UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

____________

No. 95-31000

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFRED LEWIS BROWN, also known as Goat,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana

November 16, 1998

Before POLITZ, Chief Judge, and REYNALDO G. GARZA, KING, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

We granted rehearing en banc as to count twenty-four, which

alleged violation of 18 U.S.C. § 924(c)(1), to consider whether to

adopt a harmless error rule in cases in which a jury convicts a

defendant under an erroneous pre- Bailey “use” instruction.

I

Defendant, Alfred Brown, supplied drugs to the Bottoms Boys,

a street gang in Shreveport, Louisiana. Police conducted a1 The facts and proceedings in the underlying case can be

found in the panel opinion. S ee United States v. Wilson

, 116 F.3d 1066 (5th Cir. 1997). We granted e n banc review of Brown's section 924(c)(1) conviction. Thus, we vacated only Part IX C of the panel opinion by our grant of rehearing en banc

. S ee 5 T H C IR

. R. 41.3. The panel opinion as to Brown's other convictions and the convictions of all other defendants-appellants remains unaffected.

2 18 U.S.C. § 924(c)(1) provides, in relevant part: “Whoever, during a nd in relation to any . . . drug trafficking crime . . . uses or carries a firearm, shall, in addition to the punishment provided for such

. . . drug trafficking crime, be sentenced to imprisonment for five years . . . .”

3 Except for minor grammatical differences, the district court’s instruction was the same as the old Fifth Circuit Pattern Jury Instruction. S ee Record, v. 44 at 113-14. T he Fifth Circuit
Pattern Jury Instruction (Crimi nal Cases), No. 2.45 (West 1990) provided: Title 18, United States Code, Section 924(c)(1), makes it a crime for anyone to use or car ry 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 proved each of the following beyond a reasonable doubt: First : That the defendant committed the crime allege in Count
__. I instruct you that ___ 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- lengthy investigation of the gang that culminated in the arrest

of Brown and thirteen other gang members. 1 A grand jury indicted

Brown on several offenses, including count twenty-four which

charged Brown with using and carrying a firearm during and in

relation to a drug trafficking offense, in violation of 18 U.S.C.

§ 924(c)(1). 2 At trial, the district court instructed the jury

on section 924(c)(1), using the then-current Fifth Circuit

Pattern Jury Instruction. 3 The court did not define “use” orThe 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

w ords, you must find that the firearm was an in tegral part of the drug offense charged. The term “firearm” means any weapon which will or is designed to or may re adily be converted to expel a projectile b y the action of an explosive. The term “fi rearm” also includes the frame or receiver of any
weapon, or any firearm muffler or firear m silencer, or destructive device.

-3- “carry” except to instruct that the government need not prove

that Brown “actually fired the weapon or brandished it at someone

in order to prove use. . . .” Brown did not object to the

instruction. The jury convicted Brown, and he appealed.

On appeal, Brown argued that under Bailey v. United States

,

__ U.S. __, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), he had not

actively used the firearm, that the court’s instruction on “use”

was erroneous, and thus, we could not sustain his conviction. At

oral argument, the government acknowledged that the jury

instructions included elements of passive “use,” invalidated by

Bailey . It argued, however, that the facts supported a

conviction for “carrying,” and that the jury could not have

convicted Brown for “use” without also finding that he had

“carried” the firearm.

In our panel opinion, we agreed that “the jury could not

have improperly convicted Brown for a 'use' that would not also4 We are the only circuit that has required remand in cases

in which a jury convicts the defendant under an erroneous preBailey “use” instruction. Other circuits apply some form of a harmless error analysis. S ee United States v. Pimentel

, 83 F.3d 55, 60 (2d Cir. 1996)(concluding remand not required if jury’s verdict is the “functional equivalent” of a finding of “carrying”); United States v. Price

, 76 F.3d 526, 529 (3d Cir. 1996)(concluding remand not required because “it is highly probable that the error did not contribute to the judgment of the jury”); U nited States v. Chen

, 13 1 F.3d 375, 385 (4th Cir. 1997)(equally divided court)(Williams, J., concurring)(stating that “district court’s instruction on nonessential element of the offe nse is subject to harmless error analysis”); United States v. Golden , 102 F.3d 936 (7th Cir. 1996)(applying a three-factor harmle ss error test to flawed jury instructions); U nited States v. Beasely

, 102 F.3d 1440, 1452 (8th Cir. 1996)(applying plain error analysis to flawed jury instructions); U nited States v. Lopez
, 100 F.3d 98, 103 (9th Cir. 1996)(concluding that “we must apply harmless error review to the 'carrying' prong on these facts”); United States v. Holland

, 116 F.3d 1353, 1357 (10th Cir. 1997)(concluding that, despite the

erroneous instruction, t he jury “found the elements necessary to sustain a conviction for 'carrying'”); U nited States v. Farris

, 77 F.3d 391, 395 (11th Cir. 1996)(affirming conviction notwithstanding erroneous instruction, because “rational trier of fact could have found the defendant guilty beyond a reasonable doubt”).

-4- support a proper conviction for carrying a weapon.” United

States v. Wilson , 116 F.3d 1066, 1090 (5th Cir. 1997). Thus, we

found the erroneous “use” instruction harmless. We noted that

reversal made “little sense,” but we believed ourselves

constrained by United States v. Fike , 82 F.3d 1315 (5th Cir.

1996), and United States v. Brown , 102 F.3d 1390 (5th Cir. 1996).

These two cases established a per se rule requiring remand for a

new trial on the issue of “carrying,” whenever a district court

instructs the jury under the expansive, pre- Bailey definition of

“use.” 4 Accordingly, we vacated Brown’s conviction and remanded-5-

for a new trial on the “carrying” prong of section 924(c)(1)

alone. The government moved for rehearing, and we granted en

banc review and vacated our panel opinion with respect to Brown’s

conviction on count twenty-four only.

II

Two recent Supreme Court decisions inform our interpretation

of section 924(c)(1): Bailey v. United States , __ U.S. __, 116

S. Ct. 501, 133 L. Ed. 2d 472 (1995), and Muscarello v. United

States , __ U.S. __, 118 S. Ct. 1911, 141 L. Ed. 2d 111 (1998).

In Bailey , the Supreme Court held that section 924(c)(1) requires

evidence sufficient to show active employment of a firearm by the

defendant, and not mere possession or intended use. See Bailey

,

__ at __, 116 S. Ct. at 505-09

. The Court noted also that

Congress intended the terms “use” and “carry” to have

“particular, nonsuperfluous meaning.” Id . at __, 116 S. Ct. at

507. Thus, according to the Court:

a firearm can be used without being carried, e.g. , when an offender has a gun on display during a transaction, or barters with a firearm without handling it; and a firearm can be carried without being used, e.g. , when an offender keeps a gun hidden in his clothing throughout a drug transaction.

Id. The Court in Bailey did not define “carrying” for purposes

of section 924(c)(1), but clarified the definition in Muscarello.

In Muscarello , the Court held that the phrase “carries a firearm”

encompasses more than the mere carrying of a firearm on one’s5 See Fifth Circuit Pattern Jury Instruction (Criminal

Cases), No. 2.49 (We st 1997)(“To prove the defendant ‘carried’ a firearm, the government must prove that the defendant carried the firearm in the ordinary sense of the word ‘carry,’ such as by transporting a firearm on the person or in a vehicle. The defendant’s carrying of the firearm cannot be merely coincidental or unrelated to the drug trafficking crime.”).

6 These facts were the only evidence before the jury on which it could have convicted Brown on count twenty-four. Significantly, the record d oes not reflect multiple episodes in which Brown “used or carried” a firearm in relat ion to a drug offense. See, e.g., United States v. Golden , 102 F.3d 936 (7th Cir. 1996)(in context of multiple episodes, finding erroneous “use” instruction not harmless because court could not “tell whether the jury verdict rested on an erroneous understanding of ‘use’” or on the jury’s belief that the defendants carried the firearm).

-6- person. According to the Court, the phrase also “applies to a

person who knowingly possesses and conveys firearms in a vehicle,

including in the locked glove compartment or trunk of a car,

which the person accompanies.” Muscarello, __ at __, 118 S. Ct.

at 1913-14. 5

The facts found by the jury fit squarely within Muscarello ’s

definition of “carries a firearm.” On the day of Brown’s arrest,

the police set up surveillance in an area of Shreveport

controlled by the Bottoms Boys. They observed Brown make handto-hand exchanges with other people, and open his car’s trunk on

several occasions. When police officers stopped Brown, they

observed a gun in the front seat of his car. The officers then

searched the car and discovered two bags of cocaine concealed

near the gun’s location. A search of the car’s trunk recovered

another firearm and approximately two thousand dollars in cash. 67 As Justice Scalia stated:

When the

. . . facts necessarily found by the jury[] are

so closely related to the ultimate fact t o be presumed that no rational jury could find those facts without also finding that ultimate fact, making those find ings is functionally equivalent to finding the element required
to be presumed. The error is harmless because it is “beyond a reasonable doubt” that the jury found the facts necessary to support the conviction. Carella v. Californ ia , 491 U.S. at 271, 109 S. Ct. at 2423-24 (Scalia, J., concurring)(emphasis added).

-7- Nonetheless, in light of Bailey , the panel held correctly

that the district court instructed the jury erroneously as to

“use.” Under our prior precedent, this finding would require us

to remand. We now must decide whether that error was harmless,

that is, notwithstanding the erroneous “use” instruction, whether

the jury found beyond a reasonable doubt the facts necessary to

support a conviction for “carrying.” See Carella v. California

,

491 U.S. 263, 271, 109 S. Ct. 2419, 2423-24, 105 L. Ed. 2d 218

(1989)(Scalia, J., concurring). 7

We find that the jury necessarily found Brown “carried” a

firearm as defined in Muscarello . To convict Brown, the jury had

to find only that Brown “knowingly used or carried a firearm,”

and that the firearm “was an integral part of the drug offense

charged.” The jury instructions encompassed Muscarello ’s

definition of “carrying.” Thus, in concluding that Brown “used”

a firearm, pursuant to the pre- Bailey “use” instruction, the jury

necessarily

found that Brown “carried” the firearm. See United

States v. Lopez , 100 F.3d 98, 104 (9th Cir. 1996)(noting that “no8 To the extent that our decision today is inconsistent

with our decisions in F ike and Brown
, those decision s are overruled.

-8- rational jury could have found that the pistol was 'in the

defendants' possession or under their control' without also

necessarily finding that either [defendant] 'carried' the

firearm”). In other words, on the facts of this case, the jury’s

finding of passive “use” amounted to a finding of “carrying.”

See Carella, 491 U.S. at 271, 109 S. Ct at 2423-24 (Scalia, J.,

concurring). We hold, therefore, that the erroneous “use”

instruction was harmless.

III

Brown’s conviction on count twenty-four is, therefore,

AFFIRMED. 8

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