No. 95-2026

United States of America, * *

Plaintiff - Appellee, * * Appeal fro m the United States v. * District Court for the Eastern * District of Missouri. George A. Webster, Jr., * * Defendant - Appellant.*

Submitted: November 14, 1995 Filed: May 30, 1996

Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

In a seven count indictment, the Government charged George A

. Webster, Jr., with co mmitting various narcotics and firearms offenses. A jury convicted Webster on all counts, and he now appeals. Though a recent Suprem e Court opinion requires us to reverse Webster's conviction fo r violating 18 U.S.C. § 924(c)(1) (1994) by using or carrying a firear m "during and in relation to" a drug trafficking c rime, we otherwise affirm.

I. BACKGROUND

On September 28, 1993, Missouri offi cials arrested James Suggs as he

was travelling to a location where he was scheduled to sell a half-ounce of crack cocaine to an undercover officer. Suggs immediately bega n cooperating with police and informed them that appellant George Webster wa s his narcotics supplier. At that time,

### 2

the officers arranged to observe a transaction between Webster and Suggs during which Suggs wo uld pay Webster $550 for crack that the supplier had "fronted" him. Missouri Highway Patrol Trooper Paula Woodruff accompanied Suggs to the meeting; while she was not physically present in Webster's ca r when the exchange occurred, she was able to witness the two dealer s conversing from another vehicle parked nearby. Further, she had "wired" Sug gs with a hidden device that recorded the event. The tape, thoug h par tially inaudible due to a prevalent electronic hum that obscures th e recording, indicated to Trooper Woodruff that the speakers were planning future drug deals. This belief was confirmed by Suggs's own account of th e discussion.

On January 13, 1994, Missouri Highway Patrol Corporal Kevin Glase r monito red another drug transaction between Suggs and Webster. Afte r searching Suggs and h is residence to verify that both were free of drugs, Corpo ral Glaser concealed a video camera in the living room of Suggs' s trailer home. In addition, the officer hid a miniature tape recorder on Suggs. Corporal Glaser then secluded himself within the bedroom of th e house and waited for Webster's imminent appearance. When Webster arrived at the tr ailer, he and Suggs conducted a transaction in which Sugg s purchased an approximate half-ounce of crack cocaine for $600. Th e recording devices memorialized the deal, but the re were problems with both media. The separate audio recordings created by the instruments were , again, partially inau dible. Additionally, as the stationary video camera was unable to fully a ccommodate the movements of its ambulatory subjects, Webster and Suggs at some points ventured beyond the range of the camera's lens. Th e video does reveal, however, that the two men exchanged item s
across a kitchen counter, and Trooper Glaser later retrieved from th e counter a substance that proved to be crack cocaine.

During th is period of time when Webster was unknowingly transacting business with a confidential informant, he had other,

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more overt, encounter s with law enforcement authorities. Police officers in Carbondale, Illino is arrested Webster on January 25, 1994 as he exited

a train from Chicago. The officers found that Webster was carrying a larg e amount of cocaine in a leather bag. In subsequent custodial interviews, Webster admitted his involvement in a narcotics distribution enterprise an d informed investigators that he had purchased "for his protection" a firear m with a "banana clip." This admission corroborated statements made b y Suggs, indicating that Webster had brandished a similar weapon to th e informant and had stated that "if something go d own, I [Webster] have some protection." Authori ties, though, were unable to locate the gun during a
sear ch of the residence in which Webster said the weapon was stored

. Noneth eless, while thereafter executing a federal search warrant at a different dwelling, officers discovered several individuals, includin g Webster, along with a banana clip like Webster had described. The officer s also f ound within the house illegal drugs, drug paraphernalia, an d pap erwork in Webster's name. In a contemporaneous consensual search o f Webster's parked vehicle, the officials found over 700 rounds of ammunitio n for the banana clip.

The G overnment returned a seven count indictment against Webster , charging him with: 1 ) one count of conspiracy to distribute cocaine base (count one); 2) two substantive counts of distributing cocaine base (count s two and three); 3) one count of using a firearm during the commission of

a drug trafficking felony (count four); 4) one count of unlawfu l acquisition of a firearm by a convicted felon (count five); and 5) tw o counts of possession of a firearm by a felon (counts six and seven). At Webster's trial, Troo per Woodruff testified during cross-examination that her review of the recording she caused to be mad e clearly indicated to her "that Mr. Webster is talking to Mr. Suggs, and they are discussing future drug transactions." The prosecutor did not, however, play the tape of tha t conversation for the jury. In contrast, the prosecutor did play for the jury both the audio and video tapes of

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the deal that took place at Suggs's trailer.

On the fourth and last day of trial, Webster relayed to the district judg e that he wished to discharge his appointed counsel, Mr. Jeffre y Rosanswank. The following colloquy, edited for relevance, then ensued:

THE COURT: All right. Come up, Mr. Webster, to th e podi um. . . . Now, I am going to ask you some questions, an d the questions that I am going to ask you involve your apparent request to discharge your attorney. And, accordingly, I will not allow those questions and your answers to be used against you. But do you desire to discharge your attorney? THE DEFENDANT: Yes, I do, your Honor.
THE COURT: Now, we are in the middle of trial. As a matter of fact, we are near the end of the trial. If I allow you to discharge your present attorney, I am not going t o continue the case, and I am not going to appoint anothe r at torney for you. Do you still want to discharge him unde r those circumstance[s]?

THE DEFENDANT: Well, I have a right, if I discharge m y attorney, I have a right --

THE COURT: You do not have that right. We are in th e middle of trial. This case is in jeopardy, so we m ust proceed. I will let you proceed, if you wish to proceed on y our own, but I am n ot going to get another lawyer for you. It's tha t simple. I will do this: If you want to represent yourself, I will allow you to do this for the remainder of the trial, but I am goin g to insist that Mr. Rosanswank sit with you in a n advisory-attorney capacity. I am assuming you are not skilled in the law. That's true, is it not?
THE DEFENDANT: That's true. THE COURT: You have no legal training, do you?
THE DEFENDANT: That's true.
THE C OURT: You would not have the slightest idea abou t how to consider the Court's instructions that we are going to give to the jury at the end of the case, do you?

### 5 THE DEFENDANT: No, I don't.
THE CO URT: Now, under all of those circumstances, an d knowin g that you are not skilled, and that you do have a skilled attorney representing you at the present time, do you still want to discharge him? THE DEFENDANT: Yes, I do, your Honor.

After the court undertook an assessment of Webst er's capacity to knowingly and voluntarily waive his right to counsel, the dialogue continued:

THE COURT : You understand that we are still going t o proceed in this matter, and you are going to have to represent yourself, with Mr. Rosanswank advising you? THE DEFENDANT: Yes, I do. THE COURT: And you want to proceed on that basis?

THE DE FENDANT: The question is, your Honor, I reall y don't, but --
THE COURT : Well, you want another lawyer, and I hav e already told you I am no t going to stop this trial and get you another lawyer. But other than that, do you still want t o proceed in the way that I have just suggested?

THE DEFENDANT: I don't want to proceed in that way. I say I don't want to proceed in that way.

THE COURT: Well, that's the only way I am going to le t you. I am going to let you proceed in one of two ways: Th e first is[ ,] we will go along just as we have been. Mr

. Rosanswa nk will continue to be your attorney. . . . Now, th e sec ond option is that Mr. Rosanswank be discharged, and tha t you represent yourself. But if we do that, I am going t o insist that Mr. Rosanswank stay at your side in an advisor y capacity. Now, which of the two ways do you wish to proceed? I am only going to let you go one of those two ways.

TH E DEFENDANT: Well, I am discharging Mr. Rosanswank , and I know I can't repre sent myself, so -- I am just not going to do it both ways.

TH E COURT: Well, you are going to do it one of the tw o ways. . . . [W]e do not allow a case to be disrupted

### Webster initially raised an additional ground for relief 1 

### claiming that the district court committed error in sentencing. He has since voluntarily withdrawn this argument.
6 at the very end of it, a t the whim of a defendant, because you do not like the way Mr. Rosanswank may be representing you r interests, or whatever your motivation is, to seek to discharge him. Now, do you wish to go ahead and represent yo urself, with Mr. R osanswank advising you, or do you wish to have hi m continue to serve as your attorney, or neither? If it' s neither, I will make the decision. THE DEFENDANT: It's neither.

THE COURT: All right. I am going to deny your reques t to discharge Mr. Rosanswank, and I am going to insist that he continue to represent you.

The court then inquired into the basis for Webster's discontent and allowe d the defendant, without fear of incrimination, to make any statement for th e record. Webster disclosed that he wished to discharge his attorney becaus e he tho ught that the transcripts for certain pretrial hearings wer e inaccurate and contained statements from individ uals who had not testified at the proceedings. After finding that the offered reasons had "nothing to do with the effect iveness of Mr. Rosanswank," the court reaffirmed its decision denying Webster's request to discharge his lawyer.

Later that day, the jury convicted Webster on all counts. Th e district court sentenced Webster to two hundred ninety-five month s imprisonment, which i ncluded a mandatory sixty month consecutive term for using or carrying a firearm during and in relation to a drug trafficking crime. Th is appeal followed, and Webster now challenges his convictions 1 by arguing that: 1) the district court violated his Sixth Amendmen t rights by improperly disposing of his request to discharge appointe d counsel; 2) the distr ict court committed error by admitting into evidence the audio and video recordings of narcotics transactions; and 3) th e district court improp erly instructed the jury on the law applicable to 18

### 7

U.S.C. § 924(c)(1) and, in any case, there was insufficient evidence t o sust ain his conviction for using or carrying a firearm during and i n relation to a drug trafficking crime. In light of the Supreme Court' s opi nion in Bailey v. United States , 116 S. Ct. 501 (1995), we revers e Webster's conviction for violating 18 U.S.C. § 924(c)(1), but we affirm th e district court in all other respects.

II. DISCUSSION

A. Webster's Attempt to Replace Counsel

In asserting that the district court incorrectly disposed of hi s reque st to discharge Mr. Rosanswank, Webster basically advances tw o discrete arguments. First, he claims that the district court wrongfully refused to replace hi s court appointed attorney. Also, Webster maintains that the court's acti on deprived him of his constitutional right to selfrepresentation.

1. Attorney Discharge

A motion to substitute court appointed counsel is committed to th e district court's soun d discretion. Hunter v. Delo , 62 F.3d 271, 274 (8th Cir. 199 5). To prevail on the request, a criminal defendant mus t demons trate "a conflict of interest, an irreconcilable conflict, or a comple te breakdown in communication between the attorney and th e defendant." United States v. Long Crow , 37 F.3d 1319, 1324 (8th Cir. 1994 ) (quotations omitted), cert. denied , 115 S. Ct. 1167 (1995). "Last-minute requests to substitute defense counsel are not f avored." United States v. Klein , 13 F.3d 1182, 1185 (8th Cir.), cert. denied , 114 S. Ct. 2722 (1994)

.

In this case, the district court acted well within its wid e discretion when it declined to provide substitute counsel.

### Webster additionally contends that the district court, 2 

### before making its decision, did not adequately consider the grounds underlying his motion. Of course, once an indigent defendant requests substitute counsel, "the court has a duty to inquire into the factual basis of the defendant's dissatisfaction." United States v. Blum , 65 F.3d 1436, 1441 (8th Cir. 1995), cert. denied , 116 S. Ct. 824 (1996). Here, the district court granted Webster leave to freely explain the reason for his discontent. Only after Webster had taken advantage of this opportunity did the court conclusively deny the request for replacement counsel. We therefore conclude that the district court satisfactorily inquired into the basis of Webster's dissatisfaction.
8 Webster's extremely untimely request, which came on the last day of trial, did not even begin to meet the standards for replacement set forth in our previous cases. Indeed, as the district court correctly observed, th e alleged basis for Webster's complaints had absolutely nothing to do with Mr. Rosanswank's representation, but rather involved perceived inaccuracie s in transcripts of pretrial proceedings. Accordingly, we find that th e district court correctly refused Webster's attempt to obtain substitut e counsel. 2

2. The Right to Self-Representation

Webster alleges that the district court impinged upon his Sixt h Am endment right to self-representation by offering him the "Hobson' s choice" o f continued representation by a lawyer in whom he had lost al l trust or p roceeding pro se with that same attorney serving as standb y
counse l. Webster concedes that a trial judge may, over a pro s e defendant's objection s, permissibly appoint standby counsel to assist the defendant in an advisory capacity. See McKaskle v. Wiggins , 465 U.S. 168, 184 (1 984). Still, he declares that the district judge in this cas e commit ted error by insisting that Mr. Rosanswank be Webster's standb y counsel. According to Webster, the district court could have cured th e constitutionally offensive choice by displaying a willingness to appoint standby counsel other than Mr. Rosanswank.

### 9 We do not agree that the district co urt's actions violated Webster's Sixth Amen dment rights. First of all, it does not appear to us tha t Webster successfully invoked his right to self-representation. A defendan t who wishes to waive his right to counsel, and thereby to proceed pro se , must do s o clearly and unequivocally. Hamilton v. Groose , 28 F.3d 859 , 862-63 (8th Cir. 1994), cert. denied , 115 S. Ct. 741 (1995). To the exten t tha t Webster at all tried to express a desire to represent himself, a review of the record suggests that attempt was anything but clear an d unequi vocal. While conversing with the district judge, Webster neve r explicitly indicated that he wanted to proceed p ro se ; to the contrary, at
one point he stated that he knew he could not represent himself. It was the trial judge who initially proposed that Webster might proceed pro se
as an alternative to continued representation by Mr. Rosanswank, an d Webster 's primary, if not exclusive, objective seems to have been th e procur ement of substitute counsel. Recognizing that the district judg e must "indulge in every reasonable presumption ag ainst a defendant's waiver of his right to counsel," id

. at 862 (quotation and alteration omitted),

we would be extremely reluctant to find that Webster clearly an d unequivocally expressed his desire to represent himself.

Even assu ming that Webster did correctly invoke this constitutional prerogative, his claim still fails. Appointment of standby counsel i s within the discretion of the district court, and a pro se defendant does not enjoy an absolute right to standby counsel. Locks v. Sumner , 703 F.2d 403, 407-08 (9th Cir.), cert. denied , 464 U.S. 9 33 (1983); see also United States v. Swinney , 97 0 F.2d 494, 498 (8th Cir.)("[T]he district court may properly require the defendant to choose either to proceed pro se , with or without the help of s tandby counsel, or to utilize the full assistance of counsel . . . ."), cert. denied , 506 U.S. 1011 (1992). It necessarily follows that a defendant does not have a right to standby counsel of his own choosing. See United States v. Mills ,

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895 F.2d 897, 904 (2d Cir.), cert. denied , 495 U.S. 951 (1990); Unite d States v. Martin , 790 F.2d 1215, 1218 (5th Cir.), cert. denied , 479 U.S. 868 (1986). Where a district court has elected to appoint standby counsel , the defend ant will be able to compel the attorney's dismissal only b y meeting the criteria applicable to the discharge of a lawyer full y repr esenting the accused. See Swinney , 970 F.2d at 498-99 (applyin g general discharge test to standby counsel situation).

As discussed previously, Webster woefully failed to establish r easons justifying substitution of his appointed counsel . Naturally, then, he was not entitled to demand a different attorney to serve in a standby capacity

. It makes no difference that, in this case, the advisory attorney would hav e been the same lawyer in whom Webster reportedly had lost confidence. The opti ons offered by the district court, characterized by Webster as a "Hobson's choice," re presented a reasonable balance between a respect for Web ster's asserted rights and an understandable desire to preven t dis ruption of an almost concluded criminal trial. See id . at 499 (" A defendant has no right to manipulate his right f or the purpose of delaying and disrupting the tr ial.")(quotations omitted). In fact, other circuits have e xpressly approved a district court's decision to require th e defendant to either continue with appointed coun sel or proceed pro se with that same lawyer acting as a standby attorney. See, e.g., United States

v. Mitchell , 788 F.2d 1232, 1236 (7th Cir. 1986)("[T]he trial court did no t offer [the defendant) an impermissible choice by requiring him to proceed either pro se plus [unwanted] standby counsel or with an attorney he didn' t like."). Webster made no allegation before the district court that Mr

. Rosanswank had provided ineffective assistance, and he was thus faced with "a real alternative" between proceeding pro se or continuing with appointe d counsel as his attorney. See United States v. Blum , 65 F.3d 1436, 144 2 (8th Cir. 1995)(dismissing similar "Hobson's choice" argument wher e defendant had been offered "a real alternative") , cert. denied , 116 S. Ct.

### In fact, the district court could have denied outright 3

### Webster's petition to represent himself. "[T]he right to selfrepresentation is unqualified only if demanded before trial. Once trial commences, that right is subject to the trial court's discretion which requires a balancing of the defendant's legitimate interests in representing himself and the potential disruption and possible delay of proceedings already in progress." United States v. Wesley , 798 F.2d 1155, 1155-56 (8th Cir. 1986)(citation omitted). Under the circumstances of this case, it would have been within the district court's discretion to altogether refuse Webster's request to proceed pro se for the few hours that remained in his trial.
11 824 (1996). We find that the district court scrupulously honored Webster' s Sixth Amendment rights. 3

B. Admission of Tape Recordings

We bster complains that the district court wrongfully received int o evidence the audio and video tapes produced by the Government. Th e admission of tape rec ordings is "within the sound discretion of the trial court and will not be reversed unless there has been an abuse of tha t disc retion." United States v. Martinez , 951 F.2d 887, 888 (8th Cir

. 19 91)(quotations and alteration omitted), cert. denied , 503 U.S. 99 4 (1992).
As a preface to the introduction of a recording, the Government must make a prima facie showing of the tape's trustworthiness. To decide if th e Government has met its foundational burden, the district court uses as a general guideline the factors we enumerated in United States v. McMillan , 508 F.2d 101, 104 (8th Cir. 1974), cert. denied , 421 U.S. 916 (1975). Tha t case requires the prosecution to demonstrate:
(1) the recording device was capable of recording the event s offered in evidence; (2) the operator was competent to operate the device; (3) the recording is authentic and correct; (4 ) cha nges, additions, or deletions have not been made in th e rec ording; (5) the recording has been preserved in a manne r that i s shown to the court; (6) the speakers on the tape ar e identified;

### Webster also urges us to find that the district judge 4 

### committed error by neglecting to assess the tapes in camera before they were played for the jury. We acknowledge that, where possible, it is good practice for the district court to make a pretrial evaluation of a recording's admissibility. See United States v. Nicholson , 815 F.2d 61, 62-63 (8th Cir. 1987). In this case, however, the defense waited until trial before it questioned the tapes' reliability. As observed by our colleagues on the First Circuit: If [a pretrial assessment of admissibility] is not
12 and (7) the conversation elicited was made voluntarily and in good faith, without any kind of inducement.

United States v. Roac h , 28 F.3d 729, 733 (8th Cir. 1994). These criteria
are a useful gauge for determining whether the tape's "substance and the circumstances under which it was obtained [provide] sufficient proof of it s reliability." Id . at 733 n.4 (quotation omitted).

Even whenthe Government satisfactorily clears the McMillan hurdle, the defendant may still prevent admission of the tape by proving that it is inaccurate because of inaudibility or some other infirmity. Unite d States v. Font-Ramirez , 944 F.2d 42, 47 (1st Cir . 1991), cert. denied , 502 U.S
. 1065 (1992). A partially inaudible recording will be inadmissibl e where the defendant establishes that the unintelligible portions are "so substantial, in view of the purpose for which the tape[] [is] offered, as to render the record ing as a whole untrustworthy . . . ." United States

v. Huff , 959 F.2d 731, 737 (8th Cir.)(quotation omitted), cert. denied , 50 6 U.S. 855 (1992).

We conclude that the Government properly authenticated each of th e three contested recordings under the McMillanfa ctors. Webster maintains, however, that the two audio tapes are so inaudib le that the district court shoul d have prohibited their admission. He complains as well that th e audio track of the video tape is hopelessly unintelligible; in addition, he c laims that the video is inaccurate because the camera's lens wa s partia lly obscured and because the stationary recorder was unable t o comple tely track its subjects' movements. We address these allegation s seriatim

. 4

### possible, we see no reason why the district court must

lengthen a trial by listening to the tapes outside the presence of the jury. Some tape recording playbacks run for a considerable period of time. If the recordings are properly authenticated, the trial judge can listen to them as they are played to the jury and rule on objections when made.
United States v. Carbone , 798 F.2d 21, 25 (1st Cir. 1986). We agree with this statement, and we thus decide that the district judge did not commit error when he failed to originally listen to the tapes outside the presence of the jury. See Nicholson , 815 F.2d at 63 ("We disagree with any suggestion, however, that a failure to [listen to tapes before trial] necessarily indicates an abuse of discretion.").
13

1. The September 28, 1993 Audio Tape

We have listened to this tape and ag ree with Webster that a constant electr onic hum severely hampers a listener's ability to discern th e recorded conversation. The district court did admit this tape int o evidence; significantly, however, the Government never played it for the jury. Rather, the pr osecutors offered the cassette primarily because its

mere existence tended to corroborate the testimony of certain witnesses. Because the jury coul d not have been adversely affected by something that it never heard, we cannot say that the district court abused its discretio n when i t allowed the Government to introduce this properly authenticate d tape. Likewise, the district court did not commit plain error when i t allowed Trooper Paula Woodruff, in response to d efense queries, to testify concerning her evaluation of the contents of this tape.

2. The January 13, 1994 Audio Tape

Webster did not object at trial to the introduction of thi s microcassette, and the district court did not commit plain error by

### Also, contrary to Webster's assertions, the district court 5 

### did not permit Corporal Glaser to comment inappropriately about what was portrayed on the video. This serves to distinguish the case at bar from United 6 

### States v. McKinney , 79 F.3d 105, 108-09 (8th Cir. 1996), in which we deemed a Bailey challenge waived because, among other factors, the appellant "did not argue in his initial appeal brief that his conviction for using firearms was in any way infirm."
14 accepting it into evidence. See Roach , 28 F.3d at 732 (applying plai n error analysis where defendant had not objected to admission of tape).

3. The January 13, 1994 Video Tape

We have little difficulty in deciding that the district cour t properly exercised its discretion by approving t he admission into evidence of this v ideo. True, the camera's lens was partially obscured, and th e record ing did not preserve all of Suggs's and Webster's actions ; furthermore, the tape's audio track is less than clear. Nevertheless , these i nfirmities are not so pervasive as to render the tape as a whol e unt rustworthy. The video still has significant probative value, for i t shows Suggs and Webster conducting some sort of trade across a kitche n counter. After this exchange, Webster can be seen holding in his hand wha t appears to be a wad of money. Moreover, as noted above, Corporal Glaser later collected crack cocaine from the counter. Given these facts, w e think it was certainly within the district court's discretion to admit thi s videotape. 5

C. Webster's Conviction Under 18 U.S.C. § 924(c)(1)

In his initial brief before this Court, Webster alleged that th e Government presented insufficient evidence to sustain his conviction for using or carrying a firearm during and in relation to a drug trafficking crime. After we accepted the case as

6

### 15

submitted , the Supreme Court in Bailey v. United States , 116 S. Ct. 50 1 (1995), explained that the word "use" as employe d in 18 U.S.C. § 924(c)(1) has a narrower meanin g than this Court had previously indicated. Compare id . at 505-09 with Un ited States v. Matra , 841 F.2d 837, 841-43 (8th Cir. 1988). Consequently, we granted the parties' motions to allow supplementa l briefing addressing the effect of Bailey on this appeal.

Webster raises two grounds in support of his argument that the recent Supreme Court opinion compels reversal of this f irearm conviction. First, he asserts that the district court's jury instruction was erroneous. In addition, he continues to maintain that there wa s insufficient evidence to support h is conviction under 18 U.S.C. § 924(c)(1). We reverse fo r instructional error.

In relevant portion, the district court charged the jury:
[I]n order to sustain its burden of proof for the crim e of using or carrying a f irearm during and in relation to . . . a drug trafficking crime, as charged in Count 4 of th e indict ment, the Government must prove these following tw o essential elements beyond a reasonable doubt: And first: The defendant committed the crime of conspiracy t o distribute cocaine base, and to possess cocaine base with the intent to distribute it, as charged in the indictment. And second: During and in relation to the commission of that crime , the defendant knowingly used or carried one or more firearms. Now, the phr ase "uses or carries a firearm" means having a fir earm or firearms available to assist or aid in th e commission of the crime alleged in Count 1 of the indictment. In determining whether the defendant used or carried a firearm, again, you can consider all of the factors received in evi dence in the case, including the nature of the underlyin g drug trafficking crime alleged; the proximity of th e firearm in question; the usefulness of the firearm to the crime alleged; and the circumstances su rrounding the presence of the firearm. Now, the Government is not required to show that the

### Though the Supreme Court recognized that in some situations 7 

### errors might be presumed prejudicial or corrected despite their effect on the outcome, see Olano , 507 U.S. at 735, this is not such a "special" case.
16 defendant actually displayed or fired the weapon. Th e Government is required, however, to prove beyond a re asonable doubt that the firearm was in the defendant' s possession, or under the defendant's control, at the time that a drug trafficking crime was committed, or otherwis e facilitated the commission of the offense, or at least had a role in the offense.

Because Webster did not object to this instruction as given, we may revers e only if t he district court committed plain error. See United States v

. Ryan , 41 F.3d 361, 36 6 (8th Cir. 1994)(en banc), cert. denied , 115 S. Ct. 1793 (1995).

In United States v. Olano , 507 U.S. 725 (1993), the Supreme Cour t elaborated upon the plain error analysis applica ble in cases, like the one presently before us, governed by Federal Rule of Criminal Procedure 52(b). Before considering reversal under that Rule, we must first find that the district court committed an unwaived error. Id . at 732-34. Second, the
error must be plain, that is, clear and obvious, under current law. Id

. at 734. Third, the appellant must show that the error affected hi s substantial rights by prejudicially influencing the outcome of the distric t court proc eedings. Id . at 734-35. Where these prerequisites are met, a 7 court of appeals may order correction of the mistake. Id . at 735. We wil l exerci se this discretion in the appellant's favor where the erro r "'ser iously affects the fairness, integrity or public reputation o f judicial proceedings.'" Id . at 736 (quoting United States v. Atkinson , 29 7 U.S. 157, 160 (1936))(alteration omitted).

Viewi ng the facts of this case in light of the Supreme Court' s decision in Bailey v. United States , 116 S. Ct. 501 (1995), we find that the district court committed error. The judge informed the

### The Government claims that the instruction adequately 8 

### defined the term "carry," but we disagree. In fact, it appears that this Court's traditional definition of the term "use" was so expansive that it effectively swallowed the word "carry." Prior to Bailey , we had infrequent occasion to explicate on the meaning of "carry," and we have only recently held that a person carries a weapon for purposes of § 924(c)(1) when he bears "the firearm on or about his person." United States v. White , 81 F.3d 80, 83 (8th Cir. 1996). The district judge in this case, acting consistently with our previous caselaw, perpetuated the subordination of the term. His instruction defined "use" and "carry" collectively, and the charge did not refer to the words as having separate meanings. Therefore, we are unable to conclude that the court properly apprised the jury of the meaning of "carry."
17 jury t hat a defendant "uses or carries a firearm" whenever he has " a firearm or firearms available to assist or aid in the commission" of a dru g trafficking offense. In evaluating whether Webster "used or carried" the weapon, the jury was told to consider, inter alia , "the proximity of the firearm in question" and "the circumstances surrounding the presence of th e firearm ." It seems to us that the cumulative effect of these and othe r statements allowed the jury to find that Webster criminally used or carrie d the weapon in question due to the "mere presence and ready availability of [the] fi rearm." United States v. Mejia , 8 F.3d 3, 5 (8th Cir

. 8 1993)(quotation omitted). Of course, a conviction based on this factual finding would have been entirely in accord with the previous law of this circuit, but it is inconsistent with the Supreme Court's admonition that "the inert presence of a firearm, without more, is not enough to trigger § 924(c)(1)." Bailey , 116 S. Ct. at 508; see also United States v. Price , 76 F.3d 526, 527-28, 530 (3d Cir. 1996)(finding that Bailey invalidate d instruction very similar to the charge here, but concluding that the error in that case was harmless).

To dete rmine whether the error is clear under current law, we mus t resolve a question expressly left unanswered in Olano . There, the Court declined to consider "the special case where the error was unclear at the time of trial but becomes clear on appeal

### 18

because the applicable law has been clarified." Olano , 507 U.S. at 734. Following the lead of several of our sister circuits, we conclude that, in deciding whether a n error is clear under current law, the proper focus is the law applicable on appeal rather than at trial. See United States v. Viola , 35 F.3d 37, 42 (2d Cir. 1994)("'[C]urr ent law' as used in [plain

error a nalysis] means the law current at the time of the appeal, not a t trial."), cert. denied , 115 S. Ct. 1270 (1995); United States v. Retos , 25 F.3d 1220, 1230 (3d C ir. 1994)(assessing plain error under law applicable at time of appeal); United States v. Jones , 21 F.3d 165, 173 & n.10 (7th Cir. 1994)(same). But cf. United States v. Washington , 12 F.3d 1128, 1138

- 39 (D.C. Cir.)(deciding that plain error framework is inapplicable where the error was not obvious under current law at the time of trial, bu t analyzing claims under the "supervening decision " doctrine), cert. denied , 115 S. Ct. 98 (1994). As such, we find the district court's § 924(c)(1) instruction to be clearly erroneous under current law.

Fur thermore, Webster has successfully demonstrated that the erro r affected his substantial rights. As Chief Judge Arnold counseled in his separate opinion in Ryan : Here, the instruction was erroneous with regard to an essential element of the crime. Had the jury been properly i nstructed in th is case, it could have reached a different conclusion

. Consequently, the judicial proceeding was compromis ed, and [the criminal defendant] was unavoidably prejudiced.
Ryan , 41 F.3d at 370 (Arnold, C.J., concurring a nd dissenting); cf. Viola , 35 F.3d at 42 (finding that where superseding opinion alters previousl y settled law, it is no longer necessary under the plain error analysis for the defendant to prove prejudice; instead, the Government must show that the e rror did not affect the defendant's substantial rights). We hav e alr eady mentioned that the pertinent instruction in the case sub judic e allowed the jury to convict Webster on this coun t even though it might not have found the

### In reaching this conclusion, we reject the Government's 9 

### contention that no rational jury could fail to find that Webster used or carried the weapon in question. In our view, a properly instructed jury might reasonably have determined that the Government's proof did not establish a violation of § 924(c)(1). At the same time, though it is a close question, we hold that there was sufficient evidence to support Webster's conviction on this count. Because we reverse for trial error instead of evidentiary 10 

### insufficiency, we remand for a new trial on this count. See United States v. Schrader , 10 F.3d 1345, 1352 (8th Cir. 1993)( "As there was trial error but not insufficiency of the evidence, defendants may be retried."). We note, though, that any subsequent prosecution for this offense must be consistent with the wording of the original indictment. In other words, the Government must prove beyond a reasonable doubt that Webster used or carried the gun during and in relation to the drug conspiracy charged in count one of the indictment.
19 factual predicate required by Bailey . Accordingly, we believe that Webste r has satisfactorily established that the error "a ffected the outcome of the district court proceedings." Olano , 507 U.S. at 734. 9

Finally, because it is unclear whether a properly instructed jur y would have found Webster guilty of violating § 924(c)(1), we feel that a failure to correct the district court's error could "result[] in a mi scarriage of justice" and would "'seriously affect[] the fairness , integrity, or public reputation of judicial proceedings.'" Ryan , 41 F.3d at 366 (quoting Olano , 113 S. Ct. at 736). We t herefore find it necessary to exe rcise our discretion under Rule 52(b) and reverse Webster' s conviction for using or carrying a firearm during and in relation to a dru g trafficking crime. 10

III. CONCLUSION

We reverse Webster's conviction for using or carrying a firear m during and in relation to a drug trafficking crime and remand for a ne w trial on that count, but we affirm his convictions

### 20

on the six remaining counts in the indictment.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

A true copy.

Attest:

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