8.71 FIREARMS–USING OR CARRYING IN COMMISSION OF CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME (18 U.S.C. § 924(c))
The defendant is charged in [Count ____ of] the indictment with [using] [carrying] a firearm during and in relation to [specify applicable crime of violence or drug trafficking crime] in violation of Section 924(c) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant committed the crime of [specify crime] as charged in [Count _______ of] the indictment, which I instruct you is a [crime of violence] [drug trafficking crime]; and
Second, the defendant knowingly [used] [carried] the [specify firearm] during and in relation to that crime.
[A defendant "used" a firearm if [he] [she] actively employed the firearm during and in relation to [specify crime].]
[A defendant "carried" a firearm if [he] [she] knowingly possessed it and held, moved, conveyed or transported it in some manner on [his] [her] person or in a vehicle.]
A defendant [used] [carried] a firearm "during and in relation to" the crime if the firearm facilitated or played a role in the crime.
In United States v. Thongsy, 577 F.3d 1036, 1043 n.5 (9th Cir.2009), the Ninth Circuit held that the former version of this instruction "should be revised to clarify there are two ways to prove an offense under § 924(c): the defendant either (1) used or carried a firearm ‘during and in relation to’ a crime or (2) possessed a firearm ‘in furtherance of’ a crime." Use this instruction when the defendant is charged with using or carrying a firearm during and in relation to a crime. When the defendant is charged with possessing a firearm in furtherance of a crime, use Instruction 8.72 (Firearms—Possession in Furtherance of Crime of Violence or Drug Trafficking Crime).
If the crime of violence or drug trafficking crime is not charged in the same indictment, the elements of the crime must also be listed and the jury must be instructed that each element must be proved beyond a reasonable doubt. See United States v. Mendoza, 11 F.3d 126 (9th Cir.1993).
The Supreme Court has construed the term "use" to require proof that "the defendant actively employed the firearm during and in relation to the predicate crime." Bailey v. United States, 516 U.S. 137, 150 (1995). "The active-employment understanding of ‘use’ certainly includes brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm." Id. at 148. "[A] reference to a firearm calculated to bring about a change in the circumstances of the predicate offense is a ‘use,’ just as the silent but obvious and forceful presence of a gun on a table can be a ‘use.’" Id. Although a person uses a firearm when he or she trades it for drugs, Smith v. United States, 508 U.S. 223, 241 (1993), a person does not "use" a firearm when he or she receives it in trade for drugs. Watson v. United States, 552 U.S. 74, 83 (2007).
"[T]he term ‘brandish’ means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person." Id. § 924(c)(4). The "brandishing" of a firearm is a type of "use", but carries a greater penalty. Compare 18 U.S.C. § 924(c)(1)(A)(i) (setting statutory minimum penalty for "use" at five years) with Id. § 924(c)(1)(A)(ii) (setting statutory minimum penalty for "brandishing" at seven years); see United States v. Carter, 560 F.3d 1107, 1114 (9th Cir.2009) (remanding for re-sentencing when it was unclear whether court found the defendant "used" or "brandished" a firearm).
The statute does not contain a definition of the term discharge. See Dean v. United States, ___ U.S. ___, 129 S. Ct. 1849, 1856 (2009) (discharge of firearm does not require separate proof of intent; "10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident").
Brandishing and discharging a firearm are sentencing factors that may be found by a judge and need not be submitted to the jury. United States v. Harris, 536 U.S. 545, 567-68 (2002) (plurality); see United States v. O’Brien, ___ U.S. ___, 130 S. Ct. 2169, 2178-80 (2010); United States v. Benford, 574 F.3d 1228, 1233-34 (9th Cir.2009). If a special interrogatory is used, it may be appropriate to amend this instruction with language requiring specific jury unanimity as to whether the firearm was brandished or discharged. See Instruction 7.9 (Specific Issue Unanimity).
The Supreme Court has construed the term "carry" to include carrying on a person or vehicle. Muscarello v. United States, 524 U.S. 125, 130-33(1998). "‘Carry’ implies personal agency and some degree of possession." Id. at 134. However, the firearm need not be "immediately accessible." Id. at 138; Id. at 126-27 (carrying "applies to a person who knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies"); United States v. Long, 301 F.3d 1095, 1106 (9th Cir.), cert. denied, 537 U.S. 1216 (2002).
In appropriate cases, a special interrogatory may be used to determine the jury’s findings as to whether the defendant used or carried particular firearm types listed in 18 U.S.C. § 924(c)(1). Castillo v. United States, 530 U.S. 120, 128 (2000); O’Brien, __ U.S. at __; 130 S. Ct. at 2178-80 (fact that firearm is a machinegun is an element of offense to be proved to jury beyond a reasonable doubt).
Whether a particular crime is a crime of violence is a question of law. See United States v. Amparo, 68 F.3d 1222, 1226 (9th Cir.1995) (crime of violence); 18 U.S.C. § 924(c)(2) (drug trafficking crime).
See United States v. Potter, 630 F.3d 1260, 1261 (9th Cir.2011) (defendant charged under Section 924(c)(1)(A) was not entitled to a "Second Amendment defense" instruction).