U.S. v. Foster

• Decision Date: 05 January 1998
• Docket Number: No. 89-10405,89-10405
• Citation: 133 F.3d 704
• Parties: 98 Cal. Daily Op. Serv. 94 UNITED STATES of America, Plaintiff-Appellee, v. Leon Clifford FOSTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 704

133 F.3d 704

98 Cal. Daily Op. Serv. 94

UNITED STATES of America, Plaintiff-Appellee, v. Leon Clifford FOSTER, Defendant-Appellant.

No. 89-10405.

United States Court of Appeals, Ninth Circuit.

Jan. 5, 1998.

Miquel Rodriguez, Assistant United States Attorney, Sacramento, California, for Plaintiff-Appellee.

Michael R. Levine, Assistant Federal Public Defender, Portland, Oregon, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California; Edward J. Garcia, District Judge, Presiding.

Before: HUG, Chief Judge, and BROWNING, FLETCHER, KOZINSKI, THOMPSON, TROTT, FERNANDEZ, T.G. NELSON, KLEINFELD, TASHIMA and THOMAS, Circuit Judges.

OPINION

KOZINSKI, Circuit Judge.

What does it mean to "carry a gun"? We must choose between two duelling interpretations of the phrase.

I

Leon Foster and Sandra Ward manufactured methamphetamine. In 1989 the police got wise to them, pulled Foster over while he was driving his pickup truck and arrested him. In his truck bed, in a zipped up bag under a snap-down tarp, they found a loaded 9 mm semiautomatic and a bucket. Inside the bucket were a scale, plastic baggies, and some hand-written notes with prices.

Foster and Ward were convicted of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Foster was also convicted of possessing methamphetamine, in violation of 21 U.S.C. § 844, and of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). We overturned the conspiracy conviction in an unpublished memorandum disposition, but that decision was vacated, United States v. Foster, 513 U.S. 983, 115 S.Ct. 477, 130 L.Ed.2d 391 (1994), in light of an intervening Supreme Court case. On remand, we affirmed across the board. United States v. Foster, 57 F.3d 727, 729 (9th Cir.1995).

The Supreme Court thereafter decided Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which interpreted the "uses ... a firearm" prong of section 924(c)(1). Foster now could not be convicted of using a firearm, as he did not actively employ the gun during and in relation to his drug trafficking crime. Id. at 141-43, 116 S.Ct. at 505. But, he was never charged with using--only with carrying--and Bailey does not authoritatively answer whether he can be convicted of carrying a firearm. Our three-judge panel issued a new opinion in light of Bailey, holding that Foster did not carry the gun, United States v. Foster, 96 F.3d 1177 (1996), but that opinion was withdrawn. Id. at 1178. We were left with the 1995 decision. We took the case en banc to resolve a conflict in our caselaw over the interpretation of carrying a firearm when a gun is found in a vehicle. Compare United States v. Barber, 594 F.2d 1242 (9th Cir.1979) with United States v. Hernandez, 80 F.3d 1253 (9th Cir.1996).

II

Section 924(c)(1) provides that "[w]hoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years...." (emphasis added). Was Leon Foster carrying a gun when he drove with it in his truck bed?

"Carry" seems like a simple English word, which is precisely the problem: Few words in English are truly simple. "Carry" has two differing relevant uses. It may mean to transport or even to arrange for something to be transported: "I had to carry my piano all the way across the country." But it may also mean to hold an object while moving from one place to another: "I carried that ball and chain wherever I went." This narrower sense applies particularly to weapons. If I were to say "Don Corleone is carrying a gun"--or even just "Don Corleone is carrying"--you would understand that the Don has a sidearm somewhere on his person. A synonym for carry in this sense is to "pack heat." Criminals who pack heat are obviously much more dangerous than those who do not.

In our caselaw, we first adopted the broad definition of "carry" as transporting in United States v. Barber, 594 F.2d 1242 (9th Cir.1979). Interpreting section 924(c)(1)'s predecessor, we said "[i]n ordinary usage, the verb 'carry' includes transportation or causing to be transported. Nothing in the legislative history indicates that Congress intended any hypertechnical or narrow reading of the word 'carries.' " Id. at 1244. After Bailey we switched to the narrower (packing heat) sense in United States v. Hernandez, 80 F.3d 1253 (9th Cir.1996). We held that "in order for a defendant to be convicted of 'carrying' a gun in violation of section 924(c)(1), the defendant must have transported the firearm on or about his or her person.... This means the firearm must have been immediately available for use by the defendant." Id. at 1258 (citations omitted). A number of recent cases follow the Hernandez definition: United States v. Lopez, 100 F.3d 98, 101 (9th Cir.1996); United States v. Steinberg, 99 F.3d 1486, 1494 (9th Cir.1996); United States v. Loaiza-Diaz, 96 F.3d 1335, 1336 (9th Cir.1996); United States v. Willett, 90 F.3d 404, 407 (9th Cir.1996); United States v. Staples, 85 F.3d 461, 464 (9th Cir.1996).

Choosing between the two definitions is a close call. ¹ One need go no farther than Black's Law Dictionary to find ammunition for both sides--but a bit ² more for the narrower definition. The broad construction gets some support from the first part of the definition: "To bear, bear about, sustain, transport, remove, or convey." Black's Law Dictionary 214 (6th ed. 1990). But, the definition continues: "To have or bear upon or about one's person, as a watch or weapon; locomotion not being essential." Id. Moreover, Black's separately defines to "carry arms or weapons" as "[t]o wear, bear, or carry them upon the person or in the clothing or in a pocket, for the purpose of use, or for the purpose of being armed and ready for offensive or defensive action in case of a conflict with another person." Id. Because we are concerned here with carrying weapons, not furniture or grudges, the sense specific to weapons carries (so to speak) more weight.

There are those who have criticized the narrow definition because it seems to exonerate a defendant who has a gun readily accessible within the passenger compartment of a moving car, but not actually borne upon his person. These critics have smugly pointed out that circuits purporting to follow the narrow definition have had to abandon it in order to uphold convictions in such circumstances. See, e.g., United States v. Cleveland, 106 F.3d 1056, 1067 (1st Cir.), cert. granted, --- U.S. ----, 118 S.Ct. 621, 139 L.Ed.2d 506 (1997) (citing Willett, 90 F.3d at 406-07, among other cases). This criticism is ill-founded. The key aspect of the narrow definition is not that the weapon actually be borne on the person. Rather, it is that the weapon remain within easy reach while the individual is in motion. ³ Where an individual is walking, a gun in hand certainly amounts to carrying, but so does a gun in a holster or a shopping bag. The essence is that the weapon moves with the person and can be swiftly put to use. Where the individual is in a car, he need not actually be touching the weapon to make it move with him. ⁴ Because the car and its contents move in unison, any weapon that is within hand's reach while the car is in motion can be said to be carried. The same would be true, of course, if the individual had the weapon concealed in a train compartment, a bus or, heaven forfend, an airplane.

Bailey is the leading case on section 924(c)(1), so we can also look to how it analyzed "use" for clues to our similar puzzle. The Court first considered the ordinary, dictionary meaning. See 516 U.S. at 143-45, 116 S.Ct. at 506. When that yielded several interpretations--as it does for "carry"--the Court looked to "placement and purpose in the statutory scheme." Id. The Court stressed that since Congress used two distinct terms, they must be defined narrowly enough that neither swallows ⁵ up the other. Under the correct definition, then, there must be some ways to use a gun but not carry it, and others to carry a gun but not use it. Id. at 145-47, 116 S.Ct. at 507. The Bailey Court therefore defined "use" narrowly as "active employment." Yet there is nothing special about "use" that makes it susceptible to a narrow definition, while parallel terms of the same statute are defined broadly; it just so happens that "use" came before the Court, not "carry." Construing the two terms in pari materia, we see no basis for defining "carry" broadly while "use" is defined narrowly.

The Court also looked to context within the broader statute. Id. at 145-47, 116 S.Ct. at 507. It examined how "use" was used in 18 U.S.C. § 924(d) and argued that the term should have the same meaning in section 924(c)(1). "Carry," unlike "use," does not appear elsewhere in section 924, so we get no help there. However, the Court did note that the term "use," if defined too broadly, would become synonymous with "possess"--a term that Congress used elsewhere. Id. at 143-45, 116 S.Ct. at 506. A broad reading of "carry" presents a similar danger by making it synonymous with "transport." As with "possess," Congress used "transport," "transporting" and "transportation" at many places in the gun statutes. See, e.g., 18 U.S.C. §§ 922(a)(1)(A), 922(a)(1)(B), 922(a)(2), 922(a)(3), 922(a)(4), 922(a)(5), 922(e), 922(f)(1), 922(g), 922(h), 922(i), 922(j), 922(k), 922(n), 924(b), 925(a)(1), 925(a)(2), 925(a)(4). If Congress meant "transport" in section 924(c), it knew how to say so.

Another lesson we draw from Bailey is that, just as "use" may not be defined so broadly as to encompass mere possession, neither may "carry." The Barber interpretation comes dangerously close to doing this by prohibiting possession of a gun in a moving...