                United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT

                             ___________

                             No. 96-1843
                             ___________

United States of America,        *
                                 *
     Plaintiff - Appellee,       *
                                 * Appeal from the United States
     v.                          * District Court for the
                                 * Eastern District of Missouri.
Reginald Johnson,                *
                                 *
     Defendant - Appellant.      *
                            ___________

                  Submitted:    December 9, 1996

                        Filed:   March 14, 1997
                             ___________

Before FAGG and LOKEN, Circuit Judges, and KYLE,* District Judge.
                           ___________

LOKEN, Circuit Judge.


     A jury convicted Reginald Johnson of conspiring to distribute
crack cocaine and using and carrying a firearm during that drug
offense.   See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 924(c).        On
appeal, Johnson argues that the district court's1 instructions on
the § 924(c) count were inconsistent with Bailey v. United States,
116 S. Ct. 501 (1995), and that the court erred in admitting the
prior testimony of an unavailable police officer.   We affirm.




     The HONORABLE RICHARD H. KYLE, United States District Judge
     for the District of Minnesota, sitting by designation.
     1
      The HONORABLE CAROL E. JACKSON, United States District Judge
for the Eastern District of Missouri.
      In the fall of 1993, undercover police officers arranged to
purchase crack cocaine from Richard Yancey and Michael Freeman at
an apartment complex in Valley Park, Missouri.               Prior to the
purchase,      they   observed   Yancey    travelling   repeatedly   between
apartment 157 F, where the purchase would occur, and apartment 149
J in the same complex.           After arresting Yancey and Freeman in
apartment 157 F, the officers knocked on the door of 149 J.
Yancey's fourteen-year-old daughter answered and went to get her
mother, leaving the door open.            From the doorway, the officers
could see Johnson seated at the kitchen table.             When he moved a
hand towards his left front pants pocket, the officers told him to
stop, approached, and during a pat-down search found a loaded .22
caliber revolver.      Johnson was arrested, and a consensual search of
the kitchen area produced a digital scale with powder residue, a
pager, and notes recording the prices and quantities for the
aborted drug sale in apartment 157 F.          During a consensual search
of Johnson's car, a drug sniffing dog alerted to the back seat,
suggesting drug residue.


      Following Johnson's first trial, the jury was unable to reach
a   verdict.      After the second jury found him guilty of both
offenses, the Supreme court decided Bailey, and Johnson argued at
sentencing that the jury instructions concerning whether he had
"used" a firearm were contrary to this new construction of 18
U.S.C. § 924(c).      The district court agreed but concluded that the
§ 924(c) conviction should stand because the jury was instructed to
convict only if Johnson used and carried a firearm.




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                        I.    The § 924(c) Issue.


     Section 924(c) is violated if defendant "uses or carries" a
firearm during and in relation to a drug trafficking offense.
Johnson argues that his conviction must be reversed because the
jury was improperly instructed as to "use" of a firearm under
Bailey.   But in this case, the indictment charged that Johnson "did
knowingly use and carry a firearm," and the jury was instructed
that it must find that he "knowingly used and carried a firearm" to
convict him of the § 924(c) charge.             The government argues that
Johnson's conviction must therefore be affirmed because the jury
necessarily found that he "carried" the firearm, and the evidence
was sufficient to convict Johnson of a carry violation.2           We agree.
Th relevant principle was stated in Turner v. United States, 396
U.S. 398, 420 (1970):       "when a jury returns a guilty verdict on an
indictment charging several acts in the conjunctive . . . the
verdict stands if the evidence is sufficient with respect to any
one of the acts charged," quoted approvingly in Griffin v. United
States, 502 U.S. 46, 56-57 (1991).


     “[T]o   sustain    a    conviction   for    ‘carrying’   a   firearm   in
violation of § 924(c)(1), the government must prove that [the
defendant] bore the firearm on or about his person during and in




     2
      Under the instruction given, the jury's verdict tells us it
found that Johnson both used and carried the firearm.         That
distinguishes this case from United States v. Webster, 84 F.3d
1056, 1066 (8th Cir. 1996), where the instructions permitted the
jury to convict if it found that defendant "used or carried the
weapon in question." Likewise, United States v. Caldwell, 97 F.3d
1063, 1069 (8th Cir. 1996), is distinguishable because, in that
case, "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."

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relation to a drug trafficking offense."    United States v. White,
81 F.3d 80, 83 (8th Cir. 1996).    Here, the government's evidence




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was that arresting officers found a gun in Johnson's left front
pants pocket during their pat-down search, shortly after Johnson
had supplied Richard Yancey the crack cocaine Yancey and Freeman
tried to sell in apartment 157 F.               This evidence is clearly
sufficient to support the jury's finding that Johnson carried the
firearm during a drug trafficking offense.              "[A] firearm can be
carried without being used . . . [as] when an offender keeps a gun
hidden in his clothing throughout a drug transaction."           Bailey, 116
S. Ct. at 507.


                    II.    The Missing Witness Issue.


     One week prior to the second trial, the government advised
that Robert Kinney, the K-9 police officer who conducted the search
of Johnson's car, was on vacation somewhere in Florida.              Kinney had
not been subpoenaed for the second trial, so the government moved
for a continuance.        The district court denied a continuance but
over Johnson's objection ruled that Kinney was an unavailable
witness and admitted his testimony from the first trial under
Federal   Rules   of   Evidence     804(a)(5)   and     804(b)(1).     Johnson
challenges this evidentiary ruling on appeal.


     Rule     804(a)(5)   defines    a   witness   as    unavailable    if   the
proponent of the testimony cannot procure the witness's presence
"by process or other reasonable means."            Rule 804(b)(1) excepts
from the hearsay rule former testimony by an unavailable witness
who was cross examined at the earlier proceeding.              In this case,
Johnson concedes that he cross examined Officer Kinney at the first
trial but contends that Kinney was not unavailable for the second
because "the Government purposefully and conveniently failed to
make a good faith effort to find the K-9 officer and subpoena him
for trial."    We review the admission of former testimony for abuse


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of discretion.    See Azalea Fleet, Inc. v. Dreyfus Supply & Mach.
Corp., 782 F.2d 1455, 1461 (8th Cir. 1986).


     Like the inquiry under the Sixth Amendment's Confrontation
Clause, the availability inquiry under Rule 804(a)(5) turns on
whether the proponent of the former testimony acted in good faith
and made a reasonable effort to bring the declarant into court.
See Ohio v. Roberts, 448 U.S. 56, 74 (1980); United States v.
Flenoid, 949 F.2d 970, 972 (8th Cir. 1991).      The issue is whether
the district court abused its discretion in concluding that the
government used "reasonable means" to procure Officer Kinney's
presence when it failed to subpoena him, learned that he was on
vacation in Florida, and moved for a continuance of the trial when
he could not be located.    The question of reasonable means cannot
be divorced from the significance of the witness to the proceeding
at hand, the reliability of the former testimony, and whether there
is reason to believe that the opposing party's prior cross exam was
inadequate.


     Here, Officer Kinney's former testimony was given at a prior
criminal trial, the most reliable form of former testimony.       See
Mancusi v. Stubbs, 408 U.S. 204, 213-14 & n.3 (1972).       The same
trial judge heard Kinney's testimony at the first trial, including
Johnson's cross examination, and knew its relative unimportance to
the case.     In objecting to this use of former testimony, Johnson
failed to note any specific need for additional cross examination.
In these circumstances, we conclude that the district court did not
abuse its discretion in admitting the former testimony rather than
either excluding the testimony or continuing the trial.


                      III. A Sentencing Issue.




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     Finally, Johnson challenges the constitutionality of the crack
cocaine sentencing ratio in U.S.S.G. § 2D1.1.    We have repeatedly
rejected similar challenges to this guideline.    See United States
v. Carter, 91 F.3d 1196 (8th Cir. 1996); United States v. Smith, 82
F.3d 241, 244 (8th Cir.), cert. denied, 117 S. Ct. 154 (1996).
Only the court en banc may reconsider these decisions.   See United
States v. Willis, 967 F.2d 1220, 1225-26 (8th Cir. 1992).


     The judgment of the district court is affirmed.


     A true copy.


          Attest:


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




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