VOLUME 8 - CHAPTER 117
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117.3 Use Or Carrying Of A Weapon Or Firearm: Defenses And Defense Theories

    117.3.1 Use Or Carrying Of A Weapon Or Firearm: Defense Theory That Mere Possession Of The Weapon Was Not "Active Employment"
    117.3.2 Use Of Firearm: Lack Of Personal Use As Defense Theory
    117.3.3 Use Of Firearm: Defense Theory That Display Of Firearm Did Not Include Express Or Implied Threat To Use The Firearm
    117.3.4 Use Or Carrying Of A Weapon Or Firearm: Not Applicable To Exfelon In Possession Of A Firearm
    117.3.5 Use Or Carrying Of A Weapon Or Firearm: Lack Of Nexus Between The Weapon And The Crime As Defense Theory
    117.3.6 Use Or Carrying Of A Weapon Or Firearm: Additional Defenses And Defense Theories

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RATIONALE: The jury should not be permitted to find that the defendant "used" a firearm in the commission of a crime unless it finds that the defendant "actively employed" the firearm in the commission of the crime.

POINTS AND AUTHORITIES: Bailey v. United States (1995) 516 US 137 [116 SCt 501; 133 LEd2d 472], held that the term "use a firearm" in the federal statute proscribing use of a firearm in relation to a drug trafficking crime or crime of violence (18 USC 924 (c)(1)) requires that the defendant actively employed the firearm in the commission of the crime. Hence, use is more than mere possession or having the firearm available during the crime. (U.S. v. Bailey (DC Cir. 1994) 36 F3d 106, 109; accord, U.S. v. Castro-Lara (1st Cir. 1992) 970 F2d 976, 983; U.S. v. Theodoropoulos (3rd Cir. 1989) 866 F2d 587, 597-598; United States v. Wilson (5th Cir. 1989) 884 F2d 174, 177.) "Active employment" includes acts such as brandishing, displaying, referring to, bartering, striking with, firing, or attempting to fire the firearm. (Bailey, 516 US at 148-49; see also O’Malley Grenig, & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS (West, 5th ed. 2000) § 36.20 [discussing numerous cases involving Bailey].)

    See also FORECITE National™ 117.3.2 [Use Of Firearm: Lack Of Personal Use As Defense Theory].

    See also FORECITE National™ 117.3.3 [Use Of Firearm: Defense Theory That Display Of Firearm Did Not Include Express Or Implied Threat To Use The Firearm].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.8].

See 1st Circuit Pattern Jury Instructions - Criminal 4.07.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.48.

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RATIONALE: Without special instruction the jury may improperly find a firearm use without finding that the defendant personally used the firearm.

POINTS AND AUTHORITIES: In California, a firearm enhancement requires that the defendant personally use the firearm. (People v. Walker (CA 1976) 18 C3d 232, 240-43 [133 CR 520].) Hence, in cases where the court has also instructed the jury on aiding and abetting, the standard instruction should be clarified to assure that the jury does not use the "equally guilty" language of the aiding and abetting instruction to impute the perpetrator's gun used to the aider and abetter. Without such clarification, rational jurors, under the accomplice liability instructions, will hear that since an accomplice is guilty as a principal, they may impose a "personal use" enhancement on one who aids and abets a "personal user" in the underlying substantive crime. Hence, without an explanatory instruction, there is a danger that the defendant's constitutional right to a jury resolution of all necessary elements of the charge will be implicated.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.8].

See 1st Circuit Pattern Jury Instructions - Criminal 4.07.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.48.

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RATIONALE: The concept of use of a weapon necessarily implies intent. Therefore, the jury should be required to find that the display of the weapon was intentional.

POINTS AND AUTHORITIES: Negligent or involuntary discharge of a firearm not otherwise being used against a human being should not constitute a "use" of the firearm for enhancement purposes. (People v. Southack (CA 1952) 39 C2d 578, 591 [248 P2d 12]; People v. Alotis (CA 1964) 60 C2d 698, 707 [36 CR 443].)  Thus, in California, use of a firearm requires "some type of display of the weapon, coupled with a threat to use it ...." (People v. Jacobs (CA 1987) 193 CA3d 375, 381 [238 CR 278]; see also People v. Johnson (CA 1995) 38 CA4th 1315 [45 CR2d 602]; Bailey v. U.S. (1995) 516 US 137, 150 [116 SCt 501; 133 LEd2d 472] [federal firearm use enhancement provision relating to drug offenses (18 USC 924(c)(1)) requires the defendant to have "actively employed the firearm during and in relation to the predicate crime"].) Thus, a mere "menacing" display of a weapon is not sufficient to constitute a "use." Rather, the display must be coupled with a threat. While the threat may be implied from conduct (see People v. Granado (CA 1996) 49 CA4th 317, 325 [56 CR2d 636] [jury may find "facilitative use" from intentional display or exposure of firearm]), it will generally take the form of "words." (Jacobs, 193 CA3d at 381.)

    See also FORECITE National™ 117.3.5 [Use Or Carrying Of A Weapon Or Firearm: Lack Of Nexus Between The Weapon And The Crime As Defense Theory].

NOTE: "Display" does not connote that the complaining witness must see the firearm. (Granado, 49 CA4th at 326-29.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.8].

See 1st Circuit Pattern Jury Instructions - Criminal 4.07.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.48.

    The term used a firearm, as used in this instruction, means to intentionally fire a firearm, to intentionally strike or hit a human being with a firearm, or to display a firearm in conjunction with an express or implied threat that it will be used.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.19 [Personal Use Of Firearm] (West, 6th Ed. 1996).]

    The mere presence of a firearm, without more, is not sufficient to prove that the defendant used the firearm.  Rather, the prosecution must prove beyond a reasonable doubt that the defendant actively employed the firearm.  If, after considering all the evidence, you have a reasonable doubt that the defendant actively employed the firearm during the alleged offense, you must find that the firearm was not used.

[Source: FORECITE National™.]

    Title 18, United States Code, Section 924(c)(1), makes it a separate Federal crime or offense for anyone to [use] [carry] a firearm during and in relation to a [drug trafficking crime] [crime of violence].

    The Defendant can be found guilty of that offense as charged in Count of the indictment only if all of the following facts are proved beyond a reasonable doubt:

    First: That the Defendant committed the [drug trafficking offense] [crime of violence] charged in Count of the indictment;

    Second: That during and in relation to the commission of that offense the Defendant [used] [carried] a firearm, as charged; and

    Third: That the Defendant [used] [carried] the firearm knowingly.

    The term "firearm" means any weapon which is designed to, or may readily be converted to, expel a projectile by the action of an explosive; and the term includes the frame or receiver of any such weapon or any firearm muffler or firearm silencer.

    [To "use" a firearm means more than mere possession of a firearm. It must be shown that the Defendant actively employed the firearm by brandishing, displaying, bartering, striking with, or firing or attempting to fire the firearm; but it may also include the mere mention or disclosure of the firearm's presence in a manner intended to intimidate or influence others.]

    [To "carry" a firearm means that the Defendant either had a firearm on or around [his] [her] person or transported, conveyed or possessed a firearm in such a way that it was available for immediate use if the Defendant so desired.]

    The phrase "during and in relation to" the commission of an offense means that there must be a connection between the Defendant, the firearm and the [drug trafficking crime] [crime of violence] so that the firearm facilitated the crime by serving some important function or purpose of the criminal activity.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Offense Instructions 31 [Carrying/Using Firearm In Relation To A Drug Trafficking Offense Or Crime Of Violence] 18 USC § 924(c)(1)](1997).]

    To prove the defendant "used" a firearm in relation to a drug trafficking crime, the government must prove that the defendant actively employed the firearm in the commission of Count ___, such as a use that is intended to or brings about a change in the circumstances of the commission of Count ___. "Active employment" may include brandishing, displaying, referring to, bartering, striking with, firing, or attempting to fire the firearm. Use is more than mere possession of a firearm or having it available during the drug trafficking crime.

[Source: 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.48 [Using/Carrying A Firearm During Commission Of A Drug Trafficking Crime Or Crime Of Violence] (2001).]

    [The phrase "used [a] firearm[s]" means that the firearm was actively employed in the course of the commission of the (insert crime[s]). You may find that a firearm was used during the commission of the crime[s] of (insert crime) if you find that (it was [brandished] [displayed] [bartered] [used to strike someone] [fired]) (the defendant [attempted to fire the firearm] [traded or offered to trade a firearm without handling it] [made references to a firearm that was in the defendant's possession]) (describe other conduct consistent with the active-employment use of a firearm).]

    (Insert paragraph describing Government's burden of proof.)

[Source: 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 6.18.924C [FIREARMS-CRIME OF VIOLENCE/DRUG TRAFFICKING (18 USC 924(c)) ] (2000).]

    A defendant uses a firearm when he/she actively employs it in some way that is related to the [drug] [violent] crime that he/she is committing. ["Use" may include [brandishing] [displaying] [trading or attempting to trade] [striking with] [firing or attempting to fire] a firearm] [making reference to a firearm in the defendant's possession.] [Mere presence of a firearm at the scene of the crime without active employment of that kind is not sufficient to constitute use of that firearm.]

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 18 USC 924(C) [Definition of "Use"] (1999).]

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PRACTICE NOTE: In In re Pritchett (CA 1994) 26 CA4th 1754, 1757 [33 CR2d 296], the court held that a defendant who is convicted of being an exfelon in possession of a weapon may not also receive a use enhancement. This is so because the defendant's possession of the weapon was complete without use of it and any subsequent use during the possession did not constitute use "in the commission" of the crime of possession which was already complete. (Ibid.)

See 1st Circuit Pattern Jury Instructions - Criminal 4.07.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.48.

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RATIONALE: Without an explanatory instruction the jury may not understand that a weapon enhancement cannot be found unless the weapon facilitated commission of the predicate offense.

POINTS AND AUTHORITIES: "When a defendant is charged with committing a crime while possessing a dangerous weapon...the state should be required to prove that the defendant possessed the weapon to facilitate commission of the predicate offense." (State v. Peete (WI 1994) 517 NW2d 149, 154.) While this "nexus" is always present when the offense involves use or threatening to use a weapon, further definition is needed when the charge is "possessing" or being armed with the weapon. (See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 990 [Using Or Possessing A Dangerous Weapon] comment p. 3 (University of Wisconsin Law School, 2000); see also State v. Howard 564 NW2d 753, 764 [harmless error analysis could not be applied to excuse complete absence of jury instructions on nexus requirement].)

    Similarly, in the context of weapon use People v. Poindexter (CA 1989) 210 CA3d 803, 808 [258 CR 680] held that "use" means that there must be a "nexus between the offense and [the item at issue] ... [such that the item] was ... an instrumentality in the crime." Other decisions have referred to "conduct which produces a fear of harm or force by means or display of a [weapon] in aiding the commission of [the crime]." (People v. Chambers (CA 1972) 7 C3d 666, 672 [102 CR 776]; see also People v. Lerma (CA 1996) 42 CA4th 1221, 1226 [50 CR2d 580].)

    Accordingly, this nexus element should be explained to the jury.

    See also FORECITE National™ 117.3.1 [Use Or Carrying Of A Weapon Or Firearm: Defense Theory That Mere Possession Of The Weapon Was Not "Active Employment"].

    Similarly, the phrase "in relation to" as used in the federal firearm statute (18 USC 924) "at a minimum, clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence....Instead, the gun at least must 'facilitate, or have the potential of facilitating,' the drug trafficking offense." (U.S. v. Regans (8th Cir. 1997) 125 F3d 685, 686, citing Smith v. U.S. (1993) 508 US 223 [113 SCt 2050; 124 LEd2d 138].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.8].

See 1st Circuit Pattern Jury Instructions - Criminal 4.07.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.48.

    The term "used" a deadly or dangerous weapon in the [attempted] commission of the charged crime[s] as used in this instruction, means that the weapon must have been an instrumentality in the crime which aided the commission of the crime.

[Source: FORECITE National™.]

    To find that the defendant committed the crime while armed with a dangerous weapon, you must find beyond a reasonable doubt that the prosecution has proven that the defendant committed the crime while possessing a dangerous weapon and possessed the dangerous weapon to facilitate the crime.

[See generally State v. Peete (WI 1994) 517 NW2d 149, 154; cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 990 [Using Or Possession A Dangerous Weapon] para. 4 (University of Wisconsin Law School, 1999).]

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

See 1st Circuit Pattern Jury Instructions - Criminal 4.07.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.48.