."

Now, the government must prove each of the following elements of this offense beyond a reasonable doubt:

First, that on or about the dates charged the defendant was carrying or used a firearm;

Second, that the defendant had knowledge that what he or she was carrying or using was a firearm;

Third, that he or she did so during and in relation to the commission of a crime of violence for which he or she might be prosecuted in a court of the United States.



* * *





In order for the government to sustain its burden of proof that the defendant used a firearm, it is not necessary to establish that the weapon was fired. It is sufficient if the proof establishes that the firearm furthered the commission of the crime of violence or was an integral part of the underlying crime being committed.

In order to satisfy this element, the government need not show that the defendant carried the firearm on his or her person. It is sufficient if you find that he or she transported or conveyed a weapon or had possession of it in the sense that at a given time he or she had both the power and the intention to exercise dominion and control over it.

iii. The Motion to Vacate, Set Aside, or Correct Sentence



Subsequent to the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995), the government and co-defendant Rita xxxx jointly filed a motion to vacate, set aside or correct co-defendant Rita xxxx' conviction for a violation of 18 U.S.C. 924(c). In the motion, the government agreed not to retry Ms. xxxx on the charge. The district court (the Honorable Louis F. Oberdorfer) granted the motion in all respects and resentenced Ms. xxxx, reducing her sentence from 168 months' imprisonment to 108 months' imprisonment.

Thereafter, the government and appellant jointly filed a motion identical to the one filed for Rita xxxx to vacate, set aside, or correct appellant's sentence pursuant to 28 U.S.C. 2255 (A. at 49). In response to an order to show cause from the district court (A. at 52), the government withdrew from the motion and took the position that the erroneous jury instruction "had no effect on defendant's case since the jury necessarily found that defendant 'carried' the firearm within the meaning of 924(c)" (A. at 69). Appellant maintained his position that a new trial on the 924(c) charge was required (A. at 59).

The district court denied appellant's motion on April 28, 1999, finding that the instruction defining "use" was incorrect but that the instruction defining "carry" was correct (A. at 76-78). The court ruled that the erroneous "use" instruction was harmless for two reasons. First, "the jury could not have found a 'use' violation without also finding a 'carry' violation because none of the evidence elicited at trial suggested that defendant 'actively employed' a firearm without at the same time 'carrying' one." (A. at 78) (citing Bailey v. United States, 516 U.S. 137, 144 (1995)). Second, "by convicting defendant of 'shipping or transporting' a firearm in interstate commerce while under indictment [in violation of] 18 U.S.C. 922(n), the jury necessarily concluded that he 'carried' a firearm . . . ." (A. at 80).

SUMMARY OF ARGUMENT

The jury instructions defining the "use" and "carry" prongs of 18 U.S.C. 924(c) conflated the terms and required a conviction on either prong if the jury found that a firearm "furthered the commission of the crime," or was an "integral part" of the crime, or was simply transported, conveyed, or constructively possessed. None of those definitions meets the "active employment" test required by the "use" prong of the statute.

Nor did the instruction accurately define the "carry" prong. A firearm can be "carried" in the conveyance sense of that word, or in the bearing-on-one's-person sense of that word. This instruction, however, allowed the jury to convict appellant for "carrying" a firearm if it found that a firearm "furthered the commission of the crime" or if it was an "integral part" of the crime, even if it wasn't "carried" in either of the statute's two meanings of that word. It allowed the jury to convict for "carrying" even if a firearm was merely constructively possessed, was not carried on appellant's person, and was not readily accessible. The conviction must be reversed and remanded for a new trial.

Even if the jury had been correctly instructed as to the legal definition of "carry" for purposes of 924(c), if the jury's verdict might have been based on the erroneously defined "use" prong, the conviction must be reversed and remanded for a new trial. If, however, the jury "necessarily" found that appellant "carried" a firearm, then the erroneous "use" instruction was harmless. Here, the jury did not "necessarily" make a finding that appellant "carried" a firearm. Using the definitions provided by the court, the jury could have found that appellant "used" without "carrying" the firearm that was seen in his co-defendant's purse when she was at appellant's mother's house. Or, the jury could have found that appellant "used" without "carrying" the gun stored in the co-defendant's purse during their car trip.

Second, the jury's finding that appellant "shipped" or "transported" a firearm was not "necessarily" a finding that he "carried" a firearm. "Carrying" for purposes of 924(c) is not synonymous with "transporting." In fact, "transporting" is a broader term that does not necessarily include "carrying." Furthermore, the district court's instructions grafted the erroneous "use" and "carry" instructions onto the "shipped" or "transported" instruction, so that the jury could have found appellant guilty of "shipping" or "transporting" if it found that a firearm "furthered the commission" of the crime or was an "integral part" of the crime, or was constructively possessed, without having found that he "carried" it.

ARGUMENT

THE FLAWED DEFINITIONS OF "USE" AND "CARRY" REQUIRE APPELLANT'S 924(c) CONVICTION TO BE REVERSED AND REMANDED FOR A NEW TRIAL

Whether there was error in the district court's instructions as to the elements of the offense is a question of law reviewed de novo. See United States v. Perkins, 161 F.3d 66, 69 (D.C. Cir. 1998); United States v. Fennell, 53 F.3d 1296, 1301 (D.C. Cir. 1995).

Appellant, "unremarkably, did not object to this [overbroad "use"] instruction, as it was consistent at the time with the prevailing law in this circuit." United States v. Toms, 136 F.3d 176, 180 (D.C. Cir. 1998). In this circumstance, this Court has reviewed for harmless error. See, e.g., Toms (reviewing for harmless error where defendant failed to object to overbroad "use" instruction); United States v Kennedy, 113 F.3d 53, 58 (D.C. Cir.), cert. denied, 119 S. Ct. 255 (1998) (same); United States v. Smart, 98 F.3d 1379, 1393 (D.C. Cir. 1996), cert. denied, 520 U.S. 1128 (1997) (same). But see United States v. Perkins, 161 F.2d 66, 68-72 (D.C. Cir. 1998) (questioning, without deciding, whether defendant whose trial took place pre-Bailey and who failed to challenge overbroad definition of "use" should now be subject to harmless error review or plain error review, or whether he must demonstrate cause and prejudice); United States v. Joseph, 169 F.3d 9, 13 n.7 (D.C. Cir.), cert. denied, 120 S. Ct. 266 (1999) (same).

B. The Jury Instructions Defining the Statutory Terms "Use" and "Carry" Were Fundamentally Flawed

The "use" element of 18 U.S.C. 924(c) requires "evidence sufficient to show an active employment of the firearm by the defendant . . . ." Bailey v. United States, 516 U.S. 137, 143 (1995). The jury instructions provided by the district court here conflated the "use" and "carry" prongs and allowed the jury to convict appellant even if it found that he did not actively employ a firearm. Rather, the jury was instructed to convict if a firearm "furthered the commission of the crime," or was an "integral part" of the crime, or was simply transported, or conveyed, or constructively possessed (Tr. 4/19/91 at 120):

In order for the government to sustain its burden of proof that the defendant used a firearm, it is not necessary to establish that the weapon was fired. It is sufficient if the proof establishes that the firearm furthered the commission of the crime of violence or was an integral part of the underlying crime being committed.

In order to satisfy this element, the government need not show that the defendant carried the firearm on his or her person. It is sufficient if you find that he or she transported or conveyed a weapon or had possession of it in the sense that at a given time he or she had both the power and the intention to exercise dominion and control over it.

The instruction also misdefined the "carry" prong. A firearm can be "carried" both in the conveyance sense of that word, see Muscarello v. United States, 524 U.S. 125, 127 (1998), or in the bearing-on-one's-person sense of that word. See United States v. Evans, 888 F.2d 891, 895 (D.C. Cir. 1989). Here, the district court instructed the jury that a firearm is "carried" if it "furthered the commission of the crime of violence or was an integral part of the underlying crime being committed," and that even if a firearm is not carried on the defendant's person, it is "carried" for purposes of the statute if it is "transported or conveyed . . . or [if the defendant] had possession of it in the sense that at a given time he . . . had both the power and the intention to exercise dominion and control over it." (Tr. 4/19/91 at 120). That instruction was incorrect. Clearly, a finding that a firearm merely "furthered the commission of the crime" or was an "integral part" of the crime obviously does not meet either statutory definition of "carry." See Muscarello, 524 U.S. at 127; Evans; 888 F.2d at 895.

Furthermore, evidence that the defendant merely constructively possessed a firearm (i.e., if the defendant "had possession of it in the sense that at a given time he . . . had both the power and the intention to exercise dominion and control over it") also is insufficient to satisfy either sense of the term "carry." First, a firearm is "carried" in the conveyance sense of that word when "a person . . . knowingly possesses and conveys firearms in a vehicle . . . ." Muscarello, 524 U.S. at 127 (emphasis supplied). Here, the jury was told to convict appellant if it found constructive possession without any conveyance. Using this instruction, the jury would have convicted appellant if, for example, it found that the ring-leader, Rita xxxx, had conveyed the gun in the car but that appellant had assumed constructive possession when the officers found the gun. (5) A conviction based on that instruction, therefore, would be invalid.

Second, a firearm is "carried," in the bearing-on-one's-person sense of that word, when a person has "dominion and control and ready accessibility." United States v. Joseph, 169 F.3d 9, 14 (D.C. Cir. 1999) (citing United States v. Evans, 888 F.2d 891 (D.C. Cir. 1989) (emphasis added)). "An object is 'accessible' or 'within reach,' . . . if a party is not just near it, but has a present ability to exercise dominion and control over it." Evans, 888 F.2d at 895 (emphasis added). Here, the jury was told that it should convict appellant if it found that he intended to exercise dominion and control over a firearm, even if he did not have the present ability to do so. Based on that instruction, the jury would have convicted appellant if, for example, it found that there was only one gun involved (6) and relied on Charlita Brown's testimony that she saw a gun in Rita xxxx' purse. The jury could have concluded that appellant intended to exercise shared dominion and control over it, even though he did not have the ability to do so at the time that Brown saw the gun. A conviction based on that instruction, therefore, would be invalid.

Thus, the jury was wrongly instructed on both the "use" and "carry" theories of culpability. (7) The conviction must be reversed and remanded for a new trial.

C. The Jury Did Not "Necessarily" Find that Appellant "Carried" a Firearm

Even if the jury had been correctly instructed as to the definition of "carry," if the jury might have based its verdict on the erroneous "use" instruction, the conviction must be reversed and remanded for a new trial. A verdict must be set aside "in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected." Yates v. United States, 354 U.S. 298, 312 (1957).

This Court has held, however, that if the jury "necessarily" found the defendant guilty under the statute's other theory of liability -- "carrying" -- then any error in the "use" instruction is harmless. United States v. Toms, 136 F.3d 176, 181 (D.C. Cir. 1998).

. . . The "necessarily" is crucial, for "a verdict [is required] to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected." Id. (quoting Yates v. United States, 354 U.S. 298, 312 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 98 (1978)). Appellant's conviction must be vacated because even if the "carry" instruction was correct, the jury did not "necessarily" make a finding that appellant "carried" a firearm.

i. Utilizing the Instructions from the District Court, the Jury Might Have Convicted Appellant Under the "Using" Prong Without "Necessarily" Finding That He "Carried" a Firearm



The district court ruled that appellant's jury "could not have found a 'use' violation without also finding a 'carry' violation because none of the evidence elicited at trial suggested that defendant 'actively employed' a firearm without at the same time 'carrying' one." (A. at 78) (citing Bailey, 516 U.S. at 144). That ruling was erroneous.

First, the district court's reasoning assumes that the jury was told to decide whether appellant actively employed a gun. In fact, the jury was told not to look for evidence of active employment, but to settle for evidence that a "firearm furthered the commission of the crime," or "was an integral part of the underlying crime," or was "transported," or "conveyed," or constructively possessed.

Second, given the definition of "use" that the jury was actually working with, it easily could have found that appellant "used" a firearm without also "carrying" a firearm. For example, the jury could have found that appellant "used" without "carrying" the firearm that was seen in Rita xxxx' purse while they were at his mother's house, because that firearm "furthered the commission of the crime" since it was, in the prosecutor's words, "available" during the commission of a crime (Tr. 4/19/91 36-37). (9) Or, the jury could have found that appellant "used" without "carrying" the gun stored in xxxx' purse during the cross-country trip because the gun was "an integral part" of the kidnaping.

ii. The Jury's Finding of Guilt on the Charge of Shipping or Transporting a Firearm Was Not "Necessarily" a Finding That Appellant "Carried" a Firearm for Purposes of 18 U.S.C. 924(c)

The district court ruled that, alternatively, the erroneous "use" instruction was harmless because "by convicting defendant of 'shipping or transporting' a firearm in interstate commerce while under indictment . . . , the jury necessarily concluded that he 'carried' a firearm during and in relation to the abduction." (A. at 79). That ruling also was erroneous. The error was not harmless since the jury did not "necessarily" find that appellant "carried" a gun when it convicted him of shipping or transporting a firearm while under indictment.

First, "transporting" and "carrying" are not synonymous. Muscarello, 524 U.S. at 134 (Section 924(c) "does not equate 'carry' and 'transport'").

"Carry" implies personal agency and some degree of possession, whereas "transport" does not have such a limited connotation and, in addition, implies the movement of goods in bulk over great distances.Id. (citing Webster's Third New International Dictionary 343). See Hilliard v. United States, 157 F.3d 444, (6th Cir. 1998) (instruction that "carry" means "to transport" a firearm erroneous).

Second, the district court's instructions grafted the erroneous "use" and "carry" definitions onto the definition of "ship" or "transport." The court told the jury to return a guilty verdict for the offense of shipping or transporting a firearm while under indictment if it found, inter alia, that appellant "used and carried" a firearm (Tr. 4/19/91 at 117-18) (emphasis supplied):

The essential elements of the offense of transportation of a firearm by a person under indictment, each of which the government must prove beyond a reasonable doubt, are:



One, that the defendant, William Austin xxxxxxx, was under indictment for an offense that was punishable by imprisonment for a term exceeding one year, and you are instructed that the offenses charged in Superior Court felony jacket F-11012-90 are offenses punishable by imprisonment for terms exceeding one year; and



Two, that the defendant transported a firearm in interstate commerce.



The government elicited testimony concerning two firearms. In order to return a guilty verdict against Mr. xxxxxxx on this court, you must be unanimous that the defendant xxxxxxx used and carried a particular firearm.



Thus, the jury was required to convict appellant for "shipping" or "transporting" a firearm if it found that a firearm "furthered the commission of the crime," or was "an integral part of the underlying crime being committed," or was constructively possessed. Certainly, given all the instructions, the jury could have convicted appellant for "shipping" or "transporting" a firearm even if it did not find that he "carried" a firearm.

CONCLUSION

For the foregoing reasons, the trial court's denial of appellant's motion to vacate, set aside, or correct sentence was erroneous and must be reversed.

Respectfully submitted,



A.J. Kramer

Federal Public Defender



_________________________________

Sandra G. Roland

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500



CERTIFICATE OF LENGTH



I HEREBY CERTIFY that the foregoing brief for appellant, William xxxxxxx, does not exceed the number of words permitted by D.C. Circuit Rule 28(d).



_________________________________

Sandra G. Roland





CERTIFICATE OF SERVICE



I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, this 16th day of May, 2000.

___________________________________

Sandra G. Roland

1. "A." citations refer to pages of the Appendix filed with this brief. "Tr." followed by a date refers to pages of the transcript of the trial held on April 15-19, 1991 and the hearing on the post-conviction motion held on April 7, 1999.

2. Three weeks earlier, on October 3, 1990, xxxx (but not appellant) had orchestrated a robbery of the child's mother, Linda Butler, in which Butler's purse was stolen (Tr. 4/15/91 at 52-57, 88-123; 4/16/91 at 32-74). When xxxx was arrested following the kidnaping, she possessed identification and photographs that had been stolen from Linda Butler's purse.

3. Before the kidnaping, appellant and Mr. Lindsay had been drinking at appellant's mother's house (Tr. 4/15/91 at 126-27).

4. There was other evidence of Rita xxxx' possession and use of a gun. Ernie Davis testified that Rita xxxx had a gun in a little pouch as they drove west through Maryland (Tr. 4/17/91 at 37). When Jerome Diggs tried to jump ship in Kansas City, Missouri, xxxx pulled a gun from under the car seat and forced him to continue driving (Tr. 4/17/91 at 143). However, police officers who searched xxxx' purse and the car in Kansas City did not find this alleged gun (Tr. 4/17/91 at 75-78, 102-104).

5. It is not implausible that appellant would falsely claim ownership of xxxx' gun since xxxx' liberty was necessary to the entire misbegotten mission.

6. Only one gun was ever located, despite a search of the car and xxxx' purse by the police (Tr. 4/17/91 at 75-78, 102-104).

7. Moreover, the instruction that a firearm is "carried" if it is merely "transported" or "conveyed" is incorrect. The Supreme Court explained in Muscarello, 524 U.S. at 134, that 924(c) "does not equate 'carry' and 'transport.'" See infra at 21. (8)

8. Simiarly, "conveyed" is a broader category than, and not the equivalent of, "carried."

9. The jury was instructed that it could convict appellant as an aider and abettor (Tr. 4/19/91 at 102-103):



You may find the defendant guilty of the crime charged in the indictment without finding that the defendant personally committed each of the acts constituting the offense, or that the defendant was personally present at the commission of each of those offenses.



* * *



A person aids and abets another in the commission of a crime if he knowingly associates himself in some way with the criminal venture with the intent to commit the crime, participates in it as something that the defendant wishes to bring about, and seeks by some action of that defendant to make it succeed.