Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 95-CR-30009 Paul E. Riley, Judge.
Before POSNER, Chief Judge, FLAUM and RIPPLE, Circuit Judges.
Following a jury trial, Kendrick Holmes was convicted of conspiracy to distribute marijuana (21 U.S.C. secs. 841 and 846), possession with intent to distribute (18 U.S.C. sec. 841(a)(1)), and using or carrying a firearm during, and in relation to, a drug trafficking crime (18 U.S.C. sec. 924(c)(1)). Mr. Holmes challenges his conviction under section 924(c)(1) based upon the Supreme Court's decision in Bailey v. United States, 116 S. Ct. 501 (1995). For the reasons given in the following opinion, we reverse Mr. Holmes' conviction on that charge and remand this matter to the district court for a new trial.
Mr. Holmes rented a house in East St. Louis, Illinois and sold marijuana from that location. During the investigation of his activities, the police gave $100 to Sean Hampton, an informant, to buy drugs at Mr. Holmes' house where Hampton previously had purchased drugs. Hampton passed the money through the mail slot, the door opened, and he moved inside. He purchased ten "dime" bags of marijuana, which he later surrendered to the police. While inside, Hampton saw a gun clearly visible on the couch.
A month later, the police executed a search warrant at Mr. Holmes' house. In the search, the police arrested Mr. Holmes, Deveon Matlock, Delano Perry and Tommie Sain. The police also recovered five videotapes, marijuana, currency and a .9mm Stallard Arms pistol and ammunition. The pistol, along with the ammunition, was discovered on top of the trash in the kitchen.
Mr. Holmes and his three coconspirators were each charged in a three-count indictment. Tommie Sain pleaded guilty to all three counts of the indictment before trial and testified on behalf of the government against Mr. Holmes. He said that he had been to Mr. Holmes' house at least twenty times. According to Sain's testimony, the firearm discovered during the search belonged to Sain. When the police entered Mr. Holmes' house, Sain had grabbed the gun from under the pillow on the couch on which he was sitting and, as he ran toward the kitchen, threw the gun in the trash. Sain stated that he carried the gun to protect himself and that he carried the gun on his person while he "worked the door" at Mr. Holmes' house. Moreover, he had told Mr. Holmes that he had the gun and that, on one occasion, he had hidden the gun under Mr. Holmes' mattress.
Additional evidence seized from the house revealed the presence of other weapons. The videos recovered by the police during the search showed unindicted coconspirators working the door while displaying a .44 caliber handgun and a .357 caliber handgun.
The jury was instructed that Mr. Holmes could be found guilty under section 924(c)(1) if his coconspirators used or carried firearms during the course of the conspiracy. See United States v. Diaz, 864 F.2d 544, 549 (7th Cir. 1988), cert. denied, 490 U.S. 1070 (1989). Mr. Holmes was convicted of all three counts and sentenced to a total of sixty-eight months of incarceration. His appeal challenges his conviction for the firearms offense.