No. 95-2026

 

United States of America, *

 *

Plaintiff - Appellee, *

 * Appeal from 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 committing various narcotics and firearms offenses. A

jury convicted Webster on all counts, and he now appeals. Though a recent

Supreme Court opinion requires us to reverse Webster's conviction for

violating 18 U.S.C. § 924(c)(1) (1994) by using or carrying a firearm

"during and in relation to" a drug trafficking crime, we otherwise affirm.

I. BACKGROUND

On September 28, 1993, Missouri officials 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 began

cooperating with police and informed them that appellant George Webster was

his narcotics supplier. At that time,
2

the officers arranged to observe a transaction between Webster and Suggs

during which Suggs would 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 car

when the exchange occurred, she was able to witness the two dealers

conversing from another vehicle parked nearby. Further, she had "wired"

Suggs with a hidden device that recorded the event. The tape, though

partially inaudible due to a prevalent electronic hum that obscures the

recording, indicated to Trooper Woodruff that the speakers were planning

future drug deals. This belief was confirmed by Suggs's own account of the

discussion.

On January 13, 1994, Missouri Highway Patrol Corporal Kevin Glaser

monitored another drug transaction between Suggs and Webster. After

searching Suggs and his residence to verify that both were free of drugs,

Corporal 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 the

house and waited for Webster's imminent appearance. When Webster arrived

at the trailer, he and Suggs conducted a transaction in which Suggs

purchased an approximate half-ounce of crack cocaine for $600. The

recording devices memorialized the deal, but there were problems with both

media. The separate audio recordings created by the instruments were,

again, partially inaudible. Additionally, as the stationary video camera

was unable to fully accommodate the movements of its ambulatory subjects,

Webster and Suggs at some points ventured beyond the range of the camera's

lens. The video does reveal, however, that the two men exchanged items

across a kitchen counter, and Trooper Glaser later retrieved from the

counter a substance that proved to be crack cocaine.

During this period of time when Webster was unknowingly transacting

business with a confidential informant, he had other,
3

more overt, encounters with law enforcement authorities. Police officers

in Carbondale, Illinois arrested Webster on January 25, 1994 as he exited

a train from Chicago. The officers found that Webster was carrying a large

amount of cocaine in a leather bag. In subsequent custodial interviews,

Webster admitted his involvement in a narcotics distribution enterprise and

informed investigators that he had purchased "for his protection" a firearm

with a "banana clip." This admission corroborated statements made by

Suggs, indicating that Webster had brandished a similar weapon to the

informant and had stated that "if something go down, I [Webster] have some

protection." Authorities, though, were unable to locate the gun during a

search of the residence in which Webster said the weapon was stored.

Nonetheless, while thereafter executing a federal search warrant at a

different dwelling, officers discovered several individuals, including

Webster, along with a banana clip like Webster had described. The officers

also found within the house illegal drugs, drug paraphernalia, and

paperwork in Webster's name. In a contemporaneous consensual search of

Webster's parked vehicle, the officials found over 700 rounds of ammunition

for the banana clip.

The Government 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 (counts

two and three); 3) one count of using a firearm during the commission of

a drug trafficking felony (count four); 4) one count of unlawful

acquisition of a firearm by a convicted felon (count five); and 5) two

counts of possession of a firearm by a felon (counts six and seven). At

Webster's trial, Trooper Woodruff testified during cross-examination that

her review of the recording she caused to be made 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 that

conversation for the jury. In contrast, the prosecutor did play for the

jury both the audio and video tapes of
4

the deal that took place at Suggs's trailer.

On the fourth and last day of trial, Webster relayed to the district

judge that he wished to discharge his appointed counsel, Mr. Jeffrey

Rosanswank. The following colloquy, edited for relevance, then ensued:

THE COURT: All right. Come up, Mr. Webster, to the

podium. . . . Now, I am going to ask you some questions, and

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 to

continue the case, and I am not going to appoint another

attorney for you. Do you still want to discharge him under

those circumstance[s]?

THE DEFENDANT: Well, I have a right, if I discharge my

attorney, I have a right --

THE COURT: You do not have that right. We are in the

middle of trial. This case is in jeopardy, so we must proceed.

I will let you proceed, if you wish to proceed on your own, but

I am not going to get another lawyer for you. It's that

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 going to insist that Mr. Rosanswank sit with you in an

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 COURT: You would not have the slightest idea about

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 COURT: Now, under all of those circumstances, and

knowing 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 Webster's capacity to knowingly

and voluntarily waive his right to counsel, the dialogue continued:

THE COURT: You understand that we are still going to

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 DEFENDANT: The question is, your Honor, I really

don't, but --

THE COURT: Well, you want another lawyer, and I have

already told you I am not going to stop this trial and get you

another lawyer. But other than that, do you still want to

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 let

you. I am going to let you proceed in one of two ways: The

first is[,] we will go along just as we have been. Mr.

Rosanswank will continue to be your attorney. . . . Now, the

second option is that Mr. Rosanswank be discharged, and that

you represent yourself. But if we do that, I am going to

insist that Mr. Rosanswank stay at your side in an advisory

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.

THE DEFENDANT: Well, I am discharging Mr. Rosanswank,

and I know I can't represent myself, so -- I am just not going

to do it both ways.

THE COURT: Well, you are going to do it one of the two

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, at the whim of a defendant, because you

do not like the way Mr. Rosanswank may be representing your

interests, or whatever your motivation is, to seek to discharge

him. Now, do you wish to go ahead and represent yourself, with

Mr. Rosanswank advising you, or do you wish to have him

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 request

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 allowed

the defendant, without fear of incrimination, to make any statement for the

record. Webster disclosed that he wished to discharge his attorney because

he thought that the transcripts for certain pretrial hearings were

inaccurate and contained statements from individuals who had not testified

at the proceedings. After finding that the offered reasons had "nothing

to do with the effectiveness 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. The

district court sentenced Webster to two hundred ninety-five months

imprisonment, which included a mandatory sixty month consecutive term for

using or carrying a firearm during and in relation to a drug trafficking

crime. This appeal followed, and Webster now challenges his convictions1

by arguing that: 1) the district court violated his Sixth Amendment

rights by improperly disposing of his request to discharge appointed

counsel; 2) the district court committed error by admitting into evidence

the audio and video recordings of narcotics transactions; and 3) the

district court improperly instructed the jury on the law applicable to 18
7

U.S.C. § 924(c)(1) and, in any case, there was insufficient evidence to

sustain his conviction for using or carrying a firearm during and in

relation to a drug trafficking crime. In light of the Supreme Court's

opinion in Bailey v. United States, 116 S. Ct. 501 (1995), we reverse

Webster's conviction for violating 18 U.S.C. § 924(c)(1), but we affirm the

district court in all other respects.

II. DISCUSSION

A. Webster's Attempt to Replace Counsel

In asserting that the district court incorrectly disposed of his

request to discharge Mr. Rosanswank, Webster basically advances two

discrete arguments. First, he claims that the district court wrongfully

refused to replace his court appointed attorney. Also, Webster maintains

that the court's action deprived him of his constitutional right to selfrepresentation.

1. Attorney Discharge

A motion to substitute court appointed counsel is committed to the

district court's sound discretion. Hunter v. Delo, 62 F.3d 271, 274 (8th

Cir. 1995). To prevail on the request, a criminal defendant must

demonstrate "a conflict of interest, an irreconcilable conflict, or a

complete breakdown in communication between the attorney and the

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 favored." 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 wide

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, the

alleged basis for Webster's complaints had absolutely nothing to do with

Mr. Rosanswank's representation, but rather involved perceived inaccuracies

in transcripts of pretrial proceedings. Accordingly, we find that the

district court correctly refused Webster's attempt to obtain substitute

counsel.2

2. The Right to Self-Representation

Webster alleges that the district court impinged upon his Sixth

Amendment right to self-representation by offering him the "Hobson's

choice" of continued representation by a lawyer in whom he had lost all

trust or proceeding pro se with that same attorney serving as standby

counsel. Webster concedes that a trial judge may, over a pro se

defendant's objections, permissibly appoint standby counsel to assist the

defendant in an advisory capacity. See McKaskle v. Wiggins, 465 U.S. 168,

184 (1984). Still, he declares that the district judge in this case

committed error by insisting that Mr. Rosanswank be Webster's standby

counsel. According to Webster, the district court could have cured the

constitutionally offensive choice by displaying a willingness to appoint

standby counsel other than Mr. Rosanswank.
9

We do not agree that the district court's actions violated Webster's

Sixth Amendment rights. First of all, it does not appear to us that

Webster successfully invoked his right to self-representation. A defendant

who wishes to waive his right to counsel, and thereby to proceed pro se,

must do so clearly and unequivocally. Hamilton v. Groose, 28 F.3d 859,

862-63 (8th Cir. 1994), cert. denied, 115 S. Ct. 741 (1995). To the extent

that Webster at all tried to express a desire to represent himself, a

review of the record suggests that attempt was anything but clear and

unequivocal. While conversing with the district judge, Webster never

explicitly indicated that he wanted to proceed pro 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, and

Webster's primary, if not exclusive, objective seems to have been the

procurement of substitute counsel. Recognizing that the district judge

must "indulge in every reasonable presumption against 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 and

unequivocally expressed his desire to represent himself.

Even assuming that Webster did correctly invoke this constitutional

prerogative, his claim still fails. Appointment of standby counsel is

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. 933 (1983); see also United

States v. Swinney, 970 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 standby 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,
10

895 F.2d 897, 904 (2d Cir.), cert. denied, 495 U.S. 951 (1990); United

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 defendant will be able to compel the attorney's dismissal only by

meeting the criteria applicable to the discharge of a lawyer fully

representing the accused. See Swinney, 970 F.2d at 498-99 (applying

general discharge test to standby counsel situation).

As discussed previously, Webster woefully failed to establish reasons

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 have

been the same lawyer in whom Webster reportedly had lost confidence. The

options offered by the district court, characterized by Webster as a

"Hobson's choice," represented a reasonable balance between a respect for

Webster's asserted rights and an understandable desire to prevent

disruption of an almost concluded criminal trial. See id. at 499 ("A

defendant has no right to manipulate his right for the purpose of delaying

and disrupting the trial.")(quotations omitted). In fact, other circuits

have expressly approved a district court's decision to require the

defendant to either continue with appointed counsel 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 not

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 appointed

counsel as his attorney. See United States v. Blum, 65 F.3d 1436, 1442

(8th Cir. 1995)(dismissing similar "Hobson's choice" argument where

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

Webster complains that the district court wrongfully received into

evidence the audio and video tapes produced by the Government. The

admission of tape recordings is "within the sound discretion of the trial

court and will not be reversed unless there has been an abuse of that

discretion." United States v. Martinez, 951 F.2d 887, 888 (8th Cir.

1991)(quotations and alteration omitted), cert. denied, 503 U.S. 994

(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 the

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). That

case requires the prosecution to demonstrate:

(1) the recording device was capable of recording the events

offered in evidence; (2) the operator was competent to operate

the device; (3) the recording is authentic and correct; (4)

changes, additions, or deletions have not been made in the

recording; (5) the recording has been preserved in a manner

that is shown to the court; (6) the speakers on the tape are

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. Roach, 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 its

reliability." Id. at 733 n.4 (quotation omitted).

Even when the 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. United

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 inadmissible

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 recording as a whole untrustworthy . . . ." United States

v. Huff, 959 F.2d 731, 737 (8th Cir.)(quotation omitted), cert. denied, 506

U.S. 855 (1992).

We conclude that the Government properly authenticated each of the

three contested recordings under the McMillan factors. Webster maintains,

however, that the two audio tapes are so inaudible that the district court

should have prohibited their admission. He complains as well that the

audio track of the video tape is hopelessly unintelligible; in addition,

he claims that the video is inaccurate because the camera's lens was

partially obscured and because the stationary recorder was unable to

completely track its subjects' movements. We address these allegations

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 agree with Webster that a constant

electronic hum severely hampers a listener's ability to discern the

recorded conversation. The district court did admit this tape into

evidence; significantly, however, the Government never played it for the

jury. Rather, the prosecutors offered the cassette primarily because its

mere existence tended to corroborate the testimony of certain witnesses.

Because the jury could not have been adversely affected by something that

it never heard, we cannot say that the district court abused its discretion

when it allowed the Government to introduce this properly authenticated

tape. Likewise, the district court did not commit plain error when it

allowed Trooper Paula Woodruff, in response to defense 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 this

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 plain

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 court

properly exercised its discretion by approving the admission into evidence

of this video. True, the camera's lens was partially obscured, and the

recording did not preserve all of Suggs's and Webster's actions;

furthermore, the tape's audio track is less than clear. Nevertheless,

these infirmities are not so pervasive as to render the tape as a whole

untrustworthy. The video still has significant probative value, for it

shows Suggs and Webster conducting some sort of trade across a kitchen

counter. After this exchange, Webster can be seen holding in his hand what

appears to be a wad of money. Moreover, as noted above, Corporal Glaser

later collected crack cocaine from the counter. Given these facts, we

think it was certainly within the district court's discretion to admit this

videotape.5

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

In his initial brief before this Court, Webster alleged that the

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. 501

(1995), explained that the word "use" as employed in 18 U.S.C. § 924(c)(1)

has a narrower meaning than this Court had previously indicated. Compare

id. at 505-09 with United States v. Matra, 841 F.2d 837, 841-43 (8th Cir.

1988). Consequently, we granted the parties' motions to allow supplemental

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 firearm conviction. First,

he asserts that the district court's jury instruction was erroneous. In

addition, he continues to maintain that there was insufficient evidence to

support his conviction under 18 U.S.C. § 924(c)(1). We reverse for

instructional error.

In relevant portion, the district court charged the jury:

[I]n order to sustain its burden of proof for the crime

of using or carrying a firearm during and in relation to . . .

a drug trafficking crime, as charged in Count 4 of the

indictment, the Government must prove these following two

essential elements beyond a reasonable doubt:

And first:

The defendant committed the crime of conspiracy to

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 phrase "uses or carries a firearm" means having

a firearm or firearms available to assist or aid in the

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

evidence in the case, including the nature of the underlying

drug trafficking crime alleged; the proximity of the firearm in

question; the usefulness of the firearm to the crime alleged;

and the circumstances surrounding 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.

The Government is required, however, to prove beyond a

reasonable 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 otherwise

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 reverse

only if the district court committed plain error. See United States v.

Ryan, 41 F.3d 361, 366 (8th Cir. 1994)(en banc), cert. denied, 115 S. Ct.

1793 (1995).

In United States v. Olano, 507 U.S. 725 (1993), the Supreme Court

elaborated upon the plain error analysis applicable 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 his

substantial rights by prejudicially influencing the outcome of the district

court proceedings. Id. at 734-35. Where these prerequisites are met, a 7

court of appeals may order correction of the mistake. Id. at 735. We will

exercise this discretion in the appellant's favor where the error

"'seriously affects the fairness, integrity or public reputation of

judicial proceedings.'" Id. at 736 (quoting United States v. Atkinson, 297

U.S. 157, 160 (1936))(alteration omitted).

Viewing 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 that a defendant "uses or carries a firearm" whenever he has "a

firearm or firearms available to assist or aid in the commission" of a drug

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 the

firearm." It seems to us that the cumulative effect of these and other

statements allowed the jury to find that Webster criminally used or carried

the weapon in question due to the "mere presence and ready availability of

[the] firearm." 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 invalidated

instruction very similar to the charge here, but concluding that the error

in that case was harmless).

To determine whether the error is clear under current law, we must

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 an 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]urrent law' as used in [plain

error analysis] means the law current at the time of the appeal, not at

trial."), cert. denied, 115 S. Ct. 1270 (1995); United States v. Retos, 25

F.3d 1220, 1230 (3d Cir. 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, but

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.

Furthermore, Webster has successfully demonstrated that the error

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 instructed in

this case, it could have reached a different conclusion.

Consequently, the judicial proceeding was compromised, and [the

criminal defendant] was unavoidably prejudiced.

Ryan, 41 F.3d at 370 (Arnold, C.J., concurring and dissenting); cf. Viola,

35 F.3d at 42 (finding that where superseding opinion alters previously

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 error did not affect the defendant's substantial rights). We have

already mentioned that the pertinent instruction in the case sub judice

allowed the jury to convict Webster on this count 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 Webster

has satisfactorily established that the error "affected the outcome of the

district court proceedings." Olano, 507 U.S. at 734. 9

Finally, because it is unclear whether a properly instructed jury

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

miscarriage 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 therefore find it necessary

to exercise our discretion under Rule 52(b) and reverse Webster's

conviction for using or carrying a firearm during and in relation to a drug

trafficking crime.10

III. CONCLUSION

We reverse Webster's conviction for using or carrying a firearm

during and in relation to a drug trafficking crime and remand for a new

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.