United States v. Leon Clifford Foster

133 F.3d 704, 98 Cal. Daily Op. Serv. 94, 1998 U.S. App. LEXIS 251, 1998 WL 2521

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 5, 1998
• Docket: 89-10405
• Status: Published

Opinions

OPINION

KOZINSKI, Circuit Judge.

What does it mean to “carry a gun”? We must choose between two duelling interpretations of the phrase.

I

Leon Foster and Sandra Ward manufactured methamphetamine. In 1989 the police got wise to them, pulled Foster over while he was driving his pickup truck and arrested him. In his truck bed, in a zipped up bag under a snap-down tarp, they found a loaded 9 mm semiautomatic and a bucket. Inside the bucket were a scale, plastic baggies, and some hand-written notes with prices.

Foster and Ward were convicted of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Foster was also convicted of possessing methamphetamine,. in violation of 21 U.S.C. § 844, and of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). We overturned the conspiracy conviction in an unpublished memorandum disposition, but that decision was vacated, United States v. Foster, 513 U.S. 983, 115 S.Ct. 477, 130 L.Ed.2d 391 (1994), in light of an intervening Supreme Court case. On remand, we affirmed across the board. United Stales v. Foster, 57 F.3d 727, 729 (9th Cir.1995).

The Supreme Court thereafter decided Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which interpreted the “uses ... a firearm” prong of section 924(c)(1). Foster now could not be convicted of using a firearm, as he did not actively employ the gun during and in relation to his drug trafficking crime. Id. at 141-43, 116 S.Ct. at 505. But, he was never charged with using — only with carrying — and Bailey does not authoritatively answer whether he can be convicted of carrying a firearm. Our three-judge panel issued a new opinion in light of Bailey, holding that Foster did not carry the gun, United States v. Foster, 96 F.3d 1177 (1996), but that opinion was withdrawn. Id. at 1178. We were left with the 1995 decision. We took the case en banc to resolve a conflict in our caselaw over the interpretation of carrying a firearm when a gun is found in a vehicle. Compare United States v. Barber, 594 F.2d 1242 (9th Cir.1979) with United States v. Hernandez, 80 F.3d 1253 (9th Cir.1996).

II

Section 924(c)(1) provides that “[wjhoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years____” (emphasis added). Was Leon Foster carrying a gun when he drove with it in his truck bed?

“Carry” seems like a simple English word, which is precisely the problem': New words in English are truly simple. “Carry” has two differing relevant uses. It may mean to transport or even to arrange for something to be transported: “I had to carry my piano all the way across the country.” But it may also mean to hold an object while moving from one place to another: “I carried that ball and chain wherever I went.” This narrower sense applies particularly to weapons. If I were to say “Don Corleone is carrying a gun” — or even just “Don Corleone is carrying” — you would understand that the Don has a sidearm somewhere on his person. A synonym for carry in this sense is to “pack heat.” Criminals who pack heat are obviously much more dangerous than those who do not.

In our caselaw, we first adopted the broad definition of “carry” as transporting in United States v. Barber, 594 F.2d 1242 (9th Cir.1979). Interpreting section 924(c)(1)’s predecessor, we said “[i]n ordinary usage, the verb ‘carry’ includes transportation or causing to be transported. Nothing in the legislative history indicates that Congress intended any hypertechnical or narrow reading of the word ‘carries.’” Id. at 1244. After Bailey we switched to the narrower (packing heat) sense in United States v. Hernandez, 80 F.3d 1253 (9th Cir.1996). We held that “in order for a defendant to be convicted of ‘carrying’ a gun in violation of section 924(c)(1), the defendant must have transported the firearm on or about his or her person____ This means the firearm must have been immediately available for use by the defendant.” Id. at 1258 (citations omitted). A number of recent cases follow the Hernandez definition: United States v. Lopez, 100 F.3d 98, 101 (9th Cir.1996); United States v. Steinberg, 99 F.3d 1486, 1494 (9th Cir.1996); United States v. Loaiza-Diaz, 96 F.3d 1335, 1336 (9th Cir.1996); United States v. Willett, 90 F.3d 404, 407 (9th Cir.1996); United States v. Staples, 85 F.3d 461, 464 (9th Cir.1996).

Choosing between the two definitions is a close call.¹ One need go no farther than Black’s Law Dictionary to find ammunition for both sides — but a bit² more for the narrower definition. The broad construction gets some support from the first part of the definition: “To bear, bear about, sustain, transport, remove, or convey.” Black’s Law Dictionary 214 (6th ed. 1990). But, the definition continues: “To have or bear upon or about one’s person, as a watch or weapon; locomotion not being essential.” Id. Moreover, Black’s separately defines to “carry arms or weapons” as “[t]o wear, bear, or carry them upon the person or in the clothing or in a pocket, for the purpose of use, or for the purpose of being armed and ready for offensive or defensive action in case of a conflict with another person.” Id. Because we are concerned here with carrying weapons, not furniture or grudges, the sense specific to weapons carries (so to speak) more weight.

There are those who have criticized the narrow definition because it seems to exonerate a defendant who has a gun readily accessible within the passenger compartment of a moving car, but not actually borne upon his person. These critics have smugly pointed out that circuits purporting' to follow the narrow definition have had to abandon it in order to uphold convictions in such circumstances. See, e.g., United States v. Cleveland, 106 F.3d 1056, 1067 (1st Cir.), cert. granted, — U.S. -, 118 S.Ct. 621, 139 L.Ed.2d 506 (1997) (citing Willett, 90 F.3d at 406-07, among other cases). This criticism is ill-founded. The key aspect of the narrow definition is not that the weapon actually be borne on the person. Rather, it is that the weapon remain within easy reach while the individual is in motion.³ Where an individual is walking, a gun in hand certainly amounts to carrying, but so does a gun in a holster or a shopping bag. The essence is that the weapon moves with the person and can be swiftly put to use. Where the individual is in a ear, he need not actually be touching the weapon to make it move with him.⁴ Because the car and its contents move in unison, any weapon that is within hand’s reach while the ear is in motion can be said to be carried. The same would be true, of course, if the individual had the weapon concealed in a train compartment, a bus or, heaven forfend, an airplane.

Bailey is the leading case on section 924(c)(1), so we can also look to how it analyzed “use” for clues to. our similar puzzle. The Court first considered the ordinary, dictionary meaning. See 516 U.S. at 143-45, 116 S.Ct. at 506. When that yielded several interpretations — as it does for “carry”' — the Court looked to “placement and purpose in the statutory scheme.” Id. The Court stressed that since Congress used two distinct terms, they must be defined narrowly enough that neither swallows⁵ up the other. Under the correct definition, then, there must be some ways to use a gun but not carry it, and others to carry a gun but not use it. Id. at 145-47, 116 S.Ct. at 507. The Bailey Court therefore defined “use” narrowly as “active employment.” Yet there is nothing special about “use” that makes it susceptible to a narrow definition, while parallel terms of the same statute are defined broadly; it just so happens that “use” came before the Court, not “carry.” Construing the two terms in pari materia, we see no basis for defining “carry” broadly while “use” is defined narrowly.

The Court also looked to context within the broader statute. Id. at 145-47, 116 S.Ct. at 507. It examined how “use” was used in 18 U.S.C. § 924(d) and argued that the term should have the same meaning in section 924(e)(1). “Carry,” unlike “use,” does not appear elsewhere in section 924, so we get no help there. However,- the Court did note that the term “use,” if defined too broadly, would become synonymous with “possess” — a term that Congress used elsewhere. Id. at 143-45,116 S.Ct. at 506. A broad reading of “carry” presents a similar danger by making it synonymous with “transport.” As with “possess,” Congress used “transport,” “transporting” and “transportation” at many places in the gun statutes. See, e.g., 18 U.S.C. §§ 922(a)(1)(A), 922(a)(1)(B), 922(a)(2), 922(a)(3), 922(a)(4), 922(a)(5), 922(e), 922(f)(1), 922(g), 922(h), 922(i), 922Q), 922(k), 922(n), 924(b), 925(a)(1), 925(a)(2), 925(a)(4). If Congress meant “transport” in section 924(c), it knew how to say so.

Another lesson we draw from Bailey is that, just as “use” may not be defined so broadly as to encompass mere possession, neither may “carry.” The Barber interpretation comes dangerously close to doing this by prohibiting possession of a gun in a moving vehicle.⁶ Cases adopting the broad definition point out that this prohibits possession in a moving vehicle, not possession period. See Cleveland, 106 F.3d at 1068. But it’s not clear why possession in a moving vehicle is any different from possession anywhere else. Thus, a gun without bullets, partially disassembled, in a locked compartment to which the driver does not have the key would also be deemed to be carried under the broad definition; we think that is as much naked possession .as the situation in Bailey itself. The broad definition, then, encompasses something close to the mere possession the Supreme Court in Bailey said was not within the scope of section 924(c)(1).⁷

We can also speculate⁸ as to what purpose a prohibition on carrying a gun during and in relation to a violent or drug trafficking crime might serve.⁹ Using or carrying guns makes those crimes more dangerous. A drug dealer who packs heat is more likely to hurt someone or provoke someone else to violence. A gun in a bag under a tarp in a truck bed poses substantially less risk. Indeed, Black’s definition of carrying a weapon focuses on the “purpose of use, or ... the purpose of being armed and ready for offensive or defensive action in case of a conflict with another person.” Black’s Law Dictionary at 214.

Other circuits are split on the issue. The Second and Sixth follow the narrow definition. See United States v. Giraldo, 80 F.3d 667, 676 (2nd Cir.1996) (“[A] person cannot be said to ‘carry’ a firearm without at least a showing that the gun is within reach during the commission¹⁰ of the drug offense.”) (citation omitted); United States v. Riascos-Sua-rez, 73 F.3d 616, 623 (6th Cir.1996) (“[T]he firearm must be immediately available for use—on the defendant or within his or her reach.”). The First, Fourth, Seventh, and Tenth Circuits use a broader test along the lines of Barber. See Cleveland, 106 F.3d at 1066 (“[A] gun may be ‘carried’ in a vehicle ... without necessarily being immediately accessible to the defendant while it is being transported.”); United States v. Mitchell, 104 F.3d 649, 653-54 (4th Cir.1997); United States v. Molina, 102 F.3d 928, 932 (7th Cir.1996); United States v. Miller, 84 F.3d 1244, 1259-60 (10th Cir.1996), overruled on other grounds, United States v. Holland, 116 F.3d 1353 (10th Cir.1997). Other circuits¹¹ have not clearly adopted any rule. See, e.g., United States v. Fike, 82 F.3d 1315, 1328 (5th Cir.1996) (gun under driver’s seat was carried); United States v. Willis, 89 F.3d 1371, 1378-79 (8th Cir.1996) (gun in passenger compartment was carried); United States v. Farris, 77 F.3d 391, 395-96 (11th Cir.1996) (passenger in backseat may be found to have “carried” gun in glove compartment). Recently the Eighth Circuit said it would “assume, without deciding” that it had a ready availability requirement, then held that a gun in a well behind the driver’s seat was readily available, and hence carried. See United States v. Nelson, 109 F.3d 1323, 1326 (8th Cir.1997). Thus, circuits all over the map are all over the map on the issue.

On balance, the arguments point to the narrower definition: It fits the more specific dictionary definition, follows Bailey more closely, harmonizes better with the full statute, and flows from the likely purpose of section 924(c)(1). We recognize, though, that reasonable minds may differ. A final argument for the narrower definition is the rule of lenity. Where a criminal law is ambiguous, we are wary of imposing criminal liability for conduct that the law does not clearly prohibit. See Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980); see also United States v. Latimer, 991 F.2d 1509, 1514 (9th Cir.1993) (“The rule of lenity is rooted in ‘the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.’ ”) (citations omitted).

The rule of lenity applies only where a statute has resisted the ordinary tools of statutory interpretation. See Hanlester Network v. Shalala, 51 F.3d 1390, 1397 (9th Cir.1995) (“Canons of statutory construction, such as the Rule of Lenity, are employed only where ‘reasonable doubt persists about a statute’s intended scope even after resort¹² to the language, and structure, legislative history and motivating policies of the statute.’ ”) (citations omitted) (emphasis in original). We think these ordinary tools of interpretation point to the narrow definition; at worst (for Mr. Foster) they leave the scope of section 924(c)(1) in doubt. If Congress wants us to put people like Leon Foster in prison for a longer time, it can re-write the law to give us clearer instructions, perhaps by using the word “transport” in section 924(e)(1) as it does in various other sections of the firearm statutes.

We reaffirm our holding in Hernandez and its progeny that “in order for a defendant to be convicted of ‘carrying’ a gun in violation of section 924(c)(1), the defendant must have transported the firearm on or about his or her person---- This means the firearm must have been immediately available for use by the defendant.” Hernandez, 80 F.3d at 1258.

Ill

General rule in hand, we must next ask whether Foster’s gun was immediately available for use.¹³ It wasn’t. While driving Foster could not reach the gun. To use the gun he would have had to stop the truck, get out, go to the back of the truck, open a snap-down tarp, and unzip the bag containing the gun. Although he might do this, he could not do so nearly as quickly as if he had had the gun within easy hand’s reach. If that counts as immediately available, then one could never take a trip¹⁴ with a gun in a vehicle without it being immediately available. It would make absolutely no sense to adopt the Hernandez rule but hold that this gun was immediately available — the practical effect of such a holding would be to return us to Barber.15

We therefore REVERSE the conviction for carrying a firearm and REMAND for resentencing. We VACATE that portion of the panel opinion which deals with the section 924(c) conviction. See Foster, 57 F.3d at 730. We leave the remainder of that opinion intact.

1 . "Close call” is another expression with dual meanings: A decision that can go either way or narrowly avoiding misfortune, such as being shot at and missed by someone carrying a gun.

2 . Variously defined as a small amount, a device put in a horse's mouth or half of a quarter.

3 . A lack of motion helped the defendant in United States v. Henson, 123 F.3d 1226 (9th Cir.1997), where we held that lying on top of a gun on the couch was not carrying it.

4 . The car might be thought of as a large, self-propelled shopping bag containing both the gun and the individual.

5 . Eat up, not small birds.

6 . A vehicle in motion, not a vehicle used to carry furniture, nor a vehicle that evokes strong feelings of empathy.

7 . That said, it is unlikely that Bailey's holding directly and obviously decides the question before us. One of the cases before the Court in Bailey squarely posed the question of a gun carried in a car, yet the Court remanded for consideration of the carry prong. See Bailey, 516 U.S. at 149-51, 116 S.Ct. at 509.

8 . There is mercifully little legislative history on “carry” to burden our discussion. The original version of the section was added as a floor amendment by Representative Poff. See United States v. Anderson, 59 F.3d 1323, 1327 (D.C.Cir.1995) (en banc). The general aim of the section seems to have been to ensure that violent criminals receive longer sentences, and to deter the use of guns. See 114 Cong.Rec. 22,231 (1968) (remarks of Representative Poff); see also id. at 22,230 (remarks of Representative Casey) and at 22,234 (remarks of Representative Harsha). The only references to “carry” concerned a proposed amendment to delete the word, apparently because it might affect people such as policemen who were authorized to carry a gun, then committed an assault without using the gun. "Carry” was deleted from Representative Casey's version of section 924(c)(1), but eventually Representative Poff's version, "carry” included, passed. See United States v. Ramirez, 482 F.2d 807, 814 (2nd Cir.1973).

9 . That is, serve in the sense of aiding, not what Martina Navratilova or Julia Child are so good at.

10 . Commission may also refer to something like a committee or (in the military) an appointment, but here it is used in the sense of carrying out an activity- — not carrying out in the sense of carrying a gun, though.

11 . Electricians use this word in a quite different way than lawyers. Some would say that our use is closer to that of musicians and comedians.

12 . Resort sometimes refers to a vacation destination, but not here.

13 . The dissent argues we must review only for plain error, which is not error that occurs where the rain in Spain mainly stays. The government has not argued this point, but even under plain error review we would have to reverse Foster’s conviction. The dissent only contests whether the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, - U.S. -, -, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) (internal quotation omitted). See dissent at 716. It does, since Foster’s "conviction and punishment are for an act that the law does not make criminal. There can be no room for doubt that such a circumstance ‘inherently results in a complete miscarriage of justice’ and ‘presents exceptional circumstances[.]‘ ’’ Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974).

14 . A journey, not a fall or a chemically altered state of consciousness.

15 . The dissent, but not the government, also raises the possibility that Foster carried the gun not while driving his truck, but earlier when he took the gun to the truck. See dissent at 714-15. One has to be waiy when inferring conduct from other conduct (as opposed to inferring state of mind from conduct). How do we know that Foster, and not, someone else, took the gun to the truck? How do we know when that person carried it there, and whether it was during and in relation to the crimes? Foster said, "I did have a pistol in the back of the truck,” but that admits only possession, not carrying, and it says nothing about how the gun got to the truck. There’s not enough evidence on this record to find Foster guilty beyond a reasonable doubt on this theory, since the government never developed the facts necessary to prove it. The government proceeded on the theory that showing Foster had the gun in the truck was enough to prove carrying — as it was under our caselaw at the time.