dissenting:
I am not persuaded that a jury could reasonably find beyond a reasonable doubt that Jefferson violated 18 U.S.C. § 924(c)(1), i.e., possessed his weapon for the purpose of protecting his drug possession activity. The majority points to evidence in three categories to support the conviction on that count — (1) a statement by Jefferson relating to past use of the gun, (2) his access to it, and (3) the type of gun. Both of the first two seem to me to have serious weaknesses; the third alone is not enough.
Past Use. The argument here rests on Jefferson’s reference, quoted at pages 203 and 207 of the Opinion, to his keeping the gun so that “we [Jefferson and his allies] could use it to keep them off us,” “them” being one Eric and his confederates, who had “come over” with their gun at least once. Nothing in that statement ties the gun to the drugs, unless we assume that people might threaten Jefferson and his allies only in order to capture their drug stash. But modern America is evidently full of gangs who attack each other for all kinds of non-drug reasons. The hero of Boyz ’n the ’Hood, who kept a gun in anticipation of an assault by his foes (whose quarrel with him was not drug-related), could have used Jefferson’s very words.
The opening passages of the colloquy, see Op. at 203, may help the prosecution a little, but not much: Jefferson talks of drugs, and then he talks of the gun. That was natural enough, regardless of any link between the two; he was asked about both, one after the other, and he responded, addressing first one and then the other. (Interestingly, the transcriber perceived Jefferson as starting a new paragraph when he launched into discussion of the gun.) The only link is in the eye of the beholder.
Easy Access. The majority states, “The jury ... could reasonably have inferred *209that the shotgun was sufficiently accessible to protect the defendant’s possession of the drugs in light of his statement as to past use of the gun.” Op. at 207. But what could the jury rely on to support such a belief? Jefferson had placed his drugs outside the house, to hide them from his mother. The gun was also outside the house, in a grass-catcher. Thus the gun would be of use against a marauder in quest of the drugs only if Jefferson managed to get to it first. Whereas proximity to a place where drugs are actually being sold indicates that a gun facilitated drug sales (compare United States v. Lyman, 892 F.2d 751, 754 (8th Cir.1989)), mere proximity to a place where a defendant stores drugs and that is only rather technically under his control does not. If anything, for Jefferson to keep a gun near the very item he wanted to safeguard, and beyond the direct control of him or any member of his clique, would seeni a poor stratagem, and thus an implausible one.
While the past-use evidence would suggest accessibility if Jefferson always kept the gun in the grass-catcher (and if the past uses were solidly linked to drugs), the majority rightly notes that he may have placed it there at the time he moved the crack outdoors. Op. at 207. If this is true (and it seems at least as probable as the alternative), the past-use evidence does nothing to fill the gap.
Gun Types. The majority here successfully distinguishes the lowly derringer that was involved in United States v. Bruce, 939 F.2d 1053 (D.C.Cir.1991), but no court appears to have relied solely on evidence that a gun’s physical characteristics made it suitable for protection of a drug enterprise.
The outcome here seems to me virtually indistinguishable from inferring a guns-drug link simply from the presence of the two, a position we have flatly rejected. See Bruce, 939 F.2d at 1054-55. I dissent.