KOZINSKI, Circuit Judge.
What does it mean to "carry a gun"? We must choose between two duelling interpretations of the phrase.
Leon Foster and Sandra Ward manufactured methamphetamine. In 1989 the police got wise to them, pulled Foster over while he was driving his pickup truck and arrested him. In his truck bed, in a zipped up bag under a snap-down tarp, they found a loaded 9 mm semiautomatic and a bucket. Inside the bucket were a scale, plastic baggies, and some hand-written notes with prices.
Foster and Ward were convicted of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Foster was also convicted of possessing methamphetamine, in violation of 21 U.S.C. § 844, and of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). We overturned the conspiracy conviction in an unpublished memorandum disposition, but that decision was vacated, United States v. Foster, 513 U.S. 983, 115 S.Ct. 477, 130 L.Ed.2d 391 (1994), in light of an intervening Supreme Court case. On remand, we affirmed across the board. United States v. Foster, 57 F.3d 727, 729 (9th Cir. 1995).
The Supreme Court thereafter decided Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which interpreted the "uses ... a firearm" prong of section 924(c)(1). Foster now could not be convicted of using a firearm, as he did not actively employ the gun during and in relation to his drug trafficking crime. Id. at 141-43, 116 S.Ct. at 505. But, he was never charged with using — only with carrying — and Bailey does not authoritatively answer whether he can be convicted of carrying a firearm. Our three-judge panel issued a new opinion in light of Bailey, holding that Foster did not carry the gun, United States v. Foster, 96 F.3d 1177 (1996), but that opinion was withdrawn. Id. at 1178. We were left with the 1995 decision. We took the case en banc to resolve a conflict in our caselaw over the interpretation of carrying a firearm when a gun is found in a vehicle. Compare United States v. Barber, 594 F.2d 1242 (9th Cir.1979) with United States v. Hernandez, 80 F.3d 1253 (9th Cir.1996).
Section 924(c)(1) provides that "[w]hoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years...." (emphasis added). Was Leon Foster carrying a gun when he drove with it in his truck bed?
"Carry" seems like a simple English word, which is precisely the problem: Few words in English are truly simple. "Carry" has two differing relevant uses. It may mean to transport or even to arrange for something to be transported: "I had to carry my piano all the way across the country." But it may also mean to hold an object while moving from one place to another: "I carried that ball and chain wherever I went." This narrower sense applies particularly to weapons. If I were to say "Don Corleone is carrying a gun" — or even just "Don Corleone is carrying" — you would understand that the Don has a sidearm somewhere on his person. A synonym for carry in this sense is to "pack heat." Criminals who pack heat are obviously much more dangerous than those who do not.
In our caselaw, we first adopted the broad definition of "carry" as transporting in United States v. Barber, 594 F.2d 1242 (9th Cir. 1979). Interpreting section 924(c)(1)'s predecessor, we said "[i]n ordinary usage, the verb `carry' includes transportation or causing to be transported. Nothing in the legislative history indicates that Congress intended any hypertechnical or narrow reading of the word `carries.'" Id. at 1244. After Bailey we switched to the narrower (packing heat) sense in United States v. Hernandez, 80 F.3d 1253 (9th Cir.1996). We held that "in order for a defendant to be convicted of `carrying' a gun in violation of section 924(c)(1), the defendant must have transported the firearm on or about his or her person.... This means the firearm must have been immediately available for use by the defendant." Id. at 1258 (citations omitted). A number of recent cases follow the Hernandez definition: United States v. Lopez, 100 F.3d 98, 101 (9th
Choosing between the two definitions is a close call.
There are those who have criticized the narrow definition because it seems to exonerate a defendant who has a gun readily accessible within the passenger compartment of a moving car, but not actually borne upon his person. These critics have smugly pointed out that circuits purporting to follow the narrow definition have had to abandon it in order to uphold convictions in such circumstances. See, e.g., United States v. Cleveland, 106 F.3d 1056, 1067 (1st Cir.), cert. granted, ___ U.S. ___, 118 S.Ct. 621, 139 L.Ed.2d 506 (1997) (citing Willett, 90 F.3d at 406-07, among other cases). This criticism is ill-founded. The key aspect of the narrow definition is not that the weapon actually be borne on the person. Rather, it is that the weapon remain within easy reach while the individual is in motion.
Bailey is the leading case on section 924(c)(1), so we can also look to how it analyzed "use" for clues to our similar puzzle. The Court first considered the ordinary, dictionary meaning. See 516 U.S. at 143-45, 116 S.Ct. at 506. When that yielded several interpretations — as it does for "carry" — the Court looked to "placement and purpose in the statutory scheme." Id. The Court stressed that since Congress used two distinct terms, they must be defined narrowly enough that neither swallows
Another lesson we draw from Bailey is that, just as "use" may not be defined so broadly as to encompass mere possession, neither may "carry." The Barber interpretation comes dangerously close to doing this by prohibiting possession of a gun in a moving vehicle.
We can also speculate
Other circuits are split on the issue. The Second and Sixth follow the narrow definition. See United States v. Giraldo, 80 F.3d 667, 676 (2nd Cir.1996) ("[A] person cannot be said to `carry' a firearm without at least a showing that the gun is within reach during the commission
On balance, the arguments point to the narrower definition: It fits the more specific dictionary definition, follows Bailey more closely, harmonizes better with the full statute, and flows from the likely purpose of section 924(c)(1). We recognize, though, that reasonable minds may differ. A final argument for the narrower definition is the rule of lenity. Where a criminal law is ambiguous, we are wary of imposing criminal liability for conduct that the law does not clearly prohibit. See Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980); see also United States v. Latimer, 991 F.2d 1509, 1514 (9th Cir.1993) ("The rule of lenity is rooted in `the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.'") (citations omitted).
The rule of lenity applies only where a statute has resisted the ordinary tools of statutory interpretation. See Hanlester Network v. Shalala, 51 F.3d 1390, 1397 (9th Cir.1995) ("Canons of statutory construction, such as the Rule of Lenity, are employed only where `reasonable doubt persists about a statute's intended scope even after resort
We reaffirm our holding in Hernandez and its progeny that "in order for a defendant to be convicted of `carrying' a gun in violation of section 924(c)(1), the defendant must have transported the firearm on or about his or her person.... This means the firearm must have been immediately available for use by the defendant." Hernandez, 80 F.3d at 1258.
General rule in hand, we must next ask whether Foster's gun was immediately available for use.
TROTT, Circuit Judge dissenting, with whom Chief Judge HUG and Judge T.G. NELSON join.
My good friend Judge Kozinski sings a Sirens' song. Nevertheless, I respectfully believe he leads us astray with inventive but obfuscatory conceits. Instead of attacking in a straightforward analytical way the meaning of "carry" in the context of a motor vehicle, he casts the proposition as a "duel" carried on in a language — English no less — too subtle to understand. The everyday bread and butter word "carry" takes on metaphysical proportions so diaphanous and illusive that we throw the rule of lenity as a life raft to sinking drug traffickers. The method Judge Kozinski uses to force his one-size-fits-all conclusion reminds me of a debate a wise lawyer once warned me to eschew: is it midnight gray, or is it battleship gray? Moreover, the majority sidesteps the appropriate appellate review of this issue pursuant to the plain error test, relegating plain error analysis to the afterthought of a footnote. In so doing, the majority permits a defendant who conceded the carrying issue at trial simply to walk away from it on appeal.
This is not a "puzzle," and we do not need "clues" to solve it. It's "carry," that's all, and it's carry in a vehicle during and in relation to a drug trafficking crime. Ambiguous? Slippery? Elusive? Or is this a case of "nothing either good or bad but thinking makes it so."
What does carry mean?
We have a perfectly good case on the books, the Barber case, that not only reaches the right result with respect to the word "carry" in a vehicle case, but illuminates the flaws in Judge Kozinski's analysis. In United States v. Barber, 594 F.2d 1242 (9th Cir. 1979), we addressed the very issue presented here. Barber had been arrested with a gun
Id. at 1244 (emphasis added).
This holding embracing the "transportation test" made as much sense then as it does now. The word "carry" derives etymologically from the Latin word "carrus." Carrus, in turn, means cart, or vehicle. We recognize this Latin root in words such as car, carriage, and cart. Webster's Third New International Dictionary of the English Language Unabridged 343 (3d ed. 1971) ("Webster's"), upon which in its Second Edition the Supreme Court relied in Bailey v. United States, 516 U.S. 137, 143-45, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995) and Smith v. United States, 508 U.S. 223, 229, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993). Webster's defines "carry" as, "1: to move while supporting (as in a vehicle or in one's hands or arms): move an appreciable distance without dragging: sustain as a burden or load and bring along to another place." Webster's at 343. Webster's lists many other definitions of the word and then, in differentiating "carry" from some of its synonyms, states:
Id. (emphasis added).
This definition, therefore, clearly includes the transportation of a firearm by car or by truck; whether the item carried is within reach is irrelevant.
We followed Barber in United States v. Streit, 962 F.2d 894 (9th Cir.1992). In Streit, the defendant was charged inter alia with "carrying" a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Id. at 897. During deliberations, the jury asked whether "holding a gun in one's hand [would] be considered carrying?" The trial court responded with this instruction:
Id. at 899. We approved this instruction, citing Barber as our authority.
In United States v. Hernandez, 80 F.3d 1253 (9th Cir.1996), however, a case not involving a motor vehicle, we failed to acknowledge either Barber or Streit, and we did not confine our untidy holding either to its facts or to its nonvehicular context. This oversight caused us to veer off course in numerous subsequent cases involving firearms in vehicles (car cases) where we applied inappropriately the "immediately available for use" test described in Hernandez. We left Barber's transportation test in the dust, with no explanation or reason given, logical or otherwise. Hernandez gives us a perfectly good test for carrying when vehicles are not involved, but the test fails to give Congressional will its meaning when vehicles are involved. I doubt Congress would recognize Judge Kozinski's distinction as advancing its purpose. Among other glaring defects, it gives drug traffickers the least exposure to the law's reach when they are the most vulnerable to detection by law enforcement.
I am a drug trafficker. You'll find my story in almost every volume of Fed Second and Fed Third. I have plans to deliver the methamphetamine I just cooked to my new customers, so I do what I always do: I take the drugs and my firearm to my car to meet the buyers in some parking lot. I take my weapon, of course, to protect me from a rip off, from disagreements with customers, and from the police.
You circuit judges were correct when you observed that "trafficking in narcotics is very often related to the carrying and use of firearms." United States v. Willis, 899 F.2d 873, 875 (9th Cir.1990) (quoting United States v. Ramos, 861 F.2d 228, 231 n. 3 (9th Cir.1988)). Mine is an outlaw business. We don't rely on the covenant of good faith and fair dealing to keep our business affairs on an even keel. We can't file a lawsuit or call the police when things go sour. The law is no use to us, so self-help — usually with firepower — is the name of the game. If I have to, I might even shoot it out with the police. The new Sentencing Guidelines and those mandatory minimums are rough. In fact, I don't want to have anything to do with the police, so when I get to my car, I stash the gun I am carrying and my drugs somewhere out of sight. Law books and prisons are full of people whose cases started with a traffic stop. Maybe I will put my gun in the trunk or under a seat, but one thing is sure: it will be hidden until I need it. My guns must remain hidden when I'm in public until I need them. Otherwise, they are a ticket to federal prison. My strength becomes my weakness.
But the police who stop us are wise. They know that a firearm and drugs are linked together like a hand in a glove, so sometimes we go to unusual lengths to hide our guns in our cars when we are most vulnerable to detection. On occasion, we hide them not only in the trunk or under the seat, but even under the hood. Yes, under the hood. We "conceal weapons in the engine compartment of a car for two reasons: 1) so that [we can] have ready access to the gun, but police do not easily discover it; and 2) so that [we can] disclaim knowledge of the weapon if police do discover it." United States v. Webb, 115 F.3d 711, 713 (9th Cir.1997). Good luck convincing the jury that a gun under the hood of a rental car or even in the trunk is mine. I may be a criminal, but at least I'm good at it.
So imagine my surprise and delight when I read the majority opinion in this case and learned that although I "carried" my gun to the car "during and in relation to a drug trafficking crime," I was no longer "carrying" the gun as I secretly transported it to the sale because it wasn't "immediately available." Thanks for the distinction. And for the cover. Now we know how to beat 18 U.S.C. § 924(c)(1). Even though it can be proved to the satisfaction of a jury beyond a reasonable doubt that I carried the firearm to stick it in the trunk or under the hood, and that I then transported it during and in relation to my sale of meth, as a matter of law I am beyond the reach of the statute Congress drafted to address this particular
I choose this unorthodox method of exposing the untoward consequences of Judge Kozinski's opinion because I respectfully believe his highly scholastic analysis suffers from a preoccupation with subtlety and is divorced from the real street world of drug traffickers Congress sought to address. Only a person trained in an American law school under the Socratic method could postulate the formal but fanciful freeze-frame distinctions that animate the conclusion that a firearm transported in a drug trafficker's car on the way to a sale is not "carried" by him. The courts are supposed to interpret Congressional will, not contrive sterile artificial lines. The statute we interpret here on its face covers "carrying."
We seem to have a short institutional memory. Once before we impressed a narrow reading on this statute, and the Supreme Court told us we were wrong. In United States v. Phelps, 877 F.2d 28, 30 (9th Cir. 1989), we held that trading a gun in exchange for narcotics could not constitute "use" of a firearm during and in relation to a drug trafficking offense. The Eleventh Circuit disagreed with us in United States v. Smith, 957 F.2d 835 (11th Cir.1992), and to resolve the conflict, the Supreme Court granted certiorari in Smith v. United States, 508 U.S. at 223, 113 S.Ct. at 2050. Rejecting our "fine metaphysical distinction," id. at 240, 113 S.Ct. at 2060, the Court said:
Justice O'Connor held that another flaw in making such a distinction was that it "does violence not only to the structure and language of the statute, but to its purpose as well." Id. at 240, 113 S.Ct. at 2060. "Language," she said, "... cannot be interpreted apart from context." Id. at 229, 113 S.Ct. at 2054.
Smith stands for the proposition that there are different ways within this statute to "use" a gun. One way can be to use it as a weapon, another is to use it as an item of barter. Similarly, I would think that just as there are different ways to use a firearm, there are also different ways to carry it. One way is in your hand, another is to carry it in the trunk of your car.
As for the rule of lenity, Justice O'Connor warned that "the mere possibility of articulating a narrower construction ... does not by itself make the rule of lenity applicable." Id. at 239, 113 S.Ct. at 2059. With all respect to the majority, the use of the rule here is unpersuasive and more makeweight than substance. No drug trafficker in the world (including Foster as shown in his pre-trial memo to the district court) would make this distinction, not one.
I'm at a loss to fathom the compulsion to read "carry" as it relates to vehicles in a constricted manner. The capacity to engage in the midnight gray/battleship gray debate is admirable, but this indulgence simply leads us astray. The irony of the majority's opinion is that it recognizes the weakness of its own cramped analysis when it defines carrying as including beyond on-the-body-possession, possession where the firearm is "immediately
An application of this new test to a usual traffic stop scenario illustrates its fickleness. Suppose an officer asks Foster to step to the rear of his truck while the officer checks his license and runs him for warrants: is Foster now carrying the gun because he is standing right next to it? What if Foster retrieves his license from the zip-up bag containing his firearm, but secretly continues to hide the gun from the officer? Surely under Judge Kozinski's test, he is carrying the firearm as he does so. Is he no longer carrying it if he then moves to the front of the truck or returns to the passenger compartment? All of this makes for fun in the Socratic classroom, but it does not work on the streets of America, which is what Congress had in mind when it drafted this legislation.
Cars, of course, are designed to carry people and things from place to place. Cars function as extensions of the person when it comes to transporting objects. A car is simply a means of transportation — like a holster. The Supreme Court figured this out in Fourth Amendment car search cases. It finally tired of useless differences becoming constitutional distinctions and declared open season on every place and everything in a car that could conceal the object of a search. The Court said, "We conclude [in light of the practical confusion generated by the old rule] that it is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement ... set forth in [Arkansas v.] Sanders [, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979)]." California v. Acevedo, 500 U.S. 565, 579, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991). Given the meaning of "carry" in the vehicular context, this suggests that anywhere in the vehicle will do.
Parenthetically, even if I were to agree with Judge Kozinski's holding, I would still conclude that all guns transported in vehicles during and in relation to a drug crime are "immediately available," or at least that a properly instructed jury could so find. As the car travels with the trafficker, so does the gun.
Thus, the question in a given vehicle case boils down to a matter of proof. If the government can prove that a drug trafficker is transporting a firearm in a motor vehicle during and in relation to a drug trafficking crime, (or that he so carried it when he put it in the vehicle), then "carrying" has been established as has the crime charged. If the proof isn't sufficient, then the requirements of the statute are not satisfied. As then Judge, now Justice Kennedy said, "the `in relation to' language ... make[s] clear ... that a person [cannot] be prosecuted [pursuant to this statute] for committing an entirely unrelated crime while in possession of a firearm." United States v. Stewart, 779 F.2d 538, 539 (9th Cir.1985), overruled on other grounds, Hernandez, 80 F.3d at 1253.
The Supreme Court made similar observation in Smith:
508 U.S. at 232, 113 S.Ct. at 2056 (citations omitted).
What have other circuits said?
Looking at opinions from other circuits, Judge Kozinski concludes they are "all over the map." Once again, only thinking makes it so. He proclaims disarray where there is none, and then uses it as a rationalization for his holding. The First, Fourth, Fifth, Seventh, Eighth, Tenth, Eleventh, and even the Ninth until today all seem to be in general agreement. Here is a summary of what each have to say.
First Circuit: "[W]e agree with the Fourth, Seventh, and Tenth Circuits that a gun may be `carried' in a vehicle for the
Fourth Circuit: "And, because the firearm placed in the trunk of the automobile for the journey to the transfer point [of the sale] is obviously being `carried' under the plain meaning of that term, the firearm does not cease to be `carried' simply because it is not readily accessible to the offender." United States v. Mitchell, 104 F.3d 649, 653-54 (4th Cir.1997).
Fifth Circuit: "When, as here, the defendant knowingly possesses a firearm in a motor vehicle and uses the vehicle during the commission of the underlying crime, then as a matter of law the firearm is carried during a drug-trafficking offence for purposes of § 924(c)." United States v. Muscarello, 106 F.3d 636, 639 (5th Cir.1997), cert. granted, ___ U.S. ___, 118 S.Ct. 621, 139 L.Ed.2d 506 (1997).
Seventh Circuit: "The question before us is not where the gun was located at the time of arrest, but rather did the defendant carry the gun during and in relation to a drug trafficking crime. It does not matter where the gun was at the time of the arrest,.... [W]e need not concern ourselves with the question of whether the gun was within immediate reach. Not only was the gun likely carried in relation to the drug trafficking crime at the time that it was placed in the compartment with drugs, but it was also surely carried in relation to the crime when it was transported in a car in the same compartment that contains drugs possessed with the intent to distribute." United States v. Molina, 102 F.3d 928, 931-32 (7th Cir.1996).
Eighth Circuit: "As we said in Freisinger, [937 F.2d at 387,] `when a motor vehicle is used, carrying a weapon takes on a less restrictive meaning than carrying on the person. The means of carrying is the vehicle.'" United States v. Nelson, 109 F.3d 1323, 1326 (8th Cir.1997) (emphasis added). In fact, "our prior decision in Freisinger, [holding that the common usage of carries includes carrying in a vehicle survives Bailey,] and remains binding precedent on this court." Willis, 89 F.3d at 1379.
Tenth Circuit: "In light of the above, our pre-Bailey cases, correctly interpreted, hold that the government is required to prove only that the defendant transported a firearm in a vehicle and that he had actual or constructive possession of the firearm while doing so.... We see nothing in Bailey that conflicts with our pre-Bailey `vehicular carrying' line of cases." United States v. Miller, 84 F.3d 1244, 1259-60 (10th Cir.1996), overruled on other grounds, United States v. Holland, 116 F.3d 1353 (10th Cir.1997).
Eleventh Circuit: "The evidence presented by the government is enough to support Farris' conviction on the gun charge. The jury heard that Bush originally told agents the gun belonged to Farris; the gun was present in a car from which drugs were being distributed; Farris set up the drug deal and was to make the sale; and Bush never left the car which contained the remaining cocaine and the gun. From this the jury could find that the Toyota was used as a drug distribution center and that Farris knew the firearm was in the automobile. Put differently, the jury could find that the firearm [in the glove compartment] was being carried by Farris[, who was sitting in the backseat,] in the vehicle." United States v. Farris, 77 F.3d 391, 395-96 (11th Cir.1996).
While we have been debating this case en banc, the Supreme Court has granted certiorari in Cleveland and Muscarello. I am certain that our opinions will contribute to a final resolution of this issue.
How did the firearm get in the truck?
Yet another serious problem exists with the majority's resolution of this appeal: they restrict the ultimate question in the case to whether Foster was carrying a gun "when he drove with it in his truck bed." The problem with this freeze-frame formulation, as recognized by the Seventh Circuit in Molina, is that the loaded gun didn't crawl by itself into the truck bed of Foster's car with the incriminating drug paraphernalia — any more than did the O'Haus scale, the baggies, and the price list. To repeat from Molina, "It does
In fact, Foster did not deny that the gun was his or that he possessed it or even that he carried it. Foster alleged only that the "during and in relation" element of the charge was not adequately explained to the jury or proved. In a pre-trial memorandum filed on May 15, 1989, Foster's attorney chose not to contest the carrying element of the charge, and even conceded it with a ploy commonly called confession and avoidance:
One might find it ironic that Foster's lawyer understood his client's involvement with the firearm as "carrying," yet we do not.
Any lingering question about whether Foster was carrying the firearm or whether he put it in the trunk is answered by his testimony on direct examination at the trial:
On cross examination, Foster reaffirmed his knowing possession and transportation of the gun in his truck.
In a footnote I fail to comprehend, Judge Kozinski says, "How do we know that Foster, and not someone else, took the gun to the truck?" One only has to read Foster's testimony and his trial memo to answer this untenable question.
Given the rest of the drug related evidence in the back of the truck and elsewhere, the jury concluded that the gun was related to possession of drugs and conspiracy, both continuing offenses. Foster's attempt to extricate himself from the avalanche of evidence against him by claiming he carried the gun to shoot snakes is hardly credible and did not raise a doubt in the mind of a single juror who heard it. The evidence to support the jury's conclusion is overwhelming, especially when viewed in the light most favorable to it.
Does Foster's appeal survive plain error review?
Here, however, is a serious twist which Judge Kozinski brushes aside in a footnote: Foster did not object at trial to the definition of "carry" being used to convict him or to any aspect of that element of the charge. He failed utterly to challenge its meaning and focused instead as promised in his trial memorandum on whether the government could prove the "during and in relation to" element. Thus, assuming that Judge Kozinski is correct in his new definition of "carry" and that an error has become "plain" on appeal, Foster's failure to object requires us to subject this issue to plain error analysis
Johnson, ___ U.S. at ___, 117 S.Ct. at 1548 (citations omitted).
After Olano and Johnson, I beg to differ with Judge Kozinski's assertion that our review of this case is somehow independent of Rule 52(b).
Johnson, ___ U.S. at ___, 117 S.Ct. at 1548 (emphasis added). I find it surprising that we defy Johnson less that a year after it was decided. Johnson was a bucket of cold water in our face to remind us of the statutory limits on our authority.
In a nutshell, assuming that Foster was the victim of plain error as to "carry," I would still refuse under Olano to exercise our discretion to reverse. Given (1) the overwhelming concrete evidence of guilt, (2) the sensible observation in Molina that whoever put the gun in the car surely carried it, in this case Foster, and (3) Foster's unpersuasive defense that although he "carried" the gun in his car — his own lawyer's words — he did not do so "during and in relation to" a drug trafficking crime, Foster's conviction was not a miscarriage of justice. I am convinced beyond all doubt that the "error" does not seriously affect the "fairness, integrity, or public reputation" of this or any other judicial proceeding. See United States v. Olano, 62 F.3d 1180, 1188 (9th Cir.1995) (on remand from the Supreme Court); Johnson, ___ U.S. at ___, 117 S.Ct. at 1546; United States v. Perez, 116 F.3d 840, 846 (9th Cir. 1997) (en banc); United States v. Uchimura, 125 F.3d 1282, 1286-87 (9th Cir.1997).
At the very least, I would remand this case for a new trial on carrying so that the government can have an opportunity — now that we have changed the law — to use the Molina theory to try to convict him. Judge Kozinski's reason for refusing to do this is really quite arresting: the government has not asked for this opportunity. Of course! The government relied at trial in 1989 and relies here on appeal on Barber and Streit — and quite properly so. Foster did not even contest carrying at trial. We are the ones improvidently pulling that rug out from under them, and we now rely on our alteration of the law and post facto undoing of cases to deny the government the opportunity to adjust its case to our new holding. It is only "too late in the day" because of our inability to provide coherent and stable direction to the parties. Such a holding is the apotheosis of imperiousness.
I conclude with an excerpt from an article written by Judge Robert Gardner, once the
Robert Gardner, Gavvy Cravath — An Orange County Original.
I respectfully dissent.