The Honorable Russell G. Clark, United States District Judge 1

for the Western District of Missouri.

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No. 95-3701

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri

John R. Caldwell, *

*

Appellant. *

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 Submitted: March 13, 1996

 Filed: October 7, 1996

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Before McMILLIAN, BEAM and HANSEN, Circuit Judges.

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McMILLIAN, Circuit Judge.

John R. Caldwell appeals from a final judgment entered in the

District Court for the Western District of Missouri upon a jury

1

verdict finding him guilty of distribution of methamphetamine in

violation of 21 U.S.C. § 841(a)(1) (count I), possession with

intent to distribute methamphetamine in violation of 21 U.S.C.

§ 841(a)(1) (count II), using and carrying a firearm during and in

relation to a drug trafficking offense (possession with intent to

distribute charged in count II) in violation of 18 U.S.C.

§ 924(c)(1) (count III), and unlawful firearms possession in

violation of 18 U.S.C. § 922(g)(1) (count IV). The district court

sentenced him to a total of 180 months imprisonment, 8 years

supervised release and special assessments in the amount of
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$200.00. For reversal appellant argues the district court erred in

(1) denying his motion to suppress physical evidence seized

following a traffic stop, (2) denying his motion to sever the

unlawful firearms possession count (count IV), and (3) instructing

the jury on the 18 U.S.C. § 924(c) count (count III). For the

reasons discussed below, we affirm the convictions and sentences

except with respect to counts II and III, the sentence on count II

is vacated, the conviction on count III is reversed, and the case

is remanded to the district court for further proceedings

consistent with this opinion.

In early April 1994 a state highway patrol trooper was

investigating drug trafficking in Monett, Missouri, and supervised

an informant’s purchase of methamphetamine from appellant at a

local motel. The trooper noted the make and license plate of

appellant’s car. On September 21, 1994, Chief of Police Frank

Preston of Pierce City, Missouri, received radio information that

a gray Camaro with a specific Missouri license plate was

approaching Pierce City, had been speeding and had almost run

another car off the road. Preston checked the license plate number

and learned that the car was registered to appellant. At about the

same time, Lieutenant Bill Wegrzyn, a police officer from Monett,

Missouri, told Preston that appellant probably did not have a

driver’s license because several months earlier the Monett police

department had processed information that appellant’s license had

been suspended and that appellant had been arrested two or three

weeks earlier with a concealed weapon. Preston also received

information from another law enforcement officer that appellant

might be involved in a drug transaction. 

Acting on this information, Preston positioned his patrol car

where he could observe traffic entering Pierce City. He saw the

Camaro and checked its speed with his radar unit; the Camaro was
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travelling slightly faster than the posted speed limit. Preston

followed the Camaro, activated his lights, and stopped the Camaro.
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Preston approached the car and asked appellant for his driver’s

license. Appellant responded that the Monett police had his

driver’s license because it had been suspended. At this point

Preston asked appellant to get out of the car and for

identification information. Appellant got out of the car and

removed a fanny pack and placed it on the front seat. Preston

started to open the car door, but appellant objected. Preston then

contacted the Monett police department by radio. The Monett police

department reported a possible suspended driver’s license for

appellant. Preston arrested appellant for driving on a suspended

driver’s license and requested his permission to search the car.

Appellant consented to the search. Preston and Wegrzyn, who had

arrived on the scene to assist Preston, searched the passenger

compartment, including the hatchback area, and found

methamphetamine, five firearms (one of which was loaded), and drug

paraphernalia. 

Appellant filed a motion to suppress physical evidence. The

district court held a suppression hearing. Preston and Wegrzyn

testified for the government. Preston testified at the suppression

hearing that he was not going to issue a speeding ticket, but

instead wanted to check the status of appellant's driver's license

and to talk to appellant about the reported speeding and careless

and imprudent driving. The district court credited their

testimony. The district court found that Preston had probable

cause to stop the car because he reasonably suspected that

appellant was driving with a suspended driver’s license. The

district court also found that the warrantless search of the car

was an inventory search or, in the alternative, that appellant had

consented to the search. The district court denied the motion to

suppress physical evidence (the district court also granted the

motion to suppress certain inculpatory statements; that part of the
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district court’s suppression ruling is not an issue in this

appeal). 
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Immediately before trial began, defense counsel made an oral

motion to sever the unlawful firearms possession count (count IV).

Defense counsel argued that joinder of that count would allow

otherwise inadmissible evidence of other crimes, specifically his

prior felony convictions, including one for possession of

methamphetamine for sale, to be introduced at trial. The district

court denied the motion to sever. At trial the government used

California court records to establish appellant’s prior felony

convictions. Portions of the court records read to the jury

included information about the type of offense, the date of

conviction, and the length of the sentence. Appellant did not

testify. Defense counsel objected to instruction No. 16, which

defined the phrase “used a firearm” as “having a firearm available

to aid in the commission of the [drug trafficking] crime.” The

instruction did not separately define “carry.” Defendant counsel

objected to the instruction on the ground that it improperly

shifted the burden of proof to the defense. The district court

denied the objection. The jury found appellant guilty on all four

counts. The district court sentenced appellant to a total of 180

months imprisonment, 8 years supervised release, and special

assessments in the amount of $200.00. This appeal followed. 

MOTION TO SUPPRESS EVIDENCE

Appellant first argues the district court erred in denying his

motion to suppress certain physical evidence seized from his car.

He argues the traffic stop was invalid because the police lacked

probable cause to stop his car and to arrest him. He also argues

the traffic violations were merely pretextual because the real

reason the police wanted to stop his car was that they suspected it

contained illegal drugs. He argues the warrantless search of his

car cannot stand if the traffic stop was unlawful. We disagree. 
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“[A]s a general matter determinations of reasonable suspicion

and probable cause should be reviewed de novo on appeal.” Ornelas
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v. United States, 116 S. Ct. 1657, 1663 (1996). However, “a

reviewing court should take care both to review findings of

historical fact only for clear error and to give due weight to

inferences drawn from those facts by resident judges and local law

enforcement officers.” Id.; e.g., United States v. Johnigan, 90

F.3d 1332, 1336 (8th Cir. 1996). 

The district court correctly concluded that there was probable

cause to suspect that a traffic violation had occurred. Preston

had a reasonable suspicion, based upon objective facts obtained

from other law enforcement sources, that appellant was probably

driving with a suspended driver’s license. In addition, Preston

had observed appellant speeding. “[A]ny traffic violation, even a

minor one, gives an officer probable cause to stop the violator.

If the officer has probable cause to stop the violator, the stop is

objectively reasonable and any ulterior motivation on the officer’s

part is irrelevant.” United States v. Bell, 86 F.3d 820, 822 (8th

Cir. 1996) (citation omitted); petition for cert. filed, No. 96-

6046 (U.S. Sept. 17, 1996); e.g., United States v. Maza, 93 F.3d

1390, 1396 (8th Cir. 1996). The Supreme Court expressly rejected

the pretext argument in Whren v. United States, 116 S. Ct. 1769,

1774-75 (1996). “[T]he fact that the officer does not have the

state of mind hypothecated by the reasons which provide the legal

justification for the officer’s action does not invalidate the

action taken as long as the circumstances, viewed objectively,

justify that action. . . . Subjective intentions play no role in

ordinary, probable-cause Fourth Amendment analysis.” Id. at 1774

(citation omitted). In other words, “so long as police have

probable cause to believe that a traffic violation has occurred,

the stop is valid even if the police would have ignored the traffic

violation but for their suspicion that greater crimes are afoot.”

United States v. Thomas, 93 F.3d 479, 485 (8th Cir.). 
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We also hold that the search of the car was lawful. “[W]hen

a [police officer] has made a lawful custodial arrest of the
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occupant of an automobile, [the officer] may, as a contemporaneous

incident of that arrest, search the passenger compartment of that

automobile.” New York v. Belton, 453 U.S. 454, 460 (1981)

(footnotes omitted). “[T]he police may also examine the contents

of any containers [whether opened or closed] found within the

passenger compartment.” Id. (citations and footnote omitted).

Here, Preston lawfully arrested appellant because he had probable

cause to believe that appellant's driver’s license had been

suspended. Following appellant’s arrest, the police could lawfully

search the passenger compartment of the car, including the

hatchback portion of the car. See United States v. Doward, 41 F.3d

789, 793-94 (1st Cir. 1994) (hatchback of two-door car), cert.

denied, 115 S. Ct. 1716 (1995); United States v. Cleveland, 966

F.2d 1459 (8th Cir. 1992) (per curiam) (table) (hatchback;

defendant did not argue that hatchback was trunk as opposed to

passenger compartment of car) (text at 1992 WL 139360). The

firearms, ammunition, some of the methamphetamine, and drug

paraphernalia were found in the hatchback portion of the car. 

SEVERANCE OF UNLAWFUL FIREARMS POSSESSION COUNT

Appellant next argues the district court abused its discretion

in denying his motion to sever the unlawful firearms possession

count (count IV). He argues that the joinder of the unlawful

firearms possession count allowed the jury to hear otherwise

inadmissible evidence about his prior convictions. 

Ordinarily, we review severance decisions for abuse of

discretion. E.g., United States v. Felici, 54 F.3d 504, 506 (8th

Cir.), cert. denied, 116 S. Ct. 251 (1995). However, because this

motion was not timely filed within 20 days of the omnibus pretrial

motions order, we may reverse only for plain error. E.g., United

States v. Olano, 507 U.S. 725, 732-34 (1993). 
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 The government could have reduced any possible prejudice even 2

further by simply stipulating that appellant had been convicted of

a second state felony without introducing any information about the

nature of the prior offense or the sentence. See United States v.

Felici, 54 F.3d 504, 506 (8th Cir.), cert. denied, 116 S. Ct. 251

(1995).

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We find no error was committed by the district court. First,

the more prejudicial of the two prior convictions, that for

possession of methamphetamine for sale, would have been admissible

in a trial on the drug trafficking counts alone as other crimes

evidence under Fed. R. Evid. 404(b) to prove intent and knowledge.

See United States v. Shoffner, 71 F.3d 1429, 1431-32 (8th Cir.

1995). The prior conviction for receiving stolen property would

not have been admissible under Fed. R. Evid. 404(b); however, any

prejudice was limited by the method of proof used. As noted above,

the government read to the jury portions of court records that

included information about the type of offense, the date of

conviction, and the length of the sentence. In addition, there

2

was little possibility that the jury was confused about the

evidence related to each count in light of the cautionary

instruction given by the district court. The cautionary

instruction limited the jury’s consideration of the two prior

felony convictions to the unlawful firearms possession count and of

the conviction for possession of methamphetamine for sale to intent

and knowledge with respect to the drug trafficking counts only. 

BAILEY ISSUE

Appellant next argues the district court erred in instructing

the jury on the 18 U.S.C. § 924(c) count (count III). At trial

defense counsel objected to instruction No. 16, which defined the

phrase “used a firearm” as “having a firearm available to aid in

the commission of the [drug trafficking] crime,” on the ground that
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it improperly shifted the burden of proof to the defense. However,

on appeal, appellant argues, correctly, the instruction as given is
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inconsistent with Bailey v. United States, 116 S. Ct. 501, 505-08

(1995). Because this change in the grounds of objection in effect

constitutes no objection, we may reverse only for plain error. For

the reasons discussed below, we find plain error and accordingly

reverse the conviction on count III and remand the case to the

district court for further proceedings. We also vacate the

sentence on count II and remand that count to the district court

for possible resentencing. 

The indictment charged that appellant knowingly used and

carried a firearm during and in relation to a drug trafficking

offense. However, as noted above, instruction No. 16 referred to

the crime of “using a firearm” and defined the phrase “used a

firearm” as “having a firearm available to aid in the commission of

the crime.” The instruction did not separately define the term

“carry.” As noted in United States v. Webster, 84 F.3d 1056, 1066

n.8 (8th Cir. 1996), “it appears that this Court’s traditional

definition of the term ‘use’ was so expansive that it effectively

swallowed the word ‘carry.’ . . . [T]he instruction defined ‘use’

and ‘carry’ collectively, and the charge did not refer to the words

as having separate meanings.” This instruction allowed the jury to

find that appellant criminally used or carried the firearm in

question due to the “mere presence and ready availability of [the]

firearm” and was a correct statement of the law in this circuit

(and other circuits) at the time of appellant’s trial, that is,

pre-Bailey. Id. at 1066 (footnote omitted) (analyzing similar

Bailey error as plain error), citing United States v. Mejia, 8 F.3d

3, 5 (8th Cir. 1993). Subsequently, the Supreme Court issued its

opinion in Bailey v. United States, holding that the word “use” in

18 U.S.C. § 924(c)(1) “requires evidence sufficient to show an

active employment of the firearm by the defendant, a use that makes

the firearm an operative factor in relation to the predicate

offense,” 116 S. Ct. at 505, such as brandishing, displaying,
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bartering, striking with, as well as firing or attempting to fire

a firearm, but not the mere storage of a firearm near drugs or drug
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proceeds. Id. at 508; see, e.g., United States v. Rehkop, No.

95-3446, 1996 WL 526239, at *4 (8th Cir. Sept. 18, 1996). 

The government concedes that instruction No. 16 is erroneous

in light of Bailey. Brief for Appellee at 19. However, the

government argues that the error was not “plain,” that is, clear or

obvious under current law, because “current law,” as used in plain

error analysis, means the law applicable at the time of trial, not

on appeal. We disagree. This court, following several other

circuits, has held that “in deciding whether an error is clear

under current law, the proper focus is the law applicable on appeal

rather than at trial.” United States v. Webster, 84 F.3d at 1067

(citing cases). We find the instruction as given is clearly

erroneous under current law. 

We also find the instruction as given affected appellant’s

substantial rights. The instruction as given was erroneous with

regard to an essential element of the crime, that is, the

definition of “use.” Id., citing United States v. Ryan, 41 F.3d

361, 370 (8th Cir. 1994) (en banc) (Arnold, C.J., concurring in the

judgment in part and dissenting in part), cert. denied, 115 S. Ct.

1793 (1995). The jury could have convicted appellant solely

because it found that he “used” the firearms merely by concealing

them in the car and having them readily available for use, which

would have been squarely inconsistent with Bailey and would have

unavoidably prejudiced appellant. Moreover, the government

concedes that the evidence is insufficient to support the

conviction because the record does not contain evidence of

appellant’s active employment of the firearm. Brief for Appellee

at 21. Under these circumstances, appellant has established that

the error affected the outcome of the district court proceedings

and the government cannot show otherwise. In other words, we find

the error is not harmless. We also believe that failure to correct
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the error could result in a miscarriage of justice and would

seriously affect the fairness, integrity or public reputation of
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judicial proceedings. Accordingly, we reverse the conviction on

count III. 

We next consider whether to remand for a new trial. The

government argues that the evidence is sufficient to a conviction

for “carrying” a firearm during and in relation to a drug

trafficking crime and that the case should be remanded for new

trial on that count because the reversal is based on trial error

and not insufficiency of the evidence. We agree. The indictment

alleged appellant violated 18 U.S.C. § 924(c)(1) by “using” and

“carrying” firearms. As noted above, the jury was not instructed

on the “carrying” prong of 18 U.S.C. § 924(c)(1). This court has

recognized that “Bailey left the ‘carry’ prong of section 924(c)(1)

intact, as well as the pre-Bailey cases analyzing the ‘carry’

prong.” United States v. Willis, 89 F.3d 1371, 1378 (8th Cir.

1996) (“carry” includes transporting firearms in the passenger

compartment of a car loaded with drugs), petition for cert. filed,

No. 95-5793 (U.S. Sept. 3, 1996); see, e.g., United States v.

White, 81 F.3d 80, 83-84 (8th Cir. 1996) (“carry” includes

physically carrying firearm while possessing crack with intent to

distribute); United States v. Freisinger, 937 F.2d 383, 387 (8th

Cir. 1991) (pre-Bailey case holding transporting firearm in

passenger compartment of vehicle satisfies “carry” prong of

§ 924(c)). Moreover, we note that the Supreme Court, faced with a

similar situation in Bailey, remanded the case to the court of

appeals with directions to consider whether the “carry” prong of 18

U.S.C. § 924(c)(1) provided an alternative basis for upholding the

convictions. 116 S. Ct. at 509 (indictment charged both “using”

and “carrying”); see also United States v. Miller, 84 F.3d 1244,

1257-61 (10th Cir. 1996). 

After reviewing the record evidence, we think a properly

instructed jury could have returned a guilty verdict under the
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“carry” prong of 18 U.S.C. § 924(c)(1). “[T]he ordinary meaning of

the word ‘carry’ includes transporting firearms in the passenger
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compartment of a car loaded with drugs.” United States v. Willis,

89 F.3d at 1378 (citing cases from other circuits), citing United

States v. Freisinger, 937 F.2d at 387 (transporting firearm in

passenger compartment of vehicle loaded with drugs satisfies

“carry” prong); accord United States v. Miller, 84 F.3d at 1257-61

(“carry” prong satisfied by evidence that defendant possessed and

transported firearm in van in close proximity to drugs); see also

Bailey v. United States, 116 S. Ct. at 509 (“carry” prong brings

some offenders who would not satisfy “use” prong within reach of

§ 924(c); firearm can be carried without being used, e.g., when an

offender keeps a gun hidden in his clothing throughout a drug

transaction); United States v. White, 81 F.3d at 83 (holding

government must prove defendant bore firearm on or about his person

during and in relation to drug trafficking offense, citing

dictionary definitions of “carry”). Here, the evidence showed that

appellant had been driving the Camaro and that the police found a

loaded firearm and 45 grams of methamphetamine in a bag in the

hatchback portion of the Camaro, an area regarded (at least in case

law) as generally within reach and available for use by the

occupants of the car. See United States v. Doward, 41 F.3d at

793-94 (hatchback), cert. denied, 115 S. Ct. 1716 (1995); United

States v. Cleveland, 966 F.2d 1459 (hatchback; defendant did not

argue that hatchback was trunk as opposed to passenger compartment

of car) (text at 1992 WL 139360). This evidence is sufficient to

prove that appellant carried a firearm during and in relation to a

drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).

Accordingly, we remand for a new trial on that count. 

The government requests that, if we reverse the conviction on

count III, we vacate the sentence as to count II, the possession of

methamphetamine with intent to distribute count. The government

argues that if, on remand, count III is dismissed or if appellant

is acquitted on that count, a two-level enhancement may be
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appropriate under U.S.S.G. § 2D1.1(b)(1), which provides that

possession of a dangerous weapon, including a firearm, by the
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defendant is a specific offense characteristic. The district court

did not consider a § 2D1.1(b)(1) enhancement because such an

enhancement would have been double-counting in light of appellant’s

conviction on the 18 U.S.C. § 924(c)(1) count. U.S.S.G. § 2K2.4,

comment. n. 2 & background. However, the prohibition against

double-counting would not apply in the absence of a 18 U.S.C.

§ 924(c)(1) conviction. For that reason, we vacate the sentence as

to count II and remand the case to the district court to consider

whether a sentence enhancement under U.S.S.G. § 2D1.1(b)(1) is

warranted. See United States v. Rehkop, 1996 WL 526239, at *5;

United States v. Thomas, 93 F.3d at 488. 

Accordingly, the convictions and sentences are affirmed except

with respect to counts II and III, the sentence on count II is

vacated, the conviction on count III is reversed, and the case is

remanded to the district court for further proceedings consistent

with this opinion.

A true copy.

Attest:

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