United States v. Range

United States Court of Appeals,

Eleventh Circuit.

No. 93-9476.

UNITED STATES of America, Plaintiff-Appellee,

v.

Arraion RANGE, Jr., Defendant-Appellant.

Sept. 11, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (nO. 1:93-CR-184-3) Marvin H. Shoob, Judge.

Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER*, District
Judge.

SCHWARZER, Senior District Judge:

Defendant Arraion Range and two co-defendants were charged in

two counts with conspiracy to possess cocaine with intent to

distribute and attempt to possess cocaine with intent to

distribute. A third count against Range alone charged that he

knowingly used and carried a firearm during and in relation to a

drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). A

jury convicted all defendants on all counts. The district court

denied Range's motion for judgment of acquittal and sentenced him

to sixty months on the firearm count, consecutive to a sixty-three

month sentence on counts one and two. Range appeals from the

judgment. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

FACTS

An informant, Glover, arranged to sell cocaine to co-defendant

Hammond at an Atlanta restaurant. At the appointed time, Range

*
Honorable William W Schwarzer, Senior U.S. District Judge
for the Northern District of California, sitting by designation.
drove up and parked in the restaurant parking lot. Shortly

thereafter, co-defendant Mathis drove up with Hammond. Hammond and

Mathis discussed the deal with Glover. DEA Agent Clark, who was

posing as the source, waited in his parked car nearby. When Glover

motioned for Clark to join them, Clark said that Glover would have

to see the money before he would show them the cocaine. Hammond

and Glover walked to Mathis' car and told him that Glover needed to

see the money. Mathis made a phone call for the money to be

brought. Range then moved his car next to Mathis'. Hammond got

into Range's car, picked up a plastic bag from the floor, and

showed a sum of money to Glover. Hammond exited the car and he and

Glover walked back to where Mathis was waiting. Glover told Clark

he had seen the money. Clark then drove his truck over to where

the others were gathered and showed Hammond two packages which

appeared to be two kilograms of cocaine. All three participants

were then arrested. A search of Range's car at the time of the

arrest disclosed a loaded, .380 pistol under the floormat by the

front seat, along with a bag containing $40,000 in cash.

DISCUSSION

Range challenges his convictions on three grounds: (1) that

the firearm count should be dismissed because the evidence was

insufficient to show that he used or carried a firearm during or in

relation to a drug trafficking offense; (2) that the court's

instructions to the jury on the firearm count were erroneous; and

(3) that the court's exclusion of exculpatory statements was

reversible error.

I. SUFFICIENCY OF EVIDENCE
 Range does not dispute that the gun was found in the car he

was driving and that he was aware the gun was in the car. He

contends, however, that there is no evidence to show that he "used"

or "carried," or intended to use, a firearm during or in relation

to a drug trafficking offense.

Sufficiency of evidence is a question of law reviewed de

novo. United States v. Harris, 20 F.3d 445, 452 (11th Cir.), cert.

denied, --- U.S. ----, 115 S.Ct. 434, 130 L.Ed.2d 346, and cert.

denied, --- U.S. ----, 115 S.Ct. 611, 130 L.Ed.2d 521, and cert.

denied, --- U.S. ----, 115 S.Ct. 612, 130 L.Ed.2d 521 (1994). We

review the evidence in the light most favorable to the government.

Id. To uphold the trial court's denial of the motion for judgment

of acquittal and the jury's guilty verdict, we need only find that

a reasonable fact finder could conclude that the evidence

established the defendant's guilt beyond a reasonable doubt.

United States v. Keller, 916 F.2d 628, 632 (11th Cir.1990), cert.

denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991).

The government concedes that the evidence is insufficient to

support a conviction for "use" of a firearm after Bailey v. United

States, --- U.S. ----, ----, 116 S.Ct. 501, 505, 133 L.Ed.2d 472

(1995) (requiring proof of active employment of the firearm in the

commission of the offense to establish "use" under 18 U.S.C. §

924(c)(1)). The government contends, however, that a new trial is

unnecessary because the indictment charged Range under both the

"use" and "carry" prongs of section 924(c)(1) and the evidence

sufficed to establish the "carrying" of a firearm during or in

relation to the offense.
 With respect to the sufficiency of the evidence, our recent

decision in United States v. Farris, 77 F.3d 391 (11th Cir.1996),

is squarely on point. There, a gun was found in the glove

compartment of the car from which drugs had been distributed.

Farris, who had set up the drug deal and was to make the sale, was

a passenger in the car being used to make the drug delivery. He

was arrested while attempting to make the delivery; he was not in

the car when it was stopped and a search revealed the gun. The

government conceded that after Bailey there was no "use," but

argued that the evidence sufficed to support a conviction under the

"carry" prong. We affirmed the conviction, holding that "the jury

could find that the firearm was being carried by Farris in the

vehicle." Id. at 396. We see no distinction between the facts in

Farris and those in this case. Here, defendant knowingly carried

a gun under the floormat of the car when he delivered the money for

the cocaine. See also United States v. Riascos-Suarez, 73 F.3d

616, 623 (6th Cir.1996) (upholding a conviction under the carrying

prong on evidence that the defendant, shown to have been a

participant in a drug transaction, drove a car containing a large

amount of cash and "a loaded weapon near the driver's seat.").

II. THE EFFECT OF THE ERRONEOUS JURY CHARGE

The government contends that, although the instruction with

respect to "use" was incorrect, because the evidence was sufficient

to establish that Range carried the firearm (as discussed above),

the jury's general verdict can be upheld.

A. The Sufficiency of the "Carrying" Instruction

Initially, Range argues that the "carrying" charge was
erroneous.

The court instructed the jury in relevant part as follows:

Now members of the jury, as to Count Three, Title 18, United
States Code, Section 924(c)(1), makes it a separate crime or
offense for anyone to use or carry a firearm during and in
relation to the commission of a drug trafficking offense.

A defendant can be found guilty of that offense only if all of
the following facts are proved beyond a reasonable doubt:
First, that the defendant committed the felony offense charged
in count one and count two; second, that such offense was a
drug trafficking offense; and, third, that the defendant
knowingly used or carried the firearm described in the
indictment while committing such drug trafficking offense.

To show use of the firearm the government need not prove that
the firearm was fired, brandished, or even displayed during
the drug-trafficking offense. However, mere presence of the
firearm would not constitute use within the meaning of the
statute. Rather, possession of a firearm constitutes use in
relation to the drug-trafficking offense if the firearm played
a purpose or function in carrying out the drug-trafficking
offense.

Range contends that the court erred in failing to provide a

definition of "carry," but he specifically waived that objection at

trial. He also contends, however, that the "carrying" charge was

erroneous in omitting an essential element, i.e., that the firearm

was carried "during and in relation to the commission of" the

offense. He relies on United States v. Stewart, 779 F.2d 538 (9th

Cir.1985), cert. denied, 484 U.S. 867, 108 S.Ct. 192, 98 L.Ed.2d

144 (1987), and United States v. Mendoza, 11 F.3d 126 (9th

Cir.1993), both holding that failure to instruct on the relational

element of section 924(c)(1) is constitutional error. In Mendoza,

the court held that the omission was not cured by inclusion of the

relational language in the description of the indictment and of the

provisions of section 924(c)(1) that the trial court had given the

jury. The court said:
 It was Instruction No. 33 that informed the jury exactly what
it must find in order to convict, and that instruction
conspicuously omitted any requirement that the gun be used "in
relation to" the drug offense.

11 F.3d at 129.

A later decision of the Ninth Circuit distinguished Mendoza on

the ground that it had not been decided under the plain error rule,

the defendant having raised the objection at trial. United States

v. Gallegos-Corrales, 37 F.3d 548, 550 (9th Cir.1994), cert.

denied, --- U.S. ----, 115 S.Ct. 1716, 131 L.Ed.2d 575 (1995). In

Gallegos-Corrales, the court declined to find plain error where a

supplemental instruction included a statement that the government

need only prove "that the defendant chose to carry the firearm in

relation to that transaction." Id. at 549.

The plain error rule applies here because Range raised this

issue for the first time on appeal. United States v. Rojas, 502

F.2d 1042, 1045 (5th Cir.1974); United States v. Gerald, 624 F.2d

1291, 1299 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct.

1369, 67 L.Ed.2d 348 (1981). While the court's instruction on what

the jury had to find to convict initially omitted the relational

requirement, it included that requirement at the end of the

instruction, albeit with reference to "use." But the omission of

a specific instruction applying the relational element to the

"carrying" prong is plain error only if there is a "significant

possibility the jury might have acquitted if it had considered the

matter." United States v. Steward, 16 F.3d 317, 320 (9th Cir.1994)

(quoting United States v. Stewart, 779 F.2d 538, 540 (9th

Cir.1985)).

In Steward, the court held that "failure to instruct on the
relationship between the firearm and the underlying crime" was not

plain error where "the requirement was spelled out fully elsewhere

in the instructions," and "there [was] little likelihood of

acquittal because the defendant was carrying a loaded ... pistol in

his pants while participating in a drug transaction." Id. at 320-

21. Here, as in Steward, the relational element was stated

elsewhere in the instructions and, in view of the undisputed

evidence that Range knowingly carried the firearm under the

floormat of the car in which he brought the money to the

transaction, there is little likelihood that the instructional

error misled the jury into convicting where it might otherwise have

acquitted.

B. The Sufficiency of the General Verdict

Range argues that (even if the "carrying" charge passes

muster) because the jury was given an erroneous instruction on

"use" and it cannot be determined whether it relied on that

instruction, the conviction must be reversed, relying on Griffin v.

United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991).

In Griffin, the Court upheld a general verdict of conspiracy where

the evidence was sufficient to support one of the unlawful objects

charged but not the other. The Court distinguished the case before

it, where one of the bases for conviction was factually

insufficient, from one in which one of the bases for a general

verdict is legally invalid. Range argues that his case falls into

the second category; that because the jury might have relied on

the erroneous "use" instruction, the verdict cannot stand.

The government responds that because alternate means were
charged under section 924(c)(1), and the evidence clearly supported

one of them, the jury's general verdict on that count must stand.

It cites Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642,

654, 24 L.Ed.2d 610 (1970), holding that "[t]he general rule is

that when a jury returns a guilty verdict on an indictment charging

several acts in the conjunctive ... the verdict stands if the

evidence is sufficient with respect to any one of the acts

charged." And it relies on Schad v. Arizona, 501 U.S. 624, 111

S.Ct. 2491, 115 L.Ed.2d 555 (1991), where the plurality opinion

noted that due process does not require that a jury unanimously

agree on one of several alternative statutory means of committing

the charged offense.

The government's argument rests on the assumption that when

the indictment charged Range with "us[ing] and carry[ing]" a

firearm, it charged alternate means of violating section 924(c)(1)

rather than separate offenses. Whether section 924(c)(1) is an

alternate-means statute is a question of statutory interpretation,

see 501 U.S. at 636, 111 S.Ct. at 2499, that appears not to have

heretofore been decided. However, United States v. Correa-Ventura,

6 F.3d 1070 (5th Cir.1993), held that section 924(c)(1) did not

require jury unanimity with respect to the particular firearm used.

In reaching that conclusion, the court thought it significant that

the offense is not the mere carrying or use of a firearm, but,

rather, its employment in the commission of another predefined

felony; that the statute was akin to a penalty enhancement

provision; and that the legislative history reflected a

Congressional purpose to achieve maximum deterrence against using
firearms in connection with another crime. Id. at 1083. It was

also influenced by decisions that the number of firearms used is

irrelevant for conviction; use of more than one will not support

more than one conviction based on the same predicate offense. Id.

at 1085; see also United States v. Privette, 947 F.2d 1259, 1262-

63 (5th Cir.1991) (use of more than one gun will not support

multiple counts for use of firearm during single drug trafficking

offense), cert. denied, 503 U.S. 912, 112 S.Ct. 1279, 117 L.Ed.2d

505 (1992). Compare, United States v. Edmonds, 80 F.3d 810 (3d

Cir.1996) (en banc) (holding jury unanimity required on predicate

felony offenses for violation of continuing criminal enterprise

statute, 21 U.S.C. § 848).

The reasoning of Correa-Ventura is persuasive and suggests

that jury unanimity is not required with respect to the "use" and

"carry" elements. That conclusion appears also to be implicit in

courts' articulation of the proof required for conviction. For

instance, the Tenth Circuit has described the requisite proof as

follows: "(1) the defendant committed the underlying crime; (2)

the defendant " used ' or "carried ' a weapon; (3) the use or

carriage of the weapon was "during and in relation to' the drug

trafficking crime." United States v. Richardson, 86 F.3d 1537,

1546 (10th Cir.1996) (emphasis added). And in United States v.

Riascos-Suarez, 73 F.3d 616, 622 (6th Cir.1996), the court said

that "under section 924(c)(1), the United States must prove that

the defendant: (1) carried or used a firearm; (2) during and in

relation to a drug trafficking crime." (Emphasis added.) See also

Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 2053-54,
124 L.Ed.2d 138 (1993) ("By its terms, the statute requires the

prosecution to make two showings. First, ... that the defendant

"use[d] or carrie[d] a firearm.' Second, ... that the use or

carrying was "during and in relation to' a "crime of violence or

drug trafficking crime.' ").

The Supreme Court's Bailey opinion also supports the

conclusion that section 924(c)(1) is an alternate means statute.

The Court stated that "Congress has specified two types of conduct

with a firearm: "uses' or "carries.' " --- U.S. ----, ----, 116

S.Ct. 501, 507, 133 L.Ed.2d 472 (1995). Consequently, "[w]hile a

broad reading of "use' undermines virtually any function for

"carry,' a more limited, active interpretation of "use' preserves

a meaningful role for "carries' as an alternative basis for a

charge." Id. Thus, Congress provided "two alternate bases for a

section 924(c)(1) conviction—"uses or carries'...." Id. at ----,

116 S.Ct. at 507.

While it is thus clear that a general verdict under section

924(c)(1) will be sustained so long as the evidence is sufficient

to establish one of the means of violating it, the question remains

whether, under Griffin v. United States, 502 U.S. 46, 112 S.Ct.

466, 116 L.Ed.2d 371 (1991), a general verdict can stand where one

of the possible bases of conviction rests on a legally erroneous

instruction.

The courts confronted with this problem under section

924(c)(1) have dealt with it by applying the plain-error rule.

Thus, in United States v. Baker, 78 F.3d 1241, 1247 (7th Cir.1996),

the court affirmed the conviction where the defendant's gun was
found resting underneath the driver's seat of his car when he was

stopped carrying a quantity of crack and there was no evidence of

"use" as opposed to "carry." The court held that "a properly

instructed jury [would] have concluded that [defendant] "carried"

the gun." Id. See also United States v. Richardson, 86 F.3d 1537

(10th Cir.1996) (conviction affirmed under the "carrying" prong

where there was no evidence of "use" but evidence established that

the defendant was arrested en route to a drug transaction with one

gun in his pocket and another on the front seat of his truck);

United States v. Pimentel, 83 F.3d 55, 59-60 (2d Cir.1996).

A court must, however, be able to "determine with absolute

certainty that the jury based its verdict on the ground on which it

was properly instructed." United States v. Miller, 84 F.3d 1244,

1257 (10th Cir.1996). In Miller, the court reversed a conviction

based on evidence that a bag found in the back of defendant's van

contained, along with drugs and drug paraphernalia, two loaded

weapons, holding that "it is possible that the jury convicted ...

solely because it found he "used' the firearms merely by concealing

them in the van, which directly conflicts with Bailey." Id.

Similarly, in United States v. Thomas, 86 F.3d 647 (7th

Cir.1996), in addition to evidence of "carrying," evidence was also

offered that defendants owned handguns which they kept at home for

protection. The court reversed the conviction, holding that

because "the jury may well have relied upon this evidence in

convicting the defendants ... we are not convinced that a properly

instructed jury would have convicted ... [under] 18 U.S.C. §

924(c)(1)." Id. at 650-51.
 We are convinced that in this case, the jury based its

verdict on the ground on which it was properly instructed. The

evidence of the "carrying" of a firearm was overwhelming, and there

was a complete absence of evidence from which the jury could have

found "use," as opposed to "carrying," under the erroneous

instruction. We conclude that a properly instructed jury would

have found Range guilty of carrying a firearm during and in

relation to a drug trafficking offense.

III. THE EVIDENTIARY RULING

Range's final contention is that his conviction on all counts

must be reversed because the trial court erred in curtailing his

cross-examination of Agent Metzger.

Evidentiary rulings are reviewed for abuse of discretion.

United States v. Beasley, 72 F.3d 1518, 1524 (11th Cir.1996), cert.

denied, --- U.S. ----, 116 S.Ct. 2570, 135 L.Ed.2d 1086 (1996);

United States v. Smith, 918 F.2d 1501, 1510 (11th Cir.1990), cert.

denied, 502 U.S. 890, 112 S.Ct. 253, 116 L.Ed.2d 207 (1991), and

cert. denied, 502 U.S. 849, 112 S.Ct. 151, 116 L.Ed.2d 117 (1991).

The trial court has broad discretion in determining the

admissibility of evidence. United States v. Hurley, 755 F.2d 788,

790 (11th Cir.1985). "Even where an abuse of discretion is shown,

non-constitutional evidentiary errors are not grounds for reversal

absent a reasonable likelihood that the defendant's substantial

rights were affected." United States v. Sellers, 906 F.2d 597, 601

(11th Cir.1990).

On direct examination, Agent Metzger testified regarding

statements made by Range after the arrest which showed that Range
knew that the gun and money were in the car he had been driving.

The court barred further testimony as to the balance of Range's

post-arrest statements. Range made a proffer that continued

cross-examination of Agent Metzger would establish that Range had

stated that co-defendant Mathis had placed the gun and the money in

the car and had given him instructions to go to the restaurant.

The court barred this line of questioning on Bruton grounds because

the statement inculpated Range's co-defendant. Range argues that

because the government "opened the door" by offering a portion of

his statements through Agent Metzger's testimony, he was entitled

to put into evidence "the balance of his statement." We disagree.

The rule of completeness on which Range relies is embodied in

Fed.R.Evid. 106. Rule 106 provides that when a writing or recorded

statement is introduced by a party, an adverse party may require

the introduction ... of any other part ... which in fairness ought

to be considered contemporaneously with it. Fed.R.Evid. 611(a) has

been read to impose the same fairness standard upon conversations.

United States v. Haddad, 10 F.3d 1252, 1258 (7th Cir.1993); United

States v. Castro, 813 F.2d 571, 576 (2d Cir.1987), cert. denied,

484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987). Under the Rule

106 fairness standard, the exculpatory portion of the defendant's

statement should have been admitted if it was relevant to an issue

in the case and necessary to clarify or explain the portion

received. Haddad, 10 F.3d at 1259.

In applying the Rule 106 fairness standard analysis, we first

examine the remaining portions of Range's statement to determine

whether it was relevant to an issue in the case. Section 924(c)(1)
punishes one who knowingly carries a weapon during and in relation

to a drug trafficking offense. Ownership of the gun or the

identity of the person who placed the gun in the car is irrelevant

to the determination whether there has been a violation of section

924(c)(1). The government sought to establish through its

introduction of Range's statement that he knew about both the

weapon and the money in the car, knew about the underlying drug

trafficking offense, and knew that he was physically transporting

the weapon and money. Accordingly, the portion of the statement

redacted in which Range stated that Mathis had placed the gun in

the car was irrelevant.

However, more importantly, if the court had allowed Range to

cross-examine Agent Metzger as to the redacted portion of the

statement, co-defendant Mathis would have been deprived of his

Sixth Amendment right to confront the witnesses against him. See

Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d

476 (1968) (holding that the admission of a nontestifying

defendant's confession, implicating his co-defendant in the crime,

violates the co-defendant's rights under the Confrontation clause

of the Sixth Amendment). When multiple defendants are involved and

statements have been redacted to avoid Bruton problems, the "rule

of completeness" is "violated only when the statement in its edited

form ... effectively distorts the meaning of the statement or

excludes information substantially exculpatory of the nontestifying

defendant." United States v. Lopez, 898 F.2d 1505, 1511 n. 11

(11th Cir.1990) (citing United States v. Smith, 794 F.2d 1333, 1335

(8th Cir.1986), cert. denied, 479 U.S. 938, 107 S.Ct. 419, 93
L.Ed.2d 370 (1986)). Here, the redacted version did not distort

Range's statement.

Given the trial court's obligation to protect both the

interests of Range's co-defendants and the interest in judicial

economy, United States v. Castro, 813 F.2d 571, 576 (2d Cir.1987),

cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987), we

cannot say that the court abused its discretion in limiting the

cross-examination of Agent Metzger.

AFFIRMED.