*2 COX, BLACK, Before DUBINA and Judges. Circuit COX, Judge: Circuit. Leonard, Philip Moore,

Juan Scott Lee Kirby appeal Peterson their convictions drug and sentences on charges and firearm stemming following from an arrest a traffic stop. part. We affirm in and reverse in

I. BACKGROUND 29,1995, On June the defendants were in a Caprice Chevrolet wagon traveling through north on 1-75 County, Lowndes Georgia, just north of Georgia-Florida driving, border. Peterson was Moore was in passenger the front seat and Leonard was in County the back seat. Deputy Lowndes Sheriff Mike Sellars observed the station lane, wagon weaving pulled explained over. Peterson his erratic by telling Deputy previously Sellars that he sleeping and had started driv- ing line. When asked license, produced for his driver’s Peterson 10-day permit by an municipal issued Ohio “Kirby Deputy court to Pearison.” Sellars then asked Peterson for the regis- vehicle’s papers. tration Peterson stated he, ear; not was the owner of the Moore ownership admitted of the vehicle but stated any registration, that he did not have insur- ance, ownership papers with him. None produce photographic of the trio could identi- asked, Upon being fication. Peterson first Deputy told Sellers that the defendants were Orlando, traveling from but later said that they had come from Miami. Moore indicated had been in Florida but did Marr, Valdosta, GA, Michael S. for Leon- slept through know where because he had ' (cid:127) ard. trip. Leonard also stated that he had asleep been Florida and did not Cork, Valdosta, GA, Patrick C. for Moore. know where the trio had been. Atlanta, Harvey, GA, Bruce S. for Peter- point, Deputy suspi- . At this Sellars became son. permission cious and asked Moore for to verbally gave search the ear. Móore Aderhold, Randolph H. Acting Asst. U.S. sent, sign but refused to a written consent GA, Macon, Johstoiio, Atty., Donald L. Asst. Deputy form. Sellars then indicated that GA, Atty., Albany, Plaintiff-Appel- U.S. give permission Moore did not have to lee. search, not, if he did would call but Sellars . this, dog sniff At the car. form, urged sign Moore to and he did. The sole drug this transaction. area of the tion with the front searched Deputy Sellars carried; was that the firearm marijuana contention is vehicle, several he found where actually is, possessed, that it was ash- passenger side stems in the seeds and constructively, during and in relation Meanwhile, Flemming, Brian tray. charge---- backup, searched called in as who had been *3 wagon. Upon lifting rear of the (R.3 195,196-97). jury convicted at The heavier that felt tailgate, he noticed all counts. the defendants on it, and heard a He shook expected. than II. DISCUSSION He removed inside. thumping sound revealing nine tailgate, interior cover ap- on raise several issues The defendants a 9mm cocaine and Gloek packaged of bricks (1) the merit discussion:2 peal, but two were then arrest- handgun. The defendants (2) evidence; and legal sufficiency ed. instructions to propriety of the trial court’s 924(e) charge. § jury regarding five-count indict- grand A returned we review Count One are both issues of law which against the defendants. These ment Kelly, possession of v. 888 with de novo. See United States charged all defendants (11th Cir.1989); in violation intent to distribute cocaine with (11th 841(a)(1); Chandler, charged Cir. Count Two 996 F.2d of 21 U.S.C. 1993). during in using a firearm carrying or trafficking in viola- offense

relation to 924(c)(1); Evidence to Convict The and Counts Was tion of 18 U.S.C. Sufficient Co- Possession Three, charged and Five each defen- Four Defendants Intent to Sell? by a con- caine With possession of a firearm dant with in of 18 U.S.C. felon violation victed essentially All make three defendants 924(a).1 presenta- §§ After the 922(g)(1)and respect with to the suffi argument the same evidence, objections and over tion They ciency contend of the evidence. defendants, trial for all three counsel showed although the Government’s evidence charged in as follows: judge traveling a car which were using charge, which is the second hidden, [I]n gun cocaine and firearm, “possession” carrying a the word of them could not show Government “carry,” word synonymous is with the actually possessed either. The standard therefore, you I give the instruction that sufficiency is assessing of evidence applies “possession” words to the any reasonable view of whether “carry.” the word light most favorable to the considered in the jury to

government, sufficient to allow a is beyond a doubt. Unit guilt reasonable find posses- may that the element of You find (11th Bush, ed States carrying, as that sion the element of Cir.1994). instructions, pres- is term is used these ent, beyond you if find a reasonable doubt support a conviction for To constructive that a defendant had actual or substance with intent dis of a controlled jointly either alone or with oth- possession, tribute, show that the evidence must ers. knowingly possessed the con defendant with the intent to distribute

trolled substance Montes-Cardenas, Now, on it. ... there’s no contention See The de government’s part that either [Leonard proposi- numerous cases for the in connec- fendants cite actually used a firearm Moore] Peterson, Five, presented arguments are without pertaining 2. All other was later 1. Count charged Although he had been See 11th dismissed. felony and do not warrant discussion. merit attempted drug abuse in the Court of 36-1. Cir.R. Ohio, Montgomery County, Common Pleas for charge had been reduced to a misdemeanor this pleaded guilty. when he showing presence personal mere sufficient to constitute tion that evidence dominion cocaine, containing contraband is insufficient in over the posses- a car and therefore actual (government to sustain a conviction for sion. id.' itself could not show Cf. personal because, alia, with intent to distribute. United States v. dominion inter record Cir.1994). Stanley, 24 F.3d did not show that defendant drove vehicle correct, proposition containing marijuana). the evi- jury reasonably While this in this case indicates more than “mere dence could have inferred that Moore was the own- presence,” at least with to Moore and er of a vehicle which he knew cocaine and located, Peterson. therefore structive of both. As a When viewed in the most favor reasonably infer the existence of all ele- Government, shows able the record - ments3 of the offenses the évidence was le- *4 that all of the a “con defendants evidenced gally sufficient to convict Moore and Peter- guilt,” Stanley sciousness of which under is possession for son of cocaine with intent to support sufficient to an inference of knowl distribute, posses- and to convict Moore for edge. Although See id. at 1320. both Leon handgun by sion of a a convicted felon. they slept ard and Moore indicated Florida, However, way through Dep the jury Peterson told while the uty just Sellers that he had started that inferred Leonard knew the cocaine and border; car, near gun one of Government'points were obviously them, stories possessed these was false. Moore to no evidence he actu car, to consent to ally constructively. refused the search of the or The record changed Deputy but when mind Sellers shows that passenger Leonard was a in the fact, bring threatened to unit. canine back seat of the wagon when it was urged deputy Moore to stopped. allow the to There is no evidence to indicate hearing drug dog search after that a trained ownership, Leonard ever had dominion might cocaine, search the car. Sellers testi or gun, control over the or the that none of fied the defendants looked sur vehicle in which were concealed. prised discovery of the cocaine and the support The record also does not evidence, handgun tailgate. From this grounds conviction on the aided Leonard jury certainly could have drawn the reason or abetted other two defendants. To able inference that all three defendants knew aiding abetting, sustain a conviction for the cocaine gun and the were the car. must show that the defendant government may satisfy principal(s) shared the criminal intent of the “possession” prong by showing either actual committed overt act furtherance of possession. prove or constructive To actual the criminal venture. v. See United States (11th Guida, Cir.1986). possession 1087, the evidence must show that the 792 F.2d 1095 physical possession defendant either had Regardless “guilty knowledge” evi personal thing allegedly or dominion over the dence from which a infer Leonard Derose, possessed. gun See United States v. 74 knew the cocaine tail (11th Cir.1996). F.3d 1185 gate, Construc there is no evidence that he committed tive exists when a defendant has overt acts to their or aid dominion, ownership, unwise, or control merely over an ob concealment. While it is ject sharing itself or dominion or control over the a vehicle which one knows cocaine premises object or the in which gun vehicle is and a are hidden does not amount to posses concealed. Id. From the abetting their reasonably could have inferred that Peterson sion. The evidence insufficient to show possessed was the driver of a vehicle in which he knew either that Leonard the cocaine or pistol, cocaine and a were hidden. This is or that the Glock he aided and abetted use, Gates, specifically 3. The defendants do not address the United v. 967 F.2d 499 States cf. distribute, (11th Cir.1992) (two tailgate kilograms element of intent but the than more use), approximately kilograms personal enough support contained nine of co- amount for caine, personal far more than that involved in an inference of intent to distribute. 910 (2d Cir.1997); Therefore, Canady, 126 F.3d his convictions possession. their States, 1087, 1090 v. United 125 F.3d the indictment Wilson Three of on One and Counts Hall, (7th Cir.1997); States v. has United As the Government be reversed.

must (5th 1155, 1161 Cir.1997); United States committed a F.3d prove that Leonard faded Mitchell, Cir.1997); crime, on v. his conviction drug trafficking Ruth, 111, 113 v. 100 F.3d during and United States carrying a firearm Count Two (10th Cir.1996); v. Riascos- United States drug trafficking crime like- in relation to a Suarez, See, As e.g., must be reversed. wise by by us and our sister interpreted n. 1 both Simpson, 924(c)(1) circuits, “carry” prong of re (proof underlying proof possession; than mere quires more is an essential element trafficking offense violation). 924(c) prove must that the defen government §a actually transported the firearm as well.

dant Thus, the district court’s instructions Trial Court’s Instructions to B. Did the 92Jt(c) of the law. Jury Regarding were an erroneous statement Charge Reversible Error? Constitute However, finding that the instruc inqui also contend not end our

Moore and Peterson tions were erroneous does Quinn, instructing ry. holding trial court erred in that the Our United States *5 necessary jury regarding applies the elements to “er 123 F.3d 1415 924(c), charge § which jury charges; convict under 18 U.S.C. such a enti roneous” carr[y]” a in ] it a crime to to a new trial on the count “use[ makes tles defendant any drug in ... traf “during only and relation to “when a reasonable likelihood question (West 924(e) § in ficking jury applied crime.” 18 U.S.C. that the the instruction exists (internal Specifically, they the Supp.1997). argue improper manner.” Id. at 1428 an omitted). equating “carrying” Alternatively, trial court’s instructions quotations improper “possession” Rogers, an Cir. with state 94 F.3d 1519 — law, U.S.-, 1996); citing Bailey v. United granted in part, ment of the cert. States, 1046, and dis 516 U.S. S.Ct. 117 S.Ct. 137 L.Ed.2d — (1995), support argu in their improvidently granted, of U.S. L.Ed.2d missed as (1998), -, agree with the defendants that ment. We 118 S.Ct. 139 L.Ed.2d 686 instructing appeals court erred in the to be the district is the “framework used Although Bailey specifically jury. involving Court instructions that omit an essential prong holding (empha its to the “use” of at limited element Id. of offense.” added). 924(c), strongly suggests § the decision at issue could sis The instructions more, not gun, of a without does to fall under either of these rules. be read “carry” hand, satisfy prong: judge gave jury an On one the trial “carry,” of which would erroneous definition Congress intended alone to Had “erroneous,” the instructions seem to render 924(c)(1), liability easily it trigger under subject analysis therefore under and provided. could have so This obvious con- Yet, Quinn. supra, explained as we have supported by frequent use of clusion is “carrying” of circuit re the law this under “possess” gun-crime the term stat- transportation. quires both prohibited gun-related utes to describe judge neglected to mention the The trial See, 922(j), §§ e.g., 922(g), conduct. requirement transportation, effect omit 930(b). 922(k), 922(o)(l), 930(a), of the offense and render ting an “element” 143, 116 In Bailey, 516 U.S. at S.Ct. at 506. susceptible Rogers ing the instructions addition, post-Bailey have held deci we analysis. sustain a conviction under the “[t]o sion that of which government parties do not raise the issue ‘carry’ prong ... must show indeed, here, apply need not during rule to we transporting actual of the firearm issue, result obtains trafficking decide the for the same in relation to the offense.” Quinn Chirinos, we held that under either rule. F.3d (11th Cir.1997); entitled to reversal of the defendant was not accord United States

9H conviction, 3) admitted; though Bailey jury even under case [or] Where the jury, improper charge judge gave necessarily has predi- found certain other properly jury would because “a instructed closely cate facts that are so related to the Quinn guilty violating have found jury omitted element that no rational 924(e)(1) ‘carrying’ on the basis of the find those facts finding without also statute, prong of the evaluated element. Quinn, 123 at evidence adduced.” F.3d Rogers, (citing 94 F.3d at 1526 Carella v. ease, properly In the instant instructed 263, 270-71, California, 491 U.S. 109 S.Ct. jury likewise would have convicted Moore (1989) 2423-24, 105 (Scalia, L.Ed.2d 218 Following the instructions Peterson. concurring)). J. This rule is narrower than court, given by the district Quinn, that in but the instructions at issue beyond very least found a reasonable doubt Rog here are nevertheless harmless under actively constructively that the defendants ers; Assuming jurors that the followed the possessed'the during at issue pistol letter, judge’s trial instructions to the crime, drug trafficking relation to a or aided necessarily pos had to find that Peterson Thus, possession. and abetted in such pistol through sessed the his act of missing from the verdict element was knowing pistol the car while con was finding transportation] of the fire “actual tained therein. No rational arm, having ... such as the defendants’] car, yet found that Peterson drove the did ... carried the firearm in a vehicle used for Likewise, “transport” pistol. not to find Quinn, 123 at 1426. drug distribution.” guilty jurors Moore would have had to transportation The evidence of car, thereby find that he owned’ undisputed; to Peterson he was found by abetting providing the vehi containing driving the automobile the Glock Thus, pistol cle which the was carried. pistol. properly Had the been instruct improper “carry” either rule the in under ed, certainly would have convicted Peter struction does mandate reversal of either *6 “carrying” pistol, light son of of the Moore or Peterson’s conviction. transportation. undisputed evidence of Cf. Holland, III. CONCLUSION (10th Cir.1997) ’(“essential inquiry” n. 4 verdict, jury’s of instruc whether above, For the reasons we RE- stated given tions is the “functional VERSE Leonard’s convictions on Counts “carry” equivalent” required findings for a One, indictment, Two Three of the eases)). (citing conviction other With AFFIRM Moore and Peterson’s convictions Moore, there -was no evidence that he and sentences. is, transported pistol,'that drove vehi PART; IN REVERSED AFFIRMED IN ’However, jury’s containing cle it. verdict PART. very least found that Moore had know ing possession; whether actual or construc DUBINA, Judge, concurring Circuit tive, pistol, undisputed and it was part: dissenting in he claimed to be the owner of the station it, wagon allowing and was Peterson to drive majority’s I agree While with the well- clearly furthering transportation opinion reasoned insofar as it affirms the pistol. properly A instructed also would convictions of defendants Moore and Peter- have convicted and abet son, respectfully concerning I dissent ting Peterson in commission of the offense. majority’s reversal of Leonard’s convictions Rogers, I, an instruction that Under omits an and sentences on Counts II and III of view, element of the offense is harmless: my the indictment. a reasonable 1) circum- jury could have found under the pertained infirm Where the instruction Leonard, together stances that with the oth- charge to a for which the defendant was (and defendants, knowingly possessed er a con- acquitted affecting charges); other 2) with intent trolled substance distribute. Where the omission related to ele- majority acknowledges that a ment of the crime that defendant in happened sitting in he to be the back that Leonard knew because have inferred the car at the time of the arrest. in the ear. I dis- seat of cocaine however, majority’s Accordingly, I would affirm Leonard’s con- conclu- agree, with the respects. to victions and sentences is insufficient sion that “[t]he co- possessed the show either that Leonard pistol, or that he aided

caine or the Glock possession.”

or abetted their constructive, may be actual or

Possession “may be shared

and constructive others, by cir- can be established evidence.” United

cumstantial or direct Montes-Cardenas, America, UNITED STATES case, In this Plaintiff-Appellee, inferred, on circumstantial based evidence, that Leonard shared constructive possession of the cocaine with Moore and HUBERT, Dock Defendant Charles Sellers, by Deputy Peterson. When asked - Appellant. the defendants were Peterson stated changed He later traveling from Orlando. No. 96-2822. they story and said that had come from Appeals, States Court of case, Miami. In either the evidence-indicat- Eleventh Circuit. been on a ed that the three defendants had trip from some location central or road April Both south Florida. Moore and Leonard they they stated that did not know where slept Florida because Peterson,

through trip. who was pulled

the car at the time Sellars just

over north of the bor-

der, asleep claimed to have been until the

trio reached the state line.

Clearly, the car did not itself drive *7 Considering

the state of Florida. that all of the car defendants denied Florida, a reasonable point during

have inferred that at some

journey, a turn Leonard took behind the evi-

wheel. This sufficient circumstantial constructive

dence Leonard’s

the vehicle and the cocaine it contained. possession,

This combined with evidence guilty knowledge,

evidence of Leonard’s pres- significantly

stitutes more than “mere

ence” the vehicle. See United States

Stanley, 24

(“courts will affirm convictions when the de- presence in

fendant’s the car is combined guilt”).

with other The same

analysis that there is sufficient demonstrates transported

evidence that Leonard the hand- I

gun. do not think that we should reverse merely

Leonard’s convictions and sentences