Interpretation of 18 U.S.C. Section 924

In Bailey v. United States, 516 U.S. 137 (1995), the Supreme Court explained what conduct constitutes "use" under 18 U.S.C. 924. The Court determined that in order to show "use" for purposes of establishing a 924 violation, the government must show that "the defendant actively employed the firearm during and in relation to the predicate crime." Bailey, 516 U.S. at 150 (finding that the defendant did not "use" the firearm where it was found, unloaded, in a footlocker in a closet). Such "active employment" includes "brandishing, displaying, bartering, striking with, and... firing or attempting to fire a firearm." Id. at 148. Although the Court in Bailey found it unnecessary to specifically articulate standards for what constitutes "carry" under 924, the Court did note that an offender "carries" a firearm when he "keeps a gun hidden in his clothing throughout a drug transaction." Id. at 146. In addition, the Court distinguished "use" from "carry" and went on to note that "[a] defendant cannot be charged under 924(c)(1) merely for storing a weapon near drugs or drug proceeds. Storage of a firearm, without its more active employment, is not reasonably distinguishable from possession." Id. at 149. In United States v. Riascos-Suarez, 73 F.3d 616 (6th Cir. 1996), the Court further elaborated on the carry prong and held that "in order for a defendant to be convicted of carrying a gun in violation of section 924(c)(1), the firearm must be immediately available for use-on the defendant or within his or her reach. Such availability takes the weapon beyond simple possession or storage." Id. at 623. In order to establish that the firearm was carried "in relation to" a drug trafficking offense, the government must prove that the firearm "furthered the purpose or effect of the crime and that its presence or involvement was not the result of coincidence." Id. (citing Smith v. United States, 508 U.S. 223 (1993)). Further elaborating on the Riascos-Suarez definition of "carry," the Court noted in United States v. Moore, 76 F.3d 111 (6th Cir. 1996), as follows: "Although the immediate availability of the gun to the [defendant] was a key factor in Riascos-Suarez, we do not read that case as identifying availability as the only relevant consideration; if Congress had meant section 924(c)(1) to implicate any individual who happens to be within arm's reach of a firearm, surely it would have selected a more accurate term than "carry." A definition of "carry" that takes only availability into account ignores the term's most obvious connotation, i.e., physical transportation. Immediate availability is therefore a necessary, but not sufficient, determinant.... The [defendant] in Riascos-Suarez "carried" the firearm not only because he had it within reach, but also because he physically brought it with him in the course of his drug trade." Id. at 113.