                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                             No. 95-20170


                      UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,


                                  VERSUS


            WALTER GARCIA, VICTOR HUGO ALEGRIA, CARLOS
                 CAMACHO AND AGUSTIN VIVAS-GARCIA

                                                 Defendants-Appellants.




           Appeals from the United States District Court
                 for the Southern District of Texas




                             June 12, 1996
Before POLITZ, Chief Judge, REYNALDO G. GARZA, and JONES, Circuit
Judges.
REYNALDO G. GARZA, Circuit Judge:
      Appellants were convicted for participating in a conspiracy to
possess 166.9 kilograms of cocaine with the intent to distribute
it.    Appellant Carlos Camacho was also convicted of being an
illegal alien in possession of a firearm and ammunition, and for
using a   firearm   during   a   drug   transaction.      Appellants   have
appealed from their convictions on several grounds.           Having read
the briefs, reviewed the record and considered the arguments of
counsel, we AFFIRM all of the appellants' convictions and sentences
with the exception of Carlos Camacho's conviction for using a
firearm during a drug transaction.         We REVERSE Carlos Camacho's
conviction for using a firearm during a drug transaction, and
VACATE the sentence imposed upon him for that conviction.
I.   FACTS

     Walter Garcia ("Garcia"), Victor Alegria ("Alegria"), Carlos

Camacho   ("Camacho")      and     Agustin     Vivas-Garcia      ("Vivas")       were

convicted    of     conspiracy     to   possess      cocaine    with    intent    to

distribute it, as well as aiding and abetting the possession of

cocaine with the intent to distribute it.                      Camacho was also

convicted of the unlawful use of a firearm during the commission of

a drug offense, unlawful possession of a firearm by an illegal

alien and unlawful possession of ammunition by an illegal alien.

The defendants appeal from those convictions.

     The police began surveillance of Garcia and Vivas when they

observed the two men at a payphone while they were conducting

surveillance on another suspected drug dealer on May 25, 1994.

During    the      next   month,    law       enforcement      agents    conducted

surveillance on the two men.            The agents determined that neither

man was regularly employed, and that Garcia lived at a residence at

7318 Northleaf (the "Northleaf residence").              Their conclusion that

Garcia lived there was later bolstered when they discovered that

the electricity for the residence was in Garcia's name.

     On     June    29,   1994,    while       the   agents     were    conducting

surveillance, Garcia arrived at the Northleaf residence in a

Chevrolet Cavalier at 9:00 a.m.           He was followed by a gray pick-up

truck occupied by two white males.              The truck backed up onto the

driveway and stayed for ten minutes.


                                          2
        At 10:15 a.m., Garcia left the Northleaf residence, picked up

Vivas at the Coppertree apartments, and drove to a Popeye's fried

chicken restaurant.      Garcia and Vivas exited the vehicle and

entered Popeye's. A short while later, Antonio Perez ("Perez") and

Alegria arrived at Popeye's in a grey Honda Accord.      They parked

the Accord next to the Cavalier, and entered the restaurant.    A few

minutes later, all four men exited the restaurant.       Garcia then

left Popeye's in the Accord, and the other three men left in the

Cavalier.

        Garcia drove the Accord to the Northleaf residence.    During

the drive, he made a telephone call to the Northleaf residence on

his cellular phone.     When he arrived at the Northleaf residence,

Garcia pulled the Accord into the garage.    While the Accord was in

the garage, two agents saw Camacho standing in the doorway, looking

up and down the street.1       Garcia left in the Accord within ten

minutes of his arrival.     The Accord was riding lower when he left

than it had been when he arrived, which suggests that Garcia put

something in the trunk while the Accord was in the garage.

        Meanwhile, the Cavalier drove around in a manner that was

believed to be a "heat run."    That is, the police believed that the

Cavalier was attempting to conduct countersurveillance to determine

whether the police were conducting surveillance.      At 12:45 p.m.,

the Cavalier arrived at a Jack-in-the-Box restaurant.      All three

    1
     Camacho argues that the evidence is insufficient to show that
he was looking out the door, because one of the three agents who
testified did not see him looking out the door. However, the jury
was free to believe the two agents who testified that they saw him
looking out the door rather than the one agent who did not.

                                   3
occupants of the Cavalier entered the restaurant.                Five minutes

later, Garcia arrived at the Jack-in-the-Box in the Honda.             Garcia

then entered the Jack-in-the-Box.          A few minutes later, Vivas and

Garcia departed in the Cavalier, while Alegria and Perez departed

in the Honda.

      The police stopped both vehicles a short while later.                 A

police officer searched the trunk of the Honda, where he found 98.6

kilograms of cocaine.        When the police discovered the cocaine,

Alegria tried to eat a piece of paper containing several addresses

and phone numbers, including the phone number of the Northleaf

residence.   All four men were arrested.

      The police then continued their investigation at the Northleaf

residence.       Camacho allowed the police to search the residence.

During their search, the police found an additional 68.3 kilograms

of cocaine in the utility room, as well as a scale, baking soda,

tape and surgical masks.      The latter items were apparently used in

the packaging of cocaine.         The police testified that a chemical

smell, which they identified with cocaine, was detectable in the

house.     The    police   also   seized   a   .357   revolver   loaded   with

hollowpoint bullets that Camacho was carrying in his waistband.

      At trial, Garcia, Alegria, Camacho and Vivas were convicted,

and Perez was acquitted.      The four convicted defendants now appeal

from their convictions.



II.   DISCUSSION

      A.   THERE IS SUFFICIENT EVIDENCE TO AFFIRM THE DEFENDANTS'
           CONVICTIONS FOR CONSPIRACY AND AIDING ABETTING POSSESSION

                                      4
           OF COCAINE WITH THE INTENT TO DISTRIBUTE IT

     All four defendants claim that there is insufficient evidence

to support their convictions for conspiracy and for aiding and

abetting possession of cocaine with the intent to distribute it.

Each defendant claims to have been "merely present" during the drug

transaction, and that there is no evidence linking any defendant to

the cocaine.     After reviewing the evidence, we find that the

evidence   is   sufficient   to   support   all   of   the   defendants'

convictions for conspiracy and aiding and abetting.

           1.   STANDARD OF REVIEW

     This Court recently set out the applicable standard of review

to be used to determine whether there is sufficient evidence to

support a conviction.   In United States v. Dean, 59 F.3d 1479, 1484

(5th Cir. 1995), this Court stated:

     In our review of the sufficiency of the evidence
     supporting the jury's verdict, we determine whether,
     viewing the evidence and the inferences that may be drawn
     from it in the light most favorable to the verdict, a
     rational jury could have found the essential elements of
     the offenses beyond a reasonable doubt. We recognize
     that the jury was free to choose among all reasonable
     constructions of the evidence, and we accept all
     credibility choices that tend to support the jury's
     verdict.    We view the evidence, both direct and
     circumstantial, as well as all reasonable inferences from
     that evidence, in the light most favorable to the
     verdict. Moreover, we determine only whether the jury
     made a rational decision, not whether its verdict was
     correct on the issue of guilt or innocence. Further, the
     evidence need not exclude every reasonable hypothesis of
     innocence. However, we must reverse a conviction if the
     evidence construed in favor of the verdict gives equal or
     nearly equal circumstantial support to a theory of guilt
     and a theory of innocence of the crime charged.

     To support a conviction for conspiracy to possess illegal

narcotics with the intent to distribute them, the evidence must

                                   5
support a finding that a conspiracy existed, that the accused knew

of the conspiracy, and that he voluntarily joined it.                      United

States v. Limones, 8 F.3d 1004, 1009 (5th Cir. 1993), cert. denied,

114 S. Ct. 1543 (1994).        To support a conviction for possession of

cocaine with the intent to distribute it, the evidence must support

a finding that the defendant knowingly possessed cocaine with the

intent to distribute it. United States v. Tolliver, 780 F.2d 1177,

1183 (5th Cir. 1986).          To support a conviction for aiding and

abetting possession with the intent to distribute, the evidence

must support a finding that the accused aided and abetted both

possession and distribution.

           2.     DISCUSSION

      Each defendant claims to have been "merely present" during the

cocaine transaction, and that there is insufficient evidence to

link any of them to the cocaine.            We disagree.        Our review of the

record found ample evidence to affirm each defendant's conviction.

      Alegria claims that he was merely driving the Accord, which

was not his car, and that there was no evidence that he knew that

the   Accord's   trunk      contained   cocaine.         However,    Alegria    did

participate in the car swap, arriving at Popeye's in the Accord,

leaving   Popeye's     in    the   Cavalier,    and      then    reacquiring    the

Accord—which was loaded with cocaine—at Jack-in-the-Box.                 When he

reacquired the Accord, the trunk was riding lower than before,

which should have indicated to him that something was placed in the

trunk during the car swap.         Finally—and most incriminating—when he

was   stopped    by   the   police   he     tried   to    destroy    evidence    by


                                        6
attempting to eat a sheet of paper containing phone numbers and

beeper   numbers,   including   the   phone   number   of   the    Northleaf

residence.    This evidence is sufficient to support his conviction.

     Vivas claims that the evidence only supports a finding that he

was conducting countersurveillance activity, not a finding that he

participated in a conspiracy to possess cocaine with the intent to

distribute it.      He points out that this Court has held that

evidence     of   countersurveillance     activity,    without      evidence

supporting the further inference that a defendant knew that he or

she was conducting countersurveillance for a cocaine transaction,

is insufficient to support a conspiracy conviction.               See United

States v. Dean, 59 F.3d 1479, 1487 (5th Cir. 1995).         In this case,

however, the evidence showed more than just countersurveillance

activity.    For example, Vivas' fingerprints were found on packages

of cocaine found in both the Accord and at the Northleaf residence.

These fingerprints, combined with his participation in the car

swap, constitute sufficient evidence to affirm Vivas' conviction.

     Garcia also claims to have been merely present during the

cocaine transaction.      His claim, however, is rebutted by the

evidence presented at trial. There was testimony that Garcia lived

at the Northleaf residence, where police found cocaine and cocaine

paraphernalia, and that the Northleaf residence's electric bill was

in Garcia's name.     Further, Garcia called the Northleaf residence

from his cellular phone while driving there from Popeye's.                An

officer testified that the Accord rode lower after Garcia left the

Northleaf residence, supporting the inference that the car was


                                      7
loaded with cocaine while parked there.      The inference that Garcia

knew about the cocaine is also supported by the presence of a

chemical odor, which a government witness said came from the

cocaine,    at     the   Northleaf   residence.    Finally,   Garcia's

participation in the car swap—which, according to the testimony of

the government's expert witness, is a common drug trafficking

method used to minimize the risk of detection and to shield the

main location where the drugs are kept—supports the jury's finding

of guilt.        All told, there is ample evidence to support his

conviction.

     Camacho claims that he was merely present at the Northleaf

residence, and that there was no evidence that he knew about the

cocaine.    Several pieces of evidence, however, support the jury's

finding that Camacho participated in the conspiracy to possess the

cocaine with the intent to distribute it.         First, Camacho was

present at the Northleaf residence at the time of the cocaine

transaction.      The strong chemical odor also supports the inference

that he knew about the cocaine, because he would have noticed the

odor.   Garcia called the Northleaf residence on his cellular phone

while driving the Accord there, which supports the inference that

he was calling to inform Camacho that he was about come to the

residence to load the cocaine into the Accord. Further, two agents

observed Camacho looking out the door of the Northleaf residence

while the Accord was parked there.        This supports the inference

that he was looking out for law enforcement while Garcia was

loading cocaine into the car. Finally, Camacho was carrying a .357


                                     8
magnum when the police searched the Northleaf residence, which

supports the inference that he was guarding the cocaine. All told,

the evidence is sufficient to affirm Camacho's conviction.

     B.    THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING
           THE GOVERNMENT'S EXPERT TO OPINE THAT A LARGE COCAINE
           TRAFFICKING ORGANIZATION CONTROLLED THE SEIZED COCAINE

     The trial court did not abuse its discretion in allowing Agent

Bell, a government witness, to testify that the seized cocaine was

controlled by a large drug trafficking organization.    Agent Bell

testified as to how most large drug trafficking organizations

operate, and opined that a large cocaine trafficking organization

controlled the cocaine that was seized in the present case.    The

defendants contend that such testimony was inadmissible under

Federal Rule of Evidence 702, which requires expert testimony to be

helpful, and under Federal Rule of Evidence 403, which provides

that relevant evidence "may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice [or]

confusion of the issues. . . ."

     "The admissibility of expert testimony rests within the sound

discretion of the district court and will be reversed only upon a

clear showing of abuse of discretion."   United States v. Townsend,

31 F.3d 262, 270 (5th Cir. 1994)(citing United States v. Charroux,

3 F.3d 827, 833 (5th Cir. 1993)), cert. denied, 115 S. Ct. 723

(1995).   We have held that a narcotics agent may testify about the

significance of certain conduct or methods of operation unique to

the drug business so long as the testimony is helpful and its

relevance is not substantially outweighed by the possibility of


                                  9
unfair prejudice or confusion. See United States v. Washington, 44

F.3d 1271, 1283 (5th Cir.), cert. denied, 115 S. Ct. 2011 (1995).

Therefore, we will not disturb the trial court's ruling so long as

it did not abuse its discretion in finding that Agent Bell's

testimony was helpful, and that the testimony's relevance was not

substantially outweighed by the possibility of unfair prejudice or

confusion.

     The trial court did not abuse its discretion in finding Agent

Bell's   testimony   helpful.     The    defendants   claimed   that   his

testimony was not helpful because the jury could have drawn its own

conclusion as to whether a large drug trafficking organization

controlled the cocaine.     We disagree.    The average juror may not be

aware that the presence of 166.9 kilograms of cocaine is indicative

of a large drug trafficking organization, and may not be aware that

large drug trafficking organizations commonly use "car swaps,"

"stash houses" and conduct "heat runs."         Therefore, Agent Bell's

testimony to that effect was helpful.

     Further, the trial court did not abuse its discretion in

refusing     to   admit   the   testimony    under    Rule   403.      The

defendants—without citing any authority—claim that Agent Bell's

testimony impermissibly put an "expert's stamp of approval" on the

government's theory.      We disagree.   Agent Bell's testimony was not

unfairly prejudicial.      In fact, it was no more prejudicial than

expert testimony that we have approved in other cases.          See, e.g.

United States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994), cert.

denied, 115 S. Ct. 768 (1995)(affirming the admission of expert


                                   10
testimony to the effect that a defendant's possession of scales

during the purchase of thirty grams of cocaine was consistent with

drug trafficking rather than personal consumption).                        We therefore

hold that the trial court did not abuse its discretion in admitting

the testimony.

      C.      THE TRIAL      COURT    DID    NOT    ERR    IN    DETERMINING     VIVAS'
              SENTENCE

      We hold that the trial court did not err in determining Vivas'

sentence.     Vivas claims that the trial court erred calculating his

base offense level based upon the total amount of cocaine seized

from the Northleaf residence and the Accord.                     He argues that the

trial court did not make the findings necessary to hold him

accountable      for   the    entire    166.9      kilograms         of   cocaine.      We

disagree.     Our review of the record indicates that the trial court

made the necessary findings, and that its findings were supported

by the evidence in this case.

      We review the factual findings made by the district court at

the sentencing hearing for clear error.               United States v. Dean, 59

F.3d 1479, 1494 (5th Cir. 1995).                 We review the district court's

application of the sentencing guidelines de novo.                         Id.

      Under    U.S.S.G.      §   1B1.3,      Vivas    is    responsible         for   all

quantities of cocaine with which he was directly involved and "all

reasonably foreseeable quantities of [cocaine] that were within the

scope of the criminal activity that he jointly undertook."                             In

order to hold a defendant accountable for quantities of cocaine

found in the possession of a third party, this Court requires that

the   district    court      find    that    the   amount       of   cocaine    be    both

                                            11
reasonably foreseeable to the defendant and within the scope of the

jointly undertaken criminal activity for which the defendant is

being sentenced.     Dean, 59 F.3d at 1495.      The district court can

implicitly make such findings by adopting the presentence report.

United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.), cert.

denied, 115 S. Ct. 180 (1994).

     The district court made the necessary findings by adopting the

presentence report.      The presentence report indicated that the

entire 166.9 kilograms of cocaine was reasonably foreseeable to

Vivas, and that Garcia, Camacho and Vivas "aided one another in

housing and transporting the total of cocaine, 166.9 kilograms,

confiscated from both the residence and vehicle."2               Thus, the

district court implicitly made the findings necessary to base

Vivas' offense level on the entire amount of cocaine when it

adopted the presentence report.

     We further hold that the district court did not err in

adopting the findings contained in the presentence report.             There

was sufficient evidence to hold Vivas accountable for the cocaine

seized   in   the   Accord   because    he   participated   in   the    drug

transaction involving the Accord.        Further, there was sufficient

evidence to hold Vivas accountable for the cocaine found at the

Northleaf residence because Vivas' fingerprints were found on the


     2
      Vivas claims that the presentence report contained no such
findings.   However, an addendum to the presentence report did
contain such findings. Because the addendum to the presentence
report was made on February 27, 1995, the findings contained in the
addendum were adopted by the district court when it adopted the
presentence report on March 6, 1995.

                                   12
packages containing the cocaine.         Thus, the district court did not

err in determining Vivas' sentence.

     Vivas also contends that the trial court should not have been

able to rely on the findings made in the presentence report because

he disputed the findings.       He points out that we have stated that

"[w]hen   a   defendant   objects    to    particular    findings   in    the

presentence    report,    the   sentencing     court    must   resolve    the

specifically disputed issues of fact if it intends to use those

holdings as a basis for its sentence."        United States v. Smith, 13

F.3d 860, 867 (5th Cir. 1994).       Because he objected to the trial

court's consideration of the entire 166.9 kilograms of cocaine, he

argues, the trial court could not rely on the presentence report

without resolving the issue of the amount attributable to him. The

trial court, however, resolved the disputed factual issue by

specifically overruling Vivas' objection at the sentencing hearing.

Thus, we hold that the trial court properly relied upon the

findings contained in the presentence report.

     D.    THE DISTRICT COURT DID NOT ERR IN COMMENTING                  UPON
           CAMACHO'S NATIONALITY DURING VOIR DIRE

     The district court did not err in mentioning that Camacho may

be a Columbian during voir dire.          Camacho was charged with, and

convicted of, being an illegal alien in possession of a firearm and

ammunition.   He complains that the trial court became an advocate

for the government by advising the jury during voir dire that he

was Columbian.   He points out that the government had the burden of

proving that he was an alien, and contends that the district court

shifted that burden to Camacho through its voir dire questioning.

                                    13
       Under Federal Rule of Criminal Procedure 24, a trial judge

"has broad discretion in the conduct of voir dire. . . ."                  United

States v. Black, 685 F.2d 132, 134 (5th Cir. 1982)(per curiam).                   We

will only overturn a conviction based upon the scope and conduct of

voir   dire   if   we   find   both   that    the   trial   court    abused      its

discretion and that the rights of the accused have been prejudiced

by   that abuse.        In   this   case,    we   find   neither    an   abuse    of

discretion nor any prejudice to Camacho's rights.

       Camacho complains about the following statement made by the

district court during voir dire:

       For these defendants, Spanish is their first language,
       they are, all of them, I believe, from Columbia. . . .
       let me ask, first of all, if there is anybody here who
       feels that they may be biased or influenced somehow
       against these speakers because they are not native
       English speakers and because they are from Columbia, who
       feels that they might have some leanings against these
       folks or some bias against these folks because they are
       not English speakers and have some problem with the whole
       concept or notion of us using interpreters in this
       courtroom to assist these gentlemen in understanding
       these proceedings against them.

Camacho's attorney objected, stating

       I think it is the government's burden to prove where
       people are from, particularly since my client is accused
       of being an illegal alien. I am particularly concerned
       with that.

The trial court then instructed the jury as follows:

       All right, ladies and gentlemen, I indicated to you a few
       moments ago that I believe all of the defendants in this
       case were from Columbia and I may be mistaken on that.
       There is some indication that one or more of them may not
       be from Columbia, but may be from other Latin American
       countries.

       The government responds by arguing that the trial court simply

tried to discover if any venirepersons were prejudiced against

                                       14
Colombians or other Spanish speakers.        The government also points

out that the trial judge never instructed the jury to find that

Camacho was an alien, and that the trial court gave a cautionary

instruction, telling the jury, "Nothing that the Court may say or

do during the course of this trial or even during the voir dire

examination today is intended to indicate nor should be taken by

you as indicating what your verdict should be in this case."           The

trial court also instructed the jury as follows:          "I don't want you

to assume from anything that I have said or done during trial that

I have any opinion whatsoever concerning any of the issues of this

case."

     We hold that the district court neither abused its discretion

nor prejudiced Camacho's rights in its conduct of voir dire.            We

and our sister courts have encouraged—sometimes even required—trial

courts to inquire about possible racial or ethnic prejudice during

voir dire.    See,    generally,   2    Charles   Allen   Wright,   Federal

Practice and Procedure § 282 (1982).       In this case, the trial court

was simply inquiring about possible prejudice, not acting as an

advocate for the government or instructing the jury to find that

Camacho was an illegal alien.          It was within the trial court's

discretion to make such an inquiry.          Further, we find that the

curative instructions remedied any prejudice caused by the trial

court's statements.

     E.   THERE IS INSUFFICIENT EVIDENCE TO SUPPORT CAMACHO'S
          CONVICTION FOR THE USE OF A FIREARM DURING A DRUG OFFENSE

     There is insufficient evidence to support Camacho's conviction

for the use of a firearm during a drug offense.             Camacho claims

                                   15
that the evidence is insufficient to convict him for the use of a

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

The indictment alleged that Camacho "did knowingly use a firearm .

. . during and in relation to a drug trafficking crime. . . ."                  A

recent Supreme Court case held that mere possession does not

constitute "use" under 18 U.S.C. § 924(c).                   Bailey v. United

States, 116 S. Ct. 501 (1995).          Rather, to convict a defendant for

the "use" of a firearm during a drug transaction, the government

must show an active employment of the firearm by the defendant.

Id. at 508.       Examples of "use" include "brandishing, displaying,

bartering, striking with, and most obviously, firing or attempting

to fire, a firearm."          Id.    However, neither mere possession nor

concealing    a    gun   to   be    ready    for   an   imminent    confrontation

constitute "use."        Id. at 508-09.

     The evidence is insufficient to convict Camacho for the "use"

of a firearm.        The evidence merely showed that he carried a

concealed firearm, not that he used it in any way.                   Further, the

only inference that can be drawn from that evidence is that he

carried it while he was serving as a lookout while Garcia was

loading the cocaine into the Accord.               Under Bailey, this evidence

merely shows possession, it does not show use.                     Therefore, the

evidence is insufficient to affirm Camacho's conviction for "use"

of a firearm during a drug offense.

     The dissent claims that Camacho used the pistol by carrying it

while he guarded the cocaine, and by reaching for it when Garcia

inquired about the bulge in his waistband.                   We are forced to


                                        16
disagree.

     First, merely carrying the pistol is not the same as using it.

Although    the   dissent   correctly      points   out   Section    924(c)(1)

criminalizes both the use of a firearm and carrying a firearm

during a drug transaction, we cannot agree that the words "use" and

"carry" are synonymous.           It is a "cardinal canon or statutory

construction . . . that [in interpreting a statute,] the words of

a statute will be given their plain meaning. . . ."                 Texas Food

Industry Assoc. v. United States Dept. of Agriculture, 95-50060,

slip. op. p. 3165, 3168 (5th Cir. April 30, 1996).                  The plain

meaning of the word "use" is "the act or practice of using

something," while the plain meaning of the word carry is "to hold,

wear or have upon one's person."           WEBSTER'S THIRD NEW INT'L DICTIONARY

343, 2523 (1981).    In this case, although Camacho's concealing the

pistol in his waistband constituted holding or wearing it upon his

person (i.e. carrying it); it did not constitute "the act or

practice of using it."      Id.    Thus, we conclude that merely carrying

a pistol concealed in his waistband did not constitute the use of

the pistol.

     Second, we find that the evidence is insufficient to show that

Camacho used the pistol by reaching for it when confronted by law

officers.   The only evidence from which the government argues that

an inference that Camacho reached for the pistol may be drawn is

the testimony of Officer Garcia.           Officer Garcia testified that,

when he asked Camacho about the bulge in his waistband,

     [Camacho] didn't respond . . . He kind of looked down and
     went for -- the shirt was over the bulge that was in his

                                      17
      waistband.   I went for the bulge real quick and just
      grabbed on to it. At that time, I knew it was the butt
      of the pistol.    At that time, I took it out of his
      waistband.

During cross-examination, however, Garcia admitted that he did not

know why Camacho was reaching toward his waist, that Camacho did

not   try   to    interfere    with     Garcia's   taking   the   gun    from   his

waistband,       and   that   Camacho    allowed   Garcia   to    take   the    gun.

Garcia's testimony is insufficient to show that Camacho used the

gun by reaching for it.           Had there been testimony that Camacho

brandished the gun by pulling it out or threatening Garcia with it,

then there would be evidence of use.               But in this case, the fact

that Camacho moved his hand toward his waistband for reasons

unknown to Garcia before allowing Garcia to remove the pistol is

insufficient evidence for a jury to find beyond a reasonable doubt

that Camacho used the pistol.

      The fact that Camacho could have been indicted under the same

statute for carrying a firearm is irrelevant. Camacho was indicted

for using a firearm, not for carrying one.                   Because there is

insufficient evidence to show that he used a firearm during a drug

transaction, we must reverse his 18 U.S.C. § 924(c) conviction.



III. CONCLUSION

      We AFFIRM all of the appellants' convictions and sentences

with the exception of Carlos Camacho's conviction for using a

firearm during a drug transaction.             We REVERSE Carlos' Camacho's

conviction for using a firearm during a drug transaction, and

VACATE the sentence imposed upon him for that conviction.

                                          18
No. 95-20170 -- USA v. Garcia




EDITH H. JONES, dissenting in part:




                                19
            Although I am pleased to concur in the majority of the

panel’s thorough opinion upholding these convictions and sentences,

I must dissent on one point.      I disagree with the panel majority

that appellant Camacho’s conviction for illegal “use” of a firearm

during the drug offense must be reversed for insufficient evidence.

As the government acknowledges an instructional error that requires

reversal and remand, I believe that was the appropriate disposition

of this count of conviction.

            The    majority   likens    Camacho’s     conduct   to   “mere

possession” of a firearm, conduct which the Supreme Court found

different from the active type of “use” contemplated by 18 U.S.C.

§ 924(c)(1).      United States v. Bailey, ____ U.S. ____, 116 S.Ct.

501 (1995).       With due respect, I believe Bailey was addressing

factually distinct cases in which defendants had been charged with

“use” of firearms that were hidden under mattresses, located in

locked trunks of cars, and were otherwise stored and out of reach.

See, e.g., United States v. Andrade, 95-2039, 5th Cir. slip op. p.

3587 (May 14, 1996). Such possessions of firearms, the Court said,

were not “active use” as was contemplated in section 924(c).

            Unlike the situation in Bailey, Camacho was personally

armed with his pistol and was on duty guarding the large-scale

cocaine conspirators’ stash house when the officers arrived.           As

Camacho opened the door for them, one officer saw the bulge in his

waistband underneath his shirt, suspected Camacho was armed, and

reached to remove the pistol even as Camacho was himself reaching

for   it.      Whether   these   acts   constituted    “brandishing”   or


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“displaying” a firearm presented, in my view, a jury question.   If

the jury believed that Camacho was armed with a pistol immediately

available to him as he guarded the stash house, he was actively

using it within the meaning of section 924(c)(1).

           The majority acknowledges that Camacho could have been

indicted for “carrying” the firearm under section 924(c)(1), and I

agree that would have been possible.      Bailey does not, however,

specify that carrying and using firearms are mutually exclusive

comes within the same statutory provision; rather, it held that use

could not be interpreted so broadly as to subsume completely the

crime of illegal carrying.    No such problem arises on the facts of

this case.

             I would hold that because Camacho was personally armed

during the course of his conduct in furthering the drug offense, he

made “use” of the firearm in his waistband.          I respectfully

dissent.




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