NO. xxxxxxx





xxxxxxxxxxxxxxx, Defendant-Appellant.


On May 5, 1995, this court affirmed defendant's convictions with the exception of one count. (1) United States v. Fennell, 53 F.3d 1296 (D.C. Cir. 1995). The convictions affirmed were for possession of cocaine base with intent to distribute, 21 U.S.C. 841(a)(1) & (b)(1)(B)(iii); using or carrying a firearm during and in connection with a drug trafficking offense, 18 U.S.C. 924(c)(1); receiving a firearm while under felony indictment, 18 U.S.C. 922(n); and carrying a pistol without a license, 22 D.C. Code 3204(a).

On June 19, 1995, defendant filed a petition for rehearing solely with respect to the 924(c) count, in light of the Supreme Court's grant of certiorari in United States v. Bailey, 36 F.3d 106 (D.C. Cir. 1994) (in banc), cert. granted, 115 S. Ct. 1689 (1995). This court, on July 17, 1995, ordered that consideration of the petition for rehearing be deferred pending the Supreme Court's decision in Bailey. Fennell, 53 F.3d at 1304. On December 6, 1995, a unanimous Supreme Court reversed this court's decision in Bailey. Bailey v. United States, 116 S. Ct. 501 (1995). On January 4, 1996, this court granted defendant's petition for rehearing and ordered further briefing.


In the present case, this court affirmed the 924(c) conviction based on defendant's "actual possession of the weapon while in Apartment 1 in order to protect himself while he was packaging drugs." 53 F.3d at 1300. The court did not explicitly state whether it was deciding the issue under the carry prong or the use prong of 924(c).

The district court had instructed the jury with respect to the 924(c) count that:

In order to prove that the defendant used or carried the firearm the government need not show that the defendant actually carried the firearm on his person. It is sufficient if you find that he had actual or constructive possession of the gun in the sense that at a given time he had both the power and intention to exercise dominion and control over it.

My previous instructions in Count One about the differences between actual and constructive possession apply here and I will not repeat them except to say that they are the law which shall govern your deliberations with respect to this second count and the issue of whether Mr. Fennell used or carried the firearm as charged.

The term during or in relation to means at some time during the course of the offense on August 28, 1992 regardless of how short a time. To prove that the defendant used or carried a firearm during and in relation to the offense charged in Count One the government is not required to prove that he used the firearm in an affirmative manner such as by brandishing it or firing it. Instead the government must prove beyond a reasonable doubt that the firearm was in such a location that it would have been available to the defendant to provide protection or assistance during the commission of the crime charged in Count One.

(Transcript of Jury Instructions 1/13/93, p. 19). With respect to the D.C. Code offense of carrying a pistol without a license, the jury was instructed, in part:

Further, a pistol is carried openly or concealed on or about his person if it is actually or constructively possessed by the defendant and conveniently accessible to him.

I have previously defined the words actual and constructive possession and will not repeat them again except to say that these definitions of the law shall govern your deliberations with respect to this count.

(Transcript of Jury Instructions, pp. 24-25).


The Supreme Court's decision in Bailey requires reversal of defendant's conviction under 924(c). Under the standard set out in Bailey, defendant did not actively employ the firearm and thus there was insufficient evidence that he used the gun. In addition the evidence was insufficient to support a conviction that defendant carried the gun during or in relation to the underlying drug trafficking offense.

Even if this court finds the evidence was sufficient to support a conviction under the carry prong of 924(c), however, the conviction must be reversed because the jury instructions allowed defendant to be convicted on grounds the Court in Bailey held were legally incorrect.



The Supreme Court in Bailey held that for a conviction under the "use" prong of 924(c) the government must prove "that the defendant actively employed the firearm during and in relation to the predicate crime," specifically finding that Congress intended to "require more than possession to trigger the statute's application." 116 S. Ct. at 506, 509. The Court gave as examples of what would constitute use under the statute such actions as "brandishing, displaying, bartering, striking with, . . . firing

or attempting to fire, a firearm," and "even an offender's reference to a firearm in his possession could satisfy 924(c)." Id. at 508. The Court explicitly rejected the argument that a 924(c) conviction for use could be based on placement of a firearm nearby for protection, "to provide a sense of security or to embolden." Id. The Court held that the word "use" in 924(c) cannot be used "to penalize drug trafficking offenders for firearms possession." Id. at 509. The Court also found that concealing a gun "nearby to be at the ready for an imminent confrontation," was not use of a firearm under 924(c). Id. at 508. The Court remanded the Bailey case to this court, however, for "consideration [of the "carry" prong of 924(c)] for upholding the convictions." Id. at 509. The decision in Bailey applies to the present case, which was pending on direct review when Bailey was decided. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). After the Supreme Court's decision in Bailey, it is clear that the rationale used by this court for affirming defendant's 924(c) conviction cannot support a conviction under the "use" prong of the statute, which requires more than mere possession of the weapon. 116 S. Ct. at 506. There was no evidence that defendant in any way actively employed the firearm in Apartment 1, where the drugs were found, or in Apartment 2, where the gun was found.

The evidence was also insufficient to support a conviction under the "carry" prong of 924(c). No witness testified to seeing defendant carry the gun. Even assuming, however, for these purposes that the jury could have found defendant carried the gun from Apartment 1 into Apartment 2, although it is difficult to understand why neither Belton nor Augburn saw a gun, the evidence was insufficient. Defendant did no more than simply get rid of the gun. Thus, he did not carry it in relation to or during the drug trafficking offense. In fact, at that point, defendant had abandoned the drugs. The government's own expert testified that nobody possessing the drugs would leave them on the table with the door open. 53 F.3d at 1299. Thus, the evidence was also insufficient to support a conviction under the "carry" prong of 924(c).


The jury instructions regarding the 924(c) count were erroneous under Bailey, for they told the jury that defendant did not have to use the firearm in an affirmative manner and they allowed a conviction for simple possession or for having the gun available to provide protection or assistance. This court recently stated, in accord with the decisions of the Supreme Court in Griffin v. United States, 502 U.S. 46, 58-59 (1991) and Yates v. United States, 354 U.S. 298, 312 (1957), that when one possible basis of a jury verdict is legally insufficient, as opposed to factually unsupported, "the conviction must be reversed." United States v. Collins, 56 F.3d 1416 (D.C. Cir.), cert. denied, 1995 WL 686349 (Jan. 8, 1996).

That is precisely the situation in the present case. The jury, under the instructions given to them, could have convicted defendant on several legally improper grounds, including simply possessing the gun, or having it placed in a location where it was available to provide protection or assistance. Indeed, this court's initial affirmance of the conviction based on possession of the gun in Apartment 1 relied on a rationale held legally improper by Bailey. The jury was also incorrectly told it did not have to find the gun was used in an affirmative manner. Under these circumstances, "it is impossible to tell which ground the jury selected." Collins, 56 F.3d at 1418 (quoting Yates, 354 U.S. at 312). Thus, even if the court finds the evidence was sufficient to support a conviction under the "carry" prong of 924(c), the conviction must be reversed due to the instructional error.

Defendant's conviction for carrying a pistol without a license does not change the situation. The jury did not necessarily find that defendant carried the pistol for this conviction. The instructions on that count also allowed a conviction for actual or constructive possession or convenient accessibility. The jury, therefore, could have convicted defendant for the D.C. Code violation on a ground that was not legally sufficient for a

924(c) conviction. In addition, the D.C. Code count did not require the carrying to be during or in relation to any other offense. Thus, even if the jury found defendant actually carried the gun under the D.C. Code count, there is no way to tell whether that carrying was during or in relation to the drug trafficking offense.

Defendant's failure to object at trial to the instructions does not defeat his claim. This court has held that:

Under the supervening-decision doctrine, we may consider issues not raised at trial where a supervening decision has changed the law in appellant's favor and the law was so well-settled at the time of trial that any attempt to challenge it would have appeared pointless.United States v. Washington, 12 F.3d 1128, 1139 (D.C. Cir.), cert. denied, 115 S. Ct. 98 (1994).

Trial in the present case took place in January, 1993. By that time it was clearly established in this circuit that instructions such as the one given in the present case, allowing conviction without proof of use in an affirmative manner, but instead by proof of availability to provide protection and assistance, were proper. Indeed, several years before the trial in the present case, in United States v. Anderson, 881 F.2d 1128, 1140-41 (D.C. Cir. 1989), this court called "almost frivolous" a challenge to a jury instruction permitting a 924(c) conviction if a gun was "convenient of access or within reach." Subsequent cases, all decided before the trial in the present case, confirmed that actual or constructive possession and availability for protection or assistance were sufficient for a 924(c) conviction. See United States v. Morris, 977 F.2d 617, 621 (D.C. Cir. 1992); United States v. Jefferson, 974 F.2d 201, 206-07 (D.C. Cir. 1992); United States v. Bruce, 939 F.2d 1053, 1055 (D.C. Cir. 1991). In fact, not only were the instructions in the present case in accord with the caselaw in this Circuit, they reflected the view of every other circuit as well. See Bailey, 36 F.3d at 113-14 (collecting cases).

Faced with Anderson, which called an objection to a similar instruction "almost frivolous," and the subsequent decisions of this circuit as well as the unanimous agreement of every other circuit, defendant's failure to object in the present case was excused because the law "appear[ed] so clear as to foreclose any possibility of success." United States v. Baucum, 66 F.3d 362, 363-64 (D.C. Cir. 1995) (quoting Washington, 12 F.3d at 1139 (D.C. Cir. 1994).

This court has recently invoked the supervening decision doctrine to allow a challenge on appeal to an issue not raised in the district court where intervening Supreme Court decisions "arguably undermined the rationale" of prior settled caselaw in this circuit. United States v. Rhodes, 62 F.3d 1449, 1452 (D.C. Cir. 1995). In the present case, the Supreme Court's decision in Bailey did more than undermine the rationale of this circuit's caselaw (and that of every other circuit), it reversed it outright. Therefore, defendant's failure to object to the instructions should be excused.


Defendant respectfully requests the court reverse his 924(c) conviction on grounds of insufficient evidence. Even if the court finds the evidence sufficient, however, the conviction must be reversed because the erroneous jury instructions permitted the jury to convict defendant on a legally incorrect basis.


Respectfully submitted,



625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant


I HEREBY CERTIFY that two copies of the foregoing Brief of Appellant on Petition for Rehearing have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Chief, Appellate Section, Criminal Division, Room 10-435, 555 Fourth Street, N.W., Washington, D.C. 20001, this day of January, 1996.

A. J. Kramer

Federal Public Defender

1. The Court reversed defendant's conviction for possession of a firearm with an obliterated serial number, 18 U.S.C. 922(k).