United States v. Timothy Wayne Morrow (89-5418/5708), George Mooneyham (89-5710)

pear the stated time place, plain-

tiff-appellants would have been entitled to pleadings

have his Wright stricken. See C. Miller, A. Federal Practice and Proce-

dure; Civil n. 16.

The record does not indicate that

plaintiff-appellants gave ever notice of Mr.

Marlinga’s deposition, they clearly

failed to make the showing kind of re-

quired 56(f). by Rule See Emmons v.

McLaughlin, 874 F.2d Cir.

1989) burden,” (“Appellant bore the under 56(f),

Rule “to demonstrate to the district

court why ‘for reasons stated’ he could not

oppose summary judgment motion

affidavit postponement ruling and how of a

on the him motion would enable to rebut

Appellee’s showing of the absence of a fact.”)

genuine compliance issue of Absent 56(f), court, view, my

with Rule this has

no alternative but to take the action de- opinion.

scribed in the court’s America,

UNITED STATES of

Plaintiff-Appellee, (89-

Timothy Wayne MORROW (89— 5418/5708), George Mooneyham

5710), Defendants-Appellants. 89-5418,

Nos. 89-5708 and 89-5710. Appeals,

United States Court of

Sixth Circuit.

Argued Jan. 1990.

Decided Jan. 1991.

hicles, wearing camouflage clothing and ski masks. As approached defendants field,

agents them, noticed that one of later iden- tified as Mooneyham, defendant was wear- ing a holster with handgun. a Upon enter- patch, began defendants pacing the R. (argued), James Dedrick Asst. U.S. rows, cutting marijuana plants. ap- After Atty., Knoxville, Office Atty., of the U.S. proximately ten agents' minutes the con- Tenn., plaintiff-appellee. for fronted defendants. Morrow was immedi- (argued), Edward Miller Benja- C. and A. ately apprehended, but Mooneyham ran Strand, Goddard, min Dandridge, Strand & into the woods and was captured for Tenn., for Morrow. thirty about minutes. Mooneyham When Lomonaco, Knoxville, A. Philip Tenn., arrested, was the holster empty. was The Mooneyham. agents gun, later found the .22 caliber magnum revolver, at the entrance to the KRUPANSKY, Before JONES marijuana patch. It was and in loaded Judges, HILLMAN, Circuit Chief working order. Judge.* District being After advised of his Constitutional rights, explained agents Morrow to the HILLMAN, Judge. Chief District that he removing plants male from Timothy Wayne Defendants Morrow and patch production to facilitate the George Mooneyham appeal jury their con- tetrahydrocannabinol in plants. the female drug victions on three related offenses. proceeded to show one of the I, On jury Count found that defendants agents the difference between a male and a aided and abetted each other in the unlaw- plant. Further, female Morrow stated that ful marijuana manufacturing violation plants would not be harvested until 841(a)(1), 841(b)(1)(C), U.S.C. §§ formed, buds which would occur about 18 U.S.C. 2. Defendants were convicted § another nights month when the cooled. on Count II under 21 U.S.C. 846 of con- § were Defendants tried a jury before on spiring marijuana. to manufacture Count 17-18, October 1988. The returned charged III Mooneyham, defendant aided guilty verdicts as to both defendants on all Morrow, and abetted defendant with three counts. At sentencing hearing, carrying a firearm and in relation to Morrow sixty-three was ordered to serve trafficking offense violation of 18 (63) imprisonment months on I and Counts 924(c). forth, U.S.C. For the reasons set § II, concurrently. Mooneyham to be served we affirm verdict on Counts I and (37) thirty-seven sentenced to months II but judgments vacate the as to Count imprisonment II, on Counts I and also to be III. (the concurrently. served On Count III offense), firearm both defendants received I. the mandatory year five sentence set forth by Special Defendants arrested were in 18 to be U.S.C. served consecu- Agents of the United States Forest Service tively the underlying sentences. addi- they plants as tended large marijua- in a tion, the trial court ordered that each de- patch growing na in the Cherokee National fendant year super- serve a five term Forest. Service had Forest been sur- following vised release his incarceration. veying marijuana the two fields of since II. discovering June, them in July 1988. On agents 1988 the observed defendants general Defendants claim several errors approaching patches on appeal, all-terrain ve- on challenge and also their convic- * Hillman, Douglas Michigan, sitting by Honorable W. designation. Chief ern District Judge, United States District Court for the West- following by the court sufficiency III of the to the comments

tions on Count jury: the absence adequacy instruction evidence and only chal- grounds. Although having we find hand in the cookie Talk about his merit, you want to steal jar III we will when don’t lenges on Count to have I strongest case cookies ... About raised. address each issue heard. ever Bruton first A. issue: J.App. at 125-126. re contends that the trial court committed may, in prejudice A some court’s bias by admitting codefendant versible error circumstances, right violate a defendant’s arresting made to the Morrow’s statements Mississippi, process. to due Johnson immediately his arrest. Moo agents after 1778, 1780, 212, 216, neyham argues that admission of (1971). The statements cited L.Ed.2d 423 incriminated him and violated confession here, however, sup- do defendants right to confrontation. his Constitutional judge that the trial was port the conclusion recognized poten- Supreme Court contemporaneous ob- prejudicial. Since no joint problem in trials tial confrontation trial, apply jection made at we must was nontestifying codefendant’s con- where plain error States v. standard. United prejudices a defen- is admitted and fession 595, (6th Cir.1987). Slone, 833 F.2d 598 the confession is not against whom dant viewed in judge’s A comments must be States, v. 391 admissible Bruton they in which were made and the context 1620, 123, 20 L.Ed.2d 4Y6 88 S.Ct. U.S. the overall they “adversely unless affect (1968). problems, the To avoid Bruton they trial” will not be fairness of the pronouns plural all trial court ordered Lockhart, prejudicial. deemed Harris v. refer to Moo- might be construed to which 619, (8th Cir.1984). The state- 743 F.2d 620 neyham redacted from Morrow’s state- following were made defen- ments here Marsh, 481 Richardson v. U.S. ment. See Judgment Acquittal. dants’ motion for 1707-08, 200, 1702, 207-09, 95 107 S.Ct. motion, ruling upon such a the trial In (1987). L.Ed.2d 176 judge called to comment on the trial, agents testified that At one of the sufficiency government’s proofs to “they” him had had told how Morrow 29; Fed.R.Crim.P. sustain a conviction. growing marijuana. Follow learned about 610, Davis, 617 785 F.2d United States v. objection, the officer correct ing defense’s Cir.1986). Furthermore, (8th the comments testimony, using only singular pro ed his presence of the made outside the were Mooney- slip did not violate nouns. This substantially diminishing the jury, thereby No confronta rights under Bruton. ham’s prejudice. of actual See United likelihood the codefendant problem tion arises where 770, (11th Block, F.2d 776 v. 755 States available for cross-examina testifies and is Cir.1985). statements did These isolated 627, O’Neil, 402 v. U.S. tion. Nelson not render the trial unfair. (1971); 1723, 1726, 222 29 L.Ed.2d Morrow has C. Prior Convictions: (6th Cir.), Rose, F.2d 646 Hodges v. 570 robbery previously been convicted denied, 56 S.Ct. fifty dollar bills. possession of counterfeit (1978). defendants Here both L.Ed.2d to elicit The court allowed stand, opted to take examination of Morrow this on cross opportunity to cross-ex afforded a full was argues impeachment purposes. Morrow statements. regarding those amine Morrow express finding by the court absent Mooneyham’s Amend Consequently, Sixth probative value of this evidence that the protected. rights ment were effect, outweighed by prejudicial was its improperly admitted. this evidence The next issue B. bias: Judicial without merit. This claim is judicial allegations of appealed involves prior involv as Evidence of convictions and bias. Both defendants misconduct are ad dishonesty or false statements a fair trial due were denied sert credibility. the witness’s they refer missible to attack support judge’s bias. 609(a)(2). rule, Magistrate. 609(d) Fed.R.Evid. Under this fore Rule therefore district court has no discretion to does not exclude bar the admission of this evidence. convictions. McHenry v. prior evidence of Finally, pri- evidence of Morrow’s Chadwick, (6th Cir.1990). robbery conviction for properly ad Hans, See also United States 609(a)(1). mitted under Rule While the (3rd Cir.1984); United States court must probative determine that Kuecker, Cir.1984). outweighs value prejudicial effect un Consequently, a witness convicted of a . der rule, this subdivision of the involving dishonesty crime or false state- incorrectly assumes that the court must may impeached through ment be the con- expressly set forth findings its on the regardless any potential preju- viction record. That is not the law of this circuit. dice. Thompson, United States v. A trial court’s decision Counterfeiting involving is an offense to admit prior evidence of a conviction for “dishonesty or false statements.” impeachment purposes 609(a) under Rule explain Conference Committee notes upset only upon will showing be of abuse perjury “crimes such as or subordination of Ortiz, of discretion. statement, fraud, perjury, false criminal denied, 782, (2nd Cir.), cert. 784 434 embezzlement, pretenses, any or false 897, 277, U.S. 98 S.Ct. 54 L.Ed.2d 183 falsi, other offense in the nature of crimen (1977). only The trial court allowed limited the commission of which involves some ele prior cross examination on the convictions. deceit, untruthfulness, ment of or falsifica J.App. at 178-179. The trial court’s deci bearing propensity tion on the accused’s to sion to admit this evidence did not consti testify truthfully” are included under Rule tute an abuse of discretion. 609(a)(2). 1597, Conf.Rep. Cong., No. 93rd Sess., reprinted in 1974 U.S.Code Cong. 2d Physical D. Evidence Issue: Vari 7051, 7098, agree & Ad. 7103. We News paraphernalia ous tools and commonly as with other courts which have found coun cultivating marijuana sociated with were terfeiting to fit within this definition. See patch recovered from the and admitted into Noble, United States v. 754 F.2d 1324 objects evidence. Morrow to their admis denied, Cir.), cert. 474 U.S. 106 S.Ct. grounds sion on the (1985); Kaye v. United 88 L.Ed.2d 51 failed to establish connection between States, 177 F. 147 It was this, him equipment. light and the necessary judge therefore not for the to physical Morrow contends that evi probative against balance the value being dence should have been excluded as prejudicial admitting effect before evidence prejudicial probative. more than of this conviction. argument pertains to fourteen properly different exhibits. Each was iden correctly juve Morrow notes that agents prior being tified to offered adjudications nile are not for admissible J.App. into evidence. at 76- admitted impeachment purposes. Fed.R.Evid. 77, 91, 108-117. At no time did Morrow 609(d). However, that, the record shows object to the admission of these articles. although prosecuted under the Federal object right waives his to raise Failure to Act, Youth Corrections 18 U.S.C. 5005- §§ States, appeal. Steagald v. United this on 98-473, II, (Repealed, Pub.L. Title 451 U.S. 101 S.Ct. 68 L.Ed.2d 38 218(a)(8), 2027), Oct. Stat. Cardinal, (1981); juvenile Morrow was not a at the time of denied, (6th Cir.), F.2d 34 counterfeiting. his arrest or conviction (1986).1 90 L.Ed.2d 30, 1963; August he Morrow born was arrested and convicted of both crimes E. Misconduct: Prosecutorial 189; a 'J.App. Rpt. argues in 1982. of Proc. Morrow next that he was denied be- Though object argument merit, 1. Morrow blames the failure to also find this to be without object valid. counsel, of his since we waiver for failure to incompetency prosecutor physical improperly object

fair trial because the ure to to the admission of evidence; (3) in closing argument particular made statements failure to call a deliberately passions preju- witness; (4) arouse the impeach govern- failure to a jurors. argument statement; dices The contested prior witness with a ment reads: (5) acquit- failure to move for a new trial or against carry weap-

It’s federal tal under Fed.R.Crim.P. 33. law of, inon the commission or to facilitate Supreme Court set forth a two- violation of federal narcotics statute. sufficiency ar- pronged test for of counsel you why. And I think see the reason guments Washington, Strickland exposes agents Because it the lives of 668, 688, 2052, 2065, U.S. S.Ct. people, and other this is national forest (1984). prevail, L.Ed.2d 674 To Morrow land, I, you rights our children have performance that counsel’s “fell must show land, to walk on forest and that’s reason objective of reasonable- below an standard do, citizens, protect we have laws we “preju- his defense was ness” and that individuals, going if are to break grossly defi- diced” as a result. Absent is, laws, they’re thing narcotics but other conduct, cient tactical decisions counsel going carry weapons. guessed by will not be second the review- J.App. at 192. ing presented Id. Morrow has not court. specifically questions the refer- strong sufficient to overcome this evidence children, jurors plac- their ence to the adequacy. presumption of The record potential them as victims. Where pretrial that counsel filed several shows prosecutor’s conduct rises to the level of actively participated in motions and the tri- trial, tainting process the whole due is vio- al. States, Berger lated. U.S. Arguably, counsel’s failure to move for a 88-89, 629, 633, 78, 55 79 L.Ed. 1314 S.Ct. judgment acquittal new trial or a of was 832, (1935); Lynaugh, 852 F.2d Guidroz v. However, mere tactical error. Mor- not a However, (5th Cir.1988). appeal on 836-37 in row’s claim nonetheless fails the second the court should reverse a conviction based prong of the test. A conviction Strickland only if upon prosecutorial misconduct the defendant will not be overturned unless resulting prejudice permeates entire tri- deficiency that for counsel’s can show but 1063, Terry, 729 F.2d al. United States v. likely not have convicted. he would been Furthermore, 1070 since presented that the Morrow has no evidence trial, only object Morrow did not we will granted trial court would have this motion. finding upon disturb the conviction of plain Young, error. 470 United States Enhancement: G. Sentence 1041-42, 1, 6-7, 1038, 84 U.S. 105 S.Ct. charges I of the indictment Morrow Count (1985). L.Ed.2d 1 aiding abetting in the unlawful with (100) statement, closing manufacture of “one hundred or

This isolated made in objectionable marijuana plants. Morrow’s sen- argument, although clearly more” denying guidelines the level of Mor- tence under the was determined does not rise to actually it consti- process rights, plants due nor does 883 recovered row based plain properly The court in- fields. Morrow submits that tute error. from the two only the jury improper to consider evi- it sentence enhancement to structed was dence, closing guideline and reminded them that ar- base level offense calculate the part plants charged the evidence. There- 100 in gument anything is not but the fore, right to a we conclude that Morrow’s the indictment. prejudiced.

fair trial was not relies on v. Alva- United States (11th Cir.1984), pre- rez, 461 735 F.2d F. Ineffective Assistance case, support his claim. The guidelines five instances Morrow lists Counsel: improper to enhance a alleges performance court there held where he counsel’s upon quantity (1) ex based where the inadequate: failure to move to sentence convictions; (2) allege quantity. Id. at prior fail- indictment failed clude evidence of firearm, shall, mis crime ... uses or carries a Morrow's reliance on Alvarez is 468. (100) punishment provided to the quantity “one hundred addition placed. The alleged drug in the indict for such crime of violence traf- plants” or more crime, ficking be expressly provide imprison- ment. sentenced to The Guidelines years.... drugs specified in ment for five “quantities of conviction are to be included the count 924(c)(1). 18 U.S.C. § level if were determining the offense legislative history reveals that Con part part of the same course of conduct or ensure gress aimed to that the statute not plan scheme or as the count of a common punish people instances pres where the Sentencing of conviction.” Federal Guide merely firearm was ence of the coincidental 1B1.3, n. 5. lines See also Guidelines § unrelated to the violent or Manual, (guideline drug traf 2D1.1 225, trafficking S.Rep. offense. No. 98th offenses); ficking v. Fer United States (1983), Cong., 1st Sess. 312-14 reprinted nandez, 1138, (2nd Cir.1989); 877 F.2d Cong.Admin. 1984 U.S.Code News Perez, United States (hereinafter Report”); “Senate — Cir.), denied, ——, U.S. 109 S.Ct. cert. Stewart, States v. (1989). L.Ed.2d The district (9th Cir.1985), denied, correctly quantity full court used the (1987). L.Ed.2d calculating sen drugs involved in noted, recently As we “The Senate Judi tence. ciary report Committee’s indicates that 924(c) jury instruc Congress phrase H. Section ‘in to’ added the challenges conviction his keep per tion: the statute focused on those grounds on the played on Count Three whose firearms a role in their sons adequately instruct the court did not criminal conduct.” United States v. Specifical (6th Cir.1990) crime. Brown, the elements of the as to 10), the court ly, Mooneyham contends that (citing Report the Senate at 314 n. had to Cong. p. failed to advise the Admin.News U.S.Code & part drug trafficking integral 3492. be

offense. recently This held that “the Circuit ‘in the element challenge phrase the in- relation to’ modifies

Mooneyham failed to However, 924(c). Brown, ‘during’...” in section at the court below. struction Although the “in relation raising 915 F.2d at 227. preclude him from the this does not a language to” does not add substantive may review the appeal. We still issue on 924(c)(1) specific a element or make section plain a error standard. applying instruction offense, nature of the it alters the 15-16, intent at at Young, 470 U.S. required that to secure a convic- proof is egregious “an er- Plain error is 1046-47. A conviction under tion. Id. at 226-27. ror, miscarriage directly leads to a one that 924(c)(1) appellate re- section will withstand Busacca, justice.” United States view (6th Cir.1988). We find that F.2d here, possessor weapon if of a intended and therefore the

plain error occurred during possible use have it available for Mooneyham’s conviction on Count reverse transaction, immediately following the or III. by lend- if it facilitated the transaction 924(c) made it an Prior to section possessor. The defen- ing courage to the unlawfully “carr[y] a firearm offense to carrying of the purpose in the dant’s sole felony.” When during the commission of a weapon been facilitation need not have part the was rewritten as the statute drug trafficking crime. the Act Comprehensive Control Crime Pape (quoting at 226. United States Id. “unlawfully” requirement was eliminat- the (1st Cir.1989)). ro, F.2d “in relation to” was phrase ed and provides: The statute now sum, recognizes added. this Circuit proof of a rela- requires Whoever, any as amended during and un- weapon and the tionship drug trafficking between of violence or crime derlying offense that weapon shows the jury goes beyond merely reiterating the Brown, least facilitated the pertinent offense. statute.

F.2d at possession 226-27. Mere of a We have consistently held that it is the weapon during the course of criminal con- duty of the judge jury trial ‘to tell a what enough. duct is not “Rather, Id. at 224. they facts must find before can 924(c), ‘under the is, current version of convict—that instruct the as to government is shouldered with the burden the elements of the charged.’ crime [ci- of establishing some relationship tations Ordinarily, between it will not omitted.] the firearm merely to possessed read to the and [the defendant] suffice ” predicate defining statute drug the crime. Even trafficking offense.’ though the language of a Wilson, may Id. statute (quoting United States v. expressly contain all the (5th Cir.1989)). elements of the offense, English common words often By simply mirroring language of the will peculiar have legal significance, 924(c)(1)itself, section given the instruction (emphasis added.) by the district court in this case failed to Bryant, States v. explain that “in relation to” modifies “dur- ing” requires proof relationship of a argument At oral sub- between drug the firearm and offense: “in mitted that relation to” is not a term of Finally, you must consider Count III of art, and required therefore no elaboration. charges indictment which on or about phrase While the separate does not create a 31st, 1988, July County, Cocke within element, substantive it nevertheless modi- Tennessee, the Eastern District of “during” 924(c)(1) fies the element of defendant, George Mooneyham, aided requires explanation of the relational defendant, abetted Timothy necessary connection to secure a convic- Morrow, Wayne knowingly did and inten- tion. We find that the district court erred tionally carry firearm; is, use and a instructing specifically more on the a .22 caliber revolver rela- aspect relational “during and in rela- tion to a trafficking offense. This tion to” element. charge is a violation of a federal law example An of what we consider an ade- Code, found in Title United States quate instruction recently upheld by 924(c)(1) (2), illegal which makes the Fourth Circuit: carry use or a firearm in relation to prove beyond Government must [T]he drug trafficking crime ... In order for reasonable doubt that the firearm had carry the Government to its burden of some relation to or some connection to proof Defendant A crime. firearm can be guilty III, charged crime in Count felony involving used in relation to a prove, beyond Government must drug trafficking, person if possessing doubt, that; one, reasonable George gun contingen- intended to use the as a Mooneyham unlawfully manufactured arose, cy example, protect for to himself marijuana plants, charged as in Count I escape possible. or make an of the indictment conspired to manu- Brockington, United 849 F.2d States marijuana, charged facture as in Count Cir.1988). (4th This instruction ...; II secondly, that the Defendant Congressional intent “in reflects the of the Mooneyham knowingly willfully car- by language incorporating relation to” ried a firearm relation to example legislative history. in the found this offense. n. Report Cong. Senate at 314 U.S.Code J.App. 196-97. 1984, p. & 3492. Unlike the Admin.News Although bar, instruction this recites the es- given one in the case at this instruc- necessary sential elements to convict under fully apprises jury tion of the additional 924(c), section plainly inadequate. it is connecting weapon facts to the crime judge’s trial responsibility in charging the find charge. that it must to convict on this doubt.”); provide examples Rose, Other recent cases Clark v. 924(c)(1) (6th jury Cir.1987) (“[t]he instructions that avoided the question is whether apparent provided guilty defects the one by the verdicts light reached in in Mooneyham’s district court ... case. See instruction error were beyond correct a Michaels, doubt.”) reasonable States v. Applying United F.2d this stan- (8th Cir.1990) dard to the facts (upholding jury 132-33 in- at hand we do not find the error to find, be requiring jury struction “the to at the harmless. least,

very gun that the was available to Mooneyham strenuously argued at trial defendant, availability and that its facil- only that the purpose for the towas itated the out of the drug-traffick- Mooneyham shoot snakes. testified that ing crime.”); Henning, very he is frightened of J.App. snakes. (10th Cir.1990) (up- F.2d 1397-98 149. Mooneyham also testified that holding jury stating instruction a fire- “[if] snakes, incidence of including rattlesnakes, plays arm any drug trafficking in a role in the Cherokee high. National Forest is if crime or it facilitates the crime J.App. Further, at 150. the arresting way, being meaning it is used within the agents testified that the holster bore the 924(c)(1));Payero, of” section 888 F.2d at inscription Only” “For Snakes and that one (upholding stating instruction defendants, arrest, at the time of his possession weapon of a is not “[m]ere had stated that pistol was “for snake Rather, enough.... must purposes.” J.App. at 94-96. prove the firearm facilitated the solely It is the function of the jury to trafficking way.”); crime some United weigh judge the evidence and the credibili- Poole, n. States v. 3 ty of the witnesses. In light of the above (11th Cir.1989) (upholding jury instruction testimony, by it is no means inconceivable stating played that “the firearm must have that a rational could conclude that the purpose or function in carrying out the pistol by Mooneyham carried solely offense.”). drug trafficking purpose snakes, shooting and not at

Our conclusion the district court all related the drug trafficking offenses. instructing conclusion, erred not more specifically This if jury, arrived at requires on the element that we require relational Mooneyham acquit- would be question address the of harmless error. charges ted of the in Count III. Conse- Dotson, 263, quently, say, law, States v. we United cannot as a matter of (6th Cir.1990) (failure clarify 264-65 that the instructional error was harmless. Mooneyham’s meaning of “facilitate the of” conviction is reversed. commission subject analysis); to harmless error Sufficiency I. of the evidence: Kerley, States v. argues that his conviction on all (failure 1988) clearly Cir. instruct on an supported by three counts sufficient always element of the crime not reversible argu evidence. raises this error). However, only. ment as to Count III miscarriage jus manifest “[a]bsent responsibility It is the of this court challenge tice” the court will not review a if the determine instructional error here sufficiency based of the evidence Clark, constitutes harmless error. Rose v. where the failed to defendant renew his 570, 576-84, 3105- Judgment Acquittal Motion for a at the 09, (1986). 92 460 af L.Ed.2d We should proofs. close of Fay United States v. firm conviction if we conclude that no more, 328, (6th Cir.), 736 F.2d 334 cert. rational, properly jury instructed could do denied, 868, 213, 469 U.S. 105 S.Ct. 83 Illinois, Pope other convict. than v. 481 (1984). L.Ed.2d 143 We find no such injus 497, 502-03, 1918, 1921-22, U.S. 107 S.Ct. here, Mooney- tice and therefore hold that (1987)(“a 95 439 L.Ed.2d conviction should challenge. ham waived this reviewing affirmed where a can be court developed find that the record trial es The court must consider all of the evi- guilt beyond presented light a in the tablished reasonable dence at trial most 436 prosecution

favorable to the in reviewing above, a As discussed the first element is challenge sufficiency based of the met because ample there was evidence Virginia, Jackson v. evidence. 443 U.S. upon which jury predicate could its 307, 309, 2781, 2783, 99 S.Ct. 61 L.Ed.2d guilty II, verdict on I Counts and and the (1979); United v. Ellzey, States 560 874 second element suffers from the same er- 324, (6th Cir.1989); F.2d United requires that ror Mooneyham’s reversal of Adamo, States v. 927, (6th 742 F.2d section conviction. Cir.1984), cert. denied sub nom. Freeman States, 1193, United U.S. 105 S.Ct. The primary however, deficiency, 971, (1985). 83 L.Ed.2d may The court in the proof lies absence of of the third jury's not vacate a verdict unless it finds being element knowing encour jury, that no rational could have concluded agement or Mooneyham’s assistance in al guilt beyond a reasonable doubt. United leged 924(c). violation of section In order Bourjaily, States v. 539, (6th to sustain a aiding conviction for and abet Cir.1986), 171, aff'd, 483 U.S. 107 S.Ct. ting, government prove, beyond must 2775, (1987). 97 L.Ed.2d 144 Applying this doubt, reasonable both association with and standard, we find that there indeed was participation in the substantive crime. Nye presented upon sufficient evidence which States, & Nissen v. United convict I II. Morrow on Counts and We 766, 770, (1949); 69 S.Ct. 93 L.Ed. 919 conclude, however, that there was insuffi United Hughes, States v. presented cient support evidence the con participation To meet the viction on Count III. prong, government must establish Morrow, disputed wearing It is not that some designed affirmative act Morrow face, ski removing mask over his male to further the criminal venture. Id. marijuana plants patch from the with code- government that submits the infer- Mooneyham July fendant 1988. Al Mooneyham ence that pos- Morrow knew though presented Morrow evidence in his gun’s presence sessed the and the patch defense that belong did not possible sufficiently use supports jury’s him, prior he did not know about it may conviction on count three. While this date, to that a reasonable nevertheless prong, suffice as to the association guilt beyond could find a reasonable doubt produce failed evidence on counts one and two. Issues of credibili sustaining participation prong nec-—a ty United uniquely jury. are left to the essary element of the crime. Absent a Schultz, States showing participation of some active or en- Cir.1988); Ayotte, couragement, or some act affirmative denied sub (6th Cir.), designed Morrow to further the criminal States, nom. Labadie v. U.S. venture, aiding abetting conviction (1984). 83 L.Ed.2d 514 Id. No such proof having cannot stand. We conclude that evidence sufficient offered, been we vacate Morrow’s convic- prove introduced to the essential elements tion on Count III. of Counts I and II. charges aiding

Count III with abetting a fire- Mooneyham in III. arm during and in to a traf- reasons, foregoing For judg- ficking offense of section in violation against ments of conviction Morrow and 924(c). convict, 1) To had to find: respect are AFFIRMED with I guilty Morrow was on either Count I to Counts and II. Morrow’s conviction II; 2) that Mooneyham violated section VACATED, under III is 924(c); Count and Moo- 3) know- Morrow somehow neyham’s advised, Count III conviction is RE- ingly counseled, encouraged, or further assisted in in VERSED and REMANDED for proceedings opinion. relation to the crimes. consistent with this KRUPANSKY, Judge, Circuit We conclude that the verdict was not concurring part in and dissenting part. “materially affected” the omission of a definition language for the “in relation incongruous reasoning panel to.” We conclude there plain was no majority’s justification vacating George error. Mooneyham’s (Mooneyham) Timothy Ramos, Wayne (Morrow)jury convictions (9th Cir.1988) (some citations omit- 924(c)(1)1(section 924(c)) under 18 U.S.C. § ted). prompts me to part dissent from that Additional support proposition for the majority opinion. phrase that the “during and in relation to” panel majority’s impart effort requires no elaboration comes from United undefined, peculiar, some legal intricate Malin, States v. (7th Cir.), 908 F.2d 163 meaning significance or arcane to common — denied, U.S.-, simple daily usage words of such as (1990), L.Ed.2d 544 in which the Sev “use”, “carry”, “during” and “in relation enth Circuit stated that to,” concise, as appear those words in the [sjection 924(c)(1) illegal makes it to use unambiguous composition 924(c), of section or carry a firearm “during and in rela- every reported is in conflict with opinion any tion to drug trafficking ... crime.” addressing requisite elements of a sec- 924(c)(1) 18 U.S.C. (emphasis added). § 924(c) jury tion instruction. Congress phrase included the in relation majority’s The error of the insistence on “to allay explicitly the concern that a converting straightforward the statute’s person prosecuted could be under [the phrasing into a term effectively of art is for committing entirely an un- statute] Ramos, summarized in United States v. possession related crime while in aof (9th Cir.1988). 861 F.2d 228 inAs firearm.” argues Malin that in instruct- case, instant in Ramos the defendant ing jury the district court used the charged appeal that the district court’s during term interchangeably with the phrase phrase to, failure to define the “in relation to” thereby causing in relation under section jury constituted to believe reversible that it could convict Malin rejecting claim, regardless error. govern- Ramos’ whether the proved relationship ment Ninth reasoned: between the Circuit plain must be a error trial, error Since this exceptional substantial ^[*] we review the error. United States v. materially “highly ^[*] high probability objection rights[,] circumstances.” There ^[*] prejudicial affected the verdict. (9th Cir.1985). was not raised at 4: and is found instruction for error affect- ^[*] that [the] Stewart, Plain ^[*] only that Malin relation cally the instructions as a whole were clear conviction the ing guns charges no form of merit in this adequate. without the instructed the and the instruction verdict to a used or carried a firearm predicate drug trafficking The district court argument. employed phrase [sic?] offense. We see and the in relation the term dur- Although the must to sustain offense. original specifi- prove to, conclude, appellant We cannot as We argu- also see in Malin’s no merit urges, that “it is almost a certainty” that ment that erred in not the district court appellant would have been found not explaining phrase meaning guilty “during if the and in relation to” argues that the court to. Malin supplemented instruction had been with should instruction similar given have explanation some further of the term “in to the one used in the United States relation to.” Brockington, 849 F.2d 872 provides: punishment 1. The statute provided crime for such of vio- crime, Whoever, trafficking drug lence or be sentenced and in relation to crime years.... trafficking imprisonment of violence or crime for five ... uses firearm, shall, 924(c)(1). or carries a in addition to the U.S.C. In Brockington, the United States Court crime possession committed in while of a Stewart_: Appeals for the Fourth ap- Circuit firearm. As observed proved following instruction: If the posses- firearm is within the sion person or control of a who com- prove Government beyond must [T]he underlying mits an crime as defined a reasonable doubt that the firearm statute, and the circumstances of had some relation to or some connec- the case show that the firearm facili- tion to the crime. A fire- crime, tated or had a role in the such arm can felony be used in relation to a emboldening as an actor who had the involving drug trafficking, if the opportunity ability display to or dis- person possessing it intended to use charge weapon protect to himself gun arose, contingency as a for others, or intimidate whether or not example, protect to himself or make an display such or discharge in fact oc- escape possible. curred, then there is a violation of the quarrel Id. 875. We have no with the statute. Brockington decision. The issue Henning took the stand at his trial and however, Brockington, was not whether purpose testified that his in carrying the give district court an explanatory must machine weapons and other was for instruction, but rather whether a district target practice during upcoming an court may give Although, one. like the camping trip.... The jury considered court in Brockington, we find no error in evidence, this and other any rea- giving explanatory instruction, an we sonable to be drawn there- inferences unnecessary. find it phrase in rela- from, and not unreasonably, gave Yur- speaks itself; tion to further testimony greater cisin’s weight—not explanation superfluous. The dis- because judge’s the trial failure trict court failing therefore did not err in “in relation to” in the instruc- define give instruction, explanatory an espe- packet. tions cially since Malin request did not one. whole, Taken as a the instructions We cannot conclude that giving of an fairly “treat the issues adequately.” “in relation to” instruction would have Consequently, we will not interfere with impact upon had such an that it them appeal. on would contrary have reached a result on Malin, (some 908 F.2d at 167-68 citations the second and third counts. Consider- omitted) (last added). emphasis ing whole, instructions aas to- gether trial, with the evidence adduced at In United v. Henning, States judge’s the district give (10th Cir.1990), the Tenth Circuit ad- failure “in relation to” instruction was not dressed the identical issue and reached an plain error. identical following result manner: (citations Henning, F.2d at The failure separately to instruct omitted) added). (emphasis meaning “in relation to” did not Michaels, In United States exclude an essential element under (8th Cir.1990), Eighth 924(c)(1) joined Circuit jury’s from the consideration. § in expressing these other circuits the com- legislative history of this section was monly-held phrase “during view that the analyzed in United States v. Stew- imports and in to” no more mean- phrase “during art. ... plain language suggest: than its would in relation to” was substituted for “dur- ing” 924(c)(1). (now Judge Circuit Defendant claims that the instruction § Justice) Kennedy then reasoned that this mention that the failed to firearm must substitution was not intended to create a be and in relation used new element of the crime drug-trafficking but rather to disagree. offense. We clarify person that a prose- whole, could not be Looking at the instructions as a cuted under for an unrelated we see that the made Court clear that gun the during Michaels, must be used and in (8th Cir.1990) 911 F.2d drug relation to the offense. Even if we (permitting the use of a more elaborate confined our particular attention to the instruction); United States v. Henning, passage in the highlighted instructions (same); 906 F.2d at 1397 United States v. defendant, by agree we could not with Payero, (1st Cir.1989) his The required contention. instruction (same); Poole, United States v. find, least, the at very the that (11th Cir.1989) (same). gun defendant, the was available to the Also contrary to the suggestion of the and that availability its facilitated the majority opinion, the recent Sixth Circuit carrying drug-trafficking out of the Brown, case of United States v. crime. language fully supported This is (1990), has bearing no on the elements Matra, United States v. 841 F.2d 837 properly of a 924(c) drafted section instruc- (8th Cir.1988), the point- as District Court majority’s tion. The reliance on Brown as gun ed out. if Matra holds that is authority support its conclusion that the defendant, available to the if and the jury instruction in the instant case was integral part was an of the crime and deficient as it related to III Count of the success, increased the likelihood of its incomprehensible light indictment is in of then it was used and in relation to the fact adequacy the of a section the crime. The complained instruction 924(c) jury charged instruction was not as paraphrase here did no more than Ma- assignment Brown, an in of error nor did interpretation tra’s of the statute. This panel in Brown consider or decide the was not error. Instead, issue. Brown addressed a defen- Michaels, 911 F.2d at 132. dant’s challenge government’s to the as- panel majority mistakenly The relies on serted prove specific failure to intent to Brockington prop- for the carry a firearm in relation to the explanatory osition definition of the sum, offense. In Brown makes no mention phrase “during in relation to” is re- of, on, impact and has composition no quired. Brockington, appellant as- 924(c) jury charge. of a section signed error to the trial including court for reprise A of the facts of this case serves explanatory language in its instruction il- clarity to illustrate the with which the lustrating meaning “during “during and in relation to” element of the 924(c) in relation element of to” the section 924(c) charge section was submitted to the Brockington’s proposed offense. instruc- jury. Appellants’ conviction under 21 tion, court, rejected by which was the trial 841(a)(1) U.S.C. and 18 U.S.C. as § merely language tracked the of section charged in I and II Counts of the indict- defining the elements of the of- ment, lapse involved a of a considerable fense, phrase without elaboration on the period prior apprehension to the time “during Brockington relation to.” co-conspirators at the scene of the mar- essence, argued, explanatory ijuana in the act cultivating fields while language jury. tended to confuse the crop. their illicit The events that occurred Fourth Circuit held that the trial court’s Sunday, July 1987 commenced in the explication unsolicited provide did not residence, early morning Mooneyham’s at basis for reversal. Brockington, 849 F.2d when the defendants dressed their cam- quoted at 876. As demonstrated in the ouflage apparel, Mooneyham, in and when Malin, language supra, from the Seventh presence Morrow, holstered the has concluded that Brockington Circuit es- revolver, chrome-plated strapping it to his that an annotated tablishes instruction is plain waist and thereafter it in convey necessary meaning not to,” as the men traveled to their well-con- “in view phrase and that elabora- rugged virtually in a phrase mandatory, cealed destination tion but Malin, permissive. inaccessible area of the Cherokee National rather is pair their majority 168. Cases cited are not to Forest. donned ski masks See, contrary. e.g., walking last half mile on foot to United States v. before site, marijuana they immediately where events and circumstances that resulted in crop, during commenced to cultivate their their prosecution, arrest and and was time, which as the could have reason- equally unwilling to testimony credit their facts, ably developed inferred from the the gun that the was carried to “kill snakes.”2 likely firearm protection carried for Accordingly, join part I decline to in that persons (the the property drugs). or of the majority opinion assigns plain of the that jury reasonably The also could in- have error to the district court’s failure to elabo- ferred that the revolver emboldened the upon phrase “during rate the and rela- participants in the commission of their illic- 924(c). tion to” as used in section joint venture, through either the mere appeal challenge does not the display weapon, of the as a useful means of jury charge, questions but rather the suffi- intimidating discouraging and interference ciency of the evidence introduced to convict others, through discharge, from or its aiding him of abetting the commission presented should the occasion have itself. 924(c) engag- of the section while offense The “in language simply relation to” con- ing in marijuana the manufacture of notes a rational nexus between the firearm violation of U.S.C. 841. The factual § Ramos, and the narcotics offense. As in legal conclusions that are pertinent every every and as in case from other 924(c) Morrow’s conviction of the section issue, circuit that has addressed the charge parame- criminal come within the is, case, simple amply connection in this universally accepted precedent. ters of To supported by linkage the evidence. The 924(c) convict Morrow of the section of- permits appellant the inference that carried indictment, charged in jury fense the the the firearm “in relation to” the manufac- guilty had to conclude that he was on ei- marijuana ture of offense. ther I II carrying Count or and that the implication jurors The in this gun was related to one or both of these intellectually incapable case were of under- crimes. instruction, standing the court’s which majority The concedes that the first ele- clearly incorporated reference to ele- proved. Ample ment evidence existed charge ments of a criminal under section upon jury 924(c), predicated which the could have proof of which rested doubt, guilty its verdicts I II. government beyond on Counts a reasonable de- only particular jury panel, means not this jury’s conclusion that the firearm jurors generally. but “during was carried relation to” the The verdict returned reflected no indicia manufacturing conspiring crimes of or jury contrary, confusion. To the it dis- marijuana sufficiently manufacture is also complete grasp developed closed a of the supported by the evidence. It is not neces facts, the instructed law and inherent sary prove actually that the gun was perceptivity may escaped have brandished discharged or in the commission panel majority. underlying offense. United States Robinson, v. Cir. sum, jury, having viewed the de- 1988); Brockington, 849 States defendants, meanor of the their candor or However, presence F.2d at mere of a 876. thereof, proba- lack the reasonableness and crime, of a firearm the commission bility testimony, discrepancies of their person, even if is not suffi carried on testimony, intelligence, in their inter- their prove by must di bias, government cient. The together est and with all circum- rect evidence some rela surrounding testimony, elect- or circumstantial stances their little, carrying gun of the assign any, credibility tionship ed to if between weight S.Rep. to the defendants’ version of the No. and the offense. Mooneyham’s Compare Henning, 2. 906 F.2d at in which Morrow’s and testi- The nature of repel purpose mony the defendant took the stand and contended that of the about —to purely convey jury his reasons for innocent, the firearm were sufficient to snakes—was ordinary meaning "during and in term and in which the “not unreason- of the 924(c). ably” exculpatory testimony. discredited the to” as used in section Sess, (1983), Cong., 2d reasonably 98th n. 10 could have inferred that Mor- Cong. reprinted in 1984 U.S.Code & Ad- row knew that his co-conspirator had a 10; n. min.News United States gun. Feliz-Cordero, (2d superficiality panel majority’s Cir.1988). reversal of Morrow’s conviction for violat- In the instant case the could have 18 U.S.C. and section is ex- (as reasonably inferred and concluded it posed following in the conclusory lan- conclude) ultimately did that the revolver guage, which denies the by Mooneyham carried was related to the the majority’s (which, benefit of reasoning manufacturing marijuana crime of under time, for a seems to heading be in a more “drug theory adopted by the fortress” this direction), logical in support ap- of what in Henry, Circuit United States v. 878 F.2d pears factually to be a precedentially and (6th Cir.1989). drawn, Although 937 never incongruous disposition: reasonably appears “if it that the firearms government produce any failed to [T]he protect drugs are to used the or ... be to sustaining evidence participation the transaction, facilitate a otherwise prong necessary element of the crime. ‘during are and in —a then such firearms used showing Absent a of partic- some active drug trafficking a crime.” 878 to’ ipation encouragement, or or some af- Matra, (citing F.2d at v. 944 United States by firmative act Morrow to further the (8th Cir.1988)). F.2d also 843 See venture, aiding abetting criminal the and Acosta-Cazares, v. United States conviction cannot stand.... No such required nex- proof offered, having been we vacate underly- and the

us between the firearm Morrow’s conviction on if Count III. ing is also established the fire- offense crime, arm “had a role in the such as jury’s ignores The reversal of the verdict emboldening oppor- an actor ivho had the weight the evidence and the law that tunity ability display discharge or to or bears Morrow’s in affirmative acts weapon protect or intim- himself furthering underly- the commission of the others, display not such idate whether or ing manufacturing criminal venture mar- occurred_” discharge in Unit- fact ijuana. comprehend It is difficult to how Stewart, (em- F.2d at v. ed States panel majority logically could vacate added). phasis Morrow’s conviction on Count III of consequence that It was also of no Mor indictment, charging aiding him with possession of the row himself did not have in abetting Mooneyham manufacturing who has either actual or con gun. One marijuana, Mooneyham he while knew was may possession of a firearm be structive probative carrying a firearm. The evi- considered to have “carried” within culpability dence of was of more 924(c). meaning of section have “[CJourts weight than sufficient to sustain his convic- posses- actual not held that ‘carries’ means principal tion as a under section offender sion_” Acosta-Cazares, 878 F.2d at 924(c), as an aider and abettor. let alone Mason, 951. also See United States clear, appear, although it It would is (9th Cir.1981); United majority implying that the is that because Barber, (9th States charges aiding Count III Morrow with Cir.), denied, 444 U.S. Mooneyham carrying a firearm abetting Thus, (1979). although L.Ed.2d drug trafficking during and in relation to by Mooney- in fact carried pistol offense, im- greater proof burden of is ham, readily accessible to because it was his posed upon to sustain crime, facilitate required than would be if he had conviction if “carries” element was met Morrow knew principal offender. It is charged been as a gun. arresting presence best, absurd, worst, anomalous, at holster and agents testified that the visible, although commit- plainly suggest by worn necessary support his eonvic- From this the ted all acts even from a distance. tion as a principal 924(c), intent, under section his by action, demonstrated his to make conduct was not that so, of an aider and an the crime doing succeed. In the Court abettor. As is Nye demonstrated adopted pronouncement estab- body Judge lished aiding abetting jurispru- Learned Hand in the seminal case of dence, panel Peoni, (2d majority misconceives the States v. 100 F.2d 401 Cir.1938), Judge correlation wherein between 18 U.S.C. 2 and sec- Hand stated that § 924(c). to aid tion and abet another to commit of fense it necessary that a defendant “in In addressing the substantive law of aid- some sort associate himself with the ven abetting, as that offense is defined ture, participate that he in it inas some in 18 U.S.C. and as it interacts with 18 § thing about, bring that he wishes to that he 924(c)(1), initially U.S.C. it should be ob- seek his action to make it succeed.” Id. served that section “enhancing is an at 402. This adopted formulation has been legislative statute.” Its history discloses See, e.g., this Circuit. single “purpose that the of the statute was Quinn, 530 n. 6 Cir. impose more severe sanctions where 1990). Briefly summarized, proof must facilitated, firearms potential or had the show participation association with and facilitating, the felony.” commission of a underlying the or substantive crime. Stewart, United States v. 779 F.2d at 540. principles These basic “aiding of and abet exceptions Research discloses no to or vari- ting” were long ago enunciated and have interpretation. ations this prece- remained throughout undisturbed the opinions dential that have relevance to the years. relationship 924(c) (the between section prove To the association element of the statute) enhancing “firearm” and 18 U.S.C. aiding offense, abetting and the evidence (the 2 “aiding statute) abetting” and indi- must demonstrate that the defendant actu cate “underlying” the offense that ally constructively or in shared the criminal alleged Morrow is to have “aided and abet- intent principle to commit the under ted” charged is the substantive crime lying offense, i.e., or substantive criminal case, i.e., the indictment in this the unlaw- the “community defendant had a of marijuana ful manufacture conspir- of and purpose” unlawful principal with the at the acy to marijuana, manufacture and not the underlying time the act or acts were com collateral, enhancing carrying offense of States, mitted. v. Johnson United 195 during firearm and in relation thereto. 673, The aider and Nye States, In & Nissen v. United 336 abettor, however, need not have the exact 613, (1949), U.S. 69 S.Ct. L.Ed. principal intent as a because the “communi Supreme the Court defined the offense of ty of unlawful intent” does not rise to the “aiding abetting” and as “a rule of criminal agreement. Beck, level of United v. States responsibility for acts which one assists (7th Cir.1980) 615 F.2d (citing performing,” another in and under which a (7th v. Longano, States 511 F.2d 1 defendant principal is liable as a “when he Cir.), denied, cert. 96 S.Ct. consciously act, shares in criminal (1975)). 46 L.Ed.2d 74 requi Because the whether or not there a conspiracy. is And site criminal intent is often difficult to dem conspiracy charged, if a is also it makes no by evidence, may onstrate direct be in aiding abetting difference so far as and is ferred totality from the of the facts and concerned whether the substantive offense attending circumstances the substantive pursuant conspiracy.” is done to the Id. at Accordingly, crime. emerges there an in 620, 69 S.Ct. at 770. interplay terconnection or req between the Having defined the rule of criminal re- proof uisite of “association” and the less sponsibility imposed by “aiding proof difficult required level of develop offense, abetting” the Court identified the the element “participation” prosecu in a general components aiding two and abet- aiding abetting. Beck, tion for See ting as an act (“A defendant which con- F.2d at high activity level of need tributes to the execution of a crime and prove not be participation_”). shown to appears If it that a ipation” 924(c) defendant was actual in the section firearms of- ly constructively present during rationalizing fense. its conclusion that commission of the substantive crime there was insufficient “partic- evidence of charged purpose assisting for the there ipation,” majority avoids comment on (manufacturing conspiring to manu overwhelming 1) evidence: that Mor- marijuana case), facture the instant engaged row in affirmative conduct and performs some overt act to further committed overt acts designed to aid in the underlying success of that criminal ven success substantive criminal offense ture, participation then the element of with manufacturing marijuana; 2) that he respect enhancing to the firearm offense obviously aware that myriad has been satisfied. aAs of section a firearm and in relation to illustrated, cases have in a focus venture; 3) manufacturing prosecution presence firearms is not on the constructively possessed that he weap- se, gun, per of a but rather on the on, (as either as an “aider and abettor” integral relationship weapon that the bears government elected to him characterize to the commission of the crimi indictment) (as principal or as a estab- nal conduct. v. See United States Acosta- evidence). lished Cazares, (6th Cir.), — denied, U.S.-, Thus the ultimate issue for resolution in (1989); 107 L.Ed.2d 204 appellate this review of Morrow’s con- Robinson, (5th Cir. may viction on Count III of the indictment 1988); Matra, United States whether, be distilled to a determination of Cir.1988); United States totality proof bearing upon from the Stewart, 538, (9th Cir.1985); 779 F.2d 540 charges, the the could have concluded 317, LaGuardia, United States beyond 1) a reasonable doubt: that Mor- (8th Cir.1985); Grant, 321 United States participation row’s in the un- substantive (2d Cir.1976), cert. derlying marijua- offense of manufacturing denied, 429 U.S. 97 S.Ct. na had been demonstrated a course of (1977); L.Ed.2d 554 United States v. Bar conduct, perform- affirmative such as the ber, (9th Cir.), denied, cert. ance of some overt act or series of overt 62 L.Ed.2d U.S. S.Ct. (1979). Moore, acts to further the the criminal See also United States v. success of (9th Cir.), denied, manufacturing marijuana; venture of and 58 L.Ed.2d 430 2) Mooneyham pos- that that Morrow knew (1978) (same, in robbery).3 context of bank gun. sessed the Therefore, appropriate it is when address majority’s that the The conclusion ing aiding abetting charge an and under 18 produce any failed to evidence 924(c) explore U.S.C. and section not to participation in to demonstrate Morrow’s “partic defendant’s “association” and substantive criminal enter- ipation” respect to the use with or prise manufacturing marijuana, of and that weapon, se, per but rather to focus partic- showing absent a of some active respect conduct on the defendant’s with ipation encouragement underly- in underlying narcotics crime offense or ing manufacturing marijuana of violence. offense of aiding abetting cannot conviction majority opinion takes no issue with stand, eloquently silent as to the reasons jury’s finding requisite that ele- may support, be advanced its aiding and ment of “association” of the opinion appears to be direct conflict satisfied, abetting ad- verdict but had been existing legal precedent with concurred a factually insupportable vances and con- by every addressed other circuit that has clusory opinion insuf- the evidence 924(c). respect proper interpretation “partic- ficient with of section to Morrow’s trafficking robbery ticking drug provides analogue armed what un- 3. Armed bank is to robbery. charge; robbery i.e., bank a section traf- armed bank is to armed unarmed 44 4 transcript of Morrow’s trial testimo- Their destination consisted of two metic-

ny well-tended, ulously planted, illustrates conflict that exists be- well-tilled fertilized, painstakingly cultivated stands majority’s tween the rather innocuous de- healthy marijuana plants. rototiller, A piction of his enterprise involvement in this ax, buckets, doublebladed fertilizer and the true extent and nature of his overt present chain Bags saw were on the site. advancing activities in the success of his designed repel moth balls rodents and joint marijuana manufacturing venture deer hanging were from the trees sur- Mooneyham. with rounding marijuana patches. two For- The evidence disclosed that on the morn- Rangers est Jowers and Bowman testified Sunday, July 31, 1987, defendant proliferation found a of Marlboro Morrow traveled to the residence of defen- cigarette butts strewn throughout the two Mooneyham, Hartford, marijuana patches. They dant situated in also noted that large several of the margins trees on the defendants, Tennessee. The pres- marijuana patches “girdled” had been other, ence of each changed from their by a chain saw.4 street clothing camouflage into apparel and Mooneyham strapped a holstered chrome- positioned Jowers Bowman them- plated waist, opposite .22 selves at marijua- caliber revolver around his ends of the first planting na rang- surveil the site. The plainly where it remained through- visible that, ers testified from a distance of about ensuing out events. The two men feet, they (later observed the defendants thereupon mounted two camouflaged all- Mooneyham), identified as Morrow and (ATVs) terrain vehicles and motored direct- complete camouflage gear with and ski ly predetermined to their destination in the masks, clearing together enter the ap- Forest, Cherokee National County, Cocke proximately defendant, 10:30 a.m. One la- Tennessee, specifically an area more identi- Mooneyham, ter clearly identified as had a Tower, Top fiable as Hall approxi- situated strapped visible holstered revolver to his mately city Newport, ten miles from the waist. The chrome-plated gun reflected Tennessee. sunlight. leaving After the main highway, Route defendants, The two working in close 207, the defendant’s drove their ATVs other, proximity immediately to each began along gravel leading a road Top to Hall efficiently and systematically cull the They Tower. left gravel road before marijuana patch twelve-row all its male reaching Top Hall by turning Tower onto plants. It was later determined from state- overgrown an logging roadway abandoned ments volunteered both and impassable proceeded to automobiles and plants Morrow that male were identified approximately mile, for another at which pod a top plant, seed-like at the of the point logging road came to a dead end appendage, they which explained, was the densely in more overgrown wooded terrain. organ. They male sex explained also and, parked plants the male had approxi- defendants their ATVs to be removed mately a month harvesting crop before July morning, this hot summer concealed tetrahydrocannabinol so as to increase the by donning their faces full woolen ski remaining plants. content of the female only eye apertures masks with and nose remaining and traversed half mile of rangers maintained their surveil- virtually impassable steep terrain over two minutes, twenty lance for fifteen to about ridges mountain on foot to a well-concealed during expeditiously time the which men clearing. approximately removed nineteen male Girdling accomplished by cutting marijuana 4. into the fleeted that farmers defoliate trees to bark, layer through cambium of a tree's it permit sunlight necessary which the infiltration of growth receives nutrients to sustain its and life. growth marijuana plants without dis- Girdling disrupts the tree's flow of nutrients to turbing camouflage the trees’ branches eventually and the tree sustain its life loses its marijuana from aerial afford to conceal field However, standing leaves and dies. it remains photography. and surveillance years. Testimony in its defoliated state for re- neatly deposited at the A. Mr. MalcolmJowers could be individ- plants, which were they working patch patch, were ual owned that perimeter and he could act (there patch approximately too, wasn’t, was a second like police he’s but if it like proximity). in the immediate said, the same size I just he could come out and and Bowman then aban- Rangers Jowers my away. blowed brains and positions their of concealment doned On the subject Mooneyham same testi- opposite two men from approached the fied: field and identified themselves ends of the Q. just you Was it coincidence when law officers. Both defendants bolted. as 31st, July just decided on coin- ranger at the Mooneyham evaded Bowman up, cidence Mr. when Morrow showed into disappeared the field and far end of you going trip were to take this to the weapon. discarding after his the brush marijuana patch, just and coincidence some distance pursued him for Bowman you had two masks then? custody. The taking him into before A. No I coincidence. had two masks revolver, fully operational chrome-plated them, purpose with I took them in on ammunition, loaded with hollow-nosed and I I because had mind what was from the underbrush. later retrieved going to do. A search of apprehended Morrow. Jowers Q. purpose putting What was mask package of Marl- Mooneyham surfaced a your over head? cigarettes. boro people lays A. Lot of with their mari- removed their ski defendants After the if, fact, juana, someone was advised of their Miranda masks and were there, was, they I knew who they the officers that had rights, they told my my safety, family’s feared for safe- association with the ownership or other no ty- plantings and that their marijuana two Q. you patch, in the Wouldn’t sit surveil gather was to evidence presence at the site while, there, anybody’s if it for a see incriminating nondescript individual iden- walking rather than from four-wheel- Hall, only purport- Eddie who was tified as patch your with mask on? ers down It marijuana fields. edly the owner different, anyone if A. Been several during this conversation that the de- safe, there, it had had been been extensive, sophis- exhibited an fendants different, me, if wanted to shoot marijuana, knowledge of its suc- ticated have, or do they would whatever. cultivation and violence and cessful propagation attendant to its hazards image, developed by as explained defendants that their sale. Both record, who was was that of individual part of an effort to conceal ski masks were harvesting, agriculture, in the versed not from law enforcement their identities admittedly He trafficking marijuana. authorities, dealers, rather from but knowledge on the sub- incorporated his had marijuana. poachers or the owners report.” Both high school “book ject into examination, expressed Morrow On the use keenly aware of were defendants Ranger he felt when he observed Jow- fear safeguarding as a means of of firearms weapon drawn: ers with his facilitating illegal drug transactions you, you’re Q. never dawned on And it integral protecting per- tool for as an telling jury, this that was not un- poach- drugs competition from or sons your put a hood over head and usual to holstered, chrome-plat- Mooneyham’s ers. marijuana in the middle to stand clearly from had been visible revolver ed upper east Tennessee? That patch men, presence two in the the time when suspicion? you any type of cause didn’t other, camouflaged donned their of each guess suspi- it looked yeah, I A. Oh arrested. To con- were clothing until cious, my protection. it was own conduct and Morrow’s course of clude your Q. put a hood over Protection Sunday morning of on the activities overt head? an af- not demonstrate July 1988 did ” designed to aid “participation A. Yes. firmative in the success of the substantive protection? and abet Q. Whose underlying manufacturing offense of marijuana ignore is to the evidence and the arising

reasonable inferences therefrom. history

The brief recital of the factual exposes

this my case reasons for dissent-

ing. case, was, In the instant outset, acting

from the in concert with

Mooneyham. princi- Each defendant was a

pal who aided and abetted the other in a

joint design. venture with a common Each intimately physical involved with the necessary

execution of all acts to ensure

the ultimate success of the sub- manufacturing marijua-

stantive offense of

na, included, integral which anas means of

protecting drugs facilitating their their

illegal operation, of firearms. would, hesitation,

Accordingly, I without my majority’s

enter dissent to the vacation jury’s convicting Timothy verdict

Wayne Morrow of III Count of the indict- jury’s

ment and affirm the verdict. would,

I part therefore dissent from panel majority’s opinion that vacates convicting Mooney- verdict both

ham and Morrow of Count III of the indict-

ment, and concur in the balance of the sum,

majority opinion. In I would affirm verdict and the trial judg- court’s entirety.

ment thereon in its

OMAHA PROPERTY AND CASUALTY COMPANY,

INSURANCE

Plaintiff-Appellee, JOHNSON, Bernard

Comer Comer Johnson, Cross, Burkehart Diane E.

Corky Moss, L. and Matthew De- Cross

fendants-Appellants. 90-5277,

Nos. 90-5415. Appeals,

United States Court of Circuit.

Sixth

Argued Dec. 1990.

Decided Jan. 1991.

Rehearing Rehearing En Banc April

Denied 1991.

Case Details

Case Name: United States v. Timothy Wayne Morrow (89-5418/5708), George Mooneyham (89-5710)

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 10, 1991

Citation: 923 F.2d 427

Docket Number: 89-5418, 89-5708 and 89-5710

Court Abbreviation: 6th Cir.