Brache v. United States

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-1575



                           JUAN BRACHE,



                      Petitioner, Appellant,



                                v.



                    UNITED STATES OF AMERICA,



                      Respondent, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



          [Hon. Ronald R. Lagueux, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                                

           Coffin and Bownes, Senior Circuit Judges.


Spencer C. Demetros, by appointment of the court, with whom

Law Offices of Spencer C. Demetros was on brief for petitioner.

     Alicia M. Milligan, Assistant United States Attorney, with

whom Sheldon Whitehouse, United States Attorney, and Margaret E.

Curran and Zechariah Chafee, Assistant United States Attorneys,

were on brief for respondent.


January 22, 1999


BOUDIN, Circuit Judge.  Juan Brache sought collateral

relief under 28 U.S.C.  2255 from a jury conviction under 18

U.S.C.  924(c)(1) for using or carrying a firearm during and in

relation to a drug-trafficking crime.  Brache claimed that the jury

instruction as to "use" of a firearm under section 924(c)(1) was

overbroad--measured by the definition later adopted by Bailey v.

United States, 516 U.S. 137, 143-46 (1995).  Although the

government admits that the instruction was not correct, it argues

(and the district court agreed) that relief was not warranted.  We

affirm.

  The necessary history is brief.  In January 1994, Brache

was tried by a jury and convicted of possessing cocaine with intent

to distribute, 21 U.S.C.  841(a)(1), possessing a firearm after a

felony conviction, 18 U.S.C.  922(g)(1), and using or carrying a

firearm during and in relation to a drug crime, id.  924(c).   As

required by statute, the 5-year prison sentence on the use or carry

count was made to run consecutively after the concurrent 21-month

sentences on the first two counts.

  At the time of the trial, various circuits, including

this one, employed a broad definition of "use," see, e.g., United

States v. McFadden, 13 F.3d 463, 465 (1st Cir. 1994), permitting

conviction if the weapon was merely available, and the jury was so

instructed.  Brache made no objection at trial and no claim of

error on his direct appeal to this instruction.  He did appeal on

other grounds, but these were rejected in an unpublished per curiamopinion, United States v. Brache, No. 94-1366 (1st Cir., Feb. 9,

1995).  Later that same year, the Supreme Court in Baileyinterpreted the "use" requirement of section 924(c)(1) to require

active use, contrary to the definition previously approved in this

circuit and given in the instruction at Brache's trial.  Bailey,

516 U.S. at 143-46.

  In January 1996, Brache moved under 28 U.S.C.  2255 to

invalidate his section 924(c)(1) conviction on the ground that the

instruction as to "use" was prejudicial error in light of Bailey. 

In February 1997, the district court denied the motion.  See Brachev. United States, 957 F. Supp. 20 (D.R.I. 1997).  The district

court assumed that Bailey would apply "retroactively" to a

conviction that became final before Bailey--as the Supreme Court

later confirmed in Bousley v. United States, 118 S. Ct. 1604, 1609-

10 (1998)--but concluded that the evidence warranted Brache's

conviction under the "carry" prong of the statute.  See Brache, 957

F. Supp. at 25.  Brache now appeals.

     We affirm the district court, but upon a different ground

based on an intervening Supreme Court decision.  The district court

was quite right that the evidence would have justified a conviction

of Brache for carrying a firearm during and in relation to a drug

crime.  The evidence at trial showed that the police had conducted

a raid in April 1993 at a house in Providence, Rhode Island.  As

the police approached the second-floor apartment in which Brache

was located, a detective stationed in the basement (because

forewarned by a tip) witnessed a .38-caliber pistol, several .38-

caliber bullets, and a cigarette pack containing 21 small bags of

cocaine fall to the floor at the base of the basement chimney.  A

vent in the wall of the living room in the raided apartment

connected to the chimney shaft.  Other evidence proved that someone

was dealing drugs from the apartment.

     There were two other persons in the apartment along with

Brache when the police entered; one was a drunkard from the

neighborhood and another a prostitute.  Yet both were in the

kitchen when the police entered, while Brache alone was seen

entering the kitchen from the living room.  The gun and cigarette

pack bore no fingerprints, but Brache was smoking a brand of

cigarette matching the pack that had been dropped into the basement

along with the pistol.  In short, the evidence pointed to Brache as

culprit, but this judgment was up to the jury.

     From the jury's verdict on the first two counts, it is

evident that the jury agreed that Brache was the one who possessed

the drugs, intended to distribute them, and also possessed the gun. 

To reach this conclusion, the jury must have believed that Brache

had carried the gun and the drugs into the living room and dropped

them into the basement; this inference, after all, was easy to draw

from the testimony and--more important--supplies the only direct

evidence to support any of his convictions.  To this extent, the

jury's verdict itself establishes that Brache both possessed the

drugs with intent to distribute and carried the gun.

     However, we do not know from the jury verdict whether the

jury concluded that Brache carried the gun "during and in relation

to" a drug trafficking crime.  It must be assumed, favorably to

Brache, that the jury convicted only on the use prong--easy to do

under the old definition of use--and never considered the carry

prong of the statute.  And if the jury had confronted the carrying

prong, perhaps it might have thought that because Brache was

ridding himself of the evidence, when he carried the gun to the

vent, his carriage of the gun was no longer "in relation to" a drug

trafficking crime--or perhaps even that the drugs were no longer

being possessed with "intent to distribute."

     In practice, these niceties might well have meant nothing

to the jury once it concluded that Brache carried both the gun and

the drugs.  But while the breath of the "during and in relation to"

requirement would easily have permitted conviction on the carry

prong, the vagueness of the phrase makes it harder to predict just

what a jury would have done on our somewhat unusual facts. 

Further, Supreme Court precedent leaves it unclear just how far we

are permitted to speculate about likely outcomes where, as here,

the mis-instruction makes it uncertain whether the jury did in fact

find a necessary element of the crime, an issue we are happy to

defer.  Sullivan v. Louisiana, 508 U.S. 275 (1993).

     In all events, an intervening Supreme Court decision

virtually compels affirmance on a procedural ground.  Because 

Brache did not object to the faulty "use" definition, he cannot

prevail on collateral attack unless he can show both "cause" and

"prejudice" or, alternatively, that he is "actually innocent." 

Murray v. Carrier, 477 U.S. 478, 485, 496 (1986).  Brache claims

that he had "cause" for not objecting to the jury instruction

because there was "no reasonable basis in existing law," Reed v.

Ross, 468 U.S. 1, 15 (1984), for a challenge to the broad

definition of "use" in the court's instruction.

     In a different situation, we might find Brache's argument

attractive, since the instruction was at the time correct under

First Circuit precedent.  Here, however, the Supreme Court has made

the determination for us.  In Bousley, the Court ruled that a

section 2255 petitioner who argued that his guilty plea for "using"

a firearm under section 924(c)(1) was invalid--because the

definition of "use" explained to him by the district court had been

improperly broad--had procedurally defaulted because he had not

pursued the claim on direct appeal.  See Bousley, 118 S. Ct. at

1611.  The Court stated that "the Federal Reporters were replete

with cases involving challenges to the notion that 'use' is

synonymous with mere 'possession'"  at the time of the petitioner's

plea.  Id.

     Brache argues that Bousley does not control the result of

this case because this case involves jury instructions and Bousleyinvolved a defendant who pled guilty.  But a defendant who pleads

guilty pursuant to a mistaken understanding of "use" is misled as

much as a jury given the same instruction.  And, in either case,

the defendant had the opportunity to challenge the definition in

the trial court and on appeal.  Indeed, the defendant who pleads

arguably suffers the greater disadvantage, since he alone may not

get his plea bargain if he insists upon reserving a legal issue for

appeal.

     We could also grant collateral relief if Brache showed

that he was actually innocent of a violation of section 924(c)(1),

a test that is implemented by asking if without the error "it is

more likely than not that no reasonable juror" would have convicted

him.  Schlup v. Delo, 513 U.S. 298, 327 (1995).  As we have already

said, the jury's implicit findings in this case are tantamount to

the conclusion that Brache carried the gun during and in relation

to a drug trafficking crime.  This case is very far away from

actual innocence.

     On the present facts, few would think that Brache was

wrongly imprisoned under the use-and-carry statute.  But more than

a few might be startled at Bousley's conclusion that the "use"

issue had to be raised at all to avoid the cause and prejudice bar. 

After all, the request for a narrower construction of "use" had

earlier been rejected in this circuit.  See United States v.

Cleveland, 106 F.3d 1056, 1065 (1st Cir. 1997).  One might question

whether litigants should be encouraged to raise over and over

issues seemingly already settled in the circuit.

     It is useful to put Bousley in context.  The reach of

habeas as a remedy was greatly enlarged by the Supreme Court in the

1960s, e.g., Fay v. Noia, 372 U.S. 391 (1963), while at the same

time the Constitution was read to regulate more and more of state

criminal procedural and evidence law, e.g., Mapp v. Ohio, 367 U.S.

643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966).  As with most

revolutions, a counter-reaction developed, e.g., Friendly, Is

Innocence Irrelevant?  Collateral Attack on Criminal Judgments, 38

U. Chi. L. Rev. 142 (1970), but few of the landmark Warren Court

precedents have been explicitly overruled.

     Instead, both the Supreme Court and Congress have

maintained, at least theoretically, the potentially broad reach of

habeas but hedged it with a raft of new limitations that are

largely procedural in character, and are framed and applied with

considerable strictness. The cause and prejudice rule is major

element in this construct.  Whether the present configuration of

habeas doctrine is the happiest solution may be open to debate, but

it is a compromise of conflicting pressures and is in any event

binding upon us.

     Affirmed.