United States v. Juan R. Munoz, A/K/A John Doe 1
143 F.3d 632
2d Cir.
1998
Check Treatment

*1 points set forth in detail instructions: that Two remain. The first is an objection, trial, preserved opinion that plaintiff warranty may “the action ... tes by timony given expert an discovering prod- not if ... after witness lacked recover allowing ques foundation. We think being uct’s that defect and made aware of its discretion, tion was danger, proceeded within district court’s he nevertheless unreason- any but in regard event we the answer as ably product to make use of the and was a rephrasing little more than of an earlier injured by it.” Correia v. Firestone Tire & expert unques scientific that the was Co., answer Rubber 388 Mass. 446 N.E.2d tionably give. alleged allowed The second error, relating to interrogatory was not jurors obviously were uncertain only below forfeited but also omitted from interrogatory contingent, whether 10 was but opening pre Chute’s brief in this court and question by answered this district court reply. sented for the first time in his We informing We them was. have no decline to it. address See Nichols v. Cadle ignored reason to think (1st Cir.1998). Co., 59, 64 interroga- the court’s instructions to resolve Affirmed. tories first and address 10 8 and 9 plaintiff ques- found for the on those first

tions. or not in this Whether context the (still

original interrogatory was “error” at all error”) “plain

less does not matter: it is

enough any clarification removes thinking

reason was misled plaintiff prejudiced.

or the America, UNITED STATES of why This exercise demonstrates courts are Plaintiff-Appellee, unlikely reverse decisions in civil so cases unpreserved claims of error in based interrogatories. an era instructions MUNOZ, Juan R. John Doe a/k/a dockets, crowded idea that the case 1, Defendant-Appellant. # because of awkwardly- be retried should No. 96-2797. interrogatory drafted counsel had am- straighten the matter opportunity out ple Appeals, United States Court of insupportable other than the most Second Circuit. Although case. rare and extreme Chute’s suggested argument oral counsel that he Argued Feb. objection, preserve transcript did April Decided provide supplied something later us pages objection interrogato- than a clear-cut less

ry ground 10 on the now asserted. presents argu

Chute two further why interrogatory

ments as to 10 is defec likely prejudicial One less be

tive. is even not

error and was also raised in the district

court, preceding so it is covered our dis claim

cussion. The other is that affirma misuse,

tive defense of unforeseeable refer, interrogatory

which intended was accurately stated under Massachusetts

law. Since the did not reach the issue clarification, any

after district court’s misdescription patently

such harmless. *2 (Rob- Tretter, City, York

Andrew G. New brief), Wolf, City, New York for ert S. Defendant-Appellant. McEnany, Assistant United

John M. Attorney, City (Mary New York Jo States White, Attorney for the South- J; York, Timothy Cole- of New ern District man, Attorney,'New Assistant United States brief), Plaintiff-Appel- City, for York lee. JACOBS, GRAAFEILAND,

Before: VAN LAY,* Judges. Circuit LAY, Judge: Circuit § 2255 a 28 U.S.C. mo Juan Munoz filed using tion vacate transaction, carrying firearm in violation 18 U.S.C. (1) grounds:

challenged his conviction on two regarding charge given to the “use” was erroneous under U.S.C. Bailey v. light of trial insuffi adduced at the evidence conviction on the firearm cient relief, find district court denied count. The ing- that the erroneous harmless'error regarding'“use” constituted * tion. Lay, P. United States Circuit Honorable Donald Circuit, sitting by designa- Eighth Judge and, consent, pulled Hegie Hegie’s was sufficient evidence

and that there over “carry” Camry. the conviction searched maroon The officers 924(c). prong of We affirm. brick-shaped package found a hood approximately one car contained Background kilogram of cocaine. The officers ar- *3 Hegie. rested 15,1993, morning of acting October On informant, tip on a from a confidential inves- investigating The officers resumed their tigators Drug from the New York Enforce- approxi- surveillance Munoz’s residence at Task driving ment Force observed Munoz a mately p.m. evening. 11:40 the same At that afternoon, green Toyota Forerunner. That time, green parked was not Forerunner investigating began officers surveillance apartment in building’s driveway. At apartment building. ap- outside Munoz’s At 16,1993, approximately a.m. 2:00 on October proximately p.m., 8:20 Munoz returned to apart- officers observed Munoz return to the alone, apartment building, in green Fore- building green ment in the Forerunner. The parked runner. Munoz Forerunner in officers detained Munoz as exited the driveway building carry- and entered the patted him vehicle and down. The officers ing plastic bag. Approximately white thir- magazine clip found a loaded in Munoz’s later, ty man, minutes Munoz and consent, another jacket pocket. With Munoz’s Hegie, later as identified William exited the green officers searched Forerunner and apartment building approached and maroon handgun found a .380 caliber under driv- Toyota Camry. Hegie, standing with Munoz magazine clip er’s seat. The Mu- found in him, something next to placed into the Cana- jacket handgun. noz’s fit into the offi- The trunk, ry's and removed there white gun cers pen also found a loaded .25 caliber plastic bag. Hegie, carrying plas- the white under the floor onmat the driver’s side bag, tic and Munoz then re-entered the the car. The officers then arrested Munoz. apartment building. government indicted Munoz of approximately p.m. At 10:15 the same eve- conspiracy to possess distribute in and with ning, Hegie officers Munoz observed and exit cocaine, tent to distribute in violation apartment building. got Munoz into a 812, 841(a)(1), §§ 841(b)(1)(B); and black Ford LTD and drove north on Hutch- two possession counts of with intent to dis Parkway; Hegie inson River followed Munoz cocaine, tribute in violation of 21 U.S.C. Camry. in driving the maroon After several §§ 812, 841(a)(1), 841(b)(1)(B), and 18 U.S.C. blocks, pulled Hegie Munoz and over to the 2;§ using and one count of carrying respective side of the road and exited their during drug May transaction.1 On Hegie vehicles. The observed lean- officers 17, 1994, guilty returned a verdict of ing Camry hood of the maroon on all against counts January Munoz. On while Munoz him. stood next to Munoz and 1995, the district court sentenced Munoz to Hegie respective then returned to their vehi- imprisonment concurrent 63-month terms of cles and in drove the direction of Munoz’s Three, through Counts One a consecutive residence. years imprisonment term of five on Count in returned his residence four-year Four and a supervised term of Hegie black Ford LTD. continued drive release. This Court affirmed con Munoz’s in the direction of Route 95. The officers viction summary order. Munoz, charged apartment. Count Four ceiling indictment compartment, In a hidden alone, using carrying a .357 caliber plastic bags containing, officers found three revolver, total, Smith & cocaine, Wesson .380 caliber Jen- approximately grams nings handgun, semi-automatic and a .25 caliber triple typically weigh beam scale used to narcot- pen gun, during ics, and in relation to the a loaded .357 caliber & Smith re- Wesson charged offenses volver, Counts One and additional ammunition. Three, through 924(c). in violation of 18 U.S.C. appeal, On this concedes (our emphasis). & Smith revolver Wesson found in the hid- arrest, ceiling After Munoz's compartment the officers obtained a den cannot form the basis telephonic 924(c) light search warrant and searched Munoz's Bailey. a conviction under (2d Cir.1995).2 ready to or weapon If has a fire someone Munoz, After brandish, meaning of that is within its issued decision Supreme Court law, ready protec- as a they have it brought 2255 motion Bailey, Munoz activities, If precaution. their offense tion for for the firearm vacate integral way part of their it is in that Four.3 Count themselves, drug activity protect to do Discussion do, something protect would that a firearm transaction, protect the money, protect the Regarding Under Charge Jury “Use” nature, having something drugs of that 921p(c). Section is, purpose for that accessible va Court should Munoz contends this law, gun during using that *4 924(e)(1) § because cate trafficking drug to a crime. defining charge to the trial court’s the vehicle, room, it’s it is in a So if it is in a Bailey light in erroneous “use” was cabinet, and ready in a if to be obtained it’s States, 137, 116 S.Ct. 516 U.S. sense, firing or used in more immediate 924(c)(1),in L.Ed.2d Section the threatening, use within is. .that five:year term of imposes a part, relevant meaning of the law. “during upon any person who imprisonment reasons stated firearm makes the preme relation to the district court’s harmless. arid neous crime ... uses or carries § in in § Court ruled relation to by the defendant at 924(c)(1)(1997). light means “active firearm below, predicate Bailey. charge any “an we find the ... operative on “use” at employment” In offense.” in manner However, a firearm.” drug 505. We Bailey, term “use” error to be was erro factor the Su for the Bailey, agree in in ment’s present? In the- in the tion to immediate sense sible so evidence defendant Now, Hs pen gun question indictment? evidence the shows that he could use them drug have those [*] fact, were in for trafficking activity charged that the .380 on to fire or threaten in X if you that, you guns the is were [*] credit contends defendant’s in his car acces- Jennings and if so [*] the these that the govern- did in an [*] guns rela- car. 398-400). (Tr. charge, as it at This defines district defining “use” In 924(c)(1), light “use” under is flawed stated, part: charge court’s charge, Bailey. could Under this Now, matters of give you I have to some “using” the firearms convicted Munoz of things I am simplify I think to definition. ac- though Munoz never in his vehicle even line you third to look going to ask tively the firearms. utilized carry.” Ignore says, use “did where going to “carry.” simply I am However, though the court even is question you use. The instruct about give legal definition claimed did defendant charge adequately charge, in its “rise” them, in relation during and “carrying” a fire- described elements trafficking crimes. 924(c)(1), this as set forth arm under [*] [*] [*] [*] [*] Court in United States Canady, that establishes appeal criminal law substantive direct assert- 2. Munoz's sole government's petitioner's trial is on conduct summation at conviction based ed error wit- to call two longer regarded to Munoz's failure See in reference no as criminal. which is States, 333, 345-47, nesses. Davis v. United see, 2304-06, 41 L.Ed.2d Canady, in United States 3. As this Court stated (2d e.g., v. United Ianniello Cir.1997), (2d de cert. n. Cir.1993). Bailey marks Because the decision nied, -U.S.-, ) : change, properly applied it is retroactive such a 148(1998 ly. appropriate § 2255 relief under Collateral intervening change in an there has been (2d Cir.1997). There, Pimentel, this Court stated United States v. Cir.1996). proximity proof of defendant’s to or firearm, accessibility though necessary aof charge in Under the district court’s finding “carrying” for a case, found the two firearms 924(c)(1), not alone sufficient to present (Toyota were in Munoz’s vehicle Rather, uphold “to a conviction. Id. Forerunner) readily and were accessible ‘carrying,’ defendant’s] conviction [the during conspiracy ongoing to dis that, during establish [also] evidence must findings tribute cocaine. suffi These were crime, drug trafficking to the cient to a conviction under the “car (1) physical pos defendant] either had [the rying” prong §of This Court has firearm, session distinct con previously upheld “carrying” conviction possession, ... or moved structive defendant, automobile, while in place from one Id. another.” easy had access to firearm stored in the ease, present the district court’s drug trafficking automobile crime. accurately requisite would have described the (defendant See 80 F.3d at 677 “car “carrying” Canady elements of as defined in ried” a firearm when he drove to the of a site “carry” the trial court had used the term planned narcotics with a con transaction place throughout charge. of “use” most of the *5 cealed in his ear’s central console beneath the 667, See United States v. 80 F.3d dish); Pimentel, change F.3d 83 at 58-59 — denied, Cir.), U.S.-, 678 cert. 117 (defendant a “carried” firearm when could he (1996). 135, 136 S.Ct. L.Ed.2d 83 access firearm in compartment stored passenger back the by of seat rear pressing import It is of no that the district court defogger button and button on the driver’s ignore charge told the to door); Feliz-Cordero, United States v. 859 “carry.” The critical issue is whether the 250, (2d Cir.1988) (while F.2d 253-54 over concept conveyed the court to district the conviction, turning a “carrying” this Court called, regardless what was accu- that a upheld indicated conviction would be rately grounds upon defined which the the possession defendant who had of narcot 924(e)(1). § could convict Munoz under ics had a loaded under his in an seat charge accurately conveyed the Since the automobile).4 We therefore conclude the er requirements finding Munoz had “car- charge roneous was harmless and affirm Mu ried” the it does not matter that noz’s conviction. ignore the district told the court Thus, “carry.” jury may word if the “even Sufficiency II. the Evidence finding thought [the was defendant] guilty of ‘using,’ the fact that the instruction Munoz also contends the evidence respect ‘using’ properly described adduced at trial was insufficient to support ‘carrying’ jury’s 924(c)(1) § made verdict func- his conviction under because ” equivalent finding tional ‘carrying.’ prove possessed failed to similarly , (1997); 4. Other circuits have found sufficient L.Ed.2d 843 United States v. Riascos- Suarez, 616, § support (6th Cir.) (firearm evidence to conviction un 73 F.3d 623 defendant, "carrying" prong console), protruding der found from driver's side car, - denied, driving easy -, 136, while had access to cert. U.S. 117 S.Ct. 136 e.g., (1996); Baker, inside the car. See United States stored v. L.Ed.2d 84 United States v. 78 872, (4th 1988) 1241, Brockington, (7th (firearm Cir.1996) 874 Cir. 849 1247 trans (loaded pistol kept ported under the floormat beneath in defendant's car and was within defen seat); Brown, — reach), denied, v. the defendant's United States dant’s immediate cert. U.S. 1390, (5th Cir.1996) (firearm -, 1720, 102 F.3d 1401 117 S.Ct. 137 L.Ed.2d 842 - denied, Nelson, transporting drugs), 1323, (8th van while cert. United States v. 109 F.3d -, 1455, Cir.1997) (revolver U.S. (1997); 117 S.Ct. 137 L.Ed.2d 559 concealed be under floormat Pike, 1315, seat); United States v. 82 F.3d hind the Range, driver’s United States v. (5th (firearm Cir.1996) 614, (11th Cir.1996) (firearm found defendant’s car found transaction); car); Farris, and within reach under floormat of 227, (6th 391, Myers, (11th Cir.) (firearm United States v. 102 F.3d 77 F.3d found 1996) (firearm — car), denied, -, glove compartment), Cir. found under front seat cert. denied, --, 1720, cert. -U.S. 117 S.Ct. 136 L.Ed.2d therefrom.”). As has failed to show concurrently in Munoz the narcotics firearms and By raising prejudice resulting from for or green Toyota Forerunner. either cause claim, challenges suf- actually default, appellate this Munoz he cannot now seek this finding ficiency of the evidence of this issue.6 review “in relation were carried the firearms Judgment denying the motion to vacate charges, drug trafficking underlying to” the AFFIRMED. the conviction is jury’s Munoz “used or finding Bailey alter the firearms. did not carried” GRAAFEILAND, Judge, VAN Circuit showing defining requisite precedent our dissenting: “in to” element of relation establish concerning un- The court’s 924(c)(1).5 charge, given, properly § The Bailey v. improper was lawful use regarding relation to” defined law “in 516 U.S. op- had the element of Munoz (1995). Therefore, sufficiency challenge portunity requirements process, of due finding “in evidence prohibited convicting Munoz of vio- The appeal failed to do so. to” on direct 924(c) in- lating absent court Bailey this claim decision is irrelevant to remaining statutory struction on Furthermore, insufficiency. show- absent many carrying. Among unlawful au- for, resulting ing prejudice cause following: point, see the claim, thorities on from, the failure raise this sufficiency of the may not now Gaudin, A motion un- collateral attack. evidence 2310, 132 L.Ed.2d U.S.L.W. appeal. for an der 2255 is not substitute 4611, 4615 Pipitone, See United States gives defen- a criminal Constitution (2d Cir.1995) (“A party who fails raise determine, *6 right to have a dant subsequently en- appeal and issue on direct doubt, beyond guilt of a reasonable his §a 2255 litigate the issue via deavors every with of the crime which he element petition there was cause for must ‘show that charged; is issue, prejudice re- failing to raise 263, 265, California, 491 109 U.S. Carella v. Douglas v. sulting (quoting therefrom.’” 2420, 2419, (per 218 S.Ct. (2d 43, Cir.1993))); States, 46 13 F.3d United curiam) States, 111, 8 113- v. F.3d Billy-Eko United of the Four- Cir.1993) (“It The Due Process Clause (2d that 14 well-settled pow- teenth Amendment States denies bring a claim on petitioner does where liberty, deprive of er to the accused unless raising the appeal, he is barred direct beyond reason- prosecution proves un- subsequent proceeding 2255 claim in charged every of the pro- able doubt for the he can establish both cause less 358, 364, Winship, re U.S. prejudice resulting 397 offense. cedural default and actual attack, prevail if he collateral Munoz can of a firearm "[u]se 5. Court has stated that This trafficking requires drug higher plain crime even [than error] relation to' a burden 'in meets "the government nexus between to demonstrate a showing ‘a funda- that the error amounted to underlying drug trafficking the firearm and inherently a com- results in mental defect which ” 41, Melendez, 60 F.3d States v. crime.” United miscarriage Napoli plete States, justice.’ v. United States, (2d Cir.1995), citing v. United Smith 46 Cir.1994). 31, (2d It is 36 no 32 2050, 2058-59, 237-38, 223, 113 S.Ct. justice that when subversion of deduce (1993). The firearm must 124 L.Ed.2d 138 home, coconspirator arrived at his his purpose respect to or effect with "some plastic bag, waiting, Fore- carrying a white 238, Smith, 508 U.S. at crime.” already or both of the runner contained one Additionally, proof must show gro- bag guns. possible contained It is part integral the firearm was food, cery pet no subversion of but it is items underlying drug and in some manner transaction justice cocaine. Giv- deduce that contained Melendez, 60 transaction. facilitated the case, posture we must of this procedural en the Forerunner did contain assume that bag weapons did con- and that the at that time appeal, to the the usual 6. On direct evidence, sufficiency en- the Government tain cocaine. of the every On joys favorable inference. the benefit 1072-73, 1068, synonymous L.Ed.2d manner it becomes with (1970). Jury relieving Carrying instructions pre-Bailey of “use.” definition á burden violate defendant’s due separate charged of this is a offense' and should be Franklin, v. rights. See Francis process as such.' This was done United States v. (2d Pimentel, U.S. L.Ed.2d Cir.1996), 83 F.3d Montana, Cir.1996) Sandstrom States v. 80 F.3d 667 510, 99 S.Ct. 61 L.Ed.2d 39 Feliz-Cordero, and United States v. 859 F.2d (1979). pre Such directions- subvert the (2d Cir.1988), my cases on which sumption of innocence accorded to accused colleagues rely. persons truth-finding invade the and also solely juries assigned

task criminal

cases; Howard, States v. (2d Cir.1974) only- year:

As we said last justice done in

“If is to be accordance with law, paramount impor-

the rule of clear, tance the court’s instructions be The IRISH AND LESBIAN GAY accurate, comprehensible, complete and ORGANIZATION, Plaintiff- particularly respect essential Appellant, alleged elements crime that must be beyond proved by a rea- doubt____” GIULIANI, Rudolph W. his official ca sonable pacity Mayor City Clark, New York; Bratton, J. official (2d Cir.1973). Byrd See also v. United William capacity as Police Commissioner U.S.App.D.C. City York; City of New of New When Howard exercised his con- York, Defendants-Appellees, right put stitutional the Gov- of proving ernment the burden the ele- County New York of the Ancient Board charged jury’s ments the crimes to á Hibernians, Order of Defendant- satisfaction, not to ours or *7 Intervenor-Appellee. Thus, judge’s. even we bélieve overwhelming proof there the ele- Docket No. 97-7064. not charged, ments we must still reverse. of Appeals, Court not The district court failed to Second Circuit. element; “carrying” it in- disregard structed the it: Argued Sept. Now, give you I have to some matters of April Decided simplify things definition. I think to I am going you to ask to look at the third line says, carry.” Ignore use and “did “carry.” I simply going am you question use.

instruct about

did the defendant them, during and in relation to

trafficking crimes. great variety

Because of the of definitions applied “carry,” can be to the term see

Webster’s Third New International Dic- tionary (1971),we should exercise care “carries,” to see that the term as used in 18 924(c)(1), interpreted such