JOHN A. HENNING, PETITIONER V. UNITED STATES OF AMERICA No. 90-5801 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals, Pet. App. A1-A17, is reported at 906 F.2d 1392. JURISDICTION The judgment of the court of appeals was entered on June 25, 1990. The petition for a writ of certiorari was filed on Monday, September 24, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the searches of petitioner's person and car were incident to his lawful arrest. 2. Whether the district court 's instruction to the jury on elements of a violation of 18 U.S.C. 924(c)(1), which makes it a crime to use or carry a weapon during or "in relation to" a drug trafficking offense, should have included a definition of the term "in relation to." STATEMENT After a jury trial in the United States District Court for the District of New Mexico, petitioner was convicted on one count of possessing methamphetamine with intent to distribute, in violation of 21 U.S.C. 841(a)(1) (Count 1); two counts of using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. 924(c)(1) (Counts 2 and 3); and one count of possessing an unregistered firearm, in violation of 26 U.S.C. 5861(d) (Count 4). He was sentenced to concurrent prison terms of 10 months on Count 1, 10 years on Count 2, and five years on Count 3. On Count 4, the district court imposed a 10-month sentence to run concurrently with the sentence on Count 1. The court also appeals vacated the sentence on the Section 924(c) counts and remanded for resentencing, holding that petitioner could not receive consecutive sentences for separate counts of carrying a weapon during the commission of a single drug offense. In all other respects, the court of appeals affirmed. Pet. App. A1-A17. 1. The evidence adduced at trial and at the pre-trial suppression hearing is summarized in the court of appeals' opinion. Pet. App. A3-A4. It showed that in the early morning hours of December 16, 1987, police officers investigating gang activity involving guns and narcotics were stationed across the street from a bar in Albuquerque, New Mexico. Moments after hearing a gunshot some 300 or 400 yards from their position, Officer Bryan Murphy saw a car emerge from the general area of the gunshot, make a quick stop at a stop sign, and proceed north. Id. at A3. Officer Murphy stopped the car, which was occupied by petitioner and Lucinda DeMaria. When he asked petitioner for his driver's license, petitioner became abusive. After Murphy asked for the license a second time, petitioner held it out the window. However, he refused to release it when Murphy attempted to take it. Murphy then ordered petitioner out of the vehicle. As petitioner opened the door, a loaded automatic weapon fell to the ground. Murphy immediately drew his weapon, kicked the fallen weapon away, and placed petitioner's hands against the car. A pat down of petitioner revealed a loaded semi-automatic pistol under his jacket. Murphy then placed petitioner under arrest for carrying a concealed weapon. Pet. App. A3-A4. In connection with petitioner's arrest, officers searched petitioner's person and car. They uncovered seven baggies of methamphetamine in petitioner's shirt pocket, and one baggie of methamphetamine, along with 59 empty baggies, inside a shaving kit found in the car. They also found a rifle on the front seat floorboard, and a pistol and ammunition inside a black bag. During the booking process, officers found a vial containing methamphetamine in petitioner's breast pocket, along with two straws, 13 Valium pills, and $360 in cash. Pet. App. A4. After being given his Miranda warnings, petitioner freely spoke with the officers. Id at A5. 2. Before trial, petitioner moved to suppress all evidence and statements obtained as a result of the stop of his car and the subsequent searches. The district court denied the motion. Pet. App. A5. At the conclusion of the trial, petitioner asked the district court to instruct the jury that, in order to convict him of using or carrying a weapon during or in relation to a drug offense, it must find that his use of the firearm was an "intregral part of the drug trafficking * * *." Pet. App. A10 n.2. Petitioner did not otherwise request that the statutory phrase "in relation to" be defined. Although the district court did not give the requested instruction, it did tell the jury that the firearm possession must be "(d)uring and in relation to" the drug offense. Id. at A11. The court further instructed the jury as follows: With reference to Counts II and III, the term "carries" means possession with the ability to exercise dominion and control or such proximity to make it available for use. "Carries" does not mean mere transportation of a firearm in a vehicle. The term "use" includes use for security regardless of whether the weapons are ever referred to, displayed pointed or fired. If a firearm plays any role in a drug trafficking crime or if it facilitates the crime in any way, it is being used within the meaning of 18 U.S.C. Section 924(c)(1). Id. at A12. Petitioner did not object to the district court 's failure to give his requested instruction or to define the phrase "in relation to." 3. On appeal, petitioner challenged the denial of his suppression motion and the district court's failure to give a separate jury instruction defining the phrase "in relation to." The court of appeals found no Fourth Amendment violation. It held that the emergence of petitioner's car, traveling in excess of the speed limit, from the general area of the gunshot provided the officers with reasonable suspicion to make the stop; that Officer Murphy was entitled to order petitioner out of the car for Murphy's own protection and because of petitioner's belligerence and refusal to cooperate; that the pat down was lawful in light of the weapon that fell out of the car; that the discovery of the second weapon on petitioner's person justified his arrest for carrying a concealed weapon; and that the subsequent searchers were proper as incident to a lawful arrest. Pet. App. A7-A9. The court rejected petitioner's contention that, because New Mexico law permits the carrying of concealed weapons within the confines of a private automobile, Murphy forced him to violate the concealed weapons statute when he ordered him out of the car. The court explained that "(petitioner) foreclosed (Murphy's) options by his belligerent behavior, leaving the officer no choice but to ask that he step out of his vehicle." Id. at A9. Applying the "plain error" standard in light of petitioner's failure to object, the court of appeals also rejected petitioner's claim that the district court should have given a jury instruction defining the phrase "in relation to." The court concluded that, "(c)onsidering the jury instructions as a whole, together with the evidence adduced at trial, the district court's failure to give an 'in relation to' instruction was not plain error." Pet. App. A15. ARGUMENT 1. Petitioner contends that because his arrest for carrying a concealed firearm was unlawful, the subsequent searches of his car and person could not be justified as being incident to a lawful arrest. Pet. 17-23. Under New Mexico law, it is a crime to carry a concealed weapon that is loaded; it is not unlawful, however, to carry a weapon inside a car for the protection of life and property. N.M. Stat. Ann. 30-7-2 (1988 Cum. Supp.). /1/ Petitioner insists that he did not violate the New Mexico statute when he stepped out of his car with his loaded gun still concealed on his person, because he took that action solely at the direction of Officer Murphy. Petitioner's claim of unlawful arrest ignores the fact that he could simply have informed Officer Murphy that he carried a concealed weapon before stepping outside his car. Petitioner's defense to his arrest under N.M. Stat. Ann. 30-7-2 rests on the false assumption that he could only disobey the officer's instruction (and stay inside his car) or obey the instruction (and violate the concealed weapon statute). Although it may have been too dangerous for petitioner to remove the gun himself without warning Murphy before stepping outside the car, it surely was within petitioner's ability to inform Murphy about the concealed weapon so that Murphy could safely take custody of it. Petitioner's failure to bring the existence of the concealed weapon to Murphy's attention either before or after leaving the car clearly rendered him liable under the state statute. A contrary rule would allow criminals who are ordered out of their cars by police officers to take their concealed weapons with them with impunity, posing a serious threat to the safety of the officers. Even if the circumstances of petitioner's leaving his car would constitute a valid defense against a charge under the New Mexico statute, petitioner's arrest for carrying a concealed weapon was not unlawful. It does not follow that because a defendant has a valid defense to a criminal charge the police necessarily lacked probable cause to arrest him. Here, petitioner's possession of the loaded gun outside the car fell within the clear prohibition of the New Mexico statute and thus provided probable cause for the arrest. In order to find probable cause Officer Murphy was not required to make an on-the-spot legal determination about the impact on the applicability of the statute of his direction to petitioner to step out of the car. Cf. Michigan v. DeFillippo, 443 U.S. 31, 37-38 (1979) ("A prudent officer, in the course of determining whether respondent had commited an offense under all the circumstances shown by this record, should not have been required to anticipate that a court would later hold the ordinance unconstitutional"). Finally, because petitioner's challenge to the legality of his arrest turns on a question of state law -- the applicability of the New Mexico statute in the circumstances of this case -- it does not warrant the Court's review. /2/ 2. Petitioner contends that his convictions under Section 924(c)(1) for using or carrying a firearm "during and in relation to" a drug trafficking offense should be reversed because the district court failed to give a jury instruction defining the phrase "in relation to." Pet. 23-34. Since petitioner neither asked the district court for an instruction defining the phrase "in relation to" nor objected to the court's failure to give such an instruction, /3/ the applicable standard of review is plain error. See Fed. R. Crim. P. 52(b). This Court has stated that the plain error rule is "'to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 (1982)). The court of appeals correctly concluded that the district court's failure to give a jury instruction defining the phrase "in relation to" was not plain error. Tracking the language of the statute, the district court explicitly informed the jury that, in order to convict on the Section 924(c)(1) counts, it must find that the possession of the weaons was "in relation to" the particular drug offense. Pet. App. A11. The phrase "in relation to" is self-defining and does not require elaboration. Further, in defining the word "carries," the court stated that the firearms must be of such proximity as to make it available for "use," and the court then explained that a firearm is "used" within the meaning of Section 924(c)(1) if it "plays any role in a drug trafficking crime or if it facilitates the crime in any way * * *." Pet. App. A12. Taken as a whole, these instructions were more than sufficient to inform the jury of the requisite connection between the weapon and the crime. /4/ Petitioner's reliance on United States v. Stewart, 779 F.2d 538 (9th Cir. 1985), cert. denied, 484 U.S. 867 (1987), is unavailing. In that case, the court of appeals reversed because "(t)he government * * * did not attempt to link possession of the firearm with the underlying felony, and the district court did not instruct the jury that a relation between the two is required." Id. at 539. /5/ Here, by contrast, the district court properly stated the elements of the crime. In a subsequent case, the Ninth Circuit itself distinguished Stewart on this basis and went on to conclude that the failure to define the phrase "in relation to" was not plain error. United States v. Power, 881 F.2d 733, 736 (1989). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOEL M. GERSHOWITZ Attorney DECEMBER 1990 /1/ The New Mexico statute provides in pertinent part as follows: A. Unlawful carrying of a deadly weapon consists of carrying a concealed loaded firearm * * *, except in the following cases: * * * * * (2) in a private automobile * * *, for lawful protection of the person's or another's person or property * * *. /2/ We note that, even apart from petitioner's arrest, the officers were entitled to search the passenger compartment of his car for weapons. Under Michigan v. Long, 463 U.S. 1032 (1983), the search of the passenger compartment of a vehicle, limited to those areas where a weapon may be placed, is permissible if the police officer possesses a reasonable belief that the suspect is dangerous and may gain immediate control of weapons. Here, in light of the loaded weapon that fell out of the car, the officers clearly had such a reasonable belief. /3/ Although petitioner did not ask the district court to define the term "in relation to" for the jury, he did ask the court to instruct the jury that the use of the firearm must be "integral to" the drug offense. The district court properly declined to give the requested instruction as an incorrect statement of the law, since Section 924(c)(1) requires only "some relation or connection" between the criminal act and the use or possession of the firearm. United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985), cert. denied, 484 U.S. 867 (1987). Petitioner did not object to the court's refusal to give the requested instruction and does not here suggest that the refusal was error. /4/ Petitioner also faults the district court's instructions for failing to advise the jury that the "in relation to" language requires an intent to use the firearm in connection with the drug offense should it become necessary. However, the district court explicitly instructed the jury that the using or carrying of the firearm during and in relation to the drug offense had to be "knowing." Pet. App. A11. The court further instructed the jury that an act is "'knowingly' done if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason." See Gov't C.A.Br. 16. In addition, the court told the jury that Section 924(c)(1) requires a specific intent and it defined "specific intent." Ibid. Petitioner did not object to these instructions in the district court, and does not now explain why he believes they were inadequate to convey Section 924(c)(1)'s scienter requirement. /5/ At the time of Stewart's offense, the statute made it a crime to "(c)arry a firearm unlawfully during the commission of any felony * * *." 18 U.S.C. 924(c)(2) (1982). In 1984, Congress, in combining former subsections 924(c)(1) and 924(c)(2), replaced the word "during" with the phrase "during and in relation to" in order to make explicit an element already implicit in the statute. See Stewart, 779 F.2d 539.