United States v. Ray Allen Taylor

RYAN, Circuit Judge. defendant, Ray Taylor, Allen ap-

peals following conviction on one count to interfere with inter- state by robbery, commerce in violation of 18 U.S.C. and one count of using firearm and in relation to a crime of violence, 924(c). in violation of 18 U.S.C. alia, Taylor argues, inter that the evidence prove was insufficient to that he “used” a firearm, within the meaning of section 924(c), during and in relation to the crime violence, namely, the conspiracy. We agree with on this point, although reject arguments, his other and we will reverse his conviction and remand for fur- ther proceedings.

I.

Taylor came to an agreement with Mominee, Bruce Thomas a dealer Amer- artifacts, ican Indian to rob Mrs. Louie Mattox, resident, a Kentucky of her valu- able collection of American Indian arti- Taylor agreed facts. to an accomplice find perform robbery, while Mominee agreed to market and sell the collection it after was stolen. pictures

Mominee took of Mattox’s house and her collection of artifacts for Taylor’s carrying use in burglary. out the briefed), (argued John W. Tullís later, A days few Taylor asked Frankie Bennett, Bowman, Vittitow, Triplett & Ow- Piper to burglary, commit the showed him ensboro, Kentucky, Defendant-Appel- Mominee, pictures that were taken lant. and further plan discussed their to steal briefed), Kent Wicker (argued and Ter- the artifacts. Unbeknownst (briefed), ry Cushing Mominee, M. Assistant Piper Kentucky informed the Louisville, Attorneys, Kentucky, for Plain- plan agreed State Police of the tiff-Appellee. cooperate with them in ap- their effort to (Count 1); § 371 one recover violation of 18 U.S.C. Mominee and Taylor and

prehend during and in using a firearm count property. stolen violence, in a crime of violation relation to initial contact of days Two after 924(c) (Count 2); one count of 18 U.S.C. begun cooperat- Piper after had Piper, and a firearm with an obliterated possessing Taylor gave Piper police, with the ing number, in violation of 18 U.S.C. serial (1) Standard, High number of items: 924(a)(1)(B) (Count 3); 922(k), §§ and one pistol, .22 caliber King Model Sport unregistered fire- possessing count of (2) removed; a firearm number the serial 5861(d), arm, §§ in violation of 26 U.S.C. (3) number; ap- silencer, with no serial (Count 4). brand 70 rounds of Federal proximately (4) ammunition; 12,000-volt a .22 caliber jury against A a verdict guilty returned (5) a canister contain- gun; stun electronic The Taylor respect with to all counts. capable of inca- ing a chemical substance court, however, a new trial granted district (6) a roll temporarily; pacitating person 2—the Hobbs respect with to counts and (8) masks; (7) two two face tape; of duct on flawed Act and counts—based (9) Kentucky automobile pairs gloves; instructions, jury imposed and a 70-month (10) cutting pliers. registration plate; and remaining two firearm sentence on all the immediately turned items Piper counts. Further, a surveillance police. over to the judgment from his Taylor appealed both many contains videotape of this encounter granting of conviction and from order Taylor, made incriminating statements appeal him a trial. latter was new The presented Pip- showing knowingly that he appel 'court for lack of dismissed this and the silencer. For gun er with the jurisdiction. respect late With to the for Piper to use the example, Taylor advised appeal, panel of this court affirmed mer large dog near gun and silencer to shoot part, but the conviction on vacated barking. Mattox’s home if it started possession Count of a firearm with later, request of the days Two at the number, on again obliterated serial based Police, falsely ad- Kentucky Piper State instructions, jury and flawed remanded completed the Taylor vised that he had proceedings. further See United States Mominee trav- burglary. day That same 95-6531, Taylor, No. 1997 WL 178877 the stolen Taylor’s eled to house to receive 1997). Apr.11, Cir. Kentucky goods. day, the State The next Meanwhile, a second trial was held on Alcohol, and Police and Tobacco Bureau Taylor counts 1 and in June 1996. was Agent Firearms Dennis Price exe- Special to again convicted. He was sentenced Tay- cuted search arrest warrants imprisonment months’ on to run Count a confession to Taylor gave lor’s home. concurrently with the 70-month sentence implicat- in which he arresting officers appealing, he was then and to 360 months’ explained great ed Mominee and detail run imprisonment on Count to consecu- planning burglary. Specifically, Taylor timely ap- tively. then filed this in which he Taylor explained the manner peal. delivering it to gun prior stored the to Piper, knowledge that a silencer and his II. gun. Taylor

was attached to the denied number knowing who removed the serial A. gun. from the course, argues and Mominee first that the district In due both trial granting A indictment court erred in him a new on superseding were indicted. conspira- counts 1 and when he had moved charged Taylor with one count of thrust of cy interfering acquittal, not a new trial. The to violate the Hobbs Act court was by robbery, argument in his is the district interstate commerce jurisdiction grant without a new trial that the district court had no discretion to elapsed too much time had since do so at all. argument, because Since this as we 33; merit, Taylor’s explained, conviction. See Fed.R.Crim.P. pro- have has no we will Koehler, States v. 869 ceed to assignment second of er- (6th Cir.1994). government responds ror. appellate jurisdiction

that this court lacks B. court’s decision review district grant request- a new trial rather than the trial, During jury the first pre- acquittal, citing ed Northern v. United specific sented with certain interrogatories (6th Cir.1962). States, 300 F.2d 131 with regard to Count count, some of which the answered in parties Both miss the mark. Northern affirmative, it others of which an- only proposition stands that an negative. swered Specifically, the granting order a new trial is not itself jury was asked following whether the nine appealable order it is not a “final because acts, overt all of alleged which had been decision” within the of 28 U.S.C. superseding indictment, “proven” were elementary, id. at 132. It See proven”: or “not however, that though party may even a not 1. July, or about the exact order, file an from that appeal does date being unknown to the Jury, Grand may not mean he never obtain review of MOMINEE, BRUCE THOMAS defen- decision, once a final order has been herein, Evansville, dant travelled from Instead, entered. See id. at 132-33. order., Indiana, Waverly, Kentucky, to by “[t]he ‘reviewable Court of purpose appraising of for purposes of time, Appeals proper at the which is fol- sale the Indian artifact collection of lowing subsequent entry of the final Mattox, Louie doing and while so did case, judgment disposes which and ” photograph the said collection. an appeal may from which be taken.’ Id. (citation omitted). 2. September early 133 Between late to October, 1992, being the exact date un- hand, On the other Rule 33 does to Jury, known the Grand BRUCE govern not in which Taylor situation THOMAS MOMINEE travelled from language finds himself. The rule Indiana to the Western District Ken- precludes filing of a motion a for new tucky for the purpose delivering to days, trial after seven but does not address TAYLOR, RAY ALLEN defendant authority deny district court’s a herein, photographs of the collection of timely motion acquittal, while nonethe Indian American artifacts stored at the concluding arguments less that the under Mattox, residence of Mrs. Louie in Wa- See, lying justify the motion a new trial. verly, Kentucky. Baker, e.g., United States v. 3. September early Between late (10th Cir.1970). Indeed, Taylor him October, 1992, being un- exact date self concedes that the Federal Rules of Jury, known to the BRUCE Grand preclude Criminal Procedure do THOMAS MOMINEE delivered to approach. district court’s See id. RAY ALLEN photo- TAYLOR the said graphs of the Mattox collection of Amer- The district court’s decision to ican Indian artifacts. grant a new trial is reviewed for an abuse 12, 1992, of discretion. Rapa See United States v. 4. On or about October nos, Cir.), 115 F.3d County, Kentucky, cert. RAY ALLEN Union — denied, -, theft, 118 S.Ct. TAYLOR solicited the rob- (1997). Taylor bery, L.Ed.2d 234 does not con- of the Mattox collection of Ameri- tend that the district court abused its dis- can Indian a person artifacts whose trial, in granting only identity Jury. cretion him a new is known to the Grand the overt acts jury responded in The or about October 5. On 6, 7, 4, 6, and 8 were alleged paragraphs Kentucky, RAY ALLEN County, Union alleged in but that the overt acts “proven,” photographs displayed TAYLOR 1, 2, 3, prov- and 9 were “not paragraphs of American Indi- Mattox collection en.” paragraphs described an artifacts un- Acts to the 2 of these Overt

and jury’s Taylor argues responses that the 4 of alleged paragraph person named acquittal” amount to “constructive on Acts, in order to facilitate count, these Overt because the acts the person. artifacts the theft of said proven involving were those found not joint Taylor; in, conduct of Mominee 14, 1992, in 6. On or about October words, only other was shown RAY ALLEN County, Kentucky, Union “conspiracy” Piper, formed a have per- to the unnamed TAYLOR delivered agent, and thus not government who was 4 of these alleged paragraph son Taylor can be convict- someone with whom Acts, things, High among other Overt Therefore, having conspired. ed of Model, Standard, .22 Sport King caliber reasons, pre- either the doctrine of issue number of which had pistol, the serial clusion, estop- called collateral sometimes obliterated; silencer, ap- a firearm been jeopardy that of should have pel, or double (6”) in length inches proximately six barred the second trial on Count (1-1/4”) inches one-quarter one and number; diameter, bearing ap- no serial doctrine, Neither is of (70) proximately seventy rounds Fed- Taylor. aid to The doctrine of issue ammunition; brand, .22 eral caliber government from preclusion forbids the 120,000 gun; stun a canis- volt electronic relitigating only where an issue of issue ca- containing a chemical substance ter fact, necessary judgment, ultimate to the tempo- pable incapacitating person of was determined in the defendant’s favor (2) two facial rarily; tape; a roll of duct judgment. a valid final See Ashe v. (2) masks; a Ken- pairs gloves; two of Swenson, 436, 443, 1189, 397 U.S. 90 S.Ct. plate; and tucky registration automobile (1970). was, 25 L.Ed.2d 469 There obvi cutting in order to facilitate the pliers, ously, Tay no ultimate fact determined in theft of the Mattox collection of Ameri- trial, during lor’s favor the first since he can Indian artifacts. convicted, acquitted, by jury. not the assuming arguendo something And that 14, 1992, 7. On or about October judgment acquittal less than a valid final of RAY ALLEN TAYLOR discussed any preclusive point can have effect—a Mattox residence planned robbery of the decide, which we need not but about which alleged in person with the unnamed Taylor are can we nonetheless dubious— paragraph 4 of these Overt Acts. “constructively” not be said to have been or On about October of acquitted. There was an abundance in person alleged paragraph unnamed Taylor conspired evidence this case RAY represented of these Overt Acts Mominee, and fact that the overt with he, ALLEN the un- TAYLOR acts described in the execution of the con person, named had stolen the collection spiracy joint activity not involve a did Indian artifacts from the American simply point. Mominee is beside the The Mattox residence. agreed had found the defendant 16, 1992, law something with another to do for 9. On or October about bids, trav- and also found that one member of BRUCE THOMAS MOMINEE act in conspiracy committed an overt elled from Indiana to the residence of law of Kentucky conspiracy. RAY ALLEN furtherance of the TAYLOR govern possession conspiracy require does not purpose taking prove anything ment to more. the Mattox collection of Indian artifacts. (3) reasons, Taylor’s purposes

For the same For of this subsection as well. the term “crime of violence” double-jeopardy argument fails means felony offense that is a grant of a and— Retrial after the district court’s prohibition (A) new trial does not violate use, has as an element the at- jeopardy against jeopardy double because use, tempted or threatened use of only terminates when the defendant is ac physical against force the person or quitted guilty another, or when the verdict has been property of unsuccessfully appealed. See Richardson (B) nature, its involves a States, 317, 325, v. United 468 U.S. physical substantial risk that force (1984). Again, 82 L.Ed.2d against person property of an- neither situation adheres in case. may other be used the course of

committing the offense. (West Supp.1998). 18 U.S.C. 924 C. matter, an initial Taylor As does argues next that his conviction dispute that a to violate the using during a firearm and in relation Hobbs Act is a “crime of within violence” violence, in to a crime of violation of 18 924(c). note, of section We 924(c), in light U.S.C. must be reversed independent that our review of States, v. United 516 U.S. subject plain any makes it to us that (1995). 116 S.Ct. 133 L.Ed.2d 472 dispute unavailing. such would be It is Specifically, he contends that because his well-settled that whether a crime one “of only act in relation to the firearm was to violence” is a determination we make Piper, transfer it to well in advance of the looking statutory definition of the proposed robbery, the evidence was neces- crime, rather than to present the evidence sarily insufficient to show that he used the prove ed to it. See v. United firearm relation to the crime States, 575, 602, 110 S.Ct. question. appeal, violence On (1990). 109 L.Ed.2d 607 Act The Hobbs “ by asking consider his contention ‘wheth- makes it unlawful to commerce or “affeet[ ] er, after reviewing evidence commodity the movement of article or light most to prosecution, favorable commerce, by robbery in or ... con [to] any rational trier of fact could have found 1951(a). § spiren so to do.” 18 U.S.C. beyond the essential elements of the crime actually charged with and con ” a reasonable doubt.’ United States v. Act, victed of not a violation of the Hobbs (6th Cir.1998) McRae, 156 F.3d however, but with a violation of 18 U.S.C. omitted). (emphasis and citation § which makes it unlawful for “two or ... persons conspire more to commit [to] applicable version of section any purposes offense.” For [federal] in part of Title 18 reads relevant as fol- analysis, the violent-crime this lows: charging technicality makes no difference. (c)(1) Whoever, during and in relation event, any In Act the Hobbs defines “rob to crime of violence ... for which he bery” taking of property as the unlawful in may prosecuted be a court of the person “by from a means of actual or States, firearm, United uses or carries a force, violence, or or fear of threatened shall, punishment pro- in addition to the future, injury, person or to immediate his ..., vided for such crime of violence be property, property custody or or his or imprisonment sentenced to five possession, person property or the or of a years, ... if ... and the firearm is family his or of relative or member of ..., equipped with a firearm silencer anyone company his at the time of thirty imprisonment years. taking obtaining.” 18 U.S.C. 1951(b)(1). that, given We conclude definitions, car- ically attempt commit a criminalize an to use or conspiracy a these ry during violates the Hobbs Act is a such an offense.” Id. robbery that firearm that, omitted). Anderson,' na necessarily conspiracy a its In (emphasis at 1314 ture, physi risk that a substantial interpreted Bailey involves as follows: against person may cal be used force Bailey represents Supreme Court’s another, and therefore is a property proximity that factors as concern such within the violence crime of accessibility insufficiently reli- are 924(c). See, e.g., v. United States section gun indicators of intent to use a able (9th Male, Juvenile drug offense or crime of vio- Elder, Cir.1997); States v. 88 F.3d By limiting lence. use to situations Cir.1996). (2d 127, 129 gun which the is in hand or defendant’s argument simply is where the defendant manifests his intent a firearm in connection with he did not use gun by referring to use the to it in such considering offense. In his others, way as to influence the Court argument, Bailey, we turn first to sought potential to reduce the for erro- 133 L.Ed.2d 116 S.Ct. regarding neous determinations defen- considered the Supreme which the Court dant’s intent. context meaning of the word “use” Id. at 1314-15. 924(c)(1), of section and held mere possession of a firearm does not suffice for Only one other court has considered the conviction. The ruled sus “[t]o Court question facing today. In precise us Unit prong tain a under the ‘use’ conviction Cir.1997), Phan, ed States F.3d 149 924(c)(1), must show the Government — denied, -, rt. ce employed actively that the defendant (1998), 1038, 140 L.Ed.2d 104 predi firearm during and relation Bailey’s Fourth Circuit concluded that 924(c)(1) cate crime.” Id. at 150. Section guidance “imperfect” applied is when “requires to show an evidence sufficient conspiracy: the inchoate crime of employment active of the firearm application deals defendant, a use that makes the firearm 924(c)(1) predicate when the offense is operative predicate factor in relation to the Conspiracy, substantive crime. how- employ offense.” Id. at 143. “[A]ctive ever, inchoate crime. As stated ment,” specified, the Court “includes Court, Supreme legal system our bartering, brandishing, displaying, striking agreement engage “identifies the to- in a with, obviously, firing or at most criminal venture as an event of sufficient fire, tempting to a firearm.” Id. at 148. im- permit threat to social order to holding, rejected “the so Court position of criminal sanctions the expansive interpretation more of use under alone, agreement plus an overt act in gun which a defendant ‘uses’ a when he it, pursuit regardless of whether the gun nearby ready a to be at the ‘conceals agreed upon actually crime is commit- for an imminent confrontation.’” United ted.” The post.Bailey application [sic] (6th Anderson, 1306, 1313 States v. 89 F.3d 924(c)(1)'in § conspiracy cases where Cir.1996) 149). (quoting Bailey, 516 U.S. at predicate commit a violent crime is the effect, In considering Bailey’s scope and offense, underlying and the crime has rejected an argument this court has the committed, straightforward.... been is government that a defendant “can be never agreed-upon When the crime is 924(c) § guilty attempting found under committed, however, Bailey only can he Here, gun, to use a without more.... applied general a more sense. 924(c), § among things, other makes it a added) (footnote crime carry (emphasis to use or a firearm a Id. at 153 omitted). drug offense; trafficking specif- it not does citation

339 citizen, robbery private burgla- came to the conclu- the of a or The Phan court then sion, ry of a very private under facts similar to those be- residence. does not us, argue government produced that the properly that the defendant could insuf- fore the firearm at issue: ficient evidence that his crime had an ef- be said to have “used” commerce; “In the context of the inchoate crime of fect on interstate he raises robbery, only conspiracy legal challenge scope to commit we find to the of the Act, conspira- applied. to a fellow giving of firearms Hobbs as employment.” constitutes active Id. tor Lopez, Supreme Court struck must first note a measure of dis- down the Act We Gun-Free School Zones agreement 922(q), with the Phan court insofar as 18 U.S.C. as violative of the 924(c)’s Clause, pro- opined applying Congress it section Commerce because had conspira- placed crime of no interstate hibitions to the inchoate commerce element unusually Lopez, It not at all the statute. Unlike the statute in cy is difficult. is Act bring activity the Hobbs involves government unusual for the 924(c) repeatedly which courts have found has charge predicate when the crime is see, substantial effect on interstate commerce. drug-trafficking conspiracy, e.g., See, Stillo, e.g., v. Anderson, United States 89 F.3d at and for us to (7th Cir.1995). Also, the Hobbs drug scope consider the when no specific jurisdictional Act contains a re successfully complet- was ever transaction quirement; applies any it to “[w]hoever point But we take the Phan court’s ed. obstructs, way degree delays, or affects case, here, as it means that in its as insofar commerce or the movement of article conspiracy long was halted before the commodity commerce.” 18 U.S.C. committing came close to conspirators 1951(a). Further, Supreme Court here, out, burglary. points And as has, occasion, upheld on more than one only ques- his connection to the firearm constitutionality of the Hobbs Act. See Sti coconspirator tion—its transfer to his —(cid:127) States, 212, 215, rone v. United long burglary itself was came before (1960); S.Ct. L.Ed.2d 252 contemplated. even Green, 415, 420, 76 States v. circumstances, Considering we these (1956). And, insig 100 L.Ed. 494 disagree find ourselves constrained to nificantly, already court affirmed this has ultimate conclusion of the Fourth Cir- validity of the Hobbs Act constitutional Taylor’s cuit. transfer of a firearm to Lopez challenge. in the face of a See days in Piper advance of the time when Valenzeno, 123 F.3d United States object was to occur Cir.1997). employment” falls short of the “active Taylor’s Lopez should be argument Court mandated be shown. We applied prosecution invalidate his under Taylor’s analogous find actions to be rejected. the Hobbs Act must be activity rejected have often as type post-Bailey insufficient in our decisions III. drug-trafficking context. We there- Taylor’s judgment fore reverse conviction. of conviction under 18 924(c) REVERSED, and the U.S.C.

D. proceedings matter REMANDED for is opinion. with this otherwise consistent We Finally, Taylor argues that his reject appeal. on arguments his Act conviction must be reversed in Hobbs in light Supreme of the Court’s decision NELSON, Judge, DAVID A. Circuit 549, Lopez, 514 115 United States v. U.S. in dissenting part. and concurring part (1995). 1624, S.Ct. 131 L.Ed.2d 626 contends, I in all but Part II of the particular, he the Hobbs Act is concur C regard With to the issues applied opinion. unconstitutional insofar as it is court’s 340 I that a con part, agree Bailey, in that Smith is not inconsistent as

discussed robbery that would spiracy explains. to commit the latter decision Notwith- Act is itself “crime of violate the Hobbs standing that “declined to limit ‘use’ Smith ” meaning of 18 within U.S.C. violence” meaning weapon,’ to the of ‘use as Phan, 924(c). v. 121 § United States See 924(c) § interpretation Smith’s of “none- (4th Cir.1997), cert. de 152-53 theless adhered to an active of — -, nied, 118 S.Ct. U.S. Bailey, the term.” It is (1998) (“A conspir Act Hobbs L.Ed.2d Bailey’s thus no accident that illustrative robbery separate ... is a acy to commit may that list of uses constitute “active providing predi its own crime of violence id., employment,” “bartering.” includes 924(c)(1)liability”). I disagree, cate for (“The active-employment understanding that with the conclusion under certainly brandishing, ‘use’ includes dis- States, v. 516 U.S. Bailey United with, playing, bartering, striking and most (1995), no ra 133 L.Ed.2d obviously, firing attempting or fire Tay juror tional could find defendant firearm.”) (Emphasis supplied.) during and in relation lor “used” a firearm conspiracy Act to the Hobbs when he weapon The the case before us was a firearm in the hands of the man placed bartered, suppose, of course—but expected robbery who to commit the analysis, it purposes had been. object conspiracy. of the that was words, Suppose, in other defendant Taylor had delivered the firearm to the majority’s The conclusion on this issue is prospective robber not for use contrary to the conclusion reached robbery, down-payment but as a for the Circuit, comparable under circum- Fourth robber’s services. teaches that stances, persuaded in Phan. I am not delivery of the firearm under cir- these Bailey, inconsistent with and I Phan is “certainly” cumstances would have been 924(c) would affirm defendant employment” weapon “active of the affirming conviction as well as his convic- during and relation to the Hobbs Act conspiracy. tion for so, robbery conspiracy. being I am This why at a loss to delivery understand I weapon of the prospective to the robber robbery conviction must be af- for use in the itself would not firmed, Bailey, under if the record con- employment likewise be active of the tains “evidence sufficient to show an active weapon during relation to the con- the firearm employment of the defen- spiracy. dant, a use that makes the firearm an Delivery purpose payment for the operative predicate factor in relation to the no delivery more “active” than Bailey, offense.” 516 U.S. at 143. “Active purpose enhancing firepow- the robber’s employment,” Supreme Court has er. It seems to me that each type of clear,

made is not limited to the defen- delivery delivery in payment for the —a brandishing weapon firing dant’s prospective robber’s services and a deliv- attempting to fire it and in relation ery promote accomplish- successful offense. predicate See Smith object ment robbery that is the States, 113 S.Ct. qualify as “an ac- (1993), 124 L.Ed.2d 138 where the —would employment tive of the firearm predicate drug trafficking offense was a defendant, a that makes the firearm an use crime; there the court held that the defen- operative predicate factor in relation to the dant had weapon during “use[d]” the [conspiracy] Bailey, predicate relation to the offense.” See offense when he a gun drugs. bartered for at 143. delivery of involved a defendant’s two

II handguns prospective to a robber for use deci appellate court are two There robbery. delivery, This act of the in the circuit—that from this sions—one out, in itself pointed Fourth Circuit “was The conclusion. me this strengthen conspira- an act in furtherance of the overt Anderson, 89 F.3d is United States first Phan, 121 F.3d at 153. cy.” denied, (6th Cir.1996), cert. L.Ed.2d 728 Phan, here, robbery as the never (1997), ad of this court panel where a relevant actually place “[t]he took —but whether a could question the dressed noted, “is whether question,” as the court in relation gun had “used” find that been actively the employed [the defendant] when there was evidence drug to a offense in relation to the handguns during reaching was the defendant handguns conspiracy, whether en agents enforcement weapon when law actively employed during and in rela- were drugs. for apartment to search tered his robbery.” (emphasis sup- Id. tion to conviction Although the defendant’s The Fourth Circuit did not read plied). error, panel for instructional set aside foreclosing an affirmative an- Bailey as that, “a de Bailey, under expressly held whether the hand- question swer to the whether gun, for a fendant who reaches employed in rela- guns actively had been hidden, gun uses that is visible or gun conspiracy. tion to the 924(c).” § Id. purposes of 18 U.S.C. 1315. handguns nexus between “[T]he the les- panel Anderson understood robbery conspiracy to commit could be gun that a could not son of to be closer,” the Fourth Circuit ob- not be in violation of to have been used found served, having been trans- handguns 924(c) objective “reliable manifes- absent “in for their eventual preparation ferred intent to use the tations of the defendant’s robbery.” Id. The use use underlying with the of- gun connection in Phan would obvi- handguns made of the “objective fense.” Id. at 1314. Such “objective ously passed have Anderson’s present was found to be manifestation” test, and it seems to me manifestation” gun reaching “an act of Anderson: was correct the Fourth Circuit manifestation generally reliable provides that there was evidence of concluding gun in intent to use the of defendant’s firearms, within employment active way ‘brandishing, dis- much the same Bailey, during and rela- with, bartering, striking and most playing, conspiracy offense. predicate to the tion fire’ a obviously, attempting firing conclusion I would reach the same Because similarly accurate provides such a gun here, from the rever- respectfully I dissent to use.” Id. at manifestation of intent Mr. conviction. sal of bar, similarly, I should

In the case at Taylor’s de- thought have that defendant robber livery gun prospective generally reliable manifesta- “provide[d] intent to use the tion” of the defendant’s Act con- with the Hobbs gun connection underlying of- that constituted the spiracy so, interpre- If under Anderson’s fense. violated Bailey, the defendant tation of 924(c). decision, course, that of The second Fourth in Phan —a case Circuit

Case Details

Case Name: United States v. Ray Allen Taylor

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 10, 1999

Citation: 176 F.3d 331

Docket Number: 96-6341

Court Abbreviation: 6th Cir.