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United States v. Foster

Citation. 133 F.3d 704, 1998 U.S. App. 251, 98 Cal. Daily Op. Service 94.
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Brief Fact Summary.

The Defendant, Leon Foster (Defendant) and Sandra Ward (Ward) manufactured methamphetamine. In 1989, the police became aware of their activity and pulled the Defendant over while he was driving his pickup truck and arrested him. In the Defendant’s truck bed, in a zipped up bag, under a snap-down tarp, the police found a loaded 9 mm semiautomatic and a bucket. Inside the bucket were a scale, plastic baggies and some handwritten notes with prices.

Synopsis of Rule of Law.

In order for a defendant to be convicted of “carrying” a gun in violation of Section:924(c)(1), the defendant must have transported the firearm on or about his person. This means that the firearm must have been immediately available for use by the defendant.


The Defendant was subsequently convicted of possessing methamphetamine in violation of 21 U.S.C. Section:844 and of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Section:924(c)(1). That section provides that “whoever, during and in relation to any crime of violence or drug trafficking crime, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years?”


What does it mean to “carry” a gun within the meaning of 18 U.S.C. Section:924(c)(1)?


The Defendant’s gun was not immediately available for use. While driving, Foster could not reach the gun that was under a snap-down tarp and within a zipped-up bag. As a result, the Defendant cannot be convicted for carrying a firearm in violation of 18 U.S.C. Section:924(c)(1).


The majority was too obsessed with coming to the correct definition of the word “carry.” The majority should have followed the case of United States v. Barber with respect to this decision. The Barber case assigns a definition to “carry” that includes “transportation or causing to be transported.” Nothing in the legislative history of the statutory section indicates that Congress wanted to assign the narrow meaning to “carry” that was proscribed by the majority.


This case is an example of the often great difficulty courts have with statutory interpretation. The court itself noted that the decision was a close call between the broad definition of “carry” and the narrow definition that the court eventually adopted. In the end, the court found that the narrow definition fit the more specific statutory definition, followed the controlling case of Bailey, harmonizes better with the remainder of the full statute and flows from the likely purpose of the statute. Further, the court noted the often repeated principle that, where a criminal law is ambiguous, the court should be wary of imposing criminal liability for conduct that the law does not clearly prohi

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