UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO.xx-3138

BRIEF FOR APPELLANT

UNITED STATES OF AMERICA, Appellee,

v.

xxxxxxxxxxxxx, Appellant.

JURISDICTION

The district court had jurisdiction over this case pursuant to 28 U.S.C. § 2255. The notice of appeal having been filed within the thirty-day period of Fed. R. App. P. 4(a), (App. 47),¹ this Court has jurisdiction pursuant to 28 U.S.C. §§ 1291, 2255.

ISSUE PRESENTED FOR REVIEW

STATUTES AND REGULATIONS

Pertinent statutes and regulations are contained in the addendum to this brief.

On February 5, 1991, after a jury trial, xxxxxx was found guilty of two counts: (1) possession with intent to distribute 5 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii); and (2) unlawful use of a firearm in aid of drug trafficking in violation of 18 U.S.C. § 924(c)(1). He was sentenced on April 9, 1991, to 63 months on count one and 60 months on count two, the sentences to run consecutively, and to four years supervised release on count one and three years supervised release on count two, the supervised release terms to run concurrently.

Mr. xxxxxx appealed the district court's suppression ruling and the sufficiency of the evidence to support a finding that he possessed a firearm "during and in relation to" a drug offense. This Court affirmed the district court's ruling and the conviction in an unpublished opinion dated July 26, 1993. United States v. xxxxxx, No. 91-3133 (D.C. Cir. July 26, 1993) (App. 15).

On December 6, 1995, the Supreme Court decided Bailey v. United States, 116 S. Ct. 501 (1995). On April 15, 1996, Mr. xxxxxx filed pro se a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence, claiming that his § 924(c) conviction was invalid under Bailey. (App. 16-23). The district court appointed counsel, and counsel filed a supplement to the § 2255 motion on September 13, 1996. (App. 36-41). After a hearing, the district court denied Mr. xxxxxx' § 2255 motion by a Memorandum Opinion and Order. (App. 42-45).

B. Statement of Facts

While investigating gunshots in the 1000 block of Wahler Place, S.E., Washington, D.C., the police observed four people running from the area. Two of the suspects entered a building at 916 Varney Street, S.E. Shortly thereafter, one of the suspects exited the building. The officer stopped him for questioning. (App. 24-25, 32-33).

At this same time, Mr. xxxxxx was leaving the 916 Varney Street building. As he exited the building, the officer commanded him to stop, suspecting him in connection with the gunshots. Mr. xxxxxx ran and threw a .9 mm handgun in the bushes. Assisting officers stopped him at the bottom of the exterior steps leading to the street. A search of his person revealed cocaine and a fully loaded ammunition clip. The police recovered the handgun from the bushes. It was later determined that Mr. xxxxxx had not been involved in the gunshot incident on Wahler Place. (App. 15, 24-25, 33-34, 42).

At trial, Mr. xxxxxx raised the defense that he carried the gun for protection after an unknown person shot at him. The gun was unrelated to the drugs. (See 2/5/91 Tr. 27). The court then instructed the jury as follows on the § 924(c) violation:

The second count of the indictment charges that on or about [O]ctober 27, 1990, the defendant, Daniel Joseph xxxxxx, did knowingly and intentionally use and carry a firearm, that is, a 9 -- what do you -- 9 millimeter pistol, serial BER100759Z, during and in relation to a drug trafficking crime for which they may be prosecuted in a Court of the United States, that is, the offense set forth in Count 1 of the indictment, which is incorporated here in my [sic] reference.

Now, you will recall that Count 1 of the indictment charges that the defendant did unlawfully, knowingly and intentionally possess with the intent to distribute a mixture and substance containing a detectable amount of cocaine base.

Now, to establish the offense charged in Count 2, the government must prove beyond a reasonable doubt the following elements:

1. That the defendant committed a drug trafficking crime for which he might be prosecuted in a United States Court -- that has to do with Count 1. In other words, if you prove -- if Count 1 is established, then I instruct you that that would satisfy Count 1 of the -- element -- the first element of the second count in the indictment.

2. That the defendant used or carried a firearm knowingly and intentionally; and

3. That the firearm was used or carried during and in relation to a drug trafficking offense.

Each of these elements must be proved by the government beyond a reasonable doubt, in order for you to find the defendant guilty of the crime charged in Count 2.

* * *

Now, as to the second element of the offense, you must find beyond a reasonable doubt that the defendant's use and carrying of a firearm was knowingly and intentionally. An act is done knowingly and intentionally if done consciously, voluntarily and purposely, and not by mistake, inadvertence or accident. Intent means that a person had the purpose to do a thing. It means that the person acted with the will. It means he acted consciously or voluntarily, and not inadvertently or accidentally. And so, what you must find here is whether the defendant's use or carrying of the firearm was knowingly and intentionally.

Now we get to the third element. And the government must prove beyond a reasonable doubt that the firearm had some relation or some connection to the drug crime, and the defendant's use or carrying of the firearm was in furtherance of the drug crime. The use or carrying of a firearm relates to a drug trafficking offense if it advances or facilitates the commission of a drug trafficking offense. The carrying of a firearm does not relate to a drug trafficking offense if the defendant inadvertently used or carried the firearm.

(2/5/91 Tr. 24-27) (emphasis added). Based on these instructions, the jury convicted Mr. xxxxxx.

After the Supreme Court decided Bailey, Mr. xxxxxx filed a

§ 2255 motion seeking to vacate his § 924(c) conviction due to the erroneous jury instructions. At a hearing on this motion, the district court affirmed the conviction, stating:

Then I said the government must prove all three elements [of § 924(c)] beyond a reasonable doubt. You know, it seems to me that they had the ability to find there was a carrying of the gun. I mean, and the facts seemed to indicate that what he was doing was he threw the gun as the police were -- as I recall, as the police were chasing him.

(9/16/96 Tr. 6). When defense counsel objected because it was impossible to tell on which grounds the jury convicted, the court tried to hold the parties responsible for not raising these objections at the time the instruction was given and again responded:

I think the facts of the case based upon the instruction, based upon giving the defendant's theory [that the gun was unrelated to the drugs] -- you know, there comes a point when we can nitpick something to death.

* * *

I got you. I'm going to deny the motion, though. There comes a point when we got to stop nitpicking this stuff to death. We've become wordsmiths. People are not going to understand what courts are all about and there is no common sense any more. This man received a fair trial. The instruction was fair. The defendant's theory was put forth, and the jury convicted, and that's where we stand there.

(9/16/96 Tr. 7, 8).

SUMMARY OF ARGUMENT

The district court's jury instructions in this case were improper because it did not limit "use" to mean only active employment of a weapon as the Supreme Court has defined that term in Bailey. Furthermore, the court implied that the jury could find "use" or "carrying" merely by finding that Mr. xxxxxx' possessed the gun to "advance[] or facilitate[] the commission of a drug trafficking offense." On these instructions, the jury could have convicted for conduct that is not legally sufficient to sustain a conviction under § 924(c). Because it is impossible to know which grounds the jury relied on for conviction, Mr. xxxxxx' conviction must be reversed.

THE JURY INSTRUCTION ON § 924(c) WAS ERRONEOUS UNDER BAILEY, ALLOWING THE JURY TO CONVICT MR. xxxxxx FOR CONDUCT THAT DOES NOT SATISFY THE ELEMENTS OF THAT STATUTE; THEREFORE, MR. xxxxxx CONVICTION ON THAT COUNT MUST BE REVERSED

A. Standard of Review

Whether jury instructions properly defined the elements of an offense is a question of law reviewed de novo. United States v. Fennell, 53 F.3d 1296, 1301 (D.C. Cir. 1995).

B. The Jury Instructions on the § 924(c) Count were Clearly Erroneous Under Bailey

The district court did not define the words "use" or "carry" as used in § 924(c). The jury, therefore, could have interpreted those words broadly to include conduct not prohibited by the statute. It is likely that the jury did just that because the district court instructed them on the third element of § 924(c) that "[t]he use or carrying of a firearm relates to a drug trafficking offense if it advances or facilitates the commission of a drug trafficking offense." (2/5/91 Tr. 26).

In Bailey, the Supreme Court specifically rejected a prior decision by this Court holding that "use" requires only that a person have access to a firearm when needed to further or facilitate a drug crime. 116 S. Ct. at 505. The Supreme Court held that the "use" prong of § 924(c) requires evidence of "active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Id.

Subsequent to Bailey, courts have applied that decision retroactively and overturned § 924(c) convictions based on jury instructions substantially like those in Mr. xxxxxx' case. See, e.g., United States v. Lin, 101 F.3d 760, 771 (D.C. Cir. 1996) (overturning § 924(c) conviction where jury instructed that it could convict if it found "the firearm available to assist or aid in the commission of the crime"); United States v. Fike, 82 F.3d 1315, 1328 (5th Cir. 1996) (overturning § 924(c) convictions obtained under "liberal, pre-Bailey instructions"); United States v. Smith, 80 F.3d 215, 221 (7th Cir. 1996) (overturning § 924(c) conviction where jury instructed that firearm is used or carried if it "facilitated or had a role in the crime by providing . . . security and confidence" to undertake a drug transaction); United States v. Moore, 76 F.3d 111, 113 (6th Cir. 1996) (overturning

§ 924(c) conviction where jury instructions did not distinguish between use and carry and defined them as "having a firearm available to assist or aid in the commission of the crime"); United States v. Wacker, 72 F.3d 1453, 1464-65 (10th Cir. 1995) (overturning § 924(c) convictions where instructions required jury to find only "ready access" to firearm and that firearm was used as "integral part" of drug crime). Clearly, under the Bailey decision and its progeny, this Court should find the jury instruction in Mr. xxxxxx' case erroneous.

C. Mr. xxxxxx § 924(c) Conviction Must be Overturned Because the Jury May Have Relied on Improper Grounds to Convict

Where questions of legal sufficiency are at issue, "[a] verdict [must] be set aside in cases where the verdict is supportable on one ground, but not another, and it is impossible to tell which ground the jury selected." Yates v. United States, 354 U.S. 298, 312 (1957); see Griffin v. United States, 502 U.S. 46, 58-59 (1991); United States v. Collins, 56 F.3d 1416 (D.C. Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 737 (1996). In post-Bailey cases, where it is impossible to determine whether the jury convicted on the basis of erroneous instructions, the verdict must be set aside. Lin, 101 F.3d at 771; United States v. Smith, 82 F.3d 1564, 1567 (10th Cir. 1996); Fike, 82 F.3d at 1328; Moore, 76 F.3d at 112.

Here, it is impossible to tell whether the jury convicted Mr. xxxxxx under the broad "advances or facilitates" instruction given by the district court, whether it convicted him of mere possession under a liberal interpretation of "use," or whether it convicted him of actually "carrying" a gun. The jury could have found that Mr. xxxxxx generally possessed a gun in order to "advance or facilitate" his drug trafficking without further deciding whether Mr. xxxxxx actually "carried" the gun, knowingly and intentionally, on the date he was arrested with the drugs. According to the court's jury instructions, the jury had no need to consider conduct beyond what would have satisfied the "advances or facilitates" instruction. Furthermore, Mr. xxxxxx put on a defense to the "carry" ground in that he asserted that he was carrying the gun for protection, completely unrelated to the drugs found on him. The jury could have believed his defense to the extent it would not have convicted him of the particular offense of intentionally carrying a weapon in connection with the drugs on the night of his arrest. For example, if the jury believed that Mr. xxxxxx had taken the gun from his home earlier that day (for general protection), then later that evening purchased drugs at the Varney Street building, forgetting about the gun, the jury could have found that he did not knowingly and intentionally carry the gun on that occasion. The district court even instructed the jury that inadvertent carrying did not satisfy the statute. (2/5/91 Tr. 26-27). Rather, the jury could have found that Mr. xxxxxx' conduct did not quite reach the "intentionally carrying" level but that it did satisfy a lower standard, that is, that he generally "used" (i.e., possessed) the gun to "advance or facilitate" his drug trafficking.

This Court has reversed § 924(c) convictions in three cases with similar facts. In all three cases, the defendant carried or constructively carried a gun. The government agreed in all three cases that the defendants' § 924(c) convictions should be reversed. In United States v. Lin, defendant Lin and three others entered a Chinatown building looking for two men whom they suspected were tapping into their phone line and running up charges. The testimony established that at least two of the four intruders were armed. The intruders began to interrogate the two men, forced them from the building at gunpoint and then held them hostage and beat them until they confessed. Lin and the others were charged with using or carrying a firearm during a crime of violence in violation of § 924(c). On appeal, the Court held that the district court's § 924(c) instructions, requiring only that the jury find "the firearm available to assist or aid in the commission of the crime," were erroneous under Bailey. 101 F.3d at 771. The Court agreed with the defendant and the government that Lin was prejudiced because "the jury could have convicted appellant Lin on a "use" theory without finding that he actively employed a gun." Id.

Similarly, in United States v. Morrison, 98 F.3d 619 (D.C. Cir. 1996), police entered a house and found defendant's associate holding a gun, standing guard inside the back door, while defendant Morrison packaged crack cocaine. The district court instructed the jury that actual or constructive possession would satisfy the carry or use requirements of § 924(c). This Court agreed with the defendant, and the government conceded, that "the jury could have premised its guilty verdict solely on a 'use' standard foreclosed by the Supreme Court in Bailey . . . ." Id. at 629.

In United States v. Moore, 104 F.3d 377 (D.C. Cir. 1997), the Court again reversed a § 924(c) conviction where the district court gave an erroneous instruction. Defendant Moore was pulled over while driving a car he owned. The police frisked him and found that he was wearing an empty shoulder holster. A search of the car revealed three loaded guns, two of which fit the holster worn by Moore, and a large quantity of cocaine. Without discussion, the Court reversed because of the erroneous jury instruction (the government conceded that the error warranted reversal). Id. at 380.²

The cases in which this Court has upheld § 924(c) convictions despite erroneous, pre-Bailey jury instructions can be distinguished. In United States v. Smart, 98 F.3d 1379 (D.C. Cir. 1996), the jury convicted the defendant under § 924(c) as well as under a District of Columbia statute for carrying a pistol without a license. The Court held that because the jury had convicted Smart of the D.C. "carrying" charge, they must necessarily have found him guilty of "carrying" a gun under § 924(c). Id. at 1393. In contrast, in Mr. xxxxxx' case, there were no other such charges to determine the grounds on which the jury relied to convict.

This Court also upheld a § 924(c) conviction in United States v. Washington, 106 F.3d 983 (D.C. Cir. 1997). In that case, defendant police officers were convicted of various charges relating to protecting drug shipments through the District of Columbia. Police officers were instructed to carry guns while protecting shipments, they complied and several officers admitted that they were prepared to use their guns if necessary. The Court found that it was impossible with these facts to find use under any theory without also finding carrying. Unlike Mr. xxxxxx case, the evidence did not allow for a finding of mere possession to advance or facilitate drug trafficking without also finding carrying.

The inadequate and erroneous instruction in this case, combined with the "unintentional carrying" defense raised by defendant, does not permit a determination of the grounds relied upon by the jury for conviction. This Court should vacate Mr. xxxxxx § 924(c) conviction consistent with similar decisions in Lin, Morrison and Moore.

CONCLUSION

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing Brief for Appellant does not exceed the number of words permitted by D. C. Circuit Rule 28(d).

_________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 15, 1997, two copies of the foregoing Brief for Appellant and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.

___________________________________

EVELINA J. NORWINSKI