United States v. Foster

133 F.3d 704 (9th Cir. 1998)

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Nature of the Case

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Facts

D and Sandra Ward manufactured methamphetamine. In 1989 the police pulled D 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. D and Ward were convicted of conspiracy to manufacture and distribute methamphetamine. D was also convicted of possessing methamphetamine, and of carrying a firearm during and in relation to a drug trafficking crime. D appealed the conviction for carrying a firearm. The appeals court overturned the conspiracy conviction in an unpublished memorandum disposition, but that decision was vacated, United States v. Foster, 513 U.S. 983 (1994). On remand, the appeals court affirmed across the board. United States v. Foster, 57 F.3d 727, 729 (9th Cir. 1995). The Supreme Court then decided Bailey v. United States, 516 U.S. 137 (1995), which interpreted the 'uses . . . a firearm' prong of section 924(c)(1). D 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. However, D was never charged with using - only with carrying - and Bailey does not authoritatively answer whether he can be convicted of carrying a firearm. A 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Bailey, holding that Foster did not carry the gun, United States v. Foster, 96 F.3d 1177 (1996), but that opinion was withdrawn. The circuit took the case en banc to resolve a conflict over the interpretation of carrying a firearm when a gun is found in a vehicle.