                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               DEC 15 1997
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                              No. 97-2027
 v.                                                   (D.C. No. CR-94-415-SC)
                                                       (District of New Mexico)
 DONALD ALBERT MASSIE,

          Defendant-Appellant.


                                ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, MURPHY, Circuit Judge, and McWILLIAMS,
Senior Circuit Judge.



      This case has its genesis in the stop of an automobile at an United States Border

Patrol checkpoint located on Interstate Highway 10 approximately 20 miles west of Las

Cruces, New Mexico and the ensuing search of that automobile and the seizure therefrom

of drugs and a firearm. Donald Albert Massie was the driver of the automobile. We are

not here concerned with his passenger.




      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       In a four-count indictment, Massie was charged in the first count with possession

with an intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(D). In a second count he was charged with possession with an

intent to distribute more than one kilogram of methamphetamine in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A). In Counts 3 and 4 Massie was charged with using and

carrying a firearm during and in relation to drug trafficking crimes in violation of 18

U.S.C. § 924(c)(1).

       Prior to trial, Massie filed a motion to suppress the use at trial of the drugs and

firearm taken from his vehicle by the border agents. That motion was granted. On

appeal, we reversed. United States v. Massie, 65 F.3d 843 (10th Cir. 1995).

       After remand, Massie pleaded guilty to Counts 1 and 2 of the indictment but

elected to proceed to trial on Counts 3 and 4 of the indictment, which, as indicated,

charged him with using and carrying a firearm during and in relation to drug trafficking

crimes. A jury convicted Massie on Counts 3 and 4. He was thereafter sentenced to 60

months imprisonment on Count 1; 120 months imprisonment on Count 2 to be served

concurrently with the sentence imposed on Count 1; and 60 months imprisonment on

Counts 3 and 4 to be served concurrently with each other but consecutively to the

sentence imposed on Counts 1 and 2, which made a total term of imprisonment of 180

months.

       18 U.S.C. § 924(c)(1) provides in pertinent part, as follows:


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                      (c)(1) Whoever, during and in relation to any crime of
              violence or drug trafficking crime (including a crime of
              violence or drug trafficking crime which provides for an
              enhanced punishment if committed by the use of a deadly or
              dangerous weapon or device) for which he may be prosecuted
              in a court of the United States, 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, . . . .

       The background facts out of which this case arises are fully set forth in United

States v. Massie, supra, and will not be repeated here in detail. It is sufficient for our

purposes to state that Massie, driving a rental car, pulled into a border patrol checkpoint

on Interstate 10 approximately 20 miles west of Las Cruces, New Mexico. After brief

questioning by the agents, Massie drove to a secondary inspection area. An ensuing

search of the trunk of the vehicle disclosed marijuana and methamphetamine. A

subsequent search of the interior of the vehicle revealed a loaded firearm, a folding knife,

a set of handcuffs, a scanner, a cellular phone and a small amount of methamphetamine.

       Prior to trial, Massie filed a motion to dismiss Counts 3 and 4 based on a then

recent Supreme Court case, Bailey v. United States, ____ U.S. ____, 116 S.Ct. 501, 133

L.Ed. 2d 472 (1995). The motion was not heard or ruled on prior to trial. Rather, an

“informal discussion” was conducted on the record between court and counsel

immediately prior to jury selection. At that time, the government advised defense counsel

and the district court that, as a result of Bailey, it was not contending that Massie was




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“using” the firearm during and in connection with drug trafficking crimes, only that he

was “carrying” the firearm in connection with such offenses.

          The jury, as indicated, convicted Massie on Counts 3 and 4, and he now appeals

such conviction and the sentences imposed thereon. On appeal, Massie’s only argument

is that the evidence is legally insufficient to sustain his conviction for “carrying” a firearm

during and in connection with a drug trafficking offense. We disagree and therefore

affirm.

          A brief further comment concerning just how the firearm was found by the border

patrol agents puts the matter in better focus. While the agent was questioning Massie

about car insurance and registration papers, the agent noticed that Massie, on several

occasions, put his hand into a “black bag” that was located on the floor immediately

behind the driver’s seat, ostensibly searching for those papers. After the marijuana and

methamphetamine were recovered from the trunk, a search of the interior of the vehicle

revealed the loaded .380 Mauser in the “black bag” located on the floor immediately

behind the driver’s seat.

          In the indictment Massie was charged in Counts 3 and 4 with using and carrying a

loaded firearm during and in relation to drug trafficking crimes as provided for in 18

U.S.C. § 924(c)(1). Shortly prior to the trial of this case, the Supreme Court in Bailey v.

United States, supra, narrowed the definition of the word “used,” as it appears in 18

U.S.C. § 924(c)(1), and held that such means “active employment” of a firearm which


                                             -4-
“includes brandishing, displaying, bartering, striking with, and most obviously, firing or

attempting to fire, a firearm.” Bailey, 116 S.Ct. at 508. Accordingly, at the

commencement of the trial the government advised the court and opposing counsel that it

desired to strike the word “used” from the indictment and that it proposed to go to trial on

the alternative charge that Massie “carried” a firearm during and in relation to drug

trafficking crimes as provided for in 18 U.S.C. § 924(c)(1). Massie’s counsel did not

object to such, and the word “used” was stricken from the indictment. The jury was not

instructed on “using” a firearm, but was instructed on the elements of “carrying” a

firearm, to which there was no objection. As indicated, on appeal the only issue raised is

whether there is sufficient evidence to support the jury’s verdict of guilty on Counts 3 and

4 of the indictment. In this regard, counsel concedes that there may be “some” evidence

that Massie was carrying a firearm during and in relation to drug trafficking crimes, but

argues that there was not “sufficient” evidence thereof to support the jury’s verdict. We

disagree.

       Bailey was concerned with that part of 18 U.S.C. § 924(c)(1) which makes

unlawful the use of a firearm during and in relation to a drug trafficking crime. In this

regard, the Supreme Court did narrow the meaning of the word “used” and, although

there was reference thereto, the Supreme Court in Bailey did not definitively construe the

word “carried.” Indeed the case was remanded to the circuit court to consider that

particular aspect of the case.


                                            -5-
       Our study of the matter leads us to conclude that the evidence does support the

jury’s verdict that Massie was guilty of carrying a firearm during and in relation to drug

trafficking crimes. When asked to produce car insurance and registration papers, Massie

reached behind the driver’s seat and “fumbled” in a “black bag” located on the floor of

the vehicle immediately behind the driver’s seat. He found no such papers. Thereafter,

marijuana and methamphetamine were found in the trunk of the vehicle. And an ensuing

search of the vehicle disclosed a loaded .380 Mauser in the same “black bag” located on

the floorboard immediately behind the driver’s seat. Such indicates, to us, that Massie

was indeed “carrying” a firearm during and in relation to drug trafficking crimes.

Perhaps Massie was not “carrying” the firearm on his person, but certainly he was

“carrying” the firearm in the automobile he was driving, and the firearm was in near

proximity to him and readily accessible.

       We believe our conclusion is in accord with United States v. Miller, 84 F.3d 1244

(10th Cir. 1996), decided after Bailey. In Miller, we discussed the meaning of “carried”

vis-a-vis “used,” under 18 U.S.C. § 924(c)(1). Miller, 84 F.3d at 1256-57. In so doing,

we held that to establish a “carrying,” the government is required to prove that the

defendant transported a firearm in a vehicle and that he had at least constructive

possession of the firearm while doing so, during and in relation to a drug trafficking

crime. Such was particularly true, we said, where the firearm was in “effortless reach” of




                                            -6-
the defendant.1 The firearm here involved was most certainly in “effortless reach” of

Massie.

       In United States v. Holland, 116 F.3d 1353 (10th Cir. 1997), we overruled Miller,

at least so far as we, in Miller, concluded that the giving of an erroneous “use” instruction

required reversal of the conviction even where the jury was also instructed without

objection on the “carrying” aspect of 18 U.S.C. § 924(c)(1). However, insofar as a

definition of “carrying” was concerned, we agreed, in essence, with the definition given

that word in Miller. In this regard, in Holland, 116 F.3d at 1356, we indicated approval

of the following instruction:

              [A] firearm may be carried simply by being carried in a
              vehicle as part of and in relation to a drug trafficking offense,
              so long as the defendant actually and knowingly possessed or
              intentionally had dominion and control over the weapon, by
              himself or together with another in the vehicle, while
              committing a drug trafficking offense.

       Specifically, in connection with the aforementioned instruction, we, in Holland,

spoke as follows:

              Mr. Holland has never asserted that this definition of “carry”
              under section 924(c)(1) is erroneous. The instruction is
              clearly correct under our pre-Bailey cases, which held “that
              the government is required to prove only that the defendant
              transported a firearm in a vehicle and that he had actual or
              constructive possession of the firearm while doing so.”
              United States v. Miller, 84 F.3d 1244, 1259 (10th Cir.) (citing


       1
        We recognize that in Miller we reversed and remanded the case for a new trial on
the “carrying” aspect of 18 U.S.C. § 924(c)(1).

                                            -7-
             cases), cert. denied, --- U.S. ---, 117 S.Ct. 443, 136 L.Ed.2d
             339 (1996). The instruction is also proper after Bailey in
             view of our conclusion that “nothing in Bailey . . . conflicts
             with our pre-Bailey ‘vehicular carrying’ line of cases.” Id. at
             1260.

Holland, 116 F.3d at 1357 n. 2.

      Judgment affirmed.


                                                 ENTERED FOR THE COURT

                                                 Robert H. McWilliams
                                                 Senior Circuit Judge




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