The Government notes, however, that the indictment did not charge only that defendant "used" a firearm, but that he "used and carried a firearm ..." The Assistant United States Attorney also stated in his opening statement at trial that defendant was accused of having "unlawfully used and carried a firearm, that is a hand gun, during and in relation to a drug trafficking offense." Transcript at 8.
The Supreme Court in Bailey did not address the meaning of the word "carry" in § 924(c)(1). Noting that the Court of Appeals for the District of Columbia Circuit (whose decisions were on appeal in Bailey) had not considered the defendants' liability under the "carry" prong of the statute, the Court remanded for consideration of that basis for upholding the convictions. Bailey, 116 S. Ct. at 509.
Thus, Bailey did not affect earlier case law construing the word carry" in § 924(c)(1). Moreover, since the courts prior to Bailey had "generally agreed that 'carrying' was to be interpreted narrowly, while 'use' was interpreted more broadly," United States v. Pineda-Ortuno, 952 F.2d 98, 103 (5th Cir.), cert. denied, 504 U.S. 928 (1992), it would seem that the Supreme Court would not be as inclined to narrow the generally-accepted interpretation of "carrying" as it was to narrow the definition of "using."
The fact that defendant in the instant case did not "use" the firearms under Bailey's construction of the word "use," then, does not automatically mean that his conviction must be vacated. If the evidence was sufficient to prove beyond a reasonable doubt that he "carried" the guns during and in relation to his possession of the cocaine with intent to distribute, the conviction can be sustained.
In my prior decision, my finding that defendant used the firearms, under the then-applicable definition of "use," made it unnecessary to address whether he had carried the firearms. Since the case was tried under both theories, however, and because I remain the factfinder, there is no reason why I cannot consider that issue now. This approach is fully consistent with that taken in Bailey, for the Supreme Court in that case, despite finding the evidence insufficient to demonstrate "use" of a firearm, did not order the conviction to be vacated, but remanded for consideration of whether the jury verdict could be upheld on a "carrying" theory. Bailey, 116 S. Ct. at 509. See also United States v. Price, 76 F.3d 526, 1996 U.S. App. LEXIS 2313, *7, 1996 WL 67378 *3-4 (3d Cir. 1996) (though trial court's instruction on "use" was erroneous in light of Bailey, jury's guilty verdict could still be upheld where evidence supported alternative theory that defendant had aided and abetted codefendant's carrying of weapon); cf. United States v. Moore, 76 F.3d 111, 1996 U.S. App. LEXIS 2620, *5, 1996 WL 74112 *2-3 (6th Cir. 1996) (conviction could not be upheld where court could not say that jury, if presented with correct law under Bailey, would necessarily have found defendant guilty of carrying firearm).
After reviewing the trial transcript, I find that the Government succeeded in proving beyond a reasonable doubt that defendant did carry the firearms in connection with the drug offense. Although the guns were not found on defendant's person, their proximity to him is sufficient to constitute "carrying" as that term has been construed by the courts. In addition, the evidence showed that defendant had literally carried the firearms before they were found.
As noted in my prior decision, defendant's fingerprint was found on one of the guns. The conclusion is inescapable, then, that at some point defendant had physically held the gun, which by anyone's definition would constitute "carrying."
I also find, as I found in my prior decision, that defendant had put both the guns and the drugs under the seat cushion. See Decision and Order, Feb. 2, 1994, at 7. He admitted owning one of the two guns, and he clearly had access to and control over the house where the guns were found. In addition, when the police officer and defendant entered the house together, defendant's jacket was on the same loveseat where the guns were hidden. The evidence, then, suggests that defendant had entered the house, put his jacket on the loveseat, and stashed the guns and cocaine under the seat cushions. See United States v. Bailey, 308 U.S. App. D.C. 292, 36 F.3d 106, 117 (D.C. Cir. 1994) ("whether the defendant carried the gun with, or to or from the location of, the drugs will be the most probative evidence that he carried it during and in relation to a drug trafficking offense"), rev'd on other grounds, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995).
Furthermore, decisions by several Courts of Appeals, including the Second Circuit, indicate that a defendant may be found to have been carrying a weapon even if the weapon was not in his hands or on his person, if the weapon was within his immediate reach. United States v. Morris, 298 U.S. App. D.C. 142, 977 F.2d 617, (D.C. Cir. 1992), was a case very similar to the case at bar. In Morris, police officers entered an apartment to execute a search warrant and found the defendant seated on small couch. Their search of the apartment yielded drugs in various locations. When they looked under the cushions on the couch where the defendant had been sitting, the officers found two loaded pistols. There were no drugs in the couch. Just as in the instant case, the defendant was convicted at trial for using or carrying a firearm during and in relation to a drug trafficking offense under 18 U.S.C. § 924(c)(1), and of possession with intent to distribute cocaine under 21 U.S.C. § 841.
On appeal, the District of Columbia Circuit affirmed. Although the court primarily focused on the "use" prong of § 924(c)(1), the court noted that
the evidence could also support a charge of "carrying" the two guns found under the couch on which Morris was sitting. In either instance, of course, the "using" or "carrying" must be "in relation to" the predicate offense, in this case, possession with intent to distribute. To affirm a "carrying" conviction, we would employ the same analysis as we use here [regarding "use"], linking the guns to the possession of the drugs.
977 F.2d at 621 n. 1 (Citations omitted).
The Fourth Circuit also affirmed a conviction of "carrying" a firearm in violation of § 924(c)(1) even though the defendant was not physically carrying the weapon at the time. In United States v. Brockington, 849 F.2d 872 (4th Cir. 1988), the defendant was arrested as he was riding in a taxicab. A search of his person yielded several vials and bags containing drugs, and a loaded pistol was found under the floormat directly below his seat. He was charged and convicted of carrying a firearm under § 924(c)(1). The court held that this evidence was sufficient to support his conviction. Id. at 876.
Brockington was cited with approval in United States v. Feliz-Cordero, 859 F.2d 250 (2d Cir. 1988), in which the court reversed a conviction under § 924(c)(1) on the ground that the presence of a firearm in a dresser drawer that was not readily accessible to the defendant during a drug transaction was not sufficient to show that the defendant had used or carried the firearm during and in relation to a drug offense. Citing Brockington as an example, however, the court stated that "a person cannot be said to 'carry' a firearm without at least a showing that the gun is within reach during the commission of the drug offense." Id. at 253. See also United States v. Riascos-Suarez, 73 F.3d 616 (6th Cir. 1996) (for defendant to be convicted of "carrying" firearm under § 924(c)(1), "the firearm must be immediately available for use--on the defendant or within his or her reach"); United States v. Perez, 989 F.2d 1111, 1115 (9th Cir. 1993) (to satisfy element of carrying, weapon must be "available" during commission of the offense); Pineda-Ortuno, 952 F.2d at 103 ("'carrying' requires a showing that the gun was in reach during the commission of the drug offense"); United States v. Eaton, 890 F.2d 511, 512 (1st Cir. 1989) (presence of gun under front seat of truck defendant was driving was sufficient to show that he carried firearm), cert. denied, 495 U.S. 906, 109 L. Ed. 2d 291, 110 S. Ct. 1927 (1990); United States v. Evans, 281 U.S. App. D.C. 194, 888 F.2d 891, 894-95 (D.C. Cir. 1989) (jury could find that defendant carried gun "in the sense that it was within reach and available to protect him during his ongoing crime of possession with intent to distribute cocaine"), cert. denied, 494 U.S. 1019 (1990); United States v. Hoch, 837 F. Supp. 542, 545 (W.D.N.Y. 1993) ("the term 'carry set forth in § 924(c)(1) means that the gun is within reach during the commission of a drug offense").
These cases clearly support defendant's conviction in this case. Just as in Morris, the guns were located under the cushions of the chair on which defendant was sitting, at the same time that he was in constructive possession of the cocaine. The guns were easily accessible to him. The fact that the police officer was able to see one of them when defendant moved, and that the officer was able to grab the gun when defendant was looking the other way, also indicates that they were easily available and were not buried deeply under the seat. In addition, the proof that defendant carried them in relation to the drug offense is even stronger here than it was in Morris because the drugs here were located in the same loveseat just a few feet from the guns.
Based on this evidence, then, I find beyond a reasonable doubt that defendant carried the firearms during and in relation to the crime of possession of cocaine with intent to distribute. His motion to vacate his conviction on Count 2 is therefore denied.
III. Ineffective Assistance of Appellate Counsel
The only basis for defendant's claim that he was denied his right to effective assistance of counsel on appeal is that his appellate attorney did not raise the other two claims presented in this § 2255 motion. Since I have found both of them to be without merit, the failure to raise them on appeal clearly did not constitute ineffective assistance. This claim is therefore also meritless.
Defendant's motion to vacate his conviction under 28 U.S.C. § 2255 is denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
March 19, 1996.