United States v. McMillan

F I L E D
United States Court of
Appeals
UNITED STATES COURT OF APPEALS July 23, 1997
PATRICK FISHER
TENTH CIRCUIT Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
Case Nos. 96-1054, 96-1076
v.
(D.C. 94-CR-254-M)
JEFF McMILLAN, (District of Colorado)

Defendant-Appellant.

ORDER AND JUDGMENT*

Before PORFILIO, EBEL, and HENRY, Circuit Judges.

Mr. Jeffrey McMillan appeals his convictions for one count of possessing cocaine

with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and one count of using and

carrying a firearm in relation to a drug-trafficking crime, in violation of 18 U.S.C. §

924(c)(1). Mr. McMillan was tried jointly with six other defendants on various drug-

trafficking and drug conspiracy charges. Mr. McMillan appeals several issues through

counsel and one issue pro se, for which Mr. McMillan’s trial counsel has filed an Anders

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
brief.1 Anders v. California, 386 U.S. 738, 744 (1967) (“[I]f counsel finds his [client’s]

case to be wholly frivolous, after a conscientious examination of it, he should so advise

the court and request permission to withdraw. That request must, however, be

accompanied by a brief referring to anything in the record that might arguably support the

appeal.”). We consider all of these issues in this opinion. For the reasons stated herein,

we affirm Mr. McMillan’s conviction under § 841(a)(1) and vacate and remand the §

924(c)(1) conviction for a new trial.

I. Background

In April 1994, through confidential informant Patrick Isiah Thomas, federal agents

first learned of Mr. McMillan’s association with Trips Tapes and Records, and its parent

company, Trips Enterprises, in Denver, Colorado. The record indicates that the “Trips”

businesses were mere shams and that the Trips headquarters and offices served as

locations for the sale, packaging, and distribution of crack cocaine. See Rec. vol. 3, exs.

27-28, 30.

Mr. Thomas, also associated with Trips, supplied information to the agents

concerning the crack cocaine distribution activities of several Trips members, including

Mr. McMillan. See Rec. vol. 16 (transcript from joint trial with codefendant Lawrence

1
Mr. McMillan claims that the forfeiture of his property to the government,
as proceeds of illegal drug transactions, before his sentencing in this criminal proceeding,
violated the Double Jeopardy Clause. See infra § II.F.

2
Williams, Nos. 96-1056, -1075, hereinafter “Williams Rec.”) at 148. On July 7, 1994,

Mr. Thomas, at the direction of government agents, contacted Mr. McMillan to arrange a

meeting that night at Trips Enterprises’ headquarters to repay a $150.00 debt Mr. Thomas

owed Mr. McMillan. See id. at 187. Federal agents supplied Mr. Thomas with $150.00

and equipped Mr. Thomas with a transmitter. See id. at 190. At approximately 1 a.m. on

July 8, 1994, Mr. McMillan arrived at Trips Enterprises and entered the building with Mr.

Thomas. Over the wire, the agents heard the counting of money. See id. at 194. The

agents, through video surveillance, saw Mr. McMillan exit Trips headquarters and then

enter his car for “less than a minute” before resuming a conversation with Mr. Thomas

outside of the building. Id. at 195.

The agents then paged Mr. Thomas, who informed the agents about the firearm

that Mr. McMillan generally carried with him. See Rec. vol. 11 at 40-41, 43. In addition,

Mr. Thomas told the agents that Lawrence Williams, another Trips associate, had given

Mr. McMillan several small plastic bags of crack cocaine. See id. at 41. Mr. Thomas

saw Mr. McMillan place them into the rear part of his car and informed the agents of the

distribution site where Mr. McMillan generally supplied crack cocaine. See id. at 42, 14;

vol 12 at 34. The agents and officers followed Mr. McMillan, and after losing track of

him for approximately fifteen minutes, traced him to the specified location, near the

designated crack house. See Rec. vol. 11 at 51-52.

3
 After Mr. McMillan stopped his vehicle, the agents summoned Denver police

officers and advised them to question Mr. McMillan. See id. at 53. Mr. McMillan was

arrested for providing false information regarding his identity to the officers. A search of

Mr. McMillan’s vehicle revealed a loaded Ruger 9mm handgun under the driver’s seat,

cash totaling $1479.00, and approximately 120 grams of crack cocaine, divided into street

level distribution quantities in individual plastic twist-tie bags. See id. at 56, Rec. vol. 1,

doc. 7, att. 1 at 2.

In August 1995, a federal grand jury in the District of Colorado returned an

indictment against Mr. McMillan and six other defendants, all of whom were associated

with the Trips organization. The indictment charged Mr. McMillan, as a member of

Trips, with conspiracy to distribute, possession with intent to distribute, and unlawfully

using and carrying a firearm in relation to a drug trafficking crime. The jury could not

reach a decision as to the conspiracy charge, and the government moved to have that

charge dismissed, which the court granted. Mr. McMillan was found guilty of possession

with intent to distribute and unlawfully using and carrying a firearm in relation to a drug-

trafficking crime. He appeals these convictions.

Mr. McMillan raises several issues on appeal. First, he contends that he was

entitled to discovery on his selective prosecution claims against the government. Second,

he disputes the district court’s admission of evidence from a warrantless search of the

vehicle Mr. McMillan occupied. Third, he challenges his conviction under § 924(c)(1)

4
because of a defective jury instruction. Fourth, he claims that § 841(a)(1) and the

relevant Sentencing Guideline are discriminatory and unconstitutional. Fifth, Mr.

McMillan asserts that he was prejudiced by a joint trial. Finally, in his Anders brief, Mr.

McMillan alleges that the civil forfeiture of his property was punitive and thus his

subsequent conviction and sentencing violated the Double Jeopardy clause. We shall

discuss each contention in turn.

II. Discussion

A. Selective Prosecution Claim

Mr. McMillan first claims that the district court erred when it denied his and

several other defendants’ motion for discovery or dismissal based on their claim of

racially based selective prosecution. We review a denial of discovery related to a

selective prosecution claim for abuse of discretion. Cf. United States v. Furman, 31 F.3d

1034, 1037 (10th Cir.) (stating standard of review for motions to dismiss for selective

prosecution), cert. denied, 513 U.S. 1050 (1994).

The necessary elements to establish a selective prosecution claim are demanding;

the threshold showing necessary to obtain discovery is similarly high. See United States

v. Armstrong, 16 S. Ct. 1480, 1486, 1488 (1996). When a prosector acts with probable

cause, he has virtually unfettered discretion in his decision to prosecute. See id. Mr.

5
McMillan must provide at least "some evidence" tending to show the existence of the

elements of a selective prosecution claim. Id. “The claimant must demonstrate that the

federal prosecutorial policy ‘had a discriminatory effect and that it was motivated by a

discriminatory purpose.’” Id. at 1487 (quoting Wayte v. United States, 470 U.S. 598, 608

(1985)). Specifically, Mr. McMillan must show that “‘he has been singled out for

prosecution while others similarly situated generally have not been proceeded against for

the type of conduct forming the basis of the charge against him.’” Furman, 31 F.3d at

1037 (quoting United States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983)); see also

Armstrong, 116 S. Ct. at 1487.

Mr. McMillan asserts that the federal prosecutor's decision to prosecute Mr.

McMillan and other Trips associates in federal court rather than refer the case to state

prosecutors, coupled with statistics of federally convicted crack cocaine traffickers' racial

makeup, supply the necessary evidence. This is inadequate under the standard set forth in

Armstrong. See 116 S. Ct. at 1488. As the Supreme Court stated in Armstrong, "it

should not have been an insuperable task" to investigate whether "persons of other races

were [being] prosecuted by the State of [Colorado and] were known to federal law

enforcement officers, but were not prosecuted in federal court." Id. at 1489. Without

some evidence tending to show racial disparity in the prosecution of similarly situated

defendants in federal court, we cannot exercise judicial power over the "special province"

6
of the executive branch and examine the basis of the prosecution in this case. See id. at

1486 (quoting Heckler v. Chaney, 470 U.S. 821, 832 (1985)).

B. Admission of Evidence

Second, Mr. McMillan contends that the arresting officers searched his vehicle

without probable cause. On appeal from a denial of a motion to suppress, we accept the

trial court’s factual findings unless clearly erroneous, and we consider all evidence in the

light most favorable to the government. See United States v. Alcaron-Gonzalez, 73 F.3d

289, 291 (10th Cir. 1996). We review the ultimate reasonableness of the search de novo.

See Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996).

1. Reliability of the informant.

Mr. McMillan contends that Mr. Thomas was an unreliable informant whose

information could not support probable cause for the warrantless search of Mr.

McMillan’s vehicle. Mr. Thomas was an active Trips associate when he agreed to

cooperate with the authorities in April 1994. Mr. McMillan emphasizes Mr. Thomas’s

untrustworthiness as an informant. For example, during a controlled buy from another

Trips associate, Mr. Thomas received an extra $150.00 from the Trips member. Mr.

Thomas attempted to conceal the funds from the federal agents. See Williams Rec. vol.

11 at 73-74. On another occasion, Mr. Thomas informed the authorities that he had

7
purchased $150.00 worth of crack cocaine from Mr. McMillan, but Mr. Thomas never

turned over any contraband to the agents. See id. at 60-61. In addition, Mr. Thomas also

claimed to be a regular associate with Mr. McMillan during Mr. McMillan’s distribution

runs, but on the night in question, Mr. McMillan apparently refused to allow Mr. Thomas

to accompany him. See id. at 47-48, 67. Finally, Mr. McMillan stresses that the vehicle

Mr. McMillan was driving on the night in question was a different one than previously

identified by Mr. Thomas as Mr. McMillan’s regular car. See id. at 18, Rec. vol. 3 at

000809.

The government presented evidence that Mr. Thomas had previously provided

reliable information. The agents confirmed that Mr. McMillan was a Trips associate. In

addition, the agents corroborated that Mr. McMillan owned a 9mm Ruger firearm through

information from another informant, Fidel Garner. See Williams Rec. vol. 18 at 62. The

telephone number of the crack house that Mr. McMillan allegedly supplied was also

authenticated. Rec. vol. 3, doc. 000768, vol. 11 at 13, 34. Finally, the agents had verified

other information concerning the Trips organization through surveillance. See Williams

Rec. vol. 11 at 81, 83-84.

Despite Mr. McMillan’s contentions, the trial court determined that Mr. Thomas

was a reliable informant. Corroboration of the supplied information overcomes any

difficulties with Mr. Thomas’s information. As the district court noted, “the information

that [Mr. Thomas] had given on prior occasions was certainly corroborated and, indeed,

8
much of it was on tape, both videotape and audio tape.” Rec. vol. 12 at 70. Based on the

testimony provided by the agents and Mr. Thomas, the trial court’s determination that Mr.

Thomas was reliable is not clearly erroneous. See generally Illinois v. Gates, 462 U.S.

213, 230-32 (1983).

2. Probable cause to perform a warrantless search.

On the evening of July 7 and the morning of July 8, 1994, the record indicates that

the government agents had been monitoring Mr. McMillan’s conversation with their

informant, Trips member Mr. Thomas. See Rec. vol. 2 at 06431-32; Williams Rec. vol.

16 at 190. The agents had given Mr. Thomas $150.00 to repay Mr. McMillan for an

outstanding debt from a drug transaction. See Rec. vol. 11 at 33. The agents recorded

the counting of money and a discussion about crack cocaine between Mr. Thomas and

Mr. McMillan. See id., vol. 2 at 06431-32.

After this conversation, Mr. Thomas informed the agents that he had witnessed a

third Trips member, Lawrence Williams, hand Mr. McMillan several ounces of crack

cocaine in small twist-tie bags. See id., vol. 11 at 41. Mr. Thomas stated that he saw Mr.

McMillan put the contraband in the rear of Mr. McMillan’s vehicle. See id. at 42. The

agents, who were surveilling the exterior of the building, had seen Mr. McMillan enter his

car for “less than a minute,” although they were unable to see what, if anything, Mr.

McMillan was carrying. Williams Rec. vol 16. at 195.

9
 The agents kept Mr. McMillan’s vehicle under surveillance for all but fifteen

minutes that evening until it came to a stop within walking distance of the crack house

that Mr. Thomas had identified as Mr. McMillan’s distribution site. See Rec. vol. 11 at

53. Given the corroboration of Mr. Thomas’s previously supplied information, these

circumstances are sufficient to establish probable cause for the government’s search of

Mr. McMillan’s vehicle. See United States v. Arzaga, 9 F.3d 91, 94 (10th Cir. 1993)

(“We have upheld the warrantless search of a vehicle where ‘events preceding the search

gave the officer probable cause to believe the [vehicle] contained illegal drugs.’”)

(quoting United States v. Rodriguez-Pando, 841 F.2d 1014, 1017 (10th Cir. 1988));

United States v. Corral, 970 F.2d 719, 727 (10th Cir. 1992) (informant testimony coupled

with police corroboration and surveillance supported probable cause for issuance of

search warrant).

It is well-established that where officers have probable cause to believe a vehicle

contains contraband, a warrantless search of that vehicle does not violate the Fourth

Amendment.2 See Ornelas, 116 S. Ct. at 1660 (“[A] warrantless search of a car is valid if

based on probable cause.”) (citing California v. Acevedo, 500 U.S. 565, 569-70 (1991));

2
The record indicates that the search may have also been a valid search
incident to Mr. McMillan’s arrest for providing false information to the investigating
officers. See United States v. Robinson, 414 U.S. 218, 234 (1973). Because the
government does not raise this alternative basis to justify the search on appeal, we have
limited our inquiry into the search’s validity as a warrantless search of an automobile
based on probable cause. See Rec. vol. 4, doc. 45 at 2, 18-19).

10
Arzaga, 9 F.3d at 94. The warrantless search of an automobile based on probable cause is

justified by the vehicle’s inherent mobility and the diminished expectation of privacy that

surrounds the vehicle. See Arzaga, 9 F.3d at 94 (citing United States v. Chadwick, 433

U.S. 1, 12 (1977)). Accordingly, the district court was correct in denying Mr. McMillan’s

motion to suppress.

C. Conviction under § 924(c)(1)

Mr. McMillan next argues there was insufficient evidence that he used or carried a

firearm to support his conviction under 18 U.S.C. § 924(c)(1) violation under the pre-

Bailey instructions given to the jury. See Bailey v. United States, 116 S. Ct. 501, 505

(1995). We review for plain error because Mr. Simpson did not object to the instruction

at trial. United States v. Spring, 80 F.3d 1450, 1465 (10th Cir.), cert. denied, 117 S. Ct.

385 (1996).

Here, the indictment charged that Mr. McMillan “did willfully and unlawfully use

and carry the following ‘firearm’ . . . during and in relation to a drug trafficking crime. . .

.” Rec. vol. 1, doc. 1 at 9, doc. 2 at 9.3 The district court instructed the jury that it had to

find that Mr. McMillan "used or carried a firearm during and in relation to [his]

3
Mr. McMillan was indicted for “using and carrying” a firearm. However,
18 U.S.C. § 924(c)(1) defines the crime in the disjunctive, as did the jury instruction.
“[A] crime denounced in the statute disjunctively may be alleged in an indictment in the
conjunctive, and thereafter proven in the disjunctive.” United States v. Parrish, 925 F.2d
1293, 1297 (10th Cir. 1991) (internal quotation marks omitted).

11
commission of [the crime possession with intent to distribute crack cocaine].” Rec. vol.

9, doc. 120 at 22 (emphasis supplied). The instruction continued:

The government is not required to prove that [Mr. McMillan] actually fired
the weapon or brandished or displayed it in order to prove “use,” as that
term is used in this instruction. The defendant need not have actual
possession of either the firearm or drugs. It is enough if [Mr. McMillan]
had ready access to the weapon. However you must be convinced beyond a
reasonable doubt that the firearm played a role in or facilitated the
commission of a drug offense, and [Mr. McMillan] intended the weapon to
be available for use during the drug transaction. In other words, you must
find that the firearm was an integral part of the drug offense charged, and
its availability increased the likelihood that the criminal undertaking would
succeed. For example, you may infer from the circumstances that the
presence of the weapon emboldened the defendant, that it was readily
accessible to protect defendant’s possession of the drugs, or as a safeguard
during an illegal drug transaction.

Id. at 22-23. At the time of Mr. McMillan’s trial, the district court’s instruction was an

accurate statement of the law. See United States v. Conner, 972 F.2d 1172, 1173-74

(10th Cir. 1992).

The Supreme Court, in Bailey v. United States, explained that in order to convict

under § 924(c)(1) there must be more than simply evidence that the firearm was readily

accessible under the "use" prong of 18 U.S.C. § 924(c)(1); the evidence must show there

was an active employment of the firearm, “a use that makes the firearm an operative

factor in relation to the predicate offense.” 116 S. Ct. at 505. Thus, the mere placement

of a firearm for protection, or nearby concealment of a gun to be prepared for a

confrontation is no longer within the scope of the use prong of § 924(c)(1). See id. at

12
508 (stating that “use” does not extend to situation “where an offender conceals a gun

nearby to be at the ready for an imminent confrontation”).

1. Plain Error Test

The Supreme Court has recently narrowed the plain error test. See Johnson v.

United States, 117 S. Ct. 1544 (1997). Before we can correct an error that was not

raised at trial there must be (1) an “error,” (2) that is “plain,” (3) that “affects substantial

rights, and (4) that “seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 1549 (quoting United States v. Olano, 507 U.S. 725, 732

(1993) (quoting United States v. Young, 470 U.S. 1, 15 (1985) (internal quotations

omitted))).

a. Was there an Error?

There is no doubt that the submission of the proffered instruction to the jury today

would be error under Bailey, and thus the first prong of the plain error test is satisfied.

“We have held that Bailey applies retroactively to cases on direct appeal on the date it

was decided.” United States v. Miller, 84 F.3d 1244, 1256 (10th Cir. 1996) (citing United

States v. Wacker, 72 F.3d 1453 (10th Cir. 1995)); see Johnson, 117 S. Ct. at 1549.

13
 b. Was the Error Plain?

Similarly, there is little doubt that the error is clear under current law, although, as

in Johnson, “it was by no means clear at the time of trial.” 117 S. Ct. at 1549. “[I]t is

enough that the error be ‘plain’ at the time of appellate consideration.” Id.

c. Did the Error Affect Substantial Rights?

The third element, that the error “affects substantial rights” may be more difficult

to discern. The Johnson Court assumed without deciding that the failure to submit

materiality to the jury in a perjury prosecution “affected substantial rights,” i.e. was

substantially harmful to the defendant’s rights. Id. at 1550, see United States v. Holland,

__ F.3d __, No. 96-1102, 1997 WL 364290, at *7 n.3 (10th Cir. July 2,1997).

We noted in Holland that Justice Scalia’s concurrence in California v. Roy, 117 S.

Ct. 337, 339-40 (1996) (per curiam), sheds light on the inquiry used to determine whether

a plain error “affects substantial rights.” 1997 WL 364290, at *7 n.3. Justice Scalia

stated that “[t]he absence of a formal verdict on [each necessary element of the crime]

can not be rendered harmless by the fact that, given the evidence, no reasonable jury

would have found otherwise. To allow error to be cured in that fashion would dispense

with trial by jury.” Roy, 117 S. Ct. at 339 (Scalia, J., concurring). He continued: “The

error . . . can be harmless only if the jury verdict on other points effectively embraces

[this element] or if it is impossible, upon the evidence, to have found what the verdict did

14
find without finding this point as well.” Id. (emphasis supplied) (citing Carella v.

California, 491 U.S. 263, 271 (1989)).

The government argues that although the instruction in this case was defective

under Bailey, there was sufficient evidence to support both a use and a carry conviction in

the record. Rec. vol. 9, doc 124. at 3-5. The government further suggests that evidence

in the record clearly and undisputedly demonstrated that Mr. McMillan “carried” a

firearm, and the jury necessarily based its verdict on conduct that, after Bailey, is

considered criminal.

The district court determined that the evidence in the record established “that Mr.

McMillan had the firearm with him because of the drugs and because he was in the [crack

cocaine distribution] business at the time.” Williams Rec. vol. 27 at 12. Further, the

court stated that

the evidence clearly meets any definition of carry in relation to or in
connection with a drug offense. And, therefore, there was ample evidence
to support carry. . . . [T]his . . . is a general verdict form and there’s no
ground for a motion for acquittal because there’s supporting evidence on
carry. . . . [T]he verdict was, in my view, on the basis of carry.

Id. at 12-13.

In Holland, this court held that a trial court’s § 924(c)(1) instruction, although

incorrect under Bailey, does not require vacation of the conviction. See Holland, 1997

WL 364290, at *6. We noted that the demands are several to affirm a “carrying”

conviction when dealing with a defective § 924(c) instruction:

15
 The essential inquiry is whether the jury’s verdict, under the instructions
given and the nature of the evidence, required the jury to find all the
elements of a ‘carrying’ violation, or stated another way, whether the
verdict was the functional equivalent of such a finding. We must be
convinced that it was impossible upon the evidence and instructions for the
jury to have returned a ‘use’ conviction without finding all the elements of a
‘carrying’ violation as well.

Id. at *7 n. 4; see Roy, 117 S. Ct. at 340 (Scalia, J., concurring). Thus, the fact that the

evidence was sufficient to support a conviction on a legally valid ground does not

eliminate the possibility that the defendant could have been convicted solely on a legally

invalid ground or the resulting prejudice unless, in convicting the defendant, “the jury

necessarily made the findings required to support a conviction on the valid ground.”

Holland, 1997 WL 364290, at *5.

In Holland, the trial court’s “use” instruction, incorrect post-Bailey, incorporated

certain elements that overlap with the “carry” prong: “Use is established when the

defendant has ready access to the firearm and the firearm was an integral part of his

criminal undertaking . . . . [T]o find use, you must find that the defendant actually and

knowingly possessed the firearm as possession is defined elsewhere in these instructions.”

Id. at *3.

The Holland trial court’s “carry” instruction was proper, delineating the elements

of the defendant’s transportation and possession of a firearm, during or in relation to a

drug trafficking offense. See id. at *3 and n.2. The trial court in Holland also instructed

the jury on possession, both actual and constructive, either of which the jury must have

16
found to convict under either the “use” or “carry” prong of § 924(c). See id. at *5. We

concluded that the jury necessarily found the facts that the firearm was located under the

front passenger seat of a car owned and driven by the defendant “as predicates for its

finding of possession, a finding that was a requisite part of the ‘use’ conviction under the

court’s instruction.” Id. The court went on to determine that the jury similarly

necessarily made findings as to each necessary element of the carry prong, made under

proper instructions, and supported by sufficient evidence. See id. at *6.

In Holland, the unusual overlap of jury instructions, jury findings, and supporting

evidence enabled us to supply the elements of “carry” under § 924(c)(1). We are unable

to do the same in this case, however, and thus cannot affirm on the same basis.

Here, the district court instructed jury that Mr. McMillan "used or carried" a

firearm, without distinguishing between the two prongs. Rec. vol. 9, doc 20 at 22. Thus

under the issued instruction, the jury could have concluded that "use" and "carry" were

synonymous. See United States v. Simpson, 94 F.3d 1373, 1379 (10th Cir.) (where

instruction did not separately define “use” and “carry” prong, “the jury could have

erroneously decided that the terms . . . were redundant”), cert. denied, 117 S. Ct. 411

(1996).

Thus, unlike the instructions in Holland, here we have an improper “use”

instruction, no valid “carry” instruction, and few jury findings from which we can garner

“necessary” and “inherent” conclusions. See Holland, 1997 WL 364290, at *7 n.4. The

17
instruction here alludes to the element of possession, but suggests it need not be found,

stating “[t]he defendant need not have actual possession of either the firearm or drugs.”

Rec. vol. 9, doc. 120 at 22. The instruction makes no mention of the element of

transportation. Finally, here, unlike the defendant in Holland, Mr. McMillan disputes

whether the firearm was carried on his person or within his reach available for immediate

use. See Aplt’s Supp. Br. at 34, Rec. vol. 27 at 10-12; see Holland, 1997 WL 364290, at

*7 n.4.

That the facts make the presence of the elements of transportation and possession

appear obvious does not translate into the functional equivalent of a finding by the jury

that Mr. McMillan carried the weapon. There is no evidence in the record that Mr.

McMillan placed the firearm in the vehicle. Mr. McMillan disputes the evidence of

“carry” in the record on appeal. We conclude that it was not “‘impossible’. . . for the jury

to have returned a ‘use’ conviction” under the defective “use” instruction “without

finding all the elements of a ‘carrying’ violation as well.” Holland, 1997 WL 364290 at

*7 n.4; Roy, 117 S. Ct. at 339-40 (this type of error “can be harmless only if the jury

verdict on other points effectively embraces [this element] or if it is impossible . . to have

found what the verdict did find without finding this point as well”) (Scalia, J., concurring)

(emphasis supplied).

18
 d. Did the Error Seriously Affect the Fairness, Integrity, or Public

Reputation of Judicial Proceedings?

In Johnson, the Court noted that if the evidence supporting the forfeited error, was

“overwhelming” and “essentially uncontroverted” at trial, 117 S. Ct. at 1550, the error

would not satisfy the final prong of Olano, that is, one that “seriously affected the

fairness, integrity, or public reputation of judicial proceedings.” 507 U.S. at 736. As

established in our evaluation of the prejudice prong above, the jury findings and the

evidence in the record do not necessarily include the elements of “carry.” Mr.

McMillan’s arguments before the district court and on appeal further highlight the lack of

“overwhelming” evidence that he “carried” the weapon. Thus, the lack of an actual jury

verdict on “carry” is an error that “seriously affects the fairness, integrity, and public

reputation of judical proceedings.” Olano, 507 U.S. at 736. See also Roy, 117 S. Ct. at

339 (“The absence of a formal verdict on this point can not be rendered harmless by the

fact that, given the evidence, no reasonable jury would have found otherwise.”) (Scalia,

J., concurring). Accordingly, Mr McMillan has satisfied the four prongs of the plain error

test.

2. Remand

This conclusion does not suggest that there is not sufficient evidence on which to

retry Mr. McMillan, however. We turn now to the question of whether we must order a

19
new trial. “[W]e will remand for a new trial only if the jury could have returned a guilty

verdict if properly instructed.” Miller, 84 F.3d at 1258. We must determine if there is

sufficient evidence in the record to support a finding that Mr. McMillan used or carried a

firearm under a proper jury instruction.

We conclude that there is insufficient evidence in the record before us that Mr.

McMillan "used" a firearm under Bailey. Although there is evidence that Mr. McMillan

regularly had the firearm in his possession during drug transactions, “[t]hat [Mr.

McMillan] generally carried guns does not satisfy the active employment requirement of

Bailey.” United States v. Richardson, 86 F.3d 1537, 1548 (10th Cir. 1996). The

government has presented little credible evidence that Mr. McMillan brandished,

displayed, bartered, referred to, or in any other way actively employed the firearm with

respect to the drug offense for which he was indicted. The testimony that Mr. McMillan

displayed his gun to government informant Fidel Garner during a separate drug

transaction similarly does not qualify as active employment use during the July 8, 1994

drug transaction. This evidence in the record is legally insufficient to support a finding

that Mr. McMillan "used" the weapon under § 924(c)(1) in furtherance of the drug

transaction for which Mr. McMillan was charged and convicted.

However, we believe there is evidence to support a finding that Mr. McMillan

"carried" a firearm under § 924(c)(1). Both before and after Bailey, to support a finding

that Mr. McMillan carried the firearm, the government must prove “that [Mr. McMillan]

20
transported a firearm in a vehicle and that he had actual or constructive possession of the

firearm while doing do.” Simpson, 94 F.3d at 1379 (quoting Miller, 84 F.3d at 1259). In

addition, the government must also prove that Mr. McMillan “possessed and transported

the firearm, [and availed himself of it] during and in relation to a drug trafficking

offense.” Id. (citing Richardson, 86 F.3d at 1548).

In this case, the gun was found in the driver's seat area of the car, and

approximately 120 grams of crack cocaine, in several plastic twist-tie bags, divided into

street distribution sizes, were discovered in a rear armrest panel of the vehicle. See Rec.

vol. 11 at 56; vol. 1, doc. 7, att. 1 at 2. Although the record does not indicate that Mr.

McMillan carried the firearm to the vehicle, this evidence indicates that Mr. McMillan

“transported the firearm, and it was accessible to him in such a way that he had dominion

and control over it." Simpson, 94 F.3d at 1380 (making finding of dominion when

firearm found under driver's seat).

From this evidence of proximity of the firearm and drugs, a jury reasonably could

have concluded that Mr. McMillan carried the weapon with an intent that the weapon be

available for use during the drug trafficking offense with which he was charged. See

Simpson, 94 F.3d at 1380. Therefore, there is considerable evidence that Mr. McMillan

possessed and transported the firearm: it was readily accessible, Mr. McMillan availed

himself of it, and it played an integral role during the drug transaction. See id.

(remanding “[b]ecause there was some evidence of carrying”). Therfore, we must

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remand for a new trial on the issue of whether Mr. McMillan carried the firearm for

purposes of § 924(c)(1).

D. Sentencing Guidelines

Mr. McMillan also challenges his sentence under 21 U.S.C. § 841(b)(1)(A)(iii),

claiming that the sentence for the crack cocaine offense is unconstitutional. He asserts

that the statutory distinction drawn between the penalties for possession and distribution

of crack and powder cocaine violates Fifth Amendment due process guarantees because

the two substances are chemically identical. Mr. McMillan relies on the 1994 Annual

Report of the United States Sentencing Commission. “In May 1995, the Sentencing

Commission proposed amendments to the sentencing guidelines that would eliminate the

penalty differential between crack and powder cocaine.” See United States v. Fonts, 95

F.3d 372, 374 (5th Cir. 1996) (per curiam) (citing United States Sentencing Commission,

Amendments to the Sentencing Guidelines, 60 Fed. Reg. 25074, 25075-76 (1995)). The

amendments would have become effective on November 1, 1995, absent action by

Congress. Congress responded, however, and rejected the amendments’ attempt to erase

the disparity in sentencing. See id. at 374; Pub. L. 104-38, 109 Stat. 334, § 1 (1995).

We cannot ignore Congressional action on this issue. Furthermore, this circuit and

every circuit that has addressed the issue has upheld the constitutionality of 21 U.S.C. §

841(b)(1) and United States Sentencing Guideline § 2D1.1 against race-based equal

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protection challenges. See United States v. Thurmond, 7 F.3d 947, 951 (10th Cir. 1993)

(citing cases). Mr. McMillan’s argument certainly fails, and borders on frivolity.

E. Motion for Severance

Mr. McMillan’s fifth contention is that the district court erred in refusing to sever

his trial from the trial of his codefendants. We normally review such a contention under

the abuse of discretion standard, but Mr. McMillan did not even file a motion for

severance before or during his trial. He therefore “has waived the issue unless he can

show that actual prejudice resulted from the joint trial.” United States v. Killip, 819 F.2d

1542, 1547 (10th Cir. 1987). In this case “[j]oinder [wa]s clearly proper under Fed. R.

Crim. P. 8(b), because the [g]overnment alleged that Mr. [McMillan] had ‘participated in

the same . . . series of acts or transactions’ as the other defendants.” Id. (quoting Fed. R.

Crim. P. 8(b)). Mr McMillan alleges he was prejudiced because the weight of the

evidence against his codefendants was much greater than that against him. He contends

that a spillover effect essentially tainted his rights to due process and a fair trial.

Mr. McMillan has not shown actual prejudice and is not entitled to a separate trial.

In Zafiro v. United States, 506 U.S. 534, 539 (1993), the Supreme Court explained that

actual prejudice might occur “only if there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or prevent the jury from

making a reliable judgment about guilt or innocence.” See United States v. Emmons, 24

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F.3d 1210, 1218-19 (varying degrees of culpability between defendants not evidence of

actual prejudice) (quoting Zafiro, 506 U.S. at 539).

The evidence in the record revealed that Mr. McMillan was involved in drug

transactions with Lawrence Williams and other co-defendants. Because of the nature of

the conspiracy charges and Mr. McMillan’s involvement in the Trips organization, the

evidence against Mr. McMillan necessarily overlapped with evidence against his

codefendants. Finally, the fact that the jury was unable to reach a conclusion as to the

conspiracy count against Mr. McMillan shows that the jury actually weighed the evidence

as to each defendant, further suggesting that Mr. McMillan’s rights were not

compromised.

F. Double Jeopardy Claim

Finally, Mr. McMillan appeals the district court’s rejection of his claim that the

forfeiture of his property to the government, as proceeds of illegal drug transactions,

before his sentencing in the criminal proceeding, violated the Double Jeopardy clause.

Mr. McMillan’s counsel has filed an Anders brief and motion to withdraw as to this issue,

stating that in his opinion no meritorious issue exists on appeal. See Anders v. California,

386 U.S. 738, 744 (1967). Under Anders, counsel must file a brief “referring to all

matters in the record that might reasonably support an appeal.” United States v. Mihaly,

67 F.3d 894, 895 (10th Cir. 1995) (citing Anders, 386 U.S. at 744).

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 Under the Supreme Court’s recent holding in United States v. Ursery, 116 S. Ct.

2135, 2148-49 (1996), civil actions seeking forfeiture of items used in or derived from

drug transactions that are the basis of the prosecution are not punitive, but rather remedial

in nature. Such forfeitures therefore do not implicate the Double Jeopardy clause. We

grant Mr. McMillan’s counsel’s motion to withdraw from the presentation of this claim.

The district court’s denial of Mr. McMillan’s motion was correct.

III. Conclusion

For the reasons stated, Mr. McMillan’s conviction for using or carrying a firearm

in relation to a drug-trafficking offense under 18 U.S.C. § 924(c)(1) is reversed, his

sentence for that offense is vacated, and the case is remanded for a new trial on that

offense. His conviction and sentence are affirmed in other respects.

Entered for the Court,

Robert H. Henry
Circuit Judge

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