United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 25, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-30243
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HAROLD HARRIS
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
Before KING, HIGGINBOTHAM, and SMITH, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Harold Harris was convicted, inter alia, of carrying a firearm
during and in relation to a drug trafficking offense in violation
of 18 U.S.C. § 924(c). He challenges the district court’s jury
instructions and the sufficiency of the government’s evidence. We
affirm.
A
Harold Harris was pulled over for speeding and then arrested
for driving with a suspended license. In his right pocket,
officers found a Glock Model 27, .40 caliber handgun. It had a
nine-round magazine with one round chambered. In his left pocket,
officers found forty-eight individually-wrapped foils of heroin, a
total weight of 0.672 grams.
Harris was indicted with (1) possession of firearm by a
felon,1 (2) possession with intent to distribute heroin,2 (3)
carrying a firearm during and in relation to a drug trafficking
offense,3 and (4) possession with intent to distribute cocaine
base.4 He pleaded guilty to the first charge and was convicted on
the remaining three.
The district court sentenced Harris to concurrent 33-month
terms on the two drug-possession counts and on the firearm-
possession count. This was to be followed by a consecutive 60-
month sentence on count three, carrying a firearm during and in
relation to a drug trafficking offense. Harris appeals only his
conviction on count three.
B
Harris first contends that the district court erred in
refusing to give a requested jury instruction. We review such
decisions for abuse of discretion. We will reverse if the
requested instruction “is substantially correct; was not
1
18 U.S.C. § 922(g)(1).
2
21 U.S.C. § 841(a)(1).
3
18 U.S.C. § 924(c)(1).
4
21 U.S.C. § 841(a)(1).
2
substantially covered in the charge as a whole; and if the omission
of the requested instruction seriously impaired the defendant’s
ability to present a given defense.”5
Harris contends that the jury instruction allowed the jury to
convict him for simply carrying a firearm “during” — but not
necessarily “in relation to” — a drug trafficking offense. The
relevant statue of conviction punishes “any person who, during and
in relation to any . . . drug trafficking crime . . . carries a
firearm.”6 The district court adopted our pattern jury
instructions and instructed the jury as follows:
Title 18, United States Code, Section 924(c)(1), makes it
a crime for anyone to use or carry a firearm during and
in relation to a drug trafficking crime.
For you to find the defendant guilty of this crime, you
must be convinced that the Government has proved each of
the following beyond a reasonable doubt:
First: That the defendant committed the drug trafficking
crime as alleged . . .
Second: That the defendant knowingly used or carried a
firearm during and in relation to his alleged commission
of a drug trafficking crime. . . .
To prove the defendant “carried” a firearm, the
Government must prove that the defendant carried the
firearm in the ordinary meaning of the word “carry,” such
as by transporting a firearm on the person or in a
vehicle. The defendant’s carrying of the firearm cannot
be merely coincidental or unrelated to the drug
trafficking crime.
5
United States v. Cain, 440 F.3d 672, 674 (5th Cir. 2006).
6
18 U.S.C. § 924(c)(1).
3
By “in relation to,” means that the firearm must have
some purpose, role, or effect with respect to the drug
trafficking crime.
In place of this final paragraph, Harris proposed the following
addition:
Mere proximity of the firearm and the drugs is not
enough. To prove that the defendant carried the firearm
“during and in relation to” the drug trafficking crime,
the government must prove that the firearm had some
purpose or played some role in the drug trafficking
crime.
Harris argues that the absence of this instruction seriously
undermined his defense. We disagree.
First, the district court’s jury instructions correctly
defined the term “in relation to” to mean that “the firearm must
have some purpose, role, or effect with respect to the drug
trafficking crime.” We disagree with Harris’s contention that the
word “effect” allows the jury to convict on insubstantial evidence
of a relationship between the gun and the drug offense. The term
“effect” means that the gun must have a “result” with respect to
the drug trafficking offense.7 This definition is supported by our
case law.8
Second, the prosecutor’s closing argument never suggested
otherwise. During his close, the prosecutor reminded the jury that
the gun must have had “some purpose, role, or effect with regard to
7
See AMERICAN HERITAGE DICTIONARY 439 (2d ed. 1982).
8
United States v. Brown, 161 F.3d 256, 259 (5th Cir. 1998) (en banc);
United States v. Fike, 82 F.3d 1315, 1328 (5th Cir. 1996).
4
the drug trafficking crime.” This was iterated by defense counsel,
who again reminded the jury that “[t]hey were suppose to prove in
relation to or in furtherance of a drug trafficking crime. They
have not done it.”
Finally, the pattern jury instruction makes clear that simple
possession of a gun during a drug trafficking offense is not
enough. The jury here was instructed that “[t]he defendant’s
carrying of the firearm cannot be merely coincidental or unrelated
to the drug trafficking crime.” Based on these three
considerations, we conclude that Harris’s proffered instruction was
substantially covered in the charge as a whole.
C
Harris next contends that his conviction should be reversed
nevertheless because there is insufficient proof that he carried
the firearm “in relation to” his drug trafficking offense. Again
we disagree.
In evaluating the sufficiency of the evidence, we view the
evidence in the light most favorable to the government and resolve
questions of credibility in favor of the jury’s verdict.9 The
evidence is sufficient to support the jury’s verdict if a rational
trier of fact could have found beyond a reasonable doubt the
essential elements of the charged crime.10
9
United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.
1988).
10
Jackson v. Virginia, 443 U.S. 307, 313 (1979).
5
The original version of section 924(c) prohibited “carrying a
firearm unlawfully during the commission of the felony.”11 Two
years later, Congress amended the statutory clause to its current
form, which requires “carrying a firearm during and in relation to”
an offense.12 This amendment was intended to “preclude [the
statute’s] application in a situation where [a weapon’s] presence
played no part in the crime.”13 In construing this amendment, we
have explained that “under the current version of section 924(c),
the government is shouldered with the burden of establishing some
relationship between the firearm [the defendant] possessed and the
predicate drug trafficking offense.”14
Yet we have allowed the jury to infer this relationship where
the criminal circumstances permit. Indeed this court has never
vacated a conviction for “carrying a firearm” based on insufficient
evidence of a relationship between the gun and the drug offense.
In Wilson, for example, we cautioned that “something more than
strategic proximity of drugs and firearms is necessary to honor
Congress’ concerns.”15 We affirmed nevertheless the defendant’s
11
18 U.S.C. 924(c) (1982) (emphasis added); see also United States v.
Wilson, 884 F.2d 174, 176 (5th Cir. 1989).
12
18 U.S.C. 924(c) (1984) (emphasis added).
13
S.Rep. No. 225, 98th Cong., 2nd Sess. 314 n.10 (1983), reprinted in
1984 U.S.Code Cong. & Admin. News 3182, 3492 n.10; see also Wilson, 884 F.2d
at 176.
14
Wilson, 884 F.2d at 177.
15
Wilson, 884 F.2d at 177.
6
conviction under 924(c), concluding that the jury reasonably could
have inferred the “in relation to” element based on both the
evidence that the defendant reached for his gun when confronted by
the police and the close proximity between gun and drugs.
And, in Raborn, we again affirmed a conviction under 924(c).16
We held that because the defendant actually carried a weapon while
engaged in a drug-manufacturing conspiracy, a jury could reasonably
conclude that the weapon was carried in relation to, and for
protection during, his drug trafficking crime.17
Harris attempts to distinguish these cases. He argues that
the jury’s inference of a relationship between the firearm and the
predicate drug trafficking offense was baseless because, unlike the
defendants discussed above, he was not, when arrested, engaged in
selling or manufacturing drugs, the sort of dangerous activities
for which .40-caliber protection is needed. He points out that
his drug crime was mere possession, from which an inference of an
intent to distribute was made.18
But from these circumstances — a gun in one pocket and a
distributable quantity of drugs in the other — a rational jury
16
United States v. Raborn, 872 F.2d 589, 595 (5th Cir. 1989).
17
Id.
18
In United States v. Reyes, we affirmed a 924(c) conviction where the
predicate offense was merely possession with intent to distribute. 102 F.3d
1361 (5th Cir. 1996). Reyes was arrested at a Greyhound bus station,
attempting to ship a suitcase containing two pounds of marihuana and fifteen
firearms. In Reyes, however, the defendant challenged only the sufficiency of
the “carrying” element, not the “in relation to” element.
7
could have found beyond a reasonable doubt that Harris was carrying
the Glock for protection. This inference of protection provides
“something more than strategic proximity of drugs and firearms” and
honors the Congressional concerns manifested by the “in relation
to” element. Harris’s judgment of conviction is AFFIRMED.
8