F I L E D

United States Court of Appeals

Tenth Circuit

MAR 24 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-AppelleeCross-Appellant,

v.

MONSON LEE DURHAM, also known

as Lee Durham,

Defendant-AppellantCross-Appellee.

Nos. 96-5107 & 96-5118

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DANNY RAY EVANS, also known as

Danny Taylor,

Defendant - Appellant.

No. 96-5108 

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 95-CR-31-K)

Jenine M. Jensen, Assistant Federal Public Defender (Michael J. Katz, Federal Public

Defender with her on the briefs), Denver, Colorado, for Defendants - Appellants Durham

and Evans.
2

Allen J. Litchfield, Assistant United States Attorney (Stephen C. Lewis, United States

Attorney and Ann P. Dooley, Assistant United States Attorney, on the Brief), Tulsa,

Oklahoma, for Plaintiff - Appellee.

Before TACHA, LUCERO and MURPHY, Circuit Judges.

LUCERO, Circuit Judge.

Today we are asked to consider the requirements for waiver of a defective jury

composition, what constitutes sufficient evidence of materiality under 18 U.S.C. § 1623,

whether it is appropriate to issue a false exculpatory statement instruction when the

defendant is charged with perjury, and whether it is misconduct for the government to

request a modification to an official transcript without notifying the court or opposing

counsel. In addition, we revisit our jurisprudence under Bailey v. United States, 116 S.

Ct. 501 (1995), to determine whether the erroneous “use” instruction in this case requires

this court to reverse Danny Evans’s conviction under 18 U.S.C. § 924(c)(1).

In addition to the § 924(c) appeal, Evans appeals his conviction for one count of

conspiracy with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§

841(a)(1) and 846. Lee Durham appeals his convictions for participating in the same

conspiracy and for four counts of perjury in violation of 18 U.S.C. § 1623. Durham

claims that the government did not present sufficient evidence to support his convictions

for perjury; that the district court erred in giving a false exculpatory statement jury
3

instruction; that his trial was defective as a result of prosecutorial misconduct; and that he

was tried before an improperly constituted jury. In addition to joining all grounds raised

by Durham, Evans argues that the district court abused its discretion by refusing to sever

his trial from Durham’s; that the Supreme Court’s decision in Bailey mandates reversal of

his conviction under 18 U.S.C. § 924(c); and that the district court contravened his Sixth

Amendment right to confront adverse witnesses by refusing to allow inquiry into prior

assaults committed by Mark Montgomery, the government’s key witness. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

Mark Montgomery began selling cocaine in Okmulgee, Oklahoma in 1989. Early

in his career, Montgomery’s great uncle informed him that he was paying too much for

his cocaine from his Okmulgee sources. Soon thereafter, Montgomery developed

alternative cocaine sources in both California and Texas. At trial, Montgomery testified

he first obtained cocaine from Evans, a resident of Arlington, Texas, in either 1990 or

1991. From 1991 to 1994, he and Evans ran the cocaine venture as partners.

In early 1991, Montgomery enlisted Durham to broker his purchases of cocaine in

Houston. Durham, a Houston native, would pick Montgomery’s couriers up at one of the

city’s airports and provide them with a place to stay. He would then take their money,

exchange it for cocaine, and transport them back to the airport. Durham was paid “small

amounts of money” for his services as a “middle man.” 13 R. at 1603-04. He never
4

brokered any of Montgomery’s drug transactions in other source cities.

Montgomery introduced Evans and Durham sometime before August 1991. 

Thereafter, Evans would contact Durham to arrange cocaine purchases without

Montgomery’s intervention. In mid-1992, Evans and Montgomery ceased employing

Durham’s services and there is scant evidence suggesting any contact between Durham

and either Montgomery or Evans for the latter half of 1992 and all of 1993 and 1994.

In June 1994, Evans was stopped in Oklahoma for speeding. During that stop, an

officer of the Oklahoma Highway Patrol found a nine millimeter pistol between the

driver’s and passenger’s seats. In addition, the officer found $13,500 in three separate

bundles. Because Evans admitted that the pistol was his, he was arrested for carrying a

loaded weapon in violation of Oklahoma law. On the theory that the $13,500 represented

the proceeds of drug transactions, Evans was subsequently charged with using or carrying

a firearm during and in relation to a drug offense in violation of 18 U.S.C. § 924(c)(1).

Montgomery was arrested in October 1994 for illegal distribution of narcotics. In

an attempt to limit the amount of prison time he would serve, he agreed to assist the

government in obtaining evidence against other suspected drug dealers. He was therefore

released on bond the following month. Initially, Montgomery had little success in

contacting his former sources and he surmised that they suspected him of cooperating

with the government. In March 1995, however, Montgomery successfully contacted

Durham. In a taped conversation that was played for the jury, Durham agreed to locate a
5

cocaine seller for Montgomery. Later that month, the government obtained an indictment

against both Evans and Durham for conspiracy to distribute cocaine and cocaine base in

violation of 21 U.S.C. §§ 841(a)(1) and 846. Montgomery was the government’s key

witness at the defendants’ trial.

II

Prior to trial, Durham’s counsel moved the court to dismiss the indictment for

improper venue or, in the alternative, to transfer the case pursuant to Rule 21(b) of the

Federal Rules of Criminal Procedure. Durham testified at a hearing held on June 14,

1995 in support of this motion. His testimony prompted the government to file a

superseding indictment that added four counts of perjury. The first perjury count was

based on Durham’s representation at the venue hearing that he had not been in Oklahoma

since December of 1990, see 13 R. at 1631-32, 1640; the second, on his confirmation that

he had “never taken any money from” Evans, see id. at 1632-33; the third, on his adoption

of the statement that he had never sold drugs to Evans, see id. at 1633; and the final

count, on his confirmation that he had never engaged in a drug transaction with

Montgomery, see id. at 1641.

A

Durham argues that all of his perjury counts must be reversed because the

government did not produce sufficient evidence that his statements were “material” to the

proceedings. “[I]n reviewing the sufficiency of the evidence to support a jury verdict,
6

this court must review the record de novo and ask only whether, taking the

evidence—both direct and circumstantial, together with the reasonable inferences to be

drawn therefrom—in the light most favorable to the government, a reasonable jury could

find the defendant guilty beyond a reasonable doubt.” United States v. Voss, 82 F.3d

1521, 1524-25 (10th Cir.) (internal quotations omitted), cert. denied, 117 S. Ct. 226

(1996).

Materiality is an element of the crime of perjury, which must be submitted to the

jury and proven by the prosecution beyond a reasonable doubt. See 18 U.S.C. § 1623(a);

United States v. Regan, 103 F.3d 1072, 1081 (2d Cir.), cert. denied, 117 S. Ct. 2484

(1997); United States v. Keys, 95 F.3d 874, 877 (9th Cir. 1996) (en banc); United States

v. Littleton, 76 F.3d 614, 617 (4th Cir. 1996); United States v. Kramer, 73 F.3d 1067,

1074 (11th Cir.), cert. denied, 117 S. Ct. 516 (1996); see also United States v. Gaudin,

515 U.S. 506, 522-23 (1995) (conviction for making false statements on federal loan

documents in violation of 18 U.S.C. § 1001 only sustainable if jury finds statements

material beyond a reasonable doubt). To be material under § 1623(a), a false statement

must have “a natural tendency to influence, or [be] capable of influencing, the decision . .

. required to be made.” United States v. Girdner, 773 F.2d 257, 259 (10th Cir. 1985)

(quoting United States v. Moore, 613 F.2d 1029, 1038 (D.C. Cir. 1979)); see also Gaudin,

515 U.S. at 509 (applying this same standard in prosecution under 18 U.S.C. § 1001). 

Because Durham made the disputed statements at a venue hearing, the government must
1

 Durham objects that none of the disputed testimony was relevant to the

convenience of holding trial in the Northern District of Oklahoma rather than in the

Southern District of Texas, rendering it immaterial to the venue proceedings because past

events could not have swayed the court’s evaluation of present inconvenience. That

objection is without merit because his motions to the court challenged the propriety of

venue as well as the convenience of that forum. See 1 R., docs. 18 & 19; 13 R. at 1624.

2

 In fact, Durham’s motion before the district court challenging the propriety of

venue rested in part on the assertion that the “crimes alleged against . . . Durham were

committed in the Southern District of Texas.” 1 R., Doc. 19, at 4.

7

prove the statements were material to the court’s venue decision. See United States v.

Allen, 892 F.2d 66, 68 (10th Cir. 1989) (“The materiality test is determined at the time

and for the purpose for which the allegedly false statement was made.”).

Because “[v]enue is proper in conspiracy offenses in any district where the

agreement was formed or an overt act occurred,” United States v. Scott, 37 F.3d 1564,

1580 (10th Cir. 1994) (citations omitted), Durham’s testimony was material to the venue

decision.1 The indictment in effect at the time of the venue hearing did not allege any

specific overt acts. Rather, it merely charged Evans and Durham with conspiring to

violate 18 U.S.C. § 841(a)(1) “in the Northern District of Oklahoma and elsewhere.” 1

R., Doc. 2 at 1. It would be consistent with the charges in that indictment for the

government to establish that the agreement was formed in Oklahoma but that all overt

acts occurred outside of the state.2 It is for that reason that Durham’s statements were

material to the venue decision.

Durham’s contentions that he had left Oklahoma before the alleged conspiracy was

formed and had no contact with the principal alleged conspirators had the capacity to
3

 The jury was fully equipped to determine whether Durham’s statements were

material to the venue proceeding. It was aware that Durham was objecting to the

propriety and convenience of the forum. See 13 R. at 1624. And, it received proper

instructions on the legal standards for materiality, see 15 R. at 1978, and appropriate

venue in a conspiracy case, see 15 R. at 1969.

4

 Durham also argues that the ambiguous nature of that testimony is aggravated

by the alteration of the transcript that was presented to the jury. See infra Part III.

8

affect the district court’s decision as to whether an agreement had occurred in Oklahoma. 

Moreover, Durham’s motion before the court argued that he was inappropriately being

tried in Oklahoma for acts that had allegedly taken place in Texas. If the court had

credited Durham’s testimony at the venue hearing, it might have concluded that no

agreement was formed in Oklahoma and that the overt acts occurred outside of that state. 

Such findings could certainly have influenced the court’s venue decision, and it is

therefore reasonable for the jury to have found the statements material to that decision.3

B

Durham also claims that the government presented insufficient evidence to show

that his claim not to have been in Oklahoma since 1990 was “knowingly” false. More

specifically, he argues that his testimony as to when he left Oklahoma shows such

confusion and equivocation that no jury could reasonably conclude he made a willful

misstatement.4 We cannot agree.

A perjury conviction that rests on a defendant’s responses to leading questions

should be “strictly scrutinize[d] for fairness” to ensure that the statements are those of the

witness and not the prosecutor. See United States v. Boberg, 565 F.2d 1059, 1063 (8th
9

Cir. 1977). In this case, however, the defendant testified that he left Oklahoma in 1990

not only during cross-examination but also in response to a question from his own

attorney. See 13 R. at 1640. Drawing all inferences in favor of the government, see

Voss, 82 F.3d at 1524-25, the evidence adduced at trial was sufficient to prove that

Durham knew that he was making a false statement.

III

Our review of this appeal is complicated by the government’s improper submission

of an altered transcript to the jury. To prove Durham perjured himself in testifying that he

left Oklahoma in 1990, the prosecution read the following statement to the jury:

ANSWER: I left Oklahoma in December of ’92, probably December of ’90, I

believe.

13 R. at 1628. But according to the court reporter who was present at the venue

proceeding, the original transcript read as follows:

ANSWER: I left Oklahoma in December of ’92 -- probably December of 2’90, I

believe.

Supp. R. (Letter from Eldon R. Simpson, U.S. Court Reporter, to Patrick Fisher, Clerk of

the 10th Circuit Court of Appeals, of 8/1/97, at 1).

The government tells us that the Assistant United States Attorney assigned to this

case noticed what he believed to be an error in the original transcript of the venue

proceeding and brought it to the attention of the court reporter, Eldon Simpson. 

According to the government, Mr. Simpson then “corrected the transcript” prior to filing
10

it, but forgot to save the “corrections” on his computer, thus leaving the defense with an

erroneously nonconforming copy of the transcript. Appellee’s Br. at 22. The

government’s request to modify the official transcript was made without informing the

court or opposing counsel.

Because neither defendant objected to the use of the altered transcript, we review

the claim of prosecutorial misconduct for plain error. See United States v. Sands, 968

F.2d 1058, 1063 (10th Cir. 1992). We may not correct the alleged error unless there is:

(1) an error; (2) that is plain, and (3) that affects substantial rights. Johnson v. United

States, 117 S. Ct. 1544, 1549 (1997). Even if those conditions are met, we will only

reverse and remand if the error “seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” Id. (internal quotations omitted).

There is no question but that the prosecutor acted inappropriately. Although the

Federal Rules of Criminal Procedure provide that “[c]lerical mistakes in judgments,

orders or other parts of the record and errors in the record arising from oversight or

omission may be corrected by the court at any time,” Fed. R. Crim. P. 36 (emphasis

added), nothing in the rule may be read to allow counsel to request modification of a

transcript without informing the court or opposing counsel. It makes no difference that

the transcript had not yet been filed. The potential for severe misconduct is such that all

requests concerning an alteration of a transcript must be made through the court.

That said, we do not accept Durham’s contention that such behavior requires
5

 The government argues that Evans failed to preserve this issue because he did

not object to the instruction at trial. We need not, and therefore do not, reach this issue.

11

reversal in the case before us because it did not “affect[] substantial rights.” Johnson, 117

S. Ct. at 1549. Indeed, upon review of the record, we see no possibility that the

misconduct at issue affected the verdict. Both the original and modified transcripts

indicate that Durham was initially confused about when he left the state of Oklahoma. In

his testimony following the disputed section, however, Durham consistently maintained

that the last time he had been in Oklahoma was in 1990. See 13 R. at 1631-32, 1640,

1641. To the limited extent that the jury may have been able to infer a higher degree of

confusion from the unaltered transcript, the role of that single comment is not significant

in light of Durham’s subsequent, conclusive statements that he had not been to the state of

Oklahoma since 1990.

IV

Durham and Evans both appeal the district court’s decision to instruct the jury that

it could consider false exculpatory statements made by Durham as evidence of Durham’s

consciousness of guilt. The defendants claim that this instruction erroneously relieved the

jury of its obligation to determine the falsity of Durham’s statements. Thus, defendants

contend, the instruction effectively directed a verdict on the perjury counts and tainted the

conspiracy conviction by informing the jury that Durham’s claim to have had no drug

dealings with either Evans or Montgomery was false.5

 We review jury instructions as a
6

 The instruction submitted to the jury stated in part:

When a defendant voluntarily offers an explanation or voluntarily makes some

statement tending to show his innocence and it is later shown that the defendant

knew that the statement or explanation was false, the jury may consider this as

showing a consciousness of guilt on the part on the part of the defendant Monson

Lee Durham, Jr. . . . since it is reasonable to infer that an innocent person does not

usually find it necessary to invent or fabricate an explanation or statement tending

(continued...)

12

whole and apply a de novo standard of review to determine the propriety of an individual

jury instruction to which objection was made at the time of trial. See United States v.

Scarborough, 128 F.3d 1373, 1377 (10th Cir. 1997) (citing United States v. Mullins, 4

F.3d 898, 900 (10th Cir. 1993)).

To prove perjury, the government must establish beyond a reasonable doubt that:

(1) the defendant made a declaration under oath before a federal court; (2) such

declaration was false; (3) the defendant knew the declaration was false; and (4) the

declaration was material. See 18 U.S.C. § 1623(a); United States v. Neal, 822 F.2d 1502,

1506 (10th Cir. 1987) (citing Hale v. United States, 406 F.2d 476, 479 (10th Cir. 1969)). 

The jury in this case was so instructed. See 3 R., doc. 108 at 48. The instruction on false

exculpatory statements, which this court allows to prove consciousness of guilt, see

United States v. Ingram, 600 F.2d 260, 262 (10th Cir. 1979), does not require otherwise. 

This latter instruction merely informs the jury that it may infer consciousness of guilt

from an exculpatory statement if, in the light of other evidence produced at trial, the jury

determines that the defendant knew the statement was false when it was made.6 The
6

 (...continued)

to establish his innocence.

3 R., doc. 108 at 49-50 (emphasis added). This instruction was taken from the Devitt &

Blackmar treatise. See 1 Edward J. Devitt et al., Federal Jury Practice and Instructions §

14.06 (4th ed. 1992).

7

 Although neither defendant raises this issue precisely, we also note that the

instruction on false exculpatory statements does not direct a verdict on the "knowing"

element of the crime of perjury. By its own terms, the instruction does not become

relevant to the jury's deliberations until the jury has already found that the defendant knew

that the statement was false when he made it. See 3 R., doc. 108 at 49-50.

13

instruction simply does not require the jury to consider any statement false.7

Yet defendants’ argument is not entirely without merit. The statements made by

Durham in which he denied participating in any drug transactions with Evans and

Montgomery were essentially denials of the conspiracy charged in the indictment. The

only way the jury could find that the statements at issue in this case were false would be

to conclude that Durham was a member of Montgomery's cocaine distribution conspiracy. 

That conclusion would necessarily render irrelevant consciousness of guilt. This

circularity problem recurs whenever a jury can only find an exculpatory statement false if

it already believes other evidence directly establishing guilt. Under such circumstances, it

is error to give a false exculpatory statement instruction. See United States v. Littlefield,

840 F.2d 143, 149 (1st Cir. 1988).

Nevertheless, a faulty jury instruction only requires reversal if the error is

prejudicial. See Dikeman v. National Educators, Inc., 81 F.3d 949, 955 (10th Cir. 1996). 

Here, "[t]he instruction's effect could not be prejudicial because it [was] redundant." 
14

Littlefield, 840 F.2d at 150. By its own explicit terms, the false exculpatory statement

instruction was of no relevance to the jury until it determined that the defendant

knowingly made a false statement tending to establish his innocence. To make that

determination, the jury must have already independently concluded that Durham was a

member of Montgomery's drug conspiracy. The court's instruction that it could consider

false exculpatory statements as evidence of Durham's consciousness of guilt only allowed

the jury to "re-prove" what it had already found to begin with, that Durham was guilty of

conspiracy. Consequently, the instructional error was harmless.

V

The defendants claim that the use of a juror from outside of the district in which

the trial occurred is constitutional and statutory error that requires this court to reverse

their convictions. The Sixth Amendment provides that a criminal defendant is entitled to

a trial “by an impartial jury of the State and district wherein the crime shall have been

committed.” U.S. Const. amend. VI. The Jury Selection and Service Act of 1968, 28

U.S.C. §§ 1861-1878, also guarantees the right of a criminal defendant to a “petit jur[y]

selected at random from a fair cross section of the community in the district or division

wherein the court convenes.” 28 U.S.C. § 1861. During the second week of trial, the

district court became aware that one of the jurors on the panel had moved out of the

Northern District of Oklahoma. Outside the presence of the defendants, the district judge

informed counsel for the government and the defense that the juror would have to be
15

replaced “unless you all waive the situation.” 14 R. at 1798. Although it is unclear

whether the defendants were consulted about the decision, all the attorneys waived the

defect. See id. at 1802-03.

The defendants argue that their right to a properly constituted jury is fundamental

and that any waiver that appears in the record is inadequate because there is no evidence

that the defendants personally waived such rights. “Whether a particular right is

waivable; whether the defendant must participate personally in the waiver; whether

certain procedures are required for waiver; and whether the defendant’s choice must be

particularly informed or voluntary, all depend on the right at stake.” United States v.

Olano, 507 U.S. 725, 733 (1993) (citing 2 Wayne R. LeFave & Jerold H. Israel, Criminal

Procedure § 11.6 (1984)). Equating by analogy the vicinage requirement of the Sixth

Amendment to the fundamental right to trial by jury, defendants argue their convictions

must be reversed because the record does not demonstrate that the waivers were

“knowing, intelligent, and voluntary at the time [they were] accepted by the district

court.” United States v. Robertson, 45 F.3d 1423, 1433 (10th Cir. 1995) (holding that

trial by jury is a fundamental right that can only be waived by defendant in person).

This analogy is misplaced. The issue here is not the deprivation of trial by jury,

but the question of what constitutes a valid waiver to defective jury composition. When a

defense attorney decides for reasoned strategic purposes not to make a constitutional or

statutory objection to the composition of a petit jury, the defendant is bound even if the
16

attorney fails to consult him or her about the choice. See United States v. Stewart, 700

F.2d 702, 704-05 (11th Cir. 1983); Winters v. Cook, 489 F.2d 174, 176 (5th Cir. 1973)

(en banc); see also United States v. Spiegel, 604 F.2d 961, 965 n.9 (5th Cir. 1979) (“Only

where there is evidence of fraud or gross incompetence by an attorney—which is not at

issue here—or where an ‘inherently personal right of fundamental importance is

involved,’ does the law require defendant to personally waive his or her rights.” (quoting

Winters, 489 F.2d at 178)).

As soon as the vicinage defect was discovered, the court brought the problem to

the attention of trial counsel. Asked to consider the possibility of waiver, Evans’s counsel

announced that the decision would have to be made on “tactical” grounds. 14 R. at 1799. 

Having ascertained the identity of the alien juror, Evans’s counsel stated: “[T]he alternate

doesn’t appear to have been taking notes and because of all of the inconsistencies in the

testimony of the government’s witnesses, the ones who took notes will be better for us to

argue to, so we will waive.” Id. at 1802. Durham’s attorney waived immediately

thereafter. See id. We have no doubt that counsels’ decision to waive was made for

sound reasons of trial strategy.

Although the better practice would be for the court to inform the defendant

personally on the record of the nature of the right and the consequences of a waiver, an

attorney need not consult with his client on every possible decision that has constitutional

implications. See Estelle v. Williams, 425 U.S. 501, 508 n.3 (1976) (noting that, although
17

the courts require that the defendant make a knowing decision to forgo the fundamental

right to the assistance of counsel, the Court does not engage “in this exacting analysis

with respect to strategic and tactical decisions, even those with constitutional

implications, by a counseled accused”). Here, trial counsel for both defendants made a

considered, tactical decision to enhance the potential for acquittal. That decision served

as a proper waiver of the defendants’ constitutional and statutory rights to a jury

comprised of citizens from the district in which the crime occurred.

VI

Evans claims he was prejudiced by the trial court’s refusal to sever his trial from

Durham’s after the government charged Durham with four counts of perjury. Keeping in

mind that there is a “preference in the federal system for joint trials of defendants who are

indicted together,” see Zafiro v. United States, 506 U.S. 534, 537 (1993), we review a

district court’s decision to grant or deny a severance for abuse of discretion, and we will

not reverse absent an affirmative showing of prejudice. See United States v. RodriguezAguirre, 108 F.3d 1228, 1233 (10th Cir.), cert. denied, 118 S. Ct. 132 (1997).

We perceive no abuse of discretion. Evans advances nothing more than

conclusory allegations concerning the existence of prejudice. Substantially the same

evidence that was used to demonstrate the falsity of the statements made by Durham was

used to demonstrate that Evans was part of the conspiracy. See United States v. Shorter,

54 F.3d 1248, 1258 (7th Cir. 1995) (“Perjury counts may be tried with other offenses, . . .
18

especially if the perjury relates to the conduct underlying the other charges.”). And, to the

limited extent that the charges against Durham involved evidence that would not have

been admitted against Evans had he been tried alone, Evans can do no more than

speculate that the jury may have inferred his guilt from that evidence. Such conclusory

“spillover” claims alone do not warrant severance so long as there is sufficient evidence

in the record to convict without the “alleged perjury implication.” Id. at 1259.

VII

Evans also claims that the district court unconstitutionally refused to permit him to

inquire into Montgomery’s prior misdemeanor convictions for assault and battery in an

effort to show how much prison time Montgomery was avoiding through his plea

agreement. “‘[T]he exposure of a witness’[s] motivation in testifying is a proper and

important function of the constitutionally protected right of cross-examination.’” 

Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986) (quoting Davis v. Alaska, 415

U.S. 308, 316-17 (1974)). The Confrontation Clause, however, does not prohibit the

district court from imposing some limits on defense counsel’s inquiry into the potential

bias of a prosecution witness. Id. at 679. “‘[T]he Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.’” Id. (quoting Delaware v.

Fensterer, 474 U.S. 15, 20 (1985) (per curiam)).

Thus, a district court may impose “reasonable limits on such cross-examination
19

based on . . . interrogation that is repetitive or only marginally relevant.” Id. In this case,

the defense was permitted to question Montgomery in the following areas: (1) his

motivation to achieve a reduced sentence for the crimes to which he had pled guilty by

cooperating with the government, see 10 R. at 911, 1052; (2) his fear of imprisonment,

see 10 R. at 915; (3) whether he had taken a lie detector test, see 10 R. at 1044; (4)

documentary evidence that conflicted with Montgomery’s testimony, see 928-29; (5) prior

drug use and drug dealing, see 10 R. at 931-63, 977, 1036; (6) the terms of his plea

agreement, see 10 R. at 989; (7) the profits he retained from his drug dealing, see 10 R. at

990; (8) his prior acts of bribery and attempted bribery, see 10 R. at 995-96, 1006; and (9)

his general propensity to lie and use others in order to avoid trouble with the authorities,

see 10 R. at 992, 1050, 1083, 1109. On the record before us, we conclude that the limits

were reasonable and gave adequate opportunity to conduct an effective crossexamination. See Van Arsdall, 475 U.S. at 679.

VIII

Evans was charged with using and carrying a firearm, during and in relation to the

charged drug conspiracy, in violation of 18 U.S.C. § 924(c)(1). He argues that his §

924(c) conviction must be reversed because the court’s instruction on “use” of a firearm

was erroneous in light of the Supreme Court’s decision in Bailey v. United States, 116 S.

Ct. 501 (1995). We agree that the instructions were erroneous but find that such error

does not require reversal of the jury’s verdict in this case.
20

To prove use under Bailey, the government must show that the “firearm [was] an

operative factor in relation to the predicate offense.” See id. at 505. Mere proximity and

accessibility of the weapon to the defendant is insufficient to establish use. See id. Here,

the district court instructed the jury that “[t]he phrase uses or carries a firearm means

having a firearm available to assist or aid in the commission of the crime charged.” 15 R.

at 1977. Both sides therefore agree that the instructions do not comport with Bailey’s

definition of use as “active employment.” See Bailey, 116 S. Ct. at 506. Moreover, the

government correctly concedes that the evidence is insufficient to support a conviction on

the basis of “use.” Evans’s semi-automatic pistol was found in between the driver’s and

passenger’s seats of the truck Evans was driving when he was stopped for speeding. 

Despite the weapon’s proximity to both the drug proceeds in the vehicle and to Evans

himself, there is no indication that the weapon was actively employed in relation to the

drug conspiracy charged.

Nevertheless, “an erroneous ‘use’ instruction does not require reversal of the

conviction when the jury was also instructed without objection on ‘carry,’ the defendant

did not dispute that the firearm was carried on his person or in his vehicle, and the jury

verdict necessarily includes an inherent finding of ‘carrying during and in relation to the

drug crime.’” United States v. Holland, 116 F.3d 1353, 1359 n.4 (10th Cir.), cert. denied,

118 S. Ct. 253 (1997). We affirm if “convinced that it was impossible upon the evidence

and instructions for the jury to have returned a ‘use’ conviction without finding all the
21

elements of a ‘carrying’ violation as well.” See id.; see also California v. Roy, 117 S. Ct.

337, 339 (1996) (Scalia, J., concurring) (“The error . . . can be harmless only if the jury

verdict on other points effectively embraces this [element] or if it is impossible, upon the

evidence, to have found what the verdict did find without finding this point as well.”). In

this case, the jury was instructed without objection on the carry element and Evans does

not dispute the presence of the firearm in his vehicle. Thus, the only issue before us is

whether the jury’s verdict necessarily incorporates all of the requisite findings to support

a conviction under the “carry” prong of § 924(c).

Evans contends that the jury’s verdict could not necessarily include the requisite

findings because the district court administered an erroneous “carry” instruction when it

failed to instruct the jury that it had to find that Evans had “transported” the weapon. See

United States v. Spring, 80 F.3d 1450, 1465 (10th Cir.), cert. denied, 117 S. Ct. 385

(1996). We agree that the instruction was incomplete and, therefore, erroneous. See id.

Under Holland, however, we look at the “instructions given and the nature of the

evidence” to determine whether the jury’s verdict is the “functional equivalent” of finding

a “carry” violation. See 116 F.3d at 1359 n.4. Thus, the failure to administer a complete

instruction with respect to the “carry” prong of § 924(c) does not mandate reversal if the

jury’s verdict “necessarily embraced all of the elements of a ‘carrying’ violation.” See id.

The “carry” prong involves two elements: “possession of the weapon through the

exercise of dominion or control; and transportation of the weapon.” See United States v.
22

Spring, 80 F.3d 1450, 1465 (10th Cir.) (quoting United States v. Martinez, 912 F.2d 419,

420 (10th Cir. 1990)), cert. denied, 117 S. Ct. 385 (1996). Here, without distinguishing

between “use” and “carry,” the district court instructed the jury that it could convict under

§ 924(c) only if the government “prove[d] beyond a reasonable doubt a firearm was in a

defendant’s possession or under the defendant’s control during and in relation to the

commission of the drug trafficking crime.” 15 R. at 1977. Thus, Evans’s possession of

the weapon during and in relation to the predicate offense was necessarily included in the

jury’s verdict. The question then becomes: could the jury have found that Evans was in

possession of the firearm at the time of the traffic stop without also finding that he had

transported it to that point? The answer is no.

The only firearm the jury considered was the nine millimeter semi-automatic found

between the driver’s and passenger’s seats of the pickup truck being driven by Evans at

the time of the traffic stop on June 21, 1994. At that time, Evans told the arresting officer

that he had a gun in the truck; no other firearms were found during a subsequent search of

the vehicle. We can see no way for the jury to have found that Evans was in possession

of the firearm at the time of the stop without also finding that Evans had transported the

firearm to that location in the first place. See United States v. Richardson, 86 F.3d 1537,

1548 (10th Cir.) (affirming conviction under “carry” prong in part because one firearm

was found “in the truck on the seat next to [the defendant]”), cert. denied, 117 S. Ct. 588

(1996); United States v. Miller, 84 F.3d 1244, 1259 (10th Cir.) (to convict under “carry”
23

prong, “the government is required to prove only that the defendant transported a firearm

in a vehicle and that he had actual or constructive possession of the firearm while doing

so.”), cert. denied, 117 S. Ct. 443 (1996). Based on the evidence and the jury instructions

in this case, the jury’s finding that Evans was in possession of the firearm necessarily

“embraces” the finding that Evans had transported the weapon. Roy, 117 S. Ct. at 339-

40. The jury’s verdict therefore incorporated all of the findings necessary to convict

under the “carry” prong of § 924(c)(1).

IX

The sentencing court found that Durham’s role in the conspiracy was that of a lowpaid broker and, as such, he was less culpable than the “average participant.” 17 R. at

2181. Consequently, the court found that Durham’s role fell between that of a minor and

a minimal participant under § 3B1.2 of the Sentencing Guidelines. His offense level was

therefore decreased by three. See U.S.S.G. § 3B1.2. The government argues this

adjustment was in error.

“‘A trial court’s findings concerning a defendant’s role in a particular offense are

treated by an appellate court as factual findings, which are subject to deferential review

under the clearly erroneous standard.’” United States v. Santistevan, 39 F.3d 250, 253

(10th Cir. 1994) (quoting United States v. Chavez-Palacios, 30 F.3d 1290, 1295 (10th Cir.

1994)). It is undisputed that Montgomery was the leader of the drug distribution

organization that is the subject of this case and that Evans was his partner. Durham’s role
24

was limited to facilitating sales; proceeds from those sales went predominantly to

conspirators other than Durham. Furthermore, Durham had no dealings with Evans or

Montgomery for over two years prior to Montgomery contacting him pursuant to his

agreement with the government. On the record before us, we conclude the sentencing

court made no clear error.

AFFIRMED.