No. 96-1654 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 FRANK J. MUSCARELLO, PETITIONER v. UNITED STATES OF AMERICA N PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General LISA SIMOTAS Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether a firearm that is transported in a vehicle must also be within the defendant's immediate reach in order to be "carried" within the meaning of 18 U.S.C. 924(c). (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 1 Argument . . . . 5 Conclusion . . . . 13 Appendix . . . . la TABLE OF AUTHORITIES Cases: Bailey v. United States, 116 S. Ct. 501(1995) . . . . 2, 3, 4, 6, 8, 9, 10, 11, 12 Smith v. United States, 508 U. S. 223(1993) . . . . 5, 6 United States v. Barber, 594 F.2d 1242 (9th Cir.), cert. denied, 444 U. S. 835(1979) . . . . 12 United States v. Barry, 98 F.3d 373(8th Cir. 1996), cert. denied, 117S. Ct. 1014 (1997) . . . . 11-12 United States v. Cavdenas, 864 F.2d 1528 (10th Cir.), cert. denied, 491 U.S. 909 (1989) . . . . 7 United States v. Cleveland, 106 F.3d 1056 (lst Cir. 1997) petition for cert. pending, No. 96-8837 . . . . 7, 8, 11 United States v. Cooke, 110F.3d 1288 (7th Cir. 1997) . . . . 10, 11 United States v. Cruz-Rojas, 101 F.3d 283(2d Cir. 1996) . . . . 12 United States v. Farris, 77 F.3d 391 (11th Cir.), cert. denied, 117S. Ct. 241 (1996) . . . . 7, 11 United States v. Fike, 82 F.3d 1315 (5th Cir.), cert. denied, 117S. Ct. 241 (1996) . . . . 9 United States v. Foster, 96 F.3d 1177(9th Cir. 1996) . . . . 12 United States v. Freisinger, 937 F.2d 383(8th Cir. 1991) . . . . 7, 12 United States v. Malcuit, 104 F.3d 880(6th Cir. 1997) . . . . 12 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page United States v. Miller, 84 F.3d 1244 (l0th Cir.), cert. denied, 117 S. Ct. 443 (1996) . . . . 8, 9, 11 United States v. Mitchell, 104 F.3d 649 (4th Cir. 1997) . . . . 10-11 United States v. Molina, 102 F.3d 928 (7th Cir. 1996) . . . . 10 United States v. Pineda-Ortuno, 952 F.2d 98 (5th Cir.), cert. denied, 504 U.S. 928 (1992) . . . . 4, 5, 7, 9, 11 United States v. Rivas, 85 F.3d 193 (5th Cir.), cert. denied, 117 S. Ct. 593 (1996) . . . . 11 United States v. Speer, 30 F.3d 605 (5th Cir.), cert. denied, 513 U.S. 1028 (1994) . . . . 9 Statutes and rule: 18 U. S.C. 924(c) . . . . 2, 3, 4, 5, 7, 8, 9, 10 21 U.S.C. 841(a)(1) . . . . 2 21 U.S.C. 846 . . . . 1 Fed R. Crim. P. 12(b)(2) . . . . 3 Miscellaneous: Black's Law Dictionary (6th ed. 1990) . . . . 7 Webster's New International Dictionary of the English Language (2d ed. 1958) . . . . 6 Webster's Third New International Dictionary (1976) . . . . 6, 10 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-1654 FRANK J. MUSCARELLO, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. la-7a) is reported at 106 F.3d 636. The opinions of the dis- trict court (Pet. App. 8a-11a, 12a-13a) are unreported. JURISDICTION The judgment of the court of appeals was entered on February 13, 1997. The petition for a writ of certio- rari was filed on April 18, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1), STATEMENT On May 25, 1995, petitioner entered a plea of guilty in the United States District Court for the Eastern District of Louisiana to one count of conspiracy to distribute marijuana, in violation of 21 U.S.C. 846, one (1) ---------------------------------------- Page Break ---------------------------------------- 2 count of distributing marijuana, in violation of 21 U.S.C. 841(a) 0), and one count of using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. 924(c). Before peti- tioner was sentenced, he moved to quash or dismiss the Section 924(c) count of the indictment, in light of this Court's decision in Bailey v. United States, 116 S. Ct. 501 (1995). The district court granted the motion (Pet. App. 8a-11a), and the court of appeals re- versed. Pet. App. la-7a. 1. On May 25, 1995, petitioner entered a plea of guilty to, inter alia, using or carrying a firearm dur- ing and in relation to a drug trafficking offense, in violation of 18 U.S.C. 924(c). At the plea hearing, the government submitted a factual statement signed by petitioner. Gov't C.A. Br. 3. The statement estab- lished that, following negotiations with a cooperating individual (CI) and an undercover agent of the Drug Enforcement Administration (DEA), petitioner ar- ranged for the delivery of a total of eight pounds of marijuana in two separate transactions. Both the negotiations and the payment for the marijuana took place in petitioner's Ford pick-up truck. In the first transaction, petitioner led the CI and the DEA agent to a location where marijuana had been left in a plastic bag at the side of the road. In a second trans- action on the same day, petitioner again led the CI and the DEA agent to a certain location, and upon arrival, petitioner removed plastic bags containing marijuana from his vehicle. Following petitioner's arrest, a loaded firearm was found in the locked glove compart- ment of his truck. Gov't C.A. Br. 4-5; Pet. App. 8a. The signed factual statement asserted that this fire- arm was "knowing[ly] possessed in [petitioner's] vehi- cle and carried for protection in relation [to] the above ---------------------------------------- Page Break ---------------------------------------- 3 described drug trafficking offense." Gov't C.A. Br. 5. At the plea hearing, petitioner attested under oath to the accuracy of the written factual statement. Id. at 6. 2. a. On March 7, 1996, before petitioner was sen- tenced, he filed a motion in the district court pursu- ant to Federal Rule of Criminal Procedure 12(b)(2) to quash or dismiss the Section 924(c) count of the indictment. Petitioner argued that the charge was legally defective in light of this Court's decision in Bailey. The government opposed the motion on the ground that the factual statement established that petitioner had "carried" the firearm within the meaning of Section 924(c). Following a hearing, the district court granted the motion to dismiss. Pet. App. 8a-11a. The court acknowledged that, in his signed factual statement, petitioner admitted that he knowingly possessed and carried the firearm in his vehicle for protection in relation to his drug trafficking offenses. Pet. App. 9a-10a. The court relied instead, however, on the following statement from the presentence investigation report: As to the weapon, [petitioner] does not deny his possession of the pistol. The pistol was in the glove compartment of his truck where it had been for a long period of time. He denies any conscious decision to carry the gun in relation to the mari- juana sale, and stated that he carried it in relation to his job with the Tangipahoa Parish Sheriff's Office as a balif [sic] at the Courthouse in Amite. Id. at 10a. The court accordingly concluded that: [petitioner] did not knowingly possess the firearm in relation to a drug-trafficking crime. To the ---------------------------------------- Page Break ---------------------------------------- 4 contrary, [petitioner], his employment background considered, knowingly possessed the firearm in the glove compartment of his vehicle in further- ance of his job requirements and not for active employment in the charged transaction. Ibid. The district court therefore granted peti- tioner's motion to dismiss the Section 924(c}count, although it did not rely on Bailey in doing so. b. The district court denied the government's motion for reconsideration, Pet. App. 12a-13a. The court again acknowledged that petitioner had admit- ted carrying the gun for protection in relation to his drug trafficking, but the court noted that "this is a pre[-]Bailey composition by the government and a pre[-]Bailey consideration by [petitioner] and his counsel." Id. at 12a. Again citing the above-quoted language from the presentence report, the district court reaffirmed its conclusion that petitioner "did carry a firearm in the [locked] glove compartment of his vehicle, but not in relation to the commission of a drug trafficking mime." Id. at 13a. 3. The court of appeals reversed in a per curiam decision. Pet. App. la-7a. The court first noted that, because Bailey did not address the "carrying" prong of Section 924(c), its prior "carrying" jurisprudence remained valid. Id. at 4a. Under the court's pre- Bailey decision in United States v. Pineda Ortuno, 952 F.2d 98, 104 (5th Cir.), cert. denied, 504 U.S. 928 (1992), "the `carrying' require-ment of 924(c) is met if the operator of the vehicle knowingly possesses the firearm in the vehicle during and in relation to a drug trafficking crime." Pet. App. 4a-5a. ---------------------------------------- Page Break ---------------------------------------- 5 The court held that the district court had erred in two respects: first, by discrediting as a "pre-Bailey composition" the factual statement in which peti- tioner had concurred, and second, by relying on peti- tioner's "post-conviction, self-serving declaration to the probation officer * * * regarding his subjective intent in possessing the pistol in the truck." Pet. App. 5a. Those errors, the court concluded, required reversal of the district court's decision. Id. at 6a-7a. The court went on to reaffirm Pineda-Ortuno's holding that "[w]hen a vehicle is used, `carrying' takes on a different meaning from carrying on a person because the means of carrying is the vehicle itself." Pet. App. 6a. Thus, the court reasoned, "the fact that [petitioner's] glove compartment was locked does not prevent conviction." Ibid. ARGUMENT Petitioner contends (Pet. 6-11) that this Court should grant review to resolve the conflict in the circuits on the question whether a conviction under Section 924(c) for "carrying" a firearm in a vehicle requires proof that the firearm was immediately accessible to the defendant. The court of appeals in this case correctly held that immediate accessibility is not required, and the conflict identified by petitioner does not warrant further review at this time. 1. a. Because Section 924(c) does not define "carry," the term must be interpreted "in accord with its ordinary or natural meaning." Smith v. United States, 508 U.S. 223,228 (1993) (analyzing "use" prong of Section 924(c)). The court of appeals in this case correctly determined that "carry[ing]" refers simply to the act of transporting an object, and that its plain ---------------------------------------- Page Break ---------------------------------------- 6 meaning does not include the limitation that the carried object be "immediately accessible." See Pet. App. 4a-5a. The primary definition of "carry" supplied by Web- ster's Third New International Dictionary 34.3 (1976) (emphasis added) is: to move while supporting (as in a vehicle or in one's hands or arms): move an appreciable distance without dragging sustain as a burden or load and bring along to another place. Indeed, the word "carry" derives from the French "carrier," which means "to transport in a vehicle." See ibid. The dictionary employed by this Court in Bailey v. United States, 116 S. Ct. 501, 506 (1995), and Smith offers an even more expansive definition of "carry": To convey, or transport, while supporting, origi- nally in a cart or car, hence in any manner to bear to transfer to transmit, to take. Webster's New International Dictionary of the Eng- lish Language 412 (2d ed. 1958). In short, to carry an object means to transport it. Although it is fre- quently true that a carried object is immediately ac- cessible, the ordinary meaning of the verb does not necessarily require that element. As the Fifth Circuit has cogently explained in a case involving the carrying of a firearm in a vehicle: Those cases * * * that would seem to suggest that for there to be a "carrying" the weapons must be located within such proximity so as to make them immediately available for use are distin- guishable. The cases requiring "easy reach" are the result of judicial expansions of the definition of ---------------------------------------- Page Break ---------------------------------------- 7 "carrying" in a nonvehicle context. When a vehi- cle is used, "carrying" takes on a different mean- ing from carrying on the person because the means of carrying is the vehicle itself. United States v. Pineda-Ortuno, 952 F.2d 98,104 (5th Cir.), (citations omitted), cert. denied, 504 U.S. 928 (1992). Several other circuits agree that "when a motor vehicle is used, `carrying a weapon' takes on a less restrictive meaning than carrying on the person. The means of carrying is the vehicle, itself, rather than the defendant's hands or pocket." United States v. Cardenas, 864 F.2d 1528, 1535-1536 (l0th Cir.), cert. denied, 491 U.S. 909 (1989); accord United States v. Freisinger 937 F.2d 383, 387 & n.4 (8th Cir. 1991) (agreeing with Cardenas reasoning and affirm- ing Section 924(c) conviction where firearms found in passenger compartment of car); United States v. Farris, 77 F.3d 391, 395 (llth Cir.) (same), cert. denied, 117 S. Ct. 241 (1996). Petitioner's reliance (Pet. 14) on the definition of the specific phrase "to carry arms or weapons," is misplaced.1 First, Section 924(c) does not use that precise language. Second, that definition would re- strict "carrying" to situations in which the firearm is physically worn on the defendant's person or in his clothing. As the First Circuit has recognized, no court has held that the term "carry" is so limited. United States v. Cleveland, 106 F.3d 1056,1067 (1997), petition for cert. pending, No. 96-8837. Instead, every circuit to consider the question has recognized that a firearm may be "carried" in a vehicle. And as the ___________________(footnotes) 1 Black's Law Dictionary defines that phrase to mean. " To wear, bear, or carry them upon the person or in the clothing or in a pocket." Black's Law Dictionary 214 (6th ed. 1990). ---------------------------------------- Page Break ---------------------------------------- 8 above-cited definitions demonstrate, such a "carry- ing" takes place whenever a firearm is transported; the element of immediate accessibility plays no part in the ordinary definition of "carry." Z b. Contrary to petitioner's assertion (Pet. 13-14), the court of appeals' interpretation of "carrying" does not conflict with the reasoning in Bailey. Bailey concerned only the "use" prong of Section 924(c). To the extent that Bailey addressed the meaning of the term "carry," the Court simply made clear that "carry" had a meaning independent of "use" because Congress intended each prong of Section 924(c) "to have a particular, non superfluous meaning." 116 S. Ct. at 507. Thus, the Court explained, under the "active employment" definition it adopted, a firearm can be used without being carried, e.g., when an offender has a gun on display during a transaction, or barters with a firearm without handling it; and a firearm can be carried without being used, e.g., when an offender keeps a gun hid- den in his clothing throughout a drug transaction. Ibid. ___________________(footnotes) 2 The location of the firearm in a vehicle and its accessibil- ity to the defendant may be relevant in assessing whether the firearm was carried "in relation to" the drug crime. See Cleve- land, 106 F.3d at 1067 United States v. Miller, 84 F.3d 1244, 1260 (l0th Cir.) ("[t]o establish th[e] nexus" required by the "during and in relation to" element of Section 924(c)(l), court may consider accessibility of firearm to defendant and proxim- ity of firearm to drugs), cert. denied, 117 S. Ct. 443 (1996). But the accessibility of the firearm in the vehicle has nothing to do with whether the firearm is carried from one place to another when the defendant moves the vehicle. ---------------------------------------- Page Break ---------------------------------------- 9 The decision of the court of appeals does not con- travene that aspect of Bailey. Under the court of appeals' interpretation, "carrying" still encompasses a great many scenarios that are not also "uses." For example, the defendant who places a firearm in his vehicle, then drives to another location where he consummates a drug deal in or near his car, has not "actively employed" (i.e., "used") the firearm, but he has carried it. See United States v. Miller, 84 F.3d 1244, 1260 (l0th Cir.) (rejecting requirement of ready access for "carrying," and noting that, under that interpretation, "the `carry' prong applies in a great many situations in which the post-Bailey definition of the `use' prong would not"), cert. denied, 117 S. Ct. 443 (1996). Bailey also held that the term "use" in Section 924(c) " must connote more than mere possession of a firearm by a person who commits a drug offense," because if Congress had meant to punish mere posses- sion, it could have so provided. 116 S. Ct. at 506. Contrary to petitioner's contention (Pet. 12-13), the decision of the court of appeals does not expand the "carry" prong to reach all acts of possession, because a defendant who carries a firearm in a vehicle has done more than passively possess it, regardless of whether he has immediate access to it. 3 The defend- ___________________(footnotes) 3 The Fifth Circuit's definition of "carrying" plainly in- cludes the element of transportation. See United States v. Fike, 82 F.3d 1315, 1328. ("In placing a gun under the driver's seat of a car, then driving the car to another location, one has carried the gun."), cert. denied, 117 S. Ct. 241 (1996); United States v. Speer, 30 F.3d 605, 612 ("The `carrying' requirement of Section 924(c) is met where a defendant operates a vehicle knowing the firearm is in the car."), cert. denied, 513. U.S. 1028 (1994); Pineda-Ortuno, 952 F.2d at 104 (endorsing plain ---------------------------------------- Page Break ---------------------------------------- 10 ant has, by definition, transported or conveyed the firearm; he has "move[d] [the firearm] an appreciable distance without dragging" it, and has "br[ought] [it] along to another place," in connection with a drug trafficking offense. Webster's Third New Inter- national Dictionary 343 (1976)} 2. In the wake of Bailey, five circuits have agreed that a defendant who transports a firearm in a vehicle has "carried" the firearm, regardless of the wea- pon's accessibility. Those courts hold that vehicular "carrying" under Section 924(c) requires only two elements: "It is the possession of the firearm coupled with the affirmative act of transporting it during and in relation to a drug trafficking crime that pre- cipitates liability under 924(c) (l)." United States v. Molina, 102 F.3d 928, 930 (7th Cir. 1996) (citation omitted; emphasis added)5 ; see also United States v. ___________________(footnotes) and ordinary definition of" "carry," which includes transportation or movement). 4 Petitioner argues implicitly that the element of immediate accessibility will somehow distinguish "carrying" a firearm from mere possession of the firearm. That reasoning turns Bailey on its head, In Bailey, the Court expressly rejected the claim that the placement of a weapon, or its "proximity and accessibility," standing alone, "amounted to something more than mere possession." 116 S. Ct. at 506. In the same vein, proximity and accessibility cannot be what distinguishes mere storage of a weapon in a vehicle from the carrying of that weapon. Instead, as the court of appeals correctly concluded, a weapon is "carried:," within the plain and ordinary meaning of that term, whenever it is transported in a vehicle, regardless of its accessibility to the defendant. The active element of transportation is what distinguishes "carrying" from mere pos- session. 5 Despite the "recent and very clear" holding of Molina (United States v. Cooke, 110 F.3d 1288, 1302 (7th Cir. 1997) ---------------------------------------- Page Break ---------------------------------------- 11 Mitchell, 104 F.3d 649, 653 (4th Cir. 1997) ("the plain meaning of the term `carry' * * * requires knowing possession and bearing, movement, conveyance, or transportation of the firearm in some manner"); Miller, 84 F.3d at 1259 ("the government is required to prove only that the defendant transported a firearm in a vehicle and that he had actual or constructive possession of the firearm while doing so"); United States v. Rivas, 85 F.3d 193, 195 (5th Cir.) ("the `carrying' requirement of 924(c) is met `if the operator of the vehicle knowingly possesses the firearm in the vehicle during and in relation to a drug trafficking crime'" (quoting Pineda-Ortuno, 952 F.2d at 104)), cert. denied, 117 S, Ct. 593 (1996); Cleveland, 106 F.3d at 1066-1067 ("the concept of whether or not the carried item is within reach plays no part in the definition" of "carry"). These courts have uniformly reasoned that the plain meaning of "carry" does not, in the vehicular context, include the limitation of immediate accessibility and that nothing in Bailey requires such a limitation. 6 ___________________(footnotes) (Coffey, J., concurring)), a subsequent panel of the Seventh Circuit has inexplicably asserted that it remains an open ques- tion whether immediate accessibility is an element of "carry- ing." Id. at 1298. The discussion of the issue in Cooke was itself dicta, however. See id. at 1297. 6 In addition, decisions from several other courts suggest that they may follow suit when the issue of firearm-accessibility in a vehicle is squarely presented. See, e.g., Farris, 77 F.3d at 395 (holding that jury could find weapon in glove compartment "carried" where vehicle used as drug distribution center and defendant "knew the firearm was in the automobile"); United States v. Barry, 98 F.3d 373, 377 (8th Cir. 1996) (affirming "carry" conviction where gun found in glove compartment; "Bailey does not require us to abandon" holding that "the common usage of `carries' include[s] `carries in a vehicle'"), ---------------------------------------- Page Break ---------------------------------------- 12 The Second, Sixth, and Ninth Circuits, on the other hand, have held that a weapon must be immediately available to the defendant in order to be carried. It remains to be seen, however, whether those courts will adhere to that view in the face of the growing weight of contrary authority. On June 12, 1997, the Sixth Circuit granted the government's suggestion for rehearing en bane of United States v. Malcuit, 104 F.3d 880 (1997). See App., infra, la-2a. And the Ninth Circuit also appears to be giving serious considera- tion to rehearing the issue presented here. The gov- ernment has filed a suggestion for rehearing en bane of United States v. Foster, 96 F.3d 1177 (9th Cir. 1996) (withdrawn). The court of appeals has withdrawn its opinion in that case, and recently requested a sup- plemental brief from the government on the issue of the need for en bane review to reconcile the Ninth Circuit's own precedents.7 Although the Second Circuit recently denied the government's suggestion for rehearing en bane of United States v. Cruz-Rojas, 101 F.3d 283 (1996), that court might be inclined to reconsider its views if the Ninth Circuit were to join the Sixth in granting rehearing, Because there is a ___________________(footnotes) cert denied, 117 S. Ct. 1014 (1997); Freisinger, 937 F.2d at 387- 388 & n.4 (finding defendant "carried" firearms found in knotted pillowcase inside plastic bag on floor of vehicle). 7 In United States v. Barber, 594 F.2d 1242, cert. denied, 444 U.S. 835 (1979), a pre-Bailey case, the Ninth Circuit squarely rejected the contention that "the word `carries,' as used in [Section 924(c)], connotes only the concept of bearing the weapon upon one's person or having the gun within his im- mediate control." Id. at 1244. The Barber court affirmed the conviction of a defendant who was carrying a firearm in the locked glove compartment of his car during a drug offense. Id. at 1243. ---------------------------------------- Page Break ---------------------------------------- 13 reasonable possibility that the courts of appeals will themselves eliminate the conflict of authority, we believe that review by this Court is not warranted at this time. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General LISA SIMOTAS Attorney JUNE 1997 ---------------------------------------- Page Break ---------------------------------------- APPENDIX UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 95-3794 UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. THOMAS A. MALCUIT, DEFENDANT-APPELLANT [Filed: June 12, 1997] ORDER Before: MARTIN, Chief Judge MERRITT, KENNEDY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE and COLE, Circuit Judges. It now appearing that the requisite number of judges in regular active service have voted for rehearing en banc; it is ORDERED that the order of June 9, 1997 is hereby withdrawn; it is further ORDERED, as provided in Sixth Circuit Rule 14, that the previous decision and judgment of this court are vacated, the mandate is stayed and the case is restored to the docket as a pending appeal. It is further ORDERED that the appellant file a supplemental brief not later than Friday, August 22, (la) ---------------------------------------- Page Break ---------------------------------------- 2a 1997, and the appellee file a supplemental brief not later than Monday, September 22, 1997. The Clerk will schedule this case for argument as directed by the court. ENTERED BY ORDER OF THE COURT /s/ LEONARD GREEN LEONARD GREEN, Clerk