United States Court of Appeals for the Tenth Circuit · 1997-07-02
Case and law context
Role: applied; posture: criminal, collateral review; jury conviction for using and carrying a firearm (affirmed on direct appeal in 1993); 28 U.S.C. 2255 motion claiming the conviction is invalid after Bailey; district court denied relief; defendant appeals; question is cause and actual prejudice from an erroneous "use" instruction where "carry" was also charged and correctly instructed; result: claimant-won; claim: (c)(1)
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Variant | Exact source quotations |
|---|---|---|---|---|
| /f3d/116/1353-01 — United States Court of Appeals for the Tenth Circuit · 1997 | Knowingly possess and convey the firearm | satisfied Excluded from merits counts applied / procedural basis: proved; claim: (c)(1); party: Holland (driver and owner of the car); subject: party=Holland (driver and owner of the car) SCOPE: section 2255 collateral review, actual-prejudice prong of procedural default. The court does not review afresh whether the evidence proved carrying (Holland did not dispute that the gun was carried in his vehicle); it holds that the 1993 jury's findings under the unchallenged possession instruction were the functional equivalent of a carry verdict, so he was not prejudiced by the Bailey error in the use instruction. [proved] refers to that jury finding. Hence `scope procedural`, not a merits instance of `carry`. Not a direct sufficiency review: the court reasons that, because the instructions required a finding of knowing (actual or constructive, sole or joint) possession for either prong and the gun was in the car Holland owned and drove, the verdict necessarily contained every finding needed for vehicular carrying. The gun was registered to the passenger and lay under the passenger's seat; the court does not discuss how the jury attributed possession to the driver. Pre-Muscarello, consistent with it. | vehicle/conveyance | In this case, the gun providing the basis for the section 924(c)(1) conviction was located under the front passenger seat of a car owned and driven by Mr. Holland.Source: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [13659:13822] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8.Mr. Kelly also had three rounds of ammunition that matched the cylinder of the gun under the seatSource: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [1407:1504] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8.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.Source: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [19053:19228] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8.The essential inquiry is whether the jury’s verdict, under the instructions given and the nature of the evidence, required the jury to find all the elements of a “carrying" violation, or stated another way, whether the verdict was the functional equivalent of such a finding.Source: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [21878:22153] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8.The jury findings required by the instructions, taken together, establish the elements of carrying a firearm under section 924(c)(1).Source: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [16071:16204] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8.These findings were made under proper instructions, unaffected by Bailey, and supported by sufficient evidence.Source: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [16533:16644] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8. |
| /f3d/116/1353-01 — United States Court of Appeals for the Tenth Circuit · 1997 | During and in relation to the predicate | satisfied Excluded from merits counts applied / procedural basis: proved; claim: (c)(1); party: Holland (driver and owner of the car); subject: party=Holland (driver and owner of the car) SCOPE: same collateral actual-prejudice analysis as the carry block, hence `scope procedural`. The nexus was not challenged in this proceeding; the court holds only that the jury necessarily found it under instructions untouched by Bailey. The fact lines are the background facts recited, not facts the court ties to the nexus in terms. | jury-finding-common-to-both-prongs/gun-in-vehicle-with-drugs-cash-pagers | Both defendants possessed cash and pagers purchased by Mr. HollandSource: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [1335:1401] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8.Three ounces of cocaine in a cosmetic bag were found by the side of the road where the traffic stop occurred.Source: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [1506:1615] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8.As we have pointed out, the “during and in relation to” element was not affected by the holding in Bailey.Source: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [18138:18244] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8.The jury necessarily found that the gun was being transported in the vehicle owned and operated by Mr. Holland, that Mr. Holland possessed the gun, and that he did so dining and in relation to a drug trafficking offense, all findings it was required to make under the instructions for either a “using” or “carrying” conviction.Source: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [16205:16532] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8. |
| /f3d/116/1353-01 — United States Court of Appeals for the Tenth Circuit · 1997 | Firearm object | not_reached Excluded from merits counts applied / merits claim: (c)(1) A revolver; not contested. | Unspecified variant | No source quotation recorded for this block. |
| /f3d/116/1353-01 — United States Court of Appeals for the Tenth Circuit · 1997 | Enumerated federal drug felony | satisfied Excluded from merits counts applied / lower-court basis: proved; claim: (c)(1); party: Holland; subject: party=Holland Jury conviction on the 841(a)(1) count, affirmed on direct appeal and not in issue here. | csa/felony | Kenneth Wayne Holland was convicted of possession of cocaine with intent to distribute under 21 U.S.C. § 841(a)(1)Source: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [22:136] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8. |
| /f3d/116/1353-01 — United States Court of Appeals for the Tenth Circuit · 1997 | Active employment of a firearm | not Counted merits instance applied / merits basis: no-evidence; claim: (c)(1); party: Holland (driver and owner of the car); subject: party=Holland (driver and owner of the car) The court declares the trial evidence insufficient for "use" after Bailey (a gun stored under the seat is not active employment), and the trial instruction on use incorrect. The conviction nonetheless stands on the carry prong, so this is an insufficiency ruling on one prong without a reversal. Kept `merits` although the posture is section 2255: this is the court's own application of the Bailey test to the trial evidence (the premise of the prejudice inquiry), not an inference from what the jury must have found. | accessibility-without-active-employment/gun-under-seat-of-drug-vehicle | revealed a revolver registered to Mr. Kelly under the passenger seat plus drug paraphernalia and a small amount of cocaine found elsewhere in the vehicleSource: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [1180:1333] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8.police officers observed five rounds of ammunition on the vehicle’s center consoleSource: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [1026:1108] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8.In Bailey, the Supreme Court rejected such a broad definition of “use” and held that section 924(c)(1) “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.”Source: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [2639:2921] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8.The Court also made clear that “use” does not extend to situations “where an offender conceals a gun nearby to be at the ready for an imminent confrontation.... Placement for later active use does not constitute ‘use.’”Source: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [3231:3450] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8.It is clear that under the construction of “use” employed in Bailey, the evidence in this case is legally insufficient to support a conviction for using a firearm during and in relation to a drug trafficking offense under section 924(c)(1).Source: docroot/ir/caselaw/f3d_116.jsonl#/f3d/116/1353-01; Unicode character offsets [3481:3721] (end exclusive); SHA-256 009438fcc9986a862dab6e536f87dd90ffb69c8d6d1ff9836d80b1c1b859efb8. |