Swedzinski v. U.S., 97-2990

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before BOWMAN, Chief Judge, MORRIS SHEPPARD ARNOLD, and MURPHY; BOWMAN
• Citation: 160 F.3d 498
• Parties: Mark Edward SWEDZINSKI, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 97-2990,97-2990
• Decision Date: 01 February 1999

Page 498

160 F.3d 498 Mark Edward SWEDZINSKI, Appellant,
v.
UNITED STATES of America, Appellee. No. 97-2990. United States Court of Appeals,
Eighth Circuit. Submitted Oct. 22, 1998.
Decided Nov. 17, 1998.
Rehearing Denied Feb. 1, 1999.

Page 499

Daniel Guerrero, Minneapolis, MN, argued, for Appellant.

Margaret Magill, Minneapolis, MN (David L. Lillehaug, United States Attorney, and Nathan P. Petterson, Minneapolis, MN, on the brief), for Appellee.

Before BOWMAN, Chief Judge, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

BOWMAN, Chief Judge.

Mark Edward Swedzinski appeals the District Court's ¹ denial of his 28 U.S.C. § 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, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). We affirm.

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 co-defendant, 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

Page 500

States v. Coyle, 988 F.2d 831, 833-34 (8th Cir.1993), cert. denied, 510 U.S. 1095, 114 S.Ct. 928, 127 L.Ed.2d 220 (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, 116 S.Ct. 501, 133 L.Ed.2d 472 (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 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, 116 S.Ct. 501. Active employment would include "brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm." Id. at 148, 116 S.Ct. 501. 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...