United States v. David Alan Canterbury , 2 F.3d 305 ( 1993 )

RICHARD S. ARNOLD, Chief Judge.

David Canterbury is charged with one count of possession of illegal drugs, conspiracy to possess and distribute those drugs, and two counts of using or possessing a firearm in connection with a drug-trafficking crime: violations of 21 U.S.C. § 841(b)(1)(C), 21 U.S.C. § 846, and 18 U.S.C. § 924(c). On the defendant’s motion, the District Court— without the benefit of an evidentiary hearing — dismissed one of the firearm-possession charges. The Court held that a single underlying drug offense could not support multiple violations of § 924(e). The government appeals; we reverse and remand.

I.

The government says that when law-enforcement officers looking for controlled substances searched Canterbury’s house, they found a loaded .380-ealiber handgun in his bedroom along with a small amount of drugs. They also found a loaded 9-millimeter rifle in another part of the house, again near drugs and drug-trafficking paraphernalia. From these facts, the government derived the separate firearm-possession charges, counts three and four of the indictment. Canterbury moved for dismissal of one of the firearm counts, arguing that § 924(c) contemplates only one violation for each underlying drug-trafficking charge, regardless of how many firearms are involved.

A magistrate judge reviewed the pretrial motions and recommended denial of Canterbury’s motion to dismiss as premature. Canterbury then took his argument to the District Court which disagreed with the magistrate and gave the government its choice of which of the two firearm-possession charges to dismiss. The government appeals.

II.

In United States v. Freisinger, 937 F.2d 383, 388-90 (8th Cir.1991), we held that 18 U.S.C. § 924(c)(1) does authorize multiple prosecutions for carrying more than one firearm during the course of one drug-trafficking offense. What distinguishes one offense from another and gives them separate legal identities is the “use” attributed to the firearm: each separate use of a firearm constitutes a separate offense, even where there is only one predicate drug-trafficking crime. United States v. Lucas, 932 F.2d 1210, 1223 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 199, 116 L.Ed.2d 159 (1991). For example, in Lucas, the District Court found that one of the fourteen firearms in the defendant’s home — a pistol — was used to protect the defendant and his family. The machine gun, found in another part of the home, was used to protect a crack cocaine laboratory. The two separate uses of the guns were separate violations of § 924(c)(1).

III.

What constitutes a separate use of a firearm in relation to a drug-trafficking offense is a question of fact. The government has the burden of proving separate, prohibited uses of a firearm or firearms to support each charge of violating § 924(e). In this case, the government alleges Mr. Canterbury used the pistol for one purpose and the rifle for another, or at least the indictment can be read as alleging separate uses.

Dismissal of one of the firearm-possession charges was premature. As a matter of pleading, the indictment was sufficient to allege two separate offenses. The government should be allowed to put on its proof, and if it can carry its burden, then the charges stand; if it can not, then the usual motions are still available to Mr. Canterbury, such as a motion for directed verdict. Accordingly, the judgment of the District Court is reversed, and the cause remanded for further proceedings consistent with this opinion.