The Honorable David S. Doty, United States District Judge for the District of 1 Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2990

___________ Mark Edward Swedzinski, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. United States of America, * * Appellee. *

___________ Submitted: October 22, 1998 Filed: November 17, 1998

___________
Befo re BOWMAN, Chief Judge, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

___________ BOWMAN, Chief Judge. Mark Edward Swe dzinski appeals the District Court's denial of his 28 U.S.C. 1 § 2255 motion for post-conviction relief. He argues t hat his conviction for violating 18 U.S.C. § 924(c) should be vacated because the jury instructions defining "use" of a firearm were contrary to the Supreme Court’s decision in Bailey v. United States , 516 U.S. 137 (1995). We affirm.-2- I.
On September 20, 1991, agents of the Minnesota Bureau of Crimina l Apprehens ionlocated a plot of cultivated marijuana in Lincoln County, Minnesota

. Durin g surveillance of the area on September 23, 1991, the agents observe d Swedzinski enter the plot and inspect the marijuana plants. The agents then arrested Swedzinski , who was wearing a loaded .22-caliber handgun in a holster and wa s carr ying a roll of barbed wire and a sickle blade. The agents discovered that the plot contained 178 cultivated marijuana plants and was extensively booby-trapped with camoufl aged pitchfork heads, sickle blades, and barbed wire. While searchin g Swedzinski's truck, agents found a plant food c ontainer, a book entitled "Bio Science," tw o firearms, and a bow and arrows. At Swedzinski's home, agents found 26 smal l mariju ana

plants, fluorescent lights on timers, a book entitled "Marijuana Grower s Guide," a small scale, and two firearms.

A ju ry found Swedzinski guilty on charges of aiding and abetting in th e manufactur

e of marijuana and conspiracy to manufacture marijuana in violation of 21 U. S.C. §§ 841(a)(1) and 846 (1994), and of using or carrying a firearm during and in relation to a drug trafficking crime in viol ation of 18 U.S.C. § 924(c)(1) (1994). A codefendant, Neil Coyle, also was convicted on the drug charges. Swedzinski wa s sent enced to 63 months of imprisonment on the drug counts and 60 months o f imprisonment on the fir

earm count, to be served consecutively. On direct appeal, this Court affirmed the convictions of bot h of the defendants. See United States v. Coyle , 988 F. 2d 831, 833-34 (8th Cir. 1993), cert. denied , 510 U.S. 1095 (1994). I n Swedzinski's § 2255 motion, he now collaterally attacks his firearm conviction, using the Supreme Court's intervening decision in Bailey v. United States , 516 U.S. 13 7 (1995), as the basis for his attack. The District Court denied the motion, reasoning that Swe dzinski had defaulted his Bailey claim by failing to raise it on direct appeal an d that, in any event, the jury had been instructed on both "use" and "carry" and-3-

Swed zinski clearly had carried the firearm during and in relation to a drug trafficking offense.
II.
This Court reviews de novo the District Court's denial of Swedzinski's § 2255 motion fo r post-conviction relief. See Bradshaw v. United States , 153 F.3d 704, 706 (8th Cir. 1998). Swedzinski argues his conviction should be v acated because the District Court's jury instructions defining "use" of a firearm were contrary to Bailey . The jur y instructions were consistent with Eighth Circuit law at the time of trial and direc t appeal, but were inconsistent with the Supreme Court's subsequent opinion in Bailey

. The Supreme Court held that "use" in 18 U.S.C. § 924(c)(1) requires an activ e employmen t

of the firearm; mere possession is insufficient. See Bailey , 516 U.S. a t 143. Ac tive employment would include "brandishing, displaying, bartering, strikin g with, and, most obviously, firing or attempting to fire a firearm." Id. at 148. In th e present case, the jury instructions on the firearm charge provided as follows: Two essential elements are required to b e proved in order to establish the offense charged in Count II of the Indictment, as follows: First: That defendant Mark Swedzinski committed a drug traffickin g crime for which he might be prosecuted in a United States court; and Seco nd: That during and in relation to the drug trafficking crime , defendant Mark Swedzinski used or carried a firearm.

. . . . The firearms count charges that the defenda nt Mark Swedzinski used and carried a firearm during and in relation to a drug trafficking crime. The-4-

UnitedStates must prove either that a firearm was used or carried; both do not have to be proved. The phrase "uses or carries a firearm" means having a firearm available to a ssist or aid in the commission of the crime alleged in Count I of th e Indictment.
In deter mining whether defendant Mark Swedzinski used or carried a firearm during and in relation to a drug trafficking crime, you ma y consider all of the factors received in evidence in the case including the nature of the underlying crime of drug trafficking alleged, the proximity of de fendant Mark Swedzinski to the firearm in question, the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm. The government is not required to show that defendant Mark Swedzinski actual ly displayed or fired the weapon. The government is required , however, to prove beyond a reasonable doubt that the firearm was i n defend ant Mark Swedzinski's possession or under defendant Mark Swedzinski's control at the time that the drug trafficking crime wa s committed.
At tri al and on direct appeal, Swedzinski objected to the jury instruction s re garding the firearm charge only on the ground that the District Court should hav e added language on "specific intent" or "intent." See Coyle , 988 F.2d at 833-3 4 (upholding the jury instructions because a specific instru ction on intent is not required). On direct appeal, Swedzinski did not chall enge the jury instructions on Bailey grounds nor did he argue

there was insufficient evidence to convict him on the firearm charge. The Baile y challenge was raised for the first time in his §2255 motion. Becaus e Swedzinski did not raise the Bailey claim at trial or on direct appeal, the issue i s procedurally defaulted. See United States v. Valasquez , 131 F.3d 766, 767 (8th Cir. 1997); United States v. Rodger , 100 F.3d 90, 91 (8th Cir. 1996), cert. denied , 11 8 S. Ct. 145 (1997); Williams v. United States , 98 F .3d 1052, 1054 (8th Cir. 1996), cert. denied , 117 S. Ct. 1327 (1997).-5-

In order to obtain collateral review of a procedurally defaul ted issue, Swedzinski must show cause excusing his procedural default and actual prejudice resulting fro m the alleged error. See United States v. Frady , 456 U.S. 152, 167-68 (1982); Williams , 98 F.3d at 1054. The government concedes that Swedzinski had cause for failing to raise th e Bailey issue at trial or on direct appeal in light of the well-settled Eighth Circuit law that existed at that time. But Swedzinski still must show actual prejudice. The actual prejudice standard is a significantly hig her hurdle than the showing required to establish plain error on direct appeal. See Frady , 45 6 U.S. at 166. Swedzinski must show tha t the erroneous jury instruction "worked to his actual and substantia l disa dvantage, infecting his entire trial with error of constitutional dimensions." Id. at 170. He also must sh ow a substantial likelihood that a properly instructed jury would have acquitted him of violating § 924(c). See id. at 172. The jury instructions at issue clearly gave the jur y the option of finding a "carry" violation by s tating that the government must prove "either that a firearm was used or carried; both do not have to be proved." In deciding whether Swedzinski has shown actual pr ejudice resulting from the erroneous definition of "use," we must conside r whether the evidence was sufficient to convict Swedzinski of a "carry" violation under § 924(c). "Carry" has been defined as meaning to have on or about one's person. See , e.g. , Muscar ello v. United States , 118 S. Ct. 1911, 1915 (1998) ("No one doubts that
one who bears arms on his person 'carries a weapon.'"); United States v. McKinney , 120 F.3d 132, 133-34 (8th Cir. 1997) (on one's person); Wil liams , 98 F.3d at 1055 (on
or about one's person). The record shows, and Swedzinski does not dispute, that h e was wea ring the handgun on his person when he was arrested. Therefore, we agre e with t he District Court that the evidence was sufficient to show that Swedzinsk i "carried" the handgun within the meaning of § 924(c). Although Swedzinski does not contest that he was carrying the h andgun, he does argue t hat the evidence is insufficient to prove beyond a reasonable doubt that h e c a rried the handgun in relation to a drug trafficking crime. We disagree. Regardless-6-

of the erroneous definition

of "use," the instructions made clear that the jury must find that "during and in relation to the drug trafficking crime, the defen dant Swedzinski used
or carried a firearm." Thus, whether the jury found Swedzinski had used the firearm
or had carried the firearm, it is clear the jury found that the chosen action (used o r carried) was during and in relation to the drug trafficking crime. Swedzinski contested this issue at trial by presenting evidence that he was carrying the handgun to shoo t squirrels. However, the reco rd shows that Swedzinski was arrested immediately after having inspected the marijuana plants and while carrying materials identical to those used to booby-trap the marijuana plot. Thus the evidence was sufficient for the jury to convict Sw edzinski of carrying the firearm during and in relation to a drug trafficking crime under § 924(c).
Because the evidence was more than sufficient to convict Swedzins ki of carrying the firearm du

ring and in relation to his marijuana growing operation, Swedzinski has failedto show a substantial likelihood that a jury, properly instructed as to th e definition of

"use," would have acquitted him of violating § 924(c). See Frady , 45 6 U.S. at 172. Therefore, Swedzinski has failed to show actu al prejudice. See Williams , 98 F.3d at 1 055 (denying § 2255 motion to vacate § 924(c) conviction on Baile y grounds because petitioner failed to establish actual prejudice from erroneous jur y instruction on "use" when evidence was sufficient to convict for a "carry" violation);
see also Val asquez , 131 F.3d at 766-67 (same); Rodger , 100 F.3d at 90-91 (same)

. Accor dingly, we conclude that Swedzinski's Bailey claim is procedurally barred

. Moreover, even if the claim were not procedu rally barred, the erroneous instruction on "use" woul d be, because of Swedzinski's inability to show prejudice, error of th e harmless variety. The order of the District Court denying § 2255 relief is affirmed.-7-

A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.