conspiracy, including violations of 18 U.S.C. § 924(c)(1)." United States v. Monroe, 73 F.3d 129, 132 (7th Cir. 1995).
The government concedes that Defendants' challenges to the Count 2 conviction are meritorious. "Bailey makes clear that, contrary to the jury instructions given by the . . . court, it is not enough that the weapon facilitates the drug offense by emboldening the defendant." United States v. Smith, 80 F.3d 215, 220 (7th Cir. 1996). The Count 2 gun was found concealed in a folded pair of pants placed on top of a heater inside of the garage. Thus, as the government acknowledges, neither Defendant "used" or "carried" the Count 2 gun. Accordingly, the court vacates the conviction and sentences relating to Count 2.
Kerley and Hernandez also argue that the Bailey decision requires the court to vacate the Count 3 convictions and sentences. The court acknowledges that the Count 3 jury instruction is now improper in light of the Bailey decision. However, an erroneous jury instruction is harmless if, looking at the instructions and record as a whole, the court is convinced that a properly instructed jury would have reached the same verdict. United States v. Williams, 33 F.3d 876, 879 (7th Cir. 1994).
After the Bailey decision, the Seventh Circuit Court of Appeals affirmed the vitality of the Pinkerton Doctrine. In United States v. Monroe, 73 F.3d 129, 132 (7th Cir. 1995), the Seventh Circuit specifically found Bailey to have no effect on co-conspirator liability under 18 U.S.C. § 924(c)(1). See also United States v. Thomas, 86 F.3d 647, 651 n.6 (7th Cir. 1996) (holding that the defendants' argument that they did not personally use or carry any firearms to be of no relevance because the "argument . . . completely ignores the Pinkerton doctrine, which makes defendants liable for the actions of their co-conspirators that were done in furtherance of the conspiracy."). If sufficient evidence exists to find one member of the conspiracy liable for the "use" or "carrying" of a handgun in relation to a drug trafficking crime, then the Pinkerton Doctrine applies and all co-conspirators are also liable for the § 924(c)(1) violation. Monroe, 73 F.3d at 133. Thus, since the jury found Kerley and Hernandez guilty of Count 1, the conspiracy count, it follows that Kerley and Hernandez are criminally responsible for the acts of Williams.
The evidence at trial demonstrated that the Count 3 gun was tucked into the waistband of Williams' pants. The concealment of a handgun on a defendant's person is certainly a violation of § 924(c)(1); Williams "carried" the gun according to the Seventh Circuit's definition of "carry." United States v. Smith, 80 F.3d 215, 221 (7th Cir. 1996) ("[a] defendant may be convicted for "carrying" a firearm even if the firearm was not found on the defendant's person"). Because Williams "carried" a gun in violation of § 924(c)(1), Kerley and Hernandez are also criminally liable for the same violation. Accordingly, since the evidence at trial left no doubt that Williams "carried" a handgun while in the commission of a drug sale, the court finds the erroneous jury instruction to be harmless, denies Defendants' motions and affirms the Count 3 convictions and sentences.
The court vacates the Count 2 conviction and sentence as to both Kerley and Hernandez. However, the trial evidence leaves no doubt that a properly instructed jury would have found Kerley and Hernandez guilty of Count 3 since Williams clearly "carried" a handgun during and in relation to a drug trafficking offense. Accordingly, the court grants the motions in part, with regard to Count 2, and denies them as to Count 3.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court
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