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

___________

Before BOWMAN, Chief Judge, MORRIS SHEPPARD ARNOLD, and MURPHY,

Circuit Judges.

___________

BOWMAN, Chief Judge.

Mark Edward Swedzinski appeals the District Court's denial of his 28 U.S.C. 1

§ 2255 motion for post-conviction relief. He argues that 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.
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I.

On September 20, 1991, agents of the Minnesota Bureau of Criminal

Apprehension located a plot of cultivated marijuana in Lincoln County, Minnesota.

During surveillance of the area on September 23, 1991, the agents observed

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 was

carrying 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

camouflaged pitchfork heads, sickle blades, and barbed wire. While searching

Swedzinski's truck, agents found a plant food container, a book entitled "Bio Science,"

two firearms, and a bow and arrows. At Swedzinski's home, agents found 26 small

marijuana plants, fluorescent lights on timers, a book entitled "Marijuana Growers

Guide," a small scale, and two firearms.

A jury found Swedzinski guilty on charges of aiding and abetting in the

manufacture 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 violation of 18 U.S.C. § 924(c)(1) (1994). A codefendant, Neil Coyle, also was convicted on the drug charges. Swedzinski was

sentenced to 63 months of imprisonment on the drug counts and 60 months of

imprisonment on the firearm count, to be served consecutively. On direct appeal, this

Court affirmed the convictions of both of the defendants. See United States v. Coyle,

988 F.2d 831, 833-34 (8th Cir. 1993), cert. denied, 510 U.S. 1095 (1994). In

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. 137

(1995), as the basis for his attack. The District Court denied the motion, reasoning that

Swedzinski had defaulted his Bailey claim by failing to raise it on direct appeal and

that, in any event, the jury had been instructed on both "use" and "carry" and
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Swedzinski 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 for post-conviction relief. See Bradshaw v. United States, 153 F.3d 704, 706

(8th Cir. 1998).

Swedzinski argues his conviction should be vacated because the District Court's

jury instructions defining "use" of a firearm were contrary to Bailey. The jury

instructions were consistent with Eighth Circuit law at the time of trial and direct

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 active

employment of the firearm; mere possession is insufficient. See Bailey, 516 U.S. at

143. Active employment would include "brandishing, displaying, bartering, striking

with, and, most obviously, firing or attempting to fire a firearm." Id. at 148. In the

present case, the jury instructions on the firearm charge provided as follows:

Two essential elements are required to be proved in order to establish the

offense charged in Count II of the Indictment, as follows:

First: That defendant Mark Swedzinski committed a drug trafficking

crime for which he might be prosecuted in a United States court; and

Second: That during and in relation to the drug trafficking crime,

defendant Mark Swedzinski used or carried a firearm.

. . . .

The firearms count charges that the defendant Mark Swedzinski used and

carried a firearm during and in relation to a drug trafficking crime. The
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United States 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 assist or aid in the commission of the crime alleged in Count I of the

Indictment.

In determining whether defendant Mark Swedzinski used or carried a

firearm during and in relation to a drug trafficking crime, you may

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 defendant 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

actually displayed or fired the weapon. The government is required,

however, to prove beyond a reasonable doubt that the firearm was in

defendant Mark Swedzinski's possession or under defendant Mark

Swedzinski's control at the time that the drug trafficking crime was

committed.

At trial and on direct appeal, Swedzinski objected to the jury instructions

regarding the firearm charge only on the ground that the District Court should have

added language on "specific intent" or "intent." See Coyle, 988 F.2d at 833-34

(upholding the jury instructions because a specific instruction on intent is not required).

On direct appeal, Swedzinski did not challenge the jury instructions on Bailey grounds

nor did he argue there was insufficient evidence to convict him on the firearm charge.

The Bailey challenge was raised for the first time in his §2255 motion. Because

Swedzinski did not raise the Bailey claim at trial or on direct appeal, the issue is

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, 118

S. Ct. 145 (1997); Williams v. United States, 98 F.3d 1052, 1054 (8th Cir. 1996), cert.

denied, 117 S. Ct. 1327 (1997).
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In order to obtain collateral review of a procedurally defaulted issue, Swedzinski

must show cause excusing his procedural default and actual prejudice resulting from

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 the 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 higher hurdle than the showing required

to establish plain error on direct appeal. See Frady, 456 U.S. at 166. Swedzinski must

show that the erroneous jury instruction "worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at

170. He also must show 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 jury the option of finding a "carry"

violation by stating 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 prejudice resulting from the erroneous definition of "use," we must consider

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., Muscarello 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); Williams, 98 F.3d at 1055 (on

or about one's person). The record shows, and Swedzinski does not dispute, that he

was wearing the handgun on his person when he was arrested. Therefore, we agree

with the District Court that the evidence was sufficient to show that Swedzinski

"carried" the handgun within the meaning of § 924(c).

Although Swedzinski does not contest that he was carrying the handgun, he does

argue that the evidence is insufficient to prove beyond a reasonable doubt that he

carried the handgun in relation to a drug trafficking crime. We disagree. Regardless
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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 defendant 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 or

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 shoot

squirrels. However, the record 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 Swedzinski 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 Swedzinski of carrying

the firearm during and in relation to his marijuana growing operation, Swedzinski has

failed to show a substantial likelihood that a jury, properly instructed as to the

definition of "use," would have acquitted him of violating § 924(c). See Frady, 456

U.S. at 172. Therefore, Swedzinski has failed to show actual prejudice. See Williams,

98 F.3d at 1055 (denying § 2255 motion to vacate § 924(c) conviction on Bailey

grounds because petitioner failed to establish actual prejudice from erroneous jury

instruction on "use" when evidence was sufficient to convict for a "carry" violation);

see also Valasquez, 131 F.3d at 766-67 (same); Rodger, 100 F.3d at 90-91 (same).

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

Moreover, even if the claim were not procedurally barred, the erroneous instruction on

"use" would be, because of Swedzinski's inability to show prejudice, error of the

harmless variety.

The order of the District Court denying § 2255 relief is affirmed.
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A true copy.

Attest:

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