U.S. v. Hernandez
| Decision Date | 31 January 1996 |
| Docket Number | No. 95-30007,95-30007 |
| Citation | 80 F.3d 1253 |
| Parties | 96 Cal. Daily Op. Serv. 677, 96 Daily Journal D.A.R. 1013 UNITED STATES of America, Plaintiff-Appellee, v. Pedro Arias HERNANDEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Arturo Hernandez, San Jose, California, for defendant-appellant.
Bernard F. Hubley, Assistant United States Attorney, Helena, Montana, for plaintiff-appellee.
Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District Judge, Presiding.
Before: BOOCHEVER, FERNANDEZ and KLEINFELD, Circuit Judges.
On September 27, 1994, a jury returned guilty verdicts against Pedro Arias Hernandez on one count 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), and on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (1994). The charges were based on events that took place on April 27, 1989, and evidence seized pursuant to a search warrant issued that same day.
On appeal, Hernandez argues that (1) the evidence was insufficient to support the § 924(c)(1) conviction because he did not "use" or "carry" a firearm; (2) the § 924(c)(1) charge should have been dismissed because the government did not charge a separate drug trafficking crime, and that crime is now beyond the statute of limitations; (3) the evidence seized should have been suppressed because the search warrant lacked probable cause; (4) the evidence seized should have been suppressed because the search warrant affiant deliberately or recklessly included false statements in and omitted material information from the search warrant application; (5) the government has engaged in vindictive prosecution; and (6) the district court should have held a hearing on the issue of double jeopardy.
This appeal presents our first opportunity to interpret the meaning of the terms "use" and "carry" for purposes of 18 U.S.C. § 924(c)(1) since the Supreme Court's decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). As discussed below, to establish "use" under section 924(c)(1), the government must show active employment of the firearm. The word "carry" requires the firearm to be on or about the defendant's person.
Under this interpretation, we find that the evidence was insufficient to support Hernandez's conviction under 18 U.S.C. § 924(c)(1), because Hernandez did not "use" or "carry" a firearm during and in relation to a drug trafficking crime. Because Hernandez's remaining arguments provide no basis for reversing or vacating his conviction for being a felon in possession of a firearm, we affirm his conviction on that charge.
On April 27, 1989, at the direction of agents from the Montana Criminal Investigation Bureau (MCIB) and the Federal Bureau of Investigation (FBI), a confidential informant (CI) placed a monitored call to Hernandez in an attempt to arrange a drug purchase. The CI convinced Hernandez to meet so that the CI could repay a preexisting debt. During the monitored phone call, Hernandez denied having any drugs to sell to the CI.
After meeting at a prearranged location, the CI and Hernandez travelled to Hernandez's auto body shop (the garage). Through a transmitter worn by the CI, MCIB Agent Reed Scott (Agent Scott) heard the sounds of a scuffle inside the garage. The agents forced their way into the garage and arrested Hernandez.
Tim Henneberry, who was involved in the auto body business with Hernandez, was present in the garage when the agents entered. Henneberry informed Agent Scott that there had been an altercation and that Hernandez had struck the CI with a pipe. The CI confirmed Henneberry's account.
In response to Agent Scott's inquiries regarding the presence of drugs in the garage, Henneberry stated that he was personally unaware of any cocaine in the garage but that in the past, he had seen Hernandez sell cocaine there. Henneberry also stated that he had seen Hernandez take small quantities of cocaine from a red toolbox in the past. Agent Scott observed a red toolbox bearing Hernandez's name in the garage. Based on these facts and Henneberry's statements, Agent Scott submitted a sworn application for and received a warrant to search the garage that same day, April 27, 1989. (Henneberry subsequently denied having made the statements regarding the sale of drugs in the garage.) Hernandez pled guilty in Montana district court to felony assault and criminal possession of drugs. No federal charges were brought against Hernandez at that time.
On June 17, 1993, however, the federal government brought a four-count indictment against Hernandez based on events unrelated to those occurring on April 27, 1989. A jury found Hernandez guilty on two counts and not guilty on two counts.
On March 17, 1994, the federal government indicted Hernandez in the present action, charging him with two counts based on the events of April 27, 1989. Hernandez made motions to suppress the evidence seized from the garage and to have the indictment dismissed for vindictive prosecution and double jeopardy. The district court denied these motions after holding a Franks hearing. A jury then found Hernandez guilty on both counts, and he appeals.
Hernandez claims that the evidence was insufficient to support his conviction on Count I for using or carrying a firearm during and in relation to a drug trafficking crime. Hernandez argues that the government failed to establish that he "used or carried" a firearm, because the gun was inside a locked toolbox during the time of the relevant drug trafficking crime.
Section 924(c)(1) requires the imposition of enhanced penalties if the defendant "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm...." 18 U.S.C. § 924(c)(1) (emphasis added). There is sufficient evidence to support a conviction if, reviewing 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. Vgeri, 51 F.3d 876, 879 (9th Cir.1995).
In its recent decision in Bailey, the Supreme Court stated that "a conviction for 'use' of a firearm under § 924(c)(1) requires more than a showing of mere possession...." Bailey, --- U.S. at ----, 116 S.Ct. at 506. To establish "use" under section 924(c)(1), the government must show "an active employment of the firearm." Id. at ----, 116 S.Ct. at 505. "The active-employment understanding of 'use' certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at ----, 116 S.Ct. at 508. It, however, does not encompass the action in which a defendant hides a gun where he can grab and use it if necessary, unless the defendant makes a reference to the gun in his possession "calculated to bring about a change in the circumstances of the predicate offense." Id.
Here, the government's only evidence that Hernandez "used" a firearm was that he strategically placed a firearm in close proximity to his drugs. The gun was located in the garage in a locked toolbox that contained cocaine, and Hernandez made no reference to it during the relevant time period. Although the gun might have emboldened Hernandez to take action relating to the drugs, Hernandez did not "use" the gun as the term has been defined by the Supreme Court for purposes of section 924(c)(1). "[T]he inert presence of a firearm, without more, is not enough to trigger [the 'use' prong of] § 924(c)(1)." Id. To the extent that our prior decisions are to the contrary, they have been overruled. See United States v. Torres-Medina, 935 F.2d 1047 (9th Cir.1991); United States v. Torres-Rodriguez, 930 F.2d 1375 (9th Cir.1991) (as amended); United States v. Stewart, 779 F.2d 538 (9th Cir.1985).
"The 'carry' prong of § 924(c)(1) ... brings some offenders who would not satisfy the 'use' prong within the reach of the statute." Bailey, --- U.S. at ----, 116 S.Ct. at 509. Still, the word "carry" in the statute must be given its "ordinary or natural" meaning. See id. at ----, 116 S.Ct. at 506. Webster's defines "to carry" as "to move while supporting" or "to hold, wear or have upon one's person." Webster's Third New International Dictionary of the English Language 343 (3d ed. 1976). Black's Law Dictionary defines "to carry" as "[t]o have or bear upon or about one's person," and 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...." Black's Law Dictionary 214 (6th ed. 1990). These definitions suggest that the term "carry" involves activity beyond mere possession. See Bailey, --- U.S. at ----, 116 S.Ct. at 506 (). See also Torres-Medina, 935 F.2d at 1049 n. 2 ().
We conclude 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. See United States v. Riascos-Suarez, 73 F.3d 616, 623 (6th Cir.1996); see also Bailey, --- U.S. at ----, 116 S.Ct. at 508 (). This means the firearm must have been immediately available for use by the defendant. See Riascos-Suarez, 73 F.3d at 623.
In the present case, Hernandez did not keep "a gun hidden in his clothing throughout a...
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