Source: cases/18usc924/f2d-890-1363-us-v-ocampo.case
Case source: https://www.neochart.com/catalog/cases/f2d/volume_890/1363_01/index.html
there was ample evidence for the jury to find that he had the gun in his possession and was in the process of hiding it under the seat as the police approached the automobile
Under these circumstances it was reasonable for the jury to conclude he "carried" the weapon as required by the statute.
"Using" a weapon under § 924(c)(1) includes the possession of a firearm which in any manner facilitates the execution of a felony.
There was also ample evidence to support a finding that Ocampo "used" the weapon during the commission of the felony.
Furthermore, the jury surely was entitled to find that the presence of a loaded revolver so close at hand provided Ocampo with the security and confidence necessary to undertake such a large drug transaction.
namely, that a person could not be prosecuted for inadvertently carrying a firearm in an obviously unrelated crime.
The evidence on the record in this case places Ocampo's conduct clearly within the parameters of § 924(c)(1) as the government produced sufficient evidence at trial to link the gun to the narcotics offenses and to prove that the weapon was not inadvertently carried in relation to an obviously unrelated crime.
casedsl 1 case /f2d/890/1363-01 name United States v. Ocampo cite 890 F.2d 1363 (1989) court United States Court of Appeals for the Seventh Circuit date 1989-11-15 url catalog/cases/f2d/volume_890/1363_01/index.html source ir/caselaw/f2d_890.jsonl sha1=2171641a8101dac9183377fb02988fd9eee861c2 chars=34771 law 18usc924 (c)(1) role applied posture criminal; jury convictions of two defendants (drug conspiracy, possession with intent, and a 924(c)(1) use/carry count); direct appeal challenging suppression, sufficiency of the evidence on the firearm count, and the 841(b) sentence; pre-Bailey (1984 version of the statute, use/carry only) result claimant-won element carry : satisfied [proved] party Ocampo (passenger) variant vehicle/conveyance fact @5372..5472 [supports] | he observed Ocampo bent over inside the vehicle placing an object on the floor of the passenger side fact @5545..5620 [supports] | they did observe Ocampo attempting to kick it underneath the passenger seat fact @5673..5766 [supports] | Dailey recovered the object, a loaded blue steel revolver, from underneath the passenger seat fact @20556..20660 [cuts-against] | the gun was never displayed or brandished and was not found in the actual possession of either defendant held @21212..21386 | there was ample evidence for the jury to find that he had the gun in his possession and was in the process of hiding it under the seat as the police approached the automobile held @21388..21508 | Under these circumstances it was reasonable for the jury to conclude he "carried" the weapon as required by the statute. gloss Sufficiency upheld. The court states no test for "carry"; it treats having the gun in hand inside the car and hiding it under the seat as carrying. Whether the species is on-person or vehicle is not resolved by the opinion; filed under the vehicle hint because the gun was recovered from under the seat of the car the defendants had just entered. element use : satisfied [proved] party Ocampo (passenger) variant possession-as-facilitation/loaded-gun-within-reach-in-drug-vehicle fact @6589..6707 [supports] | They executed the warrants and found 5,000 grams of cocaine in Apartment 3-D and 4,998 grams of cocaine in the Datsun. fact @21820..22075 [supports] | Given the value of the cocaine and the known risks of conducting an illegal drug business, the jury could reasonably infer from all of the evidence that Ocampo possessed a loaded revolver in order to protect himself, his partner, and his cocaine shipment. fact @21141..21210 [cuts-against absent] | While Ocampo never displayed or fired the weapon during the encounter rule @21627..21757 | "Using" a weapon under § 924(c)(1) includes the possession of a firearm which in any manner facilitates the execution of a felony. rule @22574..23037 [quoted] | If the firearm is within the possession or control of a person who commits an underlying crime as defined by the statute, and the circumstances of the case show that the firearm facilitated or had a role in the crime, such as emboldening an actor who had the opportunity or ability to display or discharge the weapon to protect himself or to intimidate others, whether or not such a display or discharge in fact occurred, then there is a violation of the statute. held @21509..21626 | There was also ample evidence to support a finding that Ocampo "used" the weapon during the commission of the felony. held @22137..22345 | Furthermore, the jury surely was entitled to find that the presence of a loaded revolver so close at hand provided Ocampo with the security and confidence necessary to undertake such a large drug transaction. gloss CAVEAT: dated authority. This is pre-Bailey "use": possession that emboldens or protects counts as use even though the gun was never displayed. Bailey v. United States, 516 U.S. 137 (1995), later required active employment and rejected the possession-facilitates test this block applies; on these facts the use holding would not survive (the carry holding would). A true 1989 instance, not good law for `use`. gloss The second fact line is the court's statement of the permissible inference, not a primary fact. element during-relation : satisfied [proved] party Ocampo (passenger) variant protection/drugs-or-proceeds fact @6708..6845 [supports] | The cocaine in the vehicle was found in the white plastic bag which Escobar was observed carrying into and out of the apartment premises. fact @4677..4817 [supports] | Ocampo walked down the stairwell first to the parking lot and again engaged in counter-surveillance while Escobar remained in the stairwell. fact @23182..23295 [cuts-against] | the gun was recovered from underneath the passenger seat and was not displayed in any manner during the encounter rule @24013..24128 | namely, that a person could not be prosecuted for inadvertently carrying a firearm in an obviously unrelated crime. held @24153..24463 | The evidence on the record in this case places Ocampo's conduct clearly within the parameters of § 924(c)(1) as the government produced sufficient evidence at trial to link the gun to the narcotics offenses and to prove that the weapon was not inadvertently carried in relation to an obviously unrelated crime. gloss The court rejects the argument that the 1984 "in relation to" wording demands a stronger link: it only excludes inadvertent carrying during an unrelated crime. The variant label is borrowed from the furtherance hints (same fact pattern: loaded gun protecting a drug shipment); the law file declares no variant for during-relation. element predicate.drug : satisfied [proved] scope lower-court party Ocampo and Escobar variant csa/felony fact @22..367 [supports] | Defendants Juan Carlos Ocampo and Luis Alfonso Escobar were each convicted by a federal jury of conspiring to possess with intent to distribute approximately ten kilograms of cocaine (Count I), possessing with intent to distribute approximately ten kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts II and III) gloss Jury verdicts on the drug counts; their sufficiency is not challenged on appeal (only suppression and the 841(b) quantity finding are), so the predicate is a finding below that this court does not review. element firearm : not-reached gloss A loaded blue steel revolver; its status as a firearm was not contested. element accomplice : not-reached party Escobar (driver) gloss Escobar's 924(c) conviction is affirmed, but NOT on the section 2 aiding-and-abetting route this id declares: the court relies on Pinkerton co-conspirator liability (see misfit). No ruling on aiding and abetting. misfit Escobar (driver, never shown to have touched the gun) is held liable for Ocampo's use/carry under the Pinkerton doctrine: "he participated with Ocampo in the conspiracy ... under circumstances where one could reasonably expect that a weapon would be carried" (text at about offset 24464). The law file declares only `accomplice` = 18 U.S.C. 2 aiding and abetting (Rosemond); Pinkerton is a different attribution route with a different mental state (reasonable foreseeability, not advance knowledge), so this decided, merits holding has no id and is recorded only here. A `vicarious.pinkerton` id (or an `accomplice` sub-id) is needed. misfit No temporal / good-law flag (known item 10): the `use` block is a real 1989 instance but rests on the possession-facilitates test that Bailey (1995) rejected; it still counts as an instance of `use : satisfied`, marked only by its CAVEAT gloss. misfit The opinion finds BOTH use and carry satisfied on the same conduct for one count; the claim formula treats them as alternatives, and the notation cannot say that two blocks are alternative grounds for a single count (neither is `scope alternative` in the "even assuming" sense). misfit `result` is per opinion, not per party (known item 8): both defendants lost, but on different attribution routes. misfit About two thirds of the opinion (Terry stop / drawn gun, 841(b) quantity as a sentencing factor, sufficiency of the indictment for the enhanced penalty) concerns the Fourth Amendment and 21 U.S.C. 841(b); none of it is recorded here. The consecutive five-year 924(c) sentence is recited but not discussed, so no penalty block.