United States v. Foster

KOZINSKI, Circuit Judge.

What does it mean to "carry a gun"? We must choose between two duelling interpretations of the phrase.

I

Leon Foster and Sandra Ward manufactured methamphetamine. In 1989 the police got wise to them, pulled Foster over while he was driving his pickup truck and arrested him. In his truck bed, in a zipped up bag under a snap-down tarp, they found a loaded 9 mm semiautomatic and a bucket. Inside the bucket were a scale, plastic baggies, and some hand-written notes with prices.

Foster and Ward were convicted of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Foster was also convicted of possessing methamphetamine, in violation of 21 U.S.C. § 844, and of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). . . .

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II

Section 924(c)(1) provides that "whoever, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years . . . ." (emphasis added). Was Leon Foster carrying a gun when he drove with it in his truck bed?

"Carry" seems like a simple English word, which is precisely the problem: Few words in English are truly simple. "Carry" has two differing relevant uses. It may mean to transport or even to arrange for something to be transported: "I had to carry my piano all the way across the country." But it may also mean to hold an object while moving from one place to another: "I carried that ball and chain wherever I went." This narrower sense applies particularly to weapons. If I were to say "Don Corleone is carrying a gun" - or even just "Don Corleone is carrying" - you would understand that the Don has a sidearm somewhere on his person. A synonym for carry in this sense is to "pack heat." Criminals who pack heat are obviously much more dangerous than those who do not.

In our caselaw, we first adopted the broad definition of "carry" as transporting in United States v. Barber, . . . Interpreting section 924(c)(1)'s predecessor, we said "in ordinary usage, the verb 'carry' includes transportation or causing to be transported. Nothing in the legislative history indicates that Congress intended any hypertechnical or narrow reading of the word 'carries.'" . . . After Bailey we switched to the narrower (packing heat) sense in United States v. Hernandez, . . . We held that "in order for a defendant to be convicted of 'carrying' a gun in violation of section 924(c)(1), the defendant must have transported the firearm on or about his or her person. . . . This means the firearm must have been immediately available for use by the defendant." . . .

Choosing between the two definitions is a close call. One need go no farther than Black's Law Dictionary to find ammunition for both sides - but a bit more for the narrower definition. The broad construction gets some support from the first part of the definition: "To bear, bear about, sustain, transport, remove, or convey." Black's Law Dictionary . . . But, the definition continues: "To have or bear upon or about one's person, as a watch or weapon; locomotion not being essential." Moreover, Black's separately defines to "carry arms or weapons" as "to wear, bear, or carry them upon the person or in the clothing or in a pocket, for the purpose of use, or for the purpose of being armed and ready for offensive or defensive action in case of a conflict with another person." Because we are concerned here with carrying weapons, not furniture or grudges, the sense specific to weapons carries (so to speak) more weight.

There are those who have criticized the narrow definition because it seems to exonerate a defendant who has a gun readily accessible within the passenger compartment of a moving car, but not actually borne upon his person. These critics have smugly pointed out that circuits purporting to follow the narrow definition have had to abandon it in order to uphold convictions in such circumstances. . . . This criticism is ill-founded. The key aspect of the narrow definition is not that the weapon actually be borne on the person. Rather, it is that the weapon remain within easy reach while the individual is in motion. Where an individual is walking, a gun in hand certainly amounts to carrying, but so does a gun in a holster or a shopping bag. The essence is that the weapon moves with the person and can be swiftly put to use. Where the individual is in a car, he need not actually be touching the weapon to make it move with him. Because the car and its contents move in unison, any weapon that is within hand's reach while the car is in motion can be said to be carried. The same would be true, of course, if the individual had the weapon concealed in a train compartment, a bus or, heaven forfend, an airplane.

Bailey is the leading case on section 924(c)(1), so we can also look to how it analyzed "use" for clues to our similar puzzle. The Court first considered the ordinary, dictionary meaning. . . . When that yielded several interpretations - as it does for "carry" - the Court looked to "placement and purpose in the statutory scheme." The Court stressed that since Congress used two distinct terms, they must be defined narrowly enough that neither swallows up the other. Under the correct definition, then, there must be some ways to use a gun but not carry it, and others to carry a gun but not use it. . . . The Bailey Court therefore defined "use" narrowly as "active employment." Yet there is nothing special about "use" that makes it susceptible to a narrow definition, while parallel terms of the same statute are defined broadly; it just so happens that "use" came before the Court, not "carry." Construing the two terms in pari materia, we see no basis for defining "carry" broadly while "use" is defined narrowly.

The Court also looked to context within the broader statute. It examined how "use" was used in 18 U.S.C. § 924(d) and argued that the term should have the same meaning in section 924(c)(1). "Carry," unlike "use," does not appear elsewhere in section 924, so we get no help there. However, the Court did note that the term "use," if defined too broadly, would become synonymous with "possess" - a term that Congress used elsewhere. . . . A broad reading of "carry" presents a similar danger by making it synonymous with "transport." As with "possess," Congress used "transport," "transporting" and "transportation" at many places in the gun statutes. . . . If Congress meant "transport" in section 924(c), it knew how to say so.

Another lesson we draw from Bailey is that, just as "use" may not be defined so broadly as to encompass mere possession, neither may "carry." The Barber interpretation comes dangerously close to doing this by prohibiting possession of a gun in a moving vehicle. Cases adopting the broad definition point out that this prohibits possession in a moving vehicle, not possession period. . . . But it's not clear why possession in a moving vehicle is any different from possession anywhere else. Thus, a gun without bullets, partially disassembled, in a locked compartment to which the driver does not have the key would also be deemed to be carried under the broad definition; we think that is as much naked possession as the situation in Bailey itself. The broad definition, then, encompasses something close to the mere possession the Supreme Court in Bailey said was not within the scope of section 924(c)(1).

We can also speculate as to what purpose a prohibition on carrying a gun during and in relation to a violent or drug trafficking crime might serve. Using or carrying guns makes those crimes more dangerous. A drug dealer who packs heat is more likely to hurt someone or provoke someone else to violence. A gun in a bag under a tarp in a truck bed poses substantially less risk. Indeed, Black's definition of carrying a weapon focuses on the "purpose of use, or . . . the purpose of being armed and ready for offensive or defensive action in case of a conflict with another person." Black's Law Dictionary . . .

[. . .]

On balance, the arguments point to the narrower definition: It fits the more specific dictionary definition, follows Bailey more closely, harmonizes better with the full statute, and flows from the likely purpose of section 924(c)(1). We recognize, though, that reasonable minds may differ. A final argument for the narrower definition is the rule of lenity. Where a criminal law is ambiguous, we are wary of imposing criminal liability for conduct that the law does not clearly prohibit. . . .

The rule of lenity applies only where a statute has resisted the ordinary tools of statutory interpretation. . . . We think these ordinary tools of interpretation point to the narrow definition; at worst (for Mr. Foster) they leave the scope of section 924(c)(1) in doubt. If Congress wants us to put people like Leon Foster in prison for a longer time, it can re-write the law to give us clearer instructions, perhaps by using the word "transport" in section 924(c)(1) as it does in various other sections of the firearm statutes.

We reaffirm our holding in Hernandez and its progeny that "in order for a defendant to be convicted of 'carrying' a gun in violation of section 924(c)(1), the defendant must have transported the firearm on or about his or her person. . . . This means the firearm must have been immediately available for use by the defendant." . . .

III

General rule in hand, we must next ask whether Foster's gun was immediately available for use. It wasn't. While driving Foster could not reach the gun. To use the gun he would have had to stop the truck, get out, go to the back of the truck, open a snap-down tarp, and unzip the bag containing the gun. Although he might do this, he could not do so nearly as quickly as if he had had the gun within easy hand's reach. If that counts as immediately available, then one could never take a trip with a gun in a vehicle without it being immediately available. It would make absolutely no sense to adopt the Hernandez rule but hold that this gun was immediately available - the practical effect of such a holding would be to return us to Barber.

We therefore REVERSE the conviction for carrying a firearm and REMAND for resentencing. . . .

TROTT, Circuit Judge dissenting, with whom Chief Judge Hug and Judge T.G. Nelson join.

My good friend Judge Kozinski sings a Sirens' song. Nevertheless, I respectfully believe he leads us astray with inventive but obfuscatory conceits. Instead of attacking in a straightforward analytical way the meaning of "carry" in the context of a motor vehicle, he casts the proposition as a "duel" carried on in a language - English no less - too subtle to understand. The everyday bread and butter word "carry" takes on metaphysical proportions so diaphanous and illusive that we throw the rule of lenity as a life raft to sinking drug traffickers. The method Judge Kozinski uses to force his one-size-fits-all conclusion reminds me of a debate a wise lawyer once warned me to eschew: is it midnight gray, or is it battleship gray? Moreover, the majority sidesteps the appropriate appellate review of this issue pursuant to the plain error test, relegating plain error analysis to the afterthought of a footnote. In so doing, the majority permits a defendant who conceded the carrying issue at trial simply to walk away from it on appeal.

This is not a "puzzle," and we do not need "clues" to solve it. It's "carry," that's all, and it's carry in a vehicle during and in relation to a drug trafficking crime. Ambiguous? Slippery? Elusive? Or is this a case of "nothing either good or bad but thinking makes it so." I mean no disrespect to Judge Kozinski. He is a readable writer, and he is not alone. The Second and Sixth Circuits have made the same mistake, the mistake Judge Learned Hand warned against of viewing this as solely a verbal problem rather than one with roots and consequences in the real world. . . .

What does carry mean?

We have a perfectly good case on the books, the Barber case, that not only reaches the right result with respect to the word "carry” . . . in a vehicle case, but illuminates the flaws in Judge Kozinski's analysis. In United States v. Barber, . . . we addressed the very issue presented here. Barber had been arrested with a gun in a locked glove compartment, and we were called upon to decide whether the gun was "carried" under l 8 U.S.C. § 924(c)(2), the predecessor to § 924(c)(1). We said,

"Although Congress never specifically addressed the question whether the term "carries" was intended to encompass "transports" or "possesses," we think that the ordinary meaning of the term embraces Barber's transportation of the weapon. In ordinary usage, the verb "carry" includes transportation or causing to be transported. Nothing in the legislative history indicates that Congress intended any hypertechnical or narrow reading of the word "carries."

. . .

This holding embracing the "transportation test" made as much sense then as it does now. The word "carry" derives etymologically from the Latin word "carrus." Carrus, in turn, means cart, or vehicle. We recognize this Latin root in words such as car, carriage, and cart. . . . Webster's defines "carry" as, "1: to move while supporting (as in a vehicle or in one's hands or arms): move an appreciable distance without dragging: sustain as a burden or load and bring along to another place." . . . Webster's lists many other definitions of the word and then, in differentiating "carry" from some of its synonyms, states:

“CARRY indicates moving to a location some distance away while supporting or maintaining off the ground. Orig. indicating movement by car or cart, it is a natural word to use in ref. to cargoes and loads on trucks, wagons, planes, ships, or even beasts of burden.”

This definition, therefore, clearly includes the transportation of a firearm by car or by truck; whether the item carried is within reach is irrelevant.

We followed Barber in United States v. Streit, . . . In Streit, the defendant was charged inter alia with "carrying" a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). . . . During deliberations, the jury asked whether "holding a gun in one's hand [would] be considered carrying?" The trial court responded with this instruction:

“Members of the jury, you are advised that 'carrying' a firearm includes possession of the firearm for purposes related to the commission of a crime of violence. Carry can include transport or possess. "Carrying" should not be construed in a hypertechnical or narrow way.”

We approved this instruction, citing Barber as our authority.

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I respectfully dissent.