United States v. Roy Spencer Harmon, 996 F.2d 256 (10th Cir. 1993). · Go Syfert
United States v. Roy Spencer Harmon, 996 F.2d 256 (10th Cir. 1993). Cases Citing This Book View Copy Cite
23 citation events (3 in the last 25 years) across 5 distinct courts.
Strongest positive: United States v. Ortner (ca10, 2023-01-25)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Ortner
10th Cir. · 2023 · confidence medium
To that end, the court “examine[s] the[ ] [instructions] as a whole to determine whether the instructions provided the jury with an accurate statement of the applicable law.” United States v. Harmon, 996 F.2d 256, 258 (10th Cir. 1993).
discussed Cited as authority (rule) United States v. Andas-Gallardo
10th Cir. · 2001 · confidence medium
See, e.g., United States v. Richardson, 86 F.3d 1537, 1549 (10th Cir.), cert. denied, 519 U.S. 1030 , 117 S.Ct. 588 , 136 L.Ed.2d 517 (1996); United States v. Baker, 30 F.3d 1278, 1280 (10th Cir.), cert. denied, 513 U.S. 906 , 115 S.Ct. 273 , 130 L.Ed.2d 190 (1994); United States v. Harmon, 996 F.2d 256, 257-59 (10th Cir.1993); United States v. Nicholson, 983 F.2d 983, 990 (10th Cir.1993).
discussed Cited as authority (rule) Juan Osteguin v. Southern Pacific Transportation Company, a Corporation
10th Cir. · 1998 · confidence medium
The jury specifically found that the railroad was not negligent; thus, even if one were to assume that the district court erred in instructing the jury as to contributory negligence, in rejecting Osteguin’s tendered instruction regarding assumption of the risk, or in admitting the MRI testimony, Osteguin has suffered no prejudice—hence, these three alleged errors are harmless. 4 See United States v. Har *1296 man, 996 F.2d 256, 258 (10th Cir.1993) (“An erroneous jury instruction requires reversal only if, after review of the record as a whole, we determine the error to have been prejudic…
discussed Cited as authority (rule) Ford v. City of Leavenworth, Kansas (2×) also: Cited "see, e.g."
10th Cir. · 1995 · confidence medium
United States v. Harmon, 996 F.2d 256, 258 (10th Cir.1993).
discussed Cited as authority (rule) United States v. Roland J. Bailey, United States of America v. Candisha Summerita Robinson A/K/A Candysha Robinson (2×)
D.C. Cir. · 1994 · confidence medium
For a representative sampling, see United States v. McFadden, 13 F.3d 463, 465 (1st Cir.1994); United States v. Breckenridge, 782 F.2d 1317, 1322-23 (5th Cir.1986); United States v. Lyman, 892 F.2d 751, 753 (8th Cir.1989); United States v. Harmon, 996 F.2d 256, 258 (10th Cir.1993); United States v. Poole, 878 F.2d 1389, 1393 (11th Cir.1989).
discussed Cited as authority (rule) United States v. Timothy Vernell Scisum (2×)
10th Cir. · 1994 · confidence medium
As a whole they surely provided the jury with an accurate statement of the applicable law (United States v. Harmon, 996 F.2d 256, 258 (10th Cir.1993)).
cited Cited as authority (rule) David Steven Webb v. L.E. Spruill, Individually and in His Capacity as a Police Officer for the City of Oklahoma, R.L.
10th Cir. · 1994 · confidence medium
United States v. Harmon, 996 F.2d 256, 258 (10th Cir.1993).
discussed Cited as authority (rule) United States v. David Joe Martin
10th Cir. · 1994 · confidence medium
We “examine jury instructions as a whole to determine whether the jury was provided with an accurate statement of the applicable law.” United States v. Self, 2 F.3d 1071, 1089 (10th Cir.1993), citing, United States v. Harmon, 996 F.2d 256, 257 (10th Cir.1993) (citations omitted).
cited Cited as authority (rule) Watson v. Blankinship
10th Cir. · 1994 · confidence medium
United States v. Harmon, 996 F.2d 256, 258 (10th Cir.).
cited Cited as authority (rule) Watson v. Blankinship
10th Cir. · 1994 · confidence medium
United States v. Harmon, 996 F.2d 256, 258 (10th Cir.).
discussed Cited as authority (rule) United States v. David Joe Martin
10th Cir. · 1994 · confidence medium
We “examine jury instructions as a whole to determine whether the jury was provided with an accurate statement of the applicable law.” United States v. Self, 2 F.3d 1071, 1089 (10th Cir.1993), citing, United States v. Harmon, 996 F.2d 256, 257 (10th Cir.1993) (citations omitted).
discussed Cited as authority (rule) United States v. Lee W. Roberts, Also Known as Kurlee Roberts, Also Known as Dr. Lee Susan Byers and Jackie Wood
10th Cir. · 1993 · confidence medium
Indeed, "[w]hen a defendant carries a firearm during a drag trafficking crime as a source of protection or to embolden himself, the firearm has the potential to facilitate the drag trafficking crime, regardless of whether it actually facilitates the offense.” United States v. Harmon, 996 F.2d 256, 258 (10th Cir.1993) (emphasis added). 27 . 21 U.S.C. § 843 (b) states in part: It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony....
cited Cited as authority (rule) United States v. Heriberto Gomez-Arrellano
10th Cir. · 1993 · confidence medium
See Smith v. United States, — U.S. —, — — , 113 S.Ct. 2050, 2058-59 , 124 L.Ed.2d 138 (1993); United States v. Harmon, 996 F.2d 256, 258 (1993).
cited Cited as authority (rule) United States v. Steven M. Self
10th Cir. · 1993 · confidence medium
United States v. Harmon, 996 F.2d 256, 257 (10th Cir.1993) (citations omitted).
discussed Cited "see" People v. Thiessen
Cal. Ct. App. · 2012 · signal: see · confidence high
(People v. Palmer (2005) 133 Cal.App.4th 1141, 1148-1149 [ 35 Cal.Rptr.3d 373 ] [“Section 12022.53, also known as the ‘10-20-life’ law [citation], was enacted in 1997 . . .” to substantially increase penalties for using firearms to commit enumerated felonies.].) Federal law provides for increased penalties for a defined drug criminal who “uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” ( 18 U.S.C.A. § 924 (c)(1)(A).) This statute has been held to apply “if the possessor of a weapon intended to have it available for possible use during o…
discussed Cited "see" United States v. Harmon (2×)
10th Cir. · 1999 · signal: see · confidence high
See United States v. Harmon , 996 F.2d 256, 257 (10th Cir. 1993).
cited Cited "see" United States v. Lonnie R. Watson
7th Cir. · 1996 · signal: see · confidence high
See United States v. Harmon, 996 F.2d 256, 258 (10th Cir.1993).
discussed Cited "see, e.g." Westin v. Shalala
D. Kan. · 1994 · signal: see, e.g. · confidence medium
See, e.g., United States v. Harmon, 996 F.2d 256, 256-257 (10th Cir.1993) (phrase "in relation to” as used in 18 U.S.C. § 924 (c)(1) is expansive; "in relation to” means that the firearm had a role in, or facilitated, or had the potential of facilitating, a drug trafficking crime.). *1453 jeopardy of life or limb....” U.S. Const. amend.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Roy Spencer HARMON, Defendant-Appellant
92-4160.
Court of Appeals for the Tenth Circuit.
Jun 21, 1993.
996 F.2d 256
R. Steven Chambers, Salt Lake City, UT, for defendant-appellant., David J. Jordan, U.S. Atty., and Bruce C. Lubeck, Asst. U.S. Atty., Salt Lake City, UT, for plaintiff-appellee.
Tacha, Baldock, Kelly.
Cited by 20 opinions  |  Published
Pinpoint authority: bottom 54%
BALDOCK, Circuit Judge.

Defendant Roy Spencer Harmon appeals his conviction for using or carrying a firearm during and in relation to the commission of a drug trafficking crime, 18 U.S.C. § 924(c)(1), claiming that a jury instruction erroneously defined “in relation to” to include using or carrying a firearm which has the potential to facilitate a drug trafficking crime. [1] We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Defendant was wanted as a fugitive by the Salt Lake City Police Department. The police received a tip concerning Defendant’s whereabouts and conducted surveillance at a particular location. When Defendant arrived, police officers arrested him without incident as he exited his car. At the time of his arrest, Defendant informed the officers that he was armed and in possession of LSD. The officers recovered 125 doses of LSD, a small amount of hashish, $453, and a .25 caliber automatic pistol from a fanny pack which Defendant was wearing around his waist.

Based on these events, Defendant was charged with possession with intent to distribute LSD, 21 U.S.C. § 841(a)(1), using or carrying of a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1), and possession of a firearm after a felony conviction, id. § 922(g). At trial, the government established the above stated facts and presented expert testimony that the amount of LSD in Defendant’s possession was unlikely to have been for personal use and that many drug dealers carry firearms. Defendant testified on his own behalf that he was a heavy user of LSD, frequently eonsum-ing twenty or more doses daily, and the LSD in his possession at the time of his arrest was for personal use. Defendant denied that he intended to sell any of the LSD in his possession at the time of his arrest; however, he admitted that he intended to give some of the LSD to friends at a party he was planning that evening. Defendant testified that he was carrying the pistol because he feared that his personal safety was threatened by a person who had recently burglarized his house, but that this was unrelated to his possession of LSD with intent to distribute.

The district court instructed the jury on the § 924(c)(1) charge, in relevant part, as follows:

The government must prove each of the following elements beyond a reasonable doubt in order to convict the defendant. ...
First, that on or about the date charged in the indictment, the defendant carried or used a firearm;
Second, that the defendant had knowledge that what he was carrying or using was a firearm; and
Third, that he did so during and in relation to the commission of a drug trafficking crime....
A firearm is used or carried during and in relation to a drug trafficking crime when a defendant had ready access to it, and the firearm was an integral part of the criminal undertaking, and its availability increased the likelihood that the criminal undertaking would succeed....
It is not necessary for the government to show that the firearm was loaded or even operable or that the defendant fired the weapon or showed the weapon during the alleged drug trafficking crime. It is enough if the proof establishes that the firearm was a means of protecting or otherwise facilitating the underlying drug trafficking offense.
The words “in relation to” mean that the firearm had a role in, or facilitated, or had [*258] the potential of facilitating, a drug trafficking crime....

Defendant specifically objected to the emphasized language.

We “apply a de novo standard of review to determine the propriety of tendering an individual jury instruction.” United States v. Sasser, 974 F.2d 1544, 1551 (10th Cir.1992), cert. denied, —— U.S.-, 113 S.Ct. 1063, 122 L.Ed.2d 368 (1993). In reviewing jury instructions, we must examine them as a whole to determine whether the instructions provided the jury with an accurate statement of the applicable law. United States v. Davis, 965 F.2d 804, 816-17 (10th Cir.1992). “An erroneous jury instruction requires reversal only if, after review of the record as a whole, we determine the error to have been prejudicial.” United States v. Caro, 965 F.2d 1548, 1555 (10th Cir.1992).

“To convict a defendant under § 924(c)(1), the government ... must prove that the defendant committed the underlying crime ... that the defendant used or carried a weapon ... [and] that the use or carriage of the weapon was ‘during and in relation to’ the drug trafficking crime.” United States v. Nicholson, 983 F.2d 983, 990 (10th Cir.1993) (internal citations omitted). When Congress added the phrase “in relation to” to the statutory language as part of the 1984 amendment to § 924(c), see Pub.L. No. 98-473, § 1005(a), 98 Stat. 2138 (1984), it did not intend to add a new element to the crime. United States v. Bullock, 914 F.2d 1413, 1416 (10th Cir.1990). Rather, Congress merely intended to clarify “a condition already implicit in the statute.” United States v. Stewart, 779 F.2d 538, 539 (9th Cir.1985). See also S. Rep. 225, 98th Cong., 2d Sess. 314 n. 10 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3492 n. 10. The phrase “in relation to” expresses Congress’ intent that “a person could not be prosecuted under § 924(c) for an unrelated crime committed while in possession of a firearm.” United States v. Henning, 906 F.2d 1392, 1397 (10th Cir.1990) (citing Stewart, 779 F.2d at 539), cert. denied, 498 U.S. 1069, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991). See also S.Rep. No. 225, at 314 n. 10, reprinted in 1984 U.S.C.C.A.N. at 3492 n. 10 (“the requirement that the firearm’s use or possession be ‘in relation to’ the crime would preclude its application in a situation where its presence played no part in the crime”). Thus, “[m]ere possession of [a firearm] cannot support a conviction under [§] 924(c),” and, in order to sustain a § 924(e)(1) conviction, “[t]he government must demonstrate some relation between the ‘use’ [or carrying] of the firearm and the underlying crime.” United States v. Moore, 919 F.2d 1471, 1475 (10th Cir.1990). See also Smith v. United States, — U.S.-,-, 113 S.Ct. 2050, 2059, 124 L.Ed.2d 138 (1993) (“The phrase ‘in relation to’ ... clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.”).

The district court was not required to define “in relation to” in its instructions to the jury. See United States v. Ross, 920 F.2d 1530, 1535 n. 7 (10th Cir.1990); Henning, 906 F.2d at 1397. Having done so at the government’s request, we cannot say that the instruction was error. “The phrase ‘in relation to’ is expansive.... ” Smith, — U.S. at-, 113 S.Ct. at 2058 (citation omitted) (holding that exchange of firearm for drugs constitutes “use” of a firearm “during and in relation to ... [a] drug trafficking crime”). A firearm is used or carried during and in relation to a drug trafficking crime when it serves as a source of protection for the drugs or money, United States v. Williams, 923 F.2d 1397, 1403 (10th Cir.1990), or when it emboldens the defendant to commit the drug trafficking crime. United States v. Wright, 932 F.2d 868, 881 (10th Cir.1991). In either of these situations, the government is not required to prove that the defendant ever fired, brandished or even displayed the firearm. United States v. Johnson, 977 F.2d 1360, 1369 (10th Cir.1992). When a defendant carries a firearm during a drug trafficking crime as a source of protection or to embolden himself, the firearm has the potential to facilitate the drug trafficking crime, regardless of whether it actually facilitates the offense.

We have stated that “ ‘the evident purpose of [§ 924(c) ] was to impose more severe sanctions where firearms facilitated,[*259] or had the potential. of facilitating, the commission of a felony.’ ” United States v. Sullivan, 919 F.2d 1403, 1432 (10th Cir.1990) (quoting Stewart, 779 F.2d at 540) (emphasis added). While we have never explicitly approved of a jury instruction defining “in relation to” to include the potential to facilitate the underlying crime, the Supreme Court has recently recognized that “potential of facilitating” establishes the requisite relation. Smith, — U.S. at-, 113 S.Ct. at 2059 (“the gun at least must ‘facilitate], or ha[ve] the potential of facilitating,’ the drug trafficking offense”) (citations omitted). Accordingly, we cannot say that the instruction in this case which defined “in relation to” to include “potential of facilitating” was erroneous.

AFFIRMED.

1

. Section 924(c)(1) provides, in relevant part, that "[w]hoever, during and in relation to any .,. drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall ... be sentenced to imprisonment for five years...." 18 U.S.C. § 924(c)(1).