UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

JOHNSON, MICHAEL


99-3045a

D.C. Cir. 2000


*	*	*


United States Court of Appeals


FOR THE DISTICT OF COLUMBIA CIRCUIT


Argued March 17, 2000 Decided July 14, 2000 


No. 99-3045


United States of America,  Appellee


v.


Michael Johnson,  Appellant


Appeal from the United States District Court  for the District of
Columbia  (No. 91cr00142-01)


Sandra G. Roland, Assistant Federal Public Defender,  argued the cause
for appellant. With her on the briefs was  A. J. Kramer, Federal
Public Defender. Neil H. Jaffee,  Assistant Federal Public Defender,
entered an appearance.


Amul R. Thapar, Assistant United States Attorney, argued  the cause for
appellee. With him on the brief were Wilma A. 


Lewis, U.S. Attorney, John R. Fisher, Mary-Patrice Brown,  and Ronald
L. Walutes, Assistant U.S. Attorneys.


Before: Sentelle, Tatel, and Garland, Circuit Judges.


Opinion for the Court filed by Circuit Judge Garland.


Garland, Circuit Judge: In 1991, defendant Michael John- son was
convicted of violating 18 U.S.C. s 924(c)(1), which  imposes a prison
term on any person who "uses or carries" a  firearm "during and in
relation to" a drug trafficking crime.  Johnson argues that his
conviction must be vacated in light of  the Supreme Court's subsequent
decision in Bailey v. United  States, 516 U.S. 137 (1995), which
clarified the meaning of  "uses" under that statute. We conclude that
the evidence  was sufficient to sustain Johnson's conviction, and that
the  district court's erroneous, pre-Bailey instruction constituted 


I


On February 22, 1991, District of Columbia police officers  arrived at
Johnson's apartment building with a warrant au- thorizing them to
search his apartment for evidence of drug  trafficking. As Officer
James Flynn approached the door,  defendant emerged from his apartment
with a .380 semiauto- matic pistol in his right hand. Flynn identified
himself as a  police officer. In response, Johnson raised his gun,
pointed it  directly at the officer, slowly retreated back into his
apart- ment, and slammed the door.


Within minutes, the police broke down the door to John- son's
apartment. As they entered, they heard someone run- ning through the
apartment and then heard loud "crashing  sounds." Although the
officers did not find Johnson, they did  find an air shaft that was
accessible through a window in his  bathroom. Hanging on a nail in the
air shaft was a plastic  bag containing several small packets of crack
cocaine and a  loaded .357 revolver with an obliterated serial number.
The  officers then detected "something down in the bottom of the 
shaft moving around," and immediately called for a canine 


unit. Upon placing the call, the officers began hearing "loud  smashing
noises coming from the shaft."


A few minutes later, a resident of one of the building's  basement
apartments informed the police that he had an  intruder. The officers
entered the man's apartment and  found Johnson in a child's bedroom,
lying on the child's bed.  Defendant was clad only in his underwear.
On the bed were  the same clothes Johnson had worn when he pointed the
gun  at Officer Flynn, and in the clothes were over thirty packets  of
crack cocaine and $700 in cash. The ceiling of the dining  room
adjacent to the child's bedroom had been "completely  smashed out."
Officer Flynn testified at trial that "[t]here  was plaster all over
the floor" of the dining room and "a large  hole in the ceiling"
leading up into the air shaft. The police  found a .380 semiautomatic
pistol--the same one Johnson had  pointed at Officer Flynn--resting on
the lip of the hole in the  ceiling.


Johnson was charged with four felonies: possessing with  intent to
distribute five grams or more of cocaine base, in  violation of 21
U.S.C. s 841(a)(1); using or carrying a fire- arm--both the .380
semiautomatic pistol and the .357 revolv- er--during and in relation
to a drug trafficking crime, in  violation of 18 U.S.C. s 924(c)(1);
receiving in interstate  commerce a firearm with an obliterated serial
number, in  violation of 18 U.S.C. s 922(k); and assaulting a police
officer  with a deadly or dangerous weapon--specifically, the .380 
semiautomatic--in violation of D.C. Code s 22-505(b). At  trial,
Johnson claimed that he had been sleeping in his bed  when the police
broke down his bedroom door, woke him up,  and hit him on the head
with a piece of wood. He testified  that he did not own any guns, had
nothing to do with illegal  drugs, and had not known about the air


The district court instructed the jury that to establish a  violation
of 18 U.S.C. s 924(c)(1), the government was re- quired to prove
beyond a reasonable doubt: (1) "That the  defendant knowingly and
intentionally carried or used a  firearm"; and (2) "That the defendant
did so during and in  relation to a drug trafficking crime." Tr. at
342. Consistent 


with the then-prevailing law of the circuit, the court defined  the
first element of the offense as follows:


In order to prove the first element of this offense, the  government
must prove the defendant carried or used a  firearm. The government
does not have to show that the  defendant bore the firearm on his
person, or actively  employed the firearm in any manner. To satisfy
this  first element of the offense, it is sufficient if you find that 
at a given time the defendant had both the power and the  intention to
exercise dominion and control over the fire- arm.


Id.; see, e.g., United States v. Harrison, 931 F.2d 65, 71 (D.C.  Cir.
1991) (holding that actual or constructive possession  satisfies the
"uses or carries" requirement of section  924(c)(1)). Because Johnson
was charged with using or car- rying both the semiautomatic and the
revolver, the jury  instruction did not distinguish between the two
weapons.  Johnson raised no objection.


On May 31, 1991, Johnson was convicted on all counts. He  appealed on a
number of grounds, but again did not question  the validity of the
section 924(c)(1) instruction. This court  affirmed the convictions.
See United States v. Johnson, No.  91-3227, 1993 WL 390062 (D.C. Cir.
Sept. 30, 1993).


Two years later, the Supreme Court held in Bailey v.  United States
that mere possession is insufficient to establish  "use" of a firearm
under section 924(c)(1), and that the  government must instead prove
the defendant's "active em- ployment" of the weapon. 516 U.S. 137, 150
(1995). On April  22, 1996, Johnson filed a motion to vacate, set
aside or correct  his sentence pursuant to 28 U.S.C. s 2255. The
district court  denied the section 2255 motion, but granted Johnson's
re- quest for a certificate of appealability under 28 U.S.C.  s


II


On appeal, Johnson argues that the evidence at his trial  was
insufficient to support a conviction for violating section 


924(c)(1), and that even if the evidence was sufficient, the jury 
instructions were erroneous under Bailey. We consider each  contention
below.


A


Evidence is sufficient to sustain a conviction if, "viewing the 
evidence in the light most favorable to the government, 'any  rational
trier of fact could have found the essential elements  of the crime
beyond a reasonable doubt.' " United States v.  Teffera, 985 F.2d
1082, 1085 (D.C. Cir. 1993) (quoting Jackson  v. Virginia, 443 U.S.
307, 319 (1979)).1 The government  concedes that, after Bailey, the
evidence was insufficient to  establish using or carrying with respect
to the .357 revolver,  which was found in a bag hanging on a nail at
the top of the  air shaft. See Gov't Opp'n to Mot. to Vacate at 4.
Defen- dant, however, was charged with using or carrying both the 
revolver and the semiautomatic. See Indictment, Count 2.  When a
defendant is charged on the basis of multiple acts, a  verdict cannot
be overturned on the ground that the evidence  is insufficient as to
one of them. See Griffin v. United States,  502 U.S. 46, 56-57 (1991)
("[W]hen a jury returns a guilty  verdict on an indictment charging
several acts in the conjunc- tive ... the verdict stands if the
evidence is sufficient with  respect to any one of the acts charged.")
(quoting Turner v.  United States, 396 U.S. 398, 420 (1970)).2




__________

n 1 Because we find the evidence sufficient to support the convic-
tion, we need not consider whether defendant forfeited this argu- ment
by failing to raise it on direct appeal. See discussion infra  Part
II.B.


2 Defendant points out that in Yates v. United States, the  Supreme
Court stated that a verdict must "be set aside in cases  where the
verdict is supportable on one ground but not on another,  and it is
impossible to tell which ground the jury selected." 354  U.S. 298, 312
(1957). In Griffin, however, the Court held that Yates  applies only
where the invalid ground involves legal error, not mere  evidentiary
insufficiency. See Griffin, 502 U.S. at 56-59. We also  note, as we
have before, that an indictment charged in the conjunc- tive (e.g.,
one charging that the defendant used a semiautomatic  and a revolver),
may be proven in the disjunctive (i.e., by evidence 


Here, there is no question that the evidence was sufficient  to support
a conviction for using or carrying the .380 semiau- tomatic, as
Officer Flynn testified that Johnson held it in his  hand and pointed
it at him. See Muscarello v. United States,  524 U.S. 125, 130 (1998)
("No one doubts that one who bears  arms on his person 'carries a
weapon.' "); Bailey, 516 U.S. at  148 ("The active-employment
understanding of 'use' certainly  includes brandishing [or]
displaying...."). Indeed, defen- dant conceded below that there was
sufficient evidence to  support his conviction with respect to the
semiautomatic. See  Def. Supp. to Mot. to Vacate at 4. Accordingly, we
reject  defendant's sufficiency challenge.3


B


Defendant also contends, and the government again con- cedes, that in
light of the Supreme Court's subsequent deci- sion in Bailey, the
district court erred by conflating the terms  "use" and "carry" and
instructing the jury that it could  convict defendant under section
924(c)(1) if it found he had  merely possessed a weapon
constructively. See Gov't Br. at  22; see also In re Sealed Case, 153
F.3d 759, 770-72 (D.C.  Cir. 1998) (noting that "use" requires "active
employment,"  and that "carry" requires more than "various attenuated 
forms of constructive possession"); United States v. Kennedy,  133
F.3d 53, 58 (D.C. Cir. 1998). The remaining question is  whether we
have authority to correct the error. See United 




__________

n that the defendant used one or the other). See United States v. 
Joseph, 169 F.3d 9, 13 (D.C. Cir. 1999).


3 Although defendant does not raise the point, the evidence was  also
sufficient to establish that the semiautomatic was used or  carried
"during and in relation to" a drug trafficking offense. Cf.  infra
Part II.B (noting that defendant does contest the "during and  in
relation to" element with respect to his claim of instructional 
error). More than thirty packets of crack cocaine were found in 
Johnson's clothes, which were lying beside him on the bed. A 
reasonable jury could readily have concluded that the drugs had  been
on Johnson's person when he pointed the gun at Officer Flynn,  and/or
that he had both the gun and drugs with him as he fled down  the air


States v. Olano, 507 U.S. 725, 727 (1993); United States v.  Perkins,
161 F.3d 66, 71 (D.C. Cir. 1998). "Ordinarily, where  a defendant has
procedurally defaulted a claim by failing to  raise it on direct
review, the claim may be raised in habeas  only if the defendant can
first demonstrate either cause and  actual prejudice, or that he is
actually innocent." Perkins,  161 F.3d at 71 (citing Bousley v. United
States, 523 U.S. 614,  622 (1998)) (internal quotations omitted). In
this case, how- ever, the government did not assert defendant's
procedural  default below, and instead argued only that the error was 
harmless. See Gov't Opp'n to Def. Mot. at 3. Johnson  contends that
this means the government has "waived the  waiver"--i.e., that the
government has waived the claim of  defendant's procedural default. As
a consequence, defendant  argues, we should not apply the "cause and
prejudice" stan- dard. Rather, he urges us to review the case for
"harmless  error," the standard applicable on direct appeal when a 
defendant has raised the objection at trial, or for "plain  error,"
the standard applicable on direct appeal when a  defendant has not so
objected. See Fed. R. Crim. P. 52.


In United States v. Perkins, we surveyed the different  standards of
review as well as the ramifications of the govern- ment's failure to
assert procedural default in the district  court. See Perkins, 161
F.3d at 71-74. We will not do so  again here. Suffice it to say that,
as was the case in Perkins,  we need not resolve the standard of
review issue because we  conclude that Johnson's conviction must be
upheld even if we  employ the standard most favorable to him--harmless
error.  See id.; see also Joseph, 169 F.3d at 13 n.7 (finding it 
unnecessary to determine standard of review because convic- tion
survived harmless error review); United States v. Toms,  136 F.3d 176,
180 n.6 (D.C. Cir. 1998) (same).


Error is harmless if it appears "beyond a reasonable doubt  that the
error complained of did not contribute to the verdict  obtained."
Chapman v. California, 386 U.S. 18, 24 (1967).4 




__________

n 4 Chapman sets the standard for determining, on direct appeal, 
whether constitutional error was harmless. Kotteakos v. United  States
sets the standard for measuring nonconstitutional harmless 


Where there has been an error in instructions, we have held  such error
to be harmless if the jury necessarily found facts  that would have
satisfied a proper instruction. In United  States v. Winstead, for
example, we found harmless the  failure to give any instruction at all
on the element of  materiality in a false statements count, because
the jury  returned a guilty verdict on an overlapping mail fraud count
 for which it had been instructed on the need to find materiali- ty.
74 F.3d 1313, 1320-21 (D.C. Cir. 1996). In United States  v. Kennedy,
a section 924(c)(1) case, we considered an errone- ous instruction
which, like the one at issue here, "conflated  the terms 'use' and
'carry' " and "defined both [too] broadly."  133 F.3d at 58. Because
the defendant in that case was also  convicted of assault for pointing
and firing his gun at police  officers, we found that the jury had
necessarily "concluded  that appellant carried a gun" while committing
an offense  covered by the statute. Id.; cf. United States v. Smart,
98  F.3d 1379, 1393 (D.C. Cir. 1996) (finding error harmless  where,
although court improperly defined "using or carrying"  as including
constructive possession, jury necessarily found  "carrying" within
meaning of s 924(c)(1) because it also con- victed defendant of
"carrying a pistol without a license").  And we have repeatedly found
harmless error in section  924(c)(1) cases where, although the
district court erroneously  instructed as to "using," it properly
instructed as to "carry- ing," and the circumstances indicated that
the jury necessari- ly found that carrying had occurred. See Perkins,




__________

n error. 328 U.S. 750, 776 (1946) (holding that nonconstitutional 
error is harmless if it did not have "substantial and injurious effect
 or influence in determining the jury's verdict"). In Brecht v. 
Abrahamson, the Supreme Court held that the "less onerous" (from  the
point of view of the government) standard of Kotteakos, rather  than
that of Chapman, is the appropriate standard for determining 
constitutional harmless error on collateral review. 507 U.S. 619,  623
(1993); see id. at 637-38. Although we may have discretion to  do
otherwise, we once again give defendant the benefit of the more 
favorable standard because the government argued only the Chap- man


at 74-75; Toms, 136 F.3d at 181; United States v. Washing- ton, 106
F.3d 983, 1013 (D.C. Cir. 1997).


Recently, in Neder v. United States, the Supreme Court  found harmless
error where the trial judge instructed the  jury that it "need not
consider" the materiality of false  statements in a tax fraud case,
despite the fact that in an  intervening case the Court had held
materiality to constitute  an essential element. 119 S. Ct. 1827,
1831-32 (1999). The  Court made this finding in light of other
circumstances and  evidence5--notwithstanding its conclusion that the
omission of  a materiality instruction had "preclude[d] the jury from
mak- ing a finding on the actual element of the offense," id. at 1834,
 and that the jury could not fairly be said to have "necessarily" 
found materiality, id. at 1837 n.1. Indeed, the Court held  that error
can be harmless even if "other facts necessarily  found by the jury"
are not the "functional equivalent" of the  omitted or misdescribed
element--even under a broad defini- tion of "functional equivalent."


We need not press Neder to its limits to decide the case at  bar,
because here the jury necessarily found that Johnson  both used and
carried the .380 semiautomatic pistol. As in  Kennedy, although the
using or carrying instruction was  erroneous, the jury separately
convicted Johnson for assault- ing a police officer with the same
weapon. See Indictment,  Count 4; Judgment (Aug. 2, 1991). The only
possible basis  for that conviction is that the jury found Johnson to
have  pointed the gun at Officer Flynn--an act that constitutes both 
"using" and "carrying." See Muscarello, 524 U.S. at 131  (holding that
"carry" includes "carrying of weapons directly 




__________

n 5 The government had introduced evidence that Neder failed to  report
over $5 million in income. That, the Court said, "incontro- vertibly
establishes that Neder's false statements were material to a 
determination of his income-tax liability. The evidence supporting 
materiality was so overwhelming, in fact, that Neder did not argue  to
the jury--and does not argue here--that his false statements of 
income could be found immaterial." Neder, 119 S. Ct. at 1837.  Because
it was "clear beyond a reasonable doubt that a rational  jury would
have found the defendant guilty absent the error," the  Court found
the error to be harmless. Id. at 1838.


on the person"); Bailey, 516 U.S. at 148 (holding that "using" 
includes "brandishing"); Kennedy, 133 F.3d at 58; cf. Toms,  136 F.3d
at 181; Smart, 98 F.3d at 1392-94.


In his reply brief, defendant argues that even if his convic- tion on
the assault charge means that the jury necessarily  found him to have
used the semiautomatic, it does not mean  that it necessarily found
him to have used the gun "during  and in relation to" a drug
trafficking crime. This argument,  made for the first time in the last
paragraph of Johnson's  reply brief, comes too late to be considered.
See, e.g., Grant  v. United States Air Force, 197 F.3d 539, 542 n.6
(D.C. Cir.  1999). But even if the argument were not too late, it
would  certainly be too little. Johnson was convicted of using or 
carrying the gun during and in relation to the "drug traffick- ing
crime" charged in the indictment--possessing with intent  to
distribute the crack cocaine found in his clothing.6 The  only way in
which the semiautomatic could have not been  used or carried in
relation to those drugs is if they were not  in his clothing at the
time he pointed the weapon at the  officer, and if they somehow
traveled down the air shaft and  onto the bed separately from the
defendant and his gun. Cf.  Smith v. United States, 508 U.S. 223, 238
(1993) ("The phrase  'in relation to' is expansive....").


We decide whether error was harmless based on the evi- dence at trial,
and there was no evidence presented that  would support such an
implausible scenario. See Perkins,  161 F.3d at 75. Nor did defendant
make such a claim. His  only defense was that he was innocently asleep
in bed at the  relevant time. The jury plainly rejected that story
when it  convicted him on all charges, which it did, no doubt, because




__________

n 6 Count 2 of the indictment charged Johnson with using or  carrying a
firearm during and in relation to the drug trafficking  crime charged
in Count 1. Count 1 charged Johnson with possess- ing with intent to
distribute five grams or more of cocaine base  (crack). As there was
substantially less than five grams of cocaine  in the bag found at the
top of the shaft, see Tr. at 123, 314, and  substantially more in his
clothing, see id. at 22, the jury necessarily  found the drugs in
Johnson's clothing to be part of the total.


the bed in which he was "asleep" was the wrong one: it  belonged not to
him but to the child who lived in the  apartment below.


Nor does defendant suggest an exculpatory scenario in his  appellate
briefs. Although his reply brief raises the "in  relation to" issue,
it suggests no circumstance in which the  jury could have found that
he used or carried the weapon  without also finding that he did so
during and in relation to a  drug trafficking offense. We have said
before that we will  not rest a finding of harm merely on "any
hypothetical the  defendant can conjure up." Id. The scenario offered
by  defense counsel must be plausible in light of the evidence at 
trial, not merely theoretically possible. See id. (citing Smart,  98
F.3d at 1393-94 & n.22). Where, as here, the defense does  not even
suggest an exculpatory scenario--plausible or other- wise--we surely
will not invent one ourselves.


III


We conclude that the evidence at Johnson's trial was  sufficient to
sustain a conviction for violating section 924(c)(1),  and that the
district court's erroneous jury instruction was  harmless. We
therefore affirm the denial of defendant's  motion to vacate his