The HONORABLE DAVID S. DOTY, United States District Judge for 1

the District of Minnesota.

___________

No. 96-1566

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Robert Rydell Williams, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota.

United States of America, *

*

Defendant-Appellee. *

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 Submitted: July 26, 1996

 Filed: October 22, 1996

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Before BOWMAN, BEAM, and LOKEN, Circuit Judges.

___________

LOKEN, Circuit Judge.

Federal inmate Robert Rydell Williams appeals the denial of his 28

U.S.C. § 2255 motion for post-conviction relief. Williams argues that his

1988 conviction for violating 18 U.S.C. § 924(c)(1) must be set aside

because jury instructions on the statutory phrase "uses . . . a firearm"

were contrary to Bailey v. United States, 116 S. Ct. 501 (1995). The

district court concluded that Williams cannot establish "actual

1

prejudice," as United States v. Frady, 456 U.S. 152, 170 (1982), requires.

We agree and therefore affirm.

A defendant violates § 924(c)(1) if "during and in relation to any

. . . drug trafficking crime . . . [he] uses or carries a firearm." In

Bailey, the Supreme Court held that a conviction for
 This § 2255 motion is also both successive and abusive under 2

McCleskey v. Zant, 499 U.S. 467 (1991), but the government does not

contend that this affects our standard of review. Likewise, we do

not consider whether Williams's claim is even cognizable under

§ 2255 because the government has not raised the issue. See

Anderson v. United States, 25 F.3d 704 (8th Cir. 1994).

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"use" of a firearm "requires evidence sufficient to show an active

employment of the firearm by the defendant, a use that makes the firearm

an operative factor in relation to the predicate offense." "Active

employment" includes "brandishing, displaying, bartering, striking with .

. . firing or attempting to fire, a firearm." However, "[a] defendant

cannot be charged under 924(c)(1) merely for storing a weapon near drugs

or drug proceeds." 116 S. Ct. at 505-08. Bailey overruled our prior

decisions affirming § 924(c)(1) convictions of defendants who merely stored

firearms at their residences to protect drugs or proceeds. See, e.g.,

United States v. Harris, 10 F.3d 596, 597 (8th Cir. 1993), and cases cited.

Williams's indictment charged him with two drug trafficking crimes

and a § 924(c)(1) violation -- that he "did knowingly and unlawfully use

and carry a firearm, namely, a Smith & Wesson .38 caliber revolver . . .

during and in relation to a drug trafficking crime, namely, the knowing and

intentional possession with intent to distribute of approximately ten grams

of cocaine base." A jury convicted Williams on all three counts, and we

affirmed. United States v. Williams, 895 F.2d 1202 (8th Cir. 1990).

Williams subsequently filed two unsuccessful § 2255 motions for postconviction relief, one of which challenged the evidentiary sufficiency of

his § 924(c)(1) conviction.

Williams's trial was conducted on the assumption that our pre-Bailey

cases were the governing law of this circuit. Therefore, Williams did not

object to the district court's jury instruction defining "use" of a firearm

under § 924(c)(1). In other words, the jury instruction issue he now

raises is procedurally defaulted.2
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To obtain post-conviction relief for an erroneous jury instruction to which

no contemporaneous objection was made, Williams must show cause excusing

his procedural default and "actual prejudice" resulting from the alleged

error. Frady, 456 U.S. at 168. The actual prejudice standard is more

rigorous than the showing required to establish plain error on direct

appeal. 456 U.S. at 166, quoting Henderson v. Kibbe, 431 U.S. 145, 154

(1977); see Dalton v. United States, 862 F.2d 1307, 1309 (8th Cir. 1988).

To establish such prejudice, Williams must show that an erroneous jury

instruction "worked to his actual and substantial disadvantage, infecting

his entire trial with error of constitutional dimensions." 456 U.S. at 170

(emphasis in original). We conclude that he has failed to do so for the

following reasons. 

First, it is not clear to us that the district court's instruction

on "use" of a firearm was plain error under Bailey. The court instructed

the jury:

Two essential elements are required to be proved in order to

establish an offense of using a firearm in relation to a drug

trafficking crime. They are as follows: First, that the defendant

committed a drug trafficking crime for which he might be prosecuted

in the United States Court; and second, that during the commission

of the drug trafficking crime the defendant used a firearm.

* * * * *

The defendant is considered to have used a firearm if its presence

in his possession in any manner facilitated carrying out the drug

trafficking crime. It is not necessary that the firearm be fired in

order that it may be considered as having been used.

The word "facilitated" in this instruction is more passive than the

words used in Bailey to describe the concept of "active employment" --

brandishing, displaying, bartering, striking with, firing. But the

instruction is far more consistent with Bailey than the instruction that

caused us to reverse for plain error in
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United States v. Webster, 84 F.3d 1056, 1066 (8th Cir. 1996). An

instructional error must be of "constitutional dimensions" to warrant postconviction relief under Frady. That requires a showing that "the ailing

instruction by itself so infected the entire trial that the resulting

conviction violates due process, not merely [that] the instruction is

undesirable, erroneous, or even universally condemned." Henderson, 431

U.S. at 154, quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). While

we would not recommend using this instruction in a post-Bailey case, it

provides a very flimsy basis for post-conviction relief under Frady. 

Second, to establish actual prejudice from an instruction error,

Frady requires that Williams show a "substantial likelihood" that a

properly instructed jury would have acquitted him of violating § 924(c)(1).

456 U.S. at 172. At trial, consistent with Williams's indictment, the

district court instructed the jury, "[i]t is sufficient if the United

States proves either that firearms were used or carried. Both do not have

to be proved." Thus, in considering prejudice under Frady, we must

consider whether the evidence was sufficient to convict Williams of a

"carry" violation. Williams argues that we should not assume the jury

found a "carry" violation because the instructions devoted more attention

to defining "use." But the instructions, fairly read, explicitly and

properly gave the jury the option of finding a "carry" violation, so that

option is part of the Frady analysis.

 

Briefly summarized, the trial evidence was that, in January 1988,

police raided a fortified Minneapolis crack house by driving a front-end

loader through an exterior wall and into the first floor apartment where

Williams resided. In that apartment, they found personal items belonging

to Williams, drug paraphernalia, an unloaded .38 caliber revolver under the

couch, and four .38 caliber bullets near the revolver. Williams was

arrested after he broke a basement window, bent back the bars over that

window, and attempted to escape. Police later found forty "chunks" of

crack cocaine and
 We do not reach the question whether this evidence would also 3

support a § 924(c)(1) "use" conviction. Unlike this case, Bailey

did not involve a drug conspiracy. But Williams's indictment did

not charge him with using the firearm during and in relation to his

conspiracy offense. Had it done so, we would face the question

whether Bailey leaves intact prior decisions such as United States

v. Drew, 894 F.2d 965, 968 (8th Cir.), cert. denied, 494 U.S. 1089

(1990), in which we affirmed a § 924(c)(1) "use" conviction because

participants in a drug trafficking conspiracy regularly displayed

guns to intimidate purchasers at a drug house. 

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$1290 in the basement apartment from which Williams had fled. His two

conspirators were arrested in the building eight days later after resuming

sales of crack cocaine. 

"[T]o sustain a conviction for `carrying' a firearm in violation of

§ 924(c)(1), the government must prove that [the accused] bore the firearm

on or about his person during and in relation to a drug trafficking

offense." United States v. White, 81 F.3d 80, 83 (8th Cir. 1996). As the

facts in White make clear, a person who throws a gun down and flees the

scene of a drug trafficking crime may be convicted of a "carry" violation.

Here, the government presented evidence that Williams fled the scene of ongoing crack cocaine distribution, leaving a firearm and bullets scattered

in his apartment. We agree with the district court that this evidence was

sufficient to convict Williams of a § 924(c)(1) "carry" violation. See

United States v. Willis, 89 F.3d 1371, 1378-79 (8th Cir.), cert. denied,

65 U.S.L.W. 3265 (U.S. Oct. 7, 1996). Thus, Williams cannot prove actual

prejudice under Frady.

3

The district court order dated February 20, 1996, is affirmed.

A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.