IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30375
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ERNEST MARRERO,
Defendant-Appellee.
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No. 96-30760
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
WILLIAM G. BARNES, JR.,
Defendant-Appellee.
Appeals from the United States District Court
For the Eastern District of Louisiana
(96-CV-1173-E & 91-CR-371-E)
March 12, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
William G. Barnes, Jr. and Ernest Marrero each filed a 28
U.S.C. § 2255 motion, arguing that their 18 U.S.C. § 924(c)(1)
convictions should be set aside because the jury instructions on
that count contained a definition of “use” that is erroneous after
Bailey v. United States, 116 S. Ct. 501, 507-09 (1995). The
district court granted both of their motions, finding that the
instruction did misstate the definition of “use” after Bailey.
Because we find that the jury necessarily found that Barnes and
Marrero “carried” guns under 18 U.S.C. § 924(c)(1), we reverse the
district court’s decision and uphold their convictions.
I.
Barnes and Marrero were apprehended after their two-car convoy
ran a red light while driving away from a motel in LaPlace,
Louisiana. Marrero rode in the lead car, and Barnes followed in an
armored vehicle driven by Gerald Elwood. When the police pulled
the two cars over, they discovered cocaine in plain sight in the
lead car. When Barnes and Elwood exited the armored vehicle, the
arresting officers found a fully loaded Glock semi-automatic pistol
resting on the front seat and a .38 caliber Smith and Wesson
revolver hidden on the floor beneath the passenger seat.
At trial, the district court instructed the jury that:
Title 18, United States Code, section 924(c)(1) makes it
a crime for anyone to use or carry a firearm during and in
relation to a drug trafficking crime.
For you to find the defendant guilty of this crime, you
must be convinced that the government has proven each of the
following beyond a reasonable doubt:
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First: That the defendant committed the crime alleged in
Count 2. I instruct you that possession of cocaine with
intent to distribute it is a drug trafficking crime; and
Second: That the defendant knowingly used or carried a
firearm during and in relation to the defendant’s commission
of the crime alleged in count 2.
A defendant is considered to have carried a firearm if he
conveyed, transported, or caused to be transported a firearm
during and in relation to a drug trafficking crime. The word
“carried” includes more than merely having a weapon on one’s
person.
Although the indictment alleges that the defendants did
use and carry firearms during and in relation to the
commission of a drug trafficking crime, it is well established
that a disjunctive statute may be pleaded conjunctively in the
indictment, and proved disjunctively. Accordingly, although
count 3 of the indictment in the instant case states that the
defendants did use and carry firearms, the government is only
required to prove that the firearms were used or carried
during and in relation to the commission of a drug trafficking
crime.
The government is not required to prove that the
defendant actually fired the weapon or brandished it at
someone in order to prove “use,” as that term is used in this
instruction. However, you must be convinced beyond a
reasonable doubt that the firearm played a role in or
facilitated the commission of a drug offense. In other words,
you must find that the firearm was an integral part of the
drug offense charged. If the firearm is within the possession
or control of a person who commits a drug trafficking offense,
and the circumstances show that the firearm facilitated or had
a role in the crime, such as emboldening an actor who had the
opportunity or ability to display or discharge the weapon to
protect himself or intimidate others, whether or not such
display or discharge in fact occurred, there is a violation of
the statute . . .
A conspirator is responsible for offenses committed by
another conspirator if the conspirator was a member of the
conspiracy when the offense was committed and if the offense
was committed in furtherance of, or as a foreseeable
consequence of, the conspiracy.
The jury found Marrero and Barnes guilty of 18 U.S.C. § 924(c)(1)
violations.
II.
3
The government concedes that the seventh paragraph of the
excerpted instructions contains language that did not require proof
of “active employment” of the firearm under the “use” prong of §
924(c) as required by Bailey. The question before us, then, is
whether this instructional error, viewed in light of the
instructions as a whole, compels a reversal of the § 924(c)
convictions.
As the district court correctly stated in its instructions, to
convict a defendant under 924(c), a jury may find that the firearm
was used or that the firearm was carried during the drug offense.
A firearm is “carried” within the meaning of the statute “if the
operator of a vehicle possesses the firearm in the vehicle during
and in relation to a drug trafficking crime.” United States v.
Pineda-Ortuno, 952 F.2d 98 (5th Cir.), cert. denied, 112 S. Ct.
1990 (1992). Our caselaw defining “carry” was not altered by the
Court’s decision in Bailey. United States v. Muscarello, 1997 WL
63706 at *2 (5th Cir. Feb. 13, 1997). The erroneous instruction on
“use” in this case required that the jury find that the firearm was
“within the possession or control of a person who commits a drug
trafficking offense.” The only guns brought into evidence by the
government were the two found in the vehicle occupied by Elwood and
Barnes. A jury finding of possession or control under the facts of
this case would constitute carrying under Pineda-Ortuno, and
therefore neither Marrero nor Barnes was prejudiced by the use
instruction.
4
It is for this reason that the instructional error did not
affect either Barnes’ or Marrero’s conviction. Even if the jury
found that Barnes and Marrero “used” their firearms under the
erroneous definition of “use,” they would have had to have found
facts sufficient to constitute “carry” under the statute. Where a
jury has found the functional equivalent of an element, any
instructional error is deemed harmless. Sullivan v. Louisiana, 508
U.S. 275, 281 (1993).
Our decision in United States v. Fike, 82 F.3d 1315 (5th
Cir.), cert. denied, 117 S. Ct. 241-42 (1996), does not conflict
with our decision here. In Fike, the government did not argue that
the Bailey error did not affect the conviction because the jury
necessarily found that the defendant carried a firearm. As the
Fike court was not presented with this issue, its decision does not
bind us.
III.
For the foregoing reasons, the judgment of the district court
below is REVERSED.
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