                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT



           __________                 *
                                      *
           No. 99-3050                *
           __________                 *
                                      *
United States of America,             *
                                      *
      Appellee,                       *
                                      *
      v.                              *
                                      *
Gerald Rey Bailey,                    *
                                      *
      Appellant.                      *     Appeal from the United States
                                      *     District Court for the
           __________                 *     Southern District of Iowa.
                                      *
           No. 99-3225                *
           __________                 *
                                      *
United States of America,             *
                                      *
      Appellee,                       *
                                      *
      v.                              *
                                      *
Anthony Wells Johnson,                *
                                      *
      Appellant.                      *
                                      *
           __________                *
                                     *
           No. 99-3244               *
           __________                *
                                     *
United States of America,            *
                                     *
      Appellee,                      *
                                     *
      v.                             *
                                     *
Gregory Donnell Hedgewood,           *
                                     *
      Appellant.                     *
                                     *
           __________                *
                                     *
           No. 99-3647               *
           __________                *
                                     *
United States of America,            *
                                     *
      Appellee,                      *
                                     *
      v.                             *
                                     *
Eric Lemar Falls,                    *
                                     *
      Appellant.                     *

                             ________________

                             Submitted: April 14, 2000
                                 Filed: December 22, 2000
                             ________________

Before BOWMAN, MAGILL, and HANSEN, Circuit Judges.

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                                 ________________

HANSEN, Circuit Judge.

       Gerald Rey Bailey, Anthony Wells Johnson, Gregory Donnell Hedgewood, and
Eric Lemar Falls ("defendants") appeal the district court's1 decision denying their 28
U.S.C. § 2255 motions to vacate, set aside, or correct their sentences under 18 U.S.C.
§ 924(c). The district court found that the defendants failed to demonstrate that they
were actually innocent of carrying a firearm during and in relation to their drug
trafficking conspiracy. We affirm.

                                   I. Background

       All four defendants pleaded guilty to numerous cocaine and cocaine base
trafficking offenses for which they were sentenced to prison terms ranging from 210
months to 360 months. Each of the defendants also pleaded guilty to the crime of using
or carrying a firearm during and in relation to a drug trafficking conspiracy for which
they each were sentenced to an additional five-year consecutive sentence. See 18
U.S.C. § 924(c)(1).

        The defendants appealed their convictions to this court. See United States v.
Falls, 34 F.3d 674 (8th Cir. 1994). We affirmed the convictions after rejecting the
defendants' challenges to the district court's refusal to suppress certain evidence
obtained by the government from intercepted oral communications and by use of video
surveillance. See id. at 683. Following our decision, however, the Supreme Court
rendered its decision in Bailey v. United States, 516 U.S. 137, 143-44 (1995), holding
that a conviction for "use" under § 924(c) requires a showing of active employment of


      1
        The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
                                          3
a firearm rather than mere possession by a defendant. The defendants filed the instant
§ 2255 motions asserting that the government failed to obtain valid § 924(c)
convictions in light of the ruling in Bailey.

        The district court found that the defendants had procedurally defaulted their
Bailey claims by failing to raise them during the direct review process. The district
court further found that the defendants failed to demonstrate cause and prejudice or
actual innocence to excuse the default. Although the district court found that the
defendants had probably proven actual innocence of "use" under § 924(c), the court
found sufficient evidence to support a "carry" conviction, and therefore, the defendants
had failed to prove actual innocence. Accordingly, the district court denied the
defendants' § 2255 motions. The district court, however, granted the defendants a
certificate of appealability on the sole issue of whether any of the defendants
established actual innocence to excuse the procedural defaults. We review the district
court's legal conclusions de novo and its factual findings for clear error. See United
States v. Felici, 208 F.3d 667, 669-70 (8th Cir. 2000).

                                      II. Analysis

        A defendant who has procedurally defaulted a claim by failing to raise it on
direct review may only raise that claim in a § 2255 proceeding if the defendant
demonstrates cause and prejudice for the default or by demonstrating actual innocence.
See Dejan v. United States, 208 F.3d 682, 685 (8th Cir. 2000) (citing Bousley v.
United States, 523 U.S. 614, 622 (1998)). The defendants in this case failed to
establish cause and prejudice because their Bailey-based argument could have been
raised at the time of the guilty pleas. See Dejan, 208 F.3d at 685 (explaining that "even
if the plea court was unlikely to accept his pre-Bailey 'use' argument, assumed futility
is not considered 'cause' for not raising the claim"). Thus, the defendants may assert
their present Bailey claims and attempt to obtain relief from their additional five-year


                                           4
consecutive sentences only if they can establish that they were factually actually
innocent of the § 924(c) offense.

       In order to establish a valid claim of actual factual innocence, the defendants
"must demonstrate that, in light of all the evidence, it is more likely than not that no
reasonable juror would have convicted [them]." Hohn v. United States, 193 F.3d 921,
923-24 (8th Cir. 1999) (citing Bousley, 523 U.S. at 623); accord, Schlup v. Delo, 513
U.S. 298, 327-38 (1995). The defendants also "must show factual innocence, not
simply legal insufficiency of evidence to support a conviction." Dejan, 208 F.3d at 686
(citing Bousley, 523 U.S. at 623).

       There is little doubt that at least one firearm was displayed and that probably two
firearms were carried during the conspiracy at the Des Moines apartment which served
as the Iowa headquarters of the defendants' California-based drug trafficking
conspiracy. The conspiracy began prior to January 13, 1993, and lasted until the
defendants were arrested on January 29, 1993. See Falls, 34 F.3d at 676-77. The
district court found that

             [t]he record, including the video surveillance tapes,2 reveals
             that on January 24, 1993, during the course of the
             conspiracy, one of the defendants, probably Falls, actually
             held a firearm in his hand for a few minutes in the apartment
             the defendants had acquired for the purpose of their drug
             distribution conspiracy, and this occurred in the presence of
             the other defendants.

(Gov't Add. at 5-6.) That firearm has been described as a silver handgun which the
government conceded during oral argument was brought into the apartment by a visitor,
and then handled and displayed by defendant Falls in the presence of the other

      2
       Despite the efforts of all counsel involved to find it, the videotape cannot be
located.
                                            5
defendants. The silver gun was returned to the visitor who then left the apartment with
the silver gun in her purse. A second weapon, described as a loaded .45 caliber was
seized from the bedroom of the apartment when the defendants were arrested on
January 29, 1993. Other surveillance tapes show that .45 present at various places in
the apartment at various times during the conspiracy. (Johnson App. at 200.) The
amended final copy of the presentence investigation report (PSIR) reveals that a
witness observed a handgun in the apartment during the December (1992) to January
1993 time period and asked defendant Bailey to remove it from the couch area in the
living room, which he did. (Bailey and Falls Br. at 18.) It is somewhat unclear from
the record whether the gun removed from the couch and carried by Bailey to a different
location within the crack house was the silver handgun or the loaded .45 which was
kept in the apartment. (Johnson PSIR, App. at 62, ¶ 19, ("Surveillance photos also
evidenced that on January 24, 1993, Eric Falls possessed a silver handgun in the
apartment, while Bailey, Hedgewood, and Johnson were also present. [Witness's
name] had observed the handgun in the apartment during the December to January
1993 time period, and asked Bailey to remove it from the couch area in the living
room.")). Question: Is "the handgun in the apartment" which Bailey carried from the
couch the silver handgun or the .45 which was kept in the apartment? If it is the silver
gun, then two different defendants physically handled and carried that firearm. If it is
the .45, then two different firearms were handled and carried within the apartment
during the ongoing conspiracy. In addition, the PSIR for each defendant shows that
another coconspirator--William Person--was arrested on January 25, 1993, in Kansas
City after police found $64,225 and a 9 mm. pistol in the motor home he was driving.
(Johnson App. at 61; Hedgewood App. at 53, 58, and 62.) The money Person was
carrying constituted drug proceeds of the conspiracy, some of which proceeds came
from the operation in Des Moines. (See Johnson App. at 61; Sent. Tr., Vol. II at 61-
62, 91, 113.) Both 9 mm. and .45 ammunition were seized from the apartment. The
defendants do not, nor could they, seriously challenge these factual findings, which
clearly show that at least one if not three firearms were physically handled and carried
by members of the drug trafficking conspiracy during the course of that conspiracy.

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See, e.g., United States v. Turner, 157 F.3d 552, 557 (8th Cir. 1998) (explaining that
transporting a firearm in a vehicle satisfies "carrying" for purposes of § 924(c), citing
to Muscarello v. United States, 524 U.S. 125, 139 (1998)).

       Nevertheless, the defendants argue that the silver gun handled and displayed in
the apartment was not carried "in relation to" the drug conspiracy because there were
no actual drug trafficking activities going on in the apartment at the time of the
carrying. See 18 U.S.C. § 924(c)(1) ("[w]hoever, during and in relation to any . . . drug
trafficking crime . . . uses or carries a firearm") (emphasis added)). At a minimum, "in
relation to" means that "the firearm must have some purpose or effect with respect to
the drug trafficking crime; its presence or involvement cannot be the result of accident
or coincidence." Smith v. United States, 508 U.S. 223, 238 (1993). In other words,
the firearm must facilitate or have the potential for facilitating the drug trafficking
offenses. See id.

       The defendants have failed to carry their burden of demonstrating that the
firearms were not carried "in relation to" the drug conspiracy. The videotape showing
Falls holding a firearm for a few minutes in the Des Moines apartment, or the witness
testimony that Bailey on an earlier occasion had carried either that firearm or the .45
from the living room couch are enough, standing alone, to support a finding that a
firearm was carried "in relation to" the drug conspiracy. Though we agree with
defendants that temporal proximity between the carrying of a firearm and drug
trafficking activity is important, a finding of temporal proximity or the lack thereof does
not automatically establish or prohibit a finding of "in relation to." In the particular
circumstances of this case, the lack of simultaneous temporal proximity is not fatal.
The Des Moines apartment where at least one firearm was displayed and carried served
as the headquarters for facilitating the Iowa drug trafficking of the California
defendants. Large quantities of cocaine and cocaine base were stored, packaged, and
cooked at this apartment; drug proceeds were counted in the apartment; and numerous
drug transactions were completed from and in the apartment. The fact that Falls and

                                            7
Bailey openly handled and carried a firearm in the apartment facilitated the drug
trafficking activity by reassuring the other coconspirators that they had protection for
themselves, the drugs, and the drug proceeds. The defendants were in that apartment
for one primary reason--drug trafficking--and any firearm being carried and displayed
was possessed for the reasonably apparent purpose of facilitating those drug trafficking
activities. See Swedzinski v. United States, 160 F.3d 498, 501 (8th Cir. 1998)
(rejecting defendant's evidence that he was carrying a handgun in order to shoot
squirrels because the carrying took place shortly after defendant inspected his
marijuana plants and while carrying marijuana-related materials). We therefore think
it unlikely that a reasonable juror would find that Bailey and Falls carried a firearm just
by coincidence, by accident, or for any other legal purpose. In fact, we think it highly
probable that a juror would find that a gun was handled, displayed, and carried "in
relation to" the numerous drug trafficking offenses committed in the apartment based
on Bailey's and Falls' conduct.

        Moreover, there is the additional evidence that a firearm was carried "in relation
to" the drug conspiracy. Coconspirator Person was arrested in Kansas City carrying
a firearm while transporting the conspiracy's drug proceeds back to California from Des
Moines. A reasonable juror could certainly find that the carrying of this firearm
facilitated the drug trafficking activities by protecting the coconspirator and the drug
proceeds.3 Indeed, defendant Johnson admitted that a weapon would serve such a

      3
         Although the district court did not rely on Person's carrying of a firearm while
transporting the drug proceeds in rendering its judgment, we are free to "affirm the
district court on any basis supported by the record." Blankenship v. United States, 159
F.3d 336, 338 (8th Cir. 1998). We note that none of the appellants filed a reply brief
contesting the government's factual assertions and argument concerning Person's
carrying of a firearm. We also note that the district court's judgment and sentence in
the criminal case adopted the factual findings in the PSIR, except for the determination
of drug quantity. (Johnson App. at 84.) At sentencing, the district court did not
convert the $64,225 seized from Person into a quantity of drugs because it was
concerned that to do so would result in "double counting." That is, the likelihood was
                                            8
purpose to the district court during his plea proceedings. (See Plea Tr., Johnson App.
at 202-03).

       Each of the defendants is criminally liable for the actions of his coconspirators
pursuant to the doctrine announced in Pinkerton v. United States, 328 U.S. 640, 647-48
(1946). See United States v. Navarrete-Barron, 192 F.3d 786, 792 (8th Cir. 1999)
(explaining that "under Pinkerton, each member of a conspiracy may be held criminally
liable for any substantive crime committed by a coconspirator in the course and
furtherance of the conspiracy, even though those members did not participate in or
agree to the specific criminal act" (citations omitted)).

      Liability under the Pinkerton doctrine exists in this case if (1) each defendant
was a member of the conspiracy when the firearms were carried or displayed, (2) the
coconspirators acted in furtherance of the conspiracy when the firearms were carried
or displayed, and (3) the act of carrying or displaying the firearms was reasonably
foreseeable to the other members of the conspiracy as a natural outgrowth of the
conspiracy. See id. at 792-93 (citing Pinkerton, 328 U.S. at 647-48). There is no
doubt that all four defendants were members of the conspiracy when the firearms were
carried and displayed; there is little doubt that the carrying of the firearms was
reasonably foreseeable as a natural outgrowth of trafficking in large amounts of cocaine
and cocaine base and the cash generated therefrom; and we are convinced based on our
previous discussion of the "in relation to" issue that the evidence is sufficient to find
that the carrying and displaying of the firearms facilitated and furthered the drug
conspiracy. We have said before that guns are tools of the drug dealer's trade. See
United States v. Hammer, 3 F.3d 266, 270 (8th Cir. 1993), ("Guns are typical tools of
the drug trade, used to protect merchandise and money."), cert. denied, 510 U.S. 1139
(1994). We have also held that Bailey does not preclude the continued application of


that the proceeds were from drug quantities already attributed to the four defendants.
See Sent. Tr., Vol. II at 113, 150.
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Pinkerton coconspirator liability to § 924(c)(1) offenses. See United States v. Rodger,
100 F.3d 90, 91 n.2 (8th Cir. 1996), cert. denied, 524 U.S. 853 (1997). Thus, each
defendant who is not liable directly under § 924(c) is liable as a coconspirator pursuant
to Pinkerton.

       In short, the defendants have failed to meet their burden of showing that no
member of the conspiracy ever carried a firearm during and in relation to the drug
trafficking activities. We therefore affirm the district court's finding that the defendants
have failed to show actual innocence of the § 924(c) offenses.

     Finally, we hold that the district court did not abuse its discretion in failing to
conduct an evidentiary hearing. See Bradshaw v. United States, 153 F.3d 704, 708
(8th Cir. 1998). The defendants have proffered no evidence to counter the information
contained in the PSIR relating to the firearm activities, and the government's
concessions at oral argument as to the contents of the missing videotape vitiate any
need to replay it.

                                     III. Conclusion

      For the reasons stated herein, we affirm the judgment of the district court
denying defendants' requests for relief under 28 U.S.C. § 2255.

       A true copy.

              Attest:

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




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