                                   ____________

                                    No. 95-3701
                                   ____________


United States of America,               *
                                        *
                    Appellee,           *
                                        * Appeal from the United States
     v.                                 * District Court for the
                                        * Western District of Missouri
John R. Caldwell,                       *
                                        *
                    Appellant.          *

                                   ____________

                      Submitted:    March 13, 1996

                          Filed:     October 7, 1996
                                   ____________

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.
                              ____________


McMILLIAN, Circuit Judge.


     John R. Caldwell appeals from a final judgment entered in the
District Court1 for the Western District of Missouri upon a jury
verdict finding him guilty of distribution of methamphetamine in
violation of 21 U.S.C. § 841(a)(1) (count I), possession with
intent to distribute methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) (count II), using and carrying a firearm during and in
relation to a drug trafficking offense (possession with intent to
distribute   charged     in     count   II)   in   violation   of   18   U.S.C.
§ 924(c)(1) (count III), and unlawful firearms possession in
violation of 18 U.S.C. § 922(g)(1) (count IV).           The district court
sentenced him to a total of 180 months imprisonment, 8 years
supervised release and special assessments in the amount of



     1
     The Honorable Russell G. Clark, United States District Judge
for the Western District of Missouri.
$200.00.    For reversal appellant argues the district court erred in
(1)   denying    his    motion    to   suppress   physical    evidence    seized
following a traffic stop, (2) denying his motion to sever the
unlawful firearms possession count (count IV), and (3) instructing
the jury on the 18 U.S.C. § 924(c) count (count III).                    For the
reasons discussed below, we affirm the convictions and sentences
except with respect to counts II and III, the sentence on count II
is vacated, the conviction on count III is reversed, and the case
is    remanded   to     the   district    court    for    further    proceedings
consistent with this opinion.


       In   early April 1994 a state highway patrol trooper was
investigating drug trafficking in Monett, Missouri, and supervised
an informant’s purchase of methamphetamine from appellant at a
local motel.         The trooper noted the make and license plate of
appellant’s car.        On September 21, 1994, Chief of Police Frank
Preston of Pierce City, Missouri, received radio information that
a    gray   Camaro     with   a   specific     Missouri    license    plate   was
approaching Pierce City, had been speeding and had almost run
another car off the road.         Preston checked the license plate number
and learned that the car was registered to appellant.                At about the
same time, Lieutenant Bill Wegrzyn, a police officer from Monett,
Missouri, told Preston that appellant probably did not have a
driver’s license because several months earlier the Monett police
department had processed information that appellant’s license had
been suspended and that appellant had been arrested two or three
weeks earlier with a concealed weapon.                   Preston also received
information from another law enforcement officer that appellant
might be involved in a drug transaction.


       Acting on this information, Preston positioned his patrol car
where he could observe traffic entering Pierce City.                  He saw the
Camaro and checked its speed with his radar unit; the Camaro was

                                         -2-
travelling slightly faster than the posted speed limit.   Preston
followed the Camaro, activated his lights, and stopped the Camaro.




                               -3-
Preston approached the car and asked appellant for his driver’s
license.        Appellant responded that the Monett police had his
driver’s license because it had been suspended.                          At this point
Preston       asked    appellant    to     get        out   of   the     car   and    for
identification information.               Appellant got out of the car and
removed a fanny pack and placed it on the front seat.                             Preston
started to open the car door, but appellant objected.                     Preston then
contacted the Monett police department by radio.                    The Monett police
department reported a possible suspended driver’s license for
appellant.      Preston arrested appellant for driving on a suspended
driver’s license and requested his permission to search the car.
Appellant consented to the search.                Preston and Wegrzyn, who had
arrived on the scene to assist Preston, searched the passenger
compartment,          including     the      hatchback           area,     and       found
methamphetamine, five firearms (one of which was loaded), and drug
paraphernalia.


        Appellant filed a motion to suppress physical evidence.                       The
district court held a suppression hearing.                       Preston and Wegrzyn
testified for the government.            Preston testified at the suppression
hearing that he was not going to issue a speeding ticket, but
instead wanted to check the status of appellant's driver's license
and to talk to appellant about the reported speeding and careless
and   imprudent       driving.       The     district       court      credited      their
testimony.       The district court found that Preston had probable
cause    to    stop    the   car   because       he    reasonably      suspected     that
appellant was driving with a suspended driver’s license.                              The
district court also found that the warrantless search of the car
was an inventory search or, in the alternative, that appellant had
consented to the search.           The district court denied the motion to
suppress physical evidence (the district court also granted the
motion to suppress certain inculpatory statements; that part of the


                                           -4-
district court’s   suppression   ruling   is   not   an   issue   in   this
appeal).




                                 -5-
        Immediately before trial began, defense counsel made an oral
motion to sever the unlawful firearms possession count (count IV).
Defense counsel argued that joinder of that count would allow
otherwise inadmissible evidence of other crimes, specifically his
prior     felony   convictions,   including     one     for   possession       of
methamphetamine for sale, to be introduced at trial.              The district
court denied the motion to sever.           At trial the government used
California court records to establish appellant’s prior felony
convictions.       Portions of the court records read to the jury
included information      about   the   type   of   offense,     the    date    of
conviction, and the length of the sentence.              Appellant did not
testify.     Defense counsel objected to instruction No. 16, which
defined the phrase “used a firearm” as “having a firearm available
to aid in the commission of the [drug trafficking] crime.”                     The
instruction did not separately define “carry.”            Defendant counsel
objected to the instruction on the ground that it improperly
shifted the burden of proof to the defense.              The district court
denied the objection.     The jury found appellant guilty on all four
counts.    The district court sentenced appellant to a total of 180
months    imprisonment,   8   years   supervised      release,    and   special
assessments in the amount of $200.00.          This appeal followed.


MOTION TO SUPPRESS EVIDENCE


        Appellant first argues the district court erred in denying his
motion to suppress certain physical evidence seized from his car.
He argues the traffic stop was invalid because the police lacked
probable cause to stop his car and to arrest him.             He also argues
the traffic violations were merely pretextual because the real
reason the police wanted to stop his car was that they suspected it
contained illegal drugs.      He argues the warrantless search of his
car cannot stand if the traffic stop was unlawful.               We disagree.


                                      -6-
     “[A]s a general matter determinations of reasonable suspicion
and probable cause should be reviewed de novo on appeal.”   Ornelas




                               -7-
v. United States, 116 S. Ct. 1657, 1663 (1996).                 However, “a
reviewing   court   should   take   care   both   to   review   findings   of
historical fact only for clear error and to give due weight to
inferences drawn from those facts by resident judges and local law
enforcement officers.”       Id.; e.g., United States v. Johnigan, 90
F.3d 1332, 1336 (8th Cir. 1996).


     The district court correctly concluded that there was probable
cause to suspect that a traffic violation had occurred.             Preston
had a reasonable suspicion, based upon objective facts obtained
from other law enforcement sources, that appellant was probably
driving with a suspended driver’s license.             In addition, Preston
had observed appellant speeding.      “[A]ny traffic violation, even a
minor one, gives an officer probable cause to stop the violator.
If the officer has probable cause to stop the violator, the stop is
objectively reasonable and any ulterior motivation on the officer’s
part is irrelevant.”   United States v. Bell, 86 F.3d 820, 822 (8th
Cir. 1996) (citation omitted); petition for cert. filed, No. 96-
6046 (U.S. Sept. 17, 1996); e.g., United States v. Maza, 93 F.3d
1390, 1396 (8th Cir. 1996).      The Supreme Court expressly rejected
the pretext argument in Whren v. United States, 116 S. Ct. 1769,
1774-75 (1996).     “[T]he fact that the officer does not have the
state of mind hypothecated by the reasons which provide the legal
justification for the officer’s action does not invalidate the
action taken as long as the circumstances, viewed objectively,
justify that action. . . .      Subjective intentions play no role in
ordinary, probable-cause Fourth Amendment analysis.”            Id. at 1774
(citation omitted).      In other words, “so long as police have
probable cause to believe that a traffic violation has occurred,
the stop is valid even if the police would have ignored the traffic
violation but for their suspicion that greater crimes are afoot.”
United States v. Thomas, 93 F.3d 479, 485 (8th Cir.).


                                    -8-
     We also hold that the search of the car was lawful.   “[W]hen
a [police officer] has made a lawful custodial arrest of the




                               -9-
occupant of an automobile, [the officer] may, as a contemporaneous
incident of that arrest, search the passenger compartment of that
automobile.”        New    York    v.    Belton,     453   U.S.    454,    460   (1981)
(footnotes omitted).            “[T]he police may also examine the contents
of any containers [whether opened or closed] found within the
passenger compartment.”             Id. (citations and footnote omitted).
Here, Preston lawfully arrested appellant because he had probable
cause    to    believe    that     appellant's       driver’s     license    had   been
suspended.      Following appellant’s arrest, the police could lawfully
search    the    passenger       compartment        of   the    car,   including     the
hatchback portion of the car.            See United States v. Doward, 41 F.3d
789, 793-94 (1st Cir. 1994) (hatchback of two-door car), cert.
denied, 115 S. Ct. 1716 (1995); United States v. Cleveland, 966
F.2d    1459    (8th     Cir.    1992)   (per    curiam)        (table)   (hatchback;
defendant did not argue that hatchback was trunk as opposed to
passenger compartment of car) (text at 1992 WL 139360).                              The
firearms,       ammunition,      some    of   the    methamphetamine,        and   drug
paraphernalia were found in the hatchback portion of the car.


SEVERANCE OF UNLAWFUL FIREARMS POSSESSION COUNT


        Appellant next argues the district court abused its discretion
in denying his motion to sever the unlawful firearms possession
count (count IV).             He argues that the joinder of the unlawful
firearms possession count allowed the jury to hear otherwise
inadmissible evidence about his prior convictions.


        Ordinarily,      we     review   severance       decisions     for   abuse   of
discretion.       E.g., United States v. Felici, 54 F.3d 504, 506 (8th
Cir.), cert. denied, 116 S. Ct. 251 (1995).                    However, because this
motion was not timely filed within 20 days of the omnibus pretrial
motions order, we may reverse only for plain error.                       E.g., United
States v. Olano, 507 U.S. 725, 732-34 (1993).

                                          -10-
-11-
     We find no error was committed by the district court.                     First,
the more     prejudicial     of   the   two     prior      convictions,      that   for
possession of methamphetamine for sale, would have been admissible
in a trial on the drug trafficking counts alone as other crimes
evidence under Fed. R. Evid. 404(b) to prove intent and knowledge.
See United States v. Shoffner, 71 F.3d 1429, 1431-32 (8th Cir.
1995).     The prior conviction for receiving stolen property would
not have been admissible under Fed. R. Evid. 404(b); however, any
prejudice was limited by the method of proof used.                   As noted above,
the government read to the jury portions of court records that
included information        about     the     type    of   offense,    the   date    of
                                                            2
conviction, and the length of the sentence.                      In addition, there
was little     possibility     that     the    jury    was      confused   about    the
evidence    related    to    each   count      in     light     of   the   cautionary
instruction    given    by    the     district        court.         The   cautionary
instruction limited the jury’s consideration of the two prior
felony convictions to the unlawful firearms possession count and of
the conviction for possession of methamphetamine for sale to intent
and knowledge with respect to the drug trafficking counts only.


BAILEY ISSUE


     Appellant next argues the district court erred in instructing
the jury on the 18 U.S.C. § 924(c) count (count III).                        At trial
defense counsel objected to instruction No. 16, which defined the
phrase “used a firearm” as “having a firearm available to aid in
the commission of the [drug trafficking] crime,” on the ground that


    2
      The government could have reduced any possible prejudice even
further by simply stipulating that appellant had been convicted of
a second state felony without introducing any information about the
nature of the prior offense or the sentence. See United States v.
Felici, 54 F.3d 504, 506 (8th Cir.), cert. denied, 116 S. Ct. 251
(1995).

                                        -12-
it improperly shifted the burden of proof to the defense.   However,
on appeal, appellant argues, correctly, the instruction as given is




                               -13-
inconsistent with Bailey v. United States, 116 S. Ct. 501, 505-08
(1995).    Because this change in the grounds of objection in effect
constitutes no objection, we may reverse only for plain error.        For
the reasons discussed below, we find plain error and accordingly
reverse the conviction on count III and remand the case to the
district court    for   further   proceedings.   We   also   vacate   the
sentence on count II and remand that count to the district court
for possible resentencing.


     The indictment charged that appellant knowingly used and
carried a firearm during and in relation to a drug trafficking
offense.    However, as noted above, instruction No. 16 referred to
the crime of “using a firearm” and defined        the phrase “used a
firearm” as “having a firearm available to aid in the commission of
the crime.”    The instruction did not separately define the term
“carry.”   As noted in United States v. Webster, 84 F.3d 1056, 1066
n.8 (8th Cir. 1996), “it appears that this Court’s traditional
definition of the term ‘use’ was so expansive that it effectively
swallowed the word ‘carry.’ . . . [T]he instruction defined ‘use’
and ‘carry’ collectively, and the charge did not refer to the words
as having separate meanings.”     This instruction allowed the jury to
find that appellant criminally used or carried the firearm in
question due to the “mere presence and ready availability of [the]
firearm” and was a correct statement of the law in this circuit
(and other circuits) at the time of appellant’s trial, that is,
pre-Bailey.     Id. at 1066 (footnote omitted) (analyzing similar
Bailey error as plain error), citing United States v. Mejia, 8 F.3d
3, 5 (8th Cir. 1993).     Subsequently, the Supreme Court issued its
opinion in Bailey v. United States, holding that the word “use” in
18 U.S.C. § 924(c)(1) “requires evidence sufficient 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,” 116 S. Ct. at 505, such as brandishing, displaying,

                                  -14-
bartering, striking with, as well as firing or attempting to fire
a firearm, but not the mere storage of a firearm near drugs or drug




                               -15-
proceeds.      Id. at 508; see, e.g., United States v. Rehkop, No.
95-3446, 1996 WL 526239, at *4 (8th Cir. Sept. 18, 1996).


     The government concedes that instruction No. 16 is erroneous
in light of Bailey.           Brief for Appellee at 19.                However, the
government argues that the error was not “plain,” that is, clear or
obvious under current law, because “current law,” as used in plain
error analysis, means the law applicable at the time of trial, not
on appeal.       We disagree.        This court, following several other
circuits, has held that “in deciding whether an error is clear
under current law, the proper focus is the law applicable on appeal
rather than at trial.”           United States v. Webster, 84 F.3d at 1067
(citing cases).         We find the instruction as given is clearly
erroneous under current law.


     We also find the instruction as given affected appellant’s
substantial rights.        The instruction as given was erroneous with
regard   to    an    essential     element    of    the    crime,     that    is,    the
definition of “use.”        Id., citing United States v. Ryan, 41 F.3d
361, 370 (8th Cir. 1994) (en banc) (Arnold, C.J., concurring in the
judgment in part and dissenting in part), cert. denied, 115 S. Ct.
1793 (1995).         The jury could have convicted appellant solely
because it found that he “used” the firearms merely by concealing
them in the car and having them readily available for use, which
would have been squarely inconsistent with Bailey and would have
unavoidably      prejudiced      appellant.         Moreover,       the    government
concedes      that   the   evidence     is    insufficient      to     support       the
conviction     because     the    record     does   not     contain       evidence    of
appellant’s active employment of the firearm.                 Brief for Appellee
at 21.   Under these circumstances, appellant has established that
the error affected the outcome of the district court proceedings
and the government cannot show otherwise.                 In other words, we find
the error is not harmless.          We also believe that failure to correct

                                       -16-
the error could result in a miscarriage of justice and would
seriously affect the fairness, integrity or public reputation of




                              -17-
judicial proceedings.          Accordingly, we reverse the conviction on
count III.


       We next consider whether to remand for a new trial.                         The
government argues that the evidence is sufficient to a conviction
for    “carrying”      a   firearm    during     and   in   relation     to    a   drug
trafficking crime and that the case should be remanded for new
trial on that count because the reversal is based on trial error
and not insufficiency of the evidence.                 We agree.   The indictment
alleged appellant violated 18 U.S.C. § 924(c)(1) by “using” and
“carrying” firearms.         As noted above, the jury was not instructed
on the “carrying” prong of 18 U.S.C. § 924(c)(1).                  This court has
recognized that “Bailey left the ‘carry’ prong of section 924(c)(1)
intact, as well as the pre-Bailey cases analyzing the ‘carry’
prong.”     United States v. Willis, 89 F.3d 1371, 1378 (8th Cir.
1996) (“carry” includes transporting firearms in the passenger
compartment of a car loaded with drugs), petition for cert. filed,
No. 95-5793 (U.S. Sept. 3, 1996); see, e.g., United States v.
White,    81    F.3d   80,    83-84    (8th     Cir.   1996)   (“carry”       includes
physically carrying firearm while possessing crack with intent to
distribute); United States v. Freisinger, 937 F.2d 383, 387 (8th
Cir.    1991)    (pre-Bailey     case    holding       transporting    firearm      in
passenger       compartment    of     vehicle    satisfies     “carry”    prong     of
§ 924(c)).      Moreover, we note that the Supreme Court, faced with a
similar situation in Bailey, remanded the case to the court of
appeals with directions to consider whether the “carry” prong of 18
U.S.C. § 924(c)(1) provided an alternative basis for upholding the
convictions.       116 S. Ct. at 509 (indictment charged both “using”
and “carrying”); see also United States v. Miller, 84 F.3d 1244,
1257-61 (10th Cir. 1996).


       After reviewing the record evidence, we think a properly
instructed jury could have returned a guilty verdict under the

                                        -18-
“carry” prong of 18 U.S.C. § 924(c)(1).   “[T]he ordinary meaning of
the word ‘carry’ includes transporting firearms in the passenger




                               -19-
compartment of a car loaded with drugs.”             United States v. Willis,
89 F.3d at 1378 (citing cases from other circuits), citing United
States v. Freisinger, 937 F.2d at 387 (transporting firearm in
passenger   compartment       of   vehicle      loaded   with   drugs   satisfies
“carry” prong); accord United States v. Miller, 84 F.3d at 1257-61
(“carry” prong satisfied by evidence that defendant possessed and
transported firearm in van in close proximity to drugs); see also
Bailey v. United States, 116 S. Ct. at 509 (“carry” prong brings
some offenders who would not satisfy “use” prong within reach of
§ 924(c); firearm can be carried without being used, e.g., when an
offender keeps a gun hidden in his clothing throughout a drug
transaction); United States v. White, 81 F.3d at 83 (holding
government must prove defendant bore firearm on or about his person
during   and   in     relation     to   drug    trafficking     offense,   citing
dictionary definitions of “carry”).             Here, the evidence showed that
appellant had been driving the Camaro and that the police found a
loaded firearm and 45 grams of methamphetamine in a bag in the
hatchback portion of the Camaro, an area regarded (at least in case
law) as generally within reach and available for use by the
occupants of the car.         See United States v. Doward, 41 F.3d at
793-94 (hatchback), cert. denied, 115 S. Ct. 1716 (1995); United
States v. Cleveland, 966 F.2d 1459 (hatchback; defendant did not
argue that hatchback was trunk as opposed to passenger compartment
of car) (text at 1992 WL 139360).              This evidence is sufficient to
prove that appellant carried a firearm during and in relation to a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).
Accordingly, we remand for a new trial on that count.


      The government requests that, if we reverse the conviction on
count III, we vacate the sentence as to count II, the possession of
methamphetamine with intent to distribute count.                 The government
argues that if, on remand, count III is dismissed or if appellant
is   acquitted   on    that   count,     a     two-level   enhancement     may   be

                                        -20-
appropriate under U.S.S.G. § 2D1.1(b)(1), which provides that
possession of a dangerous weapon, including a firearm, by the




                              -21-
defendant is a specific offense characteristic.     The district court
did not consider a § 2D1.1(b)(1) enhancement because such an
enhancement would have been double-counting in light of appellant’s
conviction on the 18 U.S.C. § 924(c)(1) count.       U.S.S.G. § 2K2.4,
comment. n. 2 & background.         However, the prohibition against
double-counting would not apply in the absence of a 18 U.S.C.
§ 924(c)(1) conviction.      For that reason, we vacate the sentence as
to count II and remand the case to the district court to consider
whether a sentence enhancement under U.S.S.G. § 2D1.1(b)(1) is
warranted.    See United States v. Rehkop, 1996 WL 526239, at *5;
United States v. Thomas, 93 F.3d at 488.


     Accordingly, the convictions and sentences are affirmed except
with respect to counts II and III, the sentence on count II is
vacated, the conviction on count III is reversed, and the case is
remanded to the district court for further proceedings consistent
with this opinion.


     A true copy.

             Attest:

                       CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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