Robert Williams v. United States ( 1996 )

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No. 96-1566
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Robert Rydell Williams, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
United States of America, *
*
Defendant-Appellee. *
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Submitted: July 26, 1996
Filed: October 22, 1996
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Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
Federal inmate Robert Rydell Williams appeals the denial of his 28
U.S.C. § 2255 motion for post-conviction relief. Williams argues that his
1988 conviction for violating 18 U.S.C. § 924(c)(1) must be set aside
because jury instructions on the statutory phrase "uses . . . a firearm"
were contrary to Bailey v. United States, 116 S. Ct. 501 (1995). The
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district court concluded that Williams cannot establish "actual
prejudice," as United States v. Frady, 456 U.S. 152, 170 (1982), requires.
We agree and therefore affirm.
A defendant violates § 924(c)(1) if "during and in relation to any
. . . drug trafficking crime . . . [he] uses or carries a firearm." In
Bailey, the Supreme Court held that a conviction for
1
The HONORABLE DAVID S. DOTY, United States District Judge for
the District of Minnesota.
"use" of a firearm "requires evidence sufficient to show an active
employment of the firearm by the defendant, a use that makes the firearm
an operative factor in relation to the predicate offense." "Active
employment" includes "brandishing, displaying, bartering, striking with .
. . firing or attempting to fire, a firearm." However, "[a] defendant
cannot be charged under 924(c)(1) merely for storing a weapon near drugs
or drug proceeds." 116 S. Ct. at 505-08. Bailey overruled our prior
decisions affirming § 924(c)(1) convictions of defendants who merely stored
firearms at their residences to protect drugs or proceeds. See, e.g.,
United States v. Harris, 10 F.3d 596, 597 (8th Cir. 1993), and cases cited.
Williams's indictment charged him with two drug trafficking crimes
and a § 924(c)(1) violation -- that he "did knowingly and unlawfully use
and carry a firearm, namely, a Smith & Wesson .38 caliber revolver . . .
during and in relation to a drug trafficking crime, namely, the knowing and
intentional possession with intent to distribute of approximately ten grams
of cocaine base." A jury convicted Williams on all three counts, and we
affirmed. United States v. Williams, 895 F.2d 1202 (8th Cir. 1990).
Williams subsequently filed two unsuccessful § 2255 motions for post-
conviction relief, one of which challenged the evidentiary sufficiency of
his § 924(c)(1) conviction.
Williams's trial was conducted on the assumption that our pre-Bailey
cases were the governing law of this circuit. Therefore, Williams did not
object to the district court's jury instruction defining "use" of a firearm
under § 924(c)(1). In other words, the jury instruction issue he now
raises is procedurally defaulted.2
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This § 2255 motion is also both successive and abusive under
McCleskey v. Zant, 499 U.S. 467 (1991), but the government does not
contend that this affects our standard of review. Likewise, we do
not consider whether Williams's claim is even cognizable under
§ 2255 because the government has not raised the issue. See
Anderson v. United States, 25 F.3d 704 (8th Cir. 1994).
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To obtain post-conviction relief for an erroneous jury instruction to which
no contemporaneous objection was made, Williams must show cause excusing
his procedural default and "actual prejudice" resulting from the alleged
error. Frady, 456 U.S. at 168. The actual prejudice standard is more
rigorous than the showing required to establish plain error on direct
appeal. 456 U.S. at 166, quoting Henderson v. Kibbe, 431 U.S. 145, 154
(1977); see Dalton v. United States, 862 F.2d 1307, 1309 (8th Cir. 1988).
To establish such prejudice, Williams must show that an erroneous jury
instruction "worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions." 456 U.S. at 170
(emphasis in original). We conclude that he has failed to do so for the
following reasons.
First, it is not clear to us that the district court's instruction
on "use" of a firearm was plain error under Bailey. The court instructed
the jury:
Two essential elements are required to be proved in order to
establish an offense of using a firearm in relation to a drug
trafficking crime. They are as follows: First, that the defendant
committed a drug trafficking crime for which he might be prosecuted
in the United States Court; and second, that during the commission
of the drug trafficking crime the defendant used a firearm.
* * * * *
The defendant is considered to have used a firearm if its presence
in his possession in any manner facilitated carrying out the drug
trafficking crime. It is not necessary that the firearm be fired in
order that it may be considered as having been used.
The word "facilitated" in this instruction is more passive than the
words used in Bailey to describe the concept of "active employment" --
brandishing, displaying, bartering, striking with, firing. But the
instruction is far more consistent with Bailey than the instruction that
caused us to reverse for plain error in
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United States v. Webster, 84 F.3d 1056, 1066 (8th Cir. 1996). An
instructional error must be of "constitutional dimensions" to warrant post-
conviction relief under Frady. That requires a showing that "the ailing
instruction by itself so infected the entire trial that the resulting
conviction violates due process, not merely [that] the instruction is
undesirable, erroneous, or even universally condemned." Henderson, 431
U.S. at 154, quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). While
we would not recommend using this instruction in a post-Bailey case, it
provides a very flimsy basis for post-conviction relief under Frady.
Second, to establish actual prejudice from an instruction error,
Frady requires that Williams show a "substantial likelihood" that a
properly instructed jury would have acquitted him of violating § 924(c)(1).
456 U.S. at 172. At trial, consistent with Williams's indictment, the
district court instructed the jury, "[i]t is sufficient if the United
States proves either that firearms were used or carried. Both do not have
to be proved." Thus, in considering prejudice under Frady, we must
consider whether the evidence was sufficient to convict Williams of a
"carry" violation. Williams argues that we should not assume the jury
found a "carry" violation because the instructions devoted more attention
to defining "use." But the instructions, fairly read, explicitly and
properly gave the jury the option of finding a "carry" violation, so that
option is part of the Frady analysis.
Briefly summarized, the trial evidence was that, in January 1988,
police raided a fortified Minneapolis crack house by driving a front-end
loader through an exterior wall and into the first floor apartment where
Williams resided. In that apartment, they found personal items belonging
to Williams, drug paraphernalia, an unloaded .38 caliber revolver under the
couch, and four .38 caliber bullets near the revolver. Williams was
arrested after he broke a basement window, bent back the bars over that
window, and attempted to escape. Police later found forty "chunks" of
crack cocaine and
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$1290 in the basement apartment from which Williams had fled. His two
conspirators were arrested in the building eight days later after resuming
sales of crack cocaine.
"[T]o sustain a conviction for ``carrying' a firearm in violation of
§ 924(c)(1), the government must prove that [the accused] bore the firearm
on or about his person during and in relation to a drug trafficking
offense." United States v. White, 81 F.3d 80, 83 (8th Cir. 1996). As the
facts in White make clear, a person who throws a gun down and flees the
scene of a drug trafficking crime may be convicted of a "carry" violation.
Here, the government presented evidence that Williams fled the scene of on-
going crack cocaine distribution, leaving a firearm and bullets scattered
in his apartment. We agree with the district court that this evidence was
sufficient to convict Williams of a § 924(c)(1) "carry" violation. See
United States v. Willis, 89 F.3d 1371, 1378-79 (8th Cir.), cert. denied,
65 U.S.L.W. 3265 (U.S. Oct. 7, 1996). Thus, Williams cannot prove actual
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prejudice under Frady.
The district court order dated February 20, 1996, is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
3
We do not reach the question whether this evidence would also
support a § 924(c)(1) "use" conviction. Unlike this case, Bailey
did not involve a drug conspiracy. But Williams's indictment did
not charge him with using the firearm during and in relation to his
conspiracy offense. Had it done so, we would face the question
whether Bailey leaves intact prior decisions such as United States
v. Drew, 894 F.2d 965, 968 (8th Cir.), cert. denied, 494 U.S. 1089
(1990), in which we affirmed a § 924(c)(1) "use" conviction because
participants in a drug trafficking conspiracy regularly displayed
guns to intimidate purchasers at a drug house.
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