UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 96-40873
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID SORRELLS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas
July 22, 1998
Before GARWOOD, DAVIS, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
A jury convicted David Sorrells (“Sorrells”) of using a
firearm during and in relation to a drug trafficking offense in
violation of 18 U.S.C. § 924(c)(1). We affirmed his conviction on
direct appeal and on Sorrells’ first motion to vacate his sentence
under 28 U.S.C. § 2255. He now appeals from the district court’s
denial of his second § 2255 motion to vacate his § 924(c)(1)
conviction. We affirm.
I
The facts in this case are relatively straightforward. Both
parties agree that, viewed in the light most favorable to the
verdict, the relevant facts are as follows: In 1989, Sorrells’
adopted son, Mark Sorrells (“Mark”), contacted Victor Ayala
(“Ayala”) and asked him where he could get chemicals to manufacture
methamphetamine. Mark told Ayala that he did not have money to
purchase the chemicals, but that he could use a deed to his
father’s house as collateral. Unbeknownst to Mark, Ayala was
working as a paid informant for Gene Tandy (“Tandy”) of the Texas
Department of Public Safety. After Ayala informed Tandy of Mark’s
request, Tandy told Drug Enforcement Administration (“DEA”) Agent
James Palestino (“Palestino”) about Ayala’s contact with Mark.
Palestino instructed Tandy to set up a meeting with Mark.
At the meeting between Palestino and Mark, Palestino posed as
an employee of a chemical store with access to the chemicals needed
to make methamphetamine. Mark stated that he was low on cash, but
he offered to provide the deed to Sorrells’ house as collateral for
the chemicals. Mark also gave Palestino a written list of the
chemicals he needed and a telephone number where he could be
reached. Mark said that after he manufactured the methamphetamine
he would pay Palestino $2,000 and give him a pound of the finished
methamphetamine. Palestino told Mark that he wanted to meet with
Sorrells to assure himself that Sorrells was aware of the details
of the transaction. Ayala later telephoned Sorrells and asked him
if he was aware that the deed to his house was being used as
collateral to purchase methamphetamine; Sorrells replied that he
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was.
Shortly after their first meeting, Palestino called Mark and
recorded their conversation. Palestino told Mark that he was
uncomfortable about the method of payment and asked to speak to
Sorrells to verify that Sorrells knew the purpose for which the
deed to his house was going to be used. Mark told Palestino that
Sorrells knew about the plans and that there would be no problem
arranging a meeting with Sorrells. The meeting with Sorrells took
place on the following day at Sorrells’ home. Palestino was
wearing a body microphone and waited in the car while Tandy and
Ayala went inside. Mark came out and showed Palestino the deed to
Sorrells’ house. Sorrells then came out of the house and assured
the officers that they could use the deed as collateral for the
chemicals. Sorrells stood by as Palestino and Mark discussed
financial arrangements should something go awry with Mark’s “cook.”
Sorrells also commented to Palestino that this was not Mark’s
“first time.”
After the meeting, the officers decided to provide Mark with
the chemicals. Ayala arranged for the parties to meet at a mall in
Galveston. Ayala called Sorrells at his home and told him that he
and Tandy were in town with the chemicals and were waiting for Mark
at the mall. Sorrells eventually relayed the message to Mark, and
Mark subsequently arrived at the mall driving a van. After they
loaded the chemicals into Mark’s van, Ayala and Mark drove off in
the van, with Ayala wearing a body microphone. Ayala and Mark then
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went to a real estate office, and Mark picked up a key to a beach
house that Sorrells had rented for the processing of the
methamphetamine.
After taking the chemicals to the beach house, Mark began
“cooking” the chemicals. Mark also sent Ayala to get a gun and a
box of bullets from inside the van. Mark loaded the gun and toyed
with it as he began to process the chemicals. Ayala convinced Mark
to get something to eat, and when they left, Mark took the gun with
him. When they returned, Mark took the gun out and told Ayala that
“if anybody knocks on the door, I’m going to shoot through it, I
don’t play funny business.” Frightened for his own safety, Ayala
surreptitiously left the house in search of a police officer. He
could not find an officer, and when he returned to the beach house,
Mark was waiting outside with a crowbar. Mark told Ayala to get
back inside the house and not to leave again. When the chemicals
began to give off a strong odor, Ayala talked Mark into leaving the
house to purchase gas masks from Sears. They later left the house
again and the police stopped them as they returned.
The officers arrested Mark and searched the beach house,
finding a functioning methamphetamine laboratory, a loaded gun, and
a gas mask lying on the kitchen counter. Thereafter, the officers
sent Ayala to Sorrells’ home (which was approximately sixteen miles
from the beach house) to speak with Sorrells. Ayala told Sorrells
that the reason he left the beach house was that there was a bad
odor. When he mentioned to Sorrells that the odor was strong,
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Sorrells stated: “I know, I know.” Sorrells indicated that he
expected to profit financially from the venture and that he wanted
to launder the money to an island and bring it back in small
amounts. Sorrells also mentioned that he paid for the rental of
the beach house where Mark cooked the methamphetamine.
In reference to Mark and Sorrells’ plan to conduct another
drug deal with Ayala and Palestino, Sorrells told Ayala he had some
information for their next deal. He wrote down the address and
telephone number of a real estate agent and instructed Ayala to
give it to Mark, explaining that the next deal would take place at
that location. Ayala asked Sorrells if he realized that Mark had
a gun with him at the beach house, and Sorrells told him “yes, I
know, I know.” The police arrested Sorrells at his home shortly
thereafter. During the arrest, Sorrells told DEA Special Agent
Dickmond Rice that he owned a gun and that he had given it to Mark.
Sorrells later admitted that the gun recovered from the beach house
was similar to the gun that he owned.
The government charged Sorrells in a superseding indictment,
along with Mark, with conspiracy to manufacture in excess of 10
grams of methamphetamine (Count 1), with aiding and abetting an
attempt to manufacture methamphetamine (Count 2), and with using
and carrying a firearm in relation to a drug-trafficking offense in
violation of 18 U.S.C. § 924(c)(1) (Count 4). Following a jury
trial, the jury convicted Sorrells on all counts. The district
court imposed a sentence of concurrent 78-month terms of
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incarceration on each count and a mandatory consecutive 60-month
term of incarceration for the § 924(c)(1) violation. We affirmed
Sorrells’ conviction in an unpublished opinion, rejecting his sole
claim on appeal that his conviction be reversed because the
original record had been lost. See United States v. Sorrells, No.
90-2361, slip op. at 3-5 (5th Cir. Sept. 24, 1992). In 1993,
Sorrells filed a motion to vacate his sentence pursuant to 28
U.S.C. § 2255. Sorrells raised a litany of issues, including a
claim that there was insufficient evidence to prove that he
knowingly violated § 924(c). The district court denied relief, and
we affirmed in an unpublished opinion. See United States v.
Sorrells, No. 93-7737, slip op. at 1 (5th Cir. Jan. 25, 1995).
Sorrells filed the instant § 2255 motion on April 1, 1996,
challenging only his conviction on the 18 U.S.C. § 924(c)(1) charge
in light of the Supreme Court’s decision in United States v.
Bailey, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995).
The United States responded that Sorrells’ successive § 2255 motion
should be denied as an abuse of the writ, and alternatively, that
Sorrells’ motion should be denied on the merits. The district
court did not address the government’s abuse of the writ argument,
but denied Sorrells’ § 2255 motion on the merits instead. Sorrells
filed a timely notice of appeal from this decision. Sorrells
subsequently filed with the district court a motion to proceed in
forma pauperis on appeal. The district court denied this motion
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and certified that Sorrells’ appeal was not taken in good faith.
Sorrells filed a separate notice of appeal from this order.1
II
Because Sorrells filed the instant § 2255 petition before the
effective date of the Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), we
consider his petition under our pre-AEDPA standards of review,2 and
no certificate of appealability is necessary to vest jurisdiction
in this Court. See United States v. Carter, 117 F.3d 262, 264 (5th
Cir. 1997); United States v. Rocha, 109 F.3d 225, 228-29 (5th Cir.
1997). Sorrells challenges only his conviction for using a firearm
during a drug trafficking crime in violation of § 924(c)(1),
claiming that there was insufficient evidence to support his
conviction under the Supreme Court’s definition of “use” in Bailey.
1
As a preliminary matter, we reject Sorrells’ argument
that the district court erred in denying his motion to proceed in
forma pauperis on appeal. Sorrells failed to attach a copy of an
affidavit showing his inability to pay fees and costs and failed to
file a motion in this Court. Therefore, he failed to comply with
the strictures of FED. R. APP. P. 24 for proceeding in forma
pauperis on appeal, and his request to do so is hereby denied.
2
Several recent decisions have considered whether Bailey
claims can be brought in successive § 2255 motions under AEDPA.
See Triestman v. United States, 124 F.3d 361, 368-80 (2d Cir.
1997); In re Hanserd, 123 F.3d 922, 928-32 (6th Cir. 1997); In re
Dorsainvil, 119 F.3d 245, 248-49 (3d Cir. 1997). Because AEDPA
limits successive § 2255 motions to claims based on “a new rule of
constitutional law” or “newly discovered evidence,” these courts
have had to address the difficult questions surrounding the
availability of § 2255 or § 2241 relief for such claims under
AEDPA. Because Sorrells’ § 2255 motion was filed before the
effective date of AEDPA, we express no opinion on these questions.
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In Bailey, the Supreme Court clarified that a conviction for
“use” of a firearm under § 924(c)(1) requires the government to
show “active employment of the firearm” including “brandishing,
displaying, bartering, striking with, and most obviously, firing or
attempting to fire, a firearm.” Bailey, 516 U.S. at 148, 116 S.
Ct. at 508. The Court in Bailey concluded that “a defendant cannot
be charged under § 924(c)(1) merely for storing a weapon near drugs
or drug proceeds,” or for “placement of a firearm to provide a
sense of security or to embolden.” Id. The government assumes
here that the district court’s § 924(c)(1) instructions failed to
comply with the Bailey Court’s definition of “use,” but argues,
nonetheless, that there was sufficient evidence to convict Sorrells
of “aiding and abetting” the use of a firearm during a drug
trafficking crime, and that in any event, Sorrells cannot
demonstrate that the alleged error resulted in a complete
miscarriage of justice. Sorrells argues that there was
insufficient evidence to convict him of personally “using” the
firearm, that he was not charged with aiding and abetting the use
of a firearm, and that there was insufficient evidence to convict
him of aiding and abetting Mark’s “use” of the firearm.
III
We first address the procedural hurdles to considering the
merits of Sorrells’ Bailey claim, as well as the proper standard of
review for doing so. We have recently joined most courts of appeal
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in holding that Bailey applies retroactively to cases pending on
collateral review. See United States v. McPhail, 112 F.3d 197, 199
(5th Cir. 1997); see also Triestman v. United States, 124 F.3d 361,
368 & n.7 (2d Cir. 1997) (collecting cases); In re Hanserd, 123
F.3d 922, 928-32 (6th Cir. 1997); Stanback v. United States, 113
F.3d 651, 654-55 (7th Cir. 1997); United States v. Barnhardt, 93
F.3d 706, 708-09 (10th Cir. 1996). Although Bailey itself is a
non-constitutional case involving the statutory interpretation of
§ 924(c)(1), we have held that petitioners asserting that a
§ 924(c)(1) conviction is invalid in light of Bailey can properly
bring their claims in a § 2255 motion. See United States v.
Gobert, 139 F.3d 436, 438-39 (5th Cir. 1998) (“Even though Bailey
itself is a statutory, non-constitutional case, it does not
necessarily follow that a prisoner’s post-Bailey petition for
collateral relief sounds in statutory, non-constitutional law.”);
see also Carter, 117 F.3d at 264-65 (granting § 2255 motion and
vacating § 924(c)(1) conviction because there was no factual basis
to support guilty plea for “use” of a firearm in relation to a drug
trafficking offense); McPhail, 112 F.3d at 199-200 (granting § 2255
motion and vacating § 924(c)(1) conviction because, in light of
Bailey, conviction “seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings [and] the appellant shows
clear or obvious error that affects his substantial rights”).
The government correctly notes, however, that Sorrells failed
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to object to the jury instructions defining “use” of a firearm
under § 924(c)(1), or to challenge those instructions on direct
appeal. It is well settled that where a defendant has procedurally
defaulted a claim by failing to raise it on direct review, the
claim may be raised in a § 2255 motion only if the petitioner can
first demonstrate either (1) cause and prejudice, or (2) that he is
“actually innocent” of the crime for which he was convicted.3 See
Bousley v. United States, ___ U.S. ___, ___, 118 S. Ct. 1604, 1611,
___ L. Ed. 2d ___ (May 18, 1998); Murray v. Carrier, 477 U.S. 478,
485, 496, 106 S. Ct. 2639, 2643-44, 2649-50, 91 L. Ed. 2d 397
(1986); United States v. Logan, 135 F.3d 353, 355 (5th Cir. 1998).
Because Sorrells did not challenge the § 924(c)(1) instructions at
trial or on direct appeal, we apply this standard of review here.
3
Because this is Sorrells’ second § 2255 motion, he also
has to overcome the abuse of the writ hurdle. We need not,
however, separately consider this issue because we apply the
functionally identical standard for determining whether a
successive § 2255 motion constitutes an “abuse of the writ” under
pre-AEDPA standards. See, e.g., McCleskey v. Zant, 499 U.S. 467,
494-95, 111 S. Ct. 1454, 1470-71, 113 L. Ed. 2d 517 (1991) (holding
that there is no abuse of the writ where the petitioner can
demonstrate either (1) cause and prejudice, or (2) that the failure
to consider the issue would result in a “fundamental miscarriage of
justice”); United States v. Flores, 981 F.2d 231, 234 (5th Cir.
1993) (extending the McCleskey standard to § 2255 motions). The
“actually innocent” standard is the same as the “fundamental
miscarriage of justice” standard, which applies “‘when a
constitutional violation probably has caused the conviction of one
innocent of the crime.’” Rodriguez v. Johnson, 104 F.3d 694, 697
(5th Cir.) (quoting McCleskey, 499 U.S. at 494, 111 S. Ct. at
1470), cert. denied, 117 S. Ct. 2438 (1997). Therefore, the fact
that this is Sorrells’ second § 2255 motion does not affect our
standard of review. See infra note 5.
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Before the Supreme Court’s recent decision in Bousley,
applying the “cause and prejudice” standard to Bailey claims raised
in § 2255 motions was relatively straightforward. We had joined
every court of appeals except the Eighth Circuit in concluding that
a petitioner bringing a post-Bailey challenge to a pre-Bailey
conviction could show “cause” for failing to raise such a claim on
direct review. See Logan, 135 F.3d at 355 (“Applying [the two-part
cause and prejudice test], we find that [the defendant] has shown
adequate cause for his failure to raise earlier the present issue
because the Bailey decision had not been rendered at the time of
his trial or appeal.”); Rocha, 109 F.3d at 229 (“Rocha, of course,
could hardly be expected to have raised a Bailey claim before
Bailey was decided . . . .”); see also Triestman, 124 F.3d at 368
n.6 & 8 (collecting cases); Stanback, 113 F.3d at 654-55 & n.2
(collecting cases). Thus, before Bousley, when reviewing a § 2255
motion raising a Bailey claim when there had been no objection
below, we would proceed to the “prejudice” prong to decide whether
the petitioner could “demonstrate that, but for the alleged error,
he might not have been convicted.” Logan, 135 F.3d at 355
(emphasis added); see also United States v. Guerra, 94 F.3d 989,
994 (5th Cir. 1996).
In Bousley, however, the Supreme Court clarified that a
petitioner seeking collateral review for a Bailey claim must
demonstrate “factual innocence” if he failed to raise the issue on
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direct appeal.4 See Bousley, ___ U.S. at ___, 118 S. Ct. at 1611;
see also United States v. Ramos, No. 96-7356, 1998 WL 337889, *5
(3d Cir. June 26, 1998) (holding that in light of Bousley
petitioner must demonstrate “actual innocence” of § 924(c)(1)
violation because he could not demonstrate “cause” for failing to
challenge the jury instruction on direct appeal). In Bousley, the
Eighth Circuit had held that the petitioner waived his right to
bring a § 2255 motion based on Bailey by not raising the issue on
direct appeal because he could not satisfy the “cause” prong,
notwithstanding the fact that the petitioner’s conviction and
direct appeal occurred before the Supreme Court had decided Bailey.
See Bousley v. Brooks, 97 F.3d 284, 287-88 (8th Cir. 1996). On
appeal to the Supreme Court, the petitioner in Bousley argued that
he had “cause” for his failure to raise his Bailey claim because
“the legal basis of the claim was not reasonably available to
counsel” and because “before Bailey, any attempt to attack [his]
4
Although the Supreme Court in Bousley considered the
permissibility of collateral attacks on § 924(c)(1) convictions
obtained pursuant to guilty pleas (rather than jury verdicts), the
Bousley Court’s discussion of whether there was “cause” for failing
to challenge the definition of “use” on direct appeal (even before
Bailey) applies equally to § 924(c)(1) convictions obtained
pursuant to jury verdicts. See United States v. Ramos, No. 96-
7356, 1998 WL 337889, *5 (3d Cir. June 26, 1998) (applying Bousley
standard to § 924(c)(1) conviction obtained pursuant to jury
verdict). The standard for determining “cause” for a procedural
default does not depend on the method of conviction. See Murray,
477 U.S. at 488, 106 S. Ct. at 2645 (explaining that the “cause”
standard requires “a showing that the factual or legal basis for a
claim was not reasonably available to counsel”).
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guilty plea would have been futile.” Bousley, ___ U.S. at ___, 118
S. Ct. at 1611.
The Supreme Court rejected this argument and held that the
petitioner was unable to establish “cause” for his default because
even before Bailey “the Federal Reporters were replete with cases
involving challenges to the notion that ‘use’ is synonymous with
mere ‘possession.’” Id. After agreeing with the Eighth Circuit
that the petitioner could not satisfy the “cause and prejudice”
standard for failing to raise his § 924(c)(1) challenge on direct
appeal, the Supreme Court nonetheless held that the Eighth Circuit
erred in refusing to consider the petitioner’s claim because the
petitioner could overcome the procedural default if he established
that the error “‘probably resulted in the conviction of one who is
actually innocent.’” Id. (quoting Murray, 477 U.S. at 496, 106 S.
Ct. at 2649).
The Supreme Court confirmed that the “actually innocent”
standard imposes a higher burden on petitioners than the
“prejudice” prong in the cause and prejudice standard. “To
establish actual innocence, petitioner must demonstrate that, ‘in
light of all the evidence,’ ‘it is more likely than not that no
reasonable juror would have convicted him.’” Id. (quoting Schlup
v. Delo, 513 U.S. 298, 327-28, 115 S. Ct. 851, 867-68, 130 L. Ed.
2d 808 (1995)); cf. Logan, 135 F.3d at 355 (explaining that
“prejudice” exists where petitioner can show “he might not have
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been convicted”). The Supreme Court reaffirmed in Bousley that
“‘actual innocence’ means factual innocence, not mere legal
insufficiency.’” Bousley, ___ U.S. at ___, 118 S. Ct. at 1611; see
also Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir.) (“‘[T]he
term ‘actual innocence’ means factual, as opposed to legal,
innocence))’legal’ innocence, of course, would arise whenever a
constitutional violation by itself requires reversal, whereas
‘actual’ innocence, as the Court stated in McCleskey, means that
the person did not commit the crime.’”) (emphasis in original)
(quoting Johnson v. Hargett, 978 F.2d 855, 859-60 (5th Cir. 1992)),
cert. denied, 117 S. Ct. 2438 (1997).
While this undoubtedly is a strict standard of review, the
Supreme Court explained that to demonstrate “factual innocence” in
the context of a Bailey claim where the government charged only the
“use” of a firearm, the “petitioner need demonstrate no more than
that he did not ‘use’ a firearm as that term is defined in Bailey.”
Bousley, ___ U.S. at ___, 118 S. Ct. at 1612; see also Gobert, 139
F.3d at 439 (explaining that a refusal to vacate a sentence where
Bailey has placed the alleged conduct beyond the scope of
§ 924(c)(1) “would result in a complete miscarriage of justice”).
Accordingly, we will overturn Sorrells § 924(c)(1) conviction, only
if he can demonstrate, in light of all the evidence, that “it is
more likely than not that no reasonable juror would have convicted
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him.”5 Bousley, ___ U.S. at ___, 118 S. Ct. at 1611; cf. Ramos,
1998 WL 337889, at *5 (concluding that petitioner could not
demonstrate factual innocence “where the evidence was sufficient to
support the § 924(c)(1) conviction”).
IV
Thus, we now consider whether Sorrells can demonstrate his
factual innocence of the § 924(c)(1) offense under Bailey. First,
we have little doubt, and the government appears to agree, that the
court’s jury instructions on “use” were inconsistent with the
strictures of Bailey. Cf. United States v. Cooke, 110 F.3d 1288,
5
The government notes that it raised in the district court
the argument that Sorrells’ instant motion was an abuse of the
§ 2255 proceedings and that the district court failed to consider
this argument. See Rule 9(b), RULES GOVERNING § 2255 PROCEEDINGS FOR THE
U.S. DISTRICT COURTS. This Court has stated that when the abuse of
the writ argument is properly raised in the district court, the
district court commits reversible error if it proceeds to consider
the merits of the § 2255 motion without considering whether the
motion is abusive. See Foret v. Whitley, 965 F.2d 18, 19-20 (5th
Cir. 1992); Alexander v. Whitley, 940 F.2d 946, 947-48 (5th Cir.
1991). For obvious reasons, however, the government here does not
seek a reversal of the district court’s denial of Sorrells’ § 2255
motion. Significantly, we did not state in either Foret or
Alexander that we must reverse the district court’s denial on the
merits and remand for a determination on the abuse of the writ
argument. Moreover, where the standard of review on appeal would
be identical because of the petitioner’s procedural default, see
supra note 3, the record is fully established (as it is here), and
neither party seeks a remand for a determination on the abuse of
the writ question, the district court’s error is undoubtedly
harmless. Cf. Macklin v. Singletary, 24 F.3d 1307, 1311 (11th Cir.
1994) (“Convinced of our authority to decide an abuse of the writ
issue not addressed by the district court, we now turn to
prudential considerations in order to decide whether we should
exercise that authority in this case.”); see also Jones v. White,
992 F.2d 1548, 1558 (11th Cir. 1993) (same).
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1292-93 (7th Cir. 1997) (explaining that “[t]here can be little
doubt that the instructions . . . were plainly erroneous in light
of Bailey” when instruction permitted guilty verdict by finding
mere possession of weapon that facilitated drug offense). The
court instructed the jury in pertinent part as follows:
The defendant is considered to have used a firearm if its
presence in his possession in any manner facilitated the
carrying out of a felony. It is not necessary that the
firearm be fired nor that it be considered to have been
used.
While this instruction was understandable in light of our pre-
Bailey case law that held that § 924(c)(1) merely required
“evidence that the firearm was available to provide protection to
the defendant in connection with his engagement in drug
trafficking,” see United States v. Ivy, 973 F.2d 1184, 1189 (5th
Cir. 1992) (internal quotation marks and citation omitted), it
cannot withstand post-Bailey scrutiny. See United States v.
Thompson, 122 F.3d 304, 306-07 (5th Cir. 1997). “[T]he Bailey
Court explicitly declared that intended use or accessibility alone
does not constitute ‘use’ under section 924.” Logan, 135 F.3d at
355; see also Cooke, 110 F.3d at 1292-93. Here, while it is clear
that Mark “used” the gun within the meaning set forth in Bailey,6
the government presented no evidence that Sorrells “actively
6
Sorrells does not dispute that Mark’s acts of waiving the
gun while cooking the methamphetamine and stating that he would
shoot through the door if anyone knocked constitute “active
employment” under Bailey.
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employed” the gun, let alone that he did so in relation to the drug
trafficking offense. Consequently, Sorrells cannot be guilty of
“using” the firearm on his own; as such, we can uphold Sorrells’
conviction only if the evidence is sufficient to demonstrate that
Sorrells’ aided and abetted Mark’s “use” of the firearm in relation
to the drug trafficking offense.7
A
We first address Sorrells’ arguments that we cannot uphold his
conviction on an aiding and abetting theory because he was not
indicted for aiding and abetting the firearm count, and because the
aiding and abetting instruction to the jury related only to the
manufacture of methamphetamine count.8 Neither argument merits
7
Under the Supreme Court’s recent decision in Muscarello
v. United States, Nos. 96-1654 & 96-8837, 1998 WL 292058 (U.S. June
8, 1998), it is clear that Mark also “carried” the firearm within
the meaning of § 924(c)(1) because he “knowingly possess[ed] and
convey[ed] firearms in a vehicle” in relation to the drug offense.
Id. at *2. Nonetheless, because the district court here did not
instruct the jury on the “carrying” element and the government
presented no evidence that Sorrells himself “carried” the gun, the
government does not argue that we uphold Sorrells’ conviction under
the “carry” prong of § 924(c)(1). See United States v. Carter,
117 F.3d 262, 264 (5th Cir. 1997); United States v. Garcia, 86 F.3d
394, 403 (5th Cir. 1996). Moreover, because the jury was not
instructed that Sorrells was responsible for all crimes committed
by Mark during the course of the drug conspiracy, his § 924(c)(1)
conviction cannot be upheld on the grounds of Pinkerton liability.
See Thompson, 122 F.3d at 307; United States v. Dean, 59 F.3d 1479,
1490 n.18 (5th Cir. 1995); United States v. Crain, 33 F.3d 480, 486
n.7 (5th Cir. 1994).
8
Sorrells’ argument stems from the fact that the
indictment included an aiding and abetting charge for Count 2, the
manufacturing methamphetamine charge, but not for Count 4, the use
and carry of a firearm charge. Sorrells correctly points out that
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much discussion. First, “[a]iding and abetting is not a separate
offense, but it is an alternative charge in every indictment,
whether explicit or implicit.” See United States v. Neal, 951 F.2d
630, 633 (5th Cir. 1992). Consequently, Sorrells’ argument that he
was not indicted for aiding and abetting the § 924(c)(1) violation
is unavailing. See, e.g., id; United States v. Gordon, 812 F.2d
965, 968-69 (5th Cir. 1987) (“The words ‘aid and abet’ need not
appear in the indictment in order to sustain a conviction as an
aider and abettor.”).
Second, we reject Sorrells’ argument that the general aiding
and abetting instruction did not apply to the § 924(c)(1) offense,
notwithstanding the order in which it was read to the jury.
Significantly, “the aiding and abetting statute, 18 U.S.C. § 2,
does not define a separate crime,” but rather provides another
means of convicting someone of the underlying offense. See Gordon,
812 F.2d at 968 (footnote omitted). “[A]s a general rule, an
aiding and abetting instruction may be given to the jury even
though the indictment does not specifically mention aiding and
the government did not specifically argue at trial that Sorrells
was guilty of the use of a firearm as an aider and abettor; he also
notes that the court read the aiding and abetting charge to the
jury directly after the manufacturing charge (but before the
§ 924(c)(1) charge). Notwithstanding these facts, as we discuss
below, the district court gave the jury a general aiding and
abetting instruction and, as long as the evidence supports such a
conclusion in relation to the § 924(c)(1) charge, Sorrells is not
entitled to relief. See United States v. Botello, 991 F.2d 189,
191 (5th Cir. 1993); Gordon, 812 F.2d at 968-69.
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abetting, so long as evidence is introduced to support an aiding
and abetting conviction.” United States v. Botello, 991 F.2d 189,
191 (5th Cir. 1993). At trial, the district court gave a general
aiding and abetting instruction, quoting the language of 18 U.S.C.
§ 2 and explaining its elements, and Sorrells did not (and in this
motion still does not) challenge the correctness of this jury
charge.9 Thus, the issue of aiding and abetting was properly
before the jury at trial, and Sorrells is entitled to relief only
if he can demonstrate that he is “actually innocent” of aiding and
abetting the § 924(c)(1) charge in light of Bailey. See Gordon,
812 F.2d at 969 (“‘[T]he rule is well established, both in this
Circuit and others, that one who has been indicted as a principal
may be convicted on evidence showing that he has merely aided and
abetted the commission of the offense.’”) (quoting United States v.
Vines, 580 F.2d 850, 853 (5th Cir. 1978)).
B
1
In order to convict a defendant of aiding and abetting a crime
under 18 U.S.C. § 2, “the Government must prove (1) that the
defendant associated with the criminal venture, (2) participated in
9
18 U.S.C. § 2 states as follows: “Whoever commits an
offense against the United States or aids, abets, counsels,
commands, induces, or procures its commission is punishable as a
principal. Whoever willfully causes an act to be done, which if
directly performed by him or another would be an offense against
the United States, is punishable as a principal.”
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the venture, and (3) sought by action to make the venture succeed.”
United States v. Gallo, 927 F.2d 815, 822 (5th Cir. 1991). The
criminal venture with which the defendant must “participate” and
“associate” here is the use or carry of a firearm in relation to
the drug offense. See United States v. Wainuskis, 138 F.3d 183,
187 (5th Cir. 1998). “Association means that the defendant shared
in the criminal intent of the principal.” United States v.
Salazar, 66 F.3d 723, 729 (5th Cir. 1995). “Participation means
that the defendant engaged in some affirmative conduct designed to
aid the venture. Although relevant, mere presence and association
are insufficient to sustain a conviction of aiding and abetting.”
Id.
Under our broad, pre-Bailey definition of “use,” a defendant
could be convicted of aiding and abetting a § 924(c)(1) violation
if the jury concluded that the defendant knew the gun was at least
available to the principal and took some action that assisted the
principal’s use of the gun. See Salazar, 66 F.3d at 729; see also
United States v. Morrow, 977 F.2d 222, 231 (6th Cir. 1992) (en
banc). This standard incorporated the same definition of “use”
that Bailey rejected, allowing a conviction for aiding and abetting
a § 924(c)(1) violation when the defendant knew the weapon was
merely “available” to the principal and that it facilitated the
crime. See Salazar, 66 F.3d at 728 (“To prove the use or carrying
of a firearm, the government need not show that the defendant used
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or brandished the weapon in an affirmative manner; it is sufficient
for the government to prove that the ‘firearm facilitated or had a
role in the crime, such as emboldening an actor who had the
opportunity or ability to display or discharge the weapon to
protect himself or intimidate others.’”) (quoting United States v.
Contreras, 950 F.2d 232, 241 (5th Cir. 1991)). Consequently, while
Bailey does not affect the elements of “aiding and abetting” (i.e.,
the defendant must aid, abet, counsel, command, induce, or procure
the commission of a crime with the requisite intent), Bailey does
affect the “use” element of § 924(c)(1)))and thus, it also affects
the elements for aiding and abetting a § 924(c)(1) violation. See
United States v. Pipola, 83 F.3d 556, 562 (2d Cir.) (“To show
specific intent the prosecution must prove the defendant knew of
the proposed crime))suspicion that it might occur is not enough))and
had an interest in furthering it.”), cert. denied, 117 S. Ct. 183
(1996).
We recently explained that “to be found liable for another’s
criminal activity [under § 924(c)(1)], an aider and abettor must
share in the criminal intent to use the firearm during a drug
trafficking offense.” Wainuskis, 138 F.3d at 189; see also AIDING
AND ABETTING INSTRUCTION, FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS 2.06 (1997)
(“If another person is acting under the direction of the defendant
or if the defendant joins another person and performs acts with the
intent to commit a crime, then the law holds the defendant
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responsible for the acts and conduct of such other persons just as
though the defendant had committed the acts or engaged in such
conduct. Before any defendant may be held criminally responsible
for the acts of others it is necessary that the accused
deliberately associate himself in some way with the crime and
participate in it with the intent to bring about the crime.”)
(emphasis added). After Bailey, the “intent to bring about
the crime” defined in § 924(c)(1) is the intent that the firearm be
“used” within the meaning of Bailey.
Thus, in order to be convicted of aiding and abetting the
§ 924(c)(1) offense (under the “use” prong), the defendant must act
with the knowledge or specific intent of advancing the “use” of the
firearm in relation to the drug trafficking offense.10 See, e.g.,
United States v. Giraldo, 80 F.3d 667, 676 (2d Cir.) (“Proof simply
that a defendant knew that a firearm would be carried, even
accompanied by proof that he performed some act to facilitate or
encourage the underlying crime in connection with which the firearm
was carried, is insufficient to support a conviction for aiding and
abetting the carrying of a firearm . . . .”), cert. denied, 117 S.
Ct. 135 (1996); United States v. Bennett, 75 F.3d 40, 45 (1st Cir.)
10
Both parties agree that in order to convict the defendant
of aiding and abetting a § 924(c)(1) violation, the principal must
have committed acts that would violate § 924(c)(1). See 18 U.S.C.
§ 2. As we have stated, Sorrells concedes that Mark’s actions
constitute “use” of the firearm during the drug offense. See supra
note 6.
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(“Thus, his conviction can be sustained under 18 U.S.C. § 2 if [the
defendant] knew a firearm would be carried or used by a co-
conspirator in the drug trafficking offense and willingly took some
action to facilitate the carriage or use.”), cert. denied, 117 S.
Ct. 130 (1996); see also Barrett v. United States, 120 F.3d 900,
900-01 (8th Cir. 1997) (upholding aiding and abetting conviction
for 924(c)(1) when “Barrett admitted at his guilty-plea hearing
that he gave Gilstrap the revolver intending for Gilstrap to take
it with him while distributing cocaine Barrett had given
Gilstrap.”); cf. United States v. Foreman, 914 F. Supp. 385, 387
(C.D. Cal. 1996) (“An aider and abettor must knowingly and
intentionally aid and abet the actual elements of the crime, and
not just create the circumstances that permit the crime to
occur.”). Of course, the jury is entitled to draw reasonable
inferences of knowledge or intent from the actions of the
defendant. See Pipola, 83 F.3d at 565; Bennett, 75 F.3d at 45.
In addition to requiring proof of knowledge or intent for a
conviction of aiding and abetting, “there must also be proof that
the defendant performed some affirmative act relating to the
firearm.” Giraldo, 80 F.3d at 676; United States v. Bazemore, 138
F.3d 947, 949 (11th Cir. 1998) (“In addition to knowledge, in order
to sustain a conviction under an aiding and abetting theory, there
must be some proof “linking” the defendant to the gun, because
section 924(c) does not permit ‘guilt by association.’”). The link
-23-
to the firearm is necessary because the defendant is punished as a
principal for “using” a firearm in relation to a drug offense, and
therefore must facilitate in the “use” of the firearm rather than
simply assist in the crime underlying the § 924(c)(1) violation.
See Bazemore, 138 F.3d at 949-50.
2
Application of the aiding and abetting standard to the facts
of this case presents a relatively close and difficult question;
ultimately, however, we are guided by our narrow standard of review
for considering Sorrells’ claim. First, as we concluded above, the
court erred in instructing the jury on the “use” element for the
§ 924(c)(1) violation, allowing a conviction for aiding and
abetting based on the mere possession of a firearm that in any
manner facilitated a drug crime. See Bailey, 516 U.S. at 145-46,
116 S. Ct. at 506 (holding that “‘use’ must connote more than mere
possession of a firearm by a person who commits a drug offense”).
Second, although the evidence in the light most favorable to the
verdict indicates that Sorrells gave Mark the firearm and knew that
Mark had the gun while he was manufacturing the methamphetamine,
Sorrells’ criminal intent in relation to Mark’s actual “use” of the
firearm within the meaning of § 924(c)(1) is not as clear. Cf.
Salazar, 66 F.3d at 729 (noting that “[t]his circuit has not
considered aider and abettor liability under § 924(c)(1) when the
defendant was not present during the commission of the crime in
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which the firearm was used” but concluding that we have “never
imposed a requirement that an individual be physically present when
the gun is used”).
Significantly, Sorrells conceded that Mark “used” the gun
within the meaning of Bailey. In addition, the facilitation
element was easily met on these facts because Sorrells gave Mark
the specific gun that Mark used in relation to the drug offense.
Cf. United States v. Medina, 32 F.3d 40, 45-46 (2d Cir. 1994)
(finding that the § 924(c)(1) conviction could not be upheld when
the defendant provided a different gun from the one that was used
in the armed robbery). The difficult question thus becomes whether
the knowledge element was met))in other words, whether a reasonable
jury could have inferred that Sorrells knew or intended that Mark
would “use” the gun during the manufacturing of the drugs. Because
Sorrells must demonstrate that he is “factually innocent” of aiding
and abetting the “use” of the firearm, he must show that it is more
probable than not that no reasonable jury would have convicted him
under the correct instructions for the “use” element. See, e.g.,
Ramos, 1998 WL 337889, at *5; see also Bousley, ___ U.S. at ___,
118 S. Ct. at 1611.
The facts linking Sorrells to the firearm and the drug
trafficking offense are as follows: Sorrells put up the deed to his
house as collateral for the chemicals; Sorrells knew the purpose
for which the deed was going to be used; Sorrells stated that it
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was not the first time for Mark and planned a second deal with the
officers; he rented the beach house where the methamphetamine would
be manufactured; he gave Mark the firearm that Mark used in
relation to the drug offense; and he knew that Mark had the firearm
at the beach house while he was manufacturing the methamphetamine.
On these facts, Sorrells cannot demonstrate his factual innocence
or that no reasonable jury could infer that he knew or intended
that Mark would “use” the gun while manufacturing the
methamphetamine. See Pipola, 83 F.3d at 565 (holding that where
the defendant was the leader of the group and made the planning
decisions for several armed robberies, “the proof permitted the
jury to infer that Pipola specifically encouraged the use of
firearms in the robberies”); Price, 76 F.3d at 529-30 (“Even if Mr.
Price had not known in advance that Mr. Stubbs was going to use a
gun during the robbery, it seems perfectly clear that Mr. Price was
aware that the gun was being used while he continued to participate
in the robbery.”); Bennett, 75 F.3d at 45 (“From this evidence a
jury could find that Bennett knew that one of his companions was
carrying the gun when they committed the attack, and facilitation
is essentially undisputed since Bennett provided his car to
transport himself, his co-conspirators, and the gun to execute the
raid.”).
Sorrells played a significant role in planning the
manufacture of the methamphetamine, gave Mark the gun that was
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“used” during the offense, and knew Mark had the gun during the
commission of the underlying offense; as such, he cannot overcome
the hurdle of demonstrating his factual innocence. While simply
having knowledge of the gun and participating in the underlying
drug trafficking crime is not, on its own, “aiding and abetting”
the use of the firearm after Bailey, the jury could infer from
Sorrells’ knowledge and actions, that he encouraged Mark’s “use” of
the gun to protect the bounty of their drug conspiracy. See
Pipola, 83 F.3d at 562 (“Because aiding and abetting requires a
defendant’s conscious assistance in the commission of the specific
underlying crime . . . . [t]here must be proof . . . that the
defendant’s actions directly facilitated or encouraged either the
use of or the carrying of a firearm.”); see also Wainuskis, 138
F.3d at 189 (“It is evident that Wainuskis possessed both the
necessary knowledge, that weapons were available for Materne’s use,
and the intent to be convicted as an aider and abettor in Materne’s
crime.”) (footnote omitted).
V
We conclude that Sorrells fails to demonstrate that he is
factually innocent of aiding and abetting the § 924(c)(1)
violation. Accordingly, the district court properly denied
Sorrells’ § 2255 motion to vacate his § 924(c)(1) conviction. The
judgment of the district court is hereby AFFIRMED.
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United States v. Sorrells
Court: Court of Appeals for the Fifth Circuit
Date filed: 1998-07-22
Citations: 145 F.3d 744
Copy CitationsCombined Opinion