131 F.

3d 375

UNITED STATES of America, Plaintiff-Appellee,

v.
Chang Han CHEN, a/k/a # 34, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Chong Chao CHEN, a/k/a # 21, Defendant-Appellant.
Nos. 95-5036, 95-5042.

United States Court of Appeals,

Fourth Circuit.
Argued April 8, 1997.
Decided Oct. 31, 1997.

ARGUED: Fred Warren Bennett, Catholic University Law School,

Washington, DC, for Appellants. Andrew George Warrens Norman, Asst.
U.S. Atty., Baltimore, Maryland, for Appellee. ON BRIEF: Daniel W.
Stiller, Baltimore, Maryland; Michael L. Soshnick, Mineola, New York;
James C. Savage, Law Offices of James Savage, P.A., Rockville,
Maryland, for Appellants. Lynne A. Battaglia, U.S. Atty., Virginia B.
Evans, Asst. U.S. Atty., Baltimore, Maryland, for Appellee.
Before WILKINSON, Chief Judge, and RUSSELL, WIDENER, HALL,
MURNAGHAN, WILKINS, NIEMEYER, HAMILTON, LUTTIG,
WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, sitting en banc.
Affirmed by published opinion. Judge WILLIAMS wrote the opinion in
which Chief Judge WILKINSON and Judges RUSSELL, WIDENER,
HALL, MURNAGHAN, WILKINS, NIEMEYER, HAMILTON,
LUTTIG, MICHAEL, and MOTZ joined. Judge WILLIAMS wrote a
concurring opinion, in which Chief Judge WILKINSON and Judges
RUSSELL, WILKINS, NIEMEYER, and LUTTIG joined.
OPINION
WILLIAMS, Circuit Judge:

We granted en banc review in this case to determine whether the convictions

and sentences of Chong Chao Chen ("Chong") and Chang Han Chen
("Chang"), members of an alien-smuggling ring, should stand.1 Chong and
Chang were convicted by a jury of using or carrying a firearm, or aiding and
abetting the same, during a crime of violence, see 18 U.S.C.A. 2, 924(c)(1)
(West Supp.1997). On appeal, they contend that their 924(c)(1) convictions
must be vacated because the district court misinstructed the jury in light of the
Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct.
501, 133 L.Ed.2d 472 (1995), which, subsequent to their convictions, clarified
the meaning of "use" under the statute. By an equally divided court we affirm
their 924(c)(1) convictions.

In addition to being convicted of violating 924(c)(1), Chong and Chang were

convicted of conspiracy to kidnap, see 18 U.S.C.A. 1201(c) (West 1984);
kidnapping, see 18 U.S.C.A. 2 (West 1969), 1201(a) (West 1984 &
Supp.1997); hostage taking, see 18 U.S.C.A. 2, 1203 (West Supp.1997);
conspiracy to interfere with commerce by threats or violence, see 18 U.S.C.A.
1951(a) (West Supp.1996); conspiracy to transport and harbor aliens, see 18
U.S.C.A. 371 (West 1966 & Supp.1997); alien harboring, see 8 U.S.C.A.
1324(a)(1)(A)(iii) (West Supp.1997), 18 U.S.C.A. 2; and collecting extension
of credit by extortionate means, see 18 U.S.C.A. 2, 894 (West 1976 &
Supp.1997). Chong also was convicted of bringing in aliens, see 8 U.S.C.A.
1324(a)(1)(A)(i) (West Supp.1997), 18 U.S.C.A. 2; and transporting aliens,
see 8 U.S.C.A. 1324(a)(1)(A)(ii) (West Supp.1997), 18 U.S.C.A. 2. For
these crimes, and for their 924(c)(1) convictions, the district court sentenced
Chong to 322 months imprisonment and Chang to 168 months imprisonment.
Chong and Chang claim that they are entitled to new trials because of
numerous procedural errors made by the district court, and to new sentences
because the district court erroneously increased their offense levels under
various provisions of the Sentencing Guidelines. We reject their contentions
and affirm their convictions and sentences.

I.
3

In January 1994, approximately 105 Chinese nationals from the People's

Republic of China boarded a Taiwanese ship headed for the United States. The
Chinese nationals had agreed to pay from $20,000 to $28,000 each to be
smuggled into the United States by members of an alien-smuggling ring. The
Chinese nationals were told by the smugglers that they could pay this
"transportation" fee over time, and that after arriving in the United States they
immediately would be free to work and earn money. After spending nearly 70
days at sea, the Chinese nationals were loaded onto a fishing vessel and

smuggled into the United States at Cape May, New Jersey. From there, they
were taken to Prince George's County, Maryland, where they were confined in
two safehouses--one in Upper Marlboro and one in Mitchelville.
4

In March 1994, agents of the Federal Bureau of Investigation (FBI) and the
Immigration and Naturalization Service (INS) learned from wiretaps that
numerous Chinese nationals were being held hostage in the United States. On
April 5, 1994, pursuant to valid search warrants, FBI and INS agents raided
three residences in Prince George's County, Maryland, and one in Queens, New
York. As a result of the searches, the FBI and INS learned that the smugglers
were holding the Chinese nationals hostage and forcing them to raise ransom
money from relatives in China.

The smugglers confined most of the hostages in a house in Mitchelville,

Maryland, locking them in a squalid basement and holding them captive at
gunpoint for 15 days. Armed guards routinely beat the hostages and otherwise
intimidated them in an effort to get them to raise ransom money. To escape the
brutality of the guards, the hostages raised money by telephoning their relatives
in China and begging them to borrow money from Chinese loansharks. At trial,
hostages testified that it was only when they arrived at the Mitchelville house
that they realized they would be confined and tortured until their
"transportation" fee had been paid in full. Forty-five of the hostages were able
to raise the ransom money and were driven by the smugglers to a safehouse in
Queens. From there, they disappeared into the community.

At the Mitchelville house, the remaining hostages were forced to sleep in rows
on the floor in the basement, to urinate in a can, to remain silent at all times,
and to stay in the basement unless escorted by an armed guard. The floor was
littered with mats, pieces of plywood, sheet rock, clothing, and blankets, and the
windows were covered with black plastic and boarded up. During the search,
agents discovered handcuffs and a cache of weapons that contained loaded
sawed-off shotguns and semiautomatic pistols. The agents also discovered
ledgers detailing both the names of the hostages and how much each owed or
had paid to the smugglers.

Appellant Chong, a permanent resident alien of the United States, was one of
the leaders of the smuggling ring. When the hostages came into the United
States, he was in charge of the guards at the safehouse in Upper Marlboro, and
he later managed the guards at the house in Mitchelville. Appellant Chang, who
was from the same Chinese village as Chong, was himself one of the Chinese
nationals smuggled in as part of the venture. He paid only a part of the ransom
he owed and agreed to work as an armed guard at the Mitchelville house under

Chong's supervision to satisfy the remainder of his debt. The jury determined
that Chong was guilty of all counts charged in the indictment and that Chang
was guilty of all counts except bringing in and transporting illegal aliens.
II.
8

Chong and Chang argue that their convictions for using or carrying a firearm
during a crime of violence, see 18 U.S.C.A. 924(c)(1), must be vacated
because the district court misinstructed the jury in light of Bailey v. United
States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). By an equally
divided court, we affirm Appellants' convictions for violating 924(c)(1).
Chief Judge Wilkinson, and Judges Russell, Wilkins, Niemeyer, Luttig, and
Williams vote to affirm the convictions. Judges Widener, Hall, Murnaghan,
Hamilton, Michael, and Motz vote to reverse the convictions.

III.
9

Chong and Chang also argue that they are entitled to new trials because
numerous procedural errors were made by the district court. First, they argue
that they are entitled to new trials because the Government failed to comply
with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),
and the Jencks Act, 18 U.S.C.A. 3500 (West 1985), by not providing a
transcript copy of a witness's prior testimony in a juvenile proceeding.2 We
disagree. The Government did not have custody of a transcript of the sealed
juvenile proceedings. Under the Jencks Act, the Government is not required to
produce a copy of a witness's prior statements not in its possession. See 18
U.S.C.A. 3500(b) (requiring Government to produce any statement of the
witness in the possession of the United States).

10

Second, Chong and Chang argue that the district court erred in permitting the
testimony of codefendants who sat through part of the trial prior to reaching
plea agreements with the Government, and in failing to give a cautionary
instruction to the jury regarding codefendant testimony. After carefully
reviewing the record and the parties' briefs, hearing argument on this issue, and
applying the proper standard of review, we reject Appellants' contentions. See
United States v. Blevins, 960 F.2d 1252, 1260-61 n. 3 (4th Cir.1992) (rejecting
challenge to admission of testifying codefendant's guilty plea); United States v.
Gambino, 926 F.2d 1355, 1364 (3rd Cir.1991) (stating that mistrial is not
required when codefendant changes plea and testifies against remaining
defendants); United States v. Herrera, 832 F.2d 833, 836-37 (4th Cir.1987)
(stating that mistrial is not necessarily required when codefendant changes plea
during trial).

11

Finally, Chong and Chang argue that the Government exercised its peremptory
challenges in a discriminatory manner in violation of Batson v. Kentucky, 476
U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by striking three black
prospective jurors. Our careful review of the record, however, reveals that the
Government's reasons for striking the prospective jurors were race-neutral. See
id. at 89, 106 S.Ct. at 1719 (noting that the demeanor of a potential juror
provides an acceptable basis for exercising a peremptory challenge); United
States v. Contreras-Contreras, 83 F.3d 1103, 1105-06 (9th Cir.) (holding that
prior jury service is a race-neutral explanation for a peremptory strike), cert.
denied, --- U.S. ----, 117 S.Ct. 259, 136 L.Ed.2d 184 (1996); United States v.
Darden, 70 F.3d 1507, 1531-32 (8th Cir.1995) (holding that lack of experience
is a race-neutral explanation for a strike), cert. denied, --- U.S. ----, 116 S.Ct.
1449, 134 L.Ed.2d 569 (1996). Accordingly, we affirm Appellants' remaining
convictions.

IV.
12

Chong and Chang also challenge their sentences. Both argue that the district
court erroneously increased their offense levels three points because some of
the Chinese nationals held hostage were minors. See U.S. Sentencing
Guidelines Manual 2A4.1(b)(6) (1995). Chong contends that the district court
erroneously increased his offense level two points because a hostage suffered
serious bodily injury. See U.S.S.G. 2A4.1(b)(2)(B). Chang argues that the
district court erred in refusing to authorize a mental health examination prior to
his sentencing. Such an examination, he argues, would have established that he
was eligible for a downward departure under the Sentencing Guidelines. See
U.S.S.G. 5K2.12 (coercion and duress). Chang also complains that the district
court erroneously increased his offense level six points for demanding ransom.
See U.S.S.G. 2A4.1(b)(1). After carefully reviewing the record and the
parties' briefs, hearing argument on these issues, and applying the proper
standard of review, we conclude that Appellants' challenges to their sentences
are without merit. See generally United States v. Davis, 19 F.3d 166, 171 (5th
Cir.1994) (affirming enhancement for "serious bodily injury"); United States v.
Graham, 946 F.2d 19, 22 (4th Cir.1991) (holding that a district court's refusal to
depart from the Sentencing Guidelines is unreviewable); United States v.
Gonzales, 996 F.2d 88, 93-94 (5th Cir.1993) (discussing enhancement for
ransom demand); United States v. Rocha, 916 F.2d 219, 242-44 (5th Cir.1990)
(same). We therefore affirm their sentences.

V.
13

Appellants' convictions for using a firearm during a crime of violence in

violation of 18 U.S.C.A. 924(c)(1) are affirmed by an equally divided court.

We affirm their remaining convictions, and we affirm their sentences.
14

AFFIRMED.
WILLIAMS, Circuit Judge, concurring:

15

Appellants' 924(c)(1) convictions have been affirmed by the vote of an

equally divided court. Six members of the Court have voted, without
explanation, to reverse Appellants' 924(c)(1) convictions. I write separately to
explain why I am firmly convinced that the facts of this case and controlling
Supreme Court (and Fourth Circuit) precedent compel the affirmance of
Appellants' 924(c)(1) convictions, and why I have voted accordingly. Chief
Judge Wilkinson, and Judges Russell, Wilkins, Niemeyer, and Luttig join this
opinion.

16

A nearly unanimous Supreme Court stated recently, in a manner that leaves no

room for doubt, that a district court's misdescription of an essential element of a
crime in its instructions to the jury is amenable to harmless-error analysis. See
Johnson v. United States, --- U.S. ----, ----, 117 S.Ct. 1544, 1550, 137 L.Ed.2d
718 (1997) (citing Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d
432 (1991); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d
218 (1989); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439
(1987); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)).
To conclude otherwise in this en banc case would require me to ignore a clear
holding of the Supreme Court. This I refuse to do.

I.
17

Chong and Chang argue that their 924(c)(1) convictions for using or carrying
a firearm during a crime of violence must be vacated because the district court
misinstructed the jury in light of Bailey v. United States, 516 U.S. 137, 116
S.Ct. 501, 133 L.Ed.2d 472 (1995).1 Chong and Chang, however, did not object
to the instructions on 924(c)(1) given to the jury. The Federal Rules of
Criminal Procedure provide: "No party may assign as error any portion of the
[jury] charge or omission therefrom unless that party objects thereto before the
jury retires to consider its verdict, stating distinctly the matter to which that
party objects and the grounds of the objection." Fed.R.Crim.P. 30.
Nevertheless, under Federal Rule of Criminal Procedure 52(b), Courts of
Appeals may notice, in their discretion, "[p]lain errors or defects affecting
substantial rights," even though no objection was made. See Johnson v. United

States, --- U.S. ----, ----, 117 S.Ct. 1544, 1548, 137 L.Ed.2d 718 (1997); United
States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d
508 (1993). Therefore, review of Appellants' convictions must be for plain
error under Rule 52(b).2
18

Rule 52(b) contains four elements that must be satisfied before an appellate
court may notice an error not preserved by a timely objection: (1) the asserted
defect in the trial proceedings must, in fact, be error; (2) the error must be plain;
and (3) it must affect the substantial rights of the defendant. See Olano, 507
U.S. at 732, 113 S.Ct. at 1776-77. "If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited error, but only if (4)
the error seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings." Johnson, --- U.S. at ----, 117 S.Ct. at 1549 (quotations
omitted) (alteration in original).

A.
19

The first showing required by Rule 52(b) is that an error occurred in the
proceedings below. See Olano, 507 U.S. at 732-33, 113 S.Ct. at 1776-77. The
district court instructed the jury that Appellants did not need to actively employ
a firearm to violate 924(c)(1).3 This expansive interpretation of "use" was
consistent with the prevailing view in this Circuit that inactive use of a firearm
formed a sufficient basis for upholding a conviction under the statute. See, e.g.,
United States v. Paz, 927 F.2d 176, 178-79 (4th Cir.1991) (holding that a
"weapon need not be brandished or displayed" but need only be " 'present for
protection and to facilitate the likelihood of success, whether or not it is
actually used' " (quoting United States v. Brockington, 849 F.2d 872, 876 (4th
Cir.1988))). In Bailey, however, the Supreme Court held that the Government
must show "active employment" to prove that a firearm was "used" in the
manner contemplated by 924(c)(1). See Bailey, 516 U.S. at ----, 116 S.Ct. at
506. Active employment, the Supreme Court stated, "includes brandishing,
displaying, bartering, striking with, and most obviously, firing or attempting to
fire, a firearm." Id. at ----, 116 S.Ct. at 508. As a result, the district court's jury
instruction on "use" was at odds with Bailey. 4 Cf.

20

United States v. Hawthorne, 94 F.3d 118, 121 (4th Cir.1996) (holding that the
district court misinstructed the jury on the "use" prong of 924(c)(1) in light of
Bailey ); United States v. Smith, 94 F.3d 122, 124-25 (4th Cir.1996) (same).
Thus, the district court committed error within the meaning of Rule 52(b).

B.

21

Second, it is necessary that the error that occurred during the trial be plain. See
Olano, 507 U.S. at 734, 113 S.Ct. at 1777. " 'Plain' is synonymous with 'clear'
or, equivalently, 'obvious.' " Id. (citing United States v. Young, 470 U.S. 1, 16
n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1 (1985)). In cases "where the
law at the time of trial was settled and clearly contrary to the law at the time of
appeal," as in this case, "it is enough that an error be 'plain' at the time of
appellate consideration." Johnson, --- U.S. at ----, 117 S.Ct. at 1549; cf. United
States v. David, 83 F.3d 638, 645 (4th Cir.1996) (holding that error is plain,
even where not obvious at the time of trial, "where an objection at trial would
have been indefensible because of existing law, but a supervening decision
prior to appeal reverses that well-settled law").

22

Here, the instructions given to the jury, while plainly erroneous before us on
appeal, were not plainly erroneous at the time of trial. Bailey, which was
decided on December 6, 1995, clarified the meaning of "use" under 924(c)(1)
well after Appellants' trial, which concluded in October of 1994. At that time,
the state of the law in this (and every other) Circuit was such that the district
court's error in instructing the jury was not obvious. See, e.g., Paz, 927 F.2d at
178-79 (inactive use of a firearm sufficient to support 924(c)(1) conviction);
Brockington, 849 F.2d at 876 (same); see also United States v. Bailey, 36 F.3d
106, 113-14 (D.C.Cir.1994) (en banc) (collecting cases), rev'd, 516 U.S. 137,
116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Because "the law at the time of trial
was settled and clearly contrary to the law at the time of appeal," Johnson, --U.S. at ----, 117 S.Ct. at 1549, and because it is obvious error today to instruct a
jury that it need not find that a defendant actively employed a firearm to convict
him of "using" a firearm under 924(c)(1), see Bailey, 516 U.S. at ----, 116
S.Ct. at 506, Appellants satisfied the requirement of Rule 52(b) that the alleged
error be "plain."5

C.
23

Third, it must also be shown that the error affected Appellants' substantial
rights. See Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78. The language
"affecting substantial rights" "is the same language employed in Rule 52(a), and
in most cases it means that the error must have been prejudicial: It must have
affected the outcome of the district court proceedings." Id. An error not
affecting the outcome of the trial, i.e., a harmless error, does not affect a
defendant's substantial rights and does not satisfy the third prong of plain-error
analysis under Olano. See David, 83 F.3d at 647 (noting that errors "not
susceptible to harmless error analysis [are] also exempt from the showing of
prejudice required" by Olano 's third prong); United States v. Floresca, 38 F.3d
706, 713 (4th Cir.1994) (en banc) (stating that errors that "can never be

harmless ... must affect substantial rights").

1.
24

As the Olano court explained, however, "[t]here may be a special category of

forfeited errors that can be corrected regardless of their effect on the
outcome...." 507 U.S. at 735, 113 S.Ct. at 1778. For example, this Circuit has
held that harmless-error review is unavailable if the jury was conclusively
instructed on an essential element of the crime. See United States v. Johnson,
71 F.3d 139, 144 (4th Cir.1995) (holding that a district court's conclusive
instruction to the jury that it must find an essential element of the crime is an
error not susceptible to harmless-error analysis); accord United States v.
Kerley, 838 F.2d 932, 937 (7th Cir.1988) (holding that the harmless-error
doctrine "does not apply when the judge directs a partial verdict against the
defendant by telling the jury that one element of the crime ... has been proved
beyond a reasonable doubt"). As a result, a district court's conclusive instruction
to the jury that it must find an essential element of the crime satisfies Olano 's
third prong because such an instruction necessarily affects substantial rights.

25

This Circuit has also held that a district court's failure to instruct the jury on an
element of the crime is an error not susceptible to harmless-error analysis. See
United States v. Aramony, 88 F.3d 1369, 1387 (4th Cir.1996) (holding that the
district court's failure to instruct the jury on an essential element of the crime
was not subject to harmless-error analysis), cert. denied, --- U.S. ----, 117 S.Ct.
1842, 137 L.Ed.2d 1046 (1997); see also United States v. Forbes, 64 F.3d 928,
935 (4th Cir.1995) ("[F]ailing to instruct the jury on an essential element will
rarely be harmless."). In Johnson, the Supreme Court called into question the
continuing vitality of our holdings in Aramony and Forbes, stating that it "is by
no means clear" that failing to instruct the jury on an essential element of the
offense defies harmless-error analysis. See Johnson, --- U.S. at ----, 117 S.Ct. at
1550; see also United States v. Rogers, 94 F.3d 1519, 1525-26 (11th Cir.1996)
(holding that failure to instruct jury on essential element of crime is subject to
harmless-error analysis), cert. granted, --- U.S. ----, 117 S.Ct. 1841, 137
L.Ed.2d 1046 (1997). However, the Johnson court did not expressly hold that
such error is amenable to harmless-error review. See Johnson, --- U.S. at ----,
117 S.Ct. at 1550 (noting that "we need not decide that question"). As a result,
in our Circuit at least, a district court's failure to instruct the jury on an element
of the crime, like conclusively instructing the jury on an element, satisfies
Olano 's third prong. See David, 83 F.3d at 647 (stating"that the failure to
instruct on an element of the crime, where the jury never made the
constitutionally required findings, is within that 'special category' of forfeited
errors, and satisfies Olano 's third prong"); United States v. Rogers, 18 F.3d

265, 268 (4th Cir.1994) (holding "that th[e] failure to give an instruction on a
required element of the crime is an error that affects substantial rights").
26

Here, however, Appellants do not argue that the district court conclusively
instructed the jury or failed to instruct the jury on an essential element of the
crime. Instead, Appellants argue that the district court misinstructed the jury
concerning what the Government must show to prove a violation of 924(c)
(1). Like Appellants, I am convinced that this is a case where the district court,
in light of the Supreme Court's subsequent decision in Bailey, simply
misdescribed one of the essential elements of 924(c)(1). I am convinced that
this is neither a case where the district court conclusively instructed the jury,
nor a case where the district court failed to instruct the jury, on an essential
element of the offense.

27

To prove a violation of 924(c)(1), the Government must show two elements:

(1) the defendant used or carried a firearm, and (2) the defendant did so during
and in relation to a drug trafficking offense or crime of violence. See Smith v.
United States, 508 U.S. 223, 227-28, 113 S.Ct. 2050, 2053-54, 124 L.Ed.2d 138
(1993); United States v. Mitchell, 104 F.3d 649, 652 (4th Cir.1997); United
States v. Sloley, 19 F.3d 149, 152 (4th Cir.1994). My review of the district
court's charge to the jury reveals that the district court did not conclusively
instruct the jury on either of these elements. Cf. Johnson, 71 F.3d at 144
(holding that "the jury was conclusively instructed that the ASFCU was a credit
union within the meaning of 18 U.S.C.A. 2113(g)," an essential element of
the crime). At no time did the district court tell the jury that the Government
had proven beyond reasonable doubt that Appellants used or carried firearms, or
that such use or carrying occurred during and in relation to the underlying crime
of violence.

28

Similarly, my review of the record reveals that the district court did not fail to
charge the jury on an essential element of 924(c)(1). The district court
charged the jury on both elements of the crime, instructing the jury that the
Government was required to prove (1) that "the defendant knowingly used or
carried a firearm," and (2) that the defendant did so "during and in relation to
the commission of the crime of violence as charged in [Counts] One, Two,
Three, Four, or Ten." (J.A. at 358.) The Supreme Court in Bailey did not add an
additional element to the crime of using or carrying a firearm during and in
relation to a drug trafficking offense or a crime of violence. See Bailey, 516
U.S. at ----, 116 S.Ct. at 501. Instead, the Court merely "clarif[ied] the meaning
of 'use' under 924(c)(1)." Id. at ----, 116 S.Ct. at 505. The district court
therefore did not fail to instruct the jury on an essential element of 924(c)(1).
Cf. Aramony, 88 F.3d at 1383 (district court failed to instruct the jury on

additional element of crime added by Supreme Court in United States v.

Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)); David, 83
F.3d at 640-41 (same); United States v. Gray, 47 F.3d 1359, 1363 (4th
Cir.1995) (district court failed to instruct the jury on additional element of
crime added by Supreme Court in Ratzlaf v. United States, 510 U.S. 135, 114
S.Ct. 655, 126 L.Ed.2d 615 (1994)); Rogers, 18 F.3d at 268 (same).
29

Thus, the district court simply misinstructed the jury on the requirements of
924(c)(1). In United States v. Hawthorne, 94 F.3d 118 (4th Cir.1996), and
United States v. Smith, 94 F.3d 122 (4th Cir.1996), this Circuit addressed
whether a district court's misinstruction to the jury on the requirements of
924(c)(1) required reversal. There, the analysis of whether the misinstruction
was susceptible to harmless-error analysis consisted entirely of the following:

30the jury is misinstructed--or not instructed at all--as to an essential element of the

If
crime, we must set aside the defendant's conviction unless we can say, beyond a
reasonable doubt, that the jury actually made the finding that inheres in the element.
[United States v.]Aramony, 88 F.3d [1369, ]1386-87[ (4th Cir.1996) ]; United States
v. Johnson, 71 F.3d 139, 143 (4th Cir.1995); United States v. Forbes, 64 F.3d 928,
934-35 (4th Cir.1995)....
31

Hawthorne, 94 F.3d at 121; accord Smith, 94 F.3d at 124 (making same

proposition and citing same cases). In so stating, the Hawthorne and Smith
courts implied that a district court's misinstruction to the jury on an essential
element of the crime, like a district court's failure to instruct on an essential
element, is never amenable to harmless-error analysis.6 However, none of the
three authorities cited for that expansive proposition in fact establishes it.

32

The first of them, United States v. Aramony, 88 F.3d 1369 (4th Cir.1996), does
not establish that a district court's misinstruction is never amenable to harmlesserror analysis. Instead, the case holds that a district court's failure to instruct on
an essential element of the crime is not amenable to harmless-error review. See
id. at 1387. Nowhere in Aramony did we suggest that a district court's
misinstruction to the jury is not amenable to harmless-error analysis. In United
States v. Johnson, 71 F.3d 139 (4th Cir.1995), we held that a district court's
conclusive instruction to the jury on an essential element of the crime could not
be analyzed under the harmless-error standard. See id. at 143-44. Again, as in
Aramony, nothing in Johnson suggested that harmless-error analysis is not
appropriate when the district court misinstructs the jury. Finally, in United
States v. Forbes, 64 F.3d 928 (4th Cir.1995), we stated "that failing to instruct
the jury on an essential element will rarely be harmless." Id. at 935.
Nevertheless, we held that the failure to instruct in that case was harmless,

stating that "even the rare bird appears occasionally, and this case is it." Id.
Again, as in Aramony and Johnson, we did nothing to establish that harmlesserror analysis is inappropriate in cases of jury misinstruction.
33

Thus, to the extent the statements in Hawthorne and Smith imply that a district
court's misinstruction to the jury on an essential element of the crime is never
amenable to harmless-error analysis, they were unexplained extensions of our
holdings in Aramony, Johnson, and Forbes. More importantly, the statements,
if so read, conflict with Supreme Court precedent, most notably the Supreme
Court's recent decision in Johnson v. United States, --- U.S. ----, 117 S.Ct. 1544,
137 L.Ed.2d 718 (1997). In Johnson, a nearly unanimous Supreme Court stated
unequivocally that misinstructing the jury on an essential element of the
offense, unlike conclusively instructing or failing to instruct the jury, is "an
error which is subject to harmless error analysis." Johnson, --- U.S. at ----, 117
S.Ct. at 1550. In doing so, the Supreme Court merely affirmed its long-time
holding that a district court's misinstruction to the jury is susceptible to
harmless-error review. See Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114
L.Ed.2d 432 (1991) (applying harmless-error review to jury instruction
containing erroneous mandatory presumption); Carella v. California, 491 U.S.
263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (same); Pope v. Illinois, 481 U.S.
497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (holding that misinstruction on
essential element of crime was subject to harmless-error analysis); Rose v.
Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (applying
harmless-error review to jury instruction containing erroneous burden-shifting
presumption); see also Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441,
108 L.Ed.2d 725 (1990) (noting that an unconstitutionally overbroad jury
instruction at sentencing stage of capital case is subject to harmless-error
review); cf. California v. Roy, --- U.S. ----, ----, 117 S.Ct. 337, 339, 136 L.Ed.2d
266 (1997) (holding in habeas case that jury misinstruction was not"structural
error," and was to be analyzed by reviewing court under harmless-error
standard). 7 The Supreme Court's decision in Johnson, then, by its terms,
operates in our Circuit to overrule Hawthorne and Smith, and emphatically
reaffirms that a district court's misinstruction to the jury on an essential element
of the offense is subject to harmless-error analysis.8 Accordingly, a district
court's misinstruction to the jury does not necessarily affect the substantial
rights of the defendant as required by Olano 's third prong. See David, 83 F.3d
at 647 (harmless-error analysis identical to Olano third-prong analysis);
Floresca, 38 F.3d at 713 (same). Only if the erroneous instruction prejudices
the outcome of the trial will Olano 's third prong be satisfied.

2.
34

In analyzing whether Appellants' substantial rights were affected by the district

34

In analyzing whether Appellants' substantial rights were affected by the district

court's misinstructions, i.e., in assessing whether the district court's error was
harmless vel non,9 I am compelled to conclude that Chong and Chang were not
prejudiced by the district court's erroneous jury instruction. Cf. United States v.
Taylor, 102 F.3d 767, 771 (6th Cir.1996) (holding that the district court's
erroneous 924(c)(1) instruction did not affect the defendant's "substantial
rights by prejudicially influencing the outcome of the trial proceedings");
United States v. Price, 76 F.3d 526, 529 (3rd Cir.1996) (holding that district
court's erroneous 924(c)(1) instruction was harmless error because it was an
error "of statutory interpretation, not constitutional in nature," and because
"non-constitutional error is harmless when it is highly probable that the error
did not contribute to the judgment" (quotations omitted)); but cf. United States
v. Rehkop, 96 F.3d 301, 306 (8th Cir.1996) (holding that 924(c)(1)
instructional error affected defendant's substantial rights); United States v.
Webster, 84 F.3d 1056, 1067 (8th Cir.1996) (same). My careful review of the
record reveals that the district court's misinstruction on "use" was "unimportant
in relation to everything else the jury considered on the issue in question, as
revealed in the record." Yates, 500 U.S. at 403, 111 S.Ct. at 1893.

35

The evidence that Chang served as a guard at the Mitchelville safehouse, that
Chong supervised the guards at both the Upper Marlboro and the Mitchelville
safehouses, and that the guards actively employed firearms during the
underlying crime of violence, permits no other conclusion but that Appellants
used or carried (or aided and abetted the using or carrying of) firearms in the
post-Bailey sense of those terms in violation of 924(c)(1). The victims of the
kidnapping were confined in a basement against their wishes by guards who, at
the very least, moved around with firearms in their possession. There is
absolutely no evidence of the sort of possession that would not violate 924(c)
(1). Indeed, I cannot imagine a hostage scenario where a kidnapper could
possess a firearm without also using or carrying it. Here, the guards possessed
firearms on their persons while moving around the safehouse, marching
hostages upstairs to make extortionate phone calls, and so forth. Thus, the
evidence leads to the unavoidable conclusion that the guards "carried" firearms
in violation of 924(c)(1). See Mitchell, 104 F.3d at 653 (holding that
"carrying" a firearm requires possession, plus some manner of movement or
conveyance). Moreover, hostages testified that they were afraid to leave the
basement because the guards were armed, evidencing that the guards displayed
their weapons to the hostages (who greatly outnumbered them), thereby
establishing that Appellants violated 924(c)(1)'s "use" prong. See Bailey, 516
U.S. at ----, 116 S.Ct. at 508 (holding that "use" of a firearm "includes
brandishing, displaying, bartering, striking with, and most obviously, firing or
attempting to fire, a firearm" (emphasis supplied)). Indeed, the record reveals
that the guards were shown how to gesture with the guns in a threatening

manner for the purpose of intimidating the hostages.

36

Chong and Chang claim that some hostages testified only that "appellants
possessed firearms in the place where they committed a crime of violence," not
that Appellants used or carried firearms. (Appellants' Supp. Br. at 21-22.) Mere
possession of a firearm, they correctly state, does not violate 924(c)(1). See
Bailey, 516 U.S. at ----, 116 S.Ct. at 508. Appellants argue that because such
evidence of mere possession was presented to the jury, "it is impossible to
determine whether the verdict was based on a legitimate theory of 'active
employment.' " (Appellants' Supp. Br. at 21.) Thus, they contend that their
924(c)(1) convictions must be reversed.

37

I simply cannot agree. At no time was evidence of mere possession presented to

the jury. Several testifying hostages answered affirmatively the prosecution's
question, "Did you see anyone who possessed a firearm?" For example,
hostages Chen Xiao Tao and Guang Yong Wang testified that Appellants
possessed firearms. Standing alone this testimony might establish only mere
possession. The testimony of these hostages, however, consisted of much more.
Chen Xiao Tao testified that he was "confined to a basement" by the guards
where he had "no freedom" (J.A. at 157), that the guards were armed, that he
heard a gunshot during the time he was held hostage, and that Chang was one
of the guards. He also testified as follows:

38

Q Did you ever attempt to leave the house? ...

39

A Yes. I want to leave the house badly, but I couldn't.

40

Q Why couldn't you leave?

41

A Because guards, they have the gun.

42

(J.A. at 158.) This testimony plainly presented evidence to the jury of postBailey and post-Mitchell use or carrying of a firearm.

43

Guang Yong Wang's testimony also presented evidence to the jury of postBailey and post-Mitchell use or carrying. After testifying that he was confined
in the basement by armed guards, and that one of the guards was Chang, Guang
Yong Wang engaged with the prosecutor in the following colloquy:

44

Q Was he, was [Chang] one of the people who was watching you when you

were at the house that you've been telling us about?

45

A Yes.

46

Q When you were at the house, did you ever try to leave?

47

A Yes.

48

Q Did you ever leave the house?

49

A No.

50

Q Why not?

51

A I was so scared.

52

Q Why were you scared?

53

A Because they have gun.

54

Q Do you see anyone in this room who you noticed in possession of a firearm
while you were staying at that house in the basement that you've been telling us
about?

55

A [Chang].

56

Q How many times do you believe that you saw him with a firearm?

57

A Every time I saw him he had the gun with him.

***
58
59

Q How many times, in terms of numbers of occasions if you can estimate, do

you believe that you saw [Chang] in possession of a firearm?

60

A I don't remember. I just can say whenever I saw him, he had a gun.

61

(J.A. at 216.) The testimony of Chen Xiao Tao and Guang Yong Wang is
emblematic of the testimony given by all of the testifying hostages. My review

of the record reveals that no hostage testified of possession that would not
violate 924(c)(1).
62

Chang was positively identified at trial as one of the guards and has never
contended that he did not actively employ a firearm in his role as a guard of the
hostages. See Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78 (stating that under
Rule 52(b), "[i]t is the defendant rather than the Government who bears the
burden of persuasion with respect to prejudice"). Although Chong contends that
he did not use or carry a firearm in connection with the underlying crime of
violence, the evidence that he supervised the guards who actively employed
firearms--thereby aiding and abetting the use or carrying of a firearm in
violation of the statute--is overwhelming.10 Consequently, the guilty verdicts
rendered by the jury against Appellants on the 924(c)(1) counts were surely
unattributable to the district court's misinstruction error. See Taylor, 102 F.3d
767, 771 ("Because a properly instructed jury would have concluded that
defendant [carried a firearm], the error did not affect a substantial right of the
defendant and, therefore, we find no plain error in the jury instructions."); see
also Pope, 481 U.S. at 502, 107 S.Ct. at 1921-22 (holding that guilty verdict for
selling obscene magazines could be affirmed despite jury misinstruction "if it
can be said beyond a reasonable doubt that the jury's verdict in this case was not
affected by the erroneous instruction"). Accordingly, I would affirm Appellants'
924(c)(1) convictions.

D.
63

Even if the district court's misinstruction was not harmless, and affected
Appellants' substantial rights, I would nevertheless affirm Appellants' 924(c)
(1) convictions. "When the first three parts of Olano are satisfied, an appellate
court must then determine whether the forfeited error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings before it may
exercise its discretion to correct the error." Johnson, --- U.S. at ----, 117 S.Ct. at
1550 (quotations omitted) (alteration in original). This Circuit has previously
held that "[c]entral to this inquiry is a determination of whether, based on the
record in its entirety, the proceedings against the accused resulted in a fair and
reliable determination of guilt." United States v. Cedelle, 89 F.3d 181, 186 (4th
Cir.1996).

64

In the circumstances of this case, I believe that declining to correct the error
will not result in a miscarriage of justice or seriously affect the fairness,
integrity, or public reputation of judicial proceedings because, viewing the
record as a whole, the proceedings resulted in a fair and reliable determination
of Appellants' guilt. See United States v. Miner, 108 F.3d 967, 969-70 (8th

Cir.1997) (declining to notice and correct district court's erroneous Bailey

instruction because "it is inescapably clear ... that a properly instructed jury
would have convicted" defendant); see also Johnson, --- U.S. at ----, 117 S.Ct.
at 1550 (declining to reverse where trial court failed to instruct jury on essential
element of the crime because evidence of guilt was "overwhelming"); Cedelle,
89 F.3d at 186 (declining to reverse where trial court failed to instruct jury on
essential element of the crime because evidence presented at trial "permit[ted]
no other conclusion" but that defendant was guilty).
65

As I have stated, the evidence that Appellants used or carried (or aided and
abetted the using and carrying of) firearms is overwhelming. Appellants were
armed kidnappers who held over fifty hostages captive for several weeks.
Moreover, the evidence that Chang served as a guard at the Mitchelville
safehouse, that Chong supervised the guards at both the Upper Marlboro and
the Mitchelville safehouses, and that the guards actively employed firearms
during and in relation to the underlying crime of violence, permits no other
conclusion but that Appellants used or carried firearms, or aided and abetted the
same, in violation of 924(c)(1). Cf. David, 83 F.3d at 648 (noticing plain
error of the district court in failing to instruct on an essential element of the
crime because a jury conceivably could have determined that the Government
had not proven that element). Consequently, it is "inescapably clear," see
Miner, 108 F.3d at 969, that the jury would have convicted Appellants absent
the district court's error.

66

Thus, there is no basis for concluding that the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings.

67
Indeed,
it would be the reversal of a conviction such as this which would have that
effect. "Reversal for error, regardless of its effect on the judgment, encourages
litigants to abuse the judicial process and bestirs the public to ridicule it." R.
Traynor, The Riddle of Harmless Error 50 (1970).
68

II.

Johnson, --- U.S. at ----, 117 S.Ct. at 1550. Moreover, "to expend the judicial
resources necessary for a retrial would be more detrimental to the fairness,
integrity, and public reputation of judicial proceedings than permitting
[Appellants'] conviction[s] to stand." Cedelle, 89 F.3d at 186 (citing United
States v. Ross, 77 F.3d 1525, 1540-41 (7th Cir.1996)). Accordingly, even if the
instructional error here affected Appellants' substantial rights (which it does
not), I would decline to notice it.

69

For the foregoing reasons, I vote to affirm Appellants' convictions for using or
carrying a firearm, or aiding and abetting the same, during and in relation to a
crime of violence in violation of 18 U.S.C.A. 924(c)(1).

Argument before a three-judge panel was held on October 29, 1996. Before an
opinion in the case was published, a member of the court sua sponte requested a
poll on whether this case should be reheard en banc. A majority of judges in
active service voted to rehear the case and ordered supplemental briefing.
Argument before the full court was heard on April 8, 1997

The witness, Bao Jin Chen, who testified for the Government against Chong
and Chang, also testified in the previous trial of five juvenile members of the
alien-smuggling ring. See United States v. Juvenile Male, 74 F.3d 526 (4th
Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 2558, 135 L.Ed.2d 1076 (1996)

After initial briefing in this case was completed, but prior to oral argument
before the panel, the Government submitted a letter pursuant to Rule 28(j) of
the Federal Rules of Appellate Procedure conceding "error with respect to
Count 11 ... in which the appellants were found guilty of using and carrying a
firearm during the course of a crime of violence in violation of 18 U.S.C.
924(c)." The Government made this concession in light of United States v.
Hawthorne, 94 F.3d 118 (4th Cir.1996), and United States v. Smith, 94 F.3d
122 (4th Cir.1996), cases it believed were binding circuit precedent. Appellants
suggest that this concession "is entitled to 'great weight.' " (Appellants' Supp.
Br. at 7.) The Government's concession, however, which was withdrawn
subsequent to our decision to hear the appeal en banc, does not preclude
independent review of the issue, see United States v. Stanfield, 109 F.3d 976,
984 n. 5 (4th Cir.1997) (refusing to reverse defendant's conviction despite
Government's concession of error), or limit this Court's ability to reconsider the
continuing vitality of Hawthorne and Smith in light of the Supreme Court's
recent pronouncement in Johnson v. United States, --- U.S. ----, ----, 117 S.Ct.
1544, 1550, 137 L.Ed.2d 718 (1997) (reaffirming that jury misinstructions are
amenable to harmless-error review)

In supplemental briefing and at oral argument, Appellants contended that the

"Rule 52(b) 'plain error' standard is inapplicable to [their] claims of 924(c)
instructional error." (Appellants' Supp. Br. at 9.) The Supreme Court, however,
recently made clear that"it is ... Rule [52(b) ] which by its terms governs direct
appeals from judgments of conviction in the federal system, and therefore
governs this case." Johnson v. United States, --- U.S. ----, ----, 117 S.Ct. 1544,
1548, 137 L.Ed.2d 718 (1997); see also id. (stating that federal courts have "no

authority" to create "out of wholecloth ... an exception to" Rule 52(b))

3

The district court's instruction as to the "use" prong of the gun charge was as
follows:
Under this statute, to use a firearm means to have the firearm available in such a
way that it furthered the commission of the crime of violence or was an integral
part of its commission. It is not necessary that the government prove the
defendant fired or displayed the weapon or even that it was loaded. As long as
the defendant had the firearm available to protect his criminal endeavor, if he
needed to do so, that is sufficient to establish use of a firearm under this law.
(J.A. at 358.)

The district court also misinstructed the jury on the "carry" prong of 924(c)
(1). The court instructed the jury that it need find only that Appellants
possessed a firearm to convict them under the "carry" prong of the statute.
Specifically, the court instructed the jury that
[c]arrying a firearm under this statute means to have it within your control, to
have it available in such a way that it furthers the commission of a crime of
violence or was an integral part of the commission of that crime.
The defendant does not necessarily have to hold it physically. That is, to have
actual possession of it on his person. If you find the defendant had dominion
and control over the place where the firearm was located and had the power and
intention to exercise control over it, you may find the government has proved
that he carried it.
(J.A. at 358-59.)
Although the Bailey Court did not directly address the definition of "carry"
under the statute, the Court clearly explained that "use" and "carry" were
distinct from each other and different from mere "possession." "[T]he inert
presence of a firearm, without more, is not enough to trigger 924(c)(1)."
Bailey v. United States, 516 U.S. 137, ----, 116 S.Ct. 501, 508, 133 L.Ed.2d 472
(1995). Thus, Bailey dictates that possession alone is not enough to support a
conviction for "carrying." See United States v. Mitchell, 104 F.3d 649, 653 (4th
Cir.1997) (concluding "that the plain meaning of the term 'carry' as used in
924(c)(1) requires knowing possession and bearing, movement, conveyance, or
transportation of the firearm in some manner" (emphasis added)).
Consequently, the district court's "carry" instruction, like its "use" instruction,
was erroneous.

For similar reasons, the district court's carry instruction constitutes error that
was "plain."

The cases relied upon by United States v. Hawthorne, 94 F.3d 118 (4th
Cir.1996), and United States v. Smith, 94 F.3d 122 (4th Cir.1996), state that a
district court's failure to instruct the jury on an essential element of the crime
may be amenable to harmless-error analysis, but only in the rare instance where
"the reviewing court can be satisfied that the jury actually made an equivalent
or identical finding pursuant to another instruction." United States v. Aramony,
88 F.3d 1369, 1387 (4th Cir.1996) (citing United States v. Forbes, 64 F.3d 928,
935 (4th Cir.1995)). Therefore, the Hawthorne and Smith courts' unexplained
extension of this principle to cases of a district court's misinstruction to the jury
suggests, perhaps, that Hawthorne and Smith may be read to permit harmlesserror review in cases where the jury actually makes an equivalent or identical
finding pursuant to a properly-given instruction on a separate count. Such cases
are, in my view, a rarity. Thus, Hawthorne and Smith, however read, plainly
"imply" that a district court's misinstruction to the jury is "never" amenable to
harmless-error analysis

Our Circuit has also long held that a district court's misinstruction to the jury is
susceptible to harmless-error review. See, e.g., United States v. Hairston, 46
F.3d 361, 373 (4th Cir.) (holding in extortion case that imprecise quid pro quo
instruction, if erroneous, was harmless), cert. denied, --- U.S. ----, 116 S.Ct.
124, 133 L.Ed.2d 73 (1995); United States v. Whittington, 26 F.3d 456, 464
(4th Cir.1994) (holding "that, even if the application of the willful blindness
instruction to [the defendant] was error, ... such error was harmless"); United
States v. Law, 979 F.2d 977, 979 (4th Cir.1992) (per curiam) (holding that
although "the trial court's jury instructions did not state the law with strict
accuracy," the error was harmless); United States v. Borromeo, 954 F.2d 245,
248 (4th Cir.1992) (stating in RICO case where appellant argued that "this
instruction is flawed," that "even if we were to interpret the instruction
narrowly and find error, in our view it would be harmless error"); United States
v. Vogt, 910 F.2d 1184, 1200 (4th Cir.1990) ("We agree that the instruction
was erroneous but hold that the error was harmless."); United States v.
LaRouche, 896 F.2d 815, 832-33 (4th Cir.1990) (holding that error, if any, in
jury instruction was harmless in prosecution for conspiracy to defraud the IRS);
United States v. Wentz, 800 F.2d 1325, 1326-27 (4th Cir.1986) (holding that
district court's misinstruction regarding value of stolen item under National
Stolen Property Act, which erroneously referred to"replacement value less
depreciation," was harmless error); United States v. Davis, 739 F.2d 172, 17475 (4th Cir.1984) (per curiam) (holding that any error in trial court's
instructions concerning intoxication as a possible negation of specific intent
was harmless); United States v. Cohen, 617 F.2d 56, 58 (4th Cir.1980) (per

curiam) (holding "that the challenged portion of the [erroneous] instruction did
not prejudice defendant"); United States v. Baker, 611 F.2d 961, 964 (4th
Cir.1979) (holding that district court's misinstruction to jury did not "contain[ ]
reversible error"); United States v. Cabbell, 427 F.2d 147, 148 (4th Cir.1970)
(per curiam) (stating that "we think the charge was not prejudicial" where "no
objection was raised at trial" and there was "evidence abundantly establishing"
defendant's guilt); cf. United States v. Eilertson, 707 F.2d 108, 110 (4th
Cir.1983) (per curiam) (reversing conviction and stating that"[w]hile the
[erroneous] instruction itself may not have required reversal," the United States
Attorney's conduct "cannot be overlooked"); United States v. Gresko, 632 F.2d
1128, 1135 (4th Cir.1980) (reviewing misinstruction for harmless error and
determining that "[i]n view of the bare sufficiency of the Government's proof
on this issue, there is a substantial likelihood that the error was prejudicial");
United States v. Heyman, 562 F.2d 316, 319 (4th Cir.1977) (concluding that
the district court's misinstruction on the definition of obscenity was not
harmless error); but see United States v. Hawthorne, 94 F.3d 118 (4th Cir.1996)
(holding that "[i]f the jury is misinstructed ... as to an essential element of the
crime, we must set aside the defendant's conviction"); United States v. Smith,
94 F.3d 122 (4th Cir.1996) (same)
8

At oral argument it was suggested that misinstructing the jury on an essential

element of the offense is, as a practical matter, indistinguishable from failing to
instruct the jury on an essential element, an error which defies harmless-error
analysis in our Circuit. See United States v. Aramony, 88 F.3d 1369, 1387 (4th
Cir.1996). If the district court improperly instructed the jury on an essential
element of the offense, the argument goes, then the court, in effect, failed to
instruct the jury on all the elements. Under this logic, every misinstruction on
an essential element would constitute a failure to instruct and would therefore
defy harmless-error analysis
In Johnson v. United States, --- U.S. ----, ----, 117 S.Ct. 1544, 1550, 137
L.Ed.2d 718 (1997), the Supreme Court recognized that these two instructional
errors--misinstructing the jury on an essential element of the offense and failing
to instruct the jury on an element--can "be analogized." --- U.S. at ----, 117
S.Ct. at 1550; see also California v. Roy, --- U.S. ----, ----, 117 S.Ct. 337, 339,
136 L.Ed.2d 266 (1997) ("The specific error at issue here--an error in the
instruction that defined the crime--is ... as easily characterized as a
'misdescription of an element' of the crime, as it is characterized as an error of
'omission.' " (quotation omitted)). However, the Supreme Court itself
distinguished between misinstructing and failing to instruct the jury on an
essential element in Johnson when it declined to decide whether failing to
instruct defies harmless-error review, but held that "improperly instructing the
jury on an element of the offense ... [is] an error which is subject to harmless-

error analysis." --- U.S. at ----, 117 S.Ct. at 1550. Accordingly, these two types
of instructional error are distinct.
9

Inasmuch as the Supreme Court in Olano and in Johnson equated the question
of whether under Federal Rule of Criminal Procedure 52(b) the defendant's
substantial rights were affected by the district court's error with the question of
whether under Federal Rule of Criminal Procedure 52(a) the district court's
error was harmless, see Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78, and
Johnson, --- U.S. at ---- - ----, 117 S.Ct. at 1549-50, I will do the same. See also
United States v. David, 83 F.3d 638, 647 (4th Cir.1996) (harmless-error
analysis identical to Olano third-prong analysis); United States v. Floresca, 38
F.3d 706, 713 (4th cir.1994) (en banc) (same)

10

Because the evidence that Chong supervised the guards who actively employed
firearms is overwhelming, I reject Chong's assertion that the evidence was
insufficient to support his conviction under 924(c)(1). When reviewing a
sufficiency-of-the-evidence claim, the jury's verdict will be sustained "if there
is substantial evidence, taking the view most favorable to the Government, to
support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86
L.Ed. 680 (1942). "[S]ubstantial evidence is evidence that a reasonable finder
of fact could accept as adequate and sufficient to support a conclusion of a
defendant's guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d
849, 862 (4th Cir.1996) (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 1087,
137 L.Ed.2d 221 (1997). Here, the evidence in the trial record is more than
sufficient to support the jury's determination that Chong used or carried a
firearm, or aided and abetted the same, in violation of 924(c)(1). As I have
stated, he supervised the guards, first at the Upper Marlboro safehouse and then
at the Mitchelville safehouse. At both places the guards were armed. The trial
record reveals that the guards at the Mitchelville safehouse confined the
hostages in the basement of the house at gunpoint. Based on these facts, I
conclude that the evidence was more than sufficient to support Chong's
conviction for using or carrying a firearm, or aiding and abetting the same,
during and in relation to a crime of violence. See United States v. Cook, 76
F.3d 596, 603 (4th Cir.) (affirming 924(c)(1) conviction and stating that "the
evidence ... was clearly sufficient to support the conclusion that [the defendant]
knew that [his cohort] was brandishing a gun during the drug transaction"),
cert. denied, --- U.S. ----, 117 S.Ct. 320, 136 L.Ed.2d 235 (1996); United States
v. Hayden, 85 F.3d 153, 162 (4th Cir.1996) (holding that evidence was
sufficient to support 924(c)(1) conviction); see also United States v. Mitchell,
104 F.3d 649, 654 (4th Cir.1997) (holding that evidence was sufficient to
provide factual basis for defendant's guilty plea to 924(c)(1) charge)