924(c) Conviction Affirmed Over Defendant's Challenges to Jury Instructions and Evidentiary Sufficiency on "In Relation To" Element

United States v. Harris, No. 06-30243 (5th Cir. Jan. 25, 2007) (King, Higginbotham, Smith)

Harris was arrested following a traffic stop when officers found a .40 caliber Glock in one pocket (with a full magazine and a chambered round), and 0.672 grams of heroin in the other (packaged in 48 individually-wrapped foils).

Harris pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)), and was convicted at trial of possesion of heroin with intent to distribute (21 U.S.C. § 841(a)(1)), possession of cocaine base with intent to distribute (same), and carrying a firearm during and in relation to a drug trafficking offense (18 U.S.C. § 924(c)(1)).

Harris raised two issues on appeal with regard to his conviction on the 924(c) count. First, he argued that the district court erred in refusing his requested jury instruction. The district court had given the Fifth Circuit pattern instruction, which includes this paragraph:

By "in relation to," means that the firearm must have some purpose, role, or effect with respect to the drug trafficking crime.

Slip op. at 4. In lieu of that paragraph, Harris requested this language:

Mere proximity of the firearm and the drugs is not enough. To prove that the defendant carried the firearm "during and in relation to" the drug trafficking crime, the government must prove that the firearm had some purpose or played some role in the drug trafficking crime.

Id. Harris argued that the pattern's use of "the word 'effect' allows the jury to convict on insubstantial evidence of a relationship between the gun and the drug offense." Id. The court disagreed, finding the charge as a whole substantially covered Harris's proposed instruction and made clear that mere possession of a gun during a drug trafficking crime is not enough to convict.

Second, Harris argued that the evidence was insufficient to support a finding BRD on the "in relation to" element. The court observed that it "has never vacated a conviction for 'carrying a firearm' based on insufficient evidence of a relationship between the gun and the drug offense[,]" and it doesn't do so here. Id. at 7. Rejecting Harris's argument, the court holds that,

from these circumstances - a gun in one pocket and a distributable quantity of drugs in the other - a rational jury could have found beyond a reasonable doubt that Harris was carrying the Glock for protection. This inference of protection provides "something more than strategic proximity of drugs and firearms" and honors the Congressional concerns manifested by the "in relation to" element.

Id. at 7-8.