                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                           DECEMBER 6, 2005
                               No. 05-11836                THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                         ________________________

                       D. C. Docket No. 03-00088-CR-1-1

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                   versus

GERALD SMITH,
a.k.a. Jason Thomas,

                                                      Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                        _________________________

                              (December 6, 2005)


Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:
        Early one morning in October of 2002, Gerald Smith was one of four

passengers riding in a car driven by Zonquil Bailey. Police officers stopped the car

for a traffic violation. During a search of the car and its occupants, the officers

found marijuana on Bailey’s person and twenty-six small plastic bags of marijuana

and $3,305 in cash on Smith’s person. The officers also found a gun but the

location of the find is in dispute. The officers arrested Smith and Bailey.

        On February 12, 2003, Smith was indicted on three counts stemming from

these events: (1) unlawful possession of a firearm by a convicted felon in violation

of 18 U.S.C. § 922(g); (2) possession with intent to distribute marijuana in

violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(D); and (3) possession of a

firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c). He

pleaded not guilty to all counts, and the case was tried to a jury in November of

2004.

        During the trial, Smith called Bailey as a witness. Bailey testified that

before the arrests, he met with Smith, drove him to a pool hall, and observed him

shoot pool and win a substantial sum of money gambling. He testified that he and

Smith bought bags of marijuana from a man at the pool hall. He testified that later,

during the traffic stop, the officers asked for the occupants’ identification and then

asked them to step out of the car. Finally, Bailey testified that, after he, Smith, and



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the other passengers were handcuffed and sitting on the side of the road, an officer

found a gun in the car.

      During direct examination, the Government objected and approached the

district court with concerns about Bailey’s Fifth Amendment privilege against self-

incrimination and his right to counsel. The district court informed Bailey of his

self-incrimination privilege and his right to appointed counsel. Bailey responded

that the State had dismissed the case stemming from his arrest on October 20,

2002. The Government noted that Bailey had two unrelated drug cases pending in

state court. The district court informed Bailey that his testimony in Smith’s federal

case could be used against him in his own cases in state court. Bailey then

requested a lawyer.

      During a court recess, the district court considered the nature of Bailey’s

testimony and referred to persuasive authority from other circuits for direction on

how it should be used. The court stated that while it could strike the entire

testimony, it should consider parsing the testimony and just striking the questions

and answers on the subject of marijuana. The Government moved to strike the

entire testimony because striking specific items could be confusing and misleading

to the jury and would limit the Government’s cross examination and impeachment

of Bailey.



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      After a court recess and meeting in chambers, Bailey’s newly appointed

counsel advised the district court that Bailey was invoking his self-incrimination

privilege “as to anything.” The Government again moved to strike Bailey’s entire

testimony, and Smith countered that the privilege did not apply to the entire

testimony. Smith argued that Bailey did not have a privilege as to his testimony

regarding the following subjects: his meeting with Smith, the drive to the pool

hall, his observation of Smith shooting pool and gambling, and his observation of

the officer finding a gun.

      The district court stated that the crime as to which Bailey was asserting his

Fifth Amendment privilege was the marijuana possession. The court stated that

any testimony from Bailey would put him in the presence of Smith, who was found

to possess marijuana, thereby suggesting that Bailey also was in possession of the

drug. Before the jury entered, Smith stated that Bailey would have testified about

Smith’s gambling and his purchase and use of marijuana at the pool hall. Smith

objected to the court’s complete exclusion of his testimony based on Fifth and

Sixth Amendment grounds.

      After the jury returned, the district court struck all of Bailey’s testimony and

the defense rested. The jury found Smith guilty of all three counts. On March 9,

2005, the district court sentenced Smith to sixty months imprisonment on each of



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the first two counts, to be served concurrently, and sixty months on the third count,

to be served following the sentences imposed on the first two counts.

      On appeal, Smith first contends that the district court erred in allowing

Bailey to invoke his privilege against self-incrimination and in striking his entire

testimony. We review de novo a district court’s ruling on an invocation of the self-

incrimination privilege. United States v. Hernandez, 141 F.3d 1042, 1049 (11th

Cir. 1998). Nonetheless, a district court enjoys wide discretion in resolving a self-

incrimination claim. United States v. Melchor Moreno, 536 F.2d 1042, 1050 (5th

Cir. 1976). If we find that the district court has erred and that the defendant has

properly preserved an objection, the error is subject to the harmless error standard

of Fed. R. Crim. P. 52(a). United States v. Candelario, 240 F.3d 1300, 1307 (11th

Cir. 2001). This rule places the burden on the Government to demonstrate that the

error does not affect the defendant’s substantial rights. Id. at 1307 n.9.

      The Fifth Amendment’s self-incrimination clause provides that no person

“shall be compelled in any criminal case to be a witness against himself.” U.S.

Const. amend. V. This prohibition permits a person to refuse to answer official

questions at any proceeding where his answers might incriminate him in future

criminal proceedings. Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136,

1141 (1984).



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      In deciding whether or how much testimony to exclude under a Fifth

Amendment privilege claim, the district court examines: (1) whether the witness’s

fear of self-incrimination is well-founded; (2) the parameters of the witness’s Fifth

Amendment rights in context of the testimony sought; and (3) the materiality and

relevancy of the potentially excluded testimony. See Melchor Moreno, 536 F.2d

1049–50. The privilege applies only in “instances where the witness has

reasonable cause to apprehend danger” of criminal liability. Hoffman v. United

States, 341 U.S. 479, 486, 71 S. Ct. 814, 818 (1951).

      A district court must make a particularized inquiry, evaluating whether the

privilege applies with respect to each specific area that the questioning party

wishes to explore. Melchor Moreno, 536 F.2d at 1049. The witness may be totally

excused from testifying only if the court finds that he could legitimately refuse to

answer essentially all relevant questions. United States v. Goodwin, 625 F.2d 693,

701 (5th Cir. 1980). Where parts of the testimony would not be incriminating, the

witness may be called to give that testimony and should be allowed to be silent

“[o]nly as to genuinely threatening questions.” Melchor Moreno, 536 F.2d at

1049. Any conflict between a defendant’s Sixth Amendment cross-examination

right and a witness’s Fifth Amendment self-incrimination privilege should be

resolved in favor of the witness’s right to silence. United States v. Cuthel, 903



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F.2d 1381, 1384 (11th Cir. 1990). It is not reversible error to exclude testimony

that is cumulative. See Hernandez, 141 F.3d at 1050.

      Because Bailey had reasonable cause to apprehend danger of criminal

liability based on the state charges pending against him at the time of trial and the

possibility of future state and federal charges stemming from his testimony, the

district court did not err in allowing him to invoke his Fifth Amendment privilege

against self-incrimination. The district court followed proper procedure, holding

inquiry in chambers as to Bailey’s claim and determining that it could not parse out

the non-privileged testimony. Because any non-privileged testimony that was

excluded was cumulative, the district court did not err in striking Bailey’s entire

testimony.

      Smith next argues that the district court erred in denying his motion for

judgment of acquittal on the third count because the evidence was insufficient to

convict Smith of using and carrying a firearm during and in relation to a drug-

trafficking crime. We review de novo whether the record contains sufficient

evidence to support a jury’s verdict. United States v. Byrd, 403 F.3d 1278, 1288

(11th Cir. 2005), cert. denied, 126 S. Ct. 243 (2005). The evidence is viewed in

the light most favorable to the Government, with all reasonable inferences and

credibility choices drawn in the Government’s favor. Id. A conviction must be



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upheld unless the jury could not have found the defendant guilty under any

reasonable construction of the evidence. Id.

       A violation of 18 U.S.C. § 924(c) occurs when a person who “during and in

relation to any . . . drug trafficking crime . . . uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c). The term

“carrying” has been construed to include carrying a weapon on the person or in a

car. See United States v. Timmons, 283 F.3d 1246, 1250 (11th Cir. 2002).

       Smith does not contest the conviction for the drug-trafficking offense, so we

must only consider the role of the gun and Smith’s relation to it. The Government

presented testimony from an officer that she saw a loaded gun in Smith’s right

hand and that she found bags of marijuana and cash in his right pocket. Smith

countered that the gun was found in the car only after all the occupants were

handcuffed and seated on the side of the road. Because the evidence showed that

the gun was either found on Smith’s person or in the car in which Smith was a

passenger, sufficient evidence exists for the jury to find that Smith was carrying a

firearm during a drug-trafficking crime. Furthermore, because guns are inherent in

the drug-trafficking business, it was reasonable for the jury to conclude that the

gun found during the search was being carried or used in relation to a drug-

trafficking crime. See United States v. Thomas, 242 F.3d 1028, 1032 n.5 (11th



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Cir. 2001). Accordingly, the jury found Smith guilty of violating section 924(c)

under a reasonable construction of the evidence.

      AFFIRMED.




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