UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1043
No. 96-1669
UNITED STATES OF AMERICA,
Appellee,
v.
DONALD E. CLEVELAND,
Defendant, Appellant.
No. 96-1128
UNITED STATES OF AMERICA,
Appellee,
v.
RAMON E. VASQUEZ,
Defendant, Appellant.
No. 96-1659
UNITED STATES OF AMERICA,
Appellee,
v.
ENRIQUE GRAY-SANTANA,
Defendant, Appellant.
ERRATA
The published opinion of this Court issued on February 18, 1997,
is amended as follows:
Page 4: insert as line 1, the following: "to eight kilograms of
cocaine from co-defendant Juan Rodriguez"
Page 5, 4th line from bottom: delete comma after "Acosta"
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1043
No. 96-1669
UNITED STATES OF AMERICA,
Appellee,
v.
DONALD E. CLEVELAND,
Defendant, Appellant.
No. 96-1128
UNITED STATES OF AMERICA,
Appellee,
v.
RAMON E. VASQUEZ,
Defendant, Appellant.
No. 96-1659
UNITED STATES OF AMERICA,
Appellee,
v.
ENRIQUE GRAY-SANTANA,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Boudin, Circuit Judge,
Campbell, Senior Circuit Judge,
and Bownes, Senior Circuit Judge.
Inga S. Bernstein and John H. Cunha, by Appointment of the Court,
with whom Norman S. Zalkind, Zalkind, Rodriguez, Lunt & Duncan and
Salsberg, Cunha & Holcomb, P.C. were on consolidated briefs for
appellants Enrique Gray-Santana and Donald E. Cleveland.
Oliver C. Mitchell, Jr. with whom Donnalyn B. Lynch Kahn and
Goldstein & Manello, P.C. were on brief for appellant Ramon E.
Vasquez.
Andrea Nervi Ward, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on briefs for the United
States.
February 18, 1997
CAMPBELL, Senior Circuit Judge. Ramon E. Vasquez
appeals from his conviction by a jury for conspiracy to
possess cocaine with intent to distribute in violation of 21
U.S.C. 846 and for possession of cocaine with intent to
distribute in violation of 21 U.S.C. 841. He contends that
the district court erred in denying his motion to suppress
certain physical evidence and in omitting "hesitate to act"
language from its reasonable doubt instruction.
Enrique Gray-Santana and Donald Cleveland, who were
Vasquez's co-defendants, pleaded guilty to attempting to
possess cocaine with intent to distribute in violation of 21
U.S.C. 846 and 841(a) and to carrying or using a firearm
during and in relation to a drug trafficking crime in
violation of 18 U.S.C. 924(c)(1). As their guilty pleas
permit, they now appeal from the district court's denials of
their motions to suppress and motions in limine. They also
appeal from the district court's denial of relief from their
924(c)(1) convictions for carrying or using a firearm in
relation to a drug crime. They argue that their guilty pleas
and convictions should be invalidated under Bailey v. United
States, U.S. , 116 S. Ct. 501 (1995), a decision
handed down by the Supreme Court shortly after acceptance of
their guilty pleas.
I. Background
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Most of the facts are not in dispute. Gray-Santana
("Gray"), a resident of New York City, arranged to secure
five to eight kilograms of cocaine from co-defendant Juan
Rodriguez (not a present appellant). Gray intended to sell
the cocaine through other contacts he had in Boston, so he
arranged to take delivery in Boston.
On the morning of October 18, 1994, Gray travelled
by bus to Boston, planning to meet Cleveland. Cleveland
picked Gray up in a rented white Mazda 929 he had borrowed
from a friend and took him to his house. There, Cleveland
and Gray placed three loaded handguns inside a Louis Vuitton
duffel bag and put the bag inside the Mazda's trunk. The two
planned to use the guns to rob their suppliers of their
cocaine. At around 4 p.m., Cleveland and Gray were paged by
Rodriguez. They then left in the Mazda to meet Rodriguez in
the Symphony Hall area of Boston.
At this time, the Drug Enforcement Administration
was investigating one Juan Pagan. The DEA had information
that Pagan was shipping large amounts of cocaine from Puerto
Rico to New England. On October 17, 1994, heightened phone
activity led DEA Agents to begin physical surveillance,
including videotaping, of the Connecticut apartment complex
where Juan Pagan resided. Around noon on October 18, 1994,
two cars arrived at the complex. The first was a Lexus,
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driven by William Acosta with Vasquez in the back seat. The
second was a Lincoln, driven by Rodriguez.
After the cars parked, Rodriguez handed Acosta a
black bag and then Acosta took the bag up to Pagan's
apartment. Vasquez, carrying a cellular phone, got out of
the Lexus and sat with Rodriguez in the Lincoln. After ten
or fifteen minutes, Acosta came back and spoke to Vasquez,
prompting Vasquez and Rodriguez to leave the complex in a
brown Oldsmobile driven by one Jorge Quinones. An hour or so
later, Vasquez returned in the Oldsmobile, followed by
Rodriguez in a white Isuzu Trooper.
The DEA had received information from two
confidential sources that Pagan used a white Isuzu Trooper in
his drug operations. These informants had also told the DEA
that some of Pagan's vehicles had hidden compartments used to
hold drugs. One of the informants had stated that Pagan's
white Isuzu Trooper had such a hidden compartment under the
rear seat.
After the Isuzu arrived, Acosta and Rodriguez were
observed examining its back seat area. Acosta then left,
driving the Lexus with Vasquez in the back seat. Rodriguez
followed them in the Isuzu. The two cars drove to Boston on
major highways, staying close to 55 miles per hour. DEA
agents followed them the entire way.
-6-
After the caravan arrived in the Symphony Hall area
of Boston, Acosta and Rodriguez parked the cars. Acosta then
used the Lexus to guide Cleveland and Gray, who had arrived
in the Mazda, to where the Isuzu was parked. Acosta drove
away, and Vasquez was next observed sitting in the back seat
of the Mazda. Gray exited the Mazda and got into the Isuzu.
Vasquez got into the front seat of the Mazda.
The two cars began to drive off. At this point,
the DEA agents blocked them. The agents ordered the
occupants of both cars to exit their vehicles and handcuffed
them. The agents then moved the suspects and their cars out
of traffic to a nearby parking lot.
The agents searched the Isuzu and found six
kilograms of cocaine in a concealed compartment underneath
the back seat. They then searched the Mazda and found the
bag in the trunk containing the three guns, rope and duct
tape. At that point, the four men were told they were under
arrest.
A few hours after his arrest, while he was in
custody, Gray gave a statement to DEA agent Bruce Travers
confessing to participation in the events described above.
Vasquez filed a motion to suppress the physical
evidence found on his person at the time of his arrest. The
district court denied his motion. Vasquez was tried by a
jury and convicted of conspiracy to possess cocaine with
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intent to distribute and of possession of cocaine with intent
to distribute. The court sentenced him to 121 months in
prison.
Cleveland and Gray eventually pled guilty to
attempting to possess cocaine with intent to distribute and
to carrying or using a firearm during and in relation to a
drug trafficking crime, subject to their right to appeal any
adverse ruling by the district court on their motions to
suppress physical evidence and to suppress Gray's post-arrest
statement. The district court denied their motions and
sentenced each of them to 180 months in prison and 60 months
of supervised release.1 After the Supreme Court came down
with its Bailey decision, 116 S. Ct. 501, Cleveland and Gray
moved in the district court for relief from the conviction
for carrying or using a firearm in relation to a drug
trafficking crime. The court denied that motion.
II. Vasquez
A. The Search of Vasquez's Person:
In his first point of error, Vasquez argues that
the district court erred in denying his motion to suppress
the physical evidence the agents found on his person. This
included a pager, address book, business cards, and notes
tying Vasquez to the other defendants. He contends that a
1. Rodriguez pleaded guilty to conspiracy and possession
charges and was also sentenced to 120 months in prison and 60
months of supervised release.
-8-
wrongful de facto arrest occurred when he was initially
ordered out of the Mazda and handcuffed. (Only later was
Vasquez told he was under arrest and thereafter searched, by
which time the cocaine had been discovered in the Isuzu.)
Because the initial de facto arrest was allegedly without
probable cause, Vasquez argues that it was illegal and that
it tainted all subsequent events, causing the later search of
his person to violate the Fourth Amendment.
The district court held, however, and we agree,
that the agents had probable cause to arrest Vasquez at the
time they ordered him out of the Mazda and handcuffed him.
Accordingly, regardless of whether the arrest occurred then
or later, the arrest was legal and the subsequent search of
his person was proper. "[I]t is well established that '[i]f
an arrest is lawful, the arresting officers are entitled to
search the individual apprehended pursuant to that arrest.'"
United States v. Torres-Maldonado, 14 F.3d 95, 105 (1st Cir.)
(quoting United States v. Uricoechea-Casallas, 946 F.2d 162,
165 (1st Cir. 1991)), cert. denied, 115 S. Ct. 193 (1994).
"Law enforcement officers may effect warrantless
arrests provided that they have probable cause to believe
that the suspect has committed or is committing a crime."
United States v. Martinez-Molina, 64 F.3d 719, 726 (1st Cir.
1995) (citing United States v. Watson, 423 U.S. 411, 416-18
(1976); Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975)).
-9-
"[The government] need only show that, at the time of the
arrest, the facts and circumstances known to the arresting
officers were sufficient to warrant a prudent person in
believing that the defendant had committed or was committing
an offense." Torres-Maldonado, 14 F.3d at 105. See also
Beck v. Ohio, 379 U.S. 89, 91 (1964).
"Of course, probable cause must exist with respect
to each person arrested, and 'a person's mere propinquity to
others independently suspected of criminal activity does not,
without more, give rise to probable cause to search that
person.'" Martinez-Molina, 64 F.3d at 726 (quoting Ybarra v.
Illinois, 444 U.S. 85, 91 (1979)). "[C]ases in which courts
find that probable cause exists generally involve
substantially more than a momentary, random, or apparently
innocent association between the defendant and the known
criminal activity." Martinez-Molina, 64 F.3d at 727
(discussing cases).
Here, prior to seizing Vasquez, the agents had been
investigating Pagan and his drug trafficking operations for
several years. Before the events of this case, the agents
had learned from informants that Pagan was trafficking in
kilogram quantities of cocaine, shipping it from Puerto Rico
to Hartford, Connecticut and Springfield, Massachusetts. The
agents had learned that Pagan used couriers to transport the
cocaine. Some of Pagan's couriers had been arrested at the
-10-
San Juan airport with several kilograms of cocaine in their
luggage and had admitted to working for Pagan.
Two confidential informants who had each proved
reliable in related matters had told DEA agents that among
the many vehicles Pagan used to transport drugs and money was
a white Isuzu Trooper. They each also related that Pagan's
transport vehicles often had a concealed, electronically-
controlled compartment used to hide whatever was being moved.
One of them asserted that he had seen that the white Isuzu
Trooper had such a compartment in the floor under the rear
seat.
The agents had also learned from one of the
informants and from other sources that Pagan's girlfriend
lived in apartment D-219 at the Connecticut apartment complex
and that Pagan used that apartment in his drug activities.
The apartment was listed under the name "J. Pagan." The DEA
had installed a pen register on the apartment's phone so
they could track calls made to and from that number.
On October 17, 1994, the pen register revealed a
sharp increase in phone activity from the Connecticut
apartment. Some of the numbers being called matched cellular
phone and beeper numbers that the agents knew belonged to
Pagan's previously identified drug associates. The agents
decided to begin physical surveillance of the Connecticut
apartment. This surveillance included agents stationed
-11-
around the apartment complex and two agents who were equipped
with a video camera in an apartment that had a view of
Pagan's apartment.
A little after noon on October 18th, the agents
observed a Lexus and a Lincoln Town Car enter the apartment's
parking lot. The various movements of people and vehicles
that followed, coupled with the DEA's information about
Pagan's drug dealing, strongly indicated that a drug
transaction was taking place. Acosta, who had been driving
the Lexus, entered Pagan's apartment building followed by
Rodriguez, carrying a large black shoulder bag. Rodriguez
handed this bag to Acosta in the building's lobby. Later on,
the agents saw Acosta talking to Pagan on Pagan's balcony.
Vasquez exited the Lexus and walked over to
Rodriguez and the Lincoln carrying a cellular phone, one of
the "well known tools of the drug trade." United States v.
De La Cruz, 996 F.2d 1307, 1311 (1st Cir.), cert. denied, 510
U.S. 936 (1993). See also Martinez-Molina, 64 F.3d at 728.
Vasquez waited with Rodriguez inside the Lincoln until Acosta
came out with another man, Jorge Quinones, and spoke to
Vasquez. Then Quinones left, returning shortly in a brown
Oldsmobile. Vasquez and Rodriguez got into the Oldsmobile
and drove out of the complex.
An hour or so later Vasquez and Quinones returned,
followed by Rodriguez in a white Isuzu Trooper, exactly the
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car the agents had been told Pagan used to transport drugs
and drug proceeds. It was also the vehicle said to have a
hidden compartment for drugs and money in the floor under the
rear seat. While Pagan stood on his balcony overlooking the
parking lot, Acosta and Rodriguez were seen to be looking
into the Isuzu's back seat area, where the secret compartment
was said to be located.
At this point, the agents had probable cause to
believe that Vasquez, Rodriguez, Acosta, Pagan, and Quinones
were involved in a drug transaction, with the Isuzu Trooper
likely bearing the contraband. Rather than arrest the
suspects immediately, the agents chose to follow the Isuzu
Trooper and the Lexus as they drove to Boston.
What happened thereafter beginning with the
drive in tandem to Boston and ending with the agents'
intervention was wholly consistent with the existence of
an unfolding drug transaction and Vasquez's active
involvement. Vasquez and Rodriguez stood on a Boston street
corner, apparently checking the area for police. Later, and
after the agents had seen Acosta speak to Cleveland and Gray,
the agents spotted Vasquez inside the Mazda, to which he had
moved from the Lexus. Vasquez was still inside the Mazda
with Cleveland when the agents stopped the vehicles and
ordered everyone out.
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By this time, the agents had abundant evidence to
constitute probable cause that Vasquez was involved in an
ongoing drug trafficking crime and that his association with
the other suspects was not momentary, random, or innocent.
They had authority, therefore, at the time he was ordered
from the Mazda and handcuffed, to arrest Vasquez. The
district court did not err in refusing to suppress the
various items later found on Vasquez's person when he was
searched.
B. The Reasonable Doubt Instruction:
Vasquez asserts that the district court erred in
refusing to include "hesitate to act" language in its
reasonable doubt instruction. In particular, Vasquez insists
that, upon his objection to the omission, the court should
have complied with his request to tell the jury, "When we
talk about a reasonable doubt, we mean a doubt based upon
reason and common sense, the kind of doubt that would make a
reasonable person hesitate to act."
The short answer to this argument is that this
court has explicitly held that a district court's refusal to
include "hesitate to act" language in its explanation of
reasonable doubt to the jury does not constitute reversible
error. See United States v. Vavlitis, 9 F.3d 206, 212 (1st
Cir. 1993); United States v. O'Brien, 972 F.2d 12, 15 (1st
Cir. 1992). Although we accepted an instruction that
-14-
included such language in United States v. Drake, 673 F.2d
15, 21 (1st Cir. 1982), we have also criticized the "hesitate
to act" formulation. See Gilday v. Callahan, 59 F.3d 257,
264 (1st Cir. 1995) (characterizing the "hesitate to act"
language as "arguably unhelpful"), cert. denied, 116 S. Ct.
1269 (1996); O'Brien, 972 F.2d at 15-16 (criticizing
instructions such as the "hesitate to act" formulation which
compare reasonable doubt to the decisional standard used by
individual jurors in their own affairs as trivializing the
constitutionally required burden of proof).
The Supreme Court has stated that the Constitution
does not require district courts to define reasonable doubt,
nor does it require trial courts who do choose to explain the
term to employ "any particular form of words . . . in
advising the jury of the government's burden of proof."
Victor v. Nebraska, 511 U.S. 1, 5 (1994). "Rather, 'taken as
a whole, the instructions must correctly convey the concept
of reasonable doubt to the jury.'" Id. (quoting Holland v.
United States, 348 U.S. 121, 140 (1954)).
In instructing the jury on reasonable doubt, the
district court stated:
As I have said, the burden is upon the
Government to prove beyond a reasonable
doubt that a defendant is guilty of the
charge made against the defendant. It is
a strict and heavy burden, but it does
not mean that a defendant's guilt must be
proved beyond all possible doubt. It
does require that the evidence exclude
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any reasonable doubt concerning a
defendant's guilt.
A reasonable doubt may arise not
only from the evidence produced but also
from a lack of evidence. Reasonable
doubt exists when, after weighing and
considering all the evidence, using
reason and common sense, jurors cannot
say that they have a settled conviction
of the truth of the charge.
Of course, a defendant is never to
be convicted on suspicion or conjecture.
If, for example, you view the evidence in
the case as reasonably permitting either
of two conclusions one that a
defendant is guilty as charged, the other
that the defendant is not guilty you
will find the defendant not guilty.
It is not sufficient for the
Government to establish a probability,
though a strong one, that a fact charged
is more likely to be true than not true.
That is not enough to meet the burden of
proof beyond reasonable doubt. On the
other hand, there are very few things in
this world that we know with absolute
certainty, and in criminal cases the law
does not require proof that overcomes
every possible doubt.
Concluding my instructions on the
burden, then, I instruct you that what
the Government must do to meet its heavy
burden is to establish the truth of each
part of each offense charged by proof
that convinces you and leaves you with no
reasonable doubt, and thus satisfies you
that you can, consistently with your oath
as jurors, base your verdict upon it. If
you so find as to a particular charge
against a defendant, you will return a
verdict of guilty on that charge. If, on
the other hand, you think there is a
reasonable doubt about whether the
defendant is guilty of a particular
offense, you must give the defendant the
-16-
benefit of the doubt and find the
defendant not guilty of that offense.
This explanation correctly conveyed the concept of
reasonable doubt to the jury.
III. Cleveland and Gray
A. The Vehicle Searches:
In their first point of error, Cleveland and Gray
argue that the district court erred in refusing to grant
their motion to suppress the evidence found in the agents'
search of the Isuzu Trooper and of the Mazda.
"A police officer may effect a warrantless search
of the interior of a motor vehicle on a public thoroughfare
as long as he has probable cause to believe that the vehicle
contains contraband or other evidence of criminal activity."
United States v. Staula, 80 F.3d 596, 602 (1st Cir.), cert.
denied, 117 S. Ct. 156 (1996). See also California v.
Acevedo, 500 U.S. 565, 570 (1991); Chambers v. Maroney, 399
U.S. 42, 46-52 (1970); United States v. Martinez-Molina, 64
F.3d 719, 730 (1st Cir. 1995). When the police have probable
cause to search a vehicle, they may also search closed
containers within that vehicle. See Acevedo, 500 U.S. at
569-81.
Even assuming that Cleveland and Gray have standing
to contest the searches in this case, a problematic
proposition in itself, the agents clearly had probable cause
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to search the vehicles. As explained in Part II-A, above, by
the time the agents stopped the two cars, they had probable
cause to believe that the defendants were involved in a drug
transaction and that the Trooper contained contraband. The
movements of the Mazda in following the Lexus to rendezvous
with the Isuzu, when combined with the exchange of personnel
Gray moving into the Isuzu and Vasquez entering the Mazda
provided the agents with probable cause to believe that
Cleveland and Gray were also involved in the drug transaction
and that the Mazda contained contraband. The warrantless
search thus did not violate the Fourth Amendment, and the
district court did not err in refusing to suppress the
evidence found in the two vehicles.
B. Gray's Statement:
In the next point of error, Gray asserts that the
district court should have suppressed the statement he made
to Agent Travers in the DEA office after his arrest. Gray
claims that he had invoked his right to counsel before making
the statement and that the agents coerced the statement from
him through intimidation.
The district court, after holding two evidentiary
hearings at which it heard the testimony of Gray, Agent
Travers, and another agent present at DEA headquarters the
night of Gray's arrest, concluded that Gray's various
allegations of coercive activity by the agents were not
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credible. The court also found that Gray had initiated the
conversation with the agents that led to his confession by
knocking on the door of his cell. Gray then told Agent
Travers that he wished to speak with him about the events
leading up to his arrest and signed a written waiver of his
rights. After examining the record, we believe that these
findings of fact by the district court were not clearly
erroneous. See United States v. Valle, 72 F.3d 210, 213-14
(1st Cir. 1995) ("In reviewing orders granting or denying
suppression motions, this court scrutinizes a district
court's factual findings, including its credibility
determinations, for traces of clear error.").
In this case, as in Valle, "whether or not to
suppress the challenged statements boils down to a
credibility call" and "[s]uch calls are grist for the
district court's mill." Valle, 72 F.3d at 214. Since Gray
initiated the contact with the agents that led to his
statement after he had invoked his right to counsel, the
district court was correct to deny the motion to suppress.
See Edwards v. Arizona, 451 U.S. 477, 484-86 (1981) (holding
that once a defendant has asked for an attorney, she is not
subject to further interrogation by the police until after
counsel has been made available to her unless she herself
initiates further communication with the authorities); United
States v. Fontana, 948 F.2d 796, 805-06 (1st Cir. 1991)
-19-
(noting that initiation of interrogation by the accused has
been broadly interpreted); Watkins v. Callahan, 724 F.2d
1038, 1042 (1st Cir. 1984) (stating that "an accused is not
powerless to countermand an election to talk to counsel").
Similarly, we find no clear error in the district
court's determination that the agents did not commit the
coercive acts alleged by Gray. See United States v. Burns,
15 F.3d 211, 216 (1st Cir. 1994) ("Although the ultimate
issue of voluntariness is a question of law subject to
plenary review, we will accept the district court's
subsidiary findings of fact unless they are 'clearly
erroneous.'").
Based on the facts as found by the district court,
the court's holding that Gray's statement was voluntary and
therefore admissible at trial under 18 U.S.C. 3501 was
proper.
The court applied the totality of the circumstances
test mandated by 18 U.S.C. 3501(b), paying particular
attention to the factors identified by that section.2 Gray
2. 18 U.S.C. 3501(b) states:
(b) The trial judge in determining the issue of
voluntariness shall take into consideration all
the circumstances surrounding the giving of the
confession, including (1) the time elapsing
between arrest and arraignment of the defendant
making the confession, if it was made after arrest
and before arraignment, (2) whether such defendant
knew the nature of the offense with which he was
charged or of which he was suspected at the time
of making the confession, (3) whether or not such
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gave his statement within six hours of his arrest, bringing
this case within the rule of 3501(c).3 The court found
that Gray knew the nature of the offense of which he was
suspected at the time he made the confession; knew that he
was not required to make any statement and that any statement
he did make could be used against him; and had been advised
prior to the questioning of his right to the assistance of
counsel. The court acknowledged that Gray had been without
the assistance of counsel when he gave his statement, but
held that in this case, this fifth factor was heavily
defendant was advised or knew that he was not
required to make any statement and that any such
statement could be used against him, (4) whether
or not such defendant had been advised prior to
questioning of his right to the assistance of
counsel; and (5) whether or not such defendant was
without the assistance of counsel when questioned
and when giving such confession.
The presence or absence of any of the above-
mentioned factors to be taken into consideration
by the judge need not be conclusive on the issue
of voluntariness of the confession.
3. 18 U.S.C. 3501(c) states, in relevant part:
(c) In any criminal prosecution by the United
States . . . a confession made or given by a
person who is a defendant therein, while such
person was under arrest . . . shall not be
inadmissible solely because of delay in bringing
such person before a magistrate . . . if such
confession was made or given by such person within
six hours immediately following his arrest or
other detention . . . .
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outweighed by the other four factors and by the case's
particular circumstances.
We agree with the district court that Gray's
statement was voluntary.
C. The "Carry" Issue:
Cleveland and Gray pleaded guilty to violating 18
U.S.C. 924(c)(1). That statute imposes a five-year prison
term on anyone who, "during and in relation to any crime of
violence or drug trafficking crime . . . uses or carries a
firearm." 18 U.S.C. 924(c)(1). After the Supreme Court's
opinion in Bailey, they both sought revocation of their
convictions based on guilty pleas to the 924(c)(1) charges.
Gray, against whom judgment had not yet entered, filed an
unsuccessful Motion to Correct Sentence under Fed. R. Crim.
P. 35(c), and Cleveland, against whom judgment had entered
and whose direct appeal was already pending, filed an equally
unavailing motion under 28 U.S.C. 2255. The various
appeals were consolidated. The government does not dispute
our jurisdiction to consider on the merits Cleveland and
Gray's claims that their guilty pleas are invalid in light of
Bailey. Since we reject those claims, we do not address any
potential jurisdictional question stemming from Cleveland's
2255 appeal.
The broad definition of "use" formerly employed by
this circuit and under which Cleveland and Gray pleaded
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guilty was unanimously disapproved by the Supreme Court in
Bailey. Stating the need to interpret statutory terms in
accordance with their "ordinary or natural" meaning, the
Court relied on the dictionary definition of "use" in holding
that a conviction under the "use" prong of the statute could
only be upheld if the defendant "actively employed the
firearm during and in relation to the predicate crime."
Bailey, 116 S. Ct. at 506-509. Mere possession or storage of
the weapon is insufficient. Id. at 508-09.
Under Bailey, Cleveland and Gray cannot be
convicted under 924(c)'s "use" prong. The guns remained in
the Mazda's trunk throughout the events in question; neither
Cleveland nor Gray "actively employed" the firearm. Their
guilty pleas might still, however, be upheld under the
statute's "carry" prong.
While Bailey did not address the requirements
relative to "carry," the Supreme Court stated that part of
its rationale for defining "use" more narrowly was to
preserve a separate, nonsuperfluous meaning for "carry."
Bailey, 116 S. Ct. at 507. The Court wrote, "Under the
interpretation we enunciate today, 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
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clothing throughout a drug transaction." Id. at 507. The
Court remanded the case for a determination of whether a
defendant could be convicted under the "carry" prong either
for having a gun inside a bag in a locked car trunk or for
having an unloaded firearm in a locked footlocker inside a
bedroom closet. Id. at 509.
Bailey leaves us with two questions concerning the
proper interpretation of "carry." First, must a firearm be
on a suspect's person to be "carried" or can one also "carry"
a firearm in a vehicle? Second, if one can "carry" a firearm
in a vehicle, must the weapon be immediately accessible to
the defendant to be "carried"?
The first question is easily answered. We have
already held post-Bailey that a firearm can be "carried" in a
boat, a conveyance that seems indistinguishable for present
purposes from a land vehicle like a car. United States v.
Ramirez-Ferrer, 82 F.3d 1149 (1st Cir.), cert. denied, 117 S.
Ct. 405 (1996).
This result accords both with our pre-Bailey
"carry" cases and with the holdings of the other circuits to
have considered this issue post-Bailey. See, e.g., United
States v. Plummer, 964 F.2d 1251, 1252-54 (1st Cir.)
(acknowledging the defendant-driver's concession that the
presence of a gun in his vehicle either in the driver's seat
or on the front passenger seat was sufficient to establish
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that he had "carried" a gun under 924(c)(1)), cert. denied,
506 U.S. 926 (1992); United States v. Eaton, 890 F.2d 511,
511-12 (1st Cir. 1989) (acknowledging the defendant's
concession that he had "carried" a gun for the purposes of
924(c)(1) when the gun had been under the front seat of the
truck he was driving), cert. denied, 495 U.S. 906 (1990);
United States v. Giraldo, 80 F.3d 667, 677-78 (2d Cir.)
(upholding a 924(c)(1) conviction for "carrying" a gun in a
car), cert. denied, 117 S. Ct. 135 (1996); United States v.
Mitchell, No. 95-5792, 1997 WL 12115, at *2-4 (4th Cir. Jan.
15, 1997) (same); United States v. Fike, 82 F.3d 1315, 1327-
28 (5th Cir.) (stating that a gun may be "carried" in a car),
cert. denied, 117 S. Ct. 241-42 (1996); United States v.
Riascos-Suarez, 73 F.3d 616, 623 (6th Cir.) (same), cert.
denied, 117 S. Ct. 136 (1996); United States v. Molina, 102
F.3d 928, 930-32 (7th Cir. 1996) (same); United States v.
Willis, 89 F.3d 1371, 1377-79 (8th Cir.) (same), cert.
denied, 117 S. Ct. 273 (1996); United States v. Staples, 85
F.3d 461, 464 (9th Cir.) (same), cert. denied, 117 S. Ct. 318
(1996); United States v. Miller, 84 F.3d 1244, 1256-61 (10th
Cir.) (same), cert. denied, 117 S. Ct. 443 (1996); United
States v. Farris, 77 F.3d 391, 395 (11th Cir.) (upholding a
924(c)(1) conviction for "carrying" a gun in a car), cert.
denied, 117 S. Ct. 241 (1996).
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On the second question, we agree with the Fourth,
Seventh and Tenth Circuits that a gun may be "carried" in a
vehicle for the purposes of 924(c)(1) without necessarily
being immediately accessible to the defendant while it is
being transported. See Miller, 84 F.3d at 1260; Molina, 102
F.3d at 930-32; Mitchell, at *3.
Since Bailey, this Circuit has twice faced
questions concerning the scope of the statute's "carry"
prong. In United States v. Manning, 79 F.3d 212 (1st Cir.),
cert. denied, 117 S. Ct. 147 (1996), we held that carrying a
briefcase containing a gun, pipe bombs, drugs, and drug
paraphernalia was sufficient to fulfill the "carry"
requirement. In Ramirez-Ferrer, already noted, we held that
a loaded revolver covered by a T-shirt within the defendant's
reach on a cocaine-laden boat upon which the defendant was
travelling was being "carried" for the purposes of
924(c)(1). In neither case, however, did we have to decide
whether a firearm in a vehicle in which a defendant is
travelling needs to be within easy reach to be "carried" for
the purposes of 924(c)(1).
Since some circuits have, since Bailey, continued
to rely upon their pre-Bailey "carry" case law, we look at
ours as well, but find no case that is entirely on point.
See, e.g., United States v. Castro-Lara, 970 F.2d 976, 982-83
(1st Cir. 1992) (upholding a conviction under 924(c)(1)
-26-
when the gun was in a briefcase in a locked car trunk without
specifying whether the conviction was under the statute's
"use" or "carry" prong), cert. denied, 508 U.S. 962 (1993);
Plummer, 964 F.2d at 1252-54 (acknowledging the defendant-
driver's concession that the presence of a gun in his vehicle
either in the driver's seat or on the front passenger seat
was sufficient to establish that he had "carried" a gun under
924(c)(1)); Eaton, 890 F.2d at 511-12 (acknowledging the
defendant's concession that he had "carried" a gun for the
purposes of 924(c)(1) when the gun had been under the front
seat of the truck he was driving).
"When a word is not defined by statute, we normally
construe it in accord with its ordinary or natural meaning."
Smith v. United States, 508 U.S. 223, 228 (1993). In Bailey,
the Supreme Court turned to the dictionary for help in
determining the meaning of "use," Bailey, 116 S. Ct. at 506,
so we do the same with "carry."
Webster's Third New International Dictionary of the
English Language Unabridged 343 (3d ed. 1971) defines "carry"
as, "1: to move while supporting (as in a vehicle or in
one's hands or arms): move an appreciable distance without
dragging: sustain as a burden or load and bring along to
another place." Webster's goes on to list many other
definitions of the word and then, in differentiating "carry"
from some of its synonyms, states:
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CARRY indicates moving to a location some
distance away while supporting or
maintaining off the ground. Orig.
indicating movement by car or cart, it is
a natural word to use in ref. to cargoes
and loads on trucks, wagons, planes,
ships, or even beasts of burden.
Id. This definition, therefore, clearly includes the
transport of a firearm by car; the concept of whether or not
the carried item is within reach plays no part in the
definition.
Black's Law Dictionary 214 (6th ed. 1990) defines
"carry" as, "To bear, bear about, sustain, transport, remove,
or convey. To have or bear upon or about one's person, as a
watch or weapon; locomotion not being essential . . . ."
(emphasis supplied). However, Black's defines the specific
phrase "carry arms or weapons" more narrowly as, "To wear,
bear, or carry them upon the person or in the clothing or in
a pocket, for the purpose of use, or for the purpose of being
armed and ready for offensive or defensive action in case of
a conflict with another person." Id.
The latter Black's definition of "carry arms or
weapons" limits "carrying" to the defendant's person and so
at least implies accessibility. However, even the circuits
which have read an immediate accessibility requirement into
"carry" under 924(c)(1) have never limited the statutory
language to "carrying" a firearm on the person. Indeed, such
circuits, like the others to confront the issue, have all
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upheld convictions for "carrying" a weapon in a car. See
United States v. Cruz-Rojas, 103 F.3d 283, 286 (2d Cir. 1996)
(remanding two "carry" convictions to determine if a gun
under a car's dashboard was accessible to either defendant);
Riascos-Suarez, 73 F.3d at 623 (upholding a "carry"
conviction when the gun was in a car near the driver's seat);
United States v. Willett, 90 F.3d 404, 406-07 (9th Cir. 1996)
(holding that a gun transported in a car was "carried"
because it was easily accessible).
We strongly doubt given the omnipresence of
automobiles in today's world and in drug dealing, and given
the basic meaning of "carry" as including transport by
vehicle that Congress, in prescribing liability for anyone
who "uses or carries" a firearm during or in relation to a
drug trafficking offense, meant to exclude a defendant who
transports the gun in his car, rather than on his person, for
use in a drug transaction. Hence the Black's Law Dictionary
restricted definition of the phrase "carry arms or weapons"
seems inapposite here.
It is true, of course, that to come under
924(c)(1), "the firearm must have some purpose or effect with
respect to the drug trafficking crime; its presence or
involvement cannot be the result of accident or coincidence."
Smith, 508 U.S. at 238. In certain circumstances, a
firearm's immediate accessibility to a defendant might be
-29-
relevant to determining whether or not he was carrying it
"during and in relation to" a drug trafficking crime, as the
statute requires. 18 U.S.C. 924(c)(1). But a firearm need
not always be instantly accessible in order to be carried
"during and in relation to" a drug trafficking crime. Here,
the evidence shows that the defendants had placed the three
firearms in question in the Mazda's trunk and, when arrested,
were carrying them for the purpose of using them to rob their
suppliers during the ongoing drug trafficking crime.
Evidence of this purpose plainly demonstrated the necessary
nexus to the drug trafficking offense wholly apart from
whether the guns were within the immediate reach of those
seated in the car at the time they were stopped by the
agents.
As noted above, the Fourth, Seventh, and Tenth
Circuits have held that a gun does not need to be readily
accessible to be "carried" in a vehicle. See Mitchell, at
*2-4; Molina, 102 F.3d at 930-32; Miller, 84 F.3d at 1256-61.
Other circuits, while not explicitly deciding the
issue one way or the other, appear to be leaning toward
adopting the same approach. See United States v. Pineda-
Ortuno, 952 F.2d 98, 103-04 (5th Cir.) (a pre-Bailey case
holding that the circuit's cases requiring a showing that the
gun was within the defendant's reach during the commission of
the drug offense did not apply when the gun was "carried" in
-30-
a vehicle), cert. denied, 504 U.S. 928 (1992); United States
v. Fike, 82 F.3d 1315, 1327-28 (5th Cir. 1996) (a post-Bailey
case upholding a defendant's conviction under 924(c)(1) for
"carrying" a gun that was within his reach in a car but not
stating that accessibility was a requirement); United States
v. Rivas, 85 F.3d 193, 194-96 (5th Cir.) (same), cert.
denied, 117 S. Ct. 593 (1996); United States v. Willis, 89
F.3d 1371, 1377-79 (8th Cir. 1996) (relying on pre-Bailey
case law to hold that transporting a firearm in the passenger
compartment of a vehicle satisfies the "carry" prong of
924(c)(1) but not addressing the weapon's accessibility);
United States v. Caldwell, 97 F.3d 1063, 1068-70 (8th Cir.
1996) (upholding a conviction under 924(c)(1)'s "carry"
prong for a case in which the defendant's gun was in a car's
hatchback, an area the court regarded as within the car's
occupants' reach); United States v. Farris, 77 F.3d 391, 395
(11th Cir. 1996) (relying on pre-Bailey case law to uphold a
924(c)(1) conviction for a defendant who was sitting in the
back seat of a car while the firearm in question was in the
glove compartment but not discussing whether the defendant
could easily have reached the gun).
We recognize that the Second, Sixth, and Ninth
Circuits have taken a contrary position, requiring that the
firearms be immediately accessible. See Giraldo, 80 F.3d at
-31-
676-78; Riascos-Suarez, 73 F.3d at 623-24; Staples, 85 F.3d
at 464. We find the reasoning of these courts unpersuasive.
In Giraldo, the Second Circuit relied entirely on
its pre-Bailey case United States v. Feliz-Cordero, 859 F.2d
250 (2d Cir. 1988), in holding that a gun transported in a
vehicle must be immediately accessible to be "carried." But
Feliz-Cordero merely stated that "carry" should be given its
literal meaning. The court thought that the literal meaning
of "carry," when the "carrying" was done by a vehicle,
required the gun to be within reach during the commission of
the drug offense. Feliz-Cordero, 859 F.2d at 253. The court
did not refer to any authority for this proposition and cited
to only one case, United States v. Brockington, 849 F.2d 872
(4th Cir. 1988). Brockington does not so much as mention an
immediate accessibility requirement, nor does it discuss the
meaning of "carry." The only relevance Brockington has to
this issue is that that panel upheld the "carry" conviction
of a taxi cab passenger who had a loaded pistol under the
floormat beneath his seat.
The Sixth Circuit in Riascos-Suarez inferred the
immediate availability requirement from the Supreme Court's
admonitions in Bailey that "use" must mean more than
"possession," Bailey, 116 S. Ct. at 508, and that a defendant
could not be charged under 924(c)(1) for mere storage of a
weapon, id. The easy reach requirement, the Riascos-Suarez
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panel reasoned, is necessary to distinguish "carry" from
possession and storage. Riascos-Suarez, 73 F.3d at 623.
We disagree. We question the degree to which an
easy reach requirement would differentiate "carry" from
"possess." More importantly, we agree with the Tenth Circuit
that the distinguishing characteristic of "carry" is not the
instant availability of the item carried, but the fact that
the item is being moved from one place to another by the
carrier, either personally or with the aid of some
appropriate vehicle. See Miller, 84 F.3d at 1260.
The Ninth Circuit's decision in Staples relied
primarily on its earlier opinion in United States v.
Hernandez, 80 F.3d 1253, 1256-58 (9th Cir. 1996) (holding
that a gun in a locked toolbox was not "carried" under
924(c)(1)), in stating that a firearm had to be immediately
available for use to be "carried" in a vehicle. The
Hernandez panel looked to find the ordinary or natural
meaning of "carry." But its quotation from Webster's
definition of "carry," supra, was selective, omitting the
definition's references to vehicles. The court also quoted
from Black's definition of the single phrase, "carry arms or
weapons," supra, and cited the Sixth Circuit's Riascos-Suarez
opinion. As we have discussed, however, the ordinary meaning
of the term "carry" includes transport by vehicle and affords
no basis for imposing an accessibility requirement.
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Turning to the case before us, both Cleveland and
Gray pled guilty to using or carrying a weapon during and in
relation to a drug trafficking offense. They do not now
contend, nor could they, that the three loaded handguns found
in the trunk of their car alongside rope and duct tape were
unrelated to the drug trafficking offense they were
committing at the time they were apprehended. In fact,
Cleveland admitted at the suppression hearing that he and
Gray intended to use the guns to rob the drugs from their
suppliers. Their challenge to their convictions on the
924(c)(1) charge consists solely of the claim that, after
Bailey, they can not be convicted under the statute's "use"
prong and that a conviction under the "carry" prong would
require the guns to have been easily accessible. As under
the standard definition of "carry" the guns were being
"carried," and as we can see no basis for holding that the
guns' lack of instant accessibility precluded them from being
"carried," we affirm Cleveland's and Gray's convictions for
violations of 18 U.S.C. 924(c)(1).
Affirmed.
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United States v. Cleveland
Court: Court of Appeals for the First Circuit
Date filed: 1997-02-21
Citations: 106 F.3d 1056
Copy CitationsCombined Opinion