US v. Irons, No. 20-30056 (4-11-22)(Collins w/Fletcher; Watford dissents). The issue concerned a 924(c) charge of using a firearm “in furtherance” of drug trafficking. The defendant conceded PWID drugs but contested a conspiracy charge and the firearm charge. As to the firearm, he argued the firearm was under the mattress for safekeeping as he would sell it back to the person whom he bought it from when he returned from out of state. It was not therefore used to further drug trafficking. Two issues of note: First, regarding a supplemental jury instruction in response to a jury note, Fed R Crim P 30(d) requires an objection be made. A prior objection, or submitted instruction, is not sufficient. Thus, review is for “plain error.” Two, the error here is plain. The supplemental instruction implied that a “connection” was sufficient. This is error. Using a firearm is not just connected but must be “in furtherance.” It must facilitate, advance, or promote an action. No witness saw the defendant use, brandish, or show the firearm.  In looking at the error in hindsight, see US v. Henderson, 568 US 266 (2013), the error is plain. An unpublished opinion that supported the district court is not persuasive.

Watford dissents, arguing any error was harmless.

Congrats to AFPD Dennis Carroll, FPD Ofc Wa W (Seattle).

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/11/20-30056.pdf