United States v. Leon Clifford Foster

America, UNITED STATES

Plaintiff-Appellee, FOSTER, Defendant- Leon Clifford Appellant. No. 89-10405. Appeals, United States Court of Ninth Circuit.

Jan.

Miquel Rodriguez, Assistant United States Sacramento, Attorney, California, for Plain- tiff-Appellee. Levine,

Michael R. Assistant Federal Pub- Defender, Portland, Oregon, lic for Defen- dant-Appellant. HUG, Judge,

Before: Chief BROWNING, FLETCHER, KOZINSKI, THOMPSON, TROTT, FERNANDEZ, T.G. NELSON, KLEINFELD, TASHIMA and THOMAS, Judges. Circuit OPINION KOZINSKI, Judge. Circuit “carry gun”?

What does it mean to duelling interpreta- must choose between two phrase. tions of the II 924(c)(1) “[wjhoever, provides Section and Sandra manufac- Leon Foster Ward any police and in relation to crime of vio- methamphetamine. tured 1989 them, or ... pulled drug trafficking Foster while he lence crime got over uses wise firearm, shall, truck carries a in addition to driving pickup was and arrested bed, punishment zipped up bag provided for such crime of him. In his truck vio- crime, tarp, they drug trafficking a lence or be snap-down under a found loaded sentenced imprisonment years____” (empha- a for five 9 mm bucket. Inside semiautomatic scale, plastic carrying a baggies, sis Was Leon Foster bucket were prices. he in his truck some notes with drove with it hand-written bed? word, “Carry” English like a simple and Ward were convicted of con seems Foster precisely problem': which is New spiracy manufacture and distribute meth words amphetamine English truly “Carry” in has simple. in violation 21 U.S.C. two 841(a)(1) differing may It §§ 846. Foster was also con relevant uses. mean to methamphetamine,. possessing transport arrange something in even to for victed of 844, transported: carry my § carrying piano to be “I violation of 21 U.S.C. had way country.” may all the But it firearm relation to across crime, object moving in violation of mean hold an trafficking 18 U.S.C. also 924(c)(1). place § “I conspiracy overturned the one to another: carried unpublished This in an ball and chain wherever I went.” nar- conviction memorandum vacated, disposition, applies particularly weapons. rower sense that decision was Foster, 983, If I say carrying v. 513 115 were to “Don Corleone is United States U.S. (1994), 477, gun” light carry- L.Ed.2d 391 even “Don Corleone S.Ct. 130 —or ing” you intervening Supreme Court case. re would understand Don On — mand, person. across the has a sidearm somewhere on his A we affirmed board. United Foster, (9th synonym carry “pack in this is to v. 57 F.3d 729 Cir. sense Stales 1995). pack heat.” heat are Criminals who obvious- ly dangerous much than those more who do Supreme Court thereafter decided not. States, Bailey v. 516 116 United (1995), caselaw, adopted in- In our we first 133 L.Ed.2d 472 which broad transporting terpreted prong ... a firearm” of definition Unit the “uses (9th 924(c)(1). Barber, 1242 v. 594 F.2d section Foster now could not be ed States Cir. 1979). 924(c)(1)’s firearm, prede Interpreting section using he did not convicted cessor, ordinary usage, the gun during verb actively employ “[i]n rela- said ‘carry’ transportation causing tion crime. Id. at includes to his But, legislative 141-43, transported. Nothing in the at 505. was never be he history charged intended using only carrying with indicates —and reading of the authoritatively hypertechnical or narrow word Bailey answer does Bailey at 1244. After be convicted of ‘carries.’” Id. whether he can heat) (packing panel switched to the narrower three-judge firearm. issued a new Our Hernandez, holding v. 80 F.3d opinion Bailey, that Foster sense United States light (9th Cir.1996). “in 1253 We held that order gun, United States v. Fos- ter, (1996), ‘carrying’ opinion 1177 but that for a defendant to be convicted 924(c)(1), gun in of section the de Id. at 1178. We were left with violation withdrawn. transported the fendant must have firearm 1995 decision. We took case en banc person____ This in our over the about his or her resolve a conflict caselaw means the must have been immedi interpretation a firearm when a ately by the defendant.” Compare available for use is found in a vehicle. United (9th (citations omitted). Cir.1979) Barber, A number of Id. at States F.2d v. Hernandez, Hernandez definition: v. recent cases follow the United States (9th Cir.1996). Lopez, 100 F.3d Cir.1996); Steinberg, weapon actually States v. 99 definition is not that the United (9th Cir.1996); 1486, 1494 person. Rather, F.3d borne on the it is that Loaiza-Diaz, weapon easy v. F.3d Cir. remain within reach while the Willett, 1996); United States individual is motion.3 Where an individual (9th Cir.1996); Staples, walking, certainly hand amounts (9th Cir.1996). 461, 464 gun but so a or carrying, does in a holster bag. a shopping The essence is that Choosing between the is a two definitions weapon person can be moves go call.1 One need no farther than close swiftly put to use. Where is in the individual Dictionary Law ammunition Black’s find ear, actually touching a he need not be a for the nar- sides—but bit2 more for both weapon to make it move with him.4 Because definition. The broad construction rower unison, any the car and contents move in support part gets from the first some weapon that within hand’s reach while the about, bear, sustain, definition: “To bear ear is in motion can be carried. said to be remove, transport, convey.” or Black’s Law true, course, The would be if the same 1990). But, Dictionary 214 the defi- ed. weapon individual had the concealed upon nition continues: “To have or bear or forfend, or, compartment, train a bus heaven person, weapon; or about one’s as a watch airplane. being locomotion not essential.” Id. More- over, separately “carry Black’s defines Bailey leading case on section wear, bear, weapons” arms or as “[t]o 924(c)(1), we can it ana- so also look to how upon person carry them or in the cloth- lyzed puzzle. for “use” clues our similar to. use, pocket, purpose for ordinary, The Court first considered dic- purpose being ready for the armed 143-45, tionary meaning. See 516 at U.S. offensive or defensive action in case of a yielded 506. When S.Ct. at several person.” conflict another Id. Because interpretations “carry”' it does for —as —the carrying weap- we concerned here with “placement Court purpose looked ons, spe- grudges, not furniture or the sense statutory scheme.” Id. Court (so weapons speak) cific carries more Congress that since stressed used two dis- weight. terms, they narrowly tinct must be defined

There are those who enough up have criticized that neither swallows5 the other. definition, definition then, narrow because it seems to exoner- Under the correct there gun readily ate a ways defendant who has acces- must be some use a but not it, passenger carry sible within the compartment and others to not car, upon 145-47, moving actually but not at borne use it. Id. 507. person. smugly pointed Bailey These critics have Court therefore defined “use” narrow- purporting' ly employment.” out that circuits to follow the as “active there is Yet narrow definition it in nothing special have had to abandon about “use” that makes uphold definition, susceptible par- order convictions in such circum- to a narrow while See, e.g., stances. Cleve- allel the same terms statute are defined (1st land, Cir.), cert. broadly; happens so that “use” came -, Court, granted, “carry.” 118 S.Ct. not Construing before the (1997) Willett, (citing materia, L.Ed.2d 90 F.3d at in pari the two terms no we see cases). 406-07, among defining “carry” other This criticism is broadly basis for “use” key aspect ill-founded. The narrowly. narrow is defined 1997), expression 1. call” is lying top "Close another with dual where held that aof meanings: go way A decision that can either on the couch was not it. misfortune, narrowly avoiding being as such shot gun. missed at and someone might thought 4. large, The car be self- propelled shopping bag containing amount, both the Variously 2. defined as a a device small put and the individual. quarter. horse's mouth or half of helped 3. A lack motion in Unit defendant up, small 5. Eat birds. Henson, ed 123 F.3d 1226 Cir. possession anywhere context within else. looked to different

The Court also bullets, 145-47, Thus, a gun partially without disas- Id. at statute. the broader sembled, compartment in a locked to which “use” used It examined how 924(d) key the driver not have the does would also argued § the term 18 U.S.C. to be carried the broad meaning in deemed section same should definition; 924(e)(1). “use,” we think as much naked “Carry,” unlike does possession situation itself. Bailey .as the get so appear elsewhere section definition, then, encompasses The broad However,- the Court note help there. mere something close to the “use,” broadly, too the term if defined Bailey said was not within “possess” synonymous with become would —a 924(c)(1).7 scope section Id. at used elsewhere. term 143-45,116 reading A S.Ct. at 506. broad speculate8 purpose We can also to what danger by making “carry” presents a similar prohibition carrying gun a a on “transport.” synonymous with As with it drug relation to a violent crime “transport,” “possess,” used “trans- might Using guns makes carrying serve.9 “transportation” many places at porting” and dangerous. those crimes more A deal- See, e.g., 18 in the statutes. U.S.C. packs er who is more likely heat to hurt 922(a)(1)(A), 922(a)(1)(B), 922(a)(2), §§ provoke someone to vio- someone else 922(a)(5), 922(e), 922(f)(1), 922(a)(3), 922(a)(4), bag tarp lence. A in a a in a 922(h), 922(k), 922(n), 922(i), 922Q), 922(g), substantially poses truck bed less risk. In- 925(a)(4). 925(a)(1), 925(a)(2), 924(b), If Con- deed, weapon of carrying Black’s definition 924(c), in section gress “transport” meant “purpose use, focuses on the or ... say knew how to so. purpose being and ready armed for offen- sive defensive action case of a conflict Bailey Another lesson draw from is person.” with another Black’s Law Dictio- that, may as “use” not be defined so nary at 214. encompass possession, broadly as to mere may “carry.” interpreta- split Barber Other are The neither The circuits the issue. dangerously doing close to Second and follow narrow defini- tion comes Sixth Giraldo, possession moving of a tion. v. 80 F.3d prohibiting See United States Cir.1996) 667, (2nd (“[A] adopting person the broad 676 cannot vehicle.6 Cases definition ‘carry’ point prohibits out that be said to a firearm without at least vehicle, possession period. showing gun is within moving See that the reach offense.”) (cita- Cleveland, But 106 at 1068. it’s not the commission10 of the F.3d omitted); moving why possession in a is tion States v. Riascos-Sua- clear vehicle United 22,230 motion, (remarks carry Representative Casey) a vehicle used 6. A vehicle 22,234 Harsha). furniture, (remarks Representative strong evokes nor vehicle that feel- “carry” only pro ings empathy. The references concerned word, posed apparent to delete amendment ly people police might affect because it such said, Bailey's unlikely holding 7. That gun, then men were authorized who question directly obviously be- decides gun. using an assault without committed us. One of the cases before the fore "Carry” Representative Ca was deleted Bailey squarely posed question of a car- 924(c)(1), eventually sey's of section version car, yet ried in a the Court remanded for consid- version, included, Representative "carry” Poff's Bailey, carry prong. See 516 U.S. eration Ramirez, passed. 482 F.2d See United States v. 149-51, 116 S.Ct. at 509. 807, 1973). (2nd Cir. 814 mercifully legislative history There is little is, aiding, 9. That the sense not what serve in original The burden our discussion. good Martina or Julia are so Navratilova Child version of the was added as a floor section at. by Representative Poff. amendment See United 1323, Anderson, (D.C.Cir. 1327 States v. 59 F.3d banc). 1995) (en may something general refer like aim of 10. Commission also the section (in military) appointment, that violent crimi committee or seems to been to ensure sentences, carrying sense out an longer and to but here it is nals receive deter the used 22,231 (1968) activity- guns. out in the sense of Cong.Rec. use of See 114 —not Poff); (remarks gun, Representative though. see id. at also 708 (6th Cir.1996) (“[T]he States,

rez, 616, prohibit. v. 73 623 See United 447 F.3d Bifulco 381, 2247, 387, 2252, immediately firearm must be available for U.S. 65 (1980); or within his or her L.Ed.2d 205 see also United use—on the defendant (9th reach.”). First, Fourth, Latimer, Cir.1993) Seventh, F.2d (“The along lenity broader test rule of rooted in ‘the Tenth Circuits use a instinc Cleveland, against languishing pris tive lines of Barber. 106 F.3d at distaste men See (“[A] clearly gun may they be ‘carried’ in a vehicle on unless the lawmaker has said omitted). ”) (citations necessarily being immediately ... without should.’ being while it accessible to the defendant lenity applies only The rule of where Mitchell, transported.”); States v. United ordinary a statute has resisted the tools of (4th Cir.1997); 104 F.3d 653-54 United statutory interpretation. See Hanlester Net (7th Molina, States v. Shalala, work v. F.3d Cir.1996); Miller, Cir.1995) (“Canons statutory construction, Cir.1996), 1259-60 overruled on Lenity, employed such as the Rule of Holland, grounds, other States v. persists where ‘reasonable doubt about (10th Cir.1997). F.3d 1353 Other circuits11 scope a statute’s even intended resort12 after See, clearly adopted any e.g., have not rule. structure, language, to the legislative Fike, history policies motivating of the stat (5th Cir.1996) (gun under driver’s seat was ”) (citations omitted) (emphasis ute.’ in origi carried); Willis, 89 F.3d nal). ordinary thinkWe these tools of inter Cir.1996) (gun passen- 1378-79 pretation point definition; narrow the carried); ger compartment was (for Foster) they worst Mr. scope leave the Farris, 395-96 924(c)(1) of section If Congress doubt. Cir.1996) (passenger may backseat put people wants us to like Leon Foster in gun in glove found to have “carried” com- time, prison longer for a it can re-write the partment). Recently Eighth Circuit said instructions, give law perhaps us clearer “assume, it deciding” would without that it by using “transport” the word in section ready availability had a requirement, then 924(e)(1) as it does in various other sections held that a in well behind the driver’s of the firearm statutes. available, readily was seat and hence carried. Nelson, See United States v. holding We reaffirm our Hernan (8th Cir.1997). Thus, circuits all over dez and that “in progeny order for map map are all over the issue. defendant to be of ‘carrying’ gun convicted 924(c)(1), in violation of section the defendant balance, arguments point On must transported have the firearm on or the narrower definition: It fits the more about his or person---- her This means the specific definition, dictionary Bailey follows immediately firearm must have been avail closely, more harmonizes better with the full Hernandez, able for use the defendant.” statute, likely purpose and flows 80 F.3d at 1258. 924(c)(1). recognize, section though, We may reasonable differ. A argu minds final Ill ment for the narrower definition is the rule lenity. hand, law ambigu Where criminal General rule in we must next ous, wary imposing we are criminal liabili ask whether immediately Foster’s ty for conduct law clearly that the does not available for wasn’t. driving use.13 It While quite argued 11. word point, plain Electricians use this in a different has not this but even under way lawyers. say than would Some that our use error have review we would to reverse Foster’s is closer to that of musicians and comedians. only conviction. The dissent contests whether fairness, "seriously integrity, error affects the 12. Resort to a sometimes refers vacation destina- public judicial reputation proceedings.” tion, but not here. States, - U.S. -, -, Johnson v. United 1544, 1549, (1997) (inter 137 L.Ed.2d 718 argues The dissent must review for error, omitted). quotation plain nal See dissent at 716. which is error that It occurs where does, mainly stays. Spain punishment rain in since Foster’s "conviction and sinking drug Judge gun. To use traffickers. method reach could not Foster truck, stop get Kozinski uses to force his one-size-fits-all he would have had truck, snap- me out, open conclusion reminds debate a wise go to the back of containing the unzip bag lawyer once warned me eschew: tarp, and down this, midnight gray, battleship gray? Although might do he could or is he gun. Moreover, majority appro- had quickly sidesteps as if he had nearly so not do appellate pursuant If that easy priate hand’s reach. review of issue gun within test, available, plain immediately relegating plain then one to the error error counts trip14 analysis afterthought to the of a footnote. never take a with a could being immediately doing, majority permits avail- without it so a defendant vehicle trial absolutely make no sense who conceded the issue at sim- able. It would appeal. ply away rule but hold that to walk from it adopt the Hernandez practical immediately available —the gun was “puzzle,” This is not a and we not need do us holding would return of such a be to effect all, “carry,” “clues” to solve it. It’s that’s to Barber.15 and it’s a vehicle conviction therefore REVERSE the drug trafficking Ambig- to a relation crime. for a firearm REMAND Slippery? Or this a case uous? Elusive? resentencing. portion We VACATE that “nothing good thinking either or bad but opinion deals the sec- panel which disrespect it so.”1 I makes mean 924(c) Foster, conviction. See tion writer, Judge Kozinski. He is a readable opinion the remainder of 730. We leave not alone. The Second and Sixth and he is intact. mistake, Circuits made same Judge Learned warned mistake Hand TROTT, Judge dissenting, with Circuit viewing solely this as a verbal against Judge T.G. Judge whom Chief HUG rather one with roots and con- problem than join. NELSON Hand, real Learned sequences world. Judge sings a My good Kozinski friend (3d 1974). Spirit Liberty ed. 81 Nevertheless, respectfully song. Sirens’ astray with inventive but he leads us believe What does mean? in attacking obfuseatory Instead of conceits. good a on the analytical way perfectly We have case straightforward the a vehicle, books, case, only reaches the Barber that not “carry” in context of motor respect right to the word as a carried result proposition casts the “duel” he case, “carry” súb- in a but illuminates vehicle language English on in less—too Judge analysis. In Unit and in Kozinski’s everyday to bread flaws tle understand. Barber, v. 594 F.2d 1242 Cir. “carry” metaphysical takes on ed word butter 1979), very presented issue illusive that we addressed proportions so diaphanous gun with a lenity raft to Barber had been arrested throw the as a life here. rule not, else, Foster, gun to the took the act law does make crimi- someone for an that the not person such a How do we know when There be no room for doubt that truck? nal. can there, complete ‘inherently it was results in a carried it and whether circumstance said, ‘presents exceptional miscarriage justice’ to "I relation the crimes? Foster ’’ States, truck,” pistol Davis United have a in the back circumstances[.]‘ 2298, 2305, 346-47, says only possession, carrying, and it not admits (1974). got nothing the truck. L.Ed.2d about how the enough record evidence on this There’s chemically journey, or altered 14. A fall beyond guilty doubt find Foster reasonable state of consciousness. theory, devel- since the never this govern- necessary prove it. The oped the facts dissent, government, rais- also 15. The but not theory showing proceeded Fos- on the ment possibility gun not Foster es the carried prove enough truck was ter had truck, driving he took but earlier when at the was under our caselaw it—as 714-15. See dissent at the truck. time. waiy inferring from has to be conduct One (as opposed inferring state other conduct Hamlet, conduct). Shakespeare, 239-51. Act Scene How do we know mind trucks, compartment, wagons, ships, glove planes, locked we were or even upon beasts of called to decide whether the was burden. 924(c)(2), § “carried” 18 U.S.C. added).2 (emphasis Id. 924(c)(1). said, §

predecessor to We definition, therefore, clearly This includes transportation of a ear firearm Although Congress specifically never ad- track; whether the item carried is within question dressed the whether the term reach is irrelevant. encompass “carries” was intended We followed Barber in “transports” “possesses,” we think that Streit, Cir.1992). Streit, In ordinary meaning of the term em- charged defendant inter alia with transportation braces Barber’s “carrying” a firearm crime of vio- weapon. ordinary usage, the verb “car- lence, 924(c). § violation 18 U.S.C. Id. ry” transportation or causing includes During deliberations, at 897. asked transported. legislative Nothing “holding gun whether hand one’s [would] history indicates that intended carrying?” be considered The trial court any hypertechnical reading or narrow responded instruction: the word “carries. jury, you Members of are advised that Id. at 1244 ‘carrying’ a firearm includes purposes related to the holding embracing “transporta- This commission of a Carry crime of violence. tion test” as much then made sense as it does transport can possess. include “Carry- now. etymologi- The word derives ing” not be hyper- should construed cally Carras, Latin from the word “carras.” technical or narrow way. turn, cart, recog- means vehicle. Id. approved instruction, at 899. We car, nize this root in such Latin words citing Barber as our authority. carriage, and cart. Third Webster’s New Hernandez, In United States v. Dictionary English International (9th Cir.1996), however, a ease (3d not in- 1971) Language Unabridged 343 ed. vehicle, volving a motor we failed to acknowl- (‘Webster’s”), upon which in its Second Edi- Streit, edge either Barber or and we did not tion Bailey relied untidy confine our holding either to its facts States, 143-45, 516 U.S. or to its nonvehicular This context. over- (1995) L.Ed.2d sight us to caused veer off course numer- States, 223, 229, Smith v. United 508 U.S. ous subsequent involving cases firearms 2050, 2054, (1993). 124 L.Ed.2d 138 cases) (car applied vehicles inap- where we as, Webster’s “1: defines to move propriately “immediately the available for (as supporting while vehicle or one’s use” test described in Hernandez. We left arms): hands or appreciable move an dis- dust, transportation Barber’s test in the dragging: tance without sustain as a burden explanation given, logical reason bring or load along place.” and to another gives otherwise. Hernandez us a perfectly many Webster’s at 343. Webster’s lists other good carrying test for when vehicles are not then, definitions of the word and differen- involved, give test Congres- but the fails to tiating “carry” from synonyms, some of its sional will meaning its when vehicles are states: Congress involved. I recognize doubt would CARRY moving indicates to a location Judge Kozinski’s distinction advancing its away some supporting distance purpose. Among glaring defects, other maintaining ground. the Orig. off indicat- gives drag exposure traffickers the least to cart, by movement car or it is a natu- the they law’s reach when are the most vul- ral word to use in cargoes to and loads nerable to detection law enforcement. ref. Eighth Eighth Circuit subsequently held in United States v. Circuit held this defini- (8th Cir.1991) Freisinger, 937 F.2d Willis, Bailey. tion survives "carrying a firearm in a vehicle within the (8th Cir.1996). F.3d ordinary 'carrying of a firearm.' 924(c)(l)’s my drugs and purpose and to I am. somewhere § explore To prisons full trap, sight. like to Law books are I’d out and escape purely semantic the people cases of of whose started a traffic perspective the issue from come at Maybe stop. put my gun I life-threatening conduct will the trunk whose those outlaws seat, thing in 18 but one is sure: it will punish to or under explicitly set out 924(e)(1). course, My guns I This, hidden until need it. must be § U.S.C. public I remain when I’m in until drug trafficking offender hidden perspective of Otherwise, perils they his them. are a ticket to need himself from who shields prison. My my. strength A becomes arming with a firearm. federal himself trade a state- weakness. drug with firearm makes trafficker to kill to willing he is succeed ment that police They stop But the who us wise. conjure this perspective I do not crimes. drugs know that a and are linked firearm emerges every of it air: detail out thin so together glove, a hand sometimes like statute, from plain language from the go lengths guns to to hide our unusual leg- compelling pellucid purpose, from the cars we are most to our vulnerable when enactment, and history behind its islative occasion, hide detection. On them Con- drug traffickers from the behavior of seat, only in the trunk under the but even Here it is: gress sought to manacle. Yes, We under hood. under hood. my compartment weapons engine “conceal I trafficker. You’ll find am a 1) of a car for two reasons: so story every [we can] volume Fed Second in almost ready gun, police to plans I have access do deliver and Fed Third. 2) it; easily my can] new not discover so methamphetamine [we I cooked to weapon if customers, always knowledge police I I take do I do do: disclaim so what Webb, my my to meet discover it.” United States drugs car (9th Cir.1997). my Good luck con- parking in some lot. I take F.3d buyers course, rip vincing that a hood weapon, protect me from customers, is mine. I off, a rental car or even the trunk disagreements with criminal, I’m may good but at least police. from the it.3 you judges when You were correct circuit surprise delight I very imagine my when “trafficking in So narcotics

observed majority opinion in this case and use of read the often related Willis, although my gun I “carried” learned that firearms.” United States Cir.1990) “during and in relation (quoting United the car crime,” Ramos, longer “carrying” I was no n. 3 States v. secretly transported Cir.1988)). it to Mine is an outlaw business. “immediately avail- good because it wasn’t faith sale rely don’t covenant And for able.” Thanks for distinction. keep business affairs dealing fair our we know how beat or call the cover. Now We can’t file lawsuit an even keel. 924(c)(1). though § it can be law is Even police things go sour. The U.S.C. jury beyond a us, to of a proved fire- the satisfaction self-help usually use so with to the firearm that I carried game. If I have reasonable doubt power of the name —is hood, it trunk or under to, police. to stick in the I it out with the might even shoot in transported it I and those then Sentencing The Guidelines new meth, fact, as a matter my I to sale rough. In relation mandatory mínimums are beyond I of the statute law am reach anything to have to do with don’t want particular to car, address get my I I stash drafted police, when to so meaning in the pointless “Less has wholly missile warhead. risk" Judge Kozinski makes business, Second, tarp Judge bag on a a a under a but here. statement that in insurance substantially one poses "less than stop segments. truck bed risk world action Kozinski in sees two drug respond I with in a trafficker's hand. thinking that This the kind Risk when? First, another risk” here is "less comments. police believe gives to officers who ammunition po- game. misleading a bottle word Anthrax in ivory in tower. we live substantially than anthrax ses "less risk” 230, problem. thought carrying my I I fire- Id. at at S.Ct. add- available, ed). immediately arm and that it was guess you

Ibut didn’t. in Justice O’Connor held that another flaw Thanks. making such a distinction was that it “does violence not to the lan structure and expos- I choose this unorthodox method of statute, guage of the purpose but to its as consequences Judge Ko- untoward 240, Id. well.” at at 2060. “Lan S.Ct. opinion respectfully I zinski’s because believe said, guage,” she “... cannot interpreted highly analysis his scholastic suffers from a apart from context.” Id. at at S.Ct. preoccupation subtlety and is divorced purpose 2054.4 She identified the of this drug from the real traffickers street world arising Congress’s statute as concern Only to Congress sought person address. a guns “drugs dangerous com a [as] in an trained American law school under the bination”; pointed and she out in postulate Soeratic method could the formal percent “56 of all murders in New York were an- but fanciful freeze-frame distinctions that related,” drug figure and that the same firearm imate conclusion a trans- Washington, per high D.C. was “as as 80 ported way drug car on trafficker’s 240, 113 cent.” Id. at S.Ct. at 2060. to a sale is not “carried” him. The courts supposed will, interpret Congressional are proposition Smith stands for the that there not contrive sterile artificial lines. The stat- ways are different within this statute interpret ute we here on its face covers a gun. way “use” can be to One use it as a “carrying.” weapon, it another is to use as an item seem to have a short institutional Similarly, barter. would think that as memory. impressed nar Once before we firearm, ways there are different to use a statute, reading row on this Supreme and the ways carry there also different it. wrong. Court told us were hand, way your One is in another is to v. Phelps, Cir. your it in the trunk of car. 1989), trading exchange we held that lenity, As for the rule of Justice O’Connor for narcotics could not of a constitute “use” warned possibility that “the mere of articu- relation to a lating ... narrower construction does not The Eleventh offense. Circuit lenity applicable.” itself make the rule of Smith, disagreed with us United States Id. at at 2059. With all re- (11th Cir.1992), 957 F.2d 835 and to resolve spect majority, to the the use of the here rule conflict, granted cer Court unpersuasive makeweight more than States, tiorari Smith v. United 508 U.S. substance. No trafficker in the world 223, 113 Rejecting S.Ct. at 2050. our “fine (including pre-trial Foster as shown distinction,” metaphysical id. court) memo the district would make this S.Ct. at said: distinction, not one. significant There is a argument flaw to this restricting favor of meaning [in of “to I’m at a compulsion loss to fathom the using use” firearm to as firearm for read relates vehicles purpose]. its intended thing It is capacity engage constricted manner. one say ordinary midnight gray/battleship “uses a gray debate admirable, using firearm” includes a firearm indulgence simply leads weapon, since that is purpose astray. irony the intended majority’s opin- us of a firearm the example recognizes “use” that ion is that it the weakness itsof immediately most cramped analysis comes to mind. But it is own carry- when it defines that, quite result, another to including beyond conclude as a on-the-body-posses- phrase sion, possession also excludes other use. where the firearm is “imme- at -, Supreme subsequently statutory 4. Bailey, The Court us reminded scheme.” 516 U.S. statute, that we construe in a Judge words at 506 S.Ct. Kozinski's only must games prove my point: pur "consider not bare word context and placement but purpose pose word also ambiguity. its in erase Thus, But, stops question given in a Judge Kozinski vehicle case diately available.” logical application proof. rational this boils down to matter of If short prove drug vehicles. can that a step to motor trafficker transporting a firearm in. a motor vehicle application this new test to usual An drug and in relation to trafficking stop illustrates fickleness. traffic scenario crime, (or put he that so carried it when he step Suppose asks Foster an officer vehicle), “carrying” in the then has been the officer checks his of his truck while rear charged. has If established as the crime runs him for is Foster license and warrants: sufficient, proof requirements isn’t then the standing he is because now of the statute are not satisfied. As then if his next to it? What Foster retrieves right said, Judge, Kennedy now Justice “the ‘in zip-up bag containing his from the license to’ ... ... language make[s] relation clear firearm, secretly hide the continues to prosecuted person [pursu- that a [cannot] Surely Judge gun from the officer? committing entirely this statute] ant to for test, the firearm as Kozinski’s he unrelated crime while of a fire it if longer carrying Is he he does so. he no Stewart, arm.” United to the front of the truck or then moves' Cir.1985), overruled on other compartment? All passenger returns to Hernandez, grounds, at of this makes for fun the Socratie class- room, work but it does not on the streets of Supreme Court similar The made observa- America, what had in which is tion in Smith: legislation. mind when it drafted persuaded We are not that our construc- Cars, course, peo- designed are phrase tion of the “uses ... a will firearm” ple things place place. Cars from applications. post, produce anomalous See person when it function as extensions (example using to scratch objects. A is sim- transporting car comes head). already have one’s As noted ply transportation a means of a holster. —like later, explain greater will detail figured this out 924(c)(1) requires -§ de- It car fi- Fourth Amendment search cases. firearm, fendant “use” the but also he nally becoming tired useless differences “during to” use it relation open constitutional distinctions and declared result, As a the defen- crime. every place everything car season who “uses” a firearm to scratch his dant object conceal the of a search. could head, purpose, or for some other innocuous said, light The Court “We conclude [in punishment for that conduct would avoid practical generated by the old rule] confusion altogether.... adopt it is that' one 'clear-cut rule to better (citations 232, 113 at 2056 508 U.S. at S.Ct. govern eliminate automobile searches and omitted). requirement ... set forth in the warrant [, 442 [Arkansas v.] Sanders have circuits said? What other (1979) 2586, 61 L.Ed.2d 235 ].” S.Ct. Califor- circuits, Looking opinions other Acevedo, 565, 579, 111 nia v. 500 U.S. they Kozinski “all over Judge concludes (1991). 1982, 1991, 114 L.Ed.2d 619 Given map.” only thinking makes again, Once meaning of con- vehicular disarray He there is proclaims it so. where text, suggests anywhere vehi- none, as a and then uses it rationalization cle will do. First, Fourth, Fifth, Sev- holding. Parenthetically, agree if I even were enth, Tenth, Eleventh, Eighth, and even the holding, would still Judge Kozinski’s today general be in Ninth until all seem to transported guns conclude that all in vehicles summary of agreement. Here is a what each crime are relation to say. available,” “immediately or at least that agree with the properly “[W]e. could so find. As First Circuit: instructed travels, Fourth, Seventh, trafficker, and Tenth Circuits car does so may for the be ‘carried’ a vehicle gun. 714 924(c)(1) necessarily § without

purposes binding precedent remains on this court.” Willis, immediately to the defen being accessible 89 F.3d at being transported.” dant it is United above, Tenth “In light Circuit: of the our (1st Cleveland, 1056, v. 106 F.3d States cases, pre-Bailey correctly interpreted, hold — Cir.1997), -, granted, cert. U.S. government required prove that the is (1997). 621, 139 L.Ed.2d only transported the that defendant fire- “And, Fourth Circuit: because the arm in a vehicle and that he had actual or placed in the trunk the automobile the constructive of the firearm while journey point the [of sale] to the transfer doing nothing Bailey see so---- We obviously being plain the ‘earned’ pre-Bailey carry- conflicts with our ‘vehicular term, meaning of the firearm does not Miller, ing’ line cases.” United States v. simply to be ‘carried’ is not cease because (10th Cir.1996), 84 F.3d 1259-60 over- readily accessible the offender.” United grounds, ruled on other v. (4th Mitchell, v. States F.3d 653-54 Holland, (10th Cir.1997). F.3d Cir.1997). presented Eleventh Circuit: “The evidence here, “When, the defen Fifth Circuit: by enough support the Far- knowingly possesses dant firearm a mo ris’ gun charge. jury conviction on the during tor uses vehicle and the vehicle originally agents heard Bush told crime, underlying commission of the then as Farris; gun belonged gun present was matter of law the firearm is carried in a car from drugs being which were distrib- drug-trafficking purposes offence for uted; up drug Farris set deal was 924(c).” Muscarello, § States sale; make the and Bush never left ear Cir.1997), grant F.3d cert. which remaining contained the cocaine and —ed, -, 621, 139 L.Ed.2d gun. jury From this the could find that (1997). Toyota drug was as a used distribution question Circuit: Seventh “The before us center and that Farris knew firearm was gun is not where the was located at the time differently, automobile. Put arrest, but rather did the defendant glove could find that the firearm [in gun drug and in relation compartment] [, being by was carried Farris trafficking It does not matter crime. where backseat,] who sitting was in the vehi- arrest,____ gun was at the time Farris, cle.” United need not concern with [W]e ourselves (11th Cir.1996). 395-96 question of whether was within im- debating While we have been this case en likely Not mediate reach. was the banc, granted Court has certio- carried relation to the rari in Cleveland and Muscarello. I am cer- placed crime at the time that was opinions tain our will contribute compartment drugs, with it was also final resolution of this issue. surely carried in relation to the crime when it transported ear the same com- get How did the firearm in the truck? partment drugs possessed that contains the intent to distribute.” United States v. Yet another problem serious exists with Molina, Cir.1996). 931-32 majority’s appeal: they resolution of this

Eighth Freisinger, Circuit: “As said in restrict question the ultimate in the case to 387,] [937 F.2d at “when a motor vehicle is carrying whether Foster was “when he used, carrying weapon takes aon less drove with it in problem his truck bed.” The meaning than carrying per- formulation, restrictive on the recog- this freeze-frame Molina, son. The means is the vehicle.’ nized the Seventh Circuit in Nelson, 1326 that the loaded didn’t crawl itself into (8th Cir.1997) fact, the truck bed of Foster’s ear with the incrim- “our prior Freisinger, [holding decision inating paraphernalia than more scale, usage common of carries baggies, includes the O’Haus and the Bailey, Molina, price a vehicle survives repeat ] and list. To “It does there. I remember gun the time of rattlesnakes out stand- the was at not matter where pickup they arrest, ing not concern our- the were ... need behind [W]e the gun the question searching They of whether me I with the the vehicle. asked if. selves gun any weapons my person, [T]he immediate reach---- on guns was within had or to the traffick- weapons my person, carried in relation knives I on [was] placed no, not, at time that it was in crime the I responded that I did did drugs.... compartment the pistol the the have a back the truck. I of that, drugs— added). the and the relation between firearm (emphasis informed them of all, is, of after the core the offense-ns which examination, On cross Foster reaffirmed by relation to each their best established knowing possession transportation his other, by the between own- and not distance gun the truck. his gun the at moment of arrest.” er and the Now, you Q. gun you had were Molina, (emphasis 102 F.3d at 931-32 add- arrested, here, that 9 mm that’s one ed). ease, strong Given the evidence gun? panel opinion, arrayed in the as Foster, Cir.1995), States v. Yes, A. sir. why jury not have concluded cir- could the comprehend, Judge fail In a footnote I gun cumstantially that Foster carried Foster, says, “How Kozinski do we know that placed when he the truck? else, and not someone took the fact, deny did not In Foster truck?” One has to read Foster’s testi- possessed it even that was or that he mony and his trial memo to answer this alleged only Foster that the he carried it. question. untenable ‘‘during and in relation element Given the rest related evidence explained adequately to the charge was not elsewhere, the truck and the back of jury proved. pre-trial memorandum was attorney concluded related May Foster’s filed drugs conspiracy, both con- carrying element chose not contest tinuing attempt Foster’s to extri- charge, ploy it with offenses. and even conceded himself from commonly confession and avoidance: cate avalanche called evidence against by claiming him he carried 2. Defendant’s Position hardly credible and not shoot snakes is is the Defendant’s Leon Foster [sic] It juror single of a raise a doubt mind position he is not involved support it. The evidence to who heard amphet- manufacture distribution overwhelming, especially jury’s conclusion it is the Defendant’s amines. In addition light it. when viewed in the most favorable to position at the- drugs that the found resi- was Since he not dence were his. illegal activity involved there was appeal survive Does Foster’s of the law him violation plain review? error in his vehicle. As around the firearm Here, however, is which a serious twist such, guilty any charge, he is in a footnote: Judge Kozinski brushes aside object trial to the definition Foster did not lawyer might it ironic that Foster’s One find “carry” him or to being used to convict client’s involvement understood his charge. any aspect that element “carrying,” yet do not. challenge utterly He failed question about Fos-

Any lingering whether promised in his trial and focused instead ter the firearm or whether he memorandum on whether put his testi- it in trunk answered relation to” prove “during and in could trial: mony Thus, on direct examination Judge Kozin- assuming that element. in his definition my trunk I ski is correct new A. ... In the back of had “plain” on that an error has become bag a 9 millim- zip-up little that had blue object requires mountains, us appeal, failure to I had Foster’s eter over in analysis subject plain error this issue to there’s a lot of where ride because 52(b). statutory face us of pursuant to Fed.R.Crim.P. See John our to remind — States, U.S. -, -, authority. v. 117 limits on our son United (1997). 1544, 1546, In 137 L.Ed.2d 718 S.Ct. nutshell, assuming In a that Foster was Johnson, plain Supreme Court held that plain “carry,” of I the victim error as to outlined in United v. error review as States still to would refuse under Olano exercise 1770, Olano, 725, 507 123 U.S. (1) our Given discretion reverse. the over (1993) applies appeal on direct L.Ed.2d 508 (2) whelming guilt, concrete evidence of to matters to which defendant not sensible observation in Molina that whoever object explained its at trial. The Court rea put surely it, car carried soning as follows: Foster, (3) unpersua this case Foster’s governs its [I]t is which terms [Rule 52] although sive defense he “carried” the appeals judgments direct from of convic- gun lawyer’s in his car—his own words —he system, tion in the federal and' therefore “during did not do so relation to” governs against We case. cautioned crime, drug Foster’s conviction 52(b) any expansion of Rule unwarranted justice. miscarriage I not of am con Young, v. 105 United States U.S. beyond vinced all doubt that the “error” does (1985), S.Ct. 84 L.Ed.2d 1 because it “fairness, seriously integrity, affect the balancing skew Rule’s ‘careful “would public reputation” of this or other partici- of all encourage our need to trial judicial proceeding. v. See United States pants seek a fair trial and accurate (9th Cir.1995) (on Olano, 62 F.3d against first time around our insistence Court); Johnson, from the remand injustice promptly re- obvious — at -, 1546; U.S. S.Ct. at dressed,’ id. at 105 S.Ct. at 1046. Perez, 116 F.3d Cir. appropriate Even less than an unwarrant- 1997) (en banc); Uchimura, expansion ed of Rule would be the 1282, 1286-87(9th Cir.1997). exception creation out of of an wholeeloth least, very At the I would remand this case it, exception an which we have no au- for new on carrying gov- trial so that the thority to make. ernment can have an opportunity —now — Johnson, -,at U.S. S.Ct. changed we law—to use the Molina (citations omitted). theory try Judge him. convict Kozin- Johnson, I beg After Olano and to differ refusing really ski’s reason for to do this is Judge Kozinski’s our assertion that re- quite arresting: the government has not independent view of this ease is somehow of opportunity. for this asked Of course! The 52(b).5 I support anywhere Rule find government relied at trial 1989 and relies sweep-the-chess-pieees-off-the-board appeal here' on on Barber and Streit —and fact, pronouncement. Johnson itself dic- quite properly so. Foster did not even con- contrary: tates to the test at trial. are the ones im- argues that Petitioner she need not fall providently pulling rug out from under within the “limited” and “circumscribed” them, rely and we now on our of alteration Olano, structures of because the error she post undoing law facto cases “structural,” complains of here is and so is deny opportunity to ad- 52(b) altogether. outside Rule But case our holding. new It is seriousness the error claimed does not day” inability “too late because of our remove consideration the ambit provide coherent and stable direction to the Federal Rules Criminal Proce- parties. holding apotheosis Such is the dure. imperiousness. Johnson, at -, Postscript. I surprising find it defy year excerpt Johnson less that a an after was conclude with from article Gardner, was a Judge decided. Johnson bucket of cold water written Robert once Cir.1996) simply wrong pre-Johnson 5. We applied were in our de- n. 10 a harmless Lopez, cision in plain than a rather error test. above, I look over the it’s Fourth Dis- decision.” As of California’s Presiding Justice ju- Frankly, lot Appeal well-respected it’s a better that the and a bad. trict mak- speaks hairsplitting volumes about article countless hours refine- rist. The It very little. I in- nitpicking much ado about ments and redundancies story legendary juries throughout my years California Justice flicted on Laguna City Judge Beach judge guise instructing Peace trial under the C.C. in the 1950s: The Honorable Township applicable them as to the law. lawyer, he “Gawy Gawy wasn’t a Cravath.” Gardner, Gavvy Robert Cravath —An league player big baseball was a retired —in Orange County Original. fact, king of the home acknowledged first respectfully I dissent. layperson Ruth. As a Jus- run before Babe Peace, patience little he had tice (or swallows, bits, dancing pins

angels in the man- trips), and it showed serves and jury as to the in which he instructed ner plain of words: favorite, if Gawy had uncomfortable legal way, expressing his distaste for the evidence, taking of profession. After the SAIPAN STEVEDORE COMPANY jury as to the law. judge instructs the INCORPORATED, Petitioner, days, up in- we made our own those handy with a structions. Now is done However, days, you little those book. DIRECTOR, OFFICE OF WORKERS’ law spend countless hours would PROGRAMS; COMPENSATION preparing which told library instructions Uddin, Respondents. Helal jury your side the case was doing the right. opponent Your same No. 96-70836. thing. your you Then both handed sets Appeals, United States Court hoped he judge instructions to Ninth Circuit. jury. Gawy yours would read He have of this nonsense. would none Argued Submitted 1997. Nov. papers stack of would look this awesome Jan. Decided moment, in disgust, for a shake his head jury throw then in full view of the all legal art into the

these wonderful works Gawy Then turn to wastebasket. would say something like this: “La- gentlemen jury. de- dies charged stealing is $50 fendant Jones, hope you certainly Mr. long enough stealing to know lived what my spending couple means without telling you legal distinc- hours the fine Stealing means tions in law theft. says. attorney exactly what it The district responsibility proving that the has the beyond of theft a rea- guilty defendant If certainty. to moral sonable doubt and burden, you he hasn’t carried that You have acquit the defendant. heard who can evidence and are the ones telling who the truth and who decide retire, to a not. Now deliberate and come

Case Details

Case Name: United States v. Leon Clifford Foster

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 5, 1998

Citation: 133 F.3d 704

Docket Number: 89-10405

Court Abbreviation: 9th Cir.