United States v. Arreola ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10504
Plaintiff-Appellee,
v.  D.C. No.
CR-01-40120-DLJ
JOSE ARREOLA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, District Judge, Presiding
Argued and Submitted
February 16, 2006—San Francisco, California
Filed April 26, 2006
Before: J. Clifford Wallace, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas
4727
4730 UNITED STATES v. ARREOLA
COUNSEL
Marc J. Zilversmit, San Francisco, California, for appellant
Arreola.
Deborah R. Douglas, Assistant United States Attorney, San
Francisco, California, for appellee United States.
OPINION
THOMAS, Circuit Judge:
In this appeal, we consider whether in using the phrases
“possesses” and “uses or carries,” 18 U.S.C. § 924(c)(1)(A)
UNITED STATES v. ARREOLA 4731
defines two offenses or two means of committing a single
offense. We conclude that the statute defines one offense, and
affirm the judgment of the district court.
I
Jose Arreola appeals his conviction for the use of a firearm
during the commission of a drug trafficking crime, in viola-
tion of 18 U.S.C. § 924(c). The circumstances that led to his
conviction began in April 2001, when Arreola met Roberto
Martinez, an undercover police officer, in a Taco Bell parking
lot in Oakland. Arreola invited Martinez into his gold Ford
Expedition. When Martinez got into the car, Arreola was
seated in the second of three rows of seats. Two of Arreola’s
associates were seated in the front seats, and a confidential
informant was seated with Arreola. Arreola offered to sell
Martinez seventy ounces of heroin. Martinez asked Arreola to
wait while he got the money to pay for the heroin. Martinez
exited the Expedition, supposedly to obtain the necessary
cash, and gave an arrest signal to officers waiting nearby.
Arreola and his two associates were arrested.
After the arrests, officers searched the Expedition and
found a loaded .45 caliber “Combat Elite” semiautomatic
handgun in the glove compartment. The handgun was posi-
tioned such that “someone sitting in the front passenger’s seat
would . . . have easy access to” the gun. However, it would
have been more difficult to access the gun from the middle
row of seats when there were people sitting in the front seats.
When officers searched Arreola upon his arrest, they found
an extra magazine clip in his pocket. In a statement to the
officers, Arreola explained, “I bought the Colt Commander
.45 semi-automatic gun from the street for two-hundred dol-
lars. I usually carry the gun for protection since I have a lot
of encounters with gang members.”
On July 19, 2001, in Count Three of a six-count Indict-
ment, the government charged that:
4732 UNITED STATES v. ARREOLA
On or about April 27, 2001, in the Northern District
of California, the defendant
JOSE ARREOLA
did knowingly and intentionally possess a firearm
during and in relation to the drug trafficking crimes
set forth in Counts One and Two of this Indictment
....
The government filed a Superceding Indictment on December
6, 2001. The Superceding Indictment amended Count Three
to read:
On or about April 27, 2001, in the Northern District
of California, the defendant
JOSE ARREOLA
did knowingly and intentionally use and carry the
firearm discussed below during and in relation to,
and possessed the same firearm in furtherance of the
drug trafficking crimes set forth in Counts One and
Two of this Indictment . . . .
When the district court asked the prosecutor to state the dif-
ference between the two indictments, the prosecutor
responded that “the government has simply added the — lan-
guage or the theory of carrying the firearm in addition to pos-
sessing the firearm.”
In its closing argument, the government argued repeatedly
that the jury could convict Arreola if it found “beyond a rea-
sonable doubt that the defendant committed one or both of the
following: number one, that he carried the .45 caliber semiau-
tomatic handgun during and in relation to a drug-trafficking
crime; or two, defendant possessed the same firearm in fur-
therance of a drug-trafficking crime.” Similarly, defense
counsel argued that the jury could not convict unless it found
that “the defendant knowingly carried or possessed a .45 cali-
UNITED STATES v. ARREOLA 4733
ber semiautomatic handgun” and that “the defendant carried
the firearm during and in relation to or possessed the firearm
in furtherance of the drug-trafficking crime as charged in
Count 1 of the indictment.”
After the parties finished their respective closing argu-
ments, the judge instructed the jury. Prior to trial, the govern-
ment had proposed to instruct the jury that it could convict on
the § 924(c) count only if it found that Arreola knowingly
committed the underlying drug crime and that he “knowingly
carried a .45 caliber semi-automatic handgun, Combat Elite
Brand, during and relation to, or possessed the same firearm
in furtherance of, the drug-trafficking crime set forth in Count
Two of the Superceding Indictment.” The government’s
instruction was based on the fact that “[t]he government is
proceeding on two different theories . . . . One is that
[Arreola] carried the handgun during and in relation to a drug
trafficking crime. That’s one theory. And the other one is that
he knowingly possessed the same firearm in furtherance of a
drug-trafficking crime.” After some discussion about the pos-
sible overlap between “use and carry” and “possess,” the
court and the parties agreed not to treat them as “though
they’re two separate counts under 924(c).”
Ultimately, the judge instructed the jury that it could con-
vict Arreola if it found that he committed the underlying drug
offense, he “knowingly carried or possessed a .45 caliber
semi-automatic handgun,” and he “carried the firearm during
and in relation to, or possessed the firearm in furtherance of
the drug-trafficking crime as charged in Count One of the
Indictment.” In its closing instructions, the court gave the jury
a general unanimity instruction: “The law requires that any
verdict you return must be unanimous.” The court’s
instructions—a copy of which was in the jury room—differed
slightly from the verdict form, which stated, “We, the jury,
find the defendant [guilty/not guilty] of possessing or carrying
a firearm in relation to, or in furtherance of, a drug trafficking
crime as charged in Count Two of the Indictment.”
4734 UNITED STATES v. ARREOLA
The jury convicted Arreola, and he was sentenced to 190
months in prison. This timely appeal followed.
II
[1] The central question in this appeal is whether 18 U.S.C.
§ 924(c)(1)(A) defines one offense or two. Section 924(c)
provides that “any person who, during and in relation to any
. . . drug trafficking crime . . . uses or carries a firearm, or
who, in furtherance of any such crime, possesses a firearm”
shall be subject to certain minimum sentences. 18 U.S.C.
§ 924(c)(1)(A).
[2] In analyzing this question, we are assisted by the
Supreme Court’s guidance in Bell v. United States, 349 U.S.
81 (1955), which “laid down a presumption against constru-
ing statutes so as to lead to multiple punishment.” United
States v. UCO Oil Co., 546 F.2d 833, 837 (9th Cir. 1976). In
Bell, the Court explained that
[w]hen Congress leaves to the Judiciary the task of
imputing to Congress an undeclared will, the
ambiguity should be resolved in favor of lenity . . . .
It may fairly be said to be a presupposition of our
law to resolve doubts in the enforcement of a penal
code against the imposition of a harsher punishment.
349 U.S. at 83. The fact that “a statute encompasses various
modes of violation requiring different elements of proof . . .
does not compel” the conclusion that the statute creates sepa-
rate offenses. UCO Oil, 546 F.2d at 838.
[3] In determining whether the statute at issue creates sepa-
rate offenses, or simply describes alternative means to commit
the same crime, we employ the analytical framework estab-
lished in UCO Oil. Under UCO Oil, we consider “several rel-
evant factors,” including: (1) “language of the statute itself,”
(2) “the legislative history and statutory context,” (3) the type
UNITED STATES v. ARREOLA 4735
of conduct proscribed, and (4) the “appropriateness of multi-
ple punishment for the conduct charged in the indictment.” Id.
at 836-838. Applying those factors to this case, it is clear that
§ 924(c) creates only one offense.
A
[4] Under UCO Oil, we first examine the language of the
statute itself. The critical language of § 924(c) applies to any
person who “uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm.” 18 U.S.C.
§ 924(c)(1)(A). The statute does not simply list the prohibited
activities—using, carrying, or possessing a firearm. Rather, it
separates the “uses or carries” provision from the “possesses”
provision, placing each in its own clause, separated by a dis-
junctive, “or.” As a matter of grammatical construction, the
use of the disjunctive indicates that Congress was addressing
two separate acts. United States v. Combs, 369 F.3d 925, 931
(6th Cir. 2004) (“The two prongs of the statute are separated
by the disjunctive ‘or,’ which, according to the precepts of
statutory construction, suggests the separate prongs must have
different meanings.”); see also United States v. Pleasant, 125
F. Supp. 2d 173 (E.D. Va. 2000), aff’d 48 Fed. Appx. 909 (4th
Cir. 2002) (“The use of a second relative pronoun, the pres-
ence of a second dependent clause and the choice of different
modifiers for the prohibited conduct confirm that the second
prohibited act is quite distinct from the first.”).While it is
clear that the statute proscribes two distinct acts, it is not clear
from the statutory language that each act is a separate offense.
Congress could have chosen in enacting the statute to create
separate sub-parts, which would have presented a stronger
argument that it creates separate offenses, but it did not.
Rather, Congress placed both the “uses or carries” provision
and the “possesses” provision in the same sentence.
Moreover, the punishments associated with a violation of
§ 924(c) do not vary according to whether the defendant vio-
lated § 924(c) by “using or carrying” or by “possessing.”
4736 UNITED STATES v. ARREOLA
Rather, the punishments vary according to whether the defen-
dant “brandished” or “discharged” a firearm, where brandish-
ing and discharging are set out, as sentencing factors, in
separate subsections of § 924(c). 18 U.S.C. § 924(c)(1)(A)(i),
(ii), (iii).
[5] Therefore, while it is clear, as the courts held in Pleas-
ant and Combs, that § 924(c) names two distinct acts, it does
not create two separate offenses. Rather, it identifies two
ways in which a defendant could violate § 924(c). See United
States v. Street, 66 F.3d 969, 974 (8th Cir. 1995) (“The statute
lists all of the acts of violation in one sentence, and imposes
a single penalty for all of them, a construction which indicates
that Congress did not mean to create more than one offense.”
(internal quotations omitted)).
B
[6] Analysis of the legislative history does not conclusively
support either interpretation, but tends to suggest that Con-
gress intended to create a single offense. In 1998, Congress
amended § 924(c) in response to the Supreme Court’s deci-
sion in Bailey v. United States, 516 U.S. 137 (1995), which
held that the “uses or carries” provision of § 924(c) did not
encompass mere possession. 516 U.S. at 143 (requiring the
government “to show an active employment of the firearm by
the defendant, a use that makes the firearm an operative factor
in relation to the predicate offense”). See also 18 U.S.C. § 924
(1997) (mentioning “uses or carries” but not possession).
In the first draft of Senate Bill 191, the Senate proposed to
add the term “possesses” to the existing version of § 924 so
that it read, “any person who, during and in relation to any . . .
drug trafficking crime . . . , uses, carries, or possesses a fire-
arm . . . .” S. 191 Version One, 105th Cong. (1997). In its bill,
H.R. 424 Version 1, 105th Cong. (1997), the House proposed
to replace the phrase “uses or carries” with “possesses”
because “[t]he word ‘possession’ has a broader meaning than
UNITED STATES v. ARREOLA 4737
either ‘uses’ or ‘carries,’ thus reversing the restrictive effect
of the Bailey decision.” H.R. REP. NO. 105-344 at *6 (1997).
In a second draft, the House bill named three distinct fire-
arms offenses, each in different subsections. H.R. 424 Version
2, 105th Cong. (1997).1 The bill included subsections cover-
ing one who “possesses a firearm in furtherance of the crime,”
“brandishes a firearm,” and “discharges a firearm.” Id. The
Report of the House Committee on the Judiciary explained
that it modified “possesses” with “in furtherance of the crime”
even though
the distinction between “in furtherance of” and
“during and in relation to” is a subtle one, and may
initially prove troublesome for prosecutors.
Nevertheless, the Committee believes that “in
furtherance of” is a slightly higher standard, and
encompasses the “during and relation to” language.
* * *
The government must clearly show that a firearm
was possessed to advance or promote the commis-
sion of the underlying offense. The mere presence of
a firearm in an area where a criminal act occurs is
not a sufficient basis for imposing this particular
mandatory sentence.
1
The House bill, in pertinent part, provided:
(1) A person who, during and in relation to a crime of . . . drug
trafficking . . .
(A) possesses a firearm in furtherance of the crime . . .
(B) brandishes a firearm . . .
(C) discharges a firearm . . .
H.R. 424 Version 2, 105th Congress (1997).
4738 UNITED STATES v. ARREOLA
H.R. REP. NO. 105-344 at *11-12. See also 144 CONG. REC.
S12671 (Daily Ed. Oct. 16, 1998, statement of Sen. DeWine)
(“I believe that the ‘in furtherance’ language is a slightly
higher standard that encompasses ‘during and in relation to’
language, by requiring an indication of helping forward, pro-
mote, or advance a crime.”).
Both houses of Congress initially applied the “during and
in relation to” standard to possession of a firearm. In the end,
however, the amendment to § 924(c) retained the “uses or car-
ries” provision separately from the “possesses” provision, and
attached the more stringent “in furtherance of” requirement to
possession. Arreola argues that the final structure of § 924(c)
suggests that Congress deliberately intended to set forth the
separate offense of possession, one that was not included in
the original statute according to the Supreme Court’s defini-
tion in Bailey.
[7] While the legislative history suggests that Congress
intended to differentiate a defendant who “possesses” a fire-
arm in “furtherance of” a crime from one who “uses or car-
ries” a firearm “during and relation to” a crime, it is far from
clear that Congress intended to create separate offenses. On
the contrary, it appears that Congress structured § 924(c) as it
did to assuage the fear of some members of Congress and “as-
sure that someone who possesses a gun that has nothing to do
with the crime does not fall under 924(c).” 144 CONG. REC.
S12670 (statement of Sen. DeWine). See also 144 CONG. REC.
H532 (Daily Ed. Feb. 24, 1998, statement of Rep. Waters)
(“If a young man 19 or 20 years old maybe goes out to hunt
and they have got a hunting rifle and they happen to have 5
ounces of crack cocaine inside their jacket pocket, they have
a gun, . . . , they are in possession of drugs, first-time offense
on the possession of the cocaine, 5 years minimum in Federal
prison added to this with a gun, the hunting gun, now 15
years. Is that what the gentleman understands this bill to
be?”); id. at H534 (statement of Rep. McCollum) (“If indeed
the person possesses a gun, the simple possession of it during
UNITED STATES v. ARREOLA 4739
the course of while that is going on, if it is not in furtherance
of that crime, it is not going to trigger the additional manda-
tory minimum. And it is not a gray area at all.”). Moreover,
the fact that Congress chose not to adopt the House bill—
which explicitly proscribed separate offenses—suggests that
Congress did not intend to separate § 924(c) into multiple
offenses. Therefore, the legislative history does not support
the conclusion that Congress intended to create two separate
offenses in § 924(c).
C
The third UCO Oil factor is whether the statute proscribes
“distinctly different kinds of conduct,” or whether the pro-
scribed conduct is “regarded as [falling] within the conven-
tional understanding” of one crime. 546 F.2d at 837. Where
the proscribed acts “merge into each other, blurring any con-
ceptual distinctions,” it is less likely that the statute creates
separate offenses. Id. (holding that “the making of false state-
ments and the concealment of a material fact by trick, scheme
and device” are not separate offenses).
[8] In this case, the statute mentions two types of conduct,
which require different proof:
What the statute proscribes as conduct in the first
clause is the use or carrying of a gun during (a tem-
poral connection) and in relation to (a substantive
connection) a predicate crime. What the statute pro-
scribes in the second clause is possessing a gun in
furtherance of (with a particular purpose of advanc-
ing) the specified crime.
Pleasant, 125 F. Supp. 2d at 182-83.
Turning to the first clause of § 924(c), to prove that a
defendant used a firearm, the government must “show an
active employment of the firearm by the defendant, a use that
4740 UNITED STATES v. ARREOLA
makes the firearm an operative factor in relation to the predi-
cate offense.” Bailey, 516 U.S. at 143. To prove that a defen-
dant carried a firearm, the government must show that the
defendant carried a firearm on his person or “knowingly pos-
sesse[d] and convey[ed] firearms in a vehicle.” United States
v. Foster, 165 F.3d 689-692 (9th Cir. 1999) (citing Musca-
rello v. United States, 524 U.S. 125 (1998)). The use or carry-
ing of a firearm relates to the underlying drug offense where
the firearm “facilitated or had a role in the crime.” United
States v. Streit, 962 F.2d 894, 899 (9th Cir. 1992).
Turning to the second clause, to prove that a defendant pos-
sessed a gun in furtherance of a drug offense, the government
must show “that the defendant possessed the weapon to pro-
mote or facilitate the underlying crime . . . . In other words,
this element of § 924(c) turns on the intent of the defendant.”
United States v. Krouse, 370 F.3d 965, 967 (9th Cir. 2004).
[9] The two types of conduct that § 924(c) proscribes are
difficult to distinguish conceptually. First, under Foster, a
defendant may satisfy the “carries” prong of the first clause
if he “possesses” a firearm in his car, which undoubtedly
overlaps with the “possesses” prong of the second clause.
Second, “during and in relation to” and “in furtherance of”
require similar proof. As the House Report acknowledged,
“the distinction between ‘in furtherance of’ and ‘during and
in relation to’ is a subtle one, and may initially prove trouble-
some for prosecutors.” 105 H.R. REP. 105-344 at 12. The sim-
ilarity between the evidence necessary to prove a violation of
the first clause of § 924(c) and the evidence necessary to
prove a violation of the second suggests that § 924(c) pro-
scribes only one offense.
D
[10] The final UCO Oil factor is the “appropriateness of
multiple punishment for the conduct charged in the indict-
ment.” 546 F.2d at 837-838. In considering this factor, we
UNITED STATES v. ARREOLA 4741
bear in mind the Supreme Court’s admonition in Bell to avoid
construing statutes in a way that would lead to multiple pun-
ishment. We also note that the fact that “a statute encom-
passes various modes of violation requiring different elements
of proof . . . does not compel” the conclusion that the statute
creates separate offenses. UCO Oil, 546 F.2d at 838.
[11] Applying this rule to § 924(c), it would seem absurd
to permit multiple punishment of a defendant who violates
both the “uses or carries” clause and the “possesses” clause.
Consider the following scenario: a drug dealer goes to meet
a buyer, much like the Arreola did in this case. He possesses
a gun and intends to use it if a buyer does not pay him. For
that conduct, he is guilty of violating the “possesses” clause
of § 924(c). Once he gives the buyer the requested drugs, and
the buyer refuses to pay, the drug dealer tells the buyer that
he has a gun and will use it if the buyer does not give him the
money. For threatening the buyer with the gun, the drug
dealer is guilty of violating the “uses or carries” clause of
§ 924(c). Were the two clauses of § 924(c) held to be separate
offenses, the drug dealer could be punished twice for one con-
tiguous act. Congress, when it revised § 924(c) after the
Supreme Court’s decision in Bailey, is unlikely to have
intended such a result. The more logical conclusion is that
Congress intended to widen the means of proving a single
offense.
E
[12] In sum, applying the UCO Oil factors, we conclude
that § 924(c)(1)(A) defines only one offense. We are mindful
that the Sixth Circuit has reached a contrary conclusion, find-
ing the presence of a different standard of proof persuasive.
See Combs, 269 F.3d at 932-33. However, as we have noted,
the standards of proof are not so dissimilar as to indicate that
Congress intended to create two separate offenses, as opposed
to identifying two ways in which a person could commit a
single offense. Our construction of the statute, we respectfully
4742 UNITED STATES v. ARREOLA
suggest, appropriately applies the presumption against multi-
ple punishment for a single act, is true to the plain meaning
of the statute and its legislative history, and is a more logical
interpretation of the distinct acts as falling within the conven-
tional understanding of one crime.
III
Applying our statutory interpretation to the case at hand,
we must reject the arguments Arreola urges on appeal. Where
a defendant fails to object to an indictment as duplicitous
before trial and fails to object to the court’s jury instructions
at trial, we review for plain error under Federal Rule of Crimi-
nal Procedure 52(b). United States v. Technic Servs., 314 F.3d
1031, 1040 (9th Cir. 2002). We will reverse for plain error
“only if clear error prejudiced the defendant’s substantial
rights so as to affect seriously the fairness or integrity of the
judicial proceedings.” United States v. Savage, 67 F.3d 1435,
1439 (9th Cir. 1995). Moreover, in order to reverse under the
plain error standard, it must be “highly probable that the error
affected the verdict.” United States v. Chang, 207 F.3d 1169,
1175 (9th Cir. 2000) (quoting United States v. Kessi, 868 F.2d
1097, 1103 (9th Cir. 1989)). When reviewing jury instructions
in particular, we consider the jury instructions as a whole in
the context of the trial. United States v. Mal, 942 F.2d 682,
686 (9th Cir. 1991).
A
[13] The district court’s instructions did not violate
Arreola’s Sixth Amendment right to a unanimous jury verdict.
Jury instructions based on a duplicitous indictment may per-
mit a jury to render a guilty verdict “without having reached
a unanimous verdict on the commission of a particular
offense,” in violation of a defendant’s Sixth Amendment right
to a unanimous jury verdict. UCO Oil, 546 F.2d at 835. How-
ever, this question is controlled by whether an indictment and
resulting jury instructions charge two separate offenses in one
UNITED STATES v. ARREOLA 4743
count, or merely state multiple ways of committing the same
offense. Having concluded that the statute defines a single
offense, the indictment against Arreola was not duplicitous.
Therefore, the jury instructions mirroring the language of the
indictment did not violate Arreola’s Sixth Amendment rights.
B
There was no plain error in use of the jury verdict form.2
Arreola argues that the use of the form amounted to a con-
structive amendment of the indictment in violation of his Fifth
Amendment right to a grand jury.
[14] A defendant in a felony trial can only be convicted of
charges upon which a grand jury has returned an indictment.
An indictment is constructively amended where “the evidence
presented at trial, together with the jury instructions, raises the
possibility that the defendant was convicted of an offense
other than that charged in the indictment.” Streit, 962 F.2d at
899-900. In this case, the jury verdict form erroneously per-
mitted the jury to convict Arreola if it found that he possessed
a firearm during and in relation to a drug crime, an act that
§ 924(c) does not criminalize. However, considering the jury
verdict form in light of the court’s instructions and the trial as
a whole, it is not likely that error in the jury verdict form
affected the jury’s decision to convict.
[15] The trial judge properly instructed jurors that they
could only convict if they found that Arreola “carried the fire-
arm during and in relation to, or possessed the firearm in fur-
therance of the drug trafficking crime.” The prosecutor and
2
In Yeti by Molly LTD v. Deckers Outdoor Corp., 259 F.3d 1101, 1109
(9th Cir. 2001), we held that failure to object contemporaneously to a ver-
dict form waives the issue. However, Yeti is not controlling here because
Yeti was a civil case. In criminal cases, “[a] plain error that affects sub-
stantial rights may be considered even though it was not brought to the
court’s attention.” FED. R. CRIM. P. 52(b). There is no corresponding rule
in the Federal Rules of Civil Procedure.
4744 UNITED STATES v. ARREOLA
Arreola’s counsel reiterated this requirement multiple times
throughout their closing statements. The jurors had a copy of
the instructions, correctly stating the requirements for a guilty
verdict, in the jury room. Given that the jury was repeatedly
given the correct standard, it is not likely that the language of
the verdict form affected the verdict, which is required before
a court may reverse under the plain error standard. Kessi, 868
F.2d at 1105. Therefore, any error in the jury verdict form
does not rise to the level of plain error.
AFFIRMED.