United States v. Marlon Garth

ORDER AMENDING OPINION

It hеreby is ordered that the ninth word second sentence of the instruc- jury

tion which quoted pages 10 and 11 of slip opinion in this case and published

as v. Bradley, (3d Cir.1999), is amended to the end replaces

that “to” “of’ the sentence.

Thus, the sentence will read: public “The official need not fulfill promise to the ”

payor....

UNITED STATES of America GARTH,

Marlon Appellant

No. 97-1042.

United States Court Appeals,

Third Circuit.

Argued: Feb. Aug.

Filed: Metuchen, (Argued), Paul G.

Michael NJ, Appellant. (Argued), Office L. Hall

David PA, Philadelphia, Attorney, Appellee. RENDELL, McKEE, ROTH, Before: Judges. Circuit THE COURT OPINION OF McKEE, Judge. Circuit whether are to decide We asked from barred procedurally Marlon Garth plea to collaterally challenging a firearm carrying” “using charge traffick drug to” a relation “during of 18 U.S.C. in violation ing crime 924(c)(1). District Court held collaterally right had waived peti plea, and dismissed challenge This reaching merits. tion without appeal followed.1 Bousley v. United hold We States, (1998), be afford Garth must

L.Ed.2d whether to demonstrate opportunity ed the ex satisfy “actual innocence” can procedural default. ception to the bar Cir.1998). (3d or- de District Court’s 1. We novo the review Wilson, der. Hollman See burden, If he can meet that the District these activities approached the four men. Court must then examine whether Garth’s The themselves, officers identified be- knowing intelligent. Accord- gan conversation the four males. ingly, will reverse and remand for fur- we questioned, When Gilbert admitted to own- proceedings ther consistent with opin- this bag, the red but all four men denied ion. owning the bag. black Police searched the bag pursuant red consent, to Gilbert’s but

I. they did not find They contraband. At approximately 11:55 a.m. August then started to search the bag black with- 20, 1991, James Corbett of the Narcotics objection out anyone. from As Corbett Interdiction Unit of the Philadelphia Police began opening the bag black Brown unsuc- Department, saw four males—Michael Gil- cessfully attempted to flee. Inside the bert, Brown, Wilson, Chris Keith and Mar- black Corbett found approximately 40 lon Garth —enter the 30th Street Train grams (crack) of cocaine base and a loaded Station where Corbett was stationed. Gil- Brown, Wilson, semiautomatic handgun. bert carrying entered a red bag and a and Gilbert were immediately arrested. bag. black Corbett watched the four men Garth was arrested after Gilbert told the they proceeded to the information booth officers that Garth was in involved their where put bags Gilbert both on the to plan travel to Virginia West to distrib- ground. Corbett continued watching as ute the cocaine. picked Brown up bag the red and walked telephone to a place booth to a call. Gil- arrest, Following his cooperated Garth picked he, bert up then bag, black and with government appeared and before Wilson, and Garth followed Brown to the grand a federal jury. He testified he telephone booth. Corbett continued and his three confederates were transport- watching placed as Gilbert the black bag Ranson, crack cocaine to sell in West next to the red bag, and proceeded to the Virginia. He stated that Gilbert had told ticket purchase AMTRAK window to a him that gun Wilson a in had his waist- ticket. While Gilbert was at the ticket band as he had entered the train station call, telephone window Wilson made a and with ‍‌​​​​​‌​​‌​​​‌​‌‌‌‌‌​​​‌‌​‌‌‌​​​​​‌​​‌​​‌​​‌​‌‌‌‍his three App. co-defendants. 8a- told person on the end of the other line 10a. Garth testified that this was the first that he going was to Baltimore. The black anyone he knew that involved in the drug bag ground remained on the between Wil- distribution had gun. Following scheme a son and Brown. then Gilbert returned testimony, he charged in a two window, from ticket Brown and either count indictment. Count 1 charged that told buy Gilbert to trip another round “knowingly he and intentionally possessed ticket to exchange the tickets he had distribute, with intent and aided and purchased. Brown then instructed Wilson possession abetted the with intent to dis- take the black the bathroom. tribute, more than grams five of a mixture While Wilson was the bathroom with the bag, black substance placed containing Brown call. He told detectable (Brown) whoever answered that he amount of cocaine ...” in base leaving Philadelphia at 841(a)(1) 12:30 and would §§ 18 U.S.C. & 2. Count 2 picked need be up Following 1:30. charged “during and in relation to the call, Wilson returned from the bath- commission of drug trafficking [the] crime ( room the black bag, with and Gilbert and 1,] [alleged in Count knowingly [Garth] did Garth returned from the ticket window. unlawfully firearm, and carry and use and did point, knowing At that aid and Corbett and abet and the other of a members unlawful use and drug carrying DEA-AMTRAK inter- of a firearm diction task force who been ...” in watching §§ had violation of 18 U.S.C. & jury guilty by are found you If 2.2 the sen- charges, those plead guilty to gov- with agreement to his Pursuant would is, sentence the maximum tence both counts. ernment, pled guilty to a ten including prison years be hearing, change During with mandatory together year minimum would have stated what government super- years of of four minimum term trial. The gone the case proved had release supervised release vised but Cor- “[Officer proffered $250,- up to A fine of for life. could be four de- they testify [all would bett] assessment, that’s special $100 moving two carrying and were fendants] could be under what the sentence bag.” App. black bag and a bags, a red just I that have laws under these statute govern- only proffer 26a. The of cocaine you. Possession read to support of Count put forward ment time. The stat- at the having a firearm (1) would Corbett “Officer was as follows: what the sentence will says ute that’s ... [that] admission[ ] testify to Garth’s those offenses. for conviction of Thirtieth present at knew that added). pled guilty to (emphasis Id. (2) testify that Street”; “Mr. Gilbert would counts, was later sentenced both presence about the he told Garth on Count imprisonment months eighteen (3) testify firearm”; “[e]xperts would (described as “Possession Judgment in the protection of firearms to the use Base” and intent to distribute Cocaine testify the trafficking and also drug would Abetting”), sixty months “Aiding and App. handgun.”3 operable an wеapon is (described Judgment as Count 27a & 28a. drug trafficking of a firearm “Use Abetting”), four “Aiding and Judge informed crime” and colloquy, the During the upon comple- release him, supervised of years the ram- charges against the Garth of incarceration, special a and $100 tion of his plead guilty as choosing to of ifications assessment. trial, the to proceeding opposed two range on the sentencing possible sentencing, the defendant Following the so, explained doing court appel- In the Appeal, counts. of proa se Notice filed “The 2 as follows: appointed. in Count charges subsequently the late counsel was count, the against you However, ap- charge argument the direct counsel’s second this event.... contention during peal upon a firearm focused use of 924(c), departure war- greater of Section downward a violation U.S. That’s added). 5K1.1. Sentencing Guideline (emphasis ranted under App. 32a U.S.Code.”4 jurisdiction to re- we lacked Inasmuch as Judge explained: also convicted, alleged that 1992, government has never 3. The when 2.In Garth black or otherwise Garth ever the carried 924(c) part: provided § in relevant in the train while station. handled who, during in relation to [A]nyperson drug trafficking Significantly, of documents any violence or 4. a number other crime of shall, firearm, only "using” “pos- or in the record sessing” refer uses or carries crime . .. firearm, "carrying” and not to provided punishment for addition to the firearm, government’s De- including the trafficking drug or crime of violence such crime, Memorandum, 1991, 30, Sentencing cember imprisonment for sentenced to government's Motion December years.... five Assistance, and Departure Substantial for for 924(c)(1) (1992). § U.S.C.A. 7, 1992, January Judgment in a Criminal 924(c) proscribe § Congress amended obviously are relevant Case. The documents "in furtherance "possessing a firearm” act of parties and evaluating how counsel for the trafficking drug any or crime violence of” crime, nature of the itself the court understood proscribing offenses in addition plea pro- charge at time of the firearms during "carry” and in "using” or a firearm importantly, the under- ceedings, and more See 18 U.S.C.A. to such crimes. relation to Garth standing was communicated 924(c)(1) (1999). § colloquy. during prior discretion, view the court’s exercise of we was carrying gun, Garth “constructive- appeal.5 dismissed the ly possessed” or “aided and abetted” the carrying of the gun. years Nearly four after Garth entered plea, Supreme Court decided Bai- The District did not reach the States, ley 116 merits of Garth’s claim because the court (1995), S.Ct. L.Ed.2d which concluded that Garth procedurally Court held the term “use” in 18 barred collaterally from challenging the 924(c) requires U.S.C. more than mere validity guilty of his plea. The court held of, possession to, proximity or a firearm that it could review Garth’s collateral chal- during the underlying commission lenge only if it cоuld discern constitution- Rather, offense. Bailey, (such “use” re- al violation process as a due quires firearm, “active employment” of the jeopardy) double from the face of the such as brandishing, displaying, bartering, indictment, and Garth’s indictment did not with, striking obviously, firing most Moreover, reflect such facial defect. attempting fire the firearm. Id. at 143 the court reasoned that change & In the wake of plea colloquy, Garth had admitted com- Bailey, numerous defendants have chal- mitting the charged described offense lenged validity guilty pleas of their plea colloquy; merely the charged contending they, conduct. The District Court held: well as their attorneys and the district “Garth, having voluntarily and intelli- courts, the nature misunderstood of the gently plea' entered a to Count firearms charge and that the conduct they indictment, Two of his has waived his admitted to did not constitute criminal right to collaterally attack his conviction offense. using carrying a firearm in rela- drug tion to a trafficking crime in viola- Similarly, pro filed se habeas 924(c)(1) tion of on the ground that petition challenging his conviction for vio- there was no factual 924(c).6 basis to sustain the lating claimed that there conviction.” was no factual basis to sustain his guilty that, plea. He argued under Bailey, he (Nov. 27, Memorandum and Order at 10 did not “use or 1996). a firearm within carry” Thus, the court never reached the 924(c), § meaning the and asserted that merits of Garth’s claim.

he should not have convicted been II. government offense. The by countered that, arguing because Bailey did not reach argues guilty plea his “carry” 924(c), § prong of Garth’s con- 2 knowing Count was not and intelligent (1) viction for “carrying” a firearm in viola- because he was misinformed as to the 924(c)(1) tion of the statute violation, should not be § dis- factual basis for a (2) turbed. The government also by asserted he was “hobbled the ineffective as that, inasmuch as Garth knew that Wilson plea sistance of counsel” at the stage.7 Denardi, 5. See United States v. participant” 892 F.2d 269 that he awas "minimal entitled 1989). (3d 1.2(a) Cir. § to a sentence 3B reduction Guidelines, (2) Sentencing sen his pro "Request 6. Garth filed a se Extra tence was excessive under an abuse of discre Speedy Judicial Performance.” The District generally tion standard. We accord wide lati However, Court treated Garth’s motion as one pro "claim- petitions tude to se for relief. right upon ground to be released we do not reach either of be these claims imposed the sentence was in violation of remotely cause Garth did not even raise these States,” the Constitution or laws of the United sentencing issues the District Court. before pursuant Serv., to 28 U.S.C. 2255. See United Parcel Inc. v. Intern. Broth. (3d Local No. 140 n. 5 (1) 1995) ("It argues 7. Garth also brief that Cir. general is the rule that issues failing argue counsel was ineffective for appellate raised for the first at the level time 924(c). rejected court The district con He also Br. at 13-14. Appellant’s concluding Bousley’s argument record the the face of the that if “on tends drugs to the fire- of the seized proximity the sen impose power lacked the court because basis arm factual established collaterally tence,” from he is not barred Bousley readily accessible. a guilty on a conviction based challenging pend- appeal and while appealed, (citing Br. at 14 Appellant’s plea. Bailey. decided Supreme Court ing the 563, 575, Broce, Bailey, ap- the court Notwithstanding (1989)). L.Ed.2d 927 S.Ct. decision court’s the district peals affirmed procedural argues that Garth Bousley’s petition. The Su- and dismissed challenge the by failing to ly defaulted granted certiorari. preme Court appeal, plea of his on direct validity the default. can not overcome that Garth ‍‌​​​​​‌​​‌​​​‌​‌‌‌‌‌​​​‌‌​‌‌‌​​​​​‌​​‌​​‌​​‌​‌‌‌‍the merits reaching Before Br. 9-10. Appellee’s had Supreme Court Bousley’s claim procedurally Bousley was whether decide Statеs, 523 U.S. Bousley v. United relief.9 The seeking from habeas barred L.Ed.2d 828 rule reiterated well-established Court (1998), Supreme delineated guilty may not attack that a defendant under which defendant circumstances it has first been on habeas unless plea chal- collaterally rely upon Bailey to may The Court challenged on direct review. guilty plea pre-Bailey lenge Bousley’s applied this rule noted 924(c). There, Bousley had Kenneth the voluntari stating that petition, “even “using” a firearm violation pled guilty to guilty plea can intelligence of ness and 924(c)(1), before Su- of 18 U.S.C. if only collateral review be attacked on Bailey. Approxi- preme Court decided on direct review.” Id. challenged first later, Bousley filed a mately years four However, “Where de the Court added: § 2255 under 28 U.S.C. petition habeas a claim defaulted procedurally fendant has collaterally challenging his conviction.8 review, direct by failing to raise for his the factual basis challenged] [He only if the raised in habeas may claim that neither ground on the guilty can first demonstrate either defendant “plea allocation” “evidence” nor the ...” prejudice,’ or that and ‘actual ‘cause’ fire- a “connection between the showed Id. at “actually he is innocent.”10 house, and of the arms the bedroom (internal omitted); see also Unit citations drug trafficking garage, where the (3d Sanders, ed States occurred.” Cir.1999). argued at 1608. He Bousley, 118 S.Ct. could Bousley argued that he es no factual basis that there was therefore yet had not Bailey tablish cause because acceptance of his support the court’s pled guilty, and when in of been he “using” firearm violation decided plea to a Thus, reviewed.”) Bousley, 118 S.Ct. at 1610. (citing Singleton v. dural.” not be will 120, 2868, Teague. 106, claim is also not 49 barred Wulff, 428 U.S. 96 S.Ct. (1976)). L.Ed.2d 826 recognized that defendant Court also 10.The claim procedurally if the could is not barred Bousley petition 28 actually filed his 8. without 2241, presеnted earlier fur- not been the court "treated it as U.S.C. but Id., development. S.Ct. 118 Bousley, ther factual U.S.C. 2255.” motion under 28 'however, explained, that The Court 118 S.Ct. at 1607. require Bousley’s did not further case factual of an "unintel- underly- development because his claim Court the defendant's 9. The held that fully and ligent” plea could have been com- volun- guilty plea that was claim his not review based on Bailey, pletely addressed on direct light tary intelligent in was not Lane, 288, plea at the collo- record created Teague U.S. 109 factual by v. 489 barred reasons, 1060, (1989), the same quy. at 1610-11. because Id. For 103 334 S.Ct. L.Ed.2d exception here. "proce- apply does not this claim neither "new” nor such a was

107 therefore, claim in legal plea “the basis for his was error his colloquy probably ‘has in reasonably available to counsel” when resulted the conviction of one who is ” plea actually he entered his or on direct review. innocent.’ Bousley, 118 S.Ct. at added). (emрhasis Supreme rejected argu requires This defendant to establish “in light ment. The Court held that neither the of all evidence, likely is more than novelty futility particular legal of a ar not that juror no reasonable would have gument constitutes convicted failing “cause” Thus, Id.; him.” Id. in jurisprudence, habeas challenge ruling earlier. see also “ Powell, ‘actual innocence’ means factual inno- United States 501- cence, (10th legal not mere Cir.1998); insufficiency.” Id. United States v. Sor Cir.1998). Accordingly, “the Government limit- rells, (5th is not 145 F.3d 749-50 ed to existing record to any rebut Similarly, Garth can not establish cause showing petitioner might make.” merely by arguing pled here that he Bousley, 118 S.Ct. at Simply 1611-12. years Bailey four before was decided. “ stated, ‘actual’ ... innocence means that It is now well-established person did not commit the crime.” successful claim of ineffective assistance of (5th Hargett, Johnson v. 978 F.2d Washington, counsel under Strickland v. Cir.1992). 466 U.S. S.Ct. L.Ed.2d Bousley, Supreme Court remand- (1984), satisfies the prong “causе” of a appeal ed the to the district court to afford procedural default inquiry. Murray See the defendant the opportunity to show that Carrier, 478, 488, “actually was innocent” of “using” a (1986); Sanders, 91 L.Ed.2d 397 924(c)(1), firearm violation of Here, however, at 250. Garth does not charged so, in the indictment. In doing argue petition in either his habeas his the Court noted that the government must appellate brief before us that original his also have the opportunity present addi- counsel was ineffective for failing to chal tional evidence of the guilt defendant’s lenge plea Rather, on his direct review. order rebut his claim of innocence. The argues that attorney was ineffec government was not limited to the record plea stage tive at the because counsel nev on remand because the had to defendant attempted er to ascertain whether the fac establish that he actually innocent. predicates tual of thе firearms offense Thus, remand, al- satisfied, were to inform him fully as to the “any lowed produce admissible evidence charges, nature of those or to otherwise petitioner’s guilt,” relating to the al- challenge Count 2. argument clearly This 924(c), leged as well as goes to the merits whether his other more charges serious were knowing voluntary, not to whether dropped pursuant plea agreement to the ineffective assistance “caused” his failure Bousley government. between and the challenge conviction earlier.11 Bousley, 118 at 1611-12. S.Ct. The Court exception The second Bousley successfully to the noted that if showed procedural requires remand, default bar the defen actual innocence on the district dant to establish that “the constitutional court then would have to consider the mer- note, however, general 11. We performance that in an inef- attack his her own on direct addition, fective assistance clаim which was not raised review. In because resolution of appeal procedurally on direct requires is not deemed ineffective assistance claims often purposes defaulted for of habeas review. consideration of factual matters outside the Rewal, v. De appeal, United States 10 F.3d 103 record direct a on defendant need not (3d Cir.1993). failing rule is prejudice The rooted in the rec- show cause and to a raise that, case, ognition as in this trial counsel is claim of ineffective assistance on direct re- attorney prop- often the same on Accordingly, the defendant's view. Id. such a claim is appeal, erly direct and therefore it would be un- raised for the first time in the district expect require attorney realistic to court under Id. 2255. petitioner other- wit, have held that claim, plea [W]e his whether his its of abusive or defenses of subject to wise Id. made. intelligently was his may writ have use of the successive at Bousley appears Although claim considered constitutional federal with the all fours blush to be on first proper if he makes on the merits analytical path is some appeal, our instant rule, This innocence. showing of actual the issues decided because what obscured justice miscarriage of or fundamental in the not framed are by the District Court “equitable exception, grounded is ap on raises as Garth same terms those to see that habeas courts discretion” of pro petition, se Garth original peal. his re- do not errors federal constitutional no factual there was simply argued per- innocent sult the incarceration did not He support his conviction. basis to juris- habeas body But this of our sons. this failing to raise any “cause” for assert claim of that a makes clear prudence earlier, explicitly and he did not claim not itself a consti- innocence” is “actual un of counsel assistance argue ineffective claim, gateway instead tutional but there District Court der Strickland. must petitioner through which habeas did not clear the fore concluded Garth barred consti- pass to have his otherwise bar, it never accordingly, procedural on the merits. tutional claim considered However, Garth claim. addressed Garth’s Thus, 853. 113 S.Ct. Id. actually inno asserting that he ar- Bousley, because Garth Herrera and recognized pro that a long cent. We “actually inno- that he was in essence gued liberally should be petitioner’s pleadings se offense, the District the firearms cent” of justice. See construed to do substantial concluding Garth Court erred General, F.2d Attorney Lewis v. plea challenge his ab- right his waived (3d Cir.1989); ex rel. States bar, apparent on sent “a constitutional Montgomery Brierley, ”12 or the record.... face of indictment (3d Cir.1969). Thus, Garth’s failure that he surprisingly, Not now claim one of specifically articulate counsel, represented by appellate able is preclude re innocence” should “actual argues that the unambiguously also clearly claim. He view of the merits court, attorney and his prosecution, not sat that the could argued predi him as to the factual misinformed 924(c) of a prerequisites factual isfy the 924(c) violation, trial and his cates of a properly viewed conviction. When ef properly prepare and counsel failed to lens used to through forgiving the more colloquy, him fectively assist pro petitions, habeas we con construe se unin unknowing in an resulting thus “actual innocence” that the claim of clude Despite the inarticu guilty plea. telligent the District Court. properly before this rather technical late manner in which is, course, the District placed true that “federal first before It claim was Court, should not pro petition that individuals courts sit to se habeas ensure strictly as to obfuscate the of the read so imprisonеd in violation Con are not His assertion stitution,” making. claim questions and not to review Collins, for his no foundation Herrera v. there was factual or innocence. guilt See an assertion of due 390, 404, guilty plea equates upon sen (1993). However, being process based Herrera L.Ed.2d 203 prison con- tenced to explained: Supreme Here, than verdict makes no erroneously from rather trial Court also the District Bailey analysis); United in terms analysis collateral review be- difference its restricted Barron, (9th proceed- pled guilty than rather cause Cir.1999) See, (a challenge conviction Bousley, e.g., supra; see also collateral ing to trial. 73, (7th States, upon is not a of innocence 76 based claim 113 F.3d Lee v. United 924(c) plea agreement). Cir.1997) (fact repudiation of the arose conviction

109 that he did not know years duct was not criminal five on each of the two counts to plea that statute. Because a guilty pled Howevеr, which guilty. he following knowing intelligent which is neither nor plea, Supreme his Court decided Bai- process, due a claim violates such consti- ley, and Benboe collaterally attacked his proper pur- tutes a constitutional claim for sentence under 28 U.S.C. 2255. He ar- poses of Bousley, habeas review. 118 gued plea that his to using or carrying a 1607; 20, at v. Raley, Parke 506 S.Ct. U.S. 924(c) firearm under not knowing was 28-29, 517, 113 121 S.Ct. 391 L.Ed.2d and intelligent because he did not ‍‌​​​​​‌​​‌​​​‌​‌‌‌‌‌​​​‌‌​‌‌‌​​​​​‌​​‌​​‌​​‌​‌‌‌‍under- (1992); States, McCarthy v. United 394 stand the elements of that offense. The 459, 466, 1166, U.S. 89 22 S.Ct. L.Ed.2d district court held an evidentiary hearing (1969); States, Buggs v. 418 United 153 claim, on Benboe’s but denied relief. Dur- (7th Cir.1998). Therefore, F.3d plea colloquy, Benboe had admitted Hetrera and its progeny, the district growing marijuana distribution, and may court also review on habeas whether police had found a gun in loaded the same plea knowing intelligent was marijuana room as the they when arrested once he his actual demonstrates innocence. the defendant. Benboe also had admitted See, e.g., Bousley, 118 S.Ct. at 1611-12. “possession that he had the firearm appeals

As other courts of the use of the drug [sic ] transaction.” 157 concluded, proper procedure under F.3d at 1185. The district court denied Bousley is to remand district court habeas relief concluding that Benboe had to determine whether a defendant is actu admitted a sufficient nexus between the ally charged innocent of the offense when drug and his trafficking to establish a See, supports the record such a claim. guilty plea basis for his to the carrying e.g., Jones, United States v. 172 F.3d 924(c). prong §of appeals, court of (5th Cir.1999) 384-85 (remanding evi however, noted that: dentiary innocence); hearing on actual The transcript reveals that a firearm Sanders, United States 157 F.3d was found in or on furniture in the same (5th Cir.1998) (same); marijuana found, room where was but Hellbusch, (8th Cir.1998) 147 F.3d presented no evidence that Benboe (same); Benboe, United States v. 157 F.3d the firearm on person carried or in (9th Cir.1998) (same); also, see his vehicle in connection with а drug States, e.g., Luster v. United trafficking crime. (6th Cir.1999) (defendant 915-16 could not actual establish innocence because record Id. at 1185. The court therefore reversed supplied “overwhelming culpa evidence of the district court’s denial of Benboe’s bility,” therefore, remand was not re § 2255 petition, remanded with di- quired). rections that he be an opportunity allowed to show “actually that he was Benboe, innocent” of example, For the defendant any dismissed pled charges “that the court possession de- marijuana distribute, termines are more the intent to serious than the and using carry- 924(c). ing a firearm in conviction of he §of which is inno- His plea cent.” Id. agreement The court if stipulated that noted that Benboe he would receive could such a showing, consecutive make or if the court years sentences of five count, on each on remand concluded would take that no more serious appeal dismissed, long chаrges so had period his total been “the court years. incarceration did should not exceed ten consider the merits whether his return, the government agreed please Id.; also, unintelligent.” to dismiss see Jones, remaining 384-85; several e.g., Sanders, counts. Benboe’s F.3d at court, accepted by 306; Hellbusch, Benboe F.3d at was sentenced to consecutive sentences fire, How- a firearm.” attempting or can course, petitioner a habeas Of or ever, is not disclosed gun “if the pro the of the restrictions

not circumvent offender, ac- it is not the by asserting mentioned by merely rule default cedural ” ‘used.’ it not is employed and tively is the assertion where innocence” “actual however, Here, we by the record. belied Price, United States with consistent record is that the conclude Cir.1996) Bailey, 116 S.Ct. (3d (quoting our emphasize We claim. longer 508). no Accordingly, “[i]t is &505 amount not record does of the examination to the available weapоn be that the enough there is of whether a determination an rather, played defendant; it must Rather, we to convict. evidence sufficient predi- the perpetration role active whether to determine the record examine the emboldening beyond cate offense innocence of factual a claim supports Id. perpetrator.” to allow required remand is such that of Garth’s Here, evidence the record his actu to establish opportunity an Garth following: gun the is the with involvement that follow For reasons al innocence. while gun had that Wilson knew Garth it does.13 we believe station; first Garth in the train they were the men gun had Wilson learned that III. station; Garth train entering the were fol- of the each asserts The government gun or either never handled violated argue Garth lowing theories men and none of containing gun; (1) un- 924(c): the firearm “used” Garth employed otherwise ever brandished (2) the fire- “carried” Garth Bailey; der There in train station. gun while States, Muscarello under arm estab- that would absolutely no evidence 141 L.Ed.2d 118 S.Ct. Bailey, used that Garth lish (3) “constructively car- (1998); Garth argument government’s and (4) firearm; “aided and Garth ried” with the absolutely inconsistent contrary is the firearm. carrying of and abetted” case, merit- and therefore holding of less. 924(c). A. “Use” Bailey, In 924(c). “Carrying” under B. held, “Section [Supreme] Court pri- Preliminarily we note 924(c)(1) sufficient to requires evidence and to, plea colloquy, during the the fire- employment of active show an documents, the use of the court defendant, many that makes a use by the arm distin were carry prongs in rela- operative an factor

the firearm prosecu court or the by the guished either predicate offense.” tion to “carry” many the term tion, cases “the active explained that further Indeed, “use not even referenced.14 of ‘use’ cer- understanding employment synonymously repeatedly used carry” is bartering, brandishing, tainly includes Howev- in this record.15 “possession” with with, obviously, firing and most striking Similarly, drug trafficking crime.” during requires a re- record stating that the ex- Judge Bechtle plea colloquy during the his actual to establish to allow mand innocence, charges Count 2 as follows: plained the suggest we do not mean count, you is charge against "The second evidence be- must come forward ... event this of a firearm the use may rest on the He District fore the Court. 924(c), Section U.S. require That's now thus as it stands record App. 32a. U.S.Code.” present "admissible additional prosecution Bousley, guilt. See factual evidence" De- example, the Government’s both 15.For at 1612. Sentencing Memorandum cember Depar- 1991 Motion Judg- its December January example, the 14. For speak in Assistance both Substantial ture a firearm 2 as "Use ment Count describes er, lo, the terms “use” “carry” under Thus, S.Ct. at 1914. colloquy 924(c) § have distinct meanings and one required established the nexus between not coextensive with the other. Muscarel the “carrying” predicate and the offense. States, lo v. United also, e.g., Benboe, See supra. The Court 1911, 1918, (1998). 141 L.Ed.2d 111 emphasized that one could not be convict- could not knowingly and intelligently plead 924(c) § ed of violating absent showing 924(c) guilty § to “carrying” under without that the “carrying” was predi- related to a knowing what that term meant. cate offense. “Congress [‘during added Muscarello,

In in relation Supreme part in prevent to’] de- to pros- parameters fined the “carry” ecution prong ‍‌​​​​​‌​​‌​​​‌​‌‌‌‌‌​​​‌‌​‌‌‌​​​​​‌​​‌​​‌​​‌​‌‌‌‍guns where ‘played’ part no in the 924(c)(1). § under Muscarello, The Court held crime.” that 118 S.Ct. at 1918-19. “carries a firearm” is not carry- limited to There is no evidence here that Garth person; rather, on firearm “it ever directly or indirectly gun. carried applies also to a person knowingly who Moreover, although a juror reasonable possesses and conveys a firearm in a vehi- could infer that the four men came to the cle, including glove compart- locked train station in vehicle, some kind of car, ment or trunk of a person which the gun was in the vehicle that accompanies.” Muscarello, 118 at S.Ct. brought them station, to train there is 1913-14. The Court’s in inquiry Muscar- nothing the record to suggest ello was limited to whether the term “car- knew gun present until ry” carrying includes the gun in the glove they got to the train station. The record compartment of one’s car opposed does not even establish that Garth ever carrying gun on one’s In person. hold- the bag carried in which ing that the former situation could violate found at anytime prior to, subsequent 924(c) the Court that Congress noted to, arriving at the train fact, station. “carry” intended in the statute to be af- is to record the contrary. ordinary forded its meaning. Id. at 1914. Clearly, who “one bears arms on his per- ” C. Constructive Possession. son ‘carries weapon.’ Id. at 1915. In addition, “the word in its ‘carry’ ordinary argues that there sense car,” carrying includes in a even if it is an adequate factual basis for Garth’s is not “directly on the person.” Id. at theory under the that he constructive However, the Court cautioned that ly possessed the gun, and that this is “carry” is not coextensive “transport” with support sufficient to a conviction under “[c]arry because implies personal agency 924(c)(1). Appellee’s Br. at 7. There is degree some possession.” Id. at disagreement among the circuit courts of added). (emphasis See also United appeals as to whether a can defendant be States v. Spring, (10th 80 F.3d violating only upon based Cir.1996) (carry prong requires possession possession. constructive Compare United “through the exercise of dominion or con- (2d States v. Canady, 126 F.3d trol; and transportation.”). Cir.1997) (refusing recognize violation of Moreover, important “carry” it is prong pos note based “constructive Muscarello, the theory) Napier defendant admitted session” plea colloquy States, (6th that he Cir.1998) had “carried” gun in the proteсtion car “for (recognizing relation” constructive carrying to the underlying drug offense. Muscarel- would be sufficient to sustain a conviction "possession”

terms of weapon. of a In addi- under these statute that I laws tion, during plea colloquy Judge Bechtle just you. read of co- Possession explained: and having caine firearm the time. $250,000 up A fine special $100 App. 32a. assessment, that's what the sentence could 924(c)(1)). that, although do not she did not own We decide evidence house, there, pos- concept Baltimore lived pos- of constructive whether the house, key kept some of sessed support a would conviction session there, police and the 924(c), belongings her told if “carrying” under because even However, my “I in that am own house.” did, an for such a adequate foundation that was insuf- we concluded the evidence govern- than the requires conviction more to that had exercised ficient establish she proffered during ment Garth’s collo- the drugs. dominion or control over quy. Brown, 3 that F.3d 681. We reasoned posses The term “constructive there, drugs knowledge her that were a precise legal meaning: sion” has coupled with to ability even her exercise who, person although A not in actual the dominion and control over some of possession, knowingly pow- has the both house, in the not property did establish at a given er and the intention time to in- possession everything, constructive exercise dominion or control over cluding drugs, there.16 the located thing, directly through either or another Here, that there is no evidence person in persons, or is then construc- power the or to had intent exercise control possession of it. tive bag. gov- or over the black The dominion Blackston, proffer ernment not evidence that any did (emphasis 940 F.2d at 883 add- anything the in it. bag Garth owned ed); Byrd, see also v. 105 F.8d Jackson (3d Cir.1997) J., knowledge bag that the contained 145, (Becker, Mere 150 dissent- crack men cocaine which the intended Thus, ing). possession re- constructive distribute is insufficient to infer that to power to quires an individual Garth could exert dominion or control over and intent to both exercise dominion bag. one giving Garth was object over the control she is station; group directions train to charged possessing. with United States Moreover, Garth ac- although Brown was. Brown, (3d Cir.1993). 3 v. F.3d 680 companied latter exer- Wilson while the Brown, (3d In v. 3 F.3d United States 673 gun, dominion control over the cised Cir.1993), held we that circumstantial not magically association alone does by evidence offered proximity transform to Wilson into insufficient to establish the defendant actions, culpability for all of Wilson’s could exercise dominion and control over responsibility establish vicarious in the which drugs found house in she gun. “Dominion and control are not lived. Police executed search warrant established, by proximity ... ‘mere of Brown’s house based informаtion [contraband], ... presence or mere where large quantities drugs were it is located or mere association with the stored, cut, packaged for sale there. person [contra- who does control (named search, During the the defendant ” Jenkins, band].’ United States v. Baltimore) key used her to enter (3d Cir.1996) (quoting F.3d Unit- police drugs house. After the discovered (3d Brown, ed States drug paraphernalia, they charged Cir.1993)). with along Baltimore Brown and another defendant, possession drugs if Even we assume that had ac- prosecution intent to distribute. at- rela- bag cess the black because of his tempted guilt by tionship in- establish Baltimore’s with his confederates and his is, less, helpful analysis 16. Ms. Baltimore’s situation in Brown is to our as it Brown here course, distinguishable from Garth’s situation potential ability exer- shows that mere implicated drug here Garth is in the because cise dominion and control does not establish distribution, and there was insufficient evi- possession constructive absent the intent to implicate dence Ms. Baltimore distribut- exercise it. ing drugs found where she lived. Neverthe- scheme, (3d Cir.1994); drug distribution United volvement (3d Salmon, Cir.1991) automatically would not access carry constructively an (requiring that he intent to facilitate the sub establish offense). addition, previ of it. noted gun inside As stantive we have requires proof more ously, “carrying” required like “use” the defendant proximity. way pos that mere “Constructive some associated with substantive requires necessarily participated session both ‘dominion offense—“that he in it as in object knowledge about, an something and control’ over that he wished to bring object’s See sought by existence.” that he action to make it (3d Iafelice, v. 978 Bey, F.2d Cir. States succeed.” United States v. 736 F.2d 1992) added). (3d Cir.1984). Thus, the (emphasis liability Based oh record, in aiding abetting evidence this did not and Garth someone else in the any pos know that of his co-defendants commission crime requires specific of a the weapon crime, a until the had of facilitating sessed men entered intent the (3d station, Newman, the train and he did not know that v. States 490 F.2d Cir.1974), weapon bag. in the knowledge the was black More and mere un of the over, any did colloquy derlying the not establish is not offense sufficient for convic tion, on or a part carry Bey, intention his to use 736 F.2d at 895-96. in

weapon possession connection with the Pnce, In United v. in bag. the the drugs distribution of (3d Cir.1996), we held that one be could Therefore, not the record does establish aiding abetting convicted of and a violation power knowingly that had or the Garth the 924(c)(1) § possessing of ever without intent to exert dominion or control over There, controlling weapon. a a Price and firearm. the man named Stubbs were convicted of bank course, fact that also Of the the others robbery carrying and a firearm and during had to the black is not the access robbery of relation to the violation finding that did not con- basis for Garth 924(c)(1). Only gun. § рossessed Stubbs a structively possess bag. the If the black weapon, Price never brandished a nor did possession of applies doctrine constructive prosecution the offer evidence that ever he 924(c), joint then the doctrine of physically possessed gun or even touched a However, possession applies. constructive Rather, during during robbery. the bank multiple of not involvement actors does robbery, the bank Stubbs brandished negate requirement the that Garth know- gun jumped while over counter and Price ingly power have both the and intent to money. clearly collected the Stubbs used and exercise dominion control. Based and carried a firearm the commis- record, lacking. the this element was robbery. of sion the We Price’s affirmed 924(c) violating an conviction Aiding Abetting. D. and “aiding theory. deci- abetting” and Our upon extent government argues also sion was based the to which violating that can of Stubbs Garth be convicted the actions of were intertwined with, objectives he and criminal furthered because aided abetted the We carrying by, use of the firearm. of Price. concluded We actions and/or jury that lia could infer that previously held to establish that reasonable that bility upon abetting prior knowledge an had aiding based Price Stubbs (1) prove planning carry gun during must theory, use that substantive been that robbery, crime has com both Stubbs’ (2) mitted, and in the were facilitated the defendant knew of the Price’s roles crime by crime and to facilitate it. the fact that Stubbs brandished a attempted Unit (3d Price, Frorup, scooped up money. Price ed States 968 F.2d while Cir.1992); Green, fur- of 76 F.3d at 530. The actions each United States whether other, then determine and the the actions

thered indictment 2 of this plea to Count com- of the because succeeded robbery waiver voluntary knowing and aof result of both. actions bined him under afforded protections evi- currently insufficient Here, there is Constitution.17 conduct that the finding suggest dence to pro- for further intertwined remand Accordingly, so we and Garth of Wilson opinion. this consistent and abetted ceedings aided Garth 924(c)(1). evidence is no There carrying Dissenting- ROTH, ‍‌​​​​​‌​​‌​​​‌​‌‌‌‌‌​​​‌‌​‌‌‌​​​​​‌​​‌​​‌​​‌​‌‌‌‍Judge, facilitate attempted to Circuit about bring wished gun, us, I before record basis On the succeed, that the that offense or make Marlon appellant, believe do not way instrumental gun was innocence” the “actual Garth, satisfy can drug offense. participate decision default. procedural bar of exception evidence merely contains The record reason, agree with I do not For that Indeed, present. gun was knew remand- case should that this majority far, did Garth so record based pro- further Court District ed to the it when was in gun even know affirm we should that I believe ceedings. here enough is not There was searched. District of of sentence judgment innocent he is claim that negate Garth’s to Court. of carrying аbetting the and aiding each of through going than Rather firearm. fire- of the conviction possible theories ie., carry- use, offense, actual actual arm IV. aiding and possession, ing, constructive itas the record Thus, conclude we one, aiding only turn I to abetting, will of “ac- claim supports Garth’s now stands I offers abetting, which believe Therefore, District tual innocence.” proof demonstrate to strongest record habeas dismissing Garth’s erred Court firearm charged of the of the elements opportu- him the affording petition before record. present are offense actual innocence. demonstrate nity to One, know- to pled guilty Count Garth the District to remand Accordingly, we more intentionally possessing ingly and Bousley to Garth allow to pursuant Court to with intent cocaine grams five than innocence, and of actual his claim prove to Two, using and distribute, and to Count to opportunity government give in relation carrying firearm refute evidence any additional produce Two Count trafficking crime. any drug of what- course During the claim. such a U.S.C. both 18 the offense charged may Court the District proceedings ever 2 provides: 924(c)(1) 2.1 Section what- may present order, an offense (a) commits Whoever to rebut it has evidence admissible ever abets, aids, the United against claim, evidence was if the even pro- commands, counsels, induces If District previously admitted. as a commission, punishable its cures met his burden has that Garth concludes principal. innocence,” must “actual establishing fense, occasion not have Court did the District Court notes the District its order In 17. hearing otherwise examine pro argue in his se hold a specifically did not plea was invol- Garth's whether his 1991 to determine petition record habeas unintelligent. intelligent. Memorandum untary or knowing or 27, 1996). (Nov. argued He at Order Bailey he was not pursuant instead guilty abetting charged aiding and One also 1. Count Therefore, dе- charged offense. charging the substantive as well “knowingly and that Garth spite its assertion offense. of- guilty to the firearms intelligently” pled Garth and companions three pened?” were ar- replied, “Yes, your Hon- rested Station, 30th Street on their or.” Id. way Ranson, Virginia, West to sell In Price, United States v. 76 F.3d 526 drugs. Garth had trip made this several (3d Cir.1996), we considered the elements times before. According to Garth’s Grand of aiding and abetting a violation of Jury testimony, they were going to West 924(c)(1). Price involved a crime of vio- Virginia price because the that would be lence, a bank robbery, rather than a drug paid for the drugs there four times the trafficking crime as we have here. The price paid in Philadelphia. SA 17a. Garth elements are easily translated, however, also testified before the Grand Jury that into the drug trafficking context. In he was aware that one of his co-defendants Price, we determined that the conviction was carrying group when the of four would affirmеd because the accomplice men entered the railroad station: was plainly using and carrying a firearm in

MR. Honor, HALL: Your I was—I connection with a violence; crime of Price asked Mr. Garth the grand before jury: probably knew in advance and most cer- you While walking were into the train tainly knew during the robbery what the station did Michael Gilbert say anything accomplice doing; but Price continued to you? to participate in the offense. Id. A. Yes. us, the case before the four defen- dants were engaged in Q. drug trafficking; What did say? they were carrying a gun with them in A. He said that Keith Wilson had a connection with drug their trafficking; gun. Garth was aware that a gun was involved Q. Do you remember what his words but even so he continued participate were? the transportation of drugs to West A. He Virginia; said: Keith has a gun. experts And I prepared were I don’t said know testified that drug where is. And traffickers carry then fire- said, said it’s in arms protect his waistband. Then themselves and their just we keрt on drugs. walking The and went fact that in. Keith Wilson did not take out the gun and brandish it demon- (This SA at 8-9a. same testimony was strates the difference between drug traf- by cited the government at the sentencing ficking and fact, bank robbery. The how- 66a.) hearing. SA ever, Congress intended the enhanced At hearing, there was additional penalty to apply both situations is clear evidence cited to support charges 924(c)(1): from the language of “Whoev- against Garth. government The proffered er, during relation to crime of that Officer Michael Corbett would testify violence or drug trafficking ... crime uses to Garth’s admissions regarding pos- or carries a firearm ...” crack, session of the that Garth knowingly reasons, For the above I conclude that possessed crack, and also that Garth the record belies Garth’s claim of “actual knew that the gun was present at Thirtieth innocence.” Because I see no need to Street. SA 27a. also remand this case for a hearing on that proffered that Michael Gilbert would testi- issue, I respectfully dissent. fy that he told Garth about presence the firearm and that government experts testify

would concerning the use of fire-

arms protection in drug trafficking and

about the operability of gun. SA 28a.

The district judge then asked Garth if that

essentially correct, “is what hap-

Case Details

Case Name: United States v. Marlon Garth

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 16, 1999

Citation: 188 F.3d 99

Docket Number: 97-1042

Court Abbreviation: 3rd Cir.