U.S. v. Perkins
| Citation | 161 F.3d 66,333 U.S. App. D.C. 167 |
| Decision Date | 24 November 1998 |
| Docket Number | No. 96-3138,96-3138 |
| Parties | UNITED STATES of America, Appellee, v. Daniel Joseph PERKINS, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Evelina J. Norwinski, Assistant Federal Public Defender, argued the cause for appellant. A. J. Kramer, Federal Public Defender, was on the briefs.
T. Anthony Quinn, Assistant U.S. Attorney, argued the cause for appellee. Wilma A. Lewis, U.S. Attorney, John R. Fisher and Thomas J. Tourish, Jr., Assistant U.S. Attorneys, were on the brief. Elizabeth Trosman, Assistant U.S. Attorney, entered an appearance.
Before: HENDERSON, ROGERS and GARLAND, Circuit Judges.
Daniel Joseph Perkins asks us to vacate his 1991 conviction for the use or carrying of a firearm during and in relation to a drug trafficking offense. He contends that the district court improperly instructed the jury with respect to the meaning of "use," as the Supreme Court subsequently defined the term in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Although Perkins did not object to the district court's instruction at the time, he contends that the standard of review normally applied when an objection has been made, "harmless error" review, is the appropriate standard for this case. We question whether harmless error is in fact the appropriate standard of review here. We need not resolve that question, however, because defendant's appeal fails even under the standard he asks us to apply.
While investigating gunshots in the vicinity of a building in the District of Columbia, police officers saw Perkins leave the building with a handgun protruding from his waistband. When an officer ordered Perkins to stop, he disregarded the order and ran, throwing a nine-millimeter handgun into the bushes. The gun was found where Perkins threw it. Two other officers apprehended and searched him. They found a fully loaded nine-millimeter ammunition clip, two large rocks of cocaine base, 154 ziplock bags of cocaine base, a razor blade, and $518 in cash--$120 of which was concealed in Perkins' underwear. The total street value of the cocaine base was more than $4,500.
The grand jury returned a two-count indictment. Count 1 charged Perkins with possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). Count 2 charged him with violating 18 U.S.C. § 924(c)(1), which imposes punishment on anyone who, during and in relation to a drug trafficking crime, "uses or carries" a firearm. At trial, Perkins admitted possessing the drugs; his defense to the § 841 charge was that he did not intend to distribute them. Perkins said "a boy named John" had asked him to hold the drugs about an hour or two before his arrest, and that he had planned to give the drugs back to John as soon as he returned to collect them. 2/4/91 Tr. at 142-43, 153.
Perkins also admitted carrying the gun. 2/4/91 Tr. at 158. His defense to the § 924(c)(1) charge was that although he carried the weapon, he did not do so "during and in relation to" a drug-trafficking offense. He said he carried the gun for protection from an unknown assailant who had shot at him two weeks earlier, and not in connection with the drugs he was holding. Id. at 114, 122. His counsel told the jury that "in effect it was a coincidence" that he had the gun and drugs on his person at the same time. 2/1/91 Tr. at 70-71 (opening statement). The jury convicted Perkins on both counts.
Perkins then appealed, contending that the district court improperly denied a motion to suppress the evidence seized from his person, and that there was insufficient evidence to sustain a conviction for using or carrying a firearm "during and in relation to" a drug trafficking offense. This court rejected Perkins' claims and affirmed his convictions on July 26, 1993. United States v. Perkins, 1 F.3d 45 (D.C.Cir.1993) ().
On December 6, 1995, the Supreme Court decided Bailey v. United States, in which it held that in order to establish "use" of a firearm under § 924(c)(1), the government must show "active employment of the firearm" by the defendant. 516 U.S. at 144, 116 S.Ct. 501. 1 Perkins then filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Perkins contended that the jury instructions at his trial were improper because they did not limit "use" to mean only active employment, and because the court implied that the jury could find "use" merely by finding that Perkins possessed the gun to advance or facilitate a drug trafficking offense. The district court denied Perkins' § 2255 motion, holding that the instructions were proper. See United States v. Perkins, 939 F.Supp. 42, 44 (D.D.C.1996). Defendant appeals the denial of his motion. 2
We first consider whether there was error in the district court's instructions as to the elements of § 924(c)(1). This is a question of law which we review de novo. See Joy v. Bell Helicopter Textron, 999 F.2d 549, 556 (D.C.Cir.1993).
The court instructed the jury that:
[T]o establish the offense charged in Count 2 [ § 924(c)(1) ], the government must prove beyond a reasonable doubt the following elements:
1. That the defendant committed a drug trafficking crime ...[;]
2. That the defendant used or carried a firearm knowingly and intentionally; and
3. That the firearm was used or carried during and in relation to a drug trafficking offense.
2/5/91 Tr. at 25. With respect to the first element, the court explained that the drug trafficking crime at issue was the possession with intent to distribute charge that was the subject of Count 1. Id. With respect to the "knowingly and intentionally" aspect of the second element, the district court, at defendant's request, gave the standard charge that "an act is done knowingly and intentionally if done consciously, voluntarily and purposely, and not by mistake, inadvertence or accident." Id. at 26.
The court did not define either "use" or "carry." It did, however, define "in relation to" as follows:
Now we get to the third element.... The use or carrying of a firearm relates to a drug trafficking offense if it advances or facilitates the commission of a drug trafficking offense. The carrying of a firearm does not relate to a drug trafficking offense if the defendant inadvertently used or carried the firearm.
2/5/91 Tr. at 26-27. The defendant did not object to the instructions.
Perkins now contends that the failure to define "use" or "carry," combined with the above definition of "in relation to," led the jury to believe that "use" could include any advancing or facilitating of a drug offense, even if there were no active employment of the firearm as required by Bailey. Although we will assume for purposes of analysis that the jury instructions were erroneous as defendant contends, for the following reasons we are not at all certain that they were.
First, there was no error in the definition of "in relation to." It was drawn largely from an instruction avidly sought by defendant as the basis for his only defense to the § 924(c) charge. See Defendant's Proposed Jury Instructions Regarding 18 U.S.C. § 924(c)(1) (filed Jan. 31, 1991). Moreover, it was very close to the wording employed by the Supreme Court in Smith v. United States, 508 U.S. 223, 237-38, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993), and by this court in United States v. Washington, 106 F.3d 983, 1010 (D.C.Cir.1997). Nor was there any implication that the trial court was, by those words, defining "use" rather than "in relation to." The court clearly prefaced its remarks by saying that it was about to define the third element of the offense, which it had just moments before explained was the requirement that the using or carrying be "in relation to" a drug trafficking offense.
There also was no error in the court's failure to define "carry." See United States v. Freisinger, 937 F.2d 383, 387 (8th Cir.1991). Although a trial court must define words and phrases that have technical or unconventional meanings, it is not required "to define words which are in common use, and are such as are readily comprehended by persons of ordinary intelligence, where the words are applied in the judge's instructions in their conventional sense." United States v. Maude, 481 F.2d 1062, 1075 (D.C.Cir.1973); see also United States v. DeSantiago-Flores, 107 F.3d 1472, 1480 (10th Cir.1997). In Muscarello v. United States, the Supreme Court determined that Congress intended "carry" to have its "ordinary" and "generally accepted contemporary meaning," 118 S.Ct. 1911, 1916, 1919 (1998), which, the Court said, includes both carrying a firearm on one's person and knowingly possessing and conveying a firearm in a vehicle--even in the vehicle's locked glove compartment or trunk, id. at 1913-14. Given that broad definition of the word, it is implausible that the jury could have adopted a still broader interpretation that was impermissible under the statute.
Moreover, in this case there was no reason for jurors to scratch their heads over the definition of "carry." The only evidence of carrying in the case was the most "ordinary" of the ordinary possibilities noted in Muscarello: Perkins had the gun on his person. More important, defense counsel told the jurors in his opening statement that "Mr. Perkins will tell you that he carried the gun, and that's not going to be an issue." 2/1/91 Tr. at 70. Perkins did indeed testify that he carried the gun. 2/4/91 Tr. at 121-22, 158. The failure to define a term that is both conceded by the defendant and commonly used can hardly be error. See Maude, 481 F.2d at 1075 & n. 98.
The trial court's failure to define "use," however, is more problematic. On the one hand, there are reasonable arguments for concluding that such a failure may constitute error in...
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