United States v. Bright ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-6886
MALCOLM BRIGHT,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-92-169, CA-96-131)
Submitted: October 10, 1997
Decided: November 17, 1997
Before WIDENER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Malcolm Bright, Appellant Pro Se. Jane Barrett Taylor, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Malcolm Bright appeals the district court's orders denying his
motion filed pursuant to 28 U.S.C. § 2255 (1994) (current version at
28 U.S.C.A. § 2255 (West 1994 & Supp. 1997)) and his motion for
reconsideration. We affirm.
Bright was convicted of using or carrying a firearm during and in
relation to a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c) (1994). The facts giving rise to the conviction are that in
1991 an informant told police in Columbia, South Carolina, that
Bright was dealing crack cocaine out of his home. An undercover
officer made four separate purchases of crack from Bright. On the last
occasion, two undercover officers entered Bright's home and pur-
chased seven rocks of crack for $150. The officers observed a sawed-
off shotgun between the armrest and cushion of the chair in which
Bright was seated. When one officer complained about the price of
the crack, Bright lowered his hand as if to reach for the gun and did
not raise it again until the price dispute was settled.
Following his conviction, Bright was sentenced to 120 months in
prison. We affirmed his conviction. He subsequently filed the subject
§ 2255 motion.
Bright's contentions warrant little discussion. He complains that
the district judge instructed the jury that the underlying drug traffick-
ing offense had been proven. But the record reveals that the parties
had stipulated to this prior to trial because Bright stood convicted of
the offense in state court. Additionally, although Bright claims that an
informant placed the shotgun in the chair in an effort to "set him up,"
he offers nothing to support his assertion that he was entrapped into
committing the crime.
Bright is correct that the indictment charged that he used "and" car-
ried the firearm but the jury was instructed that it could convict if it
found that he had used "or" carried the firearm. This discrepancy does
not merit relief, however. When, as here, a statute is worded in the
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disjunctive, federal pleading requires that an indictment charge in the
conjunctive to inform the accused fully of the charges, and it is appro-
priate for the court to instruct the jury in the disjunctive. See United
States v. Klein, 850 F.2d 404, 406 (8th Cir. 1988); see also Turner v.
United States, 396 U.S. 398, 420 (1970); United States v. Champion,
387 F.2d 561, 563 (4th Cir. 1967).
Bright maintains that the evidence was insufficient to convict him
and that the district court's instruction on use of a firearm was errone-
ous. Although the instruction was incorrect under Bailey v. United
States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-
7448, 94-7492), Bright was not prejudiced by the error, see United
States v. Maybeck, 23 F.3d 888, 891 (4th Cir. 1994), cert. denied, ___
U.S. ___, 64 U.S.L.W. 3708 (U.S. Apr. 22, 1996) (No. 95-8310). His
conduct clearly satisfies the Bailey definition of use because he bran-
dished the gun, menacing the officers with it during the price dispute
over the crack. As the instruction on use was not prejudicial, we need
not address Bright's claim that the instruction on carry under § 924(c)
also was erroneous. Finally, as the drug trafficking crime was estab-
lished and Bright used the firearm during that offense, the evidence
was sufficient to convict him under § 924(c).
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process. We deny the motion
to expedite as moot.
AFFIRMED
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