Perez

This case was remanded to us by an en banc panel of our court to consider two issues. First, we are asked to determine whether the convictions of defendants Joseph E. Perez and John Velasco Cruz 2 under 18 U.S.C. § 924 (c)(1) are affected by Bailey v. United States, — U.S. -, 116 S.Ct. 501 , 133 L.Ed.2d 472 (1995), which was decided two months after our panel decision. Second, we are asked to determine whether the district court erred by failing to submit to the jury a special verdict form regarding which firearm, or firearms, the defendants used in connection with the drug trafficking offenses. We were not asked to address this issue when the matter was first before us. We now address these issues separately.

I

In Bailey , decided two months after our panel decision, the Supreme Court was called upon to define “use” under 18 U.S.C. § 924 (c)(1), which criminalizes the “use” of a firearm “during and in relation to ... [a] drug trafficking crime.”

The Supreme Court held that a conviction under § 924(c)(1) “[rjequires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate…