United States v. Chen

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-5036

CHANG HAN CHEN, a/k/a #34,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-5042

CHONG CHAO CHEN, a/k/a #21,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-94-156-S)

Argued: April 8, 1997

Decided: October 31, 1997

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,
HALL, MURNAGHAN, WILKINS, NIEMEYER, HAMILTON,
LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges,
sitting en banc.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the opinion in
which Chief Judge Wilkinson and Judges Russell, Widener, Hall,
Murnaghan, Wilkins, Niemeyer, Hamilton, Luttig, Michael, and Motz
joined. Judge Williams wrote a concurring opinion, in which Chief
Judge Wilkinson and Judges Russell, Wilkins, Niemeyer, and Luttig
joined.

_________________________________________________________________

COUNSEL

ARGUED: Fred Warren Bennett, CATHOLIC UNIVERSITY LAW
SCHOOL, Washington, D.C., for Appellants. Andrew George War-
rens Norman, Assistant United States Attorney, Baltimore, Maryland,
for Appellee. ON BRIEF: Daniel W. Stiller, Baltimore, Maryland;
Michael L. Soshnick, Mineola, New York; James C. Savage, LAW
OFFICES OF JAMES SAVAGE, P.A., Rockville, Maryland, for
Appellants. Lynne A. Battaglia, United States Attorney, Virginia B.
Evans, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

We granted en banc review in this case to determine whether the
convictions and sentences of Chong Chao Chen ("Chong") and Chang
Han Chen ("Chang"), members of an alien-smuggling ring, should
stand.1 Chong and Chang were convicted by a jury of using or carry-
ing a firearm, or aiding and abetting the same, during a crime of vio-
lence, see 18 U.S.C.A. §§ 2, 924(c)(1) (West Supp. 1997). On appeal,
they contend that their § 924(c)(1) convictions must be vacated
because the district court misinstructed the jury in light of the
Supreme Court's decision in Bailey v. United States, 116 S. Ct. 501
_________________________________________________________________
1 Argument before a three-judge panel was held on October 29, 1996.
Before an opinion in the case was published, a member of the court sua
sponte requested a poll on whether this case should be reheard en banc.
A majority of judges in active service voted to rehear the case and
ordered supplemental briefing. Argument before the full court was heard
on April 8, 1997.

2
(1995), which, subsequent to their convictions, clarified the meaning
of "use" under the statute. By an equally divided court we affirm their
§ 924(c)(1) convictions.

In addition to being convicted of violating § 924(c)(1), Chong and
Chang were convicted of conspiracy to kidnap, see 18 U.S.C.A.
§ 1201(c) (West 1984); kidnapping, see 18 U.S.C.A. §§ 2 (West
1969), 1201(a) (West 1984 & Supp. 1997); hostage taking, see 18
U.S.C.A. §§ 2, 1203 (West Supp. 1997); conspiracy to interfere with
commerce by threats or violence, see 18 U.S.C.A. § 1951(a) (West
Supp. 1996); conspiracy to transport and harbor aliens, see 18
U.S.C.A. § 371 (West 1966 & Supp. 1997); alien harboring, see 8
U.S.C.A. § 1324(a)(1)(A)(iii) (West Supp. 1997), 18 U.S.C.A. § 2;
and collecting extension of credit by extortionate means, see 18
U.S.C.A. §§ 2, 894 (West 1976 & Supp. 1997). Chong also was con-
victed of bringing in aliens, see 8 U.S.C.A.§ 1324(a)(1)(A)(I) (West
Supp. 1997), 18 U.S.C.A. § 2; and transporting aliens, see 8 U.S.C.A.
§ 1324(a)(1)(A)(ii) (West Supp. 1997), 18 U.S.C.A. § 2. For these
crimes, and for their § 924(c)(1) convictions, the district court sen-
tenced Chong to 322 months imprisonment and Chang to 168 months
imprisonment. Chong and Chang claim that they are entitled to new
trials because of numerous procedural errors made by the district
court, and to new sentences because the district court erroneously
increased their offense levels under various provisions of the Sentenc-
ing Guidelines. We reject their contentions and affirm their convic-
tions and sentences.

I.

In January 1994, approximately 105 Chinese nationals from the
People's Republic of China boarded a Taiwanese ship headed for the
United States. The Chinese nationals had agreed to pay from $20,000
to $28,000 each to be smuggled into the United States by members
of an alien-smuggling ring. The Chinese nationals were told by the
smugglers that they could pay this "transportation" fee over time, and
that after arriving in the United States they immediately would be free
to work and earn money. After spending nearly 70 days at sea, the
Chinese nationals were loaded onto a fishing vessel and smuggled
into the United States at Cape May, New Jersey. From there, they
were taken to Prince George's County, Maryland, where they were

3
confined in two safehouses -- one in Upper Marlboro and one in
Mitchelville.

In March 1994, agents of the Federal Bureau of Investigation (FBI)
and the Immigration and Naturalization Service (INS) learned from
wiretaps that numerous Chinese nationals were being held hostage in
the United States. On April 5, 1994, pursuant to valid search warrants,
FBI and INS agents raided three residences in Prince George's
County, Maryland, and one in Queens, New York. As a result of the
searches, the FBI and INS learned that the smugglers were holding
the Chinese nationals hostage and forcing them to raise ransom
money from relatives in China.

The smugglers confined most of the hostages in a house in
Mitchelville, Maryland, locking them in a squalid basement and hold-
ing them captive at gunpoint for 15 days. Armed guards routinely beat
the hostages and otherwise intimidated them in an effort to get them
to raise ransom money. To escape the brutality of the guards, the hos-
tages raised money by telephoning their relatives in China and beg-
ging them to borrow money from Chinese loansharks. At trial,
hostages testified that it was only when they arrived at the Mitchel-
ville house that they realized they would be confined and tortured
until their "transportation" fee had been paid in full. Forty-five of the
hostages were able to raise the ransom money and were driven by the
smugglers to a safehouse in Queens. From there, they disappeared
into the community.

At the Mitchelville house, the remaining hostages were forced to
sleep in rows on the floor in the basement, to urinate in a can, to
remain silent at all times, and to stay in the basement unless escorted
by an armed guard. The floor was littered with mats, pieces of ply-
wood, sheet rock, clothing, and blankets, and the windows were cov-
ered with black plastic and boarded up. During the search, agents
discovered handcuffs and a cache of weapons that contained loaded
sawed-off shotguns and semiautomatic pistols. The agents also dis-
covered ledgers detailing both the names of the hostages and how
much each owed or had paid to the smugglers.

Appellant Chong, a permanent resident alien of the United States,
was one of the leaders of the smuggling ring. When the hostages

4
came into the United States, he was in charge of the guards at the
safehouse in Upper Marlboro, and he later managed the guards at the
house in Mitchelville. Appellant Chang, who was from the same Chi-
nese village as Chong, was himself one of the Chinese nationals
smuggled in as part of the venture. He paid only a part of the ransom
he owed and agreed to work as an armed guard at the Mitchelville
house under Chong's supervision to satisfy the remainder of his debt.
The jury determined that Chong was guilty of all counts charged in
the indictment and that Chang was guilty of all counts except bringing
in and transporting illegal aliens.

II.

Chong and Chang argue that their convictions for using or carrying
a firearm during a crime of violence, see 18 U.S.C.A. § 924(c)(1),
must be vacated because the district court misinstructed the jury in
light of Bailey v. United States, 116 S. Ct. 501 (1995). By an equally
divided court, we affirm Appellants' convictions for violating
§ 924(c)(1). Chief Judge Wilkinson, and Judges Russell, Wilkins,
Niemeyer, Luttig, and Williams vote to affirm the convictions. Judges
Widener, Hall, Murnaghan, Hamilton, Michael, and Motz vote to
reverse the convictions.

III.

Chong and Chang also argue that they are entitled to new trials
because numerous procedural errors were made by the district court.
First, they argue that they are entitled to new trials because the Gov-
ernment failed to comply with Brady v. Maryland , 373 U.S. 83
(1963), and the Jencks Act, 18 U.S.C.A. § 3500 (West 1985), by not
providing a transcript copy of a witness's prior testimony in a juvenile
proceeding.2 We disagree. The Government did not have custody of
a transcript of the sealed juvenile proceedings. Under the Jencks Act,
the Government is not required to produce a copy of a witness's prior
statements not in its possession. See 18 U.S.C.A. § 3500(b) (requiring
_________________________________________________________________
2 The witness, Bao Jin Chen, who testified for the Government against
Chong and Chang, also testified in the previous trial of five juvenile
members of the alien-smuggling ring. See United States v. Juvenile Male,
74 F.3d 526 (4th Cir.), cert. denied, 116 S. Ct. 2558 (1996).

5
Government to produce any statement of the witness in the possession
of the United States).

Second, Chong and Chang argue that the district court erred in per-
mitting the testimony of codefendants who sat through part of the trial
prior to reaching plea agreements with the Government, and in failing
to give a cautionary instruction to the jury regarding codefendant tes-
timony. After carefully reviewing the record and the parties' briefs,
hearing argument on this issue, and applying the proper standard of
review, we reject Appellants' contentions. See United States v.
Blevins, 960 F.2d 1252, 1260-61 n.3 (4th Cir. 1992) (rejecting chal-
lenge to admission of testifying codefendant's guilty plea); United
States v. Gambino, 926 F.2d 1355, 1364 (3rd Cir. 1991) (stating that
mistrial is not required when codefendant changes plea and testifies
against remaining defendants); United States v. Herrera, 832 F.2d
833, 836-37 (4th Cir. 1987) (stating that mistrial is not necessarily
required when codefendant changes plea during trial).

Finally, Chong and Chang argue that the Government exercised its
peremptory challenges in a discriminatory manner in violation of
Batson v. Kentucky, 476 U.S. 79 (1986), by striking three black pro-
spective jurors. Our careful review of the record, however, reveals
that the Government's reasons for striking the prospective jurors were
race-neutral. See id. at 89 (noting that the demeanor of a potential
juror provides an acceptable basis for exercising a peremptory chal-
lenge); United States v. Contreras-Contreras, 83 F.3d 1103, 1105-06
(9th Cir.) (holding that prior jury service is a race-neutral explanation
for a peremptory strike), cert. denied, 117 S. Ct. 259 (1996); United
States v. Darden, 70 F.3d 1507, 1531-32 (8th Cir. 1995) (holding that
lack of experience is a race-neutral explanation for a strike), cert.
denied, 116 S. Ct. 1449 (1996). Accordingly, we affirm Appellants'
remaining convictions.

IV.

Chong and Chang also challenge their sentences. Both argue that
the district court erroneously increased their offense levels three
points because some of the Chinese nationals held hostage were
minors. See U.S. Sentencing Guidelines Manual § 2A4.1(b)(6)
(1995). Chong contends that the district court erroneously increased

6
his offense level two points because a hostage suffered serious bodily
injury. See U.S.S.G. § 2A4.1(b)(2)(B). Chang argues that the district
court erred in refusing to authorize a mental health examination prior
to his sentencing. Such an examination, he argues, would have estab-
lished that he was eligible for a downward departure under the Sen-
tencing Guidelines. See U.S.S.G. § 5K2.12 (coercion and duress).
Chang also complains that the district court erroneously increased his
offense level six points for demanding ransom. See U.S.S.G.
§ 2A4.1(b)(1). After carefully reviewing the record and the parties'
briefs, hearing argument on these issues, and applying the proper
standard of review, we conclude that Appellants' challenges to their
sentences are without merit. See generally United States v. Davis, 19
F.3d 166, 171 (5th Cir. 1994) (affirming enhancement for "serious
bodily injury"); United States v. Graham, 946 F.2d 19, 22 (4th Cir.
1991) (holding that a district court's refusal to depart from the Sen-
tencing Guidelines is unreviewable); United States v. Gonzales, 996
F.2d 88, 93-94 (5th Cir. 1993) (discussing enhancement for ransom
demand); United States v. Rocha, 916 F.2d 219, 242-44 (5th Cir.
1990) (same). We therefore affirm their sentences.

V.

Appellants' convictions for using a firearm during a crime of vio-
lence in violation of 18 U.S.C.A. § 924(c)(1) are affirmed by an
equally divided court. We affirm their remaining convictions, and we
affirm their sentences.

AFFIRMED

WILLIAMS, Circuit Judge, concurring:

Appellants' § 924(c)(1) convictions have been affirmed by the vote
of an equally divided court. Six members of the Court have voted,
without explanation, to reverse Appellants' § 924(c)(1) convictions. I
write separately to explain why I am firmly convinced that the facts
of this case and controlling Supreme Court (and Fourth Circuit) pre-
cedent compel the affirmance of Appellants' § 924(c)(1) convictions,
and why I have voted accordingly. Chief Judge Wilkinson, and
Judges Russell, Wilkins, Niemeyer, and Luttig join this opinion.

7
A nearly unanimous Supreme Court stated recently, in a manner
that leaves no room for doubt, that a district court's misdescription of
an essential element of a crime in its instructions to the jury is amena-
ble to harmless-error analysis. See Johnson v. United States, 117 S.
Ct. 1544, 1550 (1997) (citing Yates v. Evatt, 500 U.S. 391 (1991);
Carella v. California, 491 U.S. 263 (1989); Pope v. Illinois, 481 U.S.
497 (1987); Rose v. Clark, 478 U.S. 570 (1986)). To conclude other-
wise in this en banc case would require me to ignore a clear holding
of the Supreme Court. This I refuse to do.

I.

Chong and Chang argue that their § 924(c)(1) convictions for using
or carrying a firearm during a crime of violence must be vacated
because the district court misinstructed the jury in light of Bailey v.
United States, 116 S. Ct. 501 (1995).1 Chong and Chang, however,
did not object to the instructions on § 924(c)(1) given to the jury. The
Federal Rules of Criminal Procedure provide: "No party may assign
as error any portion of the [jury] charge or omission therefrom unless
that party objects thereto before the jury retires to consider its verdict,
stating distinctly the matter to which that party objects and the
_________________________________________________________________
1 After initial briefing in this case was completed, but prior to oral argu-
ment before the panel, the Government submitted a letter pursuant to
Rule 28(j) of the Federal Rules of Appellate Procedure conceding "error
with respect to Count 11 . . . in which the appellants were found guilty
of using and carrying a firearm during the course of a crime of violence
in violation of 18 U.S.C. § 924(c)." The Government made this conces-
sion in light of United States v. Hawthorne, 94 F.3d 118 (4th Cir. 1996),
and United States v. Smith, 94 F.3d 122 (4th Cir. 1996), cases it believed
were binding circuit precedent. Appellants suggest that this concession
"is entitled to `great weight.'" (Appellants' Supp. Br. at 7.) The Govern-
ment's concession, however, which was withdrawn subsequent to our
decision to hear the appeal en banc, does not preclude independent
review of the issue, see United States v. Stanfield, 109 F.3d 976, 984 n.5
(4th Cir. 1997) (refusing to reverse defendant's conviction despite Gov-
ernment's concession of error), or limit this Court's ability to reconsider
the continuing vitality of Hawthorne and Smith in light of the Supreme
Court's recent pronouncement in Johnson v. United States, 117 S. Ct.
1544, 1550 (1997) (reaffirming that jury misinstructions are amenable to
harmless-error review).

8
grounds of the objection." Fed. R. Crim. P. 30. Nevertheless, under
Federal Rule of Criminal Procedure 52(b), Courts of Appeals may
notice, in their discretion, "[p]lain errors or defects affecting substan-
tial rights," even though no objection was made. See Johnson v.
United States, 117 S. Ct. 1544, 1548 (1997); United States v. Olano,
507 U.S. 725, 731-32 (1993). Therefore, review of Appellants' con-
victions must be for plain error under Rule 52(b).2

Rule 52(b) contains four elements that must be satisfied before an
appellate court may notice an error not preserved by a timely objec-
tion: (1) the asserted defect in the trial proceedings must, in fact, be
error; (2) the error must be plain; and (3) it must affect the substantial
rights of the defendant. See Olano, 507 U.S. at 732. "If all three con-
ditions are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings."
Johnson, 117 S. Ct. at 1549 (quotations omitted) (alteration in origi-
nal).

A.

The first showing required by Rule 52(b) is that an error occurred
in the proceedings below. See Olano, 507 U.S. at 732-33. The district
court instructed the jury that Appellants did not need to actively
employ a firearm to violate § 924(c)(1).3 This expansive interpretation
_________________________________________________________________
2 In supplemental briefing and at oral argument, Appellants contended
that the "Rule 52(b) `plain error' standard is inapplicable to [their] claims
of § 924(c) instructional error." (Appellants' Supp. Br. at 9.) The
Supreme Court, however, recently made clear that"it is . . . Rule [52(b)]
which by its terms governs direct appeals from judgments of conviction
in the federal system, and therefore governs this case." Johnson v. United
States, 117 S. Ct. 1544, 1548 (1997); see also id. (stating that federal
courts have "no authority" to create "out of wholecloth . . . an exception
to" Rule 52(b)).
3 The district court's instruction as to the "use" prong of the gun charge
was as follows:

Under this statute, to use a firearm means to have the firearm
available in such a way that it furthered the commission of the
crime of violence or was an integral part of its commission.

9
of "use" was consistent with the prevailing view in this Circuit that
inactive use of a firearm formed a sufficient basis for upholding a
conviction under the statute. See, e.g., United States v. Paz, 927 F.2d
176, 178-79 (4th Cir. 1991) (holding that a "weapon need not be bran-
dished or displayed" but need only be "`present for protection and to
facilitate the likelihood of success, whether or not it is actually used'"
(quoting United States v. Brockington, 849 F.2d 872, 876 (4th Cir.
1988)). In Bailey, however, the Supreme Court held that the Govern-
ment must show "active employment" to prove that a firearm was
"used" in the manner contemplated by § 924(c)(1). See Bailey, 116 S.
Ct. at 506. Active employment, the Supreme Court stated, "includes
brandishing, displaying, bartering, striking with, and most obviously,
firing or attempting to fire, a firearm." Id. at 508. As a result, the dis-
trict court's jury instruction on "use" was at odds with Bailey.4 Cf.
_________________________________________________________________
It is not necessary that the government prove the defendant
fired or displayed the weapon or even that it was loaded. As long
as the defendant had the firearm available to protect his criminal
endeavor, if he needed to do so, that is sufficient to establish use
of a firearm under this law.

(J.A. at 358.)
4 The district court also misinstructed the jury on the "carry" prong of
§ 924(c)(1). The court instructed the jury that it need find only that
Appellants possessed a firearm to convict them under the "carry" prong
of the statute. Specifically, the court instructed the jury that

[c]arrying a firearm under this statute means to have it within
your control, to have it available in such a way that it furthers
the commission of a crime of violence or was an integral part of
the commission of that crime.

The defendant does not necessarily have to hold it physically.
That is, to have actual possession of it on his person. If you find
the defendant had dominion and control over the place where the
firearm was located and had the power and intention to exercise
control over it, you may find the government has proved that he
carried it.

(J.A. at 358-59.)

Although the Bailey Court did not directly address the definition of
"carry" under the statute, the Court clearly explained that "use" and

10
United States v. Hawthorne, 94 F.3d 118, 121 (4th Cir. 1996) (hold-
ing that the district court misinstructed the jury on the "use" prong of
§ 924(c)(1) in light of Bailey); United States v. Smith, 94 F.3d 122,
124-25 (4th Cir. 1996) (same). Thus, the district court committed
error within the meaning of Rule 52(b).

B.

Second, it is necessary that the error that occurred during the trial
be plain. See Olano, 507 U.S. at 734. "`Plain' is synonymous with
`clear' or, equivalently, `obvious.'" Id. (citing United States v. Young,
470 U.S. 1, 17 n.14 (1985)). In cases "where the law at the time of
trial was settled and clearly contrary to the law at the time of appeal,"
as in this case, "it is enough that an error be `plain' at the time of
appellate consideration." Johnson, 117 S. Ct. at 1549; cf. United
States v. David, 83 F.3d 638, 645 (4th Cir. 1996) (holding that error
is plain, even where not obvious at the time of trial, "where an objec-
tion at trial would have been indefensible because of existing law, but
a supervening decision prior to appeal reverses that well-settled law").

Here, the instructions given to the jury, while plainly erroneous
before us on appeal, were not plainly erroneous at the time of trial.
Bailey, which was decided on December 6, 1995, clarified the mean-
ing of "use" under § 924(c)(1) well after Appellants' trial, which con-
cluded in October of 1994. At that time, the state of the law in this
(and every other) Circuit was such that the district court's error in
instructing the jury was not obvious. See, e.g. , Paz, 927 F.2d at 178-
79 (inactive use of a firearm sufficient to support § 924(c)(1) convic-
tion); Brockington, 849 F.2d at 876 (same); see also United States v.
_________________________________________________________________
"carry" were distinct from each other and different from mere "posses-
sion." "[T]he inert presence of a firearm, without more, is not enough to
trigger § 924(c)(1)." Bailey v. United States, 116 S. Ct. 501, 508 (1995).
Thus, Bailey dictates that possession alone is not enough to support a
conviction for "carrying." See United States v. Mitchell, 104 F.3d 649,
653 (4th Cir. 1997) (concluding "that the plain meaning of the term
`carry' as used in § 924(c)(1) requires knowing possession and bearing,
movement, conveyance, or transportation of the firearm in some manner"
(emphasis added)). Consequently, the district court's "carry" instruction,
like its "use" instruction, was erroneous.

11
Bailey, 36 F.3d 106, 113-14 (D.C. Cir. 1994) (en banc) (collecting
cases), rev'd, 116 S. Ct. 501 (1995). Because "the law at the time of
trial was settled and clearly contrary to the law at the time of appeal,"
Johnson, 117 S. Ct. at 1549, and because it is obvious error today to
instruct a jury that it need not find that a defendant actively employed
a firearm to convict him of "using" a firearm under § 924(c)(1), see
Bailey, 116 S. Ct. at 506, Appellants satisfied the requirement of Rule
52(b) that the alleged error be "plain."5

C.

Third, it must also be shown that the error affected Appellants'
substantial rights. See Olano, 507 U.S. at 734. The language "affect-
ing substantial rights" "is the same language employed in Rule 52(a),
and in most cases it means that the error must have been prejudicial:
It must have affected the outcome of the district court proceedings."
Id. An error not affecting the outcome of the trial, i.e., a harmless
error, does not affect a defendant's substantial rights and does not sat-
isfy the third prong of plain-error analysis under Olano. See David,
83 F.3d at 647 (noting that errors "not susceptible to harmless error
analysis [are] also exempt from the showing of prejudice required" by
Olano's third prong); United States v. Floresca, 38 F.3d 706, 713 (4th
Cir. 1994) (en banc) (stating that errors that "can never be harmless
. . . must affect substantial rights").

1.

As the Olano court explained, however, "[t]here may be a special
category of forfeited errors that can be corrected regardless of their
effect on the outcome . . . ." 507 U.S. at 735. For example, this Circuit
has held that harmless-error review is unavailable if the jury was con-
clusively instructed on an essential element of the crime. See United
States v. Johnson, 71 F.3d 139, 144 (4th Cir. 1995) (holding that a
district court's conclusive instruction to the jury that it must find an
essential element of the crime is an error not susceptible to harmless-
error analysis); accord United States v. Kerley , 838 F.2d 932, 937
(7th Cir. 1988) (holding that the harmless-error doctrine "does not
_________________________________________________________________
5 For similar reasons, the district court's carry instruction constitutes
error that was "plain."

12
apply when the judge directs a partial verdict against the defendant by
telling the jury that one element of the crime . . . has been proved
beyond a reasonable doubt"). As a result, a district court's conclusive
instruction to the jury that it must find an essential element of the
crime satisfies Olano's third prong because such an instruction neces-
sarily affects substantial rights.

This Circuit has also held that a district court's failure to instruct
the jury on an element of the crime is an error not susceptible to
harmless-error analysis. See United States v. Aramony, 88 F.3d 1369,
1387 (4th Cir. 1996) (holding that the district court's failure to
instruct the jury on an essential element of the crime was not subject
to harmless-error analysis), cert. denied, 117 S. Ct. 1842 (1997); see
also United States v. Forbes, 64 F.3d 928, 935 (4th Cir. 1995)
("[F]ailing to instruct the jury on an essential element will rarely be
harmless."). In Johnson, the Supreme Court called into question the
continuing vitality of our holdings in Aramony and Forbes, stating
that it "is by no means clear" that failing to instruct the jury on an
essential element of the offense defies harmless-error analysis. See
Johnson, 117 S. Ct. at 1550; see also United States v. Rogers, 94 F.3d
1519, 1525-26 (11th Cir. 1996) (holding that failure to instruct jury
on essential element of crime is subject to harmless-error analysis),
cert. granted, 117 S. Ct. 1842 (1997). However, the Johnson court did
not expressly hold that such error is amenable to harmless-error
review. See Johnson, 117 S. Ct. at 1550 (noting that "we need not
decide that question"). As a result, in our Circuit at least, a district
court's failure to instruct the jury on an element of the crime, like
conclusively instructing the jury on an element, satisfies Olano's third
prong. See David, 83 F.3d at 647 (stating"that the failure to instruct
on an element of the crime, where the jury never made the constitu-
tionally required findings, is within that `special category' of forfeited
errors, and satisfies Olano's third prong"); United States v. Rogers, 18
F.3d 265, 268 (4th Cir. 1994) (holding "that th[e] failure to give an
instruction on a required element of the crime is an error that affects
substantial rights").

Here, however, Appellants do not argue that the district court
conclusively instructed the jury or failed to instruct the jury on an
essential element of the crime. Instead, Appellants argue that the dis-
trict court misinstructed the jury concerning what the Government

13
must show to prove a violation of § 924(c)(1). Like Appellants, I am
convinced that this is a case where the district court, in light of the
Supreme Court's subsequent decision in Bailey, simply misdescribed
one of the essential elements of § 924(c)(1). I am convinced that this
is neither a case where the district court conclusively instructed the
jury, nor a case where the district court failed to instruct the jury, on
an essential element of the offense.

To prove a violation of § 924(c)(1), the Government must show
two elements: (1) the defendant used or carried a firearm, and (2) the
defendant did so during and in relation to a drug trafficking offense
or crime of violence. See Smith v. United States, 508 U.S. 223, 227-
28 (1993); United States v. Mitchell, 104 F.3d 649, 652 (4th Cir.
1997); United States v. Sloley, 19 F.3d 149, 152 (4th Cir. 1994). My
review of the district court's charge to the jury reveals that the district
court did not conclusively instruct the jury on either of these ele-
ments. Cf. Johnson, 71 F.3d at 144 (holding that "the jury was conclu-
sively instructed that the ASFCU was a credit union within the
meaning of 18 U.S.C.A. § 2113(g)," an essential element of the
crime). At no time did the district court tell the jury that the Govern-
ment had proven beyond reasonable doubt that Appellants used or
carried firearms, or that such use or carrying occurred during and in
relation to the underlying crime of violence.

Similarly, my review of the record reveals that the district court did
not fail to charge the jury on an essential element of § 924(c)(1). The
district court charged the jury on both elements of the crime, instruct-
ing the jury that the Government was required to prove (1) that "the
defendant knowingly used or carried a firearm," and (2) that the
defendant did so "during and in relation to the commission of the
crime of violence as charged in [Counts] One, Two, Three, Four, or
Ten." (J.A. at 358.) The Supreme Court in Bailey did not add an addi-
tional element to the crime of using or carrying a firearm during and
in relation to a drug trafficking offense or a crime of violence. See
Bailey, 116 S. Ct. at 501. Instead, the Court merely "clarif[ied] the
meaning of `use' under § 924(c)(1)." Id. at 505. The district court
therefore did not fail to instruct the jury on an essential element of
§ 924(c)(1). Cf. Aramony, 88 F.3d at 1383 (district court failed to
instruct the jury on additional element of crime added by Supreme
Court in United States v. Gaudin, 115 S. Ct. 2310 (1995)); David, 83

14
F.3d at 640-41 (same); United States v. Gray, 47 F.3d 1359, 1363 (4th
Cir. 1995) (district court failed to instruct the jury on additional ele-
ment of crime added by Supreme Court in Ratzlaf v. United States,
510 U.S. 135 (1994)); Rogers, 18 F.3d at 268 (same).

Thus, the district court simply misinstructed the jury on the
requirements of § 924(c)(1). In United States v. Hawthorne, 94 F.3d
118 (4th Cir. 1996), and United States v. Smith, 94 F.3d 122 (4th Cir.
1996), this Circuit addressed whether a district court's misinstruction
to the jury on the requirements of § 924(c)(1) required reversal.
There, the analysis of whether the misinstruction was susceptible to
harmless-error analysis consisted entirely of the following:

If the jury is misinstructed -- or not instructed at all -- as
to an essential element of the crime, we must set aside the
defendant's conviction unless we can say, beyond a reason-
able doubt, that the jury actually made the finding that
inheres in the element. [United States v.]Aramony, 88 F.3d
[1369, ]1386-87[ (4th Cir. 1996)]; United States v. Johnson,
71 F.3d 139, 143 (4th Cir. 1995); United States v. Forbes,
64 F.3d 928, 934-35 (4th Cir. 1995) . . . .

Hawthorne, 94 F.3d at 121; accord Smith, 94 F.3d at 124 (making
same proposition and citing same cases). In so stating, the Hawthorne
and Smith courts implied that a district court's misinstruction to the
jury on an essential element of the crime, like a district court's failure
to instruct on an essential element, is never amenable to harmless-
error analysis.6 However, none of the three authorities cited for that
expansive proposition in fact establishes it.
_________________________________________________________________
6 The cases relied upon by United States v. Hawthorne, 94 F.3d 118
(4th Cir. 1996), and United States v. Smith , 94 F.3d 122 (4th Cir. 1996),
state that a district court's failure to instruct the jury on an essential ele-
ment of the crime may be amenable to harmless-error analysis, but only
in the rare instance where "the reviewing court can be satisfied that the
jury actually made an equivalent or identical finding pursuant to another
instruction." United States v. Aramony, 88 F.3d 1369, 1387 (4th Cir.
1996) (citing United States v. Forbes, 64 F.3d 928, 935 (4th Cir. 1995)).
Therefore, the Hawthorne and Smith courts' unexplained extension of
this principle to cases of a district court's misinstruction to the jury sug-

15
The first of them, United States v. Aramony, 88 F.3d 1369 (4th Cir.
1996), does not establish that a district court's misinstruction is never
amenable to harmless-error analysis. Instead, the case holds that a dis-
trict court's failure to instruct on an essential element of the crime is
not amenable to harmless-error review. See id. at 1387. Nowhere in
Aramony did we suggest that a district court's misinstruction to the
jury is not amenable to harmless-error analysis. In United States v.
Johnson, 71 F.3d 139 (4th Cir. 1995), we held that a district court's
conclusive instruction to the jury on an essential element of the crime
could not be analyzed under the harmless-error standard. See id. at
143-44. Again, as in Aramony, nothing in Johnson suggested that
harmless-error analysis is not appropriate when the district court
misinstructs the jury. Finally, in United States v. Forbes, 64 F.3d 928
(4th Cir. 1995), we stated "that failing to instruct the jury on an essen-
tial element will rarely be harmless." Id. at 935. Nevertheless, we held
that the failure to instruct in that case was harmless, stating that "even
the rare bird appears occasionally, and this case is it." Id. Again, as
in Aramony and Johnson, we did nothing to establish that harmless-
error analysis is inappropriate in cases of jury misinstruction.

Thus, to the extent the statements in Hawthorne and Smith imply
that a district court's misinstruction to the jury on an essential element
of the crime is never amenable to harmless-error analysis, they were
unexplained extensions of our holdings in Aramony, Johnson, and
Forbes. More importantly, the statements, if so read, conflict with
Supreme Court precedent, most notably the Supreme Court's recent
decision in Johnson v. United States, 117 S. Ct. 1544 (1997). In
Johnson, a nearly unanimous Supreme Court stated unequivocally
that misinstructing the jury on an essential element of the offense,
unlike conclusively instructing or failing to instruct the jury, is "an
error which is subject to harmless error analysis." Johnson, 117 S. Ct.
at 1550. In doing so, the Supreme Court merely affirmed its long-time
_________________________________________________________________

gests, perhaps, that Hawthorne and Smith may be read to permit
harmless-error review in cases where the jury actually makes an equiva-
lent or identical finding pursuant to a properly-given instruction on a sep-
arate count. Such cases are, in my view, a rarity. Thus, Hawthorne and
Smith, however read, plainly "imply" that a district court's misinstruction
to the jury is "never" amenable to harmless-error analysis.

16
holding that a district court's misinstruction to the jury is susceptible
to harmless-error review. See Yates v. Evatt, 500 U.S. 391 (1991)
(applying harmless-error review to jury instruction containing errone-
ous mandatory presumption); Carella v. California, 491 U.S. 263
(1989) (same); Pope v. Illinois, 481 U.S. 497 (1987) (holding that
misinstruction on essential element of crime was subject to harmless-
error analysis); Rose v. Clark, 478 U.S. 570 (1986) (applying
harmless-error review to jury instruction containing erroneous
burden-shifting presumption); see also Clemons v. Mississippi, 494
U.S. 738 (1990) (noting that an unconstitutionally overbroad jury
instruction at sentencing stage of capital case is subject to harmless-
error review); cf. California v. Roy, 117 S. Ct. 337, 339 (1997) (hold-
ing in habeas case that jury misinstruction was not"structural error,"
and was to be analyzed by reviewing court under harmless-error
standard).7 The Supreme Court's decision in Johnson, then, by its
_________________________________________________________________
7 Our Circuit has also long held that a district court's misinstruction to
the jury is susceptible to harmless-error review. See, e.g., United States
v. Hairston, 46 F.3d 361, 373 (4th Cir.) (holding in extortion case that
imprecise quid pro quo instruction, if erroneous, was harmless), cert.
denied, 116 S. Ct. 124 (1995); United States v. Whittington, 26 F.3d 456,
464 (4th Cir. 1994) (holding "that, even if the application of the willful
blindness instruction to [the defendant] was error, . . . such error was
harmless"); United States v. Law, 979 F.2d 977, 979 (4th Cir. 1992) (per
curiam) (holding that although "the trial court's jury instructions did not
state the law with strict accuracy," the error was harmless); United States
v. Borromeo, 954 F.2d 245, 248 (4th Cir. 1992) (stating in RICO case
where appellant argued that "this instruction is flawed," that "even if we
were to interpret the instruction narrowly and find error, in our view it
would be harmless error"); United States v. Vogt, 910 F.2d 1184, 1200
(4th Cir. 1990) ("We agree that the instruction was erroneous but hold
that the error was harmless."); United States v. LaRouche, 896 F.2d 815,
832-33 (4th Cir. 1990) (holding that error, if any, in jury instruction was
harmless in prosecution for conspiracy to defraud the IRS); United States
v. Wentz, 800 F.2d 1325, 1326-27 (4th Cir. 1986) (holding that district
court's misinstruction regarding value of stolen item under National
Stolen Property Act, which erroneously referred to"replacement value
less depreciation," was harmless error); United States v. Davis, 739 F.2d
172, 174-75 (4th Cir. 1984) (per curiam) (holding that any error in trial
court's instructions concerning intoxication as a possible negation of spe-
cific intent was harmless); United States v. Cohen, 617 F.2d 56, 58 (4th
Cir. 1980) (per curiam) (holding "that the challenged portion of the [erro-

17
terms, operates in our Circuit to overrule Hawthorne and Smith, and
emphatically reaffirms that a district court's misinstruction to the jury
on an essential element of the offense is subject to harmless-error
analysis.8 Accordingly, a district court's misinstruction to the jury
_________________________________________________________________

neous] instruction did not prejudice defendant"); United States v. Baker,
611 F.2d 961, 964 (4th Cir. 1979) (holding that district court's misin-
struction to jury did not "contain[ ] reversible error"); United States v.
Cabbell, 427 F.2d 147, 148 (4th Cir. 1970) (per curiam) (stating that "we
think the charge was not prejudicial" where "no objection was raised at
trial" and there was "evidence abundantly establishing" defendant's
guilt); cf. United States v. Eilertson, 707 F.2d 108, 110 (4th Cir. 1983)
(per curiam) (reversing conviction and stating that"[w]hile the [errone-
ous] instruction itself may not have required reversal," the United States
Attorney's conduct "cannot be overlooked"); United States v. Gresko,
632 F.2d 1128, 1135 (4th Cir. 1980) (reviewing misinstruction for harm-
less error and determining that "[i]n view of the bare sufficiency of the
Government's proof on this issue, there is a substantial likelihood that
the error was prejudicial"); United States v. Heyman, 562 F.2d 316, 319
(4th Cir. 1977) (concluding that the district court's misinstruction on the
definition of obscenity was not harmless error); but see United States v.
Hawthorne, 94 F.3d 118 (4th Cir. 1996) (holding that "[i]f the jury is
misinstructed . . . as to an essential element of the crime, we must set
aside the defendant's conviction"); United States v. Smith, 94 F.3d 122
(4th Cir. 1996) (same).
8 At oral argument it was suggested that misinstructing the jury on an
essential element of the offense is, as a practical matter, indistinguishable
from failing to instruct the jury on an essential element, an error which
defies harmless-error analysis in our Circuit. See United States v.
Aramony, 88 F.3d 1369, 1387 (4th Cir. 1996). If the district court
improperly instructed the jury on an essential element of the offense, the
argument goes, then the court, in effect, failed to instruct the jury on all
the elements. Under this logic, every misinstruction on an essential ele-
ment would constitute a failure to instruct and would therefore defy
harmless-error analysis.

In Johnson v. United States, 117 S. Ct. 1544, 1550 (1997), the
Supreme Court recognized that these two instructional errors -- misin-
structing the jury on an essential element of the offense and failing to
instruct the jury on an element -- can "be analogized." 117 S. Ct. at
1550; see also California v. Roy, 117 S. Ct. 337, 339 (1997) ("The spe-

18
does not necessarily affect the substantial rights of the defendant as
required by Olano's third prong. See David, 83 F.3d at 647 (harmless-
error analysis identical to Olano third-prong analysis); Floresca, 38
F.3d at 713 (same). Only if the erroneous instruction prejudices the
outcome of the trial will Olano's third prong be satisfied.

2.

In analyzing whether Appellants' substantial rights were affected
by the district court's misinstructions, i.e., in assessing whether the
district court's error was harmless vel non,9 I am compelled to con-
clude that Chong and Chang were not prejudiced by the district
court's erroneous jury instruction. Cf. United States v. Taylor, 102
F.3d 767, 771 (6th Cir. 1996) (holding that the district court's errone-
ous § 924(c)(1) instruction did not affect the defendant's "substantial
rights by prejudicially influencing the outcome of the trial proceed-
ings"); United States v. Price, 76 F.3d 526, 529 (3rd Cir. 1996) (hold-
ing that district court's erroneous § 924(c)(1) instruction was
harmless error because it was an error "of statutory interpretation, not
constitutional in nature," and because "non-constitutional error is
_________________________________________________________________
cific error at issue here -- an error in the instruction that defined the
crime -- is . . . as easily characterized as a`misdescription of an ele-
ment' of the crime, as it is characterized as an error of `omission.'" (quo-
tation omitted)). However, the Supreme Court itself distinguished
between misinstructing and failing to instruct the jury on an essential ele-
ment in Johnson when it declined to decide whether failing to instruct
defies harmless-error review, but held that "improperly instructing the
jury on an element of the offense . . . [is] an error which is subject to
harmless-error analysis." 117 S. Ct. at 1550. Accordingly, these two
types of instructional error are distinct.
9 Inasmuch as the Supreme Court in Olano and in Johnson equated the
question of whether under Federal Rule of Criminal Procedure 52(b) the
defendant's substantial rights were affected by the district court's error
with the question of whether under Federal Rule of Criminal Procedure
52(a) the district court's error was harmless, see Olano, 507 U.S. at 734,
and Johnson, 117 S. Ct. at 1549-50, I will do the same. See also United
States v. David, 83 F.3d 638, 647 (4th Cir. 1996) (harmless-error analysis
identical to Olano third-prong analysis); United States v. Floresca, 38
F.3d 706, 713 (4th cir. 1994) (en banc) (same).

19
harmless when it is highly probable that the error did not contribute
to the judgment" (quotations omitted)); but cf. United States v.
Rehkop, 96 F.3d 301, 306 (8th Cir. 1996) (holding that § 924(c)(1)
instructional error affected defendant's substantial rights); United
States v. Webster, 84 F.3d 1056, 1067 (8th Cir. 1996) (same). My
careful review of the record reveals that the district court's misin-
struction on "use" was "unimportant in relation to everything else the
jury considered on the issue in question, as revealed in the record."
Yates, 500 U.S. at 403.

The evidence that Chang served as a guard at the Mitchelville safe-
house, that Chong supervised the guards at both the Upper Marlboro
and the Mitchelville safehouses, and that the guards actively
employed firearms during the underlying crime of violence, permits
no other conclusion but that Appellants used or carried (or aided and
abetted the using or carrying of) firearms in the post-Bailey sense of
those terms in violation of § 924(c)(1). The victims of the kidnapping
were confined in a basement against their wishes by guards who, at
the very least, moved around with firearms in their possession. There
is absolutely no evidence of the sort of possession that would not vio-
late § 924(c)(1). Indeed, I cannot imagine a hostage scenario where
a kidnapper could possess a firearm without also using or carrying it.
Here, the guards possessed firearms on their persons while moving
around the safehouse, marching hostages upstairs to make extortion-
ate phone calls, and so forth. Thus, the evidence leads to the unavoid-
able conclusion that the guards "carried" firearms in violation of
§ 924(c)(1). See Mitchell, 104 F.3d at 653 (holding that "carrying" a
firearm requires possession, plus some manner of movement or con-
veyance). Moreover, hostages testified that they were afraid to leave
the basement because the guards were armed, evidencing that the
guards displayed their weapons to the hostages (who greatly out-
numbered them), thereby establishing that Appellants violated
§ 924(c)(1)'s "use" prong. See Bailey, 116 S. Ct. at 508 (holding that
"use" of a firearm "includes brandishing, displaying, bartering, strik-
ing with, and most obviously, firing or attempting to fire, a firearm"
(emphasis supplied)). Indeed, the record reveals that the guards were
shown how to gesture with the guns in a threatening manner for the
purpose of intimidating the hostages.

Chong and Chang claim that some hostages testified only that "ap-
pellants possessed firearms in the place where they committed a crime

20
of violence," not that Appellants used or carried firearms. (Appel-
lants' Supp. Br. at 21-22.) Mere possession of a firearm, they cor-
rectly state, does not violate § 924(c)(1). See Bailey, 116 S. Ct. at 508.
Appellants argue that because such evidence of mere possession was
presented to the jury, "it is impossible to determine whether the ver-
dict was based on a legitimate theory of `active employment.'"
(Appellants' Supp. Br. at 21.) Thus, they contend that their
§ 924(c)(1) convictions must be reversed.

I simply cannot agree. At no time was evidence of mere possession
presented to the jury. Several testifying hostages answered affirma-
tively the prosecution's question, "Did you see anyone who possessed
a firearm?" For example, hostages Chen Xiao Tao and Guang Yong
Wang testified that Appellants possessed firearms. Standing alone this
testimony might establish only mere possession. The testimony of
these hostages, however, consisted of much more. Chen Xiao Tao tes-
tified that he was "confined to a basement" by the guards where he
had "no freedom" (J.A. at 157), that the guards were armed, that he
heard a gunshot during the time he was held hostage, and that Chang
was one of the guards. He also testified as follows:

Q Did you ever attempt to leave the house? . . .

A Yes. I want to leave the house badly, but I couldn't.

Q Why couldn't you leave?

A Because guards, they have the gun.

(J.A. at 158.) This testimony plainly presented evidence to the jury of
post-Bailey and post-Mitchell use or carrying of a firearm.

Guang Yong Wang's testimony also presented evidence to the jury
of post-Bailey and post-Mitchell use or carrying. After testifying that
he was confined in the basement by armed guards, and that one of the
guards was Chang, Guang Yong Wang engaged with the prosecutor
in the following colloquy:

Q Was he, was [Chang] one of the people who was watch-
ing you when you were at the house that you've been
telling us about?

21
 A Yes.

Q When you were at the house, did you ever try to leave?

A Yes.

Q Did you ever leave the house?

A No.

Q Why not?

A I was so scared.

Q Why were you scared?

A Because they have gun.

Q Do you see anyone in this room who you noticed in
possession of a firearm while you were staying at that
house in the basement that you've been telling us
about?

A [Chang].

Q How many times do you believe that you saw him with
a firearm?

A Every time I saw him he had the gun with him.

* * *

Q How many times, in terms of numbers of occasions if
you can estimate, do you believe that you saw [Chang]
in possession of a firearm?

A I don't remember. I just can say whenever I saw him,
he had a gun.

22
(J.A. at 216.) The testimony of Chen Xiao Tao and Guang Yong
Wang is emblematic of the testimony given by all of the testifying
hostages. My review of the record reveals that no hostage testified of
possession that would not violate § 924(c)(1).

Chang was positively identified at trial as one of the guards and has
never contended that he did not actively employ a firearm in his role
as a guard of the hostages. See Olano, 507 U.S. at 734 (stating that
under Rule 52(b), "[i]t is the defendant rather than the Government
who bears the burden of persuasion with respect to prejudice").
Although Chong contends that he did not use or carry a firearm in
connection with the underlying crime of violence, the evidence that
he supervised the guards who actively employed firearms -- thereby
aiding and abetting the use or carrying of a firearm in violation of the
statute -- is overwhelming.10 Consequently, the guilty verdicts ren-
_________________________________________________________________
10 Because the evidence that Chong supervised the guards who actively
employed firearms is overwhelming, I reject Chong's assertion that the
evidence was insufficient to support his conviction under § 924(c)(1).
When reviewing a sufficiency-of-the-evidence claim, the jury's verdict
will be sustained "if there is substantial evidence, taking the view most
favorable to the Government, to support it." Glasser v. United States, 315
U.S. 60, 80 (1942). "[S]ubstantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to support a conclu-
sion of a defendant's guilt beyond a reasonable doubt." United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc), cert. denied, 117 S.
Ct. 1087 (1997). Here, the evidence in the trial record is more than suffi-
cient to support the jury's determination that Chong used or carried a
firearm, or aided and abetted the same, in violation of § 924(c)(1). As I
have stated, he supervised the guards, first at the Upper Marlboro safe-
house and then at the Mitchelville safehouse. At both places the guards
were armed. The trial record reveals that the guards at the Mitchelville
safehouse confined the hostages in the basement of the house at gun-
point. Based on these facts, I conclude that the evidence was more than
sufficient to support Chong's conviction for using or carrying a firearm,
or aiding and abetting the same, during and in relation to a crime of vio-
lence. See United States v. Cook, 76 F.3d 596, 603 (4th Cir.) (affirming
§ 924(c)(1) conviction and stating that "the evidence . . . was clearly suf-
ficient to support the conclusion that [the defendant] knew that [his
cohort] was brandishing a gun during the drug transaction"), cert. denied,
117 S. Ct. 320 (1996); United States v. Hayden, 85 F.3d 153, 162 (4th
Cir. 1996) (holding that evidence was sufficient to support § 924(c)(1)
conviction); see also United States v. Mitchell, 104 F.3d 649, 654 (4th
Cir. 1997) (holding that evidence was sufficient to provide factual basis
for defendant's guilty plea to § 924(c)(1) charge).

23
dered by the jury against Appellants on the § 924(c)(1) counts were
surely unattributable to the district court's misinstruction error. See
Taylor, 102 F.3d 767, 771 ("Because a properly instructed jury would
have concluded that defendant [carried a firearm], the error did not
affect a substantial right of the defendant and, therefore, we find no
plain error in the jury instructions."); see also Pope, 481 U.S. at 502
(holding that guilty verdict for selling obscene magazines could be
affirmed despite jury misinstruction "if it can be said beyond a rea-
sonable doubt that the jury's verdict in this case was not affected by
the erroneous instruction"). Accordingly, I would affirm Appellants'
§ 924(c)(1) convictions.

D.

Even if the district court's misinstruction was not harmless, and
affected Appellants' substantial rights, I would nevertheless affirm
Appellants' § 924(c)(1) convictions. "When the first three parts of
Olano are satisfied, an appellate court must then determine whether
the forfeited error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings before it may exercise its discretion
to correct the error." Johnson, 117 S. Ct. at 1550 (quotations omitted)
(alteration in original). This Circuit has previously held that "[c]entral
to this inquiry is a determination of whether, based on the record in
its entirety, the proceedings against the accused resulted in a fair and
reliable determination of guilt." United States v. Cedelle, 89 F.3d 181,
186 (4th Cir. 1996).

In the circumstances of this case, I believe that declining to correct
the error will not result in a miscarriage of justice or seriously affect
the fairness, integrity, or public reputation of judicial proceedings
because, viewing the record as a whole, the proceedings resulted in
a fair and reliable determination of Appellants' guilt. See United
States v. Miner, 108 F.3d 967, 969-70 (8th Cir. 1997) (declining to
notice and correct district court's erroneous Bailey instruction because
"it is inescapably clear . . . that a properly instructed jury would have
convicted" defendant); see also Johnson, 117 S. Ct. at 1550 (declining
to reverse where trial court failed to instruct jury on essential element
of the crime because evidence of guilt was "overwhelming"); Cedelle,
89 F.3d at 186 (declining to reverse where trial court failed to instruct
jury on essential element of the crime because evidence presented at
trial "permit[ted] no other conclusion" but that defendant was guilty).

24
As I have stated, the evidence that Appellants used or carried (or
aided and abetted the using and carrying of) firearms is overwhelm-
ing. Appellants were armed kidnappers who held over fifty hostages
captive for several weeks. Moreover, the evidence that Chang served
as a guard at the Mitchelville safehouse, that Chong supervised the
guards at both the Upper Marlboro and the Mitchelville safehouses,
and that the guards actively employed firearms during and in relation
to the underlying crime of violence, permits no other conclusion but
that Appellants used or carried firearms, or aided and abetted the
same, in violation of § 924(c)(1). Cf. David, 83 F.3d at 648 (noticing
plain error of the district court in failing to instruct on an essential ele-
ment of the crime because a jury conceivably could have determined
that the Government had not proven that element). Consequently, it
is "inescapably clear," see Miner, 108 F.3d at 969, that the jury would
have convicted Appellants absent the district court's error.

Thus, there is no basis for concluding that the error seriously
affected the fairness, integrity, or public reputation of judicial pro-
ceedings.

Indeed, it would be the reversal of a conviction such as this
which would have that effect. "Reversal for error, regardless
of its effect on the judgment, encourages litigants to abuse
the judicial process and bestirs the public to ridicule it." R.
Traynor, The Riddle of Harmless Error 50 (1970).

Johnson, 117 S. Ct. at 1550. Moreover, "to expend the judicial
resources necessary for a retrial would be more detrimental to the
fairness, integrity, and public reputation of judicial proceedings than
permitting [Appellants'] conviction[s] to stand." Cedelle, 89 F.3d at
186 (citing United States v. Ross, 77 F.3d 1525, 1540-41 (7th Cir.
1996)). Accordingly, even if the instructional error here affected
Appellants' substantial rights (which it does not), I would decline to
notice it.

II.

For the foregoing reasons, I vote to affirm Appellants' convictions
for using or carrying a firearm, or aiding and abetting the same, dur-
ing and in relation to a crime of violence in violation of 18 U.S.C.A.
§ 924(c)(1).

25