254 F.3d 167 (D.C. Cir. 2001)
United States of America, Appelleev.William Austin Green, Appellant
No. 99-3083
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2000Decided June 26, 2001

Appeal from the United States District Court  for the District of Columbia  (No. 90cr00553-01)
Sandra G. Roland, Assistant Federal Public Defender,  argued the cause for appellant.  With her on the briefs was  A. J. Kramer, Federal Public Defender.
Mary B. McCord, Assistant U.S. Attorney, argued the  cause for appellee.  With her on the brief were Wilma A.  Lewis, U.S. Attorney at the time the brief was filed, and John R. Fisher, Mary-Patrice Brown and Robert D. Okun, Assistant U.S. Attorneys.
Before:  Edwards, Chief Judge, Garland, Circuit Judge,  and Silberman, Senior Circuit Judge.*
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
William Austin Green was convicted in 1991 for "using or carrying" a firearm during and in  relation to a violent crime, in violation of 18 U.S.C.    924(c)(1).  After an unsuccessful direct appeal, Green  brought a collateral challenge to his conviction pursuant to 28  U.S.C.   2255.  He contends that in light of Bailey v. United  States, 516 U.S. 137 (1995), the trial judge misinstructed the  jury as to the meaning of "using or carrying."  The district  court denied Green's motion to vacate his sentence, concluding that any error was harmless.  We agree with the district  court and affirm the judgment below.


2
* On October 31, 1990, Green helped Rita Peaks abduct a  three-year-old girl from her mother and legal custodian.  The  kidnapping occurred as mother and child, the latter dressed  in her Halloween costume, walked down a street in the  District of Columbia.  Green approached them from behind,  grabbed the child, ran across the street, jumped into Peaks'  waiting car, and drove off.  Peaks intended to take the child  to Arizona to live with her and Carl Butler, the child's father. After a number of intervening events, dramatic but unnecessary to describe here, Green and Peaks persuaded two others,  Ernie Davis and Jerome Diggs, to provide a car and accompany them on their trip.


3
Although Green and Peaks had told Davis and Diggs that  their destination was Virginia, Peaks instead drove the group,  including the kidnapped child, into Maryland.  When Davis  realized that Peaks planned a longer trip than he had expected, he expressed reservations about continuing on the journey.  Davis testified that Peaks stopped the car, and that  Green then pointed a gun "in [his] face" and ordered him out. Diggs testified that he also tried to get out of the car, but  that Green grabbed him from behind, held a gun to his head,  and told Peaks to drive away.


4
Peaks, Green, Diggs, and the child traveled west until they  reached Kansas City, Missouri, where they were stopped by  police officers.  At the time, Diggs was in the driver's seat  and Green in the front passenger's seat.  Because Diggs  could not produce a license or registration, the officers asked  the group to step out of the car.  After a brief search, Officer  Mark Johnson found a loaded .25 caliber pistol under the  center console in the car's front seat.  At trial, Officer  Johnson testified that Green immediately stated, "that's my  gun."  Diggs also testified that Green claimed ownership of  the weapon, and that the gun seized by the officer appeared  to be the same one Green had earlier brandished at him. The officers placed Green under arrest for carrying a concealed weapon, and permitted the others (including the child)  to drive off.  Following further adventures, again unnecessary to recount, Peaks was arrested in Colorado and the child  was returned to her mother.


5
On January 15, 1991, Green was charged with:  kidnapping,  in violation of 18 U.S.C.   1201;  conspiracy to kidnap, in  violation of 18 U.S.C.   371;  assault with intent to kidnap, in  violation of D.C. Code   22-503;  transporting a firearm in  interstate commerce while under indictment for a felony, in  violation of 18 U.S.C.   922(n);  and using or carrying a  firearm during and in relation to a violent crime, in violation  of 18 U.S.C.   924(c)(1).  Green was also charged with tampering with and retaliating against a witness, in violation of  18 U.S.C. §§ 1512(b)(1) and 1513, for asking Davis to lie to  the grand jury while the two were in custody and for punching Davis after he testified.


6
Green, who was tried jointly with Peaks, neither testified  nor presented witnesses in his defense.  Following closing  arguments, the trial court instructed the jury that the first element of the   924(c)(1) offense was that "the defendant  was carrying or used a firearm."  4/19/91 Tr. at 119.  In  defining "using or carrying," the court advised the jury, inter  alia, that:  "In order to satisfy this element,.... [i]t is sufficient if you find that [the defendant] transported or conveyed  a weapon or had possession of it in the sense that at a given  time [he] had both the power and the intention to exercise  dominion and control over it."  Id. at 120 (emphasis added).


7
On April 19, 1991, the jury found Green guilty of all  charges.  This court affirmed his convictions in 1993.  United  States v. Green, Nos. 91-3200, 92-3005, 1993 WL 119451  (D.C. Cir. Mar. 23, 1993).  In 1995, the Supreme Court  decided Bailey v. United States, 516 U.S. 137 (1995), which  clarified the meaning of "using" a firearm under   924(c)(1). Bailey held that to prove "use," "the Government must show  that the defendant actively employed the firearm during and  in relation to the predicate crime."  Id. at 150.  Thus, a  conviction for "using" a firearm under   924(c)(1) "requires  more than a showing of mere possession."  Id. at 144.


8
Following Bailey, Green filed a motion under 28 U.S.C.    2255 to vacate, set aside or correct his sentence.  After  holding a hearing, the district court denied Green relief.  The  court found that any error in the   924(c)(1) instruction was  harmless, because by convicting Green of unlawfully transporting a firearm in interstate commerce under 18 U.S.C.    922(n), the jury necessarily concluded that Green had "carried" the firearm as well.  See United States v. Green, No.  90-cr-553, slip op. at 5-6 (D.D.C. Apr. 28, 1999).

II

9
The government concedes that, in light of the Supreme  Court's subsequent decision in Bailey, the trial court erred by  conflating the terms "using" and "carrying" and effectively  instructing the jury that it could convict Green if it found he  had merely constructively possessed a weapon.  See United  States v. Johnson, 216 F.3d 1162, 1166 (D.C. Cir. 2000);  In re  Sealed Case, 153 F.3d 759, 770-72 (D.C. Cir. 1998).  The  government contends, however, that because Green failed to object to the jury instructions either at trial or on direct  review, "the claim may be raised in habeas only if the  defendant can first demonstrate either 'cause' and actual  'prejudice,' ... or that he is 'actually innocent.' "  Gov't Br. at  20 (quoting Bousley v. United States, 523 U.S. 614, 622  (1998)).  Green counters that, among other things, the government waived this procedural default argument by failing  to make it with respect to the "carry" instruction in the    2255 proceeding below.  He instead urges us to vacate his  conviction unless we find "harmless error," the standard we  apply on direct review when the defendant has objected to  the instruction at trial.  See Fed. R. Crim. P. 52(a).


10
On several previous occasions we have surveyed the standards of review potentially applicable to Bailey trial errors. In each case, we have found it unnecessary to select the most  appropriate standard, because in each the defendant's conviction survived the standard most favorable to him--harmless  error.  See Johnson, 216 F.3d at 1166;  United States v.  Joseph, 169 F.3d 9, 13 n.7 (D.C. Cir. 1999);  United States v.  Perkins, 161 F.3d 66, 71-74 (D.C. Cir. 1998);  United States v.  Toms, 136 F.3d 176, 180 n.6 (D.C. Cir. 1998).  As we discuss  in Part III, the same is true here.


11
Error is harmless if it appears "beyond a reasonable doubt  that the error complained of did not contribute to the verdict  obtained."  Chapman v. California, 386 U.S. 18, 24 (1967).1 In numerous cases we have found Bailey errors to be harmless where "the jury necessarily found facts that would have  satisfied a proper instruction."  Johnson, 216 F.3d at 1166-67  (collecting cases).  And we have often found that to be the case where, although there was instructional error as to the  "using or carrying" charge, a conviction on another statutory  count assured us that the jury had necessarily found the  element as to which the jury had been mischarged.  See id. Indeed, in both United States v. Johnson and United States  v. Kennedy, we encountered erroneous instructions that, like  the one at issue here, conflated the terms "using" and "carrying" and defined the   924(c)(1) offense too broadly.  See  Johnson, 216 F.3d at 1166;  Kennedy, 133 F.3d 53, 58 (D.C.  Cir. 1998).  In each case, however, we concluded that because  the defendant was also convicted of assaulting a police officer  with a gun, the jury necessarily concluded that the defendant  had "carried" the same gun.  See Johnson, 216 F.3d at 1167; Kennedy, 133 F.3d at 58;  see also United States v. Smart, 98  F.3d 1379, 1393 (D.C. Cir. 1996) (finding harmless error  where, although the court improperly defined "using or carrying" as including constructive possession, the jury necessarily  found "carrying" within the meaning of   924(c)(1) because it  also convicted the defendant of "carrying a pistol without a  license");  cf. United States v. Winstead, 74 F.3d 1313, 132021 (D.C. Cir. 1996) (finding harmless error where the court  failed to instruct the jury on the element of materiality in a  false statements count, because the jury also found the defendant guilty on an overlapping mail fraud count as to which it  had been instructed regarding materiality).


12
These cases might be characterized as ones in which facts  necessarily found by juries in convicting defendants on properly charged counts were the "functional equivalent" of elements that were erroneously described with respect to other  counts.  But as we noted in Johnson, the Supreme Court held  in Neder v. United States, 527 U.S. 1 (1999), that "error can  be harmless even if 'other facts necessarily found by the jury'  are not the 'functional equivalent' of the omitted or misdescribed element--even under a broad definition of 'functional  equivalent.' "  Johnson, 216 F.3d at 1167 (quoting Neder, 527  U.S. at 13);  see also Neder, 527 U.S. at 16 n.1.  The dispositive question is simply whether it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error."  Neder, 527 U.S. at 18.


13
We now turn to an analysis of the facts of this case, in  order to determine whether the district court's instructional  error was harmless beyond a reasonable doubt.

III

14
Although the "using or carrying" instruction in this case  was erroneous, the jury convicted Green of another charge  that required the jury to find facts that are the "functional  equivalent" of "carrying" under   924(c)(1):  unlawfully transporting a gun in interstate commerce in violation of   922(n). Green correctly notes that "transporting" may at times have  a broader meaning than "carrying":  for example, "transporting" may include shipping items through the mail.  See  Muscarello v. United States, 524 U.S. 124, 134-36 (1998).  As  the district court explained, however, in this case:


15
The only evidence presented to the jury that defendant "shipped or transported" a firearm in interstate commerce was testimony from Ernie Davis and Jerome Diggs that defendant held a firearm in his hand during the interstate journey, and testimony from Officer Mark Johnson of the Kansas City Police Department that defendant proclaimed ownership of a loaded gun that Johnson found "underneath the center console ... in the front seat" of the car where defendant was a passenger.


16
Green, slip op. at 5 (transcript citations omitted).  This  evidence plainly constitutes "carrying" under   924(c)(1).


17
In Muscarello v. United States, the Supreme Court held  that "carrying" includes both "carrying of firearms on the  person" and "knowingly possess[ing] and convey[ing] firearms  in a vehicle, including in the locked glove compartment or  trunk of a car, which the person accompanies."  524 U.S. at  126-27.  Because the evidence that Green "transported" the  gun during the trip was exclusively evidence that constitutes  "carrying" as described in Muscarello, we agree with the  district court that in finding Green guilty of violating    922(n), the jury necessarily found facts constituting a violation of   924(c)(1) as well.  This renders any error in the "using or carrying" instruction harmless.  See, e.g., Perkins,  161 F.3d at 74.


18
Green contends that there is a scenario under which the  jury could properly have convicted him both for "transporting" a firearm under   922(n), and for "carrying" a firearm  under the erroneous   924(c)(1) charge, but still not have  found sufficient evidence for a proper   924(c)(1) conviction. The jury might have believed, Green claims, that Rita Peaks  "conveyed" the gun during the car ride, and that he did not  assume constructive possession until after the car was  stopped and the police found the gun.  Def. Br. at 17.  Green  appears to contend that under the erroneous "carrying"  instruction, the jury could have convicted him for constructively possessing the gun after the officers ordered him out of  the car, without finding that he also constructively possessed  it in the moving car.  Were this the case, the "carrying"  conviction would fail Muscarello's requirement that even in a  car, a defendant must have "personal agency and some  degree of possession."  524 U.S. at 134.  Green appears  further to contend that the   924(c)(1) error is not cured by  the "transporting" conviction because the judge assertedly  botched the latter instruction as well--by permitting the jury  to find Green guilty of "transporting" the gun without having  any possessory interest in it at all.  Def. Reply Br. at 7 n.2.


19
Although we do not agree with Green's characterization of  the district court's "transporting" instruction,2 the evidence at  trial does not in any event support this thoroughly implausible scenario.  First, Green's hypothetical is inconsistent with  the testimony of both Officer Johnson and Jerome Diggs that Green claimed ownership of the gun;  neither witness testified  that Green expressed any caveats regarding when he came to  own or possess the weapon.  Second, the contention that  Green had no possessory interest in the gun until after he  stepped out of the car is inconsistent with the testimony of  five witnesses, who testified that, during Green's postabduction travels, they had seen him brandish either a gun or  the same gun the officers later found.  Finally, not one  witness testified that the gun recovered by Officer Johnson  belonged to Peaks or that Green lacked control over it at any  time.


20
The only evidence offered by Green in support of his  scenario is Diggs' testimony, contrary to that of Officer  Johnson, that Green did not immediately say the gun was his.  Diggs testified, instead, that:  "[Green] kept saying it didn't  belong to him, until he turned around and asked Rita will she  bond him out....  She said yeah, and he said it's his gun. Then he turned around to the officer and said that it's his  gun."  4/17/91 Tr. at 139.  Green claims that from this  testimony, the jury could have inferred that Green did not  possess the gun during the car ride, but rather falsely  claimed ownership in order to enable Peaks to escape.


21
This "evidence" does not increase the plausibility of Green's  scenario.  Nothing on the face of Diggs' rendition supports  Green's interpretation of the testimony.  Rather, the most  straightforward reading is that Green did not want to confess  his guilt until he was certain that Peaks would bail him out-not that he falsely confessed in order to save her.  Diggs did  not himself interpret Green's words as Green suggests;  to  the contrary, Diggs testified that Green had brandished what  appeared to be the same gun earlier in the trip.  Hence, to  accept this scenario, the jury would have had to disbelieve  Diggs' testimony about that earlier incident, and then interpret in a less-than-obvious way Diggs' testimony that Green  did not immediately confess his ownership.  Moreover, the  jury would have had to so reason in the face of uncontradicted evidence that Green did in fact exercise control over the gun during the cross-country trip.3


22
As we have said many times before, it is the evidence  before the jury that determines whether a conviction survives  harmless error review.  See, e.g., Johnson, 216 F.3d at 1168; Perkins, 161 F.3d at 75;  United States v. Washington, 106  F.3d 983, 1013 (D.C. Cir. 1997);  Smart, 98 F.3d at 1393-94 &  n.22.  We will not find an error harmful based merely on "any  hypothetical the defendant can conjure up."  Johnson, 216  F.3d at 1168 (quoting Perkins, 161 F.3d at 75).  Rather, the  "scenario offered by defense counsel must be plausible in  light of the evidence at trial, not merely theoretically possible."  Johnson, 216 F.3d at 1168.  Green's scenario is simply  not plausible, and thus does not undermine our conclusion  that the error in his jury instruction was harmless beyond a  reasonable doubt.

IV

23
Although the "using or carrying" instruction at Green's  trial was erroneous in light of the Supreme Court's subsequent decision in Bailey, we conclude that the error was  harmless.  Accordingly, we affirm the judgment of the district court.



Notes:


*
 Senior Judge Silberman was in regular active service at the  time of oral argument.


1
 Chapman establishes the standard for determining whether  constitutional error was harmless on direct appeal, whereas Kotteakos v. United States, 328 U.S. 750, 776 (1946), provides the standard  for nonconstitutional harmless error.  The Chapman standard is  more favorable to a defendant.  See Johnson, 216 F.3d at 1166 n.4. Because Green does not merit relief even under that more favorable  standard, we apply Chapman without considering which standard is  more appropriate in the context of Green's collateral attack on his  conviction.  See id. (noting that Kotteakos normally applies on  collateral review, but applying Chapman where government argued  only Chapman below).


2
 Immediately after describing the elements of the   922(n)  "transporting" charge, the court told the jury that "in order to  return a guilty verdict against Mr. Green on this count, you must be  unanimous that the defendant Green used and carried a particular  firearm."  4/19/91 Tr. at 118.  Green contends that by making this  statement, the court equated "transporting" with "using or carrying," and thereby imported the flaws of the "using or carrying"  instruction into the "transporting" charge.  To the contrary, the  court, at worst, inadvertently added an additional element to the  already-stated requirements of the   922(n) charge.


3
 A further flaw in Green's scenario is that if the jury truly  believed that Green did not possess the gun during the trip, but  only falsely claimed ownership after the police found it, the jury  would not have convicted him of "carrying" even under the trial  court's erroneous instruction.  The court instructed the jury that to  convict, it would have to find that Green had "both the power and  the intention to exercise dominion and control over" the weapon. 4/19/91 Tr. at 119.  At the time Green made his claim to ownership,  the gun was in the hands of Officer Johnson.  Hence, whatever  Green's intention, he plainly no longer had the "power" to exercise  dominion and control.


