United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2000 Decided June 26, 2001
No. 99-3083
United States of America,
Appellee
v.
William Austin Green,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 90cr00553-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A. J. Kramer, Federal Public Defender.
Mary B. McCord, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney at the time the brief was filed, and John
R. Fisher, Mary-Patrice Brown and Robert D. Okun, Assis-
tant U.S. Attorneys.
Before: Edwards, Chief Judge, Garland, Circuit Judge,
and Silberman, Senior Circuit Judge.*
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: William Austin Green was con-
victed in 1991 for "using or carrying" a firearm during and in
relation to a violent crime, in violation of 18 U.S.C.
s 924(c)(1). After an unsuccessful direct appeal, Green
brought a collateral challenge to his conviction pursuant to 28
U.S.C. s 2255. He contends that in light of Bailey v. United
States, 516 U.S. 137 (1995), the trial judge misinstructed the
jury as to the meaning of "using or carrying." The district
court denied Green's motion to vacate his sentence, conclud-
ing that any error was harmless. We agree with the district
court and affirm the judgment below.
I
On October 31, 1990, Green helped Rita Peaks abduct a
three-year-old girl from her mother and legal custodian. The
kidnapping occurred as mother and child, the latter dressed
in her Halloween costume, walked down a street in the
District of Columbia. Green approached them from behind,
grabbed the child, ran across the street, jumped into Peaks'
waiting car, and drove off. Peaks intended to take the child
to Arizona to live with her and Carl Butler, the child's father.
After a number of intervening events, dramatic but unneces-
sary to describe here, Green and Peaks persuaded two others,
Ernie Davis and Jerome Diggs, to provide a car and accompa-
ny them on their trip.
Although Green and Peaks had told Davis and Diggs that
their destination was Virginia, Peaks instead drove the group,
including the kidnapped child, into Maryland. When Davis
realized that Peaks planned a longer trip than he had expect-
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* Senior Judge Silberman was in regular active service at the
time of oral argument.
ed, he expressed reservations about continuing on the jour-
ney. Davis testified that Peaks stopped the car, and that
Green then pointed a gun "in [his] face" and ordered him out.
Diggs testified that he also tried to get out of the car, but
that Green grabbed him from behind, held a gun to his head,
and told Peaks to drive away.
Peaks, Green, Diggs, and the child traveled west until they
reached Kansas City, Missouri, where they were stopped by
police officers. At the time, Diggs was in the driver's seat
and Green in the front passenger's seat. Because Diggs
could not produce a license or registration, the officers asked
the group to step out of the car. After a brief search, Officer
Mark Johnson found a loaded .25 caliber pistol under the
center console in the car's front seat. At trial, Officer
Johnson testified that Green immediately stated, "that's my
gun." Diggs also testified that Green claimed ownership of
the weapon, and that the gun seized by the officer appeared
to be the same one Green had earlier brandished at him.
The officers placed Green under arrest for carrying a con-
cealed weapon, and permitted the others (including the child)
to drive off. Following further adventures, again unneces-
sary to recount, Peaks was arrested in Colorado and the child
was returned to her mother.
On January 15, 1991, Green was charged with: kidnapping,
in violation of 18 U.S.C. s 1201; conspiracy to kidnap, in
violation of 18 U.S.C. s 371; assault with intent to kidnap, in
violation of D.C. Code s 22-503; transporting a firearm in
interstate commerce while under indictment for a felony, in
violation of 18 U.S.C. s 922(n); and using or carrying a
firearm during and in relation to a violent crime, in violation
of 18 U.S.C. s 924(c)(1). Green was also charged with tam-
pering with and retaliating against a witness, in violation of
18 U.S.C. ss 1512(b)(1) and 1513, for asking Davis to lie to
the grand jury while the two were in custody and for punch-
ing Davis after he testified.
Green, who was tried jointly with Peaks, neither testified
nor presented witnesses in his defense. Following closing
arguments, the trial court instructed the jury that the first
element of the s 924(c)(1) offense was that "the defendant
was carrying or used a firearm." 4/19/91 Tr. at 119. In
defining "using or carrying," the court advised the jury, inter
alia, that: "In order to satisfy this element,.... [i]t is suffi-
cient if you find that [the defendant] transported or conveyed
a weapon or 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." Id. at 120 (emphasis added).
On April 19, 1991, the jury found Green guilty of all
charges. This court affirmed his convictions in 1993. United
States v. Green, Nos. 91-3200, 92-3005, 1993 WL 119451
(D.C. Cir. Mar. 23, 1993). In 1995, the Supreme Court
decided Bailey v. United States, 516 U.S. 137 (1995), which
clarified the meaning of "using" a firearm under s 924(c)(1).
Bailey held that to prove "use," "the Government must show
that the defendant actively employed the firearm during and
in relation to the predicate crime." Id. at 150. Thus, a
conviction for "using" a firearm under s 924(c)(1) "requires
more than a showing of mere possession." Id. at 144.
Following Bailey, Green filed a motion under 28 U.S.C.
s 2255 to vacate, set aside or correct his sentence. After
holding a hearing, the district court denied Green relief. The
court found that any error in the s 924(c)(1) instruction was
harmless, because by convicting Green of unlawfully trans-
porting a firearm in interstate commerce under 18 U.S.C.
s 922(n), the jury necessarily concluded that Green had "car-
ried" the firearm as well. See United States v. Green, No.
90-cr-553, slip op. at 5-6 (D.D.C. Apr. 28, 1999).
II
The government concedes that, in light of the Supreme
Court's subsequent decision in Bailey, the trial court erred by
conflating the terms "using" and "carrying" and effectively
instructing the jury that it could convict Green if it found he
had merely constructively possessed a weapon. See United
States v. Johnson, 216 F.3d 1162, 1166 (D.C. Cir. 2000); In re
Sealed Case, 153 F.3d 759, 770-72 (D.C. Cir. 1998). The
government contends, however, that because Green failed to
object to the jury instructions either at trial or on direct
review, "the claim may be raised in habeas only if the
defendant can first demonstrate either 'cause' and actual
'prejudice,' ... or that he is 'actually innocent.' " Gov't Br. at
20 (quoting Bousley v. United States, 523 U.S. 614, 622
(1998)). Green counters that, among other things, the gov-
ernment waived this procedural default argument by failing
to make it with respect to the "carry" instruction in the
s 2255 proceeding below. He instead urges us to vacate his
conviction unless we find "harmless error," the standard we
apply on direct review when the defendant has objected to
the instruction at trial. See Fed. R. Crim. P. 52(a).
On several previous occasions we have surveyed the stan-
dards of review potentially applicable to Bailey trial errors.
In each case, we have found it unnecessary to select the most
appropriate standard, because in each the defendant's convic-
tion survived the standard most favorable to him--harmless
error. See Johnson, 216 F.3d at 1166; United States v.
Joseph, 169 F.3d 9, 13 n.7 (D.C. Cir. 1999); United States v.
Perkins, 161 F.3d 66, 71-74 (D.C. Cir. 1998); United States v.
Toms, 136 F.3d 176, 180 n.6 (D.C. Cir. 1998). As we discuss
in Part III, the same is true here.
Error is harmless if it appears "beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained." Chapman v. California, 386 U.S. 18, 24 (1967).1
In numerous cases we have found Bailey errors to be harm-
less where "the jury necessarily found facts that would have
satisfied a proper instruction." Johnson, 216 F.3d at 1166-67
(collecting cases). And we have often found that to be the
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1 Chapman establishes the standard for determining whether
constitutional error was harmless on direct appeal, whereas Kottea-
kos v. United States, 328 U.S. 750, 776 (1946), provides the standard
for nonconstitutional harmless error. The Chapman standard is
more favorable to a defendant. See Johnson, 216 F.3d at 1166 n.4.
Because Green does not merit relief even under that more favorable
standard, we apply Chapman without considering which standard is
more appropriate in the context of Green's collateral attack on his
conviction. See id. (noting that Kotteakos normally applies on
collateral review, but applying Chapman where government argued
only Chapman below).
case where, although there was instructional error as to the
"using or carrying" charge, a conviction on another statutory
count assured us that the jury had necessarily found the
element as to which the jury had been mischarged. See id.
Indeed, in both United States v. Johnson and United States
v. Kennedy, we encountered erroneous instructions that, like
the one at issue here, conflated the terms "using" and "carry-
ing" and defined the s 924(c)(1) offense too broadly. See
Johnson, 216 F.3d at 1166; Kennedy, 133 F.3d 53, 58 (D.C.
Cir. 1998). In each case, however, we concluded that because
the defendant was also convicted of assaulting a police officer
with a gun, the jury necessarily concluded that the defendant
had "carried" the same gun. See Johnson, 216 F.3d at 1167;
Kennedy, 133 F.3d at 58; see also United States v. Smart, 98
F.3d 1379, 1393 (D.C. Cir. 1996) (finding harmless error
where, although the court improperly defined "using or carry-
ing" as including constructive possession, the jury necessarily
found "carrying" within the meaning of s 924(c)(1) because it
also convicted the defendant of "carrying a pistol without a
license"); cf. United States v. Winstead, 74 F.3d 1313, 1320-
21 (D.C. Cir. 1996) (finding harmless error where the court
failed to instruct the jury on the element of materiality in a
false statements count, because the jury also found the defen-
dant guilty on an overlapping mail fraud count as to which it
had been instructed regarding materiality).
These cases might be characterized as ones in which facts
necessarily found by juries in convicting defendants on prop-
erly charged counts were the "functional equivalent" of ele-
ments that were erroneously described with respect to other
counts. But as we noted in Johnson, the Supreme Court held
in Neder v. United States, 527 U.S. 1 (1999), that "error can
be harmless even if 'other facts necessarily found by the jury'
are not the 'functional equivalent' of the omitted or misdes-
cribed element--even under a broad definition of 'functional
equivalent.' " Johnson, 216 F.3d at 1167 (quoting Neder, 527
U.S. at 13); see also Neder, 527 U.S. at 16 n.1. The disposi-
tive question is simply whether it is "clear beyond a reason-
able doubt that a rational jury would have found the defen-
dant guilty absent the error." Neder, 527 U.S. at 18.
We now turn to an analysis of the facts of this case, in
order to determine whether the district court's instructional
error was harmless beyond a reasonable doubt.
III
Although the "using or carrying" instruction in this case
was erroneous, the jury convicted Green of another charge
that required the jury to find facts that are the "functional
equivalent" of "carrying" under s 924(c)(1): unlawfully trans-
porting a gun in interstate commerce in violation of s 922(n).
Green correctly notes that "transporting" may at times have
a broader meaning than "carrying": for example, "transport-
ing" may include shipping items through the mail. See
Muscarello v. United States, 524 U.S. 124, 134-36 (1998). As
the district court explained, however, in this case:
The only evidence presented to the jury that defendant
"shipped or transported" a firearm in interstate com-
merce was testimony from Ernie Davis and Jerome
Diggs that defendant held a firearm in his hand during
the interstate journey, and testimony from Officer Mark
Johnson of the Kansas City Police Department that
defendant proclaimed ownership of a loaded gun that
Johnson found "underneath the center console ... in the
front seat" of the car where defendant was a passenger.
Green, slip op. at 5 (transcript citations omitted). This
evidence plainly constitutes "carrying" under s 924(c)(1).
In Muscarello v. United States, the Supreme Court held
that "carrying" includes both "carrying of firearms on the
person" and "knowingly possess[ing] and convey[ing] firearms
in a vehicle, including in the locked glove compartment or
trunk of a car, which the person accompanies." 524 U.S. at
126-27. Because the evidence that Green "transported" the
gun during the trip was exclusively evidence that constitutes
"carrying" as described in Muscarello, we agree with the
district court that in finding Green guilty of violating
s 922(n), the jury necessarily found facts constituting a viola-
tion of s 924(c)(1) as well. This renders any error in the
"using or carrying" instruction harmless. See, e.g., Perkins,
161 F.3d at 74.
Green contends that there is a scenario under which the
jury could properly have convicted him both for "transport-
ing" a firearm under s 922(n), and for "carrying" a firearm
under the erroneous s 924(c)(1) charge, but still not have
found sufficient evidence for a proper s 924(c)(1) conviction.
The jury might have believed, Green claims, that Rita Peaks
"conveyed" the gun during the car ride, and that he did not
assume constructive possession until after the car was
stopped and the police found the gun. Def. Br. at 17. Green
appears to contend that under the erroneous "carrying"
instruction, the jury could have convicted him for construc-
tively possessing the gun after the officers ordered him out of
the car, without finding that he also constructively possessed
it in the moving car. Were this the case, the "carrying"
conviction would fail Muscarello's requirement that even in a
car, a defendant must have "personal agency and some
degree of possession." 524 U.S. at 134. Green appears
further to contend that the s 924(c)(1) error is not cured by
the "transporting" conviction because the judge assertedly
botched the latter instruction as well--by permitting the jury
to find Green guilty of "transporting" the gun without having
any possessory interest in it at all. Def. Reply Br. at 7 n.2.
Although we do not agree with Green's characterization of
the district court's "transporting" instruction,2 the evidence at
trial does not in any event support this thoroughly implausi-
ble scenario. First, Green's hypothetical is inconsistent with
the testimony of both Officer Johnson and Jerome Diggs that
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2 Immediately after describing the elements of the s 922(n)
"transporting" charge, the court told the jury that "in order to
return a guilty verdict against Mr. Green on this count, you must be
unanimous that the defendant Green used and carried a particular
firearm." 4/19/91 Tr. at 118. Green contends that by making this
statement, the court equated "transporting" with "using or carry-
ing," and thereby imported the flaws of the "using or carrying"
instruction into the "transporting" charge. To the contrary, the
court, at worst, inadvertently added an additional element to the
already-stated requirements of the s 922(n) charge.
Green claimed ownership of the gun; neither witness testified
that Green expressed any caveats regarding when he came to
own or possess the weapon. Second, the contention that
Green had no possessory interest in the gun until after he
stepped out of the car is inconsistent with the testimony of
five witnesses, who testified that, during Green's post-
abduction travels, they had seen him brandish either a gun or
the same gun the officers later found. Finally, not one
witness testified that the gun recovered by Officer Johnson
belonged to Peaks or that Green lacked control over it at any
time.
The only evidence offered by Green in support of his
scenario is Diggs' testimony, contrary to that of Officer
Johnson, that Green did not immediately say the gun was his.
Diggs testified, instead, that: "[Green] kept saying it didn't
belong to him, until he turned around and asked Rita will she
bond him out.... She said yeah, and he said it's his gun.
Then he turned around to the officer and said that it's his
gun." 4/17/91 Tr. at 139. Green claims that from this
testimony, the jury could have inferred that Green did not
possess the gun during the car ride, but rather falsely
claimed ownership in order to enable Peaks to escape.
This "evidence" does not increase the plausibility of Green's
scenario. Nothing on the face of Diggs' rendition supports
Green's interpretation of the testimony. Rather, the most
straightforward reading is that Green did not want to confess
his guilt until he was certain that Peaks would bail him out--
not that he falsely confessed in order to save her. Diggs did
not himself interpret Green's words as Green suggests; to
the contrary, Diggs testified that Green had brandished what
appeared to be the same gun earlier in the trip. Hence, to
accept this scenario, the jury would have had to disbelieve
Diggs' testimony about that earlier incident, and then inter-
pret in a less-than-obvious way Diggs' testimony that Green
did not immediately confess his ownership. Moreover, the
jury would have had to so reason in the face of uncontradict-
ed evidence that Green did in fact exercise control over the
gun during the cross-country trip.3
As we have said many times before, it is the evidence
before the jury that determines whether a conviction survives
harmless error review. See, e.g., Johnson, 216 F.3d at 1168;
Perkins, 161 F.3d at 75; United States v. Washington, 106
F.3d 983, 1013 (D.C. Cir. 1997); Smart, 98 F.3d at 1393-94 &
n.22. We will not find an error harmful based merely on "any
hypothetical the defendant can conjure up." Johnson, 216
F.3d at 1168 (quoting Perkins, 161 F.3d at 75). Rather, the
"scenario offered by defense counsel must be plausible in
light of the evidence at trial, not merely theoretically possi-
ble." Johnson, 216 F.3d at 1168. Green's scenario is simply
not plausible, and thus does not undermine our conclusion
that the error in his jury instruction was harmless beyond a
reasonable doubt.
IV
Although the "using or carrying" instruction at Green's
trial was erroneous in light of the Supreme Court's subse-
quent decision in Bailey, we conclude that the error was
harmless. Accordingly, we affirm the judgment of the dis-
trict court.
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3 A further flaw in Green's scenario is that if the jury truly
believed that Green did not possess the gun during the trip, but
only falsely claimed ownership after the police found it, the jury
would not have convicted him of "carrying" even under the trial
court's erroneous instruction. The court instructed the jury that to
convict, it would have to find that Green had "both the power and
the intention to exercise dominion and control over" the weapon.
4/19/91 Tr. at 119. At the time Green made his claim to ownership,
the gun was in the hands of Officer Johnson. Hence, whatever
Green's intention, he plainly no longer had the "power" to exercise
dominion and control.