USA. v. Green

Decision Date26 June 2001
Docket NumberNo. 99-3083,99-3083
Citation254 F.3d 167
Parties(D.C. Cir. 2001) United States of America, Appellee v. William Austin Green, Appellant
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 90cr00553-01)

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender.

Mary B. McCord, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney at the time the brief was filed, and John R. Fisher, Mary-Patrice Brown and Robert D. Okun, Assistant U.S. Attorneys.

Before: Edwards, Chief Judge, Garland, Circuit Judge, and Silberman, Senior Circuit Judge.*

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

William Austin Green was convicted in 1991 for "using or carrying" a firearm during and in relation to a violent crime, in violation of 18 U.S.C. 924(c)(1). After an unsuccessful direct appeal, Green brought a collateral challenge to his conviction pursuant to 28 U.S.C. 2255. He contends that in light of Bailey v. United States, 516 U.S. 137 (1995), the trial judge misinstructed the jury as to the meaning of "using or carrying." The district court denied Green's motion to vacate his sentence, concluding that any error was harmless. We agree with the district court and affirm the judgment below.

I

On October 31, 1990, Green helped Rita Peaks abduct a three-year-old girl from her mother and legal custodian. The kidnapping occurred as mother and child, the latter dressed in her Halloween costume, walked down a street in the District of Columbia. Green approached them from behind, grabbed the child, ran across the street, jumped into Peaks' waiting car, and drove off. Peaks intended to take the child to Arizona to live with her and Carl Butler, the child's father. After a number of intervening events, dramatic but unnecessary to describe here, Green and Peaks persuaded two others, Ernie Davis and Jerome Diggs, to provide a car and accompany them on their trip.

Although Green and Peaks had told Davis and Diggs that their destination was Virginia, Peaks instead drove the group, including the kidnapped child, into Maryland. When Davis realized that Peaks planned a longer trip than he had expected, he expressed reservations about continuing on the journey. Davis testified that Peaks stopped the car, and that Green then pointed a gun "in [his] face" and ordered him out. Diggs testified that he also tried to get out of the car, but that Green grabbed him from behind, held a gun to his head, and told Peaks to drive away.

Peaks, Green, Diggs, and the child traveled west until they reached Kansas City, Missouri, where they were stopped by police officers. At the time, Diggs was in the driver's seat and Green in the front passenger's seat. Because Diggs could not produce a license or registration, the officers asked the group to step out of the car. After a brief search, Officer Mark Johnson found a loaded .25 caliber pistol under the center console in the car's front seat. At trial, Officer Johnson testified that Green immediately stated, "that's my gun." Diggs also testified that Green claimed ownership of the weapon, and that the gun seized by the officer appeared to be the same one Green had earlier brandished at him. The officers placed Green under arrest for carrying a concealed weapon, and permitted the others (including the child) to drive off. Following further adventures, again unnecessary to recount, Peaks was arrested in Colorado and the child was returned to her mother.

On January 15, 1991, Green was charged with: kidnapping, in violation of 18 U.S.C. 1201; conspiracy to kidnap, in violation of 18 U.S.C. 371; assault with intent to kidnap, in violation of D.C. Code 22-503; transporting a firearm in interstate commerce while under indictment for a felony, in violation of 18 U.S.C. 922(n); and using or carrying a firearm during and in relation to a violent crime, in violation of 18 U.S.C. 924(c)(1). Green was also charged with tampering with and retaliating against a witness, in violation of 18 U.S.C. §§ 1512(b)(1) and 1513, for asking Davis to lie to the grand jury while the two were in custody and for punching Davis after he testified.

Green, who was tried jointly with Peaks, neither testified nor presented witnesses in his defense. Following closing arguments, the trial court instructed the jury that the first element of the 924(c)(1) offense was that "the defendant was carrying or used a firearm." 4/19/91 Tr. at 119. In defining "using or carrying," the court advised the jury, inter alia, that: "In order to satisfy this element,.... [i]t is sufficient if you find that [the defendant] transported or conveyed a weapon or had possession of it in the sense that at a given time [he] had both the power and the intention to exercise dominion and control over it." Id. at 120 (emphasis added).

On April 19, 1991, the jury found Green guilty of all charges. This court affirmed his convictions in 1993. United States v. Green, Nos. 91-3200, 92-3005, 1993 WL 119451 (D.C. Cir. Mar. 23, 1993). In 1995, the Supreme Court decided Bailey v. United States, 516 U.S. 137 (1995), which clarified the meaning of "using" a firearm under 924(c)(1). Bailey held that to prove "use," "the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime." Id. at 150. Thus, a conviction for "using" a firearm under 924(c)(1) "requires more than a showing of mere possession." Id. at 144.

Following Bailey, Green filed a motion under 28 U.S.C. 2255 to vacate, set aside or correct his sentence. After holding a hearing, the district court denied Green relief. The court found that any error in the 924(c)(1) instruction was harmless, because by convicting Green of unlawfully transporting a firearm in interstate commerce under 18 U.S.C. 922(n), the jury necessarily concluded that Green had "carried" the firearm as well. See United States v. Green, No. 90-cr-553, slip op. at 5-6 (D.D.C. Apr. 28, 1999).

II

The government concedes that, in light of the Supreme Court's subsequent decision in Bailey, the trial court erred by conflating the terms "using" and "carrying" and effectively instructing the jury that it could convict Green if it found he had merely constructively possessed a weapon. See United States v. Johnson, 216 F.3d 1162, 1166 (D.C. Cir. 2000); In re Sealed Case, 153 F.3d 759, 770-72 (D.C. Cir. 1998). The government contends, however, that because Green failed to object to the jury instructions either at trial or on direct review, "the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and actual 'prejudice,' ... or that he is 'actually innocent.' " Gov't Br. at 20 (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)). Green counters that, among other things, the government waived this procedural default argument by failing to make it with respect to the "carry" instruction in the 2255 proceeding below. He instead urges us to vacate his conviction unless we find "harmless error," the standard we apply on direct review when the defendant has objected to the instruction at trial. See Fed. R. Crim. P. 52(a).

On several previous occasions we have surveyed the standards of review potentially applicable to Bailey trial errors. In each case, we have found it unnecessary to select the most appropriate standard, because in each the defendant's conviction survived the standard most favorable to him--harmless error. See Johnson, 216 F.3d at 1166; United States v. Joseph, 169 F.3d 9, 13 n.7 (D.C. Cir. 1999); United States v. Perkins, 161 F.3d 66, 71-74 (D.C. Cir. 1998); United States v. Toms, 136 F.3d 176, 180 n.6 (D.C. Cir. 1998). As we discuss in Part III, the same is true here.

Error is harmless if it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24 (1967).1 In numerous cases we have found Bailey errors to be harmless where "the jury necessarily found facts that would have satisfied a proper instruction." Johnson, 216 F.3d at 1166-67 (collecting cases). And we have often found that to be the case where, although there was instructional error as to the "using or carrying" charge, a conviction on another statutory count assured us that the jury had necessarily found the element as to which the jury had been mischarged. See id. Indeed, in both United States v. Johnson and United States v. Kennedy, we encountered erroneous instructions that, like the one at issue here, conflated the terms "using" and "carrying" and defined the 924(c)(1) offense too broadly. See Johnson, 216 F.3d at 1166; Kennedy, 133 F.3d 53, 58 (D.C. Cir. 1998). In each case, however, we concluded that because the defendant was also convicted of assaulting a police officer with a gun, the jury necessarily concluded that the defendant had "carried" the same gun. See Johnson, 216 F.3d at 1167; Kennedy, 133 F.3d at 58; see also United States v. Smart, 98 F.3d 1379, 1393 (D.C. Cir. 1996) (finding harmless error where, although the court improperly defined "using or carrying" as including constructive possession, the jury necessarily found "carrying" within the meaning of 924(c)(1) because it also convicted the defendant of "carrying a pistol without a license"); cf. United States v. Winstead, 74 F.3d 1313, 132021 (D.C. Cir. 1996) (finding harmless error where the court failed to instruct the jury on the element of materiality in a false statements count, because the jury also found the defendant guilty on an overlapping mail fraud count as to which it had been instructed regarding materiality).

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