United States v. Perkins, Daniel J.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 1998 Decided November 24, 1998

No. 96-3138

United States of America,

Appellee

v.

Daniel Joseph Perkins,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 90cr00504-01)

Evelina J. Norwinski, Assistant Federal Public Defender,
argued the cause for appellant. A. J. Kramer, Federal Public
Defender, was on the briefs.

T. Anthony Quinn, Assistant U.S. Attorney, argued the
cause for appellee. Wilma A. Lewis, U.S. Attorney, John R.
Fisher and Thomas J. Tourish, Jr., Assistant U.S. Attorneys,

were on the brief. Elizabeth Trosman, Assistant U.S. Attor-
ney, entered an appearance.

Before: Henderson, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Daniel Joseph Perkins asks us to
vacate his 1991 conviction for the use or carrying of a firearm
during and in relation to a drug trafficking offense. He
contends that the district court improperly instructed the
jury with respect to the meaning of "use," as the Supreme
Court subsequently defined the term in Bailey v. United
States, 516 U.S. 137 (1995). Although Perkins did not object
to the district court's instruction at the time, he contends that
the standard of review normally applied when an objection
has been made, "harmless error" review, is the appropriate
standard for this case. We question whether harmless error
is in fact the appropriate standard of review here. We need
not resolve that question, however, because defendant's ap-
peal fails even under the standard he asks us to apply.

I

While investigating gunshots in the vicinity of a building in
the District of Columbia, police officers saw Perkins leave the
building with a handgun protruding from his waistband.
When an officer ordered Perkins to stop, he disregarded the
order and ran, throwing a nine-millimeter handgun into the
bushes. The gun was found where Perkins threw it. Two
other officers apprehended and searched him. They found a
fully loaded nine-millimeter ammunition clip, two large rocks
of cocaine base, 154 ziplock bags of cocaine base, a razor
blade, and $518 in cash--$120 of which was concealed in
Perkins' underwear. The total street value of the cocaine
base was more than $4,500.

The grand jury returned a two-count indictment. Count 1
charged Perkins with possession with intent to distribute five
grams or more of cocaine base, in violation of 21 U.S.C.
ss 841(a)(1) and 841(b)(1)(B)(iii). Count 2 charged him with
violating 18 U.S.C. s 924(c)(1), which imposes punishment on

anyone who, during and in relation to a drug trafficking
crime, "uses or carries" a firearm. At trial, Perkins admitted
possessing the drugs; his defense to the s 841 charge was
that he did not intend to distribute them. Perkins said "a
boy named John" had asked him to hold the drugs about an
hour or two before his arrest, and that he had planned to give
the drugs back to John as soon as he returned to collect
them. 2/4/91 Tr. at 142-43, 153.

Perkins also admitted carrying the gun. 2/4/91 Tr. at 158.
His defense to the s 924(c)(1) charge was that although he
carried the weapon, he did not do so "during and in relation
to" a drug-trafficking offense. He said he carried the gun for
protection from an unknown assailant who had shot at him
two weeks earlier, and not in connection with the drugs he
was holding. Id. at 114, 122. His counsel told the jury that
"in effect, it was a coincidence" that he had the gun and drugs
on his person at the same time. 2/1/91 Tr. at 70-71 (opening
statement). The jury convicted Perkins on both counts.

Perkins then appealed, contending that the district court
improperly denied a motion to suppress the evidence seized
from his person, and that there was insufficient evidence to
sustain a conviction for using or carrying a firearm "during
and in relation to" a drug trafficking offense. This court
rejected Perkins' claims and affirmed his convictions on July
26, 1993. United States v. Perkins, 1 F.3d 45 (D.C. Cir. 1993)
(unpublished opinion available at 1993 WL 299119).

On December 6, 1995, the Supreme Court decided Bailey v.
United States, in which it held that in order to establish "use"
of a firearm under s 924(c)(1), the government must show
"active employment of the firearm" by the defendant. 516
U.S. at 144.1 Perkins then filed a motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. s 2255. Per-

__________
1 Justice O'Connor explained that "active employment" includes
"brandishing, displaying, bartering, striking with, and most obvious-
ly, firing or attempting to fire a firearm." Id. at 148. It does not
include merely "storing a weapon near drugs or drug proceeds" or
"conceal[ing] a gun nearby to be at the ready for an imminent
confrontation." Id. at 149.

kins contended that the jury instructions at his trial were
improper because they did not limit "use" to mean only active
employment, and because the court implied that the jury
could find "use" merely by finding that Perkins possessed the
gun to advance or facilitate a drug trafficking offense. The
district court denied Perkins' s 2255 motion, holding that the
instructions were proper. See United States v. Perkins, 939
F. Supp. 42, 44 (D.D.C. 1996). Defendant appeals the denial
of his motion.2

II

We first consider whether there was error in the district
court's instructions as to the elements of s 924(c)(1). This is
a question of law which we review de novo. See Joy v. Bell
Helicopter Textron, 999 F.2d 549, 556 (D.C. Cir. 1993).

The court instructed the jury that:

[T]o establish the offense charged in Count 2
[s 924(c)(1)], the government must prove beyond a rea-
sonable doubt the following elements:

1.That the defendant committed a drug trafficking
crime ...[;]

2.That the defendant used or carried a firearm
knowingly and intentionally; and

3.That the firearm was used or carried during and in
relation to a drug trafficking offense.

2/5/91 Tr. at 25. With respect to the first element, the court
explained that the drug trafficking crime at issue was the
possession with intent to distribute charge that was the
subject of Count 1. Id. With respect to the "knowingly and
__________
2 After the appeal was filed, the government moved to dismiss
based on the defendant's failure to obtain a certificate of appealabil-
ity, as required by the Antiterrorism and Effective Death Penalty
Act, 28 U.S.C. s 2253(c) ("AEDPA"). In light of the Supreme
Court's opinion in Lindh v. Murphy, 117 S. Ct. 2059, 2067 (1997),
this court denied the motion to dismiss because Perkins filed his
s 2255 motion before Congress enacted AEDPA. United States v.
Perkins, No. 96-3138 (Sept. 26, 1997).

intentionally" aspect of the second element, the district court,
at defendant's request, gave the standard charge that "an act
is done knowingly and intentionally if done consciously, volun-
tarily and purposely, and not by mistake, inadvertence or
accident." Id. at 26.

The court did not define either "use" or "carry." It did,
however, define "in relation to" as follows:

Now we get to the third element.... The use or
carrying of a firearm relates to a drug trafficking offense
if it advances or facilitates the commission of a drug
trafficking offense. The carrying of a firearm does not
relate to a drug trafficking offense if the defendant
inadvertently used or carried the firearm.

2/5/91 Tr. at 26-27. The defendant did not object to the
instructions.

Perkins now contends that the failure to define "use" or
"carry," combined with the above definition of "in relation to,"
led the jury to believe that "use" could include any advancing
or facilitating of a drug offense, even if there were no active
employment of the firearm as required by Bailey. Although
we will assume for purposes of analysis that the jury instruc-
tions were erroneous as defendant contends, for the following
reasons we are not at all certain that they were.

First, there was no error in the definition of "in relation
to." It was drawn largely from an instruction avidly sought
by defendant as the basis for his only defense to the s 924(c)
charge. See Defendant's Proposed Jury Instructions Regard-
ing 18 U.S.C. s 924(c)(1) (filed Jan. 31, 1991). Moreover, it
was very close to the wording employed by the Supreme
Court in Smith v. United States, 508 U.S. 223, 237-38 (1993),
and by this court in United States v. Washington, 106 F.3d
983, 1010 (D.C. Cir. 1997). Nor was there any implication
that the trial court was, by those words, defining "use" rather
than "in relation to." The court clearly prefaced its remarks
by saying that it was about to define the third element of the
offense, which it had just moments before explained was the

requirement that the using or carrying be "in relation to" a
drug trafficking offense.

There also was no error in the court's failure to define
"carry." See United States v. Freisinger, 937 F.2d 383, 387
(8th Cir. 1991). Although a trial court must define words and
phrases that have technical or unconventional meanings, it is
not required "to define words which are in common use, and
are such as are readily comprehended by persons of ordinary
intelligence, where the words are applied in the judge's
instructions in their conventional sense." United States v.
Maude, 481 F.2d 1062, 1075 (D.C. Cir. 1973); see also United
States v. DeSantiago-Flores, 107 F.3d 1472, 1480 (10th Cir.
1997). In Muscarello v. United States, the Supreme Court
determined that Congress intended "carry" to have its "ordi-
nary" and "generally accepted contemporary meaning," 118
S. Ct. 1911, 1916, 1919 (1998), which, the Court said, includes
both carrying a firearm on one's person and knowingly pos-
sessing and conveying a firearm in a vehicle--even in the
vehicle's locked glove compartment or trunk, id. at 1913-14.
Given that broad definition of the word, it is implausible that
the jury could have adopted a still broader interpretation that
was impermissible under the statute.

Moreover, in this case there was no reason for jurors to
scratch their heads over the definition of "carry." The only
evidence of carrying in the case was the most "ordinary" of
the ordinary possibilities noted in Muscarello: Perkins had
the gun on his person. More important, defense counsel told
the jurors in his opening statement that "Mr. Perkins will tell
you that he carried the gun, and that's not going to be an
issue." 2/1/91 Tr. at 70. Perkins did indeed testify that he
carried the gun. 2/4/91 Tr. at 121-22, 158. The failure to
define a term that is both conceded by the defendant and
commonly used can hardly be error. See Maude, 481 F.2d at
1075 & n.98.

The trial court's failure to define "use," however, is more
problematic. On the one hand, there are reasonable argu-
ments for concluding that such a failure may constitute error
in the usual case. Although the Bailey Court said it was

giving "use" its "ordinary and natural" meaning when it
defined the term as "active employment," 516 U.S. at 145,
148, it acknowledged that the meaning of "use" had been "the
source of much perplexity in the courts" and that many,
including this court, had given the word a much broader
meaning. Id. at 142 (collecting cases); see United States v.
Bailey, 36 F.3d 106, 115 (D.C. Cir. 1994) (en banc) ("[O]ne
uses a gun ... whenever one puts or keeps the gun in a
particular place from which one ... can gain access to it if
and when needed to facilitate a drug crime."), rev'd, 516 U.S.
137 (1995). If so many judges could define the word errone-
ously in the absence of Supreme Court guidance, it is not
unreasonable to suggest that jurors might do the same in the
absence of trial court instruction. Moreover, the Court itself
later noted that Bailey had construed the term "use" narrow-
ly, in contrast with the broad reading given to "carry" in
Muscarello. Muscarello, 118 S. Ct. at 1918. While a jury's
failure to give a term its appropriately broad meaning will not
affect a defendant whose conduct falls within a narrower one,
a jury's failure to restrict a term to its appropriately narrow
meaning may well have an important impact on a jury's
deliberations.

On the other hand, this was not the usual case. Here,
"use" was not at issue. Although the court did instruct the
jury that it could convict Perkins for use or carrying, neither
the prosecutor nor the defense counsel suggested that the
case involved "use" of the firearm; both told the jury that the
issue in the case was whether defendant carried the firearm
in relation to a drug trafficking offense. 2/1/91 Tr. at 67, 70-
71. Under these circumstances, whether the court erred by
failing to define "use" is a more difficult question. However,
it is a question we need not resolve today because, as we
conclude below, even if the jury instructions were erroneous
they did not prejudice the defendant.

III

Assuming for purposes of analysis that the district court's
instructions were erroneous with respect to the "use" element
of s 924(c)(1), the next issue is the appropriate standard for

reviewing such an error3--or, more precisely, the appropriate
standard for determining whether we have authority to cor-
rect the error. See United States v. Olano, 507 U.S. 725, 727
(1993). Here, defendant asserts instructional error for the
first time in a motion under s 2255, having failed to object
either at trial or on direct appeal. Ordinarily, "[w]here 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.' " Bousley
v. United States, 118 S. Ct. 1604, 1611 (1998) (citations
omitted). In this case, however, the government itself might
be said to have "procedurally defaulted," as it failed to raise
the issue of Perkins' procedural default below and hence
deprived the district court of an opportunity to determine
whether the s 2255 criteria were met. Recognizing this
failure, the government does not press us to review this case
other than as if it were on direct appeal. See Gov't Br. at 11
n.5. Whether or not we nonetheless may apply the s 2255
criteria as a matter of our own discretion,4 we decline to do so

__________
3 There is no question in this case that the evidence was sufficient
to sustain Perkins' conviction. Although the government does not
contend there was sufficient evidence to convict Perkins on a "use"
theory, "evidence that fails to show 'use' may nonetheless support a
conviction for 'carrying.' " In re Sealed Case 96-3167, 153 F.3d 759,
771 (D.C. Cir. 1998) (citing Bailey, 516 U.S. at 146). Perkins does
not dispute there was sufficient evidence to convict him on a
"carrying" theory: He admitted he carried the gun; he does not
contest the validity of his conviction on the drug trafficking offense
in Count 1; and this court previously held on direct appeal that the
evidence was sufficient to sustain the "during and in relation to"
element of the offense. Perkins, 1993 WL 299119 at *3.

4 In Trest v. Cain, a case involving a petition for a writ of habeas
corpus to vacate a state sentence for armed robbery, the Supreme
Court noted that "procedural default is normally a 'defense' that the
state is 'obligated to raise' and 'preserv[e]' if it is not to 'lose the
right to assert the defense thereafter.' " 118 S. Ct. 478, 480 (1997)
(quoting Gray v. Netherland, 116 S. Ct. 2074, 2082 (1996)). The
Court held that a federal court of appeals is not required to raise

here because defendant is unable to show that his conviction
should be reversed even on the more lenient standards appli-
cable to claims raised on direct review.5

In order to determine the appropriate standard of review
applicable to direct appeal of erroneous jury instructions, we
turn to Federal Rule of Criminal Procedure 52. That Rule
identifies two possible standards. Under Rule 52(a), we
apply "harmless error" review when there has been a timely
objection below. Rule 52(b), however, requires us to apply
"plain error" review when an objection has been forfeited
because it was not asserted below. See Olano, 507 U.S. at
731-33.

Harmless error is the standard more favorable to a defen-
dant. To justify reversal of a conviction under that standard,
there must be (1) error, (2) that "affect[s] substantial
rights"--i.e., that is prejudicial. Fed. R. Crim. P. 52(a); see
Olano, 507 U.S. at 731, 734. To meet the plain error stan-
dard, both of these requirements must be satisfied6 and the

__________
the issue of procedural default sua sponte where the state has failed
to do so (even at the appellate level), but expressly declined to
decide whether the law permitted a court of appeals to consider a
procedural default the state waived or failed to raise. Id. But see
Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998) ("Every
circuit to consider the issue holds that a habeas court has discretion
to raise procedural default sua sponte....").

5 See United States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994)
("The Supreme Court has declared that the showing of 'prejudice'
necessary under the 'cause and prejudice' standard of habeas law 'is
significantly greater' than that necessary under the plain-error
doctrine.") (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986));
see also Olano, 507 U.S. at 734 (noting that both the "harmless
error" and "plain error" standards of review normally require the
same kind of inquiry with respect to "whether [an] error was
prejudicial").

6 In addition, in contrast to harmless error review, on plain error
"[i]t is the defendant rather than the Government who bears the
burden of persuasion with respect to prejudice." Olano, 507 U.S. at
534.

error must also be "plain." Fed. R. Crim. P. 52(b); see
Olano, 507 U.S. at 734. Even then, although a court of
appeals has discretion to correct an error, there is a fourth
consideration: "[T]he court should not exercise that discre-
tion unless the error 'seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.' " Olano, 507
U.S. at 732 (citations omitted). And, critical to our analysis
here, the Supreme Court has indicated that it is "not likely an
error can have that effect where the evidence against the
defendant is 'overwhelming.' " United States v. Gartmon,
146 F.3d 1015, 1024 (D.C. Cir. 1998) (citing Johnson v. United
States, 117 S. Ct. 1544, 1550 (1997)).

Because Perkins did not object to the district court's jury
instructions at trial, his claim of error would ordinarily be
reviewed under the plain error standard. He correctly points
out, however, that this circuit has applied harmless error
review to post-Bailey claims of instructional error even when
defendants did not raise them at their pre-Bailey trials. See,
e.g., United States v. Toms, 136 F.3d 176, 180-81 (D.C. Cir.
1998); United States v. Smart, 98 F.3d 1379, 1393 (D.C. Cir.
1996); see also United States v. Hudgins, 120 F.3d 483, 486-
88 n.3 (4th Cir. 1997). In those cases, we have relied on the
circuit's "supervening-decision doctrine," which permits ap-
pellate review as if an objection had been made below when
prevailing circuit law at the time of the trial would have made
such an objection futile. See Toms, 136 F.3d at 180 & n.5;
Smart, 98 F.3d at 1393; United States v. Lin, 101 F.3d 760,
771 (D.C. Cir. 1997). Thus in Toms, where the trial court
instructed the jury without objection that the "government
need not show the defendant actively employed the firearm"
to establish "use," we applied harmless error analysis because
at the time of the trial the instruction was consistent with
"prevailing law in this circuit." Toms, 136 F.3d at 180 (citing
United States v. Bailey, 36 F.3d 106 (D.C. Cir. 1994)).7

__________
7 It might be argued that the supervening-decision doctrine does
not apply to this case, since if there were an error here, it was not

The Supreme Court's decision last year in Johnson v.
United States, 117 S. Ct. 1544 (1997), however, casts doubt on
whether harmless error and the supervening-decision doc-
trine remain the appropriate rubrics for analyzing forfeited
Bailey claims.8 Johnson involved a prosecution for perjury.
The trial judge, following the then-settled law, instructed the
jury that the element of materiality was a question for the
judge to decide and that he had determined the statements at
issue were material. The defendant did not object. After
Johnson's conviction but before her appeal, the Supreme
Court decided United States v. Gaudin, 515 U.S. 506 (1995),
holding that the materiality of a false statement must be
decided by the jury rather than the judge. See Johnson, 117
S. Ct. at 1547.

The Johnson Court did not consider applying harmless
error review or the supervening-decision doctrine. Instead, it
held that because Johnson had not objected to the trial
judge's failure to submit materiality to the jury, plain error
was the appropriate standard. Id. at 1547-49. The Court
did not ignore the fact that objection at the time would have
been useless. That, the Court said, was good reason for
evaluating the plainness of the error from the vantage point
of the time of appellate consideration rather than trial. Id. at
1549. Applying that rule, the Court concluded that the trial
court's Gaudin error was plain.

__________
the giving of an incorrect definition of "use," but rather the failure
to give any definition at all--an issue the supervening decision in
Bailey did not address. But, if there were an error here, it was one
that was not made manifest until Bailey narrowed the definition of
"use," creating the possibility that without judicial guidance a jury
might convict a defendant on a broader than lawful definition of the
term.

8 With the exception of Toms, all of our cases applying the
harmless error standard to forfeited Bailey errors were decided
before Johnson. In Toms, we found it unnecessary to decide
whether Johnson changed the landscape because the defendant's
conviction survived even harmless error review. See Toms, 136
F.3d at 180 n.6. We also applied harmless error analysis in United
States v. Kennedy, 133 F.3d 53, 58 (D.C. Cir. 1998), but the opinion
does not indicate whether there was an objection at trial.

The next question normally would have been whether the
defendant was prejudiced by the failure to submit materiality
to the jury. But because it applied a plain rather than
harmless error standard, the Court held that it did not need
to decide the prejudice question. Even if the defendant had
been prejudiced, the Court said, the "overwhelming" evidence
of materiality meant that Johnson could not satisfy the fourth
element of the plain error standard. Id. at 1550.

Were we to apply plain error analysis here, it would
significantly affect the way in which we analyze Perkins'
appeal. Ordinarily, in cases in which the jury has been
offered two possible grounds for conviction, one of which is
legally inadequate, we examine the prejudicial effect of an
error according to the test set forth in Yates v. United States:
"[A] verdict [must be] set aside in cases where the verdict is
supportable on one ground, but not another, and it is impossi-
ble to tell which ground the jury selected." 354 U.S. 298, 312
(1957); see Griffin v. United States, 502 U.S. 46, 59 (1991)
(limiting Yates test to cases in which one of the grounds is
legally, not merely factually, inadequate). We have repeated-
ly used the Yates test to analyze the prejudicial effect of
forfeited Bailey error. See Toms, 136 F.3d at 181; United
States v. Washington, 106 F.3d 983, 1013 (D.C. Cir. 1997).
But if plain error review were the required standard for a
forfeited Bailey error, we would be required to sustain a
s 924(c)(1) conviction when there is overwhelming evidence of
carrying, even if it were impossible to tell whether the jury
found "carrying" or only "use." Given the overwhelming
evidence of carrying in this case, including Perkins' own in-
court admissions, such an approach would end this appeal
without further analysis.9

There is good reason to conclude that plain error review is
as appropriate for forfeited Bailey error as it is for forfeited

__________
9 In Johnson, the Court found the evidence of materiality "over-
whelming" because materiality was "essentially uncontroverted" at
trial. 117 S. Ct. at 1550. The same is true here with respect to
"carrying," except that we can dispense with the qualifier "essen-
tially."

Gaudin error. Both involve objections that would have been
futile under then-prevailing law.10 And in both situations the
concern is whether the jury properly found an element of the
offense. In the Bailey context it may be "impossible to tell"
whether the jury found "carrying" rather than improperly
found "use." But in the Gaudin context the concern is not
even speculative; the reviewing court can be virtually certain
the jurors did not find materiality since they were never
instructed to look for it. Because Johnson makes clear that
plain error review is the appropriate standard even in that
context, it would appear a fortiori that it is appropriate in the
Bailey context as well. See United States v. Hastings, 134
F.3d 235, 239-40 (4th Cir. 1998) (applying plain error review
to forfeited Bailey error); United States v. McKinney, 120
F.3d 132, 133 (8th Cir. 1997) (same).

Once again, however, we need not resolve whether plain or
harmless error is the appropriate standard for reviewing
forfeited Bailey claims in order to decide this case. As we
indicate below, Perkins' appeal fails even if we employ harm-
less error review. Accordingly, we reserve for another day
the question of which standard is the more appropriate. See
Toms, 136 F.3d at 180 n.6 (finding it unnecessary to deter-
mine whether plain or harmless error was the appropriate

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10 The Supreme Court's recent decision in Bousley casts some
doubt on whether we should continue to regard Bailey-type objec-
tions as having been "futile" before Bailey was decided. In Bous-
ley, the Court rejected--for purposes of establishing "cause" for a
procedural default under s 2255--the suggestion that an argument
for a narrow definition of use "was not reasonably available" to trial
counsel pre-Bailey, because even then "the Federal Reporters were
replete with cases" involving challenges to a broad definition. 118
S. Ct. at 1611. Nor would the Court accept the argument that
default should be excused because, before Bailey, such a challenge
would have been futile. "Futility," the Court said, "cannot consti-
tute cause if it means simply that a claim was 'unacceptable to that
particular court at that particular time.' " Id. at 1611 (citations
omitted). If this analysis were applied to cases on direct review,
the supervening-decision doctrine (even if still generally applicable)
would not apply to Bailey errors at all.

standard since conviction survived even harmless error analy-
sis).

IV

Assuming without deciding, then, that harmless error re-
mains the appropriate standard for reviewing Perkins' chal-
lenge, we now proceed to analyze it under our precedents
employing the Yates test to determine whether a Bailey error
is prejudicial. United States v. Washington, 106 F.3d 983
(D.C. Cir. 1997), is the most directly on point. In that case,
we affirmed defendants' convictions for violating s 924(c)(1),
notwithstanding the district court's error in instructing the
jury that "a defendant uses a firearm whenever he puts or
keeps a gun in a particular place from which he ... can gain
access to it...." 106 F.3d at 1013. Defendants were police
officers who were caught in a sting operation in which they
escorted and protected purported drug couriers. The officers
admitted they carried their service pistols during the drug
runs, but contended they did so because police regulations
required them to carry their weapons at all times, and not "in
relation to" the drug trafficking. Id.

Washington first rejected the claim that there was insuffi-
cient evidence to establish the "in relation to" element. Id. at
1010. We then noted that "the only evidence in support of
the firearms convictions showed that the officers wore their
service pistols on their persons during the drug trafficking
offenses; there was no evidence suggesting that the officers
merely 'possessed,' without carrying, the guns for protection
or active use." Id. at 1013. We therefore concluded that
"regardless of whether the jury actually convicted appellants
under the 'use' or 'carry' prong, it is clear that the jury's
reasoning included a finding that appellants ... carried their
guns." Id. Since the jury could not, "under these facts,"
have found "use" without also finding "carrying," we conclud-
ed that the convictions passed the Yates test and that the
defendants were not prejudiced by the erroneous instruction.
Id.

The case at bar passes the Yates test at least as readily as
did Washington. Like the defendants in Washington, Per-
kins admitted carrying the weapon but defended on the
ground that he did not do so "in relation to" drug trafficking.
Like the Washington defendants, he also admitted he carried
the gun during the entire relevant time period: He testified
that he had the gun in his waistband from the moment "John"
gave him the drugs until the moment the police arrested him.
2/4/91 Tr. at 158. And as in Washington, there was no
evidence that Perkins "used" the gun in any way--active or
otherwise--besides carrying it in his waistband. "Under
these facts," Washington, 106 F.3d at 1013, the jury could not
have found use without finding carrying, and hence the trial
court's error, if there were one, was harmless. See Toms, 136
F.3d at 181; Smart, 98 F.3d at 1393-94; see also Hudgins,
120 F.3d at 487-88.

Defendant disputes the conclusion that the jury could not
have found "use" without "carrying." In his opening brief, he
argues that the jury might have believed that he took the gun
from his home earlier in the day for his general protection,
and that then, "forgetting about the gun," he acquired the
drugs. Def. Br. at 9-10. Under this scenario, Perkins
contends, the jury might have found that his "conduct did not
quite reach the 'intentionally carrying' level but that it did
satisfy a lower standard, namely, that he generally 'used' (i.e.,
possessed) the gun to 'advance or facilitate' his drug traffick-
ing." Id.

Perkins' "unintentional carrying" scenario has two fatal
flaws. First, it ignores his own testimony that he knew he
had the gun at the time he received the drugs. 2/4/91 Tr. at
156. Second, the court instructed the jury that defendant
must have "used or carried a firearm knowingly and inten-
tionally." 2/5/91 Tr. at 25. The court did not instruct that
while the defendant had to carry the gun intentionally, he
could be convicted if he unintentionally used it. Hence, if the
jury had found that defendant forgot he had the gun, it could
not have convicted him under either prong.

In his reply brief, Perkins offers another scenario in which
the jury could have convicted him for using but not carrying
the weapon. He contends the jury could have found that "he
generally possessed (i.e., 'used') this gun to protect or embol-
den him while trafficking ... even though he may not have
done so on the night of his arrest." Def. Reply Br. at 7-8.
Perkins' theory, apparently, is that the jury could have found
he trafficked in a different batch of drugs on an earlier date,
when the gun was in his general possession (e.g., at home) but
not in his waistband. See id. at 8 n.4.

Once again, defendant's scenario is unsupported by any
evidence at the trial. The only "drug trafficking offense" at
issue in the case was the possession of the cocaine found on
his person at the time he was arrested. There was no
evidence that he possessed drugs on any other day.11 And
defendant testified that he had the gun in his waistband the
entire time he possessed the drugs. Hence, there was no
evidence from which the jury could construct a drug traffick-
ing scenario in which defendant used his gun other than by
carrying it in his waistband.

Our cases have been careful to emphasize that it is the
evidence before the jury that determines whether a conviction
passes the Yates test--not just any hypothetical the defen-
dant can conjure up. In Washington, for example, we
stressed that "the only evidence in support of the firearms
convictions showed that the officers wore their service pistols
on their persons during the drug trafficking offenses; there
was no evidence suggesting that the officers merely 'pos-
sessed' without carrying...." 106 F.3d at 1013 (emphasis
added). Similarly, in Smart we stressed that the scenario
offered by defense counsel must be plausible, not merely

__________
11 Defendant contends that the jury could have interpreted the
testimony of the government's narcotics expert to suggest that
Perkins regularly dealt in drugs. But that testimony did not refer
to any course of conduct on the part of Perkins; the expert merely
testified that the amount and packaging of the narcotics found on
his person were consistent with distribution rather than personal
use of those drugs. 2/4/91 Tr. at 79-82.

hypothetically possible. 98 F.3d at 1393-94. We rejected the
scenario offered by defense counsel in that case--which spec-
ulated that the jury could have found "use" through construc-
tive possession--as "too farfetched a possibility for any ra-
tional jury to base its verdict on in light of the evidence
offered at trial." Id. at 1394 n.22 (emphasis added).

In sum, based on the facts in evidence at trial, the jury
could not have found Perkins used the gun without also
finding he carried it. Thus, any error the district court may
have committed by failing to define "use" was harmless.12

V

The appropriate standard for reviewing post-trial asser-
tions of Bailey error is an issue as to which there remain a
number of loose strands of legal doctrine. Unfortunately for
Perkins, his appeal unravels regardless of which strand we
pull. Applying the standard of review most favorable to
defendant--harmless error--we find he suffered no prejudice
and thus affirm the judgment of the district court.

__________
12 Defendant contends that we have reversed s 924(c)(1) convic-
tions in three cases with facts similar to his. See United States v.
Moore, 104 F.3d 377, 380 (D.C. Cir. 1997); United States v. Lin, 101
F.3d 760, 771 (D.C. Cir. 1996); United States v. Morrison, 98 F.3d
619, 628-29 (D.C. Cir. 1996). None of those cases is an apt
comparison, because in none did the evidence establish that the
defendant carried a gun on his person. Moreover, in two of the
cases the government conceded that Bailey required reversal,
making it unnecessary for the court to conduct a harmless error
analysis at all. See Moore, 104 F.3d at 380; Morrison, 98 F.3d at
629.