United States Court of Appeals
FOR THE DISTICT OF COLUMBIA CIRCUIT
Argued March 17, 2000 Decided July 14, 2000
No. 99-3045
United States of America,
Appellee
v.
Michael Johnson,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 91cr00142-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A. J. Kramer, Federal Public Defender. Neil H. Jaffee,
Assistant Federal Public Defender, entered an appearance.
Amul R. Thapar, Assistant United States Attorney, argued
the cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher, Mary-Patrice Brown,
and Ronald L. Walutes, Assistant U.S. Attorneys.
Before: Sentelle, Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: In 1991, defendant Michael John-
son was convicted of violating 18 U.S.C. s 924(c)(1), which
imposes a prison term on any person who "uses or carries" a
firearm "during and in relation to" a drug trafficking crime.
Johnson argues that his conviction must be vacated in light of
the Supreme Court's subsequent decision in Bailey v. United
States, 516 U.S. 137 (1995), which clarified the meaning of
"uses" under that statute. We conclude that the evidence
was sufficient to sustain Johnson's conviction, and that the
district court's erroneous, pre-Bailey instruction constituted
harmless error.
I
On February 22, 1991, District of Columbia police officers
arrived at Johnson's apartment building with a warrant au-
thorizing them to search his apartment for evidence of drug
trafficking. As Officer James Flynn approached the door,
defendant emerged from his apartment with a .380 semiauto-
matic pistol in his right hand. Flynn identified himself as a
police officer. In response, Johnson raised his gun, pointed it
directly at the officer, slowly retreated back into his apart-
ment, and slammed the door.
Within minutes, the police broke down the door to John-
son's apartment. As they entered, they heard someone run-
ning through the apartment and then heard loud "crashing
sounds." Although the officers did not find Johnson, they did
find an air shaft that was accessible through a window in his
bathroom. Hanging on a nail in the air shaft was a plastic
bag containing several small packets of crack cocaine and a
loaded .357 revolver with an obliterated serial number. The
officers then detected "something down in the bottom of the
shaft moving around," and immediately called for a canine
unit. Upon placing the call, the officers began hearing "loud
smashing noises coming from the shaft."
A few minutes later, a resident of one of the building's
basement apartments informed the police that he had an
intruder. The officers entered the man's apartment and
found Johnson in a child's bedroom, lying on the child's bed.
Defendant was clad only in his underwear. On the bed were
the same clothes Johnson had worn when he pointed the gun
at Officer Flynn, and in the clothes were over thirty packets
of crack cocaine and $700 in cash. The ceiling of the dining
room adjacent to the child's bedroom had been "completely
smashed out." Officer Flynn testified at trial that "[t]here
was plaster all over the floor" of the dining room and "a large
hole in the ceiling" leading up into the air shaft. The police
found a .380 semiautomatic pistol--the same one Johnson had
pointed at Officer Flynn--resting on the lip of the hole in the
ceiling.
Johnson was charged with four felonies: possessing with
intent to distribute five grams or more of cocaine base, in
violation of 21 U.S.C. s 841(a)(1); using or carrying a fire-
arm--both the .380 semiautomatic pistol and the .357 revolv-
er--during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. s 924(c)(1); receiving in interstate
commerce a firearm with an obliterated serial number, in
violation of 18 U.S.C. s 922(k); and assaulting a police officer
with a deadly or dangerous weapon--specifically, the .380
semiautomatic--in violation of D.C. Code s 22-505(b). At
trial, Johnson claimed that he had been sleeping in his bed
when the police broke down his bedroom door, woke him up,
and hit him on the head with a piece of wood. He testified
that he did not own any guns, had nothing to do with illegal
drugs, and had not known about the air shaft until the trial.
The district court instructed the jury that to establish a
violation of 18 U.S.C. s 924(c)(1), the government was re-
quired to prove beyond a reasonable doubt: (1) "That the
defendant knowingly and intentionally carried or used a
firearm"; and (2) "That the defendant did so during and in
relation to a drug trafficking crime." Tr. at 342. Consistent
with the then-prevailing law of the circuit, the court defined
the first element of the offense as follows:
In order to prove the first element of this offense, the
government must prove the defendant carried or used a
firearm. The government does not have to show that the
defendant bore the firearm on his person, or actively
employed the firearm in any manner. To satisfy this
first element of the offense, it is sufficient if you find that
at a given time the defendant had both the power and the
intention to exercise dominion and control over the fire-
arm.
Id.; see, e.g., United States v. Harrison, 931 F.2d 65, 71 (D.C.
Cir. 1991) (holding that actual or constructive possession
satisfies the "uses or carries" requirement of section
924(c)(1)). Because Johnson was charged with using or car-
rying both the semiautomatic and the revolver, the jury
instruction did not distinguish between the two weapons.
Johnson raised no objection.
On May 31, 1991, Johnson was convicted on all counts. He
appealed on a number of grounds, but again did not question
the validity of the section 924(c)(1) instruction. This court
affirmed the convictions. See United States v. Johnson, No.
91-3227, 1993 WL 390062 (D.C. Cir. Sept. 30, 1993).
Two years later, the Supreme Court held in Bailey v.
United States that mere possession is insufficient to establish
"use" of a firearm under section 924(c)(1), and that the
government must instead prove the defendant's "active em-
ployment" of the weapon. 516 U.S. 137, 150 (1995). On April
22, 1996, Johnson filed a motion to vacate, set aside or correct
his sentence pursuant to 28 U.S.C. s 2255. The district court
denied the section 2255 motion, but granted Johnson's re-
quest for a certificate of appealability under 28 U.S.C.
s 2253(c)(1)(B).
II
On appeal, Johnson argues that the evidence at his trial
was insufficient to support a conviction for violating section
924(c)(1), and that even if the evidence was sufficient, the jury
instructions were erroneous under Bailey. We consider each
contention below.
A
Evidence is sufficient to sustain a conviction if, "viewing the
evidence in the light most favorable to the government, 'any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.' " United States v.
Teffera, 985 F.2d 1082, 1085 (D.C. Cir. 1993) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)).1 The government
concedes that, after Bailey, the evidence was insufficient to
establish using or carrying with respect to the .357 revolver,
which was found in a bag hanging on a nail at the top of the
air shaft. See Gov't Opp'n to Mot. to Vacate at 4. Defen-
dant, however, was charged with using or carrying both the
revolver and the semiautomatic. See Indictment, Count 2.
When a defendant is charged on the basis of multiple acts, a
verdict cannot be overturned on the ground that the evidence
is insufficient as to one of them. See Griffin v. United States,
502 U.S. 46, 56-57 (1991) ("[W]hen a jury returns a guilty
verdict on an indictment charging several acts in the conjunc-
tive ... the verdict stands if the evidence is sufficient with
respect to any one of the acts charged.") (quoting Turner v.
United States, 396 U.S. 398, 420 (1970)).2
__________
1 Because we find the evidence sufficient to support the convic-
tion, we need not consider whether defendant forfeited this argu-
ment by failing to raise it on direct appeal. See discussion infra
Part II.B.
2 Defendant points out that in Yates v. United States, the
Supreme Court stated that a verdict must "be set aside in cases
where the verdict is supportable on one ground but not on another,
and it is impossible to tell which ground the jury selected." 354
U.S. 298, 312 (1957). In Griffin, however, the Court held that Yates
applies only where the invalid ground involves legal error, not mere
evidentiary insufficiency. See Griffin, 502 U.S. at 56-59. We also
note, as we have before, that an indictment charged in the conjunc-
tive (e.g., one charging that the defendant used a semiautomatic
and a revolver), may be proven in the disjunctive (i.e., by evidence
Here, there is no question that the evidence was sufficient
to support a conviction for using or carrying the .380 semiau-
tomatic, as Officer Flynn testified that Johnson held it in his
hand and pointed it at him. See Muscarello v. United States,
524 U.S. 125, 130 (1998) ("No one doubts that one who bears
arms on his person 'carries a weapon.' "); Bailey, 516 U.S. at
148 ("The active-employment understanding of 'use' certainly
includes brandishing [or] displaying...."). Indeed, defen-
dant conceded below that there was sufficient evidence to
support his conviction with respect to the semiautomatic. See
Def. Supp. to Mot. to Vacate at 4. Accordingly, we reject
defendant's sufficiency challenge.3
B
Defendant also contends, and the government again con-
cedes, that in light of the Supreme Court's subsequent deci-
sion in Bailey, the district court erred by conflating the terms
"use" and "carry" and instructing the jury that it could
convict defendant under section 924(c)(1) if it found he had
merely possessed a weapon constructively. See Gov't Br. at
22; see also In re Sealed Case, 153 F.3d 759, 770-72 (D.C.
Cir. 1998) (noting that "use" requires "active employment,"
and that "carry" requires more than "various attenuated
forms of constructive possession"); United States v. Kennedy,
133 F.3d 53, 58 (D.C. Cir. 1998). The remaining question is
whether we have authority to correct the error. See United
__________
that the defendant used one or the other). See United States v.
Joseph, 169 F.3d 9, 13 (D.C. Cir. 1999).
3 Although defendant does not raise the point, the evidence was
also sufficient to establish that the semiautomatic was used or
carried "during and in relation to" a drug trafficking offense. Cf.
infra Part II.B (noting that defendant does contest the "during and
in relation to" element with respect to his claim of instructional
error). More than thirty packets of crack cocaine were found in
Johnson's clothes, which were lying beside him on the bed. A
reasonable jury could readily have concluded that the drugs had
been on Johnson's person when he pointed the gun at Officer Flynn,
and/or that he had both the gun and drugs with him as he fled down
the air shaft.
States v. Olano, 507 U.S. 725, 727 (1993); United States v.
Perkins, 161 F.3d 66, 71 (D.C. Cir. 1998). "Ordinarily, where
a defendant has procedurally defaulted a claim by failing to
raise it on direct review, the claim may be raised in habeas
only if the defendant can first demonstrate either cause and
actual prejudice, or that he is actually innocent." Perkins,
161 F.3d at 71 (citing Bousley v. United States, 523 U.S. 614,
622 (1998)) (internal quotations omitted). In this case, how-
ever, the government did not assert defendant's procedural
default below, and instead argued only that the error was
harmless. See Gov't Opp'n to Def. Mot. at 3. Johnson
contends that this means the government has "waived the
waiver"--i.e., that the government has waived the claim of
defendant's procedural default. As a consequence, defendant
argues, we should not apply the "cause and prejudice" stan-
dard. Rather, he urges us to review the case for "harmless
error," the standard applicable on direct appeal when a
defendant has raised the objection at trial, or for "plain
error," the standard applicable on direct appeal when a
defendant has not so objected. See Fed. R. Crim. P. 52.
In United States v. Perkins, we surveyed the different
standards of review as well as the ramifications of the govern-
ment's failure to assert procedural default in the district
court. See Perkins, 161 F.3d at 71-74. We will not do so
again here. Suffice it to say that, as was the case in Perkins,
we need not resolve the standard of review issue because we
conclude that Johnson's conviction must be upheld even if we
employ the standard most favorable to him--harmless error.
See id.; see also Joseph, 169 F.3d at 13 n.7 (finding it
unnecessary to determine standard of review because convic-
tion survived harmless error review); United States v. Toms,
136 F.3d 176, 180 n.6 (D.C. Cir. 1998) (same).
Error is harmless if it appears "beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained." Chapman v. California, 386 U.S. 18, 24 (1967).4
__________
4 Chapman sets the standard for determining, on direct appeal,
whether constitutional error was harmless. Kotteakos v. United
States sets the standard for measuring nonconstitutional harmless
Where there has been an error in instructions, we have held
such error to be harmless if the jury necessarily found facts
that would have satisfied a proper instruction. In United
States v. Winstead, for example, we found harmless the
failure to give any instruction at all on the element of
materiality in a false statements count, because the jury
returned a guilty verdict on an overlapping mail fraud count
for which it had been instructed on the need to find materiali-
ty. 74 F.3d 1313, 1320-21 (D.C. Cir. 1996). In United States
v. Kennedy, a section 924(c)(1) case, we considered an errone-
ous instruction which, like the one at issue here, "conflated
the terms 'use' and 'carry' " and "defined both [too] broadly."
133 F.3d at 58. Because the defendant in that case was also
convicted of assault for pointing and firing his gun at police
officers, we found that the jury had necessarily "concluded
that appellant carried a gun" while committing an offense
covered by the statute. Id.; cf. United States v. Smart, 98
F.3d 1379, 1393 (D.C. Cir. 1996) (finding error harmless
where, although court improperly defined "using or carrying"
as including constructive possession, jury necessarily found
"carrying" within meaning of s 924(c)(1) because it also con-
victed defendant of "carrying a pistol without a license").
And we have repeatedly found harmless error in section
924(c)(1) cases where, although the district court erroneously
instructed as to "using," it properly instructed as to "carry-
ing," and the circumstances indicated that the jury necessari-
ly found that carrying had occurred. See Perkins, 161 F.3d
__________
error. 328 U.S. 750, 776 (1946) (holding that nonconstitutional
error is harmless if it did not have "substantial and injurious effect
or influence in determining the jury's verdict"). In Brecht v.
Abrahamson, the Supreme Court held that the "less onerous" (from
the point of view of the government) standard of Kotteakos, rather
than that of Chapman, is the appropriate standard for determining
constitutional harmless error on collateral review. 507 U.S. 619,
623 (1993); see id. at 637-38. Although we may have discretion to
do otherwise, we once again give defendant the benefit of the more
favorable standard because the government argued only the Chap-
man standard below.
at 74-75; Toms, 136 F.3d at 181; United States v. Washing-
ton, 106 F.3d 983, 1013 (D.C. Cir. 1997).
Recently, in Neder v. United States, the Supreme Court
found harmless error where the trial judge instructed the
jury that it "need not consider" the materiality of false
statements in a tax fraud case, despite the fact that in an
intervening case the Court had held materiality to constitute
an essential element. 119 S. Ct. 1827, 1831-32 (1999). The
Court made this finding in light of other circumstances and
evidence5--notwithstanding its conclusion that the omission of
a materiality instruction had "preclude[d] the jury from mak-
ing a finding on the actual element of the offense," id. at 1834,
and that the jury could not fairly be said to have "necessarily"
found materiality, id. at 1837 n.1. Indeed, the Court held
that error can be harmless even if "other facts necessarily
found by the jury" are not the "functional equivalent" of the
omitted or misdescribed element--even under a broad defini-
tion of "functional equivalent." Id. at 1836.
We need not press Neder to its limits to decide the case at
bar, because here the jury necessarily found that Johnson
both used and carried the .380 semiautomatic pistol. As in
Kennedy, although the using or carrying instruction was
erroneous, the jury separately convicted Johnson for assault-
ing a police officer with the same weapon. See Indictment,
Count 4; Judgment (Aug. 2, 1991). The only possible basis
for that conviction is that the jury found Johnson to have
pointed the gun at Officer Flynn--an act that constitutes both
"using" and "carrying." See Muscarello, 524 U.S. at 131
(holding that "carry" includes "carrying of weapons directly
__________
5 The government had introduced evidence that Neder failed to
report over $5 million in income. That, the Court said, "incontro-
vertibly establishes that Neder's false statements were material to a
determination of his income-tax liability. The evidence supporting
materiality was so overwhelming, in fact, that Neder did not argue
to the jury--and does not argue here--that his false statements of
income could be found immaterial." Neder, 119 S. Ct. at 1837.
Because it was "clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error," the
Court found the error to be harmless. Id. at 1838.
on the person"); Bailey, 516 U.S. at 148 (holding that "using"
includes "brandishing"); Kennedy, 133 F.3d at 58; cf. Toms,
136 F.3d at 181; Smart, 98 F.3d at 1392-94.
In his reply brief, defendant argues that even if his convic-
tion on the assault charge means that the jury necessarily
found him to have used the semiautomatic, it does not mean
that it necessarily found him to have used the gun "during
and in relation to" a drug trafficking crime. This argument,
made for the first time in the last paragraph of Johnson's
reply brief, comes too late to be considered. See, e.g., Grant
v. United States Air Force, 197 F.3d 539, 542 n.6 (D.C. Cir.
1999). But even if the argument were not too late, it would
certainly be too little. Johnson was convicted of using or
carrying the gun during and in relation to the "drug traffick-
ing crime" charged in the indictment--possessing with intent
to distribute the crack cocaine found in his clothing.6 The
only way in which the semiautomatic could have not been
used or carried in relation to those drugs is if they were not
in his clothing at the time he pointed the weapon at the
officer, and if they somehow traveled down the air shaft and
onto the bed separately from the defendant and his gun. Cf.
Smith v. United States, 508 U.S. 223, 238 (1993) ("The phrase
'in relation to' is expansive....").
We decide whether error was harmless based on the evi-
dence at trial, and there was no evidence presented that
would support such an implausible scenario. See Perkins,
161 F.3d at 75. Nor did defendant make such a claim. His
only defense was that he was innocently asleep in bed at the
relevant time. The jury plainly rejected that story when it
convicted him on all charges, which it did, no doubt, because
__________
6 Count 2 of the indictment charged Johnson with using or
carrying a firearm during and in relation to the drug trafficking
crime charged in Count 1. Count 1 charged Johnson with possess-
ing with intent to distribute five grams or more of cocaine base
(crack). As there was substantially less than five grams of cocaine
in the bag found at the top of the shaft, see Tr. at 123, 314, and
substantially more in his clothing, see id. at 22, the jury necessarily
found the drugs in Johnson's clothing to be part of the total.
the bed in which he was "asleep" was the wrong one: it
belonged not to him but to the child who lived in the
apartment below.
Nor does defendant suggest an exculpatory scenario in his
appellate briefs. Although his reply brief raises the "in
relation to" issue, it suggests no circumstance in which the
jury could have found that he used or carried the weapon
without also finding that he did so during and in relation to a
drug trafficking offense. We have said before that we will
not rest a finding of harm merely on "any hypothetical the
defendant can conjure up." Id. The scenario offered by
defense counsel must be plausible in light of the evidence at
trial, not merely theoretically possible. See id. (citing Smart,
98 F.3d at 1393-94 & n.22). Where, as here, the defense does
not even suggest an exculpatory scenario--plausible or other-
wise--we surely will not invent one ourselves.
III
We conclude that the evidence at Johnson's trial was
sufficient to sustain a conviction for violating section 924(c)(1),
and that the district court's erroneous jury instruction was
harmless. We therefore affirm the denial of defendant's
motion to vacate his conviction.