*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-30375 

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

ERNEST MARRERO,

Defendant-Appellee.

*************************************************************

No. 96-30760

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

WILLIAM G. BARNES, JR.,

Defendant-Appellee.

 

Appeals from the United States District Court

For the Eastern District of Louisiana

(96-CV-1173-E & 91-CR-371-E)

 

March 12, 1997

 

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*
2

William G. Barnes, Jr. and Ernest Marrero each filed a 28

U.S.C. § 2255 motion, arguing that their 18 U.S.C. § 924(c)(1)

convictions should be set aside because the jury instructions on

that count contained a definition of “use” that is erroneous after

Bailey v. United States, 116 S. Ct. 501, 507-09 (1995). The

district court granted both of their motions, finding that the

instruction did misstate the definition of “use” after Bailey.

Because we find that the jury necessarily found that Barnes and

Marrero “carried” guns under 18 U.S.C. § 924(c)(1), we reverse the

district court’s decision and uphold their convictions.

I.

Barnes and Marrero were apprehended after their two-car convoy

ran a red light while driving away from a motel in LaPlace,

Louisiana. Marrero rode in the lead car, and Barnes followed in an

armored vehicle driven by Gerald Elwood. When the police pulled

the two cars over, they discovered cocaine in plain sight in the

lead car. When Barnes and Elwood exited the armored vehicle, the

arresting officers found a fully loaded Glock semi-automatic pistol

resting on the front seat and a .38 caliber Smith and Wesson

revolver hidden on the floor beneath the passenger seat.

At trial, the district court instructed the jury that:

Title 18, United States Code, section 924(c)(1) makes it

a crime for anyone to use or carry a firearm during and in

relation to a drug trafficking crime.

For you to find the defendant guilty of this crime, you

must be convinced that the government has proven each of the

following beyond a reasonable doubt:
3

First: That the defendant committed the crime alleged in

Count 2. I instruct you that possession of cocaine with

intent to distribute it is a drug trafficking crime; and

Second: That the defendant knowingly used or carried a

firearm during and in relation to the defendant’s commission

of the crime alleged in count 2.

A defendant is considered to have carried a firearm if he

conveyed, transported, or caused to be transported a firearm

during and in relation to a drug trafficking crime. The word

“carried” includes more than merely having a weapon on one’s

person.

Although the indictment alleges that the defendants did

use and carry firearms during and in relation to the

commission of a drug trafficking crime, it is well established

that a disjunctive statute may be pleaded conjunctively in the

indictment, and proved disjunctively. Accordingly, although

count 3 of the indictment in the instant case states that the

defendants did use and carry firearms, the government is only

required to prove that the firearms were used or carried

during and in relation to the commission of a drug trafficking

crime.

The government is not required to prove that the

defendant actually fired the weapon or brandished it at

someone in order to prove “use,” as that term is used in this

instruction. However, you must be convinced beyond a

reasonable doubt that the firearm played a role in or

facilitated the commission of a drug offense. In other words,

you must find that the firearm was an integral part of the

drug offense charged. If the firearm is within the possession

or control of a person who commits a drug trafficking offense,

and the circumstances show that the firearm facilitated or had

a role in the crime, such as emboldening an actor who had the

opportunity or ability to display or discharge the weapon to

protect himself or intimidate others, whether or not such

display or discharge in fact occurred, there is a violation of

the statute . . . 

A conspirator is responsible for offenses committed by

another conspirator if the conspirator was a member of the

conspiracy when the offense was committed and if the offense

was committed in furtherance of, or as a foreseeable

consequence of, the conspiracy.

The jury found Marrero and Barnes guilty of 18 U.S.C. § 924(c)(1)

violations.

II.
4

The government concedes that the seventh paragraph of the

excerpted instructions contains language that did not require proof

of “active employment” of the firearm under the “use” prong of §

924(c) as required by Bailey. The question before us, then, is

whether this instructional error, viewed in light of the

instructions as a whole, compels a reversal of the § 924(c)

convictions.

As the district court correctly stated in its instructions, to

convict a defendant under 924(c), a jury may find that the firearm

was used or that the firearm was carried during the drug offense.

A firearm is “carried” within the meaning of the statute “if the

operator of a vehicle possesses the firearm in the vehicle during

and in relation to a drug trafficking crime.” United States v.

Pineda-Ortuno, 952 F.2d 98 (5th Cir.), cert. denied, 112 S. Ct.

1990 (1992). Our caselaw defining “carry” was not altered by the

Court’s decision in Bailey. United States v. Muscarello, 1997 WL

63706 at *2 (5th Cir. Feb. 13, 1997). The erroneous instruction on

“use” in this case required that the jury find that the firearm was

“within the possession or control of a person who commits a drug

trafficking offense.” The only guns brought into evidence by the

government were the two found in the vehicle occupied by Elwood and

Barnes. A jury finding of possession or control under the facts of

this case would constitute carrying under Pineda-Ortuno, and

therefore neither Marrero nor Barnes was prejudiced by the use

instruction. 
5

It is for this reason that the instructional error did not

affect either Barnes’ or Marrero’s conviction. Even if the jury

found that Barnes and Marrero “used” their firearms under the

erroneous definition of “use,” they would have had to have found

facts sufficient to constitute “carry” under the statute. Where a

jury has found the functional equivalent of an element, any

instructional error is deemed harmless. Sullivan v. Louisiana, 508

U.S. 275, 281 (1993).

Our decision in United States v. Fike, 82 F.3d 1315 (5th

Cir.), cert. denied, 117 S. Ct. 241-42 (1996), does not conflict

with our decision here. In Fike, the government did not argue that

the Bailey error did not affect the conviction because the jury

necessarily found that the defendant carried a firearm. As the

Fike court was not presented with this issue, its decision does not

bind us.

III.

For the foregoing reasons, the judgment of the district court

below is REVERSED.