PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-5387

ADRIAN MAURICE HUDGINS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(CR-94-133-R)

Argued: April 10, 1997

Decided: August 5, 1997

Before RUSSELL and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Phillips wrote the opin-
ion, in which Judge Russell and Judge Luttig joined.

_________________________________________________________________

COUNSEL

ARGUED: Wayne D. Inge, Roanoke, Virginia, for Appellant.
Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee. ON BRIEF: Robert P.
Crouch, Jr., United States Attorney, Thomas J. Bondurant, Assistant
United States Attorney, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee.

_________________________________________________________________
OPINION

PHILLIPS, Senior Circuit Judge:

Adrian Maurice Hudgins appeals his convictions on two counts of
using or carrying a firearm during and in relation to a drug trafficking
offense in violation of 18 U.S.C. § 924(c). Hudgins claims that the
evidence was insufficient to sustain the convictions and, alternatively,
that the district court's erroneous "use" instruction requires vacatur of
the convictions and remand for a new trial.1 We find no error requir-
ing reversal and affirm the convictions on both counts.

I.

On November 21, 1994, Lorenzo Banks, an informant, working in
cooperation with the Roanoke County Police, was stationed in a motel
room that was equipped with listening devices. Detective Warner, a
police officer, was stationed in a parking lot adjoining the motel prop-
erty. Warner observed Hudgins enter the motel room. Banks testified
that on that occasion Hudgins sold him 0.9 grams of cocaine and that
during the transaction he observed "the butt of a black nine millimeter
pistol" in the waistband of Hudgins' pants.

On November 23, 1994, a second controlled buy took place at the
same motel as did the first. On that date, Warner was in the motel
room with Banks when Hudgins entered and made a sale of 0.8 grams
of cocaine to Banks. Warner testified that on that occasion he saw on
Hudgins "a black clip which appeared to be a clip of an enhanced hol-
ster and a bulge underneath his--he was wearing like a pullover fitted
sweater." He elaborated that the object he saw was an "Uncle Mike's
in-pants holster. It is where the holster goes inside the pants and the
clip goes on the outside of the belt and usually it is black in color and
_________________________________________________________________
1 Hudgins' further contention that because the sentencing guidelines
treat defendants convicted of drug offenses involving crack more harshly
than those convicted of offenses involving powder cocaine they deny
him equal protection under the Fourteenth Amendment is foreclosed by
United States v. Thomas, 900 F.2d 37, 39-40 (4th Cir. 1990) (rejecting
same constitutional argument).

                     2
that keeps the gun from sliding down into your pants so you can get
access to it."

Hudgins was indicted on one count of conspiracy to distribute
crack cocaine in violation of 21 U.S.C. § 846, two counts of distribu-
tion of crack cocaine in violation of 21 U.S.C.§ 841(a)(1), two
counts, Four (the November 21 transaction) and Five (the Novem-
ber 23 transaction) of using or carrying a firearm in relation to a drug
offense in violation of 18 U.S.C. § 924(c), and three counts of posses-
sion of a firearm after having been convicted of a felony in violation
of 18 U.S.C. § 922(g)(1).

In submitting the "use or carry" counts (Four and Five) to the jury,
the district court instructed that:

           The Defendant Hudgins is also charged in Counts Four
          and Five with knowingly using or carrying a firearm during
          and in relation to a drug trafficking crime on or about
          November 21, and November 23, 1994, respectively.

           For you to find the Defendant guilty of this crime you
          must be convinced that the Government has proved the fol-
          lowing elements beyond a reasonable doubt: 1, that the
          Defendant knowingly used or carried a firearm, and, 2, that
          the Defendant knowingly used or carried a firearm during
          and in relation to the Defendant's commission of a drug traf-
          ficking crime.

           If the Government fails to prove each of these essential
          elements beyond a reasonable doubt you must find the
          Defendant not guilty as to any Count in which they fail to
          meet that proof.

           The Government is not required to prove that the Defen-
          dant actually fired the weapon or brandished it at someone
          in order to prove use as that term is used in these instruc-
          tions. A firearm can be used in relation to a crime involving
          drug trafficking if a person possessing it intended to use the
          firearm if a contingency arose, for example, protect them-

                    3
          selves and make an escape possible, however, you must be
          convinced beyond a reasonable doubt that the firearm
          played a role in or facilitated in the commission of the drug
          offense. (Supplemental J.A. at 1-2)

Following his conviction on all counts, Hudgins took this appeal.
In his original brief, he challenged only his conviction on Count Four
which charged his "use or carry" of a firearm in relation to the
November 21 transaction. Following the filing of original briefs, the
Supreme Court issued its decision in Bailey v. United States, 116
S. Ct. 501 (1995), and we requested the parties to file supplemental
briefs addressing that decision's impact on this appeal. In his supple-
mental brief, Hudgins now contends that (1) his conviction on both
"use and carry" counts, Four and Five, must be reversed for insuffi-
ciency of evidence to convict under Bailey's interpretation of the
meaning of "use" in § 924(c) and, alternatively, that his conviction on
both § 924(c) counts must be vacated and a new trial ordered because
of erroneous jury instructions in light of Bailey.

We take these in turn.

II.

The standard for assessing the sufficiency of the evidence to con-
vict is whether, viewing it in the light most favorable to the Govern-
ment, "any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 319 (1979).

Hudgins contends that under this standard the evidence was insuffi-
cient to prove beyond a reasonable doubt that he either "carried" or
"used" a firearm on either the Count Four or Count Five occasions.
Under Bailey's now controlling definition of the "use" element, there
must be proof of some form of "active employment" of a firearm in
relation to the drug trafficking offense; mere possession without
more, will not suffice. See Bailey, 116 S. Ct. at 508. Here, Hudgins
points out, and the Government concedes, there was no evidence of
"active employment" as by "brandishing" or otherwise using a fire-
arm. Nor, says Hudgins, was there sufficient evidence that on either
occasion he even "carried" a firearm in the statutorily required sense.

                    4
Conceding that in dicta the Bailey Court indicated that a defendant
who "keeps a gun hidden in his clothing throughout a drug transac-
tion" would thereby "carry" it for § 924(c) purposes, id. at 507,
Hudgins argues that the proof was insufficient to support a finding
that he did even this.

As indicated, the Government concedes, as it must, that the evi-
dence was insufficient under Bailey to prove"use," on either occa-
sion. But, the Government contends, and we agree, that the evidence
clearly sufficed to prove "carrying" under Bailey's suggestion of hid-
den actual possession on one's person during a drug transaction. See
also United States v. Mitchell, 104 F.3d 649, 653 (4th Cir. 1997)
(holding, citing Bailey, that "actually possessing a firearm . . . on his
person--either in his hand, his clothing, or in a satchel he is holding
--during a drug transaction is perhaps the clearest example of a viola-
tion of the `carry' prong of § 924(c)(1)"). Though Warner's testimony
as to Hudgins carrying a firearm during the November 23 transaction
only identified a pistol holster on Hudgins' person as being exposed
to his actual view, it nevertheless sufficed, in conjunction with the
evidence of a connected bulge under the clothing, to support a finding
that the holster contained its intended object, a pistol. As to the
November 21 transaction during which, per Banks' flat testimony, he
saw a pistol butt in Hudgins' pants waistband, the evidence clearly
sufficed to support conviction under the "carry" prong of § 924(c).

Considering then only whether there was sufficient evidence to
support findings of guilt on both Counts Four and Five, we conclude
that there was--under the "carry" prong of§ 924(c).

That leaves the question--to which we now turn--whether con-
ceded error in the court's "use" instruction nevertheless requires
remand for a new trial.

III.

Hudgins contends that the erroneous "use" instruction requires
vacatur of his convictions on the two § 924(c) counts and a remand
for new trial on each. Specifically, he invokes the Supreme Court's
decisions in Yates v. United States, 354 U.S. 287 (1957), and Griffin
v. United States, 502 U.S. 46 (1991), which, he says, in combination

                     5
establish that where any one of multiple grounds for conviction sub-
mitted to a jury is "legally inadequate," a resulting general verdict of
guilty must be set aside if it is impossible to tell whether it may have
been based solely on the legally inadequate ground. That, he con-
tends, is the case here, for even if it be assumed that the "carry"
ground, as submitted, was both legally adequate and factually sup-
ported, it is impossible to tell whether the jury nevertheless convicted
solely on the legally inadequate and factually unsupported "use"
ground. We disagree--for several reasons.

Hudgins is right on the basic proposition that Yates and Griffin do,
in combination, affirm the longstanding federal rule (at odds with that
of the common law) that where multiple alternative grounds for con-
viction are submitted to a jury, a resulting general verdict of guilty
must be set aside if it is "impossible to tell" whether it may have been
based solely upon an unconstitutional or "legally inadequate" ground
among those submitted. See Griffin, 502 U.S. at 56 (announcing "con-
tinued adherence" to that rule as properly applied in Yates where one
of two grounds submitted in a conspiracy prosecution was time-
barred, hence "legally inadequate"). In confirming that rule's contin-
ued vitality, however, Griffin distinguished, and refused to apply it to
the situation where one or more of alternative grounds for conviction,
though neither unconstitutional nor "legally inadequate," was unsup-
ported by sufficient evidence. In that situation, Griffin held that if any
one of the other grounds submitted was supported by sufficient evi-
dence, the general verdict might stand without further inquiry into its
actual basis. Id. at 56-60 (relying on earlier holding to same effect in
Turner v. United States, 396 U.S. 398, 420 (1970)).

Hudgins' invocation of the Yates/Turner /Griffin rule might, there-
fore, turn initially upon whether the "deficiency" or "inadequacy" he
identifies in the district court's submission of the"use" ground was
"legal" or "factual" in the sense critical to Griffin's distinction. If he
were relying only upon the conceded insufficiency of the evidence to
support conviction on that ground, he would lose under Griffin
because of our earlier holding that there was sufficient evidence to
convict on the "carry" ground. But, as he points out, though he does
of course rely to some extent on the insufficiency of "use" evidence,
his invocation of the Yates "legal inadequacy" rule is based upon the
district court's erroneous jury instruction on that ground. And, he

                     6
says, a jury instruction which misinstructs on an essential element of
an offense submits a "legally inadequate" ground, which then invokes
Yates' rather than Griffin's rule respecting the validity of the resulting
verdict.

We need not decide whether such an erroneous jury instruction
does result in submission of a "legally inadequate" ground so as to
invoke Yates' rule.2 Even assuming that it does, Hudgins loses. For
integral to the rule's application is the requirement that "it is impossi-
ble to tell which ground the jury selected," Yates, 354 U.S. 298, 312
(1957), so that "for all we know," the verdict"may have been ren-
dered on that [illegal] ground alone. Williams v. North Carolina, 317
U.S. 287, 292 (1942) (applying rule where one of grounds submitted
was unconstitutional) (emphasis added). The necessary uncertainty is
not present here. It is clear from the record that the jury necessarily
found the elements constituting a "carry," whether or not it also found
"use" under the erroneous pre-Bailey instruction.

As suggested in Bailey, and specifically held by this court in
Mitchell, "carrying" under § 924(c) can be found from evidence that
a defendant (1) actually possessed (2) on his person, (3) a firearm,
(4) during and in relation to a drug transaction. Bailey, 116 S. Ct. at
507; Mitchell, 104 F.3d at 653. Here, as indicated, there was evi-
dence, in the form of eye-witness testimony, that Hudgins did actually
possess pistols, hidden in clothing on his person during both of the
_________________________________________________________________
2 This is, so far as we are aware, an open question whose practical
importance was only brought out by Griffin's critical distinction between
legally inadequate and factually insufficient grounds for a conviction.
None of the Yates line of "legally inadequate" (or unconstitutional)
ground cases involved misinstructions on an otherwise legal ground of
conviction. None, therefore, addressed whether such a misinstruction
made the ground submitted "legally inadequate" in the Griffin sense.
There are, however, some intimations in Griffin 's rationale for the dis-
tinction that could be thought to point in that direction. The distinction
was said in Griffin to make "good sense" because lay juries can be pre-
sumed to have rejected factually unsupported grounds, but not legally
inadequate ones such as, e.g., one that "fails to come within the statutory
definition of the crime." Griffin, 502 U.S. at 59.

As indicated, we need not attempt to resolve that question here.

                     7
transactions in issue. The jury was instructed, without elaboration as
to what "carry" meant, that he might be convicted if the jury found
that he "knowingly carried a firearm during and in relation to Defen-
dant's commission of a drug trafficking crime." Hudgins' defense at
trial was simply a denial of the most critical "carry" element: actual
possession. There was no contention that such possession as occurred
was not during or in relation to a drug trafficking offense, nor that his
possession was not knowing, nor that it was only"constructive." In
finding him guilty, the jury therefore necessarily found, on sufficient
evidence, that he did actually possess a firearm at the time and in the
manner testified. It therefore necessarily found further that, under
§ 924(c) he then and there "carried" a firearm. We are not, therefore,
left in doubt as to whether it may only have found him guilty on the
basis of a merely constructive possession use of the pistols under the
district court's erroneous "use" instruction. The Yates rule does not
therefore require that the conviction be set aside. 3 See United States
_________________________________________________________________
3 The same result might be reached, and has been reached by some
courts in generally comparable Bailey-spawned situations, by employing
the more tortured Rule 52(b) plain error analytic route prescribed by
United States v. Olano, 507 U.S. 725 (1993). See, e.g., United States v.
Ramirez-Ferrer, 82 F.3d 1149, 1151, 1154 (1st Cir. 1996) (finding no
"miscarriage of justice" because, though erroneous "use" instruction was
"plain," evidence "was sufficient . . .[to convict] under an ordinary and
natural meaning of the word `carry'"); United States v. Baker, 78 F.3d
1241, 1247-48 (7th Cir. 1996) (holding an erroneous use instruction was
not "plain" because "the only believable evidence" indicated that the
defendant had "carried" a firearm).

Such an approach focussing on the "use" misinstructional error and
running it through Olano's four-step sequential analysis, fails to take into
account the more direct route that is prescribed by the established
Yates/Griffin rule for dealing with the long-recognized special problem
of the "good ground/bad ground" general verdict. That rule serves the
same function, but more directly, because it contains, in effect, a built-in
"harmlessness" sub-rule that requires reversal only where it is "impossi-
ble to tell" that the bad ground was not the sole basis for the verdict. In
this case where the Government prudently relies upon both the Olano
route and Yates' impossible-to-tell route to ultimate "harmlessness", we
apply the Yates analysis as that prescribed by precedent for this particular
situation, and as the more serviceable.

                    8
v. Washington, 106 F.3d 983, 1013 (D.C. Cir. 1997) (holding to same
effect, applying Yates impossible-to-tell analysis).

AFFIRMED

                   9
