United States v. Castro ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 96-30071
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOUIS CASTRO,
Defendant-Appellant.
________________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana
(95-CA-3342-H)
________________________________________________
December 3, 1996
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
GARWOOD, Circuit Judge:
Louis Castro (Castro) appeals, pro se and in forma pauperis,
the denial of his motion for post-conviction relief pursuant to 28
U.S.C. § 2255. Castro challenges the sentence imposed by the
district court as an improper application of an as-yet-to-be-
enacted conspiracy statute constituting an ex post facto violation,
as the result of ineffective assistance of his trial counsel, as
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
the result of the admission of “tainted” evidence at his trial,
and, finally, as unsupported by the terms of 18 U.S.C. § 941(c)(1)
as interpreted in Bailey v. United States, 116 S.Ct. 501 (1995).
The district court, after deleting the supervised release
provisions on two counts, denied Castro’s section 2255 motion. For
the following reasons, we affirm.
Facts and Proceedings Below
Because the merits of Castro’s claims depend, in significant
part, on the factual record developed during his trial, we present
the background facts in some detail.1
Castro’s conviction arose from the second of two bungled
attempts to import cocaine into the United States by boat from a
“mother ship” off the coast of Colombia.
Castro’s first attempt, in May 1988, was the result of an
endeavor facilitated by undercover agents and confidential
informants of the United States Customs Service. On May 18, 1988,
Special Agent Ernie Stein (Stein) learned through an informant that
Castro desired to lease a boat to smuggle narcotics into the
country by sea. Subsequent negotiations between Castro and
government informants led to the lease of a shrimp boat to Castro
owned by one of the informants. The boat left Delcambre,
Louisiana, at 1:30 a.m. on May 27, 1988. The “crew” onboard
1
The facts underlying Castro’s conviction are set forth in
United States v. Castro, 874 F.2d 230 (5th Cir.), cert. denied, 110
S.Ct. 138 (1989).
2
consisted of Castro, undercover Customs Agent Michael J. Ciaurro,
Jr. (Ciaurro), undercover Customs Agent Frank Ferguson (Ferguson),
and a confidential government informant. Shortly after the boat
reached the Gulf of Mexico, Castro apparently became suspicious of
his shipmates, terminated their mission, and returned to Delcambre.
Castro’s second attempt, though leading to his ultimate
demise, proved more successful. After an introduction to Agent
Stein (posing as the owner of a “crew boat” actually owned by the
Customs Service), Castro agreed to lease the boat for his run. On
June 8, 1988, the second team departed Crown Point, Louisiana.
Onboard were Castro, Castro’s friend Maurice Sudheimer (Sudheimer),
undercover Agent Stein, and undercover Agent Ciaurro. Several days
into the voyage, the vessel passed the Yucatan Peninsula and
arrived in the area between the Nicaraguan and Colombian coasts.
Castro, the only “crew member” to speak Spanish, contacted the
“mother ship” by radio, receiving directions to the location of the
transfer. Castro, a nautical neophyte, misunderstood the
instructions, apparently confusing the “Rusario Banks,” closer to
Nicaragua, with the “Roslyn Banks,” closer to Colombia. As a
result, the planned open-ocean rendezvous was frustrated.
Apparently giving up on the endeavor, Castro and his “partners”
decided to return to Louisiana.
To add insult to a rather injurious trip, the vessel soon
developed engine trouble. The agents suggested to Castro that the
boat be repaired in the Cayman Islands, where they could also make
3
arrangements for yet another attempt to rendezvous with the “mother
ship.” Castro agreed. When the vessel entered the Cayman Islands
on June 15, 1988, Castro arranged another meeting with the “mother
ship” and also arranged for a wire transfer of funds from Miami for
the repair expenses.2 In the meantime, Sudheimer “had some
difficulties” when he stole a woman’s luggage and “advis[ed]
everybody in the Grand Caymans . . . he was doing a dope deal.”
The agents suggested, and Castro reluctantly agreed, that sending
Sudheimer back to New Orleans was in the operation’s best
interests. Castro, who was noticeably uncomfortable after
Sudheimer’s departure, demanded that Agent Stein return to him the
gun he had brought onboard the vessel. Stein complied.3 Castro
kept the weapon on his person for most of the remainder of the
voyage.
On the evening of June 24, 1988, the original crew——minus
Sudheimer——left the Cayman Islands to rendezvous with the “mother
ship.” This time Castro was able to direct the vessel to the
proper meeting place, an area roughly 150 miles east of the
Nicaragua/Honduras border referred to as the “Northeast Breakers”
2
Castro noticed Agent Stein making several calls on a
“government credit card” while in the Cayman Islands. When asked
by Castro why he was using the card, Agent Stein replied that it
was a “tax write off” for his company. Both Castro and Sudheimer
subsequently made calls on Agent Stein’s government phone card.
3
Before informing Castro where his gun had been hidden on the
vessel, Agent Stein clipped part of the firing pin off the weapon.
At trial Castro stipulated that the weapon was a “firearm” as
defined by 18 U.S.C. § 921(a)(3).
4
at the “Scenario Banks.” The offload with the Colombian vessel was
successful, transferring 410 one-kilogram packages of cocaine.
The vessel arrived in Lafitte, Louisiana, on June 28, 1988.
Special Agent Phyllis Stripling (Stripling), posing as Agent
Stein’s wife, met the returning vessel with twelve “military-type
duffel bags” for the offload. The offload area was videotaped by
a Customs Service camera mounted on a telephone pole across the
street from the offload site and was recorded on audio tape through
the use of a “beeper” passed to Agent Stein by his “wife” Agent
Stripling that was actually a transmitter. Miguel Diaz (Diaz) and
Alejandro Ramos (Ramos), Castro’s confederates, missed the arrival
of the vessel because they had decided to get lunch. Castro, Agent
Stein, and Agent Ciaurro loaded the cocaine packages into the
duffel bags on the vessel. Ramos and Diaz returned to the offload
area approximately an hour and a half later and helped load eight
duffel bags onto a horse trailer. Agent Stein kept two duffel bags
(100 one-kilogram packages) onboard the vessel as a type of
“earnest money” for the $1.5 million promised by Castro for his
assistance.4
Diaz left the scene in a truck pulling the cocaine-laden horse
trailer. Castro followed in Ramos’s vehicle. The horse trailer
4
The plan, apparently, was for the participants to load the
duffel bags into three cars and drive to Castro’s residence in
Miami. Upon arrival at Castro’s residence, Agent Stein and his
“wife” Agent Stripling would be given keys to a fourth car
containing the $1.5 million.
5
was subsequently stopped; Castro, Ramos, and Diaz were arrested;
and the trailer and Ramos’s vehicle were brought to the Drug
Enforcement Agency (DEA) office in New Orleans. Agents Stein and
Stripling went directly to the U.S. Attorney’s office and drew up
an affidavit for a search warrant for the horse trailer.
DEA agents conducted the search of the trailer and, after
securing the vehicles in the Customs Service office in New Orleans
and weighing the cocaine packages, informed Agents Stein and
Stripling the next morning that they had accounted for 409 one-
kilogram packages. Realizing a kilogram of cocaine was missing,
the Customs agents went to the vehicles at the Customs office and
searched Ramos’s vehicle.5 The search of Ramos’s trunk yielded the
weapon that Agent Coleman had placed there the night of the arrests
and Castro’s luggage. In Castro’s luggage Agents Stein and
Stripling found Castro’s weapon, a box of bullets, and a one-
kilogram package of cocaine wrapped in his clothing.
On July 26, 1988, roughly a month after the arrests of the
Castro gang, Diaz was permitted to plead guilty to the lesser
offense of conspiring to possess with intent to distribute 500
grams or more of cocaine, 21 U.S.C. § 846, in return for his
5
The night of the arrests, Special Agent Richard Coleman
(Coleman) secured the vehicle in the Customs building. Later that
night, Coleman learned from other agents that a firearm may have
been left in the vehicle. The following morning, at approximately
7:00 a.m., Coleman returned to the vehicle, located a handgun under
the front seat, and placed it in the trunk. Coleman testified that
he neither searched the trunk nor observed its contents.
6
assistance and testimony before the grand jury and at trial.
Ramos and Castro were tried together. On August 9, 1988,
after a two-day jury trial, Castro was convicted of the following
offenses: (1) conspiracy to possess with intent to distribute
approximately 450 kilograms of cocaine,6 in violation of 21 U.S.C.
§§ 841(a)(1) & 846, (2) possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2,
(3) conspiracy to import cocaine, in violation of 21 U.S.C. §§
952(a), 960(a)(1), & 963, (4) importation of cocaine, in violation
of 21 U.S.C. §§ 952(a) & 960(a)(1) and 18 U.S.C. § 2, and (5) using
or carrying a firearm during the commission of a drug trafficking
crime, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
924(c)(1). On October 19, 1988, Castro was sentenced to four
concurrent life imprisonment terms for counts one through four to
run consecutive to a sentence imposed in a prior Florida case and
a five-year imprisonment term for count five to run consecutively
to counts one through four. In addition, terms of supervised
release were imposed.
Castro’s conviction and sentence were affirmed by this Court
on May 1, 1989. United States v. Castro, 874 F.2d 230 (5th Cir.),
cert. denied, 110 S.Ct. 138 (1989).
On October 11, 1995, Castro filed this motion to vacate his
sentence under the federal habeas substitute, 28 U.S.C. § 2255.
6
As discussed above, the actual amount was 410 kilograms.
7
Castro raised four issues. First, he argued that the district
court erred when it sentenced him to life imprisonment without
parole for counts one through four of the indictment. Second, he
argued that the sentencing court applied the amended federal
conspiracy statute providing for mandatory minimums in connection
with his conspiracy conviction, constituting an ex post facto
violation. Third, he argued that the firearm used to support his
conviction under count five was “tainted by government abuse.”
Finally, Castro proffered an ineffective assistance of counsel
claim.
On December 11, 1995, the district court denied all of
Castro’s claims with the exception of the imposition of five-year
supervised release terms in connection with counts one and three.
Citing Bifulco v. United States, 100 S.Ct. 2247 (1980), the
district court held that a special parole term cannot be imposed
when a statute provides for punishment only by imprisonment or fine
or both. Accordingly, Castro’s sentence was amended to delete the
supervised release terms imposed on counts one and three.7 Castro
appeals the district court’s denial of his section 2255 motion to
vacate repeating his claims below and adding a claim that his
conviction on count five, using or carrying a firearm during and in
relation to a drug trafficking crime, was improper after the
7
Neither party challenges this action by the district court on
appeal.
8
Supreme Court’s decision in Bailey, 116 S.Ct. 510.
Discussion
I.
Castro first claims that the district court erred when it
sentenced him to life imprisonment for counts one through four of
the indictment, arguing that the district court relied upon
conspiracy statutes that became effective after the date of his
offenses. The statutes Castro argues were used by the district
court were the amended versions of 21 U.S.C. §§ 846 & 963,
referenced in counts one and three, respectively. Castro contends
that the district court committed an ex post facto violation by
sentencing him under the unenacted statutes.
We first note that Castro did not raise this claim on direct
appeal and, accordingly, must demonstrate both cause and prejudice
for his failure to do so. See United States v. Frady, 102 S.Ct.
1584, 1594 (1982). “[T]he proper standard for review [of a 2255]
motion is the ‘cause and actual prejudice’ standard enunciated in
Davis v. United States, 93 S.Ct. 1577 (1973), and later confirmed
and extended in Francis v. Henderson, 96 S.Ct. 1708 (1976), and
Wainwright v. Sykes, 97 S.Ct. 2497 (1977).” Frady, 102 S.Ct. at
1594. That Castro purports to raise a constitutional claim does
not shield him from the obligation to demonstrate cause and
prejudice. United States v. Placente, 81 F.3d 555, 558 (5th Cir.
1996) (“[A] defendant who raises a constitutional or jurisdictional
9
issue for the first time on collateral review must show both cause
for his procedural default and actual prejudice due to any such
errors.”). As Castro offers no explanation for his failure to
address this claim on direct appeal, he has forfeited the ability
to assert it before this tribunal.
Even were we to assume that Castro presented a cognizable
claim, we would find it to be meritless. Castro was sentenced
October 19, 1988. Castro is correct in his contention that the
federal conspiracy statutes were amended, effective November 18,
1988, to provide for the “same penalties as those prescribed for
the offense, the commission of which was the object of the attempt
or conspiracy.” See 21 U.S.C. § 846 (West Supp. 1996); id. § 963
(West Supp. 1996). Similarly, Castro correctly observes that, as
amended, the federal conspiracy statutes would call for mandatory
minimum sentences today for the offenses he committed in June of
1988.8 Castro, however, is simply mistaken when he asserts that
the sentencing judge referenced mandatory minimums during his
sentencing.
Castro’s Presentence Report, prepared by the United States
Probation Office, provided, in pertinent part:
8
21 U.S.C. § 846 and 21 U.S.C. § 963, by causing a conspirator
to be subject to the same penalties as those provided for the
underlying offense, make any mandatory minimum sentences applicable
to the underlying offense equally applicable to the conspiracy
offense. In Castro’s case, the underlying offenses of his
conspiracy convictions provide for mandatory minimums. See 21
U.S.C. § 841(b); 21 U.S.C. § 960.
10
“Part C. Sentencing Options
. . . .
27. Statutory Provisions: Counts 1 and 3 carry a maximum
trm [sic] of life, with no minimum mandatory - Title
21 USC, 846 and 963. Counts 2 and 4 carry a
mandatory minimum sentence of ten years and a maximum
sentence of life - Title 21, USC, Sections 841(a)(1)
and 952(a). Count 5 is a five year consecutive
sentence.”
Presentence Report ¶ 27. Although there is no transcription of
Castro’s sentencing hearing in the record, the sentencing judge’s
“Statement of Reasons for Imposing Sentence” contains no mention of
mandatory minimums for counts one through four and Castro fails to
offer any proof that the judge in fact used the wrong statute.9 In
rejecting his section 2255 motion, the district court, who had
sentenced Castro, expressly noted that the conspiracy counts had
not been sentenced on the basis of mandatory minimums. Castro’s
claim in this respect is without merit.
II.
Castro next contends that he received ineffective assistance
of counsel. Ineffective assistance claims are reviewed under the
two-pronged test set forth in Strickland v. Washington, 104 S.Ct.
9
Castro’s repeated citation of United States v. Rush, 874 F.2d
1513 (11th Cir. 1989), is not persuasive. In Rush, the trial court
mistakenly determined that the pre-amendment version of 21 U.S.C.
§ 963 required the imposition of the mandatory terms of 21 U.S.C.
§ 960. Id. at 1514. This, of course, was not the law. See United
States v. Brown, 887 F.2d 537, 541 (5th Cir. 1989) (remanding for
resentencing where trial court incorporated the mandatory minimum
sentence of § 841(b)(1) into § 846 prior to the 1988 amendments).
Castro, however, offers only his own speculation to discredit the
abundance of contrary indications that the district court did not
consider the offenses to carry mandatory minimums.
11
2052 (1984). Castro must first demonstrate that “counsel’s
representation fell below an objective standard of reasonableness.”
Id. at 2064. “This requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. Next,
Castro must demonstrate that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 2068. Both
Strickland prongs must be satisfied to obtain relief on an
ineffective assistance of counsel claim. See id.; Bridge v.
Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988). In applying the
Strickland test, we must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional competence.” Bridge, 838 F.2d at 773.
Castro describes several events from his trial that he
contends establish his ineffective assistance of counsel claim.
First, Castro states that he received a “replacement counsel” the
morning of his trial and that counsel’s failure to seek a
continuance prejudiced his trial. Second, Castro asserts that no
pre-trial motions were made by either counsel assigned to represent
him. Finally, Castro believes that the quality of cross-
examination of several witnesses amounts to constitutional error.
Castro’s claim is without merit.
First, as the district court observed in its denial of
12
Castro’s claim, Arthur Huttoe (Huttoe) was simply not “[a]ppointed
thirty minutes before opening arguments,” but rather served as
Castro’s attorney “from the beginning of the case and represented
Castro on numerous occasions prior to trial,” United States v.
Castro, No. 88-371, at 5 (E.D. La. 1995). A review of the record
demonstrates the speciousness of Castro’s claim.
Rather than a “replacement lawyer” introduced to the case the
morning of trial, attorney Huttoe was Castro’s attorney from at
least June 30, 1988, and remained so for the duration of the case.
Although attorney Frank Sloan (Sloan) was retained as local
counsel,10 the record makes clear that the principal attorney in the
case from its commencement was Huttoe. Huttoe filed a motion to
continue Castro’s detention hearing on June 30, 1988——one day after
his arrest. Huttoe was present at Castro’s detention hearing on
July 5, 1988. On July 8, 1988, Sloan filed a motion to permit
Castro to use the phone to contact Huttoe, describing Huttoe as
“lead counsel.” Huttoe was listed on the “routing slip” for all
papers filed with the court. The morning of trial, the colloquy
between the district judge, Huttoe, and Sloan makes clear that
Huttoe was substantially involved with the case well prior to
trial.11 Sloan, as local counsel, had consistently understood that
10
Huttoe’s law offices were located in Miami, Florida.
11
Sloan, as local counsel, submitted a motion for Huttoe to
appear pro hac vice before the district court the morning of
trial——the event that Castro confuses with “appointment.” Although
13
“Mr. Huttoe would try the case if it went to trial.” Apparently
Castro also understood this quite clearly, stating that he had no
objection to Huttoe conducting his defense alone.12
As to Castro’s second claim, in addition to the pretrial
motions discussed above, Sloan received impeachment information
which the government disclosed pursuant to Giglio v. United States,
92 S.Ct. 763 (1972). As the district court observed, Castro’s
claim that “counsel failed to either investigate the facts and
issues or seek discovery ignores the fact that such crucial
discovery materials were provided to defense counsel.” United
States v. Castro, No. 88-371, at 5.13
In light of our review of the record, it is quite clear that
Castro has failed to present any factual basis to support his
Huttoe made appearances on Castro’s behalf prior to the pro hac
vice motion, we agree with the district court that “he had no
business doing that.” Neither the district court’s exasperation
with the tardiness of the pro hac vice motion nor the unauthorized
practice of law before the magistrate judge during pretrial
proceedings, however, bear on the merits of Castro’s defense.
12
Sloan had requested that Huttoe be permitted to try the case
alone. The district court denied the request. Sloan was present
at trial.
13
Before the district court, Castro argued that the quality of
cross-examination of several witnesses amounts to constitutional
error. He neither raises nor briefs this issue on appeal, choosing
instead simply to attach a copy of his district court motion.
Accordingly, Castro has failed to raise the issue on appeal. See
Lott v. Margett, 80 F.3d 161, 166 (5th Cir. 1996); R.A.M. Al-Ra’id
v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995); Brinkman v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). We see no
merit in it in any event.
14
ineffective assistance of counsel claim. To the extent Castro
argues that, somehow, the tardiness of the pro hac vice motion
contributed to his conviction, we simply observe that, at the very
least, such a claim fails to meet the second prong of the
Strickland standard. “If proof of one element is lacking, the
court need not examine the other.” Kirkpatrick v. Blackburn, 777
F.2d 272, 285 (5th Cir. 1985), cert. denied, 106 S.Ct. 2907 (1986).
In order to prove the prejudice prong of the Strickland test, a
defendant “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” United States v.
Rosalez-Orozco, 8 F.3d 198, 199 (5th Cir. 1993) (internal quotation
marks omitted). Because there is nothing to suggest that the
tardiness of the pro hac vice motion had any impact on the trial
and because in all events “the evidence of Castro’s guilt was
overwhelming,” United States v. Castro, 874 F.2d 230, 233 (5th Cir.
1989), we find no merit in this claim.
III.
Castro’s final claim challenges his conviction under count
five of the indictment, using or carrying a firearm during and in
relation to a drug trafficking crime. See 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 924(c)(1). Castro’s challenge has two parts.
First, he proffers a planted-evidence theory that he contends is
supported by the testimony presented at his trial. Second, for the
15
first time on appeal, Castro argues that his conviction under 18
U.S.C. § 924(c)(1) is invalid after the Supreme Court’s decision in
Bailey, 116 S.Ct. 501. Neither claim is valid.
Castro’s first contention borders on the absurd. Far from
this planting theory being an “Indisputable Fact,” the testimony at
trial was consistent and uncontroverted. Castro claims Agent
Coleman, on the morning after the arrests, conducted a
“professional search” of Ramos’s vehicle that yielded the gun under
the front seat.14 According to Castro, the fact that Agent
Stripling found a duffel bag containing another gun and a one-
kilogram package of cocaine in Ramos’s vehicle the next morning
presents compelling evidence of government-planted evidence. As
the district court observed, Castro “blatantly misstates
testimony.” United States v. Castro, No. 88-371, at 3.
Agent Coleman, on cross examination, testified that: “I
didn’t search the trunk. I didn’t know what was in the trunk. I
only opened the trunk momentarily to put the weapon in it, to
secure it for security purposes, and I immediately closed it.”
Agent Stripling testified that, after she and Agent Stein learned
that the DEA agents had retrieved only 409 one-kilogram packages
from the trailer, they performed a complete inventory search of
Ramos’s vehicle. Agent Stripling testified only that she
discovered a kilogram package of cocaine in the duffel bag. Agent
14
Castro left the offload site in Ramos’s vehicle.
16
Stein testified that Agent Stripling discovered the package of
cocaine and that he discovered Castro’s weapon and a box of
bullets; all three items were in the duffel bag. Agent Stein
further testified that the weapon recovered was the weapon that had
been in Castro’s possession throughout the trip. There is no
factual basis for Castro’s contention that the weapon was planted
in the trunk of Ramos’s vehicle.
Castro next contends that his conviction under 18 U.S.C. §
924(c)(1) was improper because he never “brandished, carried[,]
fired, pointed[,] or used” the weapon. As Castro did not raise
this fact-based claim in his section 2255 motion before the
district court, we will not address its merits. It has long been
the law that we will not address on appeal issues that were not
presented to the district court in an appellant’s section 2255
motion. United States v. Carvajal, 989 F.2d 170, 170 (5th Cir.
1993); United States v. Cates, 952 F.2d 149, 152 (5th Cir.), cert.
denied, 112 S.Ct. 2319 (1992); Earvin v. Lynaugh, 860 F.2d 623,
627-28 (5th Cir. 1988), cert. denied, 109 S.Ct. 1558 (1989); United
States v. Houston, 745 F.2d 333, 334 (5th Cir. 1984), cert. denied,
105 S.Ct. 1369 (1985); Hall v. Maggio, 697 F.2d 641, 643 (5th Cir.
1983); United States v. McKnight, 693 F.2d 476 (5th Cir. 1982).
Even assuming there were clear error, we would not exercise our
discretion to reverse; there has been no miscarriage of justice or
17
the like.15
IV.
For the foregoing reasons, the district court’s denial of
Castro’s section 2255 motion to vacate is
AFFIRMED.
15
Assuming without deciding that the statutory interpretation
announced in Bailey applies to pre-Bailey convictions on collateral
review, see United States v. Andrade, 83 F.3d 729, 730 n.1 (5th
Cir. 1996) (noting that “whether the standards governing the
retroactivity of new rules of criminal procedure on collateral
review, as articulated in Teague v. Lane, 109 S.Ct. 1060 (1989),
likewise apply to decisions interpreting substantive criminal
statutes is an issue that has not been decided in this circuit”),
we observe that 18 U.S.C. § 924(c)(1) has two prongs——“use” and
“carry.” 18 U.S.C. § 924(c)(1) (“uses or carries”); see Bailey,
116 S.Ct. at 509 (“The ‘carry’ prong of § 924(c)(1), for example,
brings some offenders who would not satisfy the ‘use’ prong within
the reach of the statute.”). In Turner v. United States, 90 S.Ct.
642, 654 (1970), the Supreme Court recognized the general rule
that, “when a jury returns a guilty verdict on an indictment
charging several acts in the conjunctive . . . the verdict stands
if the evidence is sufficient with respect to any one of the acts
charged.” Castro’s indictment charged that he “did knowingly and
intentionally use and carry a firearm.” Indictment, Count 5. At
Castro’s trial there was testimony that he kept his weapon on his
person for a significant portion of the voyage to, and from, the
“mother ship.” E.g., “Mr. Castro demanded to have his weapon back;
it was like a security blanket.”; see also United States v. Garcia,
86 F.3d 394, 402-03 (5th Cir. 1996) (observing the different
standard for “carrying” and reversing conviction because, although
evidence showed the defendant carried a weapon, the indictment
alleged only “use”). The jury charge authorized conviction on the
basis of “carried” as well as “used” (“used or carried”). Castro
makes no complaint of the charge.
18