Nos. 94-7448 and 94-7492

In the Supreme Court of the United States

OCTOBER TERM, 1995

RONALD J. BAILEY, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

DREW S. DAYS,III
Solicitor General

JO ANN HARRIS
Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

JAMES A. FELDMAN
Assistant to the Solicitor General

JOHN F. DE PUE
Attorney

Department of Justice
Washington, D.C. 20530
(202)514-2217

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     QUESTION PRESENTED

Whether evidence that the defendant placed a firearm
near to drugs or drug proceeds to provide protection or
security and that the firearm was accessible to the de-
fendant during the commission of a drug trafficking of-
fense is sufficient to support a conviction for using a
firearm during and in relation to a drug trafficking of-
fense, in violation of 18 U.S.C. 924(c) ( 1 ).

(1)

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TABLE OF CONTENTS

Page

Opinions below  . . . . 1 

Jurisdiction  . . . . 2

Statutory provision involved . . . . 2 

Statement . . . .  2

Summary of argument  . . . . 10 

Argument:

I. The use of a firearm during and in relation to a
drug trafficking offense includes its employment
for protection or security  . . . .  10
A.  The language and structure of 18 U.S.C.
924 (c) embrace the use of a firearm for the
purpose of safeguarding or otherwise facili-
tating a drug trafficking venture . . . . 10 
B.  This Court's decision in Smith V. United
States also refutes petitioners' narrow theory
of the meaning of "use"  . . . . 14
C.  The regional courts of appeals have held that
employment of a firearm to provide security
for a drug trafficking offense is a use prohib-
ited by Section 924(c)  . . . . 16

II. Petitioners' theory of "active" use is internally
inconsistent and is not supported by the struc-
ture of the statute or its legislative history . . . . . 18
A Section 924(c) is not limited to "active"
uses  . . . . 18 
B. The structure of Section 924 (c) (1) and re-
lated provisions provides no support for peti-
tioners' argument . . . .  20
C. The legislative history of Section 924(c)
lends no support to petitioners' narrow con-
struction of the term "uses"  . . . . 26 
D. The rule of lenity has no application in this
case . . . . 36

       (III)

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IV

Argument-Continued:

III. A jury may infer the use of a firearm during
  and in relation to a drug trafficking offense based
  on proximity to the drugs or proceeds and its
  accessibility to the defendant  . . . . 38 

Conclusion . . . . 45 
Appendix  . . . . 1a

     TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405
  (1975)  . . . . 32
Alexander V. Alexander, 561 S.W.2d 59 (Ark.
  1978)  . . . . 13
Astor V. Merritt, 111 U.S. 202 (1984) . . . . 15 
Atlantic Nat'l Bank V. St. Louis Union Trust Co.,
  211 S.W.2d 2 (Me. 1948) . . . . 12 
Beach V. Livingston, 149 S.E.2d 328 (S.C. 1966)  . . . . 13 
Busic V. United States, 446 U.S. 398 (198O)  . . . . 22, 28
Caminetti V. United States, 242 U.S. 470 (1917)  . . . . 27
Chapman V. United States, 500 U.S. 453 (1991) . . . . 37
Consumer Product Safety Comm'n V. GTE Syl-
  vania, Inc., 447 U.S. 102 (1990)  . . . . 27
District of Columbia V. Greater Washington Board
  of Trade, 113 S. Ct. 580 (1992)  . . . . 21
Esfeld Trucking, Inc. v. Metropolitan Ins. Co., 392
  P.2d 107 (Kan. 1964)  . . . . 13
Fleshman's Estate, In re, 5 P.2d 727 (Idaho 1931 ) . . . . 12
Foote Mineral Co. V. Maryland Casualty Co., 173
  F. Supp. 925 (E.D. Tenn. 1959), aff'd, 277 F.2d
  452 (6th Cir.), cert. denied, 364 U.S. 818
  (1960)  . . . . 12-13
General Agric. Corp. V. Moore, 534 P.2d 859 (Mont.
  1975)  . . . . 13
Gozlon-Peretz V. United States, 498 U.S. 395
  (1991)  . . . . 37 
Hallstrom V. Tillamook County, 493 U.S. 20
  (1989)  . . . . 27

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V

Cases-Continued:              

Page

Harrison V. PPG Industries, Inc., 446 U.S. 578
  (1980) . . . .  32
Jackson V. Virginia, 443 U.S. 307 (1979) . . . .  38
Keene Corp. V. United States 113 S. Ct. 2035
  (1993) . . . .  32
Lorillard V. Pens, 434 U.S. 575 (1978) . . . .  32
McLaughlin V. United States, 476 U.S. 16 (1986 ) . . . . 23
Moskal V. United States, 498 U.S. 103 (1990 ) . . . .  37
New York State Conference of Blue Cross & Blue
  Shield Plans V. Travelers Ins. Co., 115 S. Ct.
  1671 (1995) . . . .  21, 22
Perrin V. United States, 444 U.S. 37 . . . .  11
Pittston Coal Group V. Stebben, 488 U.S. 105
  (1988) . . . .  32
Platt V. Union Pac. R.R., 99 U.S. 48 (1879) . . . .  24
Reno V. Koray, 115 S. Ct. 2021 (1995) . . . .  33
Simpson V. United States, 435 U.S. 6 (1978)  . . . . 22, 27
Smith V. United States. 113 S. Ct. 2050 (1993)  . . . . passim
Standefer v. United States, 447 U.S. 10' (1980 ) . . . . 32 
State V. Doughs, 16 N.W.2d 489 (S.D. 1944)  . . . . 13
State V. Place, 582 A.2d 616 (N.H. 1990)  . . . . 13
Tot V. United States, 319 U.S. 463 (1943)  . . . . 38
United States V. Baker, 30 F.3d 1278 (lOth Cir.),
cert. denied, 115 S. Ct. 273 (1994)  . . . . 39
United States v. Bass, 404 U.S. 336 (1971)  . . . . 37 
United States V. Brockington, 849 F.2d 872 (4th
Cir. 1988)  . . . . 40
United States V. Coburn, 876 F.2d 372 (5th Cir.
1989)  . . . . 43
United States v. Feliz-Cordero, 859 F.2d 250 (2d
Cir. 1988)  . . . . 18 
United States v. Fermin, 32 F.3d 674 (2d Cir.
1994), cert. denied, 115 S. Ct. 1145 (1995)  . . . . 17 
United States V. Gahagan, 865 F.2d 1490 (6th
Cir.), cert. denied, 492 U.S. 918 (1989)  . . . . 40
United States V. Goiter, 880 F.2d 91 (8th Cir.
1989) . . . .  40
United States V. Grant. 545 F.2d 1309 (2d Cir.
1976), cert. denied, 429 U.S. 1103 (1977)  . . . . 32-33, 40

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VI

Cases-Continued:              

Page

United States v. Hadfield, 918 F.2d 987 (1st Cir.
  1990), cert. denied, 500 U.S. 836 (1991) . . . .  17
United States V. Hill, 967 F.2d 902 (3d Cir. 1992) . . . . 43
United States v. LaGuardia, 774 F.2d 317 (8th
  Cir. 1988) . . . . 32
United States V. Long, 905 F.2d 1572 (D.C. Cir.),
  cert. denied, 498 U.S. 948 (1990)  . . . .  15, 39
United States v. Mason, 658 F-2d 1263 (9th Cir.
  1981)  . . . .   16, 32
United States Y. Mathews, 942 F.2d 779, (lOth Cir.
  1991 )  . . . .  39  
United States V. Matra, 841 F.2d 837 (8th Cir.
  1988) . . . . 17 
United States V. McFadden, 13 F.3d 463 (1st Cir.
  1994) . . . .  18
United States  v. McKinnell 888 F.2d 669 (lOth
  Cir. 1989)  . . . .  17
United States V. Moore, 580 F.2d 360 (9th Cir.
  1978), cert. denied, 439 U.S. 970 (1979)  . . . . 33 
United States v. Moore, 919 F.2d 1471 (lOth Cir.
  1990), cert. denied, 501 U.S. 1211 (1991)  . . . . 43
United States V. Nieves-Burgos, No. 94-1370 (lst
  Cir. July 13, 1995) . . . . 39 
United States v. One Assortment of Seven Fire-
  arms, 632" F.2d 1276 (5th Cir. 1980)  . . . . 26 
United States V. Pace, 10 F.3d 1106 (5th Cir.
  1993), cert. denied, 114 S. Ct. 2180 (1994)  . . . . 17  
United States- V. Paz, 927 F.2d 176 (4th Cir.
  1991)  . . . . 17, 39
United States V. Phelps, 895 F.2d 1281 (9th Cir.
  1990) . . . .  31
United States v. Poole, 878 F.2d 1389 (llth Cir.
  1989) . . . . 17, 39
United States V. Price, 361 U.S. 304 (1960)  . . . . 34
United States V. Ron Pair Enterprises, Inc., 489
  U.S. 235 (1989) . . . .  27
  United States V. Rutherford, 54 F.3d 370 (7th
  Cir. 1995)  . . . .  12
  United States V. Stewart, 779 F.2d 538 (9th Cir.
  1985)  . . . .  16, 22

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 VII

Cases-continued:              

Page

United States V. Theodoropoulos, 866 F.2d 587 (3d
  Cir. 1989)  . . . . l7, 41, 42
United States V. Torres-Maldonado, 14 F.3d 95 (lst
  Cir.), cert. denied, 115 S. Ct. 193 (1994) . . . .  39
United States V. Torres-Rodriguez, 930 F.2d 1375
  (9th Cir. 1991) . . . . 16
United States V. Vasquez, 909 F.2d 235 (7th Cir.
  1990), cert. denied, 501 U.S. 1217 (1991) . . . .  17
United States V. Wiener, 534 F.2d 15 (2d Cir.),
  cert. denied, 429 U.S. 820 (1976) . . . .  40
United Mutes V. Wilson, 27 F.3d 1126 (6th Cir.),
  cert. denied, 115 S. Ct. 452 (1994) . . . . 17, 39
United States V. Woods, 995 F.2d 713 (7th Cir.
  1993) . . . .  39
United States v. York, 830 F.2d 885 (8th Cir.
  1987), cert. denied, 484 U.S. 1074 (1988) . . . .  43
United States V. Young-Bey, 893 F.2d 178 (8th
  Cir. 1990) . . . .  39
United States Department of Treasury V. Fabe,
  113 s. ct. 2202 (1993) . . . .  23
Whitaker V. Regents of the Univ. of Calif., 178
  P. 308 (Cal. Ct. App. 1918) . . . . 13
Woodrich Construction Co. V. Indemnity Ins. Co.,
  89 N.W.2d 412 (Minn. 1958) . . . .  13

Statutes:

Anti-Drug Abuse Act of 1988, Pub. L. No, 100-690,
   6212, 102 Stat. 4360 . . . .  35
Comprehensive Crime Control Act of 1984, Pub.
  L. No. 98-473<  1005 (a), 98 Stat. 2138-2139 . . . .  24, 29
Firearms Owners' Protection Act, Pub. L. No. 99-
  308, 104, 100 Stat. 457 . . . .  33-34
Gun Control Act of 1968, Pub. L. No. 90-618, sec.
  102,  924(c), 82 Stat. 1224 . . . .  24
18 U.S.C. 111 (b) . . . .  22
18 U.S.C. 841 (a) (1) . . . .  4
18 U.S.C. 922(a) (1) . . . .  25
18 U.S.C. 922 (a) (3)  . . . . 26
18 U.S.C. 922 (a) (5)  . . . . 26
18 U.S.C. 922(g)  . . . . 2

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VIII

Statutes-Continued:             

Page

18 U.S.C. 924 (C)  . . . . passim
18 U.S.C. 924 (c) (1)  . . . . passim
18 U.S.C. 924 (c) (2)  . . . . 20
18 U.S.C. 924 (d) . . . . 25, 26
18 U.S.C. 924 (d) (1)  . . . . 25
18 U.S.C. 924 (d) (3) (C)  . . . . 25
18 U.S.C. 1512 (a)  . . . . 20
18 U.S.C. 2113 (a) . . . . 31
18 U.S.C. 2113 (d) . . . . 22, 23, 24, 31
21 U.S.C. 841 (a) (1)   . . . . 2, 42
21 U.S.C. 856 (a)  . . . . 23
21 U.S.C. 860 (a) . . . . 2

Miscellaneous:

Black's Law Dictionary (6th ed. 1990). . . .12      
A. Blumstein, Youth Violence, Guns, and the
  Illicit-Drug Industry, H. John Heinz III School
  of Public Policy and Management, Carnegie
  Mellon Univ. Working Paper Series (1994)  . . . . 40 
114 Cong. Rec. (1968):
   p. 22,229  . . . . 29     
   pp. 22,229-22,230 . . . . 28
   p. 22,231  . . . . 27
   p, 22,234   . . . . 29
   p. 22,235 . . . . 29
   p. 32,965 . . . . 43         
H.R. Rep. No. 495, 99th Cong., 2d Sess. (1986)  . . . . 34 
S. Rep. No. 225, 98th Cong., 1st Sess. (1983) . . . . 22, 23, 29,
                    30,31
Sheley, Drug Activity and Firearms Possession
and Use By Juveniles, 24 Journal of Drug issues
363 (1994)  . . . .  40
19 The Oxford English Dictionary (2d ed. 1989) . . . . 12
The Random House Dictionary of the English Lan-
guage (2d ed. unabridged 1987)  . . . . 12
Webster's Third New International Dictionary,
Unabridged (1986) . . . . 12

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In the Supreme  Court of the United States

      OCTOBER TERM, 1995

        No. 94-7448

     RONALD J. BAILEY, PETITIONER

          v.

      UNITED STATES OF AMERICA

         No. 94-7492

    CANDISHA S. ROBINSON, PETITIONER

            v.

      UNITED STATES OF AMERICA

    ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
   FOR THE DISTRICT OF COLUMBIA CIRCUIT

   BRIEF FOR THE UNITED STATES

      OPINIONS BELOW

The opinion of the en bane court of appeals (J.A. 78-
119) is reported at 36 F.3d 106. The opinion of the
panel in 94-7448 (J.A. 17-32) is reported at 995 F.2d
1113. The opinion of the panel in 94-7492 (J.A. 47-
77) is reported at 997 F.2d 884. The opinion of the
district court in 94-7492 (J.A. 38-46) is reported at 779
F. Supp. 606.

         (1)

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2

       JURISDICTION

The judgment of the en bane court of appeals was
entered on October 4, 1994. The petition for a writ of
certiorari in No. 94-7448 was filed on December 28,
1994. The petition for a writ of certiorari in No. 94-
7492 was filed on December 29, 1994. The petitions for
certiorari were granted and the cases were consolidated
on April 17, 1995. J.A. 34, 120. The jurisdiction of
this Court rests upon 28 U.S.C. 1254( 1).

   STATUTORY PROVISION INVOLVED

18 U.S.C. 924(c)(1) is reprinted in pertinent part in
an appendix to this brief.

        STATEMENT

Following a jury trial in the United States District
Court for the District of Columbia, petitioner Bailey was
convicted of possession of cocaine with intent to distrib-
ute it, in violation of 21 U.S.C. 841 (a) ( 1 ); possession
of a firearm by a convicted felon, in violation of 18
U.S.C. 922(g); and using or carrying a firearm during
and in relation to a chug trafficking offense, in violation
of 18 U.S.C. 924(c)(1). He was sentenced to 51
months' imprisonment on the cocaine possession charge,
a concurrent 5 l-month prison term on the felon in pos-
session charge, and a consecutive 60-month prison term
on the using or carrying a firearm charge. J.A. 19.
Following a jury trial in the United States District
Court for the District of Columbia, petitioner Robinson
was convicted of distribution of cocaine base, in viola-
tion of 21 U.S.C. 841(a)(1); possession of cocaine with
intent to distribute it, in violation of the same statute;
commission of narcotics offenses within 1000 feet of a
school, in violation of 21 U.S.C. 860(a); maintenance of
a building for the purpose of manufacturing, storing, dis-
tributing, or using cocaine base, in violation of 21 U.S.C.

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3

856(a); and using or carrying a firearm during and in
relation to a drug trafficking offense, in violation of 18
U.S.C. 924(c)(1). She was sentenced to concurrent 97-
month terms of imprisonment on the narcotics counts
and a consecutive 60-month prison term on the using or
carrying a firearm count. J.A. 38, 82.
1. a. In May 1988, petitioner Bailey was stopped by
two District of Columbia Metropolitan Police Officers
when they noticed that he was driving a car that lacked
a license plate and inspection stickers. When Bailey, who
failed to produce a driver's license, complied with the
officers' instructions to get out of his car, they observed
him attempt to conceal an item between the seat and
front console. When one of the officers moved the
driver's seat back, a white plastic packet of cocaine and
a brown leather pouch fell from between the seat and
console to the floor of the car. The pouch contained
26 additional packets of cocaine. The officers also dis-
covered a single round of live .380 caliber ammunition
on the console of the car. J.A. 3-4, 18; Bailey Feb. 27
Tr. 59-65. Approximately $700 was recovered from peti-
tioner Bailey's person. Feb. 27 Tr. 97-98. It turned out
that the car belonged to Bailey, who had purchased it
about two weeks earlier. Feb. 28 Tr. 7-11.
After arresting Bailey, the officers searched the trunk
of the car. Among several bags of clothing, they dis-
covered a loaded nine millimeter Smith and Wesson pistol
and about $2,500 in currency concealed in a vest jacket.
J.A. 5-7, 18; Bailey Feb. 27 Tr. 92-96, 97, 135.
b. At trial, an experienced narcotics detective testi-
fied that the cocaine found in Bailey's car was packaged
for sale in $50 bags. He also testified that drug dealers
frequently "use the[ir] weapons not only to protect them-
selves, but [also] to protect their assets, drugs and money"
from "stickup men," who "know `[the dealers] have two
things-drugs and money." J.A. 10. Finally, he ex-
plained that "weapons are used for enforcement purposes.
They are also used to protect [a drug dealer's] turf. Drug

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4

dealers get very territorial. They like to protect the areas
they deal from. They will use the weapon to protect
their areas." J.A. 10. See also Bailey Feb. 27 Tr. 157,
160.
 Bailey was convicted, inter alia, of possession of
cocaine with intent to distribute it, in violation of 18
U.S.C. 841(a)(l), and using or carrying a firearm dur-
ing and in relation to a drug trafficking offense, in viola-
tion of 18 U.S.C. 924(c) (l).

c. A divided panel of the court of appeals affirmed,
rejecting Bailey's claim that the evidence was insufficient
to support his conviction under Section 924(c)(1). The
court held that Bailey could be convicted for "us[ing]
a firearm `during and in relation to [a] * * * drug
trafficking crime ` " if the jury could reasonably infer that
"the gun facilitated [Bailey's] commission of a drug
trafficking offense." J.A. 21. The court explained that
"[t]he trier of fact could reasonably infer that the money
[in the trunk] was the proceeds of several already-
completed drug transactions," J.A. 23, and that the gun
in the trunk "had the purpose of protecting the cash in
the trunk, and only slightly less obviously, had the pur-
pose of protecting the drugs and money on Bailey's per-
son," J.A. 27.
Judge Ginsburg dissented. J.A. 29-32. He stated that,
if prior circuit precedent were not binding, he would
"gladly join the majority in upholding the  924(c) con-
viction." J.A. 32. But in his view, prior circuit precedent
required reversal of Bailey's conviction. J.A. 30, 32.
2. a. On July 15, 1991, undercover officer Larry I-Isle
of the District of Columbia Metropolitan Police Depart-
ment approached petitioner Robinson's sister, Veloria,
and said that he wished to purchase a quantity of crack
cocaine. Veloria took the officer to a Northeast Wash-
ington apartment and knocked at the door. Petitioner
Robinson responded to the knock and asked the under-
cover officer what he wanted. Officer Hale said he
wanted a "20." He then observed Robinson retrieve a

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5

rock of crack cocaine from the apartment's bedroom,
which she sold him for $20 in marked money. J.A. 48;
1 Robinson Tr. 7.
The following evening, Officer Hale returned to peti-
tioner Robinson's apartment and purchased cocaine from
Kwarme Parker, who said that he lived in the apartment
with her. J.A. 48-49; 1 Robinson Tr. 8-10. A half hour
later, the police executed a search warrant at the apart-
ment. Inside a locked trunk in a bedroom closet, the
police found a .22 caliber pistol and holster, a tax return
signed by Robinson, a letter from Robinson's employer,
two plastic baggies containing cocaine, the $20 in marked
money that the officer had given Robinson on the previ-
ous day, and $42.80 in other cash. Other documents in
other parts of the bedroom, including a lease, confirmed
that Robinson lived in the apartment. J.A. 49; 1
Robinson Tr. 35-39, 44.
b. At Robinson's trial, a narcotics detective testified
that the cocaine in the locked trunk had a street value
of $700 to $800 in its present form, or a $1,400 value
if divided into $20 pieces. He explained that cocaine
dealers use firearms to protect their enterprise from
"stickup boys" who might attempt to rob them following
a sale. In addition, they arm themselves to protect their
turf from other drug gangs, lower level employees bent
upon taking over a drug trafficking operation, or the
police, should they try to close down the operation. The
detective also testified that the .22 Derringer pistol found
in petitioner Robinson's trunk was commonly known as
a "second gun" that a drug dealer would hide on his
person for use until he could reach his "real" gun, which
would likely have greater firepower. J.A. 48, 81; 1
Robinson Tr. 77-79.
Testifying in her own behalf, Robinson acknowledged
that she had leased the apartment and owned the trunk
in which the narcotics and pistol were found. Although
she also admitted that she knew that Parker was selling
drugs, she disclaimed knowledge of the drugs or the pistol

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6

found in her footlocker. J.A. 50. She also denied that
she had been present in the apartment on the evening of
July 15, when the first drug sale had taken place. 2
Robinson Tr. 129-130.
The district court denied Robinson's motion for a judg-
ment of acquittal on the "uses or carries" count, ruling
that the evidence was sufficient to establish a violation of
Section 924(c)(1). J.A. 46. The court reasoned that
the fact that Robinson's apartment "was a base for the
distribution of crack cocaine permits the inference that
the gun was used to facilitate the possession with intent
to distribute." J.A. 45. In the district court's view, be-
cause "the jury could legitimately infer that [Robinson]
had access to the gun in the trunk, and could use the
gun to protect the stash of drugs and the proceeds of
drug sales should the need arise," it did not matter that
the trunk was kept locked. J.A. 45-46. The jury con-
victed Robinson of violating Section 924(c)(1). J.A.
82.
 c. A divided panel of the court of appeals reversed
Robinson's conviction on the Section 924(c) count.
J.A. 47-61. The court determined that Robinson's "pos-
session of this single, unloaded .22-caliber derringer
found in a locked trunk in a bedroom closet falls signifi-
cantly short of the type of evidence we have held to es-
tablish actual use under the statute." J.A. 55-56. In the
court's view, "mere proximity of a gun to drugs is not
* * * sufficient to support a conviction under section
924(c) in this circuit." J.A. 59-60.
Judge Henderson dissented. J.A. 61. In her view, the
firearm facilitated Robinson's distribution of narcotics be-
cause it protected both her and the drugs during sale
transactions. J.A. 70-71. In any event, she believed that
the jury could reasonably find that the gun concealed in
the apartment was used during and in relation to the
ongoing offense of maintaining premises for the distribu-
tion of drugs. J.A. 72-74.

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7

3. a. On rehearing en bane, the court of appeals af-
firmed the Section 924 (c) convictions in both cases. J.A.
78-119. The majority rejected the multi-factor weighing
approach previously employed by the circuit for deter-
mining the sufficiency of the evidence to support a
Section 924(c)( 1 ) conviction. The court noted that the
prior approach improperly "invite[d]" the reviewing court
to become "a second jury weighing the evidence anew and
deciding whether or not we would vote to convict the
defendant." J.A. 87. It also "produced widely divergent
and seemingly contradictory results," J.A. 88, because it
did not "yield[] determinate results in any but the easiest
of cases," J.A. 89. Finally, the court stated that its prior
approach conflicted with the approach followed by the
other regional courts of appeals, which "have each adopted
a definition of `use' that is considerably broader than
firing, displaying, or otherwise brandishing the firearm,"
J.A. 89-90, and each of which "focuses, in essence, upon
whether the firearm was accessible and proximate to the
defendant during the commission of the drug offense,"
J.A. 90.
In reformulating the test for sufficiency, the court stated
that Section 924 (c) ( 1 ) requires two showings: that the
defendant "use[d]" the firearm and that the use was
"during and in relation to a drug trafficking crime." The
court rejected the view that "use" includes only "the
paradigmatic uses of a gun, i.e., firing, brandishing, or
displaying the gun during the commission of the predicate
offense. " J.A. 93. The court held that "one uses a
gun, i.e., avails oneself of a gun, whenever * * * one
puts or keeps the gun in a particular place from which
one (or one's agent ) can gain access to it if and when
needed to facilitate a drug crime." J.A. 95. Since "pos-
session with the intent to distribute is a continuing of-
fense," the court held that "the government need only
prove that the defendant put or kept the gun in that
place at some point while the defendant illegally pos-
sessed the drugs." J.A. 95.

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8

Second, the court clarified the requirement that the use
of the gun had to be "in relation to a drug trafficking
crime." The court found that this element is satisfied
if the defendant "use[s] a gun to protect one's drugs, drug
paraphernalia, or the proceeds of one's drug sales." J.A.
96.' Therefore, the court held, "positioning a firearm in
such a way that it protects or is otherwise integrated into
one's drug trafficking is not just a use of that gun, but is
a use of that gun in relation to a drug trafficking offense."
J.A. 98. The court concluded that there is sufficient
evidence for a jury to find that the defendant has so
positioned the firearm if "at some time during the com-
mission of the predicate drug offense," the defendant "put
or kept a firearm in a place where it would be proximate
to and accessible from a place that is clearly connected
to his drug trafficking (e.g., a place used to store, manu-
facture, or distribute drugs, or to keep the proceeds of
drug transactions)." J.A. 98. In such cases, the court
concluded, the "jury may infer that the gun was being
used to protect the drug trafficking operation, and was
therefore being used in violation of 924(c)(l)." J.A. 98.
Applying that standard, the court determined that in
each case, the gun was sufficiently proximate to the drugs
or narcotics proceeds and was accessible when the drugs
or proceeds were being handled. The court held that the
jury could therefore properly infer in each case that the
defendant had placed the gun in that location in order to
further the drug offenses or to protect the possession of
the drugs, and that the gun had therefore been used "in
relation to" a drug trafficking offense. J.A. 100-101.
b. Judge Wald tiled a dissenting opinion. In her view,
the court's previous multifactor test-requiring consider-
ation of "the type of weapon involved, whether it was
loaded, the presence of expert testimony to support the
                        
___________________(footnotes)

1 Apparently due to a printer's error, the Joint Appendix omits
the words "drug paraphernalia, or the proceeds of one's" from
the above quotation. See 36 F.3d at 115.

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9

government's theory of `use,' the proximity of the gun to
the drugs, and the accessibility of the gun to the defend-
ant," J. A. 102-provided a satisfactory standard for appel-
late review of Section 924(c)(1) convictions. J.A. 102-
103. She stated that "[w]here evidence of ready access
to a gun by the defendant guarding or distributing the
drugs exists," the jury can infer "that such access is an
intrinsic part of the criminal drug trafficking act." J.A.
105. But, under her view, the evidence would be insuffi-
cient to sustain a conviction for using a firearm where
the defendant himself, at the time of his arrest, lacks
ready access to the firearm. J.A. 106. Judge Wald con-
cluded that there was sufficient evidence to sustain
Bailey's conviction because his gun was accessible to
him at the time he was arrested but insufficient evidence
to sustain Robinson's conviction because "there was proof
only of drugs and an unloaded gun in a locked trunk in
a bedroom closet." lbid.
Judge Williams, joined by Judges Silberman and Buck-
ley, also dissented. Judge Williams disagreed with the
position-which he conceded had been adopted by "all
of the regional courts of appeals-that a defendant can
be convicted of violating Section 924(c)(1) "without
evidence of the defendant's firing, brandishing, displaying
or actively using the firearm in any way." J.A. 107. In
his view, the term "uses" connotes "actual service from
the weapon in completing an unlawfuI act," such as by
firing it, intimidating opponents, displaying or brandishing
it, or using it as an item of exchange. J.A. 110. Under
that view, the term "uses" does not embrace the defend-
ant's conduct in placing the gun near the drugs or pro-
ceeds to embolden the defendant or to protect his criminal
activity, because that is not "active employment" of the
gun. J.A. 116. Applying his view of the statute, Judge
Williams would have reversed the convictions of both
Bailey and Robinson. J.A. 119. Judge Silberman filed a
brief separate dissent. J.A. 119.

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10

     SUMMARY OF ARGUMENT

Section 924 (c) (1) is violated when a defendant "uses"
a firearm "during and in relation to any * * * drug
trafficking crime." Under the ordinary meaning of the
term "use," which governs the construction of Section
924 (c), a person "uses" an object when he avails himself
of it or employs it to facilitate a goal he has in mind.
Thus, a defendant who places a gun and drugs or pro-
ceeds in proximity to each other, to protect the drugs or
drug proceeds and to embolden himself to commit a drug
crime, has "used" the gun "during and in relation to" a
drug trafficking offense. That construction of Section
924(c) ( 1 ) follows directly from the statute's plain lan-
guage; it is the only construction that is consistent with
this Court's reasoning in Smith V. United States, 113 S. Ct.
2050 (1993 ); and it has been accepted by every regional
court of appeals.
Petitioners propose to limit the scope of the statutory
term "use" to proscribe only what they call "active" uses
of a weapon. Neither the statutory language, legislative
history, nor past judicial construction, however, support
any such limitation on the unqualified text of Section 924
(c) ( 1). Congress did not say "active" use, and there is
no basis for engrafting that limitation into the statute.
In any event, the proposed addition of the adjective
"active" to the term "use" does not assist petitioners: they
certainly engaged in an "active" use when they strategi-
cally placed firearms near drugs and the proceeds of drug
transactions to facilitate their drug dealing operations.
Since the placement of a weapon in such a way as to
protect drugs and drug proceeds is a "use" of the weapon
"in relation to" a drug trafficking crime, a conviction
under Section 924 (c) ( 1 ) must be sustained if a reason-
able jury could find that the defendant engaged in that
conduct. The court of appeals correctly held that a jury
may reasonably draw that inference when the evidence

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11

shows that the weapon was found proximate to the drugs
or proceeds and accessible to the defendant when he was
dealing with the drugs or proceeds. Of course, the jury
need not draw that inference. But where evidence of
proximity and accessibility exists, it is sufficient to sup-
port the inference, and the role of the reviewing court is
at an end, Because the evidence in this case meets that
standard, the Section 924 (c) ( 1 ) convictions should be
affirmed.      

ARGUMENT

I. THE USE OF A FIREARM DURING AND IN RELA-
  TION TO A DRUG TRAFFICKING OFFENSE
  INCLUDES ITS EMPLOYMENT FOR PROTECTION
  OR SECURITY

  A. The Language And Structure Of 18 U.S.C. 924(c)
   Embrace The Use Of A Firearm For The purpose
   Of Safeguarding Or Otherwise Facilitating A Drug
   Trafficking Venture

Section 924(c)(1) provides that it is an offense to
"use[]" a firearm "during and in relation to any * * *
drug trafficking crime." Petitioners acknowledge that
"firing, discharging, aiming, pointing, bludgeoning, trad-
ing, threatening with or brandishing, or displaying" a gun
are all "uses" that the statute prohibits. Pet. Br. 11.
But "use[]" in Section 924(c) is not confined to those
actions; it is not a term of art that denotes a limited
number of ways to employ a firearm to facilitate or ad-
vance a drug transaction. Rather, it is a general term, not
defined in the statute, that must be given the full sweep
of its "ordinary or natural meaning." Smith v. United
States, 113 S. Ct. 2050, 2054 ( 1993) ("use[]" in Section
924 (c) ( 1 ) includes use for barter as well as the more
conventional use of a firearm, i.e., as a weapon); see
Perrin V. United States, 444 U.S. 37, 42 (1979)3

___________________(footnotes)

2 The majority's holding in the court of appeals addresses the
"uses' rather than the "carries" prong of Section 924(c) (1), and

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12

The natural meaning of the term "use" includes a broad
range of functions, including employment of a weapon
for protection or security in the event it is needed. Every
authoritative standard dictionary recognizes the breadth
of the term "use." For example, in construing the same
statute in Smith v. United States, this Court observed that
"Webster's defines `to use' as '[t]o convert to one's service'
or `to employ.'" 113 S. Ct. at 2054. A later edition of
the same dictionary cited in Smith defines the verb "use"
also to mean "to carry out a purpose or action by means
of: make instrumental to an end or process: apply to
advantage: turn to account." Webster's Third New In-
ternational Dictionary, Unabridged 2524 (1986). Ran-
dom House defines the term to mean "to employ for some
purpose; put into service; make use of; to avail oneself
of; apply to one's own purposes." The Random House
Dictionary of the English Language 2097 (2d ed. un-
abridged 1987 ). See also United States v. Rutherford,
54 F.3d 370, 372 (7th Cir. 1995) ("use is defined as
`[t]he act of employing a thing for any (esp. a profitable)
purpose' "; quoting 19 The Oxford English Dictionary
350 (2d ed. 1989)). And, as the Court pointed out in
Smith, see 113 S. Ct. at 2054, Black's Law Dictionary
similarly defines "use" as "to make use of; to convert to
one's service; to employ; to avail oneself of; to utilize;
to carry out a purpose or action by means of." Black's
Law Dictionary 1541 (6th ed. 1990).
All of those definitions share the idea of employing an
object to serve a particular function or purpose.3 A

___________________(footnotes)
                        
the questions presented in the petitions for certiorari challenge
that holding. We therefore confine our discussion to that issue.
3 In a variety of circumstances, courts have long recognized that
the "common meaning" of use is to "employ for the accomplish-
ment of a purpose," In re Fleshman's Estate, 5 P.2d 727, 728 (Idaho
1931), or "to employ for any purpose:' Atlantic Nat'l Bank  V.
St. Louis Union Trust Co., 211 S.W.2d 2, 6 (Me. 1948). See, e.g.,
Foote Mineral Co. v. Maryland Casualty Co., 173 F. Supp. 925, 929

---------------------------------------- Page Break ----------------------------------------
 
13

defendant who avails himself of a gun to provide security
for possession or distribution of drugs satisfies each of
those definitions. As the court of appeals recognized, one
important and long recognized use of a gun is to provide
protection and security to the user. For example, "a gun
placed in a drawer beside one's bed for fear of an in-
truder would, in common parlance, be a gun `used' for
domestic protection." J.A. 93-94. The fact that no in-
truder in fact appeared-or, to make the analogy to this
case more precise, the fact that no intruder has been shown
to have appeared does not retroactively alter the fact
that the individual has made use of the gun. Placing the
gun in the drawer may provide the user with protection
and security, and it may permit the user to sleep more
soundly than otherwise, regardless of whether the user
has any further need to handle, aim, or discharge the
weapon.
In much the same way, a defendant may place a fire-
arm near his drugs or drug proceeds, where it is acces-
sible to him when he is handling the drugs or proceeds,

___________________(footnotes)

(E.D. Term. 1959) ("[a]ct of employing anything"), aff'd, 277
F.2d 452 (6th Cir.), cert. denied 364 U.S. 818 (1960) ; Alexander
v. Alexander, 661 S.W.2d 59, 65 (Ark. 1978) (to "enjoy, hold,
occupy, or have in some manner the benefit of") ; Whitaker v.
Regents of the Univ. of Calif., 178 P. 308, 310 (Cal. Ct. App. 1918)
("to avail one's self of") ; Esfeld Tracking, Inc. V. Metropolitan
Ins. CO., 392 P.2d 107, 110 (Kan. 1964) ("as a verb, [use] has a
well-understood * * * legal significance, having been variously de-
fined as * * * to avail one's self of, * * * hold, occupy, enjoy, or take
the benefit of") ; Woodrich Construction Co. v. Indemnity Ins. Co.,
89 N.W.2d 412, 418 (Minn. 1958) ("to avail one's self of") ; General
Agric. Corp. V. Moore, 534 P.2d 859, 863 (Mont. 1975) (refusing
to limit constitutional provision regarding "existing right to use"
surplus waters to "perfected or actual `rise' ") ; State v. Place, 582
A.2d 616, 618 (N.H. 1990) ("use" of lights includes defendant's
"avail[in] himself of their benefit") ; Beach v. Livingston, 149
S.E.2d 328, 330 (S.C. 1966) ("to employ for any purpose, to employ
for attainment of some purpose or end, * * * to put to one's use or
benefit") ; State v. Douglas, 16 N.W.2d 489, 494 (S.D. 1944) ("to
avail one's self of, to employ, to put to a purpose").

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14

in order to protect them and to embolden himself to
commit a drug trafficking offense. That action constitutes
a "use" of the firearm in the ordinary sense. The de-
fendant may have no need to use the firearm further to
threaten or shoot at policemen, rival dealers, or dis-
satisfied customers. That, however, does not imply that
the gun is not being "use[d]" to provide security for his
commission of a drug trafficking offense.  Section
924 (c) (1) prohibits a variety of different uses, and
only one use is required to support the statute's application.

  B. This Court's Decision In Smith v. United States
   Also Refutes Petitioners' Narrow Theory Of The
   Meaning Of "Use"

This Court's decision in Smith v. United States, 113
S. Ct. 2050 (1993), makes clear that, contrary to peti-
tioners' contention, the term "use" in Section 924(c)(1)
should be given its full and ordinary meaning. The issue
in Smith was whether a defendant who exchanged a gun
for narcotics had "used" the gun under Section 924(c) (1).
The Court explained that "Section 924 (c) ( 1 )'s language
sweeps broadly, punishing any "us[e] of a firearm, so
long as the use is `during and in relation to' a drug
trafficking offense." 113 S. Ct. at 2054. Accordingly,
the Court "decline[d] to introduce [the] additional re-,
quirement" concerning the term "use" that the defendant
urged, and held that the use of a gun in exchange for
drugs violated the statute. Ibid.
The teaching of Smith is that the term "use" in Section
924(c) is a general term, and that it is not limited to
a few, paradigmatic uses of a firearm, such as discharg-
ing, pointing, or brandishing. Instead, the term encom-
passes all instances in which a firearm is employed to
facilitate a covered drug trafficking offense. In light of
that principle, it follows a fortiori that when a defendant
places a gun near drugs or proceeds to provide security

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15

for the commission of a drug trafficking crime, he has
"used" the gun within the meaning of the statute. Indeed,
the Court in Smith reinforced that point in two ways of
particular relevance here.
First, the Court in Smith recognized that it was not
writing on a clean slate, and that the term "use" had
long received a broad judicial construction. Thus, the
Court cited Astor v. Merritt, 111 U.S. 202 ( 1884), for
the proposition that "use" means " `to employ' or `to de-
rive service from.'" See Smith, 113 S. Ct. at 2054. Astor
itself involved a customs statute exempting from duty
"wearing apparel in actual use," and this Court held that
"unworn wearing apparel, purchased [by an individual
for his use or that of his family] for an approaching
season," was "in actual use." 111 U.S. at 203. The fact
that the apparel had not actually been worn was not dis-
positive. As the Court in Astor explained:
  [a] article of wearing apparel * * * [that is] placed
in with, and as a part of, what is called a person's
wardrobe, is, in common parlance, in use, in actual
use, in present use, in real use, as well before it is
worn as while it is being worn or afterwards.

Id. at 214. The same principle applies to firearms "placed
in with, and as a part of" a defendant's drugs or proceeds.
Second, the Court in Smith explained that 924
(c) (1 )'s language sweeps broadly" and it cited with
approval (see 113 S. Ct. at 2054) the opinion of the
D.C. Circuit in United States V. Long, 905 F.2d 1572
(Thomas, J.), cert. denied, 498 U.S. 948 ( 1990). The
D.C. Circuit in that case observed that "the word `use'
is expansive," id. at 1577, and that "a defendant can
`use' a firearm without actively employing it," id. at
1576. That position squarely rejects petitioners' theory
that the term "use" in the statute refers only to a subset
of what would ordinarily be considered uses, and it
directly contradicts petitioners' contention that "[u]se

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16

under Section 924(c) means the active employment of a
firearm." Pet. Br. 11 (emphasis added).

  C. The Regional Courts of Appeals Have Held That
   Employment Of A Firearm To Provide Security
   For A Drug Trafficking Offense Is A Use Prohibited
   By Section  924(c)

The experience of the regional courts of appeals con-
firms that, even if a firearm is concealed or out of the
drug dealer's reach, its strategic placement to protect a
drug operation and to embolden a defendant is a "use"
prohibited by Section 924(c)(1).4  A leading case is
United States v. Stewart, 779 F.2d 538, 540 (9th Cir.
1985) (Kennedy, J.). In that case, the Ninth Circuit
noted that "the evident purpose of the statute was to
impose more severe sanctions where firearms facilitated,
or had the potential of facilitating, the commission of a
felony." Id. at 540. The court explained:

If the firearm is within the possession or control of
a person who commits an underlying crime as de-
fined by the statute, and the circumstances of the case
show 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,
whether or not such display or discharge in fact
occurred, then there is a violation of the statute.

Ibid. Accord United States V. Torres-Rodriguez, 930
F.2d 1375, 1385 (9th Cir. 1991); United States v. Mason,
658 F.2d 1263, 1270-1271 (9th Cir. 1981) (Kennedy,
J.). As the First Circuit stated, "the question is whether

___________________(footnotes)

4 Even the principal dissenting opinion below recognized that
"all" of the courts of appeals affirm convictions under Section
924 (c) (1) without proof of what the dissenting judge termed
"actively using the firearm in any way." J.A. 107. The majority
agreed. See J.A. 90-92.

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17

placement of the weapon was designed to facilitate the
narcotics enterprise, by, say, protecting against untoward
contingencies or safeguarding the cache of drugs. * * *
Indeed, so long as one purpose in situating the weapon
nearby was to protect the narcotics enterprise, that need
not have been defendant's sole purpose." United States
v. Hadfield, 918 F.2d 987, 998 (lst Cir. 1990), cert.
denied, 500 U.S. 936 (1991).5

___________________(footnotes)

5 Accord United States V. Fermin, 32 F.3d 674, 678 (2d Cir.
1994) ("This Circuit will sustain a section 924(c) conviction if
the evidence shows that the defendant strategically placed a weapon
so as to enable ready access to it during a drug transaction."), cert.
denied, 115 S. Ct. 1145 (1995) ; United States V. Theodoropoulos,
866 F.2d 587, 596-597 (3d Cir. 1989) ("presence in plain view of a
loaded firearm * * * is evidence that the conspirators' may have felt
some need for security from which a jury could infer that the
weapon was an integral part of the conspiracy and was `used'
therein") ; United States V. Paz, 927 F.2d 176, 179 (4th Cir. 1991)
("it is enough if the firearm is present for protection and to facili-
tate the likelihood of success") ; United States v. Pace, 10 F.3d
1106, 1121 (5th Cir. 1993) (Section 924(c) requires proof that the
firearm "facilitated" the drug trafficking offense, and "the concepts
encompassed by the word `facilitate' include[ ] availability to pro-
vide protection"), cert. denied, 114 S. Ct. 2180 (1994) ; United
States V. Wilson, 27 F.3d 1126, 1132 (6th Cir.) (evidence sufficient
"if the possessor of a weapon intended to have it available for
possible use during or immediately following the transaction by
lending courage to the possessor"), cert. denied, 115 S. Ct. 462
(1994) ; United States V. Vasquez, 909 F.2d 236, 240 (7th Cir.
1990) ("The trier of fact could reasonably conclude that the avail-
ability of firearms instilled [the defendant,] with a heightened
sense of security while he possessed the drugs with the intent
to distribute them."), cert. denied, 501 U.S. 1217 (1991) ; United
States V. Matra, 841 F.2d 837, 842 (8th Cir. 1988) ("Just as
weapons are kept at the ready to protect military installations
against Potential enemy attack, so too may weapons be kept at the
ready to protect a drug house, thereby safeguarding and facilitat-
ing illegal transactions," ) ; United States V. McKinnell, 888 F.2d
669, 675 (l0th Cir. 1989) ("use" element satisfied if "the firearm
formed an integral part of [the defendant's] criminal undertaking
by providing a means of protecting his operation and intimidating
those encountered in the course of drug transactions") ; United

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18

Even when courts of appeals have found, in particular
cases, that the jury could not reasonably infer that a fire-
arm was used to protect a drug operation and to embolden
a defendant, they have expressed the understanding that
"use" includes placement of a weapon for the purpose
of protecting drugs or proceeds. For example, the Second
Circuit in United States V. Feliz-Cordero, 859 F.2d 250
(2d Cir. 1988), reversed a conviction of a defendant
whose gun was found in the bedroom dresser drawer of an
apartment that elsewhere contained drug paraphernalia.
The court nonetheless recognized that a firearm that
"was strategically located so as to be quickly and easily
available for use during [a drug] transaction" would "come
within the `uses' provision of section 924(c) ." 859 F.2d
at 254. Compare United States v. McFadden, 13 F.3d
463, 468 (1st Cir. 1994) (Breyer, J., dissenting) (dis-
cussing use of "the guns for protection of the drugs,
thereby `facilitating]' the drug crime").

II. PETITIONERS' THEORY OF "ACTIVE" USE IS
  INTERNALLY INCONSISTENT AND IS NOT SUP-
  PORTED BY THE STRUCTURE OF THE STATUTE
  OR ITS LEGISLATIVE HISTORY

  A. Section 924(c) Is Not Limited To "Active" Uses

Petitioners repeatedly argue that Section 924 (c) penal-
izes only those who "actively employ a firearm to carry
out the predicate offense." Pet. Br. 13 (emphasis added);
see also, e.g., id. at 11 ("active employment of a fire-
arm" ), 14 ("active employment"), 15 ("definitions sug-
gest action or activity, " "active employment"), 16 ("active
employment" ), 17 ("actively employed"), 19 ( "[a]ctive
employment"). They then argue that such employment

___________________(footnotes)

States v. Poole, 878 F.2d 1389, 1393 (llth Cir. 1989) ("use" ele-
ment satisfied because the jury could have concluded that guns
found near drugs "were used to protect the [drug traffickers] and
the cocaine: even where there was no evidence that the guns were
fired, brandished, or displayed).

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19

"includes firing, discharging, aiming, pointing, bludgeon-
ing, trading, threatening with or brandishing, or display-
ing," and that "[i]t may also include referring to the
gun." Pet. Br. 11. According to petitioners, "[u]se nor-
mally requires that the defendant handle the firearm or
be aware of use of the weapon by others involved in the
predicate offense." Pet. Br. 11.
The text of Section 924(c)(1) does not include the
term "active" or any of its variants. Nor is there any
basis for engrafting an "active" requirement onto the
clear and unqualified statutory text. Indeed, that is pre-
cisely the lesson of Smith, where the core of the defend-
ant's argument was that the term "uses" in the statute
must be understood to include the further requirement of
use "as a weapon." The Court in Smith, "decline[d] to
introduce that additional requirement." 113 S. Ct. at
2054.
In any event, even if the statute included an additional
requirement of "active" use, it would not assist peti-
tioners. Any principled application of that requirement
would include the conduct of a defendant who deliberately
and "actively" places a firearm proximate to drugs or
proceeds. There is nothing "passive" about a defendant's
positioning of a gun to make it available to provide
security for his drug trafficking crimes, or, for that matter,
moving drugs right next to a gun for the same purpose.
Both actions create the volatile mixture at which Section
924 (c) (1) is aimed: the use of firearms in connection
with drug trafficking, with the consequent enhanced risk
of violence.
Nor would the result change under petitioners' alterna-
tive requirement "that the defendant handle the firearm."
Once again, that requirement is not found in the statute
itself. Petitioners themselves state only that it is "nor-
mally" required, not that it is an essential element of the
offense. Pet. Br. 11. Moreover, petitioners also concede
that a defendant who "refer[s] to the gun" may violate

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20

the statute "if such action assists in the accomplishment
of the offense." Pet. Br. 11. A defendant convicted
on that basis may or may not have "handled" the gun.
Finally, even if handling the gun were required, a defend-
ant who is using a gun to provide security for his com-
mission of a drug trafficking offense will ordinarily have
handled the firearm when placing it proximate to the
drugs or drug proceeds.

In short, petitioners are left with a construction of the
statute that limits the prohibited uses to conduct that
involves discharging a gun, threatening someone with it,
or exchanging it for drugs. That construction is incon-
sistent with the broad and unqualified employment of the
term "use" in the statute.

  B. The Structure Of Section 924(c)(1) And Related
   Provisions Provides No Support For Petitioners'
   Argument

Petitioners argue (Pet. Br. 15-21) that the statute must
be interpreted as they urge, because the structure of Sec-
tion 924 (c) ( 1 ) and its surrounding provisions requires
that construction. A close examination of the statute,
however, undermines that contention.

At the outset, petitioners' construction would defeat
one of Section 924(c)( 1 )'s key applications. If the term
"uses" were confined to acts such as firing, brandishing,
or trading a firearm, it would become virtually a dead
letter in the context of many of the drug trafficking crimes
to which it expressly applies. See 18 U.S.C. 924(c) (2),
As the court below observed (J.A. 95 n, 1 ), many such
offenses, particularly those involving possession of drugs,
"are furtive crimes" and "[s]tealth is essential to their
success." J.A. 95 n,1. As a general matter, guns are
used in violent crimes as instrumentalities of the offense-
e.g., the use of a gun to murder a suspected witness, see
18 U.S.C. 1512(a). But the firearms ordinarily play a

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21

somewhat different role in drug trafficking offenses, and
in particular in possessor drug offenses. Aside from the
relatively rare "trading" cases, such as Smith, their ordi-
nary role in such offenses is to facilitate the illicit venture
by providing security to the dealer. To eliminate that
use from the statute would severely limit its application
to drug trafficking crimes.
1. Petitioners observe (Pet. Br. 15) that Section
924(c) (1) requires a mandatory consecutive term for
any crime of violence or drug trafficking crime, including
one "which provides for an enhanced punishment if com-
mitted by the use of a deadly or dangerous weapon." 18
U.S.C. 924(c)(1) (emphasis added). They maintain that
the italicized phrase "conveys the unmistakable suggestion
of active employment," Pet. Br. 15, and that the same
interpretation should be given to the term "use[]" as it
appears in the basic statutory proscription of "use" "during
and in relation to" a predicate offense.
The meaning of the phrase "by the use of a deadly
or dangerous weapon" is not a reliable guide for deter-
mining the reach of the different phrase "uses during and
in relation to," which is at issue in this case. The phrase
"committed by the use of a deadly or dangerous weapon"
may suggest an "active use" requirement because the words
"committed by" may imply the use of the weapon as
the means or instrumentality of committing the offense.
By contrast, the basic statutory proscription of "us[ing]
[a firearm] during and in relation to" the underlying
offense naturally applies to conduct in which the firearm
"facilitated] or ha[d] the potential of facilitating" the
offense. See Smith, 113 S. Ct. at 2059.0 A firearm may

___________________(footnotes)

6 Indeed, this Court has construed the phrase "in relation to"
as a "deliberately expansive" phrase in both Smith, see 113 S. Ct.
at 2058, and in other similar contexts. See e.g., District of Co-
lumbia V. Greater Washington Board of Trade, 113 S. Ct. 680,
583 (1992) . Contrary to petitioners' contention (Pet. Br. 40
n.22), nothing in New York State Conference of Blue Cross &

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 22

"facilitate" an offense by emboldening the defendant or
protecting the drug operation, "whether or not * * *
display or discharge in fact occurred." Stewart, 779 F.2d
at 540.
The origins of the phrase "by the use of a deadly or
dangerous weapon" explain why it does not bear on the
issue in this case. The phrase was added in 1984 in
response to this Court's holdings in Simpson v. United
States, 435 U.S. 6 (1978), and Busic v. United States,
446 U.S. 398 ( 1980), that Section 924(c) is inapplicable
when the underlying offense provided its own enhance-
ment provision for use of a dangerous weapon in the com-
mission of the offense. The 1984 amendment made clear
that the mandatory consecutive sentence of Section 924(c)
does apply to crimes such as armed bank robbery and
assault on federal officers, in which an enhanced sentence
is already authorized by statute for use of a dangerous
weapon in the commission of the offense. See S. Rep. No.
225, 98th Cong., 1st Sess. 312-313 ( 1983). Both of the
predicate crimes identified in the Senate Report as war-
ranting the clarifying language in Section 924(c)(1) in-
clude explicit enhancement provisions for the use of a
dangerous weapon in art assault. See 18 U.S.C. 2113 (d)
(enhanced penalty for assaulting or putting in jeopardy
the life of any person "by the use of a dangerous weapon
or device"); 18 U.S.C. 111 (b) (enhancement for "[w]ho-
ever, in the commission of [an assault on a federal officer],
uses a deadly or dangerous weapon"). Thus, the "com-
mitted by" amendment was intended to refer to those
other specific statutes; it does not, and was nut intended
to, track the basic prohibition of Section 924(c).
2. Petitioners also argue (Pet. Br. 15-18) that a con-
struction of the term "uses" that embraces employment of
a firearm to provide security to a defendant committing

___________________(footnotes)

Blue Shield Plans v. Traveler's Ins. Co., 115 S. Ct. 1671} 1677
(1995), suggests to the contrary.

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23

a drug trafficking offense "renders superfluous" the alter-
native way in which the statute can be violated-by
"carrying]" a firearm. In their view, confining the term
"use" to "active employment" of a firearm is necessary to
provide an independent scope to "carry[ing]" liability.
Cf. United States Department of Treasury v. Fabe, 113
S. Ct. 2202, 2209-2210 & n.6 (1993) (noting canon of
construction that each word of a statute must be given
some effect ).
Initially, virtually every example petitioners give (Pet.
Br. 13, 15) to illustrate their understanding of the  "active"
use of a firearm- e.g., firing, pointing, bludgeoning with,
threatening, brandishing, displaying, and even trading a
firearm-also ordinarily involves "carrying]" a firearm
during and in relation to the predicate crime. Thus, even
under petitioners' unduly narrow interpretation of the
statute, the terms have a virtually complete overlap.'

___________________(footnotes)

7 Petitioners (Pet. Br. 18) and the dissenters below (J.A. 114-
115) note that, in commenting on Section 924(c) in our brief in
McLaughlin v. United States, 476 U.S. 16 (1986), we observed
that "[i]t appears that Congress is of the view that something
more than the carrying of a gun is required to establish its use."
We also explained that Section 2113(d), which imposes additional
penalties for bank robbery committed "by the use of a dangerous
weapon or device," would not cover an armed robber who "ap-
proaches a bank teller and demands money without displaying a
weapon, because "the robber has not `used' the weapon to `assault'
anyone, as Section 2113(d) requires." See No. 85-5189 Gov't Br. at
19 n.18, citing S. Rep. No. 225, Supra, at 314 n.10.
Neither of these observations, however, is inconsistent with our
position in this case. Although, in the context of drug trafficking
crimes, physical custody of a firearm may under some circum-
stances be sufficient to establish a violation of both the "uses' and
"carries" prongs of the Section, the former offense requires not
only proof of possession, but also that the firearm was being
employed in some manner to facilitate commission of the predicate
crime, such as by emboldening the defendant or furnishing protec-
tion to the trafficking operation. Our acknowledgement that under
Section 2113(d) an actual assault with a dangerous weapon is

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24

Moreover, in view of the manner in which Section
924 (c) (1) evolved into its present form, the canon of
construction that, in enacting a statute, "a legislature is
presumed to have used no superfluous words," (Platt V.
Union Pac. R.R., 99 U.S. 48, 58 (1879)), loses
much of its force. As we explain in greater detail below,
see pp. 27-30, infra, Section 924(c) as originally en-
acted contained two distinct prohibitions. The first sub-
section prohibited us[ing] a firearm to commit any felony
which may be prosecuted in a court of the United States."
The second subsection separately prohibited "carr[ying]
a firearm unlawfully during the commission of any felony
which may be prosecuted in a court of the United States."
See 82 Stat. 1224 (emphasis added). Under that
formulation, "use" and "carry" liability were fundamentally
different from each other and from liability under the
current statute. "Use" liability required proof that the
gun was "use[d] to commit" the predicate offense. "Carry"
liability required proof that the gun was "carried unlaw-
fully"; the only required relationship to the predicate
offense was temporal ("during").
In 1984, Section 924(c) was amended to delete the
"unlawfully requirement (see 98 Stat. 2138-2139), to
merge the two alternative ways in which the statute could
be violated, and to add the "during and in relation to"
element. That amendment divested the terms "uses" and
"carries" of the qualifications ("to commit" and "unlaw-
fully during" ) that gave them distinct connotations.
Thenceforth, under either our construction or that of

___________________(footnotes)

necessary has no bearing upon the connotation of the term "uses"
as it appears in Section 924 (c) (1). As explained, the former
statute expressly requires that, in committing or attempting to
commit a bank robbery, the defendant must "assault [ ] any person,
or put[] in jeopardy the life of any person by the use of a
dangerous weapon or device." 18 U.S.C. 2113 (d) (emphasis added).
No similar qualifying language applies to the "uses' prong of
Section 924 (c) (1).

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25

petitioners, the terms "uses" and "carries" largely overlap.
The convergence of the two terms, however, is a function
of the statute's evolution. In light of that history, Con-
gress's retention of both bases of liability is not a reason
for imposing an artificially distinct and limited meaning
on the term "uses," with the effect of narrowing the
statute's coverage.8
3. Petitioners argue (Pet. Br. 19-21) that it is signifi-
cant that 18 U.S.C. 924(d)(1) permits forfeiture both of
weapons that are "used" and those that are "intended to
be used." In their view, a firearm employed for security
purposes-to protect the drugs or proceeds and to em-
bolden the defendant-is a gun that is "intended to be
used," but not one that is "used." Since Section 924
(c) (1) prohibits the "use" of a firearm, petitioners argue
that its employment for security is not covered. We
agree that Section 924 (c) ( 1 ) must be construed in light
of the forfeiture provisions in Section 924(d), see Smith,
113 S. Ct. at 2056-2058, but petitioners' analysis of the
forfeiture provisions is incorrect.
The forfeiture provisions of Section 924(d) reach both
future uses of firearms during the course of ongoing of-
fenses and intended uses of firearms in future offenses,.
For example, forfeiture under Section 924(d) (3) (C)
applies to the use or intended use of firearms' in the
offense of shipping a firearm while engaged in the business
of unlicensed dealing in firearms (18 U.S.C. 922(a)(1)),

___________________(footnotes)

8 Petitioners also urge (Pet. Br. 17) that it is unlikely that
Congress would have intended a defendant to be punished with
equal severity for both hearing a firearm on his person so that
it is within his easy reach and for situating a firearm near drugs
so that it is accessible from that location. To the contrary, there
is no reason why Congress would have distinguished keeping a
gun available on one's person for possible employment (carrying
the firearm) and keeping it within reach for such a purpose (using
the firearm). Both increase the possibility that a gun will be fired
-and that someone will be injured or killed-in the course of the
criminal offense.

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26

transporting a firearm without a license (18 U.S.C. 922
(a) (3) ), and selling a firearm to
 an unlicensed non-
resident (18 U.S.C, 922(a) (5)). A firearm shipped,
transported, or sold in violation of those provisions would
be "used" in the commission of such an offense. But a
firearm stockpiled by the offender while awaiting ship-
ment, transportation, or sale during either an ongoing
illicit firearms enterprise or a planned future enterprise
would be one "intended to be used" in the commission of
a future crime. See United States V. One Assortment of
Seven Firearms, 632 F.2d 1276, 1278-1279 (5th Cir.
1980). The terms "used" and "intended to be used"
thus apply to different classes of firearms. Congress there-
fore had reason to employ both terms in defining the
classes of property subject to forfeiture.
In contrast, Section 924(c) requires actual (not future)
commission of the predicate crime and actual (not future)
use of the firearm in relation to that offense. For ex-
ample, if a drug dealer purchased a firearm for the pur-
pose of protecting his future drug operations, but was
presently storing the firearm at a remote and inaccessible
location, that firearm would be subject to forfeiture under
Section 924 (d), although it would not be the basis for
a prosecution under Section 924(c). The inclusion of the
phrase "intended to be used" in Section 924(d) therefore
provides no basis for construing the term "use" in Section
924(c) to exclude employment of a firearm for security
purposes.

C. The Legislative History Of Section 924(c) Lends No
Support To Petitioners' Narrow Construction Of
The Term "Uses"

As we have explained, the ordinary meaning of the
term "uses" includes the employment of a firearm to
protect a drug trafficking operation. Petitioners maintain
(Pet. Br. 22) that, despite the breadth of that term, the
legislative history of Section 924(c) demonstrates that

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27

Congress intended it to apply only" where a firearm is dis-
charged, used to threaten someone, or offered as a medium
of exchange. As the Court has repeatedly explained,
however, "[a]bsent a clearly expressed legislative inten-
tion to the contrary, the words of the statute are conclu-
sive." Hallstrom v. Tillamook County, 493 U.S. 20, 28
(1989 ), quoting Consumer Product Safety Comm'n v.
GTE Sylvania, Inc., 447 U.S. 102, 108 ( 1990). In such
instances, the " `sole function of the courts is to enforce
[the statute] according to its terms.' " United States v.
Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989),
quoting Caminetti v. United States, 242 U.S. 470, 485
(19 17). In this case, "[n]othing in the legislative history
of [Section 924(c)] militates against honoring the plain
language of the [statute]. Nor is this one of the `rare
cases [in which] the literal application of a statute will
produce a result demonstrably at odds with the intentions
of its drafters.' " Hallstrom, 493 U.S. at 28, quoting Ron
Pair Enterprises, Inc., 489 U.S. at 242.
1. When it was originally enacted as part of the Gun
Control Act of 1968, Section 924(c) imposed mandatory
sentences on anyone who "(1) uses a firearm to commit
any felony which may be prosecuted in a court of the
United States" or "(2) carries a firearm unlawfully during
the commission of any felony which may be prosecuted
in a court of the United States," The proposal that be-
came Section 924 (c) was introduced by Representative
Poff as a floor amendment to H.R. 17735, then known
as the Firearms Control Assistance Act of 1968.
114 Cong. Rec. 22,231 ( 1968); see Simpson V. United
States, 435 U.S. at 13-14. In introducing his amendment,
Representative Poff explained that the purpose of the
mandatory minimum sentence it authorized was "to per-
suade the man who is tempted to commit a Federal felony
to leave his gun at home. Any such person should under-
stand that if he uses his gun and is caught and convicted,
he is going to jail." 114 Cong. Rec. 22,231 (1968).

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28

In making that statement, Representative Poff was not
referring to the "carries" prong of the original Section
924(c). As originally enacted, the "carries" prong of
the statute prohibited only the "unlawful" carrying of a
firearm while committing an offense. The statute would
thus not have applied to an individual who, for instance,
had a permit for carrying a gun and carried it with him
when committing an offense, and it would have had no
force in "persuading" such an individual "to leave his gun
at home." Instead, Representative Poff was referring to
the "uses" prong of the original Section 924(c). His
statement strongly suggests that the "uses" prong was
intended to reach anyone who commits a federal felony
and does not "leave his gun at home," i.e., who arms
himself for the purpose of committing a federal offense,
regardless of whether he actually fires or brandishes the
weapon or instead employs it in some other manner to
facilitate the offense. Because Representative Poff was the
sponsor of the legislation as ultimately enacted, "it is
therefore reasonable to assume that [his remarks] repre-
sented the understanding of the Congressmen who voted
for the proposal." Busic v. United Slates, 446 U.S. 398,
406 (1980).
Petitioners argue that, during the floor debates, other
members of Congress made statements that are said to
support an understanding that Section 924(c) required
"active" employment of a firearm. Pet. Br. 24. Even if
isolated statements of individual Members carried signifi-
cant weight in interpreting the statute, the quoted state
ments would not support petitioners' conclusion. For exam-
ple, Represenative Casey observed that, if the draft legis-
lation omitted the term "carriers," it would "apply only
to those who actually use a gun in the commission of the
offenses enumerated." 114 Cong. Rec. 22,229-22,230
(1968). That statement is consistent with our position;
"actual use" of a firearm to protect drugs or proceeds or
to embolden the defendant is essential for conviction

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29

under Section 924 (c) under our view. In any event,
Representative Casey's remarks were directed toward an
amendment of his own that would have prohibited the
"use" of a firearm "during the commission of any rob-
bery, assault, murder, rape, burglary, kidnaping, or
homicide (other than involuntary manslaughter)" and
would thus not have included drug trafficking, 114 Cong.
Rec. 22,229 ( 1968). Accordingly, his comment was ad-
dressed to the use of a gun in a crime of violence, and
there was no reason to think that it illuminated the ap-
plication of the statute as enacted to other crimes?
2. a. As part of the Comprehensive Crime Control
Act of 1984, Pub. L. No. 98-473,  1005(a), 98 Stat.
2138-2139, Congress revised Section 924(c) in several
respects. In particular, Congress substituted the phrase
"crime of violence" for the term "felony" in order to
include violent misdemeanors and to exclude non-violent
felonies. See S. Rep. No. 225, 98th Cong., 2d Sess. 313
n.9 (1983). Additionally, as noted above, Congress
merged the "uses" and "carries" prongs of the statute,
deleted the requirements that the firearm be used "to
commit" the offense or the weapon be carried "unlaw-
fully," and imposed instead the "during and in relation
to" requirement with respect to both "uses" and "carries"
liability?" Congress's action suggests an expansive under-

___________________(footnotes)

9 Similarly, the remark of Representative Dowdy that "exhibit-
ing [a gun] would be using the gun in the commission of a crime"
(114 Cong. Rec. 22,285) and the comment of Representative Harsha
that the legislation required "actual use" of a firearm (114 Cong.
Rec. 22,234) do not support petitioners' position and in any event
were made in connection with the rejected Casey amendment.

10 The 1984 amendment to Section 924 (c) read in Pertinent Part
as follows:

  Whoever, during and in relation to any crime of violence,
including a crime of violence which provides for an enhanced
punishment if committed by the use of a deadly or dangerous
weapon or device, for which he may be prosecuted in a court
of the United States, uses or carries a firearm, shall, in

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30

standing of "uses" liability, including all "uses" that
coincide with and relate to the predicate crime, even if
they are not the direct means of its commission.
The 1984 amendment also made clear that Section
924(c)'s mandatory minimum sentence applied to any
crime of violence, including crimes carrying their own
enhanced punishment if committed by means of a danger-
ous weapon, and was to be served before the sentence for
the underlying offense. In a footnote immediately follow-
ing its explanation of the enhanced sentencing provision,
the Committee Report observed:

Evidence that the defendant had a gun in his pocket
but did not display it, or refer to it, could neverthe-
less support a conviction for "carrying" a firearm
in relation to the crime if from the circumstances or
otherwise it could be found that the defendant in-
tended to use the gun if a contingency arose or to
make his escape. The requirement in the present
section 924 (c) that the gun be carried unlawfully,
a fact usually proven by showing that the defendant
was in violation of a State or local law, has been
eliminated as unnecessary. * * * Moreover, the
requirement that the firearm's use or possession be
"in relation to" the crime would preclude its appli-
cation in a situation where its presence played no
part in the crime, such as a gun carried in a pocket
and never displayed or referred to in the course of a
pugilistic barroom fight.

S. Rep. No. 225, supra, at 314 n.10. Petitioners main-
tain (Pet. Br. 27) that part of the first sentence of the
footnote ("if from the circumstances or otherwise it could
be found that the defendant intended to use the gun if
a contingency arose or to make his escape") "strong] y
suggests that Congress believed that `use' of a firearm
consists of actions `such as firing, displaying, or referring
to the weapons during the predicate offense."

___________________(footnotes)    

addition to the punishment provided for such crime of violence,
be sentenced to imprisonment for five years.

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31

The language on which petitioners rely does not sup-
port their argument. It discusses only the scope of liabil-
ity under the "carries" prong of the statute; it does not
purport to explain or comment on the scope of the term
"uses." In fact, the only portion of the footnote that
addresses the term "uses" is the final sentence, which
states that liability would be inappropriate "in a situation
where [the gun's] presence played no part in the crime,
such as a gun carried in a pocket and never displayed or
referred to in the course of a pugilistic barroom fight ."
The clear import of that statement is that Congress con-
templated that the amended statute would apply when
firearms "played [a] part in the crime," by being used to
protect or to embolden the defendant. See United States
V. Phelps, 895 F.2d 1281, 1283-1284 (9th Cir. 1990)
(Kozinski, J., dissenting from denial of rehearing en
banc).
Finally, petitioners argue (Pet. Br. 29) that the Re-
port's specific mention of particular uses of guns means
that the statute as enacted was limited to those uses.11
The amended statute, however, applied only to crimes of
violence, and it was therefore to be expected that the
examples. given in the Report would be of typical uses
of a gun in such crimes. Moreover, the examples given
were not intended to be generally representative of the
application of the statute. Rather, they were offered to
explain the operation of the new provision requiring con-
secutive sentences to those that would be imposed under
a burglary statute. See S. Rep. No. 225, supra, at 313-
314. In any event, the only theory on which this passage
could conceivably be relevant to interpretation of the

___________________(footnotes)

11 Petitioners refer (Pet. Br. 29) to the Report's statement that
"[f] or example, a person convicted of armed bank robbery in
violation of section 2113 (a) and of using a gun in its commission
(for example by pointing it at a teller or otherwise displaying it
whether or not it is fired) would have to serve five years * * *
before his sentence for the conviction under section 2113 (a) and
(d) could start to run." S. Rep. No. 225, Supra, at 313-314.

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32

present version of Section 924(c) has long been dis-
credited. As this Court has repeatedly explained, "[i]t
is not the law that a statute can have no effects which
are not explicitly mentioned in its legislative history."
Pittston Coal Group v. Stebben, 488 U.S. 105, 115
( 1988); see, e.g.; Harrison v. PPG Industries, Inc., 446
U.S. 578, 592 ( 1980); Standefer v. United States, 447
U.S. 10, 20 n.12 (1980). Indeed, that principle underlay
this Court's decision in Smith; the fact that the legislative
history contained no reference to the use of guns in
barter transactions and that the Congress that originally
enacted the statute had more paradigmatic uses of guns
expressly in mind were rejected as bases to limit the
scope of the statute. See 113 S. Ct. at 2058. The same
result follows a fortiori here.
b. The construction of the 1984 amendments must
also be informed by the principle that when Congress
reenacts legislation that has been subject to a "settled
judicial construction," the courts will "apply the presump-
tion that Congress was aware of these earlier judicial
interpretations and, in effect, adopted them." Keene
Corp. v. United States, 113 S. Ct. 2035, 2043 ( 1993)
(collecting cases); Lorillard v. Pens, 434 U.S. 575, 580
(1978); Albermarle Paper Co. v. Moody, 422 U.S. 405,
414 n.8 ( 1975). By 1984, the term "uses" in Section
924(c) had been uniformly construed to embrace any
employment of a firearm to facilitate the commission of
a federal felony, including the sorts of uses for protection
that are at issue in this case.12
For example, in United States v. Grant, 545 F.2d
1309, 1312-1313 (2dCir. 1976), cert. denied, 429 U.S.

___________________(footnotes)

12 See, e.g., United States v. LaGuardia, 774 F.2d 317, 321 (8th
Cir. 1985) ("use" of a firearm includes employment to protect
drugs and proceeds) ; United States v. Mason, 658 F.2d 1263, 1270-
1271 (9th Cir. 1981) (Kennedy, J.) (affirming Section 924 (C)
conviction although gun "was holstered and * * * never brandished
or displayed").

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33

1103 ( 1977), the Second Circuit rejected the defendant's
claim that he could not be convicted for "using" a num-
ber of guns that were found alongside drugs. The court
held that "the evidence''-which consisted of the juxtapo-
sition of weapons and drugs-"established that [the de-
fendant] used the guns as part of a tight security
operation to protect large quantities of cocaine and hence
to commit the felony of possessing cocaine with intent
to distribute it." 545 F.2d at 1312. Similarly, in a non-
drug context in United States v. Moore, 580 F.2d 360,
(9th Cir. 1978), cert. denied, 439 U.S. 970 ( 1979), a
defendant who had a gun concealed in the waistband of
his trousers was arrested on his way to rob a bank. Id.
at 362. The Ninth Circuit affirmed his conviction for
"us[ing]" a firearm in violation of Section 924(c), hold-
ing that "[t]he fact that [the defendant] never had an
opportunity to brandish or discharge his gun does not
mean that he did not `use' it." The Ninth Circuit ex-
plained that the gun could form the basis of "using" lia-
bility, because the gun, like the gloves and ski mask he
was wearing, "increased the likelihood of success; without
them he probably would not have sallied forth." 580
F.2d at 362.
Neither in 1984, when Congress first significantly
amended the language of Section 924(c), nor in 1986
and 1988, when Congress again amended the statute, did
Congress give any indication that it "disagreed" with the
results or reasoning in those cases. See Reno v. Koray,
115 S. Ct. 2021, 2026 ( 1995). To the contrary, by
replacing the pre-1984 "uses to commit" standard with
the "uses during and in relation to" provision, Con-
gress indicated that it wanted a broader, not narrower
basis for "uses" liability under the statute. Petitioners'
suggestion that Congress intended somehow to narrow
the scope of the term "uses''-and to reject the consistent
view
s of the courts of appeals-is unfounded.
3. In 1986, as part of the Firearms Owners' Protec-
tion Act (FOPA), Pub. L. No. 99-308,  104, 100 Stat.

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34

457, Congress further amended Section 924 (c) ( 1), inter
alia, by inserting the phrase "or drug trafficking crime"
after the phrase "crime of violence." See 100 Stat. 457.
The House Judiciary Committee's report on FOPA ex-
plained that a principal purpose of the legislation was to
"[p]rovide an important new weapon against narcotics
traffickers" and to "protect[] * * * law enforcement offi-
cers from the proliferation of machine guns and high-
powered `assault-type' weapons that are increasingly being
used by criminals." H.R. Rep. No. 495, 99th Cong., 2d
Sess. 2,7 ( 1986).
Despite that broad expression of purpose, petitioners
contend (Pet. Br. 30-31) that a portion of the House
Report, rejecting a self-defense provision that had been
included in another version of the legislation, suggests
that Congress did not intend the term "uses" to embrace
employing a firearm for protection. In view of Congress's
rejection of the self-defense provision and the well-
recognized hazards of looking to the views of a subse-
quent Congress to interpret a previously enacted term,
see, e.g., United States v. Price, 361 U.S. 304, 313
(1960), the House Report is a weak basis for construing
the term "uses." In any event, the passage on which
petitioners rely does not support their argument.
The Report states that a defendant generally may not
rely on a self-defense claim where the defendant was
protecting himself from a danger caused by his commis-
sion of the crime. The report then comments that this
limitation "may rule out a successful self-defense claim
in most situations in which the use branch of the offense
forms the basis of the" Section 924(c) liability. H.R.
Rep. No. 495, supra, at 10. It further observes (ibid. )
that, if the proposed defense were adopted:

the "carrying" branch of the offense might be dec-
imated, in that the felon could claim that he was only
carrying the weapon for defense, and cite the fact
that he did not actually use the weapon as proof

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35

of his claim. For example, a drug trafficker, if charged
with carrying a firearm under 18 U.S.C. 924(c) in
connection with drug trafficking, might be able to
reasonably sustain a claim that it was carried for
protection against rival traffickers.

The purpose of that passage was to address a proposed
self-defense amendment to the statute, not to define the
contours of the term "uses." The reference to the unavail-
ability of the self-defense exception in "most" situations
involving the "use" prong of the statute is entirely ac-
curate, under any reading of the statute: a defendant
who places a gun next to drugs or proceeds for protec-
tion of his criminal enterprise surely cannot claim that
he was using it for self-defense, just as-in the Com-
mittee's terms-"a felon who uses a gun in the commis-
sion of a felony or in a shoot out with police while flee-
ing cannot * * * claim self-defense." Nor can petitioners
derive support from the Report's guarded observation
that, under the proposed defense, a defendant who "did
not actually use" a weapon he was carrying "might rea-
sonably be able to sustain the claim that it was carried
for protection against rival traffickers" (second emphasis
added ). In context, it is clear that the Committee in-
tended the term "actually use" to refer to the firing or
discharge of the weapon; yet neither the dissenting opin-
ion below nor petitioners would argue that the term "use"
is limited to instances where a weapon is fired.
4. As part of the Anti-Drug Abuse Act of 1988,
Congress further amended Section 924(c). On that oc-
casion, Congress added a new paragraph providing that
"[f]or purposes of this subsection, the term `drug traffick-
ing crime' means any felony punishable under the Con-
trolled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C.
951 et seq.), or the Maritime Drug Law Enforcement
Act (46 U.S.C. App. 1901 et seq.)." See Pub. L. 100-
690 6212, 102 Stat. 4360. The amendment not only
confirmed-as petitioners concede-that Congress in-

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36

tended the prohibition against using a firearm during and
in relation to a drug trafficking offense to include so-
called "passive crimes such as possession with intent to
distribute" (Pet. Br. 32), but also that it intended "use"
of a firearm under Section 924(c)(1) to embrace the
employment of a firearm for security as well.
In the context of possession with intent to distribute
and similar offenses, the typical use of a firearm is pro-
vide security for the operation. Consequently, a con-
struction of the term "uses" that excludes that employ-
ment of a firearm would nullify the application of Section
924(c)(1) to many offenses expressly brought within it
by the 1988 amendment. But as this Court has observed:

  [such a] restrictive reading of the phrase "uses  . . . . 
a firearm" does violence not only to the language
and structure of the statute, but to its purpose as
well. When Congress enacted the current version
of  924(c)(1), it was no doubt aware that drugs
and guns are a dangerous combination.

Smith, 113 S. Ct. at 2060. As in Smith, in view of that
understanding, "we * * * see no reason why Congress
would have intended courts and juries applying 924
(c)(1) to draw a fine metaphysical distinction." Ibid.
Regardless whether the gun is drawn, brandished, and
fired, or whether it is instead carefully placed to protect
the drugs or proceeds and to embolden the defendant, "it
creates a grave possibility of violence and death in either
capacity." Ibid.

  D. The Rule of Lenity Has No Application In This
   Case

Petitioners contend (Pet. Br. 32) that their narrow
construction of the term "uses" in Section 924(c)(1) is
at least reasonable and that the statute is therefore am-
biguous. Consequently, they maintain, the rule of lenity
dictates that the ambiguity be resolved in their favor.

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37

"The mere possibility of articulating a narrow construc-
tion [for Section 924(c)(1)], however, does not by itself
make the rule of lenity applicable." Smith, 113 S. Ct. at
2059. As the Court explained in Moskal v. United States,
498 U.S. 103, 108 (1990), "because the meaning of lan-
guage is inherently contextual, [the Court has] declined
to deem a statute `ambiguous' for purposes of lenity
merely because it was possible to articulate a construction
more narrow than that urged by the government ." Instead,
the rule of lenity comes into play only when, after "[a]pply-
ing well established principles of statutory construction,"
Gozlon-Peretz V. United States, 498 U.S. 395, 410 (1991),
there is still a "grievous ambiguity or uncertainty in the
language and structure of the Act." Chapman v. United
States, 500 U.S. 453, 463 (1991 ). See Smith, 113 S. Ct.
at 2059, quoting United States v. Bass, 404 U.S. 336,
347 (197 1 ) (the "rule [of lenity] is reserved for cases
where, [a]fter seiz[ing] every thing from which aid can
be derived, the Court is left with an ambiguous statute")
(internal quotation marks omitted).
This is not such a case. The "common usage and dic-
tionary definitions of the terms `uses . . . a firearm,' "
Smith, 113 S. Ct. at 2060, embrace any employment of
a firearm that facilitates a drug trafficking offense, includ-
ing the use of a firearm to provide security for the venture.
Moreover, Congress's design was to impose heightened
sanctions when a defendant employs the "dangerous com-
bination" of firearms and narcotics trafficking. Ibid. That
intention is inconsistent with an interpretation of the
statute that singles out particular uses of guns while leav-
ing others unpunished. Whether a gun is overtly deployed
or is covertly used to embolden a defendant to commit an
offense, the presence of the firearm presents precisely the
"grave possibility of violence and death," ibid., that Con-
gress sought to prevent in enacting and subsequently
amending Section 924 (c) (1).

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38

III. A JURY MAY INFER THE USE OF A FIREARM
  DURING AND IN RELATION TO A DRUG TRAF-
  FICKING OFFENSE BASED ON ITS PROXIMITY
  TO THE DRUGS OR PROCEEDS AND ITS ACCES-
  SIBILITY TO THE DEFENDANT

Petitioners argue (Pet. Br. 35-47), in the alternative,
that if the "active use" gloss they place on the statute is
rejected, this Court should require a multi-factor analysis
to determine whether the evidence is sufficient to support
a conviction under Section 924(c). In petitioners' view
(Pet. Br. 41-44), the court of appeals adopted too nar-
row a test when it held that the evidence is sufficient to
support a conviction under Section 924(c)(1) if it shows
that the defendant maintained a firearm proximate to and
accessible from drugs or drug proceeds.
The court of appeals' test, rather than petitioners' ap-
proach, properly respects the role of the reviewing court
to "give[] full play to the responsibility of the trier of
fact fairly * * * to draw reasonable inferences from basic
facts to ultimate facts." Jackson v. Virginia, 443 US.
307, 319 (1979). The prosecution is not "under an
affirmative duty to rule out every hypothesis except that
of guilt beyond a reasonable doubt." Id. at 326. As this
Court has explained, the "jury is permitted to infer from
one fact the existence of another essential to guilt, if
reason and experience support the inference." Tot v.
United States, 319 U.S. 463, 467 ( 1943). When the gun
is found proximate to drugs or proceeds and is accessible
to the defendant from that location, "reason and experi-
ence," ibid., support the inference that it is being em-
ployed to facilitate the offense by protecting and em-
boldening the defendant, Since that is a "use" of the gun
"during and in relation to a drug trafficking crime" under
Section 924(c)(1), evidence that shows such proximity
and accessibility is sufficient.
1. The fact pattern presented by these cases is a com-
mon one. The evidence established that the firearm was
actually or constructively possessed or controlled by the

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39

defendant 13 and that "the firearm in question was in
proximity to the drugs, drug paraphernalia, or drug pro-
ceeds and was accessible to the defendant from the site
of the drugs, drug paraphernalia, or drug proceeds in-
volved in his or her predicate drug trafficking offense."
J.A. 101. In that situation, the court of appeals made
clear that there is sufficient evidence to support a Section
924 (c) (1) conviction. That conclusion is widely shared
in the courts of appeals.14

___________________(footnotes)

13 See, e.g., United States v. Torres-Maldonado, 14 F.3d 95, 102
(lst Cir.), cert. denied, 115 S. Ct. 193 (1994); United States V.
Mathews, 942 F.2d 779, 783-784 (lOth Cir. 1991); United States
V. Long, 905 F.2d 1572, 1676-1578 (D.C. Cir.) (Thomas, J.), cert.
denied, 489 U.S. 948 (1990).

14 See, e.g., United States V. Nieves-Burgos, No. 94-1370 (1st
Cir. July 13, 1995), slip op. 20-21 ("analysis is focused `solely
on the proximity of the gun to the drugs and the accessibility of
the gun to the defendant' ") ; United States v. Paz, 927 F.2d 176,
179 (4th Cir. 1991) ("the gun was present and accessible * * *
and there is little question that its presence would help facilitate
the success of the criminal undertaking") ; United States v. Wilson,
27 F.3d 1126, 1133 (6th Cir.) ("It was within the province of
the jury for them to conclude that the * * * rifle was thereto protect
the * * * cocaine."), cert. denied, 115 S. Ct. 452 (1994) ; United
States V. Woods, 995 F.2d 713, 718 (7th Cir. 1993) ("Dealers who
keep guns `in strategic proximity' to their drugs or transactions
`use them in relation to' their drug trafficking for purposes of the
statute.") ; United States v. Young-Bey, 893 F.2d 178, 181 (8th
Cir. 1990) ("It is sufficient to show that the defendant kept the
firearms readily accessible to protect and facilitate the drug enter-
prise.") ; United States V. Baker, 30 F.3d 1278, 1279-1280 & n.1
(lOth Cir.) (evidence sufficient to infer use where there is "evi-
dence the firearm was available to the defendant in the vicinity
where the drug trafficking offense took place"), cert. denied, 115
S. Ct. 273 (1994) ; United States V. Poole, 878 F.2d 1389, 1393 (llth
Cir. 1989) ("the presence of weapons in a location defendant used
to distribute a significant quantity of illegal drugs is sufficient to
submit to the jury the issue of whether defendant used the fire-
arms in connection with a drug trafficking crime"). The First Cir-
cuit has granted en bane rehearing on this issue, among others,
in United States V. Ramirez-Ferrer, Nos. 94-1016, 94-1017, 94-1018
(lst Cir. June 28, 1995).

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40

When firearms are found proximate to drugs or pro-
ceeds and accessible to the defendant, the inference that
the defendant used the guns to provide security for his
drug offense is supported by the "well-recognized nexus
between drugs and firearms." United States V. Golter,
880 F.2d 91, 94 (8th Cir. 1989). As courts have ob-
served, firearms are "tools of the drug trafficking trade."
United States v. Gahagan, 865 F.2d 1490, 1499 (6th
Cir.), cert. denied, 492 U.S. 918 (1989); see United
States v. Brockington, 849 F.2d 872, 876 (4th Cir.
1988 ) (noting "common sense recognition that drug deal-
ing is a dangerous and often violent enterprise"); United
States V. Grant, 545 F.2d 1309, 1313 (2d Cir. 1976)
(taking judicial notice that "substantial dealers in nar-
cotics keep firearms on their premises as tools of the
trade" ), cert. denied, 429 U.S. 1103 (1977); United
States V. Wiener, 534 F.2d 15, 18 (2d Cir.), cert. denied,
429 U.S. 820 (1976) (noting that large scale drug dealers
typically keep firearms at their base of operations as a
tool of the trade). Empirical studies of the issue confirm
that firearms have proliferated in the narcotics trade."
At trial in these cases, that point was also underscored by
expert testimony.16  

___________________(footnotes)

15 See, e.g., A. Blumstein, Youth Violence, Guns, and the Illicit-
Drug Industry, H. John Heinz III School of Public Policy and Man-
agement, Carnegie Mellon Univ. Working Paper Series 18 (1994)
("juveniles, as all participants in the illicit drug industry, are
very likely to carry guns for self-protection, largely because that
industry uses guns as an important instrument for dispute resolu-
tion") ; Sheley, Drug Activity and Firearms Possession and Use
By Juveniles, 24 Journal of Drug Issues 363, 373 (1994) (90%
of the drug dealers in the surveyed population owned a firearm and
83% of those who had sold drugs had fired a gun at someone).

16 In both Bailey and Robinson, experienced narcotics detectives
testified that narcotics dealers commonly employ firearms in order
to protect themselves, their wares, the proceeds of their drug
dealing, or the narcotics operation itself against rival drug gangs
or the police. In some instances, they also employ firearms for
"enforcement purposes." J.A. 10; Robinson Tr. 77-79. In Bailey,

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41

It is true that a gun's proximity and accessibility to
drugs or proceeds does not invariably mean that the gun
was "used" in relation to the drug trafficking offense.
For example, the defendant may offer evidence that "he
possessed the gun solely for a different purpose-for
example as part of a collection of guns that just happened
to be kept in a place that later became involved in drug
trafficking." J.A. 99. If so, the gun would have been
coincidentally located near the drug trafficking operation,
but would not have been "use[d] * * * in relation to a
drug trafficking crime." But whether such an explana-
tion should be accepted turns on the credibility of the
witnesses and the force of the evidentiary presentation.
Those are matters for the jury to determine-not the
reviewing court. Thus, where there is sufficient evidence
of proximity and accessibility, the jury may infer the "use"
of the gun. If it does so, the resulting conviction is suffi-
ciently supported by the evidence.17
An appellate court applying a proximity and accessi-
bility standard must still, of course, review the evidence
for sufficiency. In United States v. Theodoropoulos, 866

___________________(footnotes)

the testifying detective added that narcotics dealers not only con-
ceal firearms on their persons, but also frequently, "if it's a stash
house where they store their drugs and cash," keep weapons
"within the[ir] premises." J.A. 11.

17 Petitioners (Pet. Br. 17) and Judge Wald's dissent (J.A.
103-104) argue that, under the court of appeals' standard, the
gun need not be shown to be accessible to the defendant. The court
of appeals, however, specifically held that one "uses" a gun "when-
ever one puts or keeps the gun in a particular place from which
one (or one's agent) can gain access to it if and when needed
to facilitate a drug crime." J.A. 95. Because the crime of posses-
sion with intent to distribute narcotics is a continuing offense, it is
sufficient that the gun be "accessible to the defendant from the
site of the drugs, drug paraphernalia, or drug proceeds," J.A. 101,
at some point during the possession. Thus, the court of appeals'
test requires accessibility to the defendant at some point during
the commission of the crime-although not necessarily at the
moment when the defendant is arrested.

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42

F.2d 587 (3d Cir. 1989), for example, the Third Circuit
held that a loaded shotgun located inside an apartment
and accessible to drug traffickers operating at that loca-
tion constituted evidence that the weapon was "used"
during and in relation to a drug trafficking conspiracy.
Id. at 597. The court also held, however, that three other
firearms concealed in a trash can on a porch outside the
building did not satisfy the requirement of proximity and
accessibility. Id. at 597. Where, as in that case, no other
basis for inferring "use" has been established, a reviewing
court must find the evidence insufficient to support a con-
viction under Section 924 (c).
2. Petitioners urge (Pet. Br. 44-47) that a five-factor
balancing test be used to test the sufficiency of the evi-
dence in Section 924(c) cases. Factor (1) is accessibility,
which respondents concede `lends some support to an
inference that the gun provided protection for the drug
offense or that the defendant derived some service from
the gun." Pet. Br. 45. Petitioners' other factors are (2)
"proof of an earlier drug transaction at which the firearm
was actively employed or available to protect the drug
operations," (3) "the type, condition, and number of
firearms involved," (4) "whether the firearm was loaded
and ready to fire," and (5) "whether expert testimony
bolstered the government's theory of `use,' " Pet. Br.
45-46.
Evidence relating to petitioners' factors (2)-(5) may
in some cases have probative value to the jury in consid-
ering whether to infer "use" under Section 924(c). Those
factors may also in some cases be sufficient to support
submission of a case to the jury even when the proximity
and accessibility tests are not satisfied. None of them
need be present, however, to support the jury's inference
of "use" under Section 924(c).
For example, proof of possession with intent to dis-
tribute under 21 U.S.C. 841(a)(1) does not require
proof of a drug transaction. Yet it is clear that Congress

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43

intended use of a gun during and in relation to that of-
fense to constitute a violation of Section 924(c); clarify-
ing that Section 924 (c) covered such offenses was the
primary purpose of the 1988 amendment to the statute.
See 114 Cong. Rec. 32,965 (1986) (prior statute "does
not cover * * * possession with intent to distribute," but
"amendment makes clear that section[] 924(c) * * *
cover[s] all drug offenses") (emphasis added). To re-
quire proof of a drug transaction in a Section 924(c)(1)
prosecution based on possession with intent to distribute
would effectively undo Congress's 1988 amendment to the
statute. Even where distribution, and not mere possession,
is charged, a gun can facilitate a dealer's distribution by
protecting his "stash" even if the gun is not itself brought
to the site of a drug transaction.
Similarly, the type, number, and condition of the fire-
arms, as well as whether they were loaded when they were
found, may be probative in jury argument, but is not
essential in order to submit a case to the jury. As peti-
tioners agree, "the `use' of a single weapon violates the
statute." Pet. Br. 46. Even an unloaded, small weapon
can quickly be converted into an instrument of violence,
and it can be used to threaten policemen or others-
possibly prompting dangerous responses-and thus to pro-
vide security for the commission of the drug offense.18
Finally, although expert testimony may be useful in par-
ticular cases, it is not required in a Section 924(c) offense.
To return a conviction, the jury must infer that the defend-
ant placed a gun proximate to drugs or proceeds and


___________________(footnotes)

18 See, e.g., United States V. Hill, 967 F.2d 902, 905-907 (3d Cir.
1992) (unloaded, disassembled, concealed rifle) ; United States V.
Moore, 919 F.2d 1471, 1476 (lOth Cir. 1990) (defective machine
gun) ; United States V. Coburn, 876 F.2d 372, 375 (5th Cir. 1989)
("[t]he fact that a firearm is `unloaded' or `inoperable,' does not
insulate the defendant from the reach of section 924 (c)") ; United
States V. York, 830 F.2d 885, 891 (8th Cir. 1987) (lack of firing pin
and defective cylinder), cert. denied, 484 U.S. 1074 (1988).

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44

accessible to them to facilitate his drug trafficking offense.
That is a common-sense inference, of a type that is ordi-
narily well within the province of a jury.
3. Applying the correct standard, the evidence in these
cases was sufficient to support the convictions under Sec-
tion 924 (c). Bailey was arrested in a car that served as
a mobile operation for the distribution of cocaine. Lo-
cated adjacent to some of the cash proceeds in the trunk
was a loaded nine millimeter Smith and Wesson pistol.
The jury could infer from the proximity of the pistol to
the money, and the accessibility of it to Bailey when he
handled the funds, that the pistol was used to provide
protection and security to his drug trafficking. Likewise,
Robinson's .22 Derringer pistol was found, in her apart-
ment, in a trunk that also contained marked money rep-
resenting the proceeds of a drug deal as well as two plastic
baggies containing cocaine. Robinson had been observed
retrieving cocaine from the bedroom where the trunk was
located the previous day. The jury could infer from the
location of the pistol in a place where petitioner went to
obtain drugs that the pistol provided protection and secu-
rity to her in her distribution of cocaine. Accordingly,
the court of appeals correctly affirmed the jury's finding
in each case of a violation of Section 924(c)(1).19

___________________(footnotes)

19 Because the en bane majority did not consider liability under
the "carries" prong of Section 924(c) (1), if the Court does not
agree with our submission in this case, the appropriate disposition
would be to remand to the court of appeals for consideration of
that basis for upholding the convictions.

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45

CONCLUSION

The judgments of the court of appeals should be
affirmed.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

Jo ANN HARRIS
Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

JAMES A. FELDMAN
Assistant to the Solicitor General

JOHN F. DE PUE
Attorney

JULY 1995

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       APPENDIX

Section 924(c)(1), 18 U.S.C., provides, in relevant
part, as follows:

(c) (1) Whoever, during and in relation to any
crime of violence or drug trafficking crime (includ-
ing a crime of violence or drug trafficking crime
which provides for an enhanced punishment if com-
mitted by the use of a deadly or dangerous weapon
or device) for which he may be prosecuted in a court
of the United States, uses or carries a firearm, shall,
in addition to the punishment provided for such
crime of violence or drug trafficking crime, be sen-
tenced to imprisonment for five years[.] * * * Not-
withstanding any other provision of law, the court
shall not place on probation or suspend the sentence
of any person convicted of a violation of this subsec-
tion, nor shall the term of imprisonment imposed
under this subsection run concurrently with any other
term of imprisonment including that imposed for the
crime of violence or drug trafficking crime in which
the firearm was used or carried. No person sentenced
under this subsection shall be eligible for parole
during the term of imprisonment imposed herein.
  (2) For purposes of this subsection, the term
"drug trafficking crime" means any felony punishable
under the Controlled Substances Act (21 U.S.C.
801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq.), or the Mari-
time Drug Law Enforcement Act (46 U.S.C. App.
1901 et seq.).

(la)