United States v. Willie Mays Aikens ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1660
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United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Willie Mays Aikens, *
*
Defendant - Appellant. *
*
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Submitted: September 12, 1997.
Filed: January 6, 1998
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Before McMILLIAN, ROSS, and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.
This case comes to us for a second time after the Supreme Court vacated
our prior opinion, United States v. Aikens, 64 F.3d 372 (8th Cir. 1995), and
remanded the case to us in light of Bailey v. United States, 116 S. Ct. 501
(1995). See Aikens v. United States, 116 S. Ct. 1346 (1996). On remand, we
affirmed Willie Mays Aikens’ drug trafficking convictions and ordered that
his conviction for using a firearm during a drug trafficking offense be
remanded to the district court for further proceedings. The
district court1 upheld Aikens’ firearm conviction. Aikens appeals, arguing
that there is insufficient evidence to support the conviction and that it was
plain error to submit a jury instruction that failed to comport with the
Supreme Court’s decision in Bailey. We affirm.
I
We explain only those facts relating to Aikens’ firearm conviction.2
Aikens manufactured crack in the den of his home by mixing cocaine and baking
soda in a glass beaker, pouring water on it, heating it with a hand-held
torch, baking it in a microwave, and running cold water over it. Aikens
stored these supplies for making crack, along with scales, strainers and
other drug paraphernalia, in his den. On January 28, 1994, an undercover
police officer visited Aikens’ home to purchase crack cocaine. While in the
den, the undercover officer observed a long-barreled gun that she thought was
a rifle or a shotgun “leaning against the couch” where Aikens sat while he
manufactured the cocaine mixture into crack. (Trial Tr. Vol. I at 36.) The
undercover officer asked Aikens if he was a hunter, referring to the weapon.
Aikens replied that he was not a hunter but that he had the gun for
protection. On March 1, 1994, the police executed a search warrant at
Aikens’ home and seized, among other things, a loaded .12-gauge shotgun
located by a door in the den.
A federal grand jury charged Aikens with one count of using a firearm
during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)
(1994), and other drug trafficking offenses. The jury convicted Aikens on
all counts. For his use of a firearm,
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
2
The facts underlying Aikens’ drug trafficking convictions are detailed in our
prior opinion. See Aikens, 64 F.3d at 373-74.
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Aikens received a consecutive 60-month sentence in addition to his sentences
for the drug trafficking convictions.
Aikens appealed to this court and we affirmed his convictions and
sentences. See Aikens, 64 F.3d at 377. Aikens then petitioned for a writ
of certiorari to the United States Supreme Court. The Supreme Court vacated
our prior opinion and remanded the case to us for reconsideration in light
of Bailey. See Aikens, 116 S. Ct. at 1346. We then affirmed Aikens’ crack
cocaine distribution convictions and ordered that his conviction for using
a firearm during a drug trafficking offense be remanded to the district court
for further proceedings. The district court affirmed Aikens’ firearm
conviction and he brought this appeal, claiming insufficiency of the evidence
and plain error in the jury instructions.
II
We first address Aikens’ claim that there is insufficient evidence to
support his conviction for using a firearm during and in relation to a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1).3 In reviewing the
record, “[w]e view the evidence in the light most favorable to the jury’s
verdict, and we will reverse for insufficient evidence only if no reasonable
jury could have found the defendant guilty beyond a reasonable doubt.”
United States v. Czeck, 105 F.3d 1235, 1240 (8th Cir. 1997) (internal
quotations omitted).
In Bailey, the Supreme Court held that “[t]o sustain a conviction under
the ‘use’ prong of § 924(c)(1), the Government must show that the defendant
actively employed the firearm during and in relation to the predicate crime.”
Bailey, 116 S. Ct. at 509.
3
18 U.S.C. § 924(c)(1) imposes a consecutive five-year minimum term of
imprisonment upon a person who “during and in relation to any crime of violence or
drug trafficking crime . . . uses or carries a firearm.”
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Active employment “includes brandishing, displaying, bartering, striking
with, and most obviously, firing or attempting to fire, a firearm.” Id. at
508. The Court added that “a reference to a firearm calculated to bring
about a change in the circumstances of the predicate offense is a ‘use,’
just as the silent but obvious and forceful presence of a gun on a table can
be a ‘use.’” Id. By contrast, the Court distinguished the storage or
concealment of a weapon at or near the site of a drug crime by the
defendant. These circumstances, the Court explained, do not satisfy the
requirement of “use”; the “inert presence of a firearm, without more, is not
enough to trigger § 924(c)(1).” Id. Likewise, “[i]f the gun is not
disclosed or mentioned by the offender, it is not actively employed, and it
is not ‘used.’” Id.
Our review of the record convinces us that there is sufficient
evidence to convict Aikens of using a firearm during and in connection with
a drug trafficking crime. The shotgun leaning against the couch was
visible to the undercover officer while Aikens was “cooking” the cocaine
into crack to sell to her. Aikens sat on the couch when he manufactured the
crack. Because of Aikens’ close proximity to the weapon, he could
immediately fire it if anything went wrong during the drug transaction.
Also, while manufacturing the crack, Aikens specifically told the undercover
officer that the gun was for his protection and not for hunting. Finally,
the shotgun was found loaded and in Aikens’ den when the search warrant was
executed.
This evidence shows Aikens did more than merely store his shotgun near
the drug crime. Aikens told the buyer the gun was for his protection, the
gun was clearly displayed during the drug transaction, and the gun was in
close proximity to Aikens while he manufactured and sold the crack. These
facts show that the gun was “calculated to bring about a change in the
circumstances” of the underlying drug offense. Bailey, 116 S. Ct. at 508.
The shotgun served as a “silent but obvious and forceful presence” during
both the manufacturing and sale of the crack sufficient to constitute “use”
of the firearm under § 924(c)(1). Id. We find support for our conclusion
in Czeck, where we held that “[b]y making it plain to his customers that he
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was armed and willing to defend his business, [the defendant] discouraged
them from any attempt to rob him and effectively may have warned them that
negotiation over the price and quality of his wares was not encouraged.”
Czech, 105 F.3d at 1241. Aikens’ weapon served similar purposes here.
Aikens next argues that the district court committed plain error when
the court instructed the jury that the phrase “used a firearm” in §
924(c)(1) “means having a firearm available to aid in the distribution of
cocaine base (‘crack’).” (Jury Instruction No. 23.) Because Aikens did not
object to this instruction at trial, we review for plain error. Fed. R.
Crim. P. 52(b); United States v. Beasley, 102 F.3d 1440, 1452 (8th Cir.
1996), cert. denied, 117 S. Ct. 1856 (1997). We must initially determine
whether the district court’s error was plain and if it affected Aikens’
substantial rights. Beasley, 102 F.3d at 1452. Unlike harmless error
review conducted pursuant to Rule 52(a), plain error analysis under Rule
52(b) normally requires the defendant, rather than the government, to bear
the burden of persuasion to show the error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 734 (1993). If the error was plain
and substantial rights were affected, “we exercise our discretion to reverse
only where the error ‘seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.’” United States v. Herron, 97 F.3d 234,
238 (8th Cir. 1996) (quoting Olano, 507 U.S. at 736) (alternation in
Herron), cert. denied, 117 S. Ct. 998 (1997).
The government concedes that this instruction, which was proper under
the law of this circuit at the time it was given, erroneously defined the
term “use” in light of the Supreme Court’s intervening decision in Bailey.
Thus, the error is plain. See United States v. Webster, 84 F.3d 1056, 1067
(8th Cir. 1996) (court applies law applicable at time of appeal to determine
plain error). However, the government contests Aikens’ claim that the error
affected his substantial rights. A defendant’s “substantial rights are
affected if the error prejudicially influenced the outcome of the district
court proceedings.” Beasley, 102 F.3d at 1452. If a proper instruction
would not have
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altered the jury’s conclusion, then Aikens’ substantial rights have not been
affected by the erroneous instruction. Id.
Our review of the record leads us to conclude that Aikens’ substantial
rights have not been affected. As discussed previously, the evidence
presented showed that Aikens actively employed his shotgun during and in
relation to the crack cocaine distribution crime. The gun was an obvious
and forceful presence during both the manufacturing and sale of the crack
cocaine by Aikens. Beyond a reasonable doubt, Aikens “used” the shotgun
during and in connection with the drug trafficking offense. A proper jury
instruction regarding the definition of the term “use” would not have
altered the jury’s conclusion that Aikens was guilty of violating §
924(c)(1). Because Aikens has not shown his substantial rights were
affected, he has not satisfied the plain error standard, and we affirm his
conviction. See Beasley, 102 F.3d at 1452-53.
III
We have rejected all of Aikens’ arguments for reversal of his firearm
conviction. Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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