United States v. Castano

ROGERS, Circuit Judge,

dissenting.

I concur in the majority opinion except for Part II.A, but I would affirm. Although I agree that the district court clearly committed error in instructing the jury on the firearm charge, there is no reasonable basis for concluding that this error affected the outcome of the proceedings. A jury that found that Castaño possessed the revolver in question would surely have found that he also carried that weapon. Furthermore, the instructions unmistakably required that the carrying of the weapon have been during and in relation to Castano’s drug trafficking crime.

As even Castaño concedes, his failure to object to the jury instructions and verdict form at trial means that his challenge to *839them is now reviewable only for plain error. This means that Castaño must establish “(1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc) (internal quotations and citation omitted).

While Castaño has shown errors that are obvious or clear, he has not established that these mistakes had an impact on the outcome of the trial and thus affected his substantial rights. See United States v. Davis, 514 F.3d 596, 615 (6th Cir.2008). The primary defect alleged here is the use of the term “possession” instead of “carrying” in the instructions and on the verdict form. However, as the Supreme Court has observed, the phrase “carries a firearm” includes the act of “knowingly possessing] and conveying] firearms in a vehicle, including in the locked glove compartment.” Muscarello v. United States, 524 U.S. 125, 126-27, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (emphasis added). This interpretation obviously extends to firearms that are “possessed and conveyed” in the console of a vehicle. United States v. Andas-Gallardo, 3 Fed.Appx. 959, 964-65 (10th Cir.2001); see also United States v. Eyer, 113 F.3d 470, 476 (3d Cir.1997) (holding that the defendant “carried” a firearm located in his vehicle’s console).

On the facts of this case, then, the district court’s use of “possession” instead of “carrying” was not prejudicial. Castaño does not dispute that there was a loaded revolver in the console of the truck that he was driving at the time that officers pulled him over and discovered fifty pounds of marijuana in the back of that vehicle. Under these facts and the caselaw discussed above, a jury could easily find that Castaño carried a firearm during and in relation to a drug trafficking crime. Moreover, because there is no difference between “carrying” and “possessing and conveying in a vehicle,” there is no reason to think that Castano’s actual jury, which is alleged to have found him guilty of possession, would not have found him guilty of carrying as well.

Similarly, Castaño has not shown that the district court’s occasional use of the incomplete phrase “during” instead of the full “during and in relation to” affected his substantial rights by prejudicing the jury. As Castaño points out, the district court did incompletely refer to the standard of participation for the carrying offense a few times in the instructions and then once on the verdict form. In both the oral and written instructions, however, the district court properly told the jury that § 924(c) punishes “whoever, during and in relation to any drug trafficking crime ... uses or carries a firearm.” Then, in listing the essential elements of the § 924(c) charge against Castaño, the district court told the jurors in both sets of instructions that they could not convict unless they found beyond a reasonable doubt that Castaño carried a firearm “during and in relation to the controlled substance distribution crime” (emphasis added). The district court then went on, in both the oral and written instructions, to define “[t]he term during and in relation to ” properly to mean that

the firearm must have some purpose or effect with respect to the crime charged ... [that] the firearm must facilitate or further[,] or have the potential of facilitating or furthering the crime charged ... and its presence or involvement cannot be the result of an accident or a coincidence.

(Emphasis added).

When all of the relevant statements are taken together, it is clear that the occasional omission of “and in relation to” in the instructions did not affect Castano’s *840substantial rights. Contrary to Castano’s contentions, the instructions plainly did not allow for a conviction if his carrying of the revolver was unknowing or coincidental. The definition of “during and in relation to” provided to the jury explicitly forbade a conviction unless the jury found, beyond a reasonable doubt, that the presence of the revolver was connected with the drug trafficking crime. Although it was error for the district court at times simply to say “during,” that statement is not inconsistent with the more detailed instruction that the carrying could not be coincidental such that the jury would have been confused by any difference in terminology. The jury must be presumed to have followed this instruction. See United States v. Davis, 306 F.3d 398, 416 (6th Cir.2002).

Furthermore, there was plenty of evidence in the record from which the jury could conclude that Castaño carried the revolver during and in relation to his drug trafficking crime. Lonsby testified that there was not a gun in the console of his vehicle the night before he lent the vehicle to Castaño, and that no one else used the vehicle in the interim. This testimony strongly suggests that Castaño knew of the gun’s presence in the console, and that the gun was thus not there by accident. Moreover, a police officer testified that drug traffickers frequently carry firearms because they “carry large amounts of money or large amounts of drugs” and thus “commonly feel the need to protect themselves.” Evidence was also offered that Castaño was in a weakened physical state, and thus had greater need for protection, at the time that he was caught with the revolver and drugs. Just hours before his arrest, Castaño was admitted to a hospital for high blood pressure and numbness in his arm. This evidence, along with the officer’s statements, supports that the revolver had “purpose or effect” with respect to Castano’s drug trafficking crime. See United States v. Warwick, 167 F.3d 965, 971 (6th Cir.1999).

The instant action is readily distinguished from the cases relied on by Casta-ño where this court found reversible error. The cases relied upon by Castaño in this regard are different in one key respect: each involved a defendant charged with possession who was subject to the possibility that the jury was permitted to convict on the lower standard of participation associated with the different crime of carrying. See United States v. Combs, 369 F.3d 925, 934-35 (6th Cir.2004),1 United States v. Savoires, 430 F.3d 376, 379 (6th Cir.2005),2 United States v. Wilkins, 253 Fed.Appx. 538, 545 (6th Cir.2007); United States v. Lowe, 172 Fed.Appx. 91, 94 (6th Cir.2006). In contrast, Castaño was properly charged with carrying. In each of the four possession cases, there would be prejudice if a jury that would find “during and in relation to” might not find “in furtherance of.” This is a particular problem in situations where the weapon does not *841actually threaten someone during a drug transaction:

There are situations where a possession would be “during and in relation to” drug trafficking without “furthering or advancing” that activity. For example, a drug buyer might steal a gun from his dealer’s house during a deal. The buyer’s possession would be during and in relation to drug trafficking, but the buyer’s possession would not advance that operation. As another example, if a buyer came to the seller’s home for a purchase and left a gun there by mistake, the seller’s possession would be “during and in relation to” the trafficking without furthering it.

Combs, 369 F.3d at 933 (quoting United States v. Ceballos-Torres, 218 F.3d 409, 413 (5th Cir.2000)). The four cases relied upon by Castaño similarly involved situations where a jury might find that a firearm was possessed “during and in relation to” drug trafficking but not “in furtherance of’ drug trafficking. The cases involved trading drugs for rifles (Combs, 369 F.3d at 930); keeping a shotgun in the dining room (Savoires, 430 F.3d at 378); keeping a pistol in a van console (Wilkins, 253 Fed.Appx. at 540); and keeping a revolver and a shotgun in a crack house (Lowe, 172 Fed.Appx. at 93). In each of these cases we specifically relied on the possibility that a jury might have found that the defendant possessed a firearm “during and in relation to” drug trafficking, but might not have found that the firearm was possessed “in furtherance of’ drug trafficking. Combs, 369 F.3d at 934, 936; Savoires, 430 F.3d at 380-81; Wilkins, 253 Fed.Appx. at 546; Lowe, 172 Fed.Appx. at 96.

In contrast, Castaño was charged with the different crime of carrying. He could not have been prejudiced by jury confusion regarding the standard of participation, as in the four cases discussed above, because a defendant charged with carrying need only meet the lower standard of participation — “during and in relation to.” The only possible prejudice to a defendant charged with carrying, in a case where instructions have mixed the elements of the two crimes, is that jurors might convict a defendant of carrying based on a finding of mere possession. While that danger is presented by the erroneous instructions in this case, Castano’s substantial rights were not affected for purposes of plain error review. As explained above, a jury that found possession on the facts of this case would, if properly instructed, necessarily have found carrying as well. This statement simply could not have been made regarding the standards of participation in the four cases relied upon by Castaño.

. The Combs case also involved another count (Count III in that case) for which the indictment did not charge the defendant with an actual crime — not the case here. 369 F.3d at 934.

. Savoires actually involved a duplicitous charge, but our harmless-error analysis focused on the concern raised by a possession count:

Mr. Savoires’ substantial rights were prejudiced. Significantly, the "in furtherance of” element of the § 924(c) "possession” offense constitutes “a higher standard of participation” than "during and in relation to.” Combs, 369 F.3d at 933. It follows from this that the jury might have found Mr. Savoires guilty of an "offense” — possession of a firearm during and in relation to a drug trafficking crime — that is not criminalized by § 924(c). We note that the prosecutor’s closing argument invited just such a finding.

430 F.3d at 380.