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October 25, 1996


The opinion of the court was delivered by: MUKASEY


 Rafael Hilario Araujo, Jacinto Alberto Vasquez and Manuel Rodriguez were convicted under indictment 90 Cr. 60, following an eight-day jury trial in 1990, of conspiring to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and using and carrying firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Araujo and Rodriguez were sentenced to 78 months each on the conspiracy count; Vasquez was sentenced to 66 months on the conspiracy count; all three were sentenced to a mandatory 60 months consecutive sentence on the firearms count, which was Count Two of the indictment. All three now petition pursuant to 28 U.S.C. § 2255 to vacate the judgments of conviction entered against them on Count Two, and the resulting 60-month sentences, on the ground that the court's instruction to the jury as to what constitutes "use" of a weapon was improper under Bailey v. United States, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995).

 As the government concedes, the instruction on "use," although proper under prevailing law in this Circuit at the time it was given, was improper under Bailey. However, as explained below, the error was harmless because the proof at trial was such that the jury necessarily found facts sufficient as to each of these petitioners to sustain a conviction for "carrying" a weapon during and in relation to a drug offense in violation of the same statute. Therefore, the requested relief must be denied and the petitions dismissed.


 The evidence at trial showed that the negotiations that led ultimately to the defendants' arrest began in November 1989 when Araujo expressed to Jose Navas Prieto ("Navas"), a Drug Enforcement Administration informant, his interest in obtaining kilogram quantities of cocaine. (Tr. 322-23) By January 24, 1990, their negotiations had progressed to an agreement that Araujo and his associates would buy three kilograms at $ 24,000 per kilogram, and that the transaction would be consummated at 66th Street and West End Avenue in Manhattan, a location selected by the DEA. (Tr. 327-29)

 As Araujo and Navas drove to Manhattan from Queens, Navas stopped and, as instructed, contacted another DEA informant, Mario Perez, who would pose as the seller of the cocaine. (Tr. 328-29, 430) He also spoke with DEA agent James Clifford and told the agent that he and Araujo would be traveling in a blue Mazda. (Tr. 62-63)

 Clifford testified that when he arrived at the scene he noticed a white car parked on West End Avenue. Although his car was moving and the passenger windows of the white car were tinted, he was able to see four occupants in the vehicle. (Tr. 57) Rodriguez has suggested that the white car may have had four doors, but the testimony at trial established unequivocally that it was a two-door vehicle. (Tr. 217-18, 225-26)

 After Clifford and other DEA agents arrived on the scene, Clifford saw Navas and Araujo arrive in the blue Mazda. Some time thereafter, Araujo and Navas left their vehicle and waited on the corner. (Tr. 64-65, 329-30) Shortly after that, Inocencio Jimenez-Rodriguez, also a defendant in this case, got out on the passenger side of the white car, crossed West End Avenue, and met with Araujo and Navas. (Tr. 64-67, 103-04, 330-36) He said he had come to buy three kilograms of cocaine and was ready with cash that he and others had been collecting that day. (Tr. 335-36) He added that he had not yet counted the money because he and his colleagues had been robbed by a group of Dominicans who made off with more than $ 100,000 of their money. (Tr. 341)

 When Perez arrived, posing as the seller, he parked his car behind the white car and crossed West End Avenue to meet with Navas, Araujo and Jimenez-Rodriguez. (Tr. 68-69, 343-44, 432-34, 489, 556) After introductions, Perez asked to see the money. (Tr. 343-44, 436-37) Jimenez-Rodriguez agreed (Tr. 441), and he, Araujo and Perez crossed the street toward the white car. (Tr. 69) As they did so, Jimenez-Rodriguez, in Araujo's presence, explained to Perez why he and his cohorts in the white car were carrying weapons:

We are all carrying weapons. I didn't want you to think that we are going to rob you. The only reason we are carrying weapons is because right now we are very distrusting and it is for our protection. And at any time when we see one of the Dominicans who had stole the money from us, at any moment we are going to kill them. That is why we are carrying weapons at all times.

 (Tr. 442)

 Perez had been instructed to signal the DEA agents with a beeping device when he saw the money. (Tr. 72) Perez leaned into the white car through the open door, saw the driver and two passengers in the rear seat, and saw a paper bag containing the money. (Tr. 345-46, 444-45) Perez then gave the signal and walked away; Jimenez-Rodriguez and Araujo followed him and were arrested. (Tr. 70-71, 345-46, 444-45)

 Clifford testified that when he heard Perez's signal, he drove his car in front of the white car, ran to the front of that car, pointed his gun over the hood and shouted, "Police" and "Policia." (Tr. 74) The front window of the white car was not tinted and Clifford was able to see the driver, later identified as Modesto Rodriguez, and two other occupants in the back seat. (Tr. 74-76, 95) He saw Modesto Rogriguez's hand come up from his waist holding a semi-automatic pistol and pass it over his left shoulder ...

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