Hilliard v. U.S.

• Decision Date: 21 September 1998
• Docket Number: No. 96-6291,96-6291
• Citation: 157 F.3d 444
• Parties: Rockie Lane HILLIARD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 444

157 F.3d 444

Rockie Lane HILLIARD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 96-6291.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 4, 1998.

Decided Sept. 21, 1998.

Rockie Lane Hilliard, Federal Correctional Institution, El Reno, OK; Jennifer L. Smith (argued and briefed), Nashville, TN, for Petitioner-Appellant.

Joseph C. Murphy, Jr. (argued and briefed), Asst. U.S. Attorney, Memphis, TN, for Respondent-Appellee.

Before: MARTIN, Chief Judge; NORRIS and CLAY, Circuit Judges.

OPINION

MARTIN, Chief Judge.

Rockie Lane Hilliard appeals the judgment of the district court denying his motion under 28 U.S.C. § 2255 to vacate his sentence for using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Hilliard bases his collateral attack of his conviction on his contention that an instruction given to the jury during his trial on the term "use" was erroneous in light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Although we find that the jury instructions were erroneous, we conclude that there was sufficient evidence for a properly instructed jury to find that Hilliard carried his firearm during and in relation to a drug trafficking crime. We therefore do not believe Hilliard was prejudiced by the district court's error. We AFFIRM the district court's decision.

FACTS

On March 30, 1990, officers with the Organized Crime Unit of the Memphis Police Department executed a search warrant at a house located at 3271 Henry Street in Memphis, Tennessee. As the officers forced their way into the house, they saw three men sitting around a dining table in the main room. The men immediately leapt to their feet, ran into the adjoining kitchen, and attempted to exit through the back door. In their haste, all three collided with the inward-opening door, breaking the glass and tumbling to the floor. The officers, rushing in to secure the suspects, observed Hilliard removing a gun from his waistband and shoving it under the nearby stove. Moments later, the officers retrieved the weapon, a loaded .357 magnum revolver. The officers subsequently searched the house. On the dining table, where Hilliard had been seated, the officers discovered a mound of cocaine powder and four plastic bags, each containing at least 225 grams of cocaine. Also on the table were $15,000 in cash, an electronic scale, bottles of a common cocaine cutting agent, and a number of plastic baggies. ¹ Underneath the table, the officers found a kilogram of cocaine and a loaded pistol.

A federal grand jury for the Western District of Tennessee returned a two-count indictment against Hilliard. Count One charged that Hilliard and his co-defendants, being aided and abetted by each other, unlawfully, knowingly, and intentionally possessed with the intent to distribute approximately 2,252.1 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count Two, which is the subject of this appeal, charged that Hilliard knowingly and intentionally carried and used a firearm in violation of 18 U.S.C. § 924(c)(1).

Neither party objected to the jury instructions. Hilliard was convicted on both counts of the indictment and sentenced to eight years, one month on Count One and five years on Count Two, to be served consecutively. In a direct appeal of his conviction, Hilliard argued that the district court erred in excluding evidence of his inculpability and that the government had failed to produce sufficient evidence to establish the required elements of his offenses. This Court affirmed Hilliard's conviction in United States v. Hilliard, 11 F.3d 618 (6th Cir.1993). Hilliard then challenged his § 924(c) conviction pro se in a motion to vacate under 28 U.S.C. § 2255 arguing: (1) that there was insufficient evidence to support his conviction in light of Bailey; and (2) that his conviction must be overturned because the jury may have relied upon a constitutionally defective jury instruction to convict him. The district court denied his motion, finding that there was sufficient evidence to establish beyond a reasonable doubt that Hilliard had "carried" a weapon within the meaning of § 924(c)(1). It did not pass on the issue of sufficient evidence of Hilliard's "use" of a firearm. Hilliard filed a notice of appeal that was construed as an application for a certificate of appealability pursuant to Fed. R.App. P. 22(b). This Court granted Hilliard's application with respect to the following issues: (1) whether sufficient evidence supports Hilliard's conviction under 18 U.S.C. § 924(c)(1); and (2) whether the jury "necessarily based" its verdict to convict Hilliard on a constitutionally valid instruction.

DISCUSSION

In reviewing the denial of a 28 U.S.C. § 2255 petition, this Court applies a de novo standard of review of the legal issues and will uphold the factual findings of the district court unless they are clearly erroneous. Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994). In a collateral attack, to obtain post-conviction relief for an erroneous jury instruction to which there was no objection at trial, a defendant must show either (1) cause excusing his procedural default and actual prejudice resulting from the alleged error, Rattigan v. United States, 151 F.3d 551, 555 (6th Cir.1998) (citing United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)), or (2) that he is actually innocent. United States v. Shaid, 937 F.2d 228, 232 (5th Cir.1991) (en banc). Part and parcel of Hilliard's claim is that under the correct interpretation of § 924(c)(1), his behavior is not culpable. In addressing the sufficiency of the evidence, we determine " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Jones, 124 F.3d 781, 784 (6th Cir.1995) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

A. Erroneous Jury Instruction

Hilliard was charged in Count Two of his indictment with using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). The jury instructions pertaining to this charge stated in pertinent part:

The term "use" as that term is used in the statute contemplates more than the physical handling or manipulation of a firearm. It refers to carrying out a purpose by means of the firearm or intentionally facilitating the execution of a drug trafficking offense. In other words, the defendant is considered to have used a firearm if its purpose in any manner facilitated the carrying out of a drug trafficking crime.

The government is not required to prove that the defendant actually fired 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 the drug trafficking crime. However, the mere possession without more of a firearm by the defendant during the course of a drug trafficking crime is not sufficient for a finding of guilt. Possession is sufficient if it is an integral part of a drug trafficking crime.

The term "carry" as that term is used in the statute means to transport or cause the transportation of a firearm from one place to another during a drug trafficking crime....

J.A. at 54-55.

This instruction permitted the jury to convict Hilliard under the "fortress theory" or "facilitation theory." These theories interpreted the "use" and "carry" language of § 924(c)(1) broadly and allowed for a conviction under this statute if it reasonably appeared that the firearm found on a premises controlled or owned by a defendant was in his actual or constructive possession and was to be used to protect the drugs or otherwise to facilitate the drug transaction. United States v. Henry, 878 F.2d 937, 944 (6th Cir.1989). These theories have not been followed after Bailey. See United States v. Anderson, 89 F.3d 1306, 1315 (6th Cir.1996) (jury instruction was erroneous where jury was permitted to convict for use if gun facilitated drug transaction), cert. denied, --- U.S. ----, 117 S.Ct. 786, 136 L.Ed.2d 728 (1997); United States v. Bingham, 81 F.3d 617, 623-24 (6th Cir.), cert. denied sub nom., Petaway v. United States, --- U.S. ----, 117 S.Ct. 250, 136 L.Ed.2d 177 (1996); United States v. Moore, 76 F.3d 111, 114 (6th Cir.1996). To determine what the instruction should have been requires an examination of the recent clarification of the operative statutory language in § 924(c)(1).

"Using a Firearm"

In Bailey, the Supreme Court adopted a narrow interpretation of the term "use" under § 924(c)(1) and rejected the theory that the "use" prong of § 924(c)(1) could be satisfied upon a showing that the presence of the firearm "facilitated" the commission of the drug offense, or by the mere possession of a firearm by the offender. Bailey, 516 U.S. at 148-49, 116 S.Ct. 501. Instead, Bailey redefined "use" as "active employment," thereby requiring that the firearm be "an operative factor in relation to the predicate offense." Id. at 143, 116 S.Ct. 501. The types of culpable behavior that amount to "use" include: brandishing, displaying, bartering, striking with, firing or attempting to fire a firearm. Id. at 148, 116 S.Ct. 501. Under the new interpretation of "use," liability under § 924(c)(1) attaches for actual use, not intended use. Id. at 149-50, 116 S.Ct. 501.

In United States v. Taylor, 102 F.3d 767, 770 (6th Cir.1996) (per curiam), cert. denied, --- U.S. ----, 118 S.Ct. 327, 139 L.Ed.2d 254 (1997), this Court considered a case in which the jurors were permitted to convict the defendant if they found that he "had possession of the weapon ... in the sense that he had both the power and the...