UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-31000
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFRED LEWIS BROWN, also known as Goat,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
November 16, 1998
Before POLITZ, Chief Judge, and REYNALDO G. GARZA, KING, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO
M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
We granted rehearing en banc as to count twenty-four, which
alleged violation of 18 U.S.C. § 924(c)(1), to consider whether to
adopt a harmless error rule in cases in which a jury convicts a
defendant under an erroneous pre-Bailey “use” instruction.
I
Defendant, Alfred Brown, supplied drugs to the Bottoms Boys,
a street gang in Shreveport, Louisiana. Police conducted a
lengthy investigation of the gang that culminated in the arrest
of Brown and thirteen other gang members.1 A grand jury indicted
Brown on several offenses, including count twenty-four which
charged Brown with using and carrying a firearm during and in
relation to a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1).2 At trial, the district court instructed the jury
on section 924(c)(1), using the then-current Fifth Circuit
Pattern Jury Instruction.3 The court did not define “use” or
1
The facts and proceedings in the underlying case can be
found in the panel opinion. See United States v. Wilson, 116 F.3d
1066 (5th Cir. 1997). We granted en banc review of Brown's section
924(c)(1) conviction. Thus, we vacated only Part IX C of the panel
opinion by our grant of rehearing en banc. See 5TH CIR. R. 41.3.
The panel opinion as to Brown's other convictions and the
convictions of all other defendants-appellants remains unaffected.
2
18 U.S.C. § 924(c)(1) provides, in relevant part:
“Whoever, during and in relation to any . . . drug trafficking
crime . . . uses or carries a firearm, shall, in addition to the
punishment provided for such . . . drug trafficking crime, be
sentenced to imprisonment for five years . . . .”
3
Except for minor grammatical differences, the district
court’s instruction was the same as the old Fifth Circuit Pattern
Jury Instruction. See Record, v. 44 at 113-14. The Fifth Circuit
Pattern Jury Instruction (Criminal Cases), No. 2.45 (West 1990)
provided:
Title 18, United States Code, Section 924(c)(1),
makes it a crime for anyone to use or carry a firearm
during and in relation to a drug trafficking crime.
For you to find the defendant guilty of this crime
you must be convinced that the government has proved each
of the following beyond a reasonable doubt:
First: That the defendant committed the crime
allege in Count __. I instruct you that ___ is a drug
trafficking crime; and
Second: That the defendant knowingly used or
carried a firearm during and in relation to the
defendant’s commission of the crime alleged in Count __.
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“carry” except to instruct that the government need not prove
that Brown “actually fired the weapon or brandished it at someone
in order to prove use. . . .” Brown did not object to the
instruction. The jury convicted Brown, and he appealed.
On appeal, Brown argued that under Bailey v. United States,
__ U.S. __, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), he had not
actively used the firearm, that the court’s instruction on “use”
was erroneous, and thus, we could not sustain his conviction. At
oral argument, the government acknowledged that the jury
instructions included elements of passive “use,” invalidated by
Bailey. It argued, however, that the facts supported a
conviction for “carrying,” and that the jury could not have
convicted Brown for “use” without also finding that he had
“carried” the firearm.
In our panel opinion, we agreed that “the jury could not
have improperly convicted Brown for a 'use' that would not also
The government is not required to prove that the
defendant actually fired the weapon or brandished it at
someone in order to prove “use,” as that term is used in
this instruction. However, you must be convinced beyond
a reasonable doubt that the firearm played a role in or
facilitated the commission of a drug offense. In other
words, you must find that the firearm was an integral
part of the drug offense charged.
The term “firearm” means any weapon which will or is
designed to or may readily be converted to expel a
projectile by the action of an explosive. The term
“firearm” also includes the frame or receiver of any
weapon, or any firearm muffler or firearm silencer, or
destructive device.
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support a proper conviction for carrying a weapon.” United
States v. Wilson, 116 F.3d 1066, 1090 (5th Cir. 1997). Thus, we
found the erroneous “use” instruction harmless. We noted that
reversal made “little sense,” but we believed ourselves
constrained by United States v. Fike, 82 F.3d 1315 (5th Cir.
1996), and United States v. Brown, 102 F.3d 1390 (5th Cir. 1996).
These two cases established a per se rule requiring remand for a
new trial on the issue of “carrying,” whenever a district court
instructs the jury under the expansive, pre-Bailey definition of
“use.”4 Accordingly, we vacated Brown’s conviction and remanded
4
We are the only circuit that has required remand in cases
in which a jury convicts the defendant under an erroneous pre-
Bailey “use” instruction. Other circuits apply some form of a
harmless error analysis. See United States v. Pimentel, 83 F.3d
55, 60 (2d Cir. 1996)(concluding remand not required if jury’s
verdict is the “functional equivalent” of a finding of “carrying”);
United States v. Price, 76 F.3d 526, 529 (3d Cir. 1996)(concluding
remand not required because “it is highly probable that the error
did not contribute to the judgment of the jury”); United States v.
Chen, 131 F.3d 375, 385 (4th Cir. 1997)(equally divided
court)(Williams, J., concurring)(stating that “district court’s
instruction on nonessential element of the offense is subject to
harmless error analysis”); United States v. Golden, 102 F.3d 936
(7th Cir. 1996)(applying a three-factor harmless error test to
flawed jury instructions); United States v. Beasely, 102 F.3d
1440, 1452 (8th Cir. 1996)(applying plain error analysis to flawed
jury instructions); United States v. Lopez, 100 F.3d 98, 103 (9th
Cir. 1996)(concluding that “we must apply harmless error review to
the 'carrying' prong on these facts”); United States v. Holland,
116 F.3d 1353, 1357 (10th Cir. 1997)(concluding that, despite the
erroneous instruction, the jury “found the elements necessary to
sustain a conviction for 'carrying'”); United States v. Farris, 77
F.3d 391, 395 (11th Cir. 1996)(affirming conviction notwithstanding
erroneous instruction, because “rational trier of fact could have
found the defendant guilty beyond a reasonable doubt”).
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for a new trial on the “carrying” prong of section 924(c)(1)
alone. The government moved for rehearing, and we granted en
banc review and vacated our panel opinion with respect to Brown’s
conviction on count twenty-four only.
II
Two recent Supreme Court decisions inform our interpretation
of section 924(c)(1): Bailey v. United States, __ U.S. __, 116
S. Ct. 501, 133 L. Ed. 2d 472 (1995), and Muscarello v. United
States, __ U.S. __, 118 S. Ct. 1911, 141 L. Ed. 2d 111 (1998).
In Bailey, the Supreme Court held that section 924(c)(1) requires
evidence sufficient to show active employment of a firearm by the
defendant, and not mere possession or intended use. See Bailey,
__ at __, 116 S. Ct. at 505-09. The Court noted also that
Congress intended the terms “use” and “carry” to have
“particular, nonsuperfluous meaning.” Id. at __, 116 S. Ct. at
507. Thus, according to the Court:
a firearm can be used without being carried, e.g., when
an offender has a gun on display during a transaction,
or barters with a firearm without handling it; and a
firearm can be carried without being used, e.g., when
an offender keeps a gun hidden in his clothing
throughout a drug transaction.
Id. The Court in Bailey did not define “carrying” for purposes
of section 924(c)(1), but clarified the definition in Muscarello.
In Muscarello, the Court held that the phrase “carries a firearm”
encompasses more than the mere carrying of a firearm on one’s
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person. According to the Court, the phrase also “applies to a
person who knowingly possesses and conveys firearms in a vehicle,
including in the locked glove compartment or trunk of a car,
which the person accompanies.” Muscarello, __ at __, 118 S. Ct.
at 1913-14.5
The facts found by the jury fit squarely within Muscarello’s
definition of “carries a firearm.” On the day of Brown’s arrest,
the police set up surveillance in an area of Shreveport
controlled by the Bottoms Boys. They observed Brown make hand-
to-hand exchanges with other people, and open his car’s trunk on
several occasions. When police officers stopped Brown, they
observed a gun in the front seat of his car. The officers then
searched the car and discovered two bags of cocaine concealed
near the gun’s location. A search of the car’s trunk recovered
another firearm and approximately two thousand dollars in cash.6
5
See Fifth Circuit Pattern Jury Instruction (Criminal
Cases), No. 2.49 (West 1997)(“To prove the defendant ‘carried’ a
firearm, the government must prove that the defendant carried the
firearm in the ordinary sense of the word ‘carry,’ such as by
transporting a firearm on the person or in a vehicle. The
defendant’s carrying of the firearm cannot be merely coincidental
or unrelated to the drug trafficking crime.”).
6
These facts were the only evidence before the jury on
which it could have convicted Brown on count twenty-four.
Significantly, the record does not reflect multiple episodes in
which Brown “used or carried” a firearm in relation to a drug
offense. See, e.g., United States v. Golden, 102 F.3d 936 (7th
Cir. 1996)(in context of multiple episodes, finding erroneous “use”
instruction not harmless because court could not “tell whether the
jury verdict rested on an erroneous understanding of ‘use’” or on
the jury’s belief that the defendants carried the firearm).
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Nonetheless, in light of Bailey, the panel held correctly
that the district court instructed the jury erroneously as to
“use.” Under our prior precedent, this finding would require us
to remand. We now must decide whether that error was harmless,
that is, notwithstanding the erroneous “use” instruction, whether
the jury found beyond a reasonable doubt the facts necessary to
support a conviction for “carrying.” See Carella v. California,
491 U.S. 263, 271, 109 S. Ct. 2419, 2423-24, 105 L. Ed. 2d 218
(1989)(Scalia, J., concurring).7
We find that the jury necessarily found Brown “carried” a
firearm as defined in Muscarello. To convict Brown, the jury had
to find only that Brown “knowingly used or carried a firearm,”
and that the firearm “was an integral part of the drug offense
charged.” The jury instructions encompassed Muscarello’s
definition of “carrying.” Thus, in concluding that Brown “used”
a firearm, pursuant to the pre-Bailey “use” instruction, the jury
necessarily found that Brown “carried” the firearm. See United
States v. Lopez, 100 F.3d 98, 104 (9th Cir. 1996)(noting that “no
7
As Justice Scalia stated:
When the . . . facts necessarily found by the jury[] are
so closely related to the ultimate fact to be presumed
that no rational jury could find those facts without also
finding that ultimate fact, making those findings is
functionally equivalent to finding the element required
to be presumed. The error is harmless because it is
“beyond a reasonable doubt” that the jury found the facts
necessary to support the conviction.
Carella v. California, 491 U.S. at 271, 109 S. Ct. at 2423-24
(Scalia, J., concurring)(emphasis added).
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rational jury could have found that the pistol was 'in the
defendants' possession or under their control' without also
necessarily finding that either [defendant] 'carried' the
firearm”). In other words, on the facts of this case, the jury’s
finding of passive “use” amounted to a finding of “carrying.”
See Carella, 491 U.S. at 271, 109 S. Ct at 2423-24 (Scalia, J.,
concurring). We hold, therefore, that the erroneous “use”
instruction was harmless.
III
Brown’s conviction on count twenty-four is, therefore,
AFFIRMED.8
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8
To the extent that our decision today is inconsistent
with our decisions in Fike and Brown, those decisions are
overruled.
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