United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1660

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United States of America, *

Plaintiff - Appellee, * Appeal from the United States

 v. * Western District of Missouri.

Willie Mays Aikens, *

Defendant - Appellant. *

*

* District Court for the

*

*

*

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Submitted: September 12, 1997.

 Filed: January 6, 1998

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Before McMILLIAN, ROSS, and HANSEN, Circuit Judges.

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HANSEN, Circuit Judge.

This case comes to us for a second time after the Supreme Court vacated

our prior opinion, United States v. Aikens, 64 F.3d 372 (8th Cir. 1995), and

remanded the case to us in light of Bailey v. United States, 116 S. Ct. 501

(1995). See Aikens v. United States, 116 S. Ct. 1346 (1996). On remand, we

affirmed Willie Mays Aikens’ drug trafficking convictions and ordered that

his conviction for using a firearm during a drug trafficking offense be

remanded to the district court for further proceedings. The
The Honorable Dean Whipple, United States District Judge for the Western

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District of Missouri.

The facts underlying Aikens’ drug trafficking convictions are detailed in our

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prior opinion. See Aikens, 64 F.3d at 373-74.

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district court upheld Aikens’ firearm conviction. Aikens appeals, arguing 1

that there is insufficient evidence to support the conviction and that it was

plain error to submit a jury instruction that failed to comport with the

Supreme Court’s decision in Bailey. We affirm.

I

We explain only those facts relating to Aikens’ firearm conviction.2

Aikens manufactured crack in the den of his home by mixing cocaine and baking

soda in a glass beaker, pouring water on it, heating it with a hand-held

torch, baking it in a microwave, and running cold water over it. Aikens

stored these supplies for making crack, along with scales, strainers and

other drug paraphernalia, in his den. On January 28, 1994, an undercover

police officer visited Aikens’ home to purchase crack cocaine. While in the

den, the undercover officer observed a long-barreled gun that she thought was

a rifle or a shotgun “leaning against the couch” where Aikens sat while he

manufactured the cocaine mixture into crack. (Trial Tr. Vol. I at 36.) The

undercover officer asked Aikens if he was a hunter, referring to the weapon.

Aikens replied that he was not a hunter but that he had the gun for

protection. On March 1, 1994, the police executed a search warrant at

Aikens’ home and seized, among other things, a loaded .12-gauge shotgun

located by a door in the den. 

A federal grand jury charged Aikens with one count of using a firearm

during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)

(1994), and other drug trafficking offenses. The jury convicted Aikens on

all counts. For his use of a firearm,
18 U.S.C. § 924(c)(1) imposes a consecutive five-year minimum term of

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imprisonment upon a person who “during and in relation to any crime of violence or

drug trafficking crime . . . uses or carries a firearm.”

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Aikens received a consecutive 60-month sentence in addition to his sentences

for the drug trafficking convictions.

Aikens appealed to this court and we affirmed his convictions and

sentences. See Aikens, 64 F.3d at 377. Aikens then petitioned for a writ

of certiorari to the United States Supreme Court. The Supreme Court vacated

our prior opinion and remanded the case to us for reconsideration in light

of Bailey. See Aikens, 116 S. Ct. at 1346. We then affirmed Aikens’ crack

cocaine distribution convictions and ordered that his conviction for using

a firearm during a drug trafficking offense be remanded to the district court

for further proceedings. The district court affirmed Aikens’ firearm

conviction and he brought this appeal, claiming insufficiency of the evidence

and plain error in the jury instructions.

II

We first address Aikens’ claim that there is insufficient evidence to

support his conviction for using a firearm during and in relation to a drug

trafficking offense in violation of 18 U.S.C. § 924(c)(1). In reviewing the 3

record, “[w]e view the evidence in the light most favorable to the jury’s

verdict, and we will reverse for insufficient evidence only if no reasonable

jury could have found the defendant guilty beyond a reasonable doubt.”

United States v. Czeck, 105 F.3d 1235, 1240 (8th Cir. 1997) (internal

quotations omitted).

In Bailey, the Supreme Court held that “[t]o sustain a conviction under

the ‘use’ prong of § 924(c)(1), the Government must show that the defendant

actively employed the firearm during and in relation to the predicate crime.”

Bailey, 116 S. Ct. at 509. 
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Active employment “includes brandishing, displaying, bartering, striking

with, and most obviously, firing or attempting to fire, a firearm.” Id. at

508. The Court added that “a reference to a firearm calculated to bring

about a change in the circumstances of the predicate offense is a ‘use,’

just as the silent but obvious and forceful presence of a gun on a table can

be a ‘use.’” Id. By contrast, the Court distinguished the storage or

concealment of a weapon at or near the site of a drug crime by the

defendant. These circumstances, the Court explained, do not satisfy the

requirement of “use”; the “inert presence of a firearm, without more, is not

enough to trigger § 924(c)(1).” Id. Likewise, “[i]f the gun is not

disclosed or mentioned by the offender, it is not actively employed, and it

is not ‘used.’” Id.

Our review of the record convinces us that there is sufficient

evidence to convict Aikens of using a firearm during and in connection with

a drug trafficking crime. The shotgun leaning against the couch was

visible to the undercover officer while Aikens was “cooking” the cocaine

into crack to sell to her. Aikens sat on the couch when he manufactured the

crack. Because of Aikens’ close proximity to the weapon, he could

immediately fire it if anything went wrong during the drug transaction.

Also, while manufacturing the crack, Aikens specifically told the undercover

officer that the gun was for his protection and not for hunting. Finally,

the shotgun was found loaded and in Aikens’ den when the search warrant was

executed.

This evidence shows Aikens did more than merely store his shotgun near

the drug crime. Aikens told the buyer the gun was for his protection, the

gun was clearly displayed during the drug transaction, and the gun was in

close proximity to Aikens while he manufactured and sold the crack. These

facts show that the gun was “calculated to bring about a change in the

circumstances” of the underlying drug offense. Bailey, 116 S. Ct. at 508.

The shotgun served as a “silent but obvious and forceful presence” during

both the manufacturing and sale of the crack sufficient to constitute “use”

of the firearm under § 924(c)(1). Id. We find support for our conclusion

in Czeck, where we held that “[b]y making it plain to his customers that he
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was armed and willing to defend his business, [the defendant] discouraged

them from any attempt to rob him and effectively may have warned them that

negotiation over the price and quality of his wares was not encouraged.”

Czech, 105 F.3d at 1241. Aikens’ weapon served similar purposes here. 

Aikens next argues that the district court committed plain error when

the court instructed the jury that the phrase “used a firearm” in §

924(c)(1) “means having a firearm available to aid in the distribution of

cocaine base (‘crack’).” (Jury Instruction No. 23.) Because Aikens did not

object to this instruction at trial, we review for plain error. Fed. R.

Crim. P. 52(b); United States v. Beasley, 102 F.3d 1440, 1452 (8th Cir.

1996), cert. denied, 117 S. Ct. 1856 (1997). We must initially determine

whether the district court’s error was plain and if it affected Aikens’

substantial rights. Beasley, 102 F.3d at 1452. Unlike harmless error

review conducted pursuant to Rule 52(a), plain error analysis under Rule

52(b) normally requires the defendant, rather than the government, to bear

the burden of persuasion to show the error affected his substantial rights.

United States v. Olano, 507 U.S. 725, 734 (1993). If the error was plain

and substantial rights were affected, “we exercise our discretion to reverse

only where the error ‘seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings.’” United States v. Herron, 97 F.3d 234,

238 (8th Cir. 1996) (quoting Olano, 507 U.S. at 736) (alternation in

Herron), cert. denied, 117 S. Ct. 998 (1997).

The government concedes that this instruction, which was proper under

the law of this circuit at the time it was given, erroneously defined the

term “use” in light of the Supreme Court’s intervening decision in Bailey.

Thus, the error is plain. See United States v. Webster, 84 F.3d 1056, 1067

(8th Cir. 1996) (court applies law applicable at time of appeal to determine

plain error). However, the government contests Aikens’ claim that the error

affected his substantial rights. A defendant’s “substantial rights are

affected if the error prejudicially influenced the outcome of the district

court proceedings.” Beasley, 102 F.3d at 1452. If a proper instruction

would not have
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altered the jury’s conclusion, then Aikens’ substantial rights have not been

affected by the erroneous instruction. Id.

Our review of the record leads us to conclude that Aikens’ substantial

rights have not been affected. As discussed previously, the evidence

presented showed that Aikens actively employed his shotgun during and in

relation to the crack cocaine distribution crime. The gun was an obvious

and forceful presence during both the manufacturing and sale of the crack

cocaine by Aikens. Beyond a reasonable doubt, Aikens “used” the shotgun

during and in connection with the drug trafficking offense. A proper jury

instruction regarding the definition of the term “use” would not have

altered the jury’s conclusion that Aikens was guilty of violating §

924(c)(1). Because Aikens has not shown his substantial rights were

affected, he has not satisfied the plain error standard, and we affirm his

conviction. See Beasley, 102 F.3d at 1452-53. 

III

We have rejected all of Aikens’ arguments for reversal of his firearm

conviction. Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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