author: BEAM, Circuit Judge.

text:
    FIRST BANK, Appellant, v. FIRST BANK SYSTEM, INC.; and First Bank, fsb, formerly known as Metropolitan Federal Bank, fsb, Appellees.
    No. 95-2238.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 13, 1995.
    Decided May 29, 1996.
    Rehearing and Suggestion for Rehearing En Banc Denied July 15, 1996.

      Donald H. Zarley, Des Moines, IA, argued (Edmund J. Sease and Heidi Sease Nebel, on the brief), for appellant.
    Paul B. Klaas, Minneapolis, MN, argued (J. Thomas Vitt, on the brief), for appellee.
    Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.
   BEAM, Circuit Judge.

First Bank (FB) appeals the district court’s order dissolving a preliminary injunction and denying its motion for a permanent injunction against the use of FIRST BANK, FIRST BANK IOWA, or any color-able imitations of those terms by First Bank System, Inc. (FBS). Because FB failed to prove the facts essential to establish a common-law trademark, we affirm.

I. BACKGROUND

This case involves a dispute between two banks over the use of FIRST BANK in connection with banking services provided in the Iowa counties of Polk, Dallas, and Warren. One of these banks, FBS, is a federally chartered bank holding company with its principal place of business in Minneapolis, Minnesota. FBS owns banks in several states and provides banking services throughout the United States. Since the early 1970s, FBS has provided various banking services in Iowa — such as home improvement loans, correspondent banking, commercial lending, and credit cards — even though FBS did not have an office in Iowa. Rather, FBS promoted and provided its services through advertising, personal contacts and the mail.

As part of its acquisition of Metropolitan Federal Bank, fsb, in late 1994, FBS obtained several branches in Iowa. On February 18,1995, Metropolitan Federal Bank, fsb, changed its legal name to First Bank, fsb. The former Metropolitan Federal Banks in Iowa were renamed First Bank Iowa. FBS has owned several trademark registrations, including: (1) an Iowa registration on FIRST BANK SYSTEMS from 1968 to 1978; (2) an Iowa registration on FIRST BANK and a design from 1968 to 1978; (3) a federal registration for FIRST BANK SYSTEM and a design from 1971 to 1991; (4) a federal registration for FIRST BANK SYSTEM issued December 26, 1989, asserting first use on August 26, 1968; (5) a federal registration for FIRST BANKS and a design issued June 21, 1994, asserting first use on October 4, 1991; and (6) an Iowa service mark application for FIRST BANK filed November 14, 1986, claiming use in Iowa on October 1979.

The other bank, FB, is an Iowa chartered bank with its principal place of business in West Des Moines, Iowa. Prior to 1993, FB was a federally chartered bank. From 1938 to 1993, FB was known as First National Bank of West Des Moines. FB has never owned a registered trademark for FIRST BANK. FB relies instead on the common law of trademarks for its claim of an exclusive right to use FIRST BANK in connection with banking services provided in these counties.

Beginning in 1970, FB used a logo which combined a prominent Arabic numeral “1” with the phrase “FIRST NATIONAL BANK OF WEST DES MOINES” (1970 logo). In order to compete more effectively with a rival bank in West Des Moines commonly referred to as ‘West Bank,” FB emphasized the words “FIRST” and “BANK” in this logo by printing those two words in larger letters. The word “NATIONAL” remained on the logo in smaller print, as did the phrase “OF WEST DES MOINES,” until a modernized version of the logo appeared in December of 1985 (1985 logo). FB printed the 1970 logo on various items — including checks, stationery, envelopes, and business cards — and used it in advertisements. In 1970, FB had over 1700 customers in Iowa. Rex Weitzell, FB’s advertising agent in the 1970s, testified that he referred to the bank as “First Bank” during his tenure with the bank. William Fultz, an advertising agent, also testified that he referred to FB as “First Bank” in the early 1970s while he was doing work for Bankers Trust. Roy Messerschmidt, Chairman of FB, testified that FB has identified itself as “First Bank” when it answers the telephone since 1970.

Thomas Porter, FB’s advertising agent, testified that he was under the impression that in 1985 people were referring to FB as “First Bank.” Nevertheless, in 1985, he suggested that the officers and board of FB make a concerted effort to change the bank’s name to “First Bank.” Porter testified that the primary reason the bank should change its name was to preempt FBS from using FIRST BANK in Iowa. Porter was aware of ongoing efforts by FBS to acquire a chain of banks in Iowa. Before adopting the name change and new logo, FB consulted with G. Brian Pingel, Esq., a trademark attorney. In a letter dated October 4, 1985, Pingel advised FB to begin using FIRST BANK as soon as possible, but he warned FB about several potential conflicts, including the existing FBS federal trademark registration for FIRST BANK SYSTEM. In that letter, Pingel repeatedly referred to FB as “First National” rather than “First Bank.”

Throughout the early 1980s, FB continued to attach its 1970 logo to bank documents and used those logos in various promotional materials. Advertisements printed during the 1980s, however, contained quotations in which satisfied customers referred to FB as “First National” not as “First Bank.” In an effort to further emphasize the “First Bank” concept and facilitate its attempted name change, FB used the 1985 logo, which only contained the Arabic numeral “1” and the two words “FIRST BANK” in advertisements and on bank documents (e.g., checks, and stationery). Finally, on December 22, 1993, FB changed its legal name to “First Bank.”

In July 1994, FB heard that FBS was in the process of acquiring Metropolitan Federal Bank branches in Iowa, some of which were in FB’s primary market area of Polk, Dallas, and Warren counties. Counsel for FB contacted FBS and expressed concern over FBS’s possible use of FIRST BANK in connection with banking services provided in FB’s primary market area. FBS did not respond to FB’s concerns until three days before FB filed the complaint in the present case on January 12,1995. FB claimed that it had the exclusive right to use FIRST BANK in connection with banking services it provided in its primary market area and alleged that FBS violated both federal and Iowa trademark laws. The district’ court denied a temporary restraining order but subsequently granted FB a preliminary injunction on February 1,1995.

FB requested a permanent injunction to prohibit FBS from using FIRST BANK or any colorable imitation in FB’s primary market area. After conducting the first part of a bifurcated trial, the district court dissolved the preliminary injunction and denied the request for a permanent injunction. In an order dated April 19, 1995, the district court held, inter alia, that: (1) FB had failed to prove that it had used the name “First Bank,” rather than “First National,” prior to 1971 when FBS registered its federal trademark for FIRST BANK SYSTEM; and (2) the words “First Bank” did not have a secondary meaning referring to FB until after 1986, which was well after those same words had acquired a secondary meaning in Iowa referring to FBS in connection with banking services it provided in Iowa by mail from outside the state. The district court also determined that equitable considerations favored denying the permanent injunction.

FB appeals pursuant to 28 U.S.C. § 1292(a), claiming that the district court committed several errors in its findings of fact and conclusions of law. Specifically, FB contends that it already had a common-law trademark in FIRST BANK, based primarily on FB’s extensive use of its 1970 logo, prior to FBS’s 1971 federal trademark registration. FB also argues that the district court erred in holding that actual confusion is insufficient to establish trademark infringement. Finally, FB asserts that it was error for the district court to conclude that FB’s adoption of FIRST BANK was in bad faith.

II. DISCUSSION

The narrow question before us is whether the district court erred in denying FB’s motion for a permanent injunction. We review a district court’s denial of a motion for a permanent injunction under the abuse of discretion standard. International Ass’n of Machinists & Aerospace Workers, Dist. Lodge No. 19 v. Soo Line R.R. Co., 850 F.2d 368, 374 (8th Cir.1988), cert. denied, 489 U.S. 1010, 109 S.Ct. 1118, 103 L.Ed.2d 181 (1989). An abuse of discretion occurs when the district court bases its decision on an error of law or a clearly erroneous finding of fact. Id. Although FB raises several issues on appeal, our inquiry focuses on the dispositive issue of whether the district court was clearly erroneous in finding that FIRST BANK had not achieved distinctiveness, or secondary meaning, in connection with FB’s banking services prior to FBS’s federal trademark registration or use of its FIRST BANK SYSTEM mark. For the reasons discussed below, we agree with the district court that FB failed to prove that FIRST BANK acquired secondary meaning prior to 1986 and thus FB’s injunction action fails.

In asserting the exclusive right to use FIRST BANK in connection with banking services in the relevant Iowa counties, FB has not claimed that it possesses a registered trademark, which would have been prima facie evidence of a valid trademark. 15 U.S.C. § 1115(a). Therefore, FB must rely on the existence of a common-law trademark in bringing this lawsuit. Moreover, because FB claims exclusive use of FIRST BANK in the three Iowa counties, it must prove that it had a common-law trademark prior to FBS’s registration or use of its FIRST BANK SYSTEM mark. See Wrist-Rocket Mfg. Co., Inc. v. Saunders Archery Co., 578 F.2d 727, 730 (8th Cir.1978) (recognizing that while a registered trademark owner’s rights can become ineontestible, other common-law trademark owners retain exclusive rights in those areas where their rights antedated registration). In contrast, registration of the FBS mark established prima facie evidence of a valid trademark and provided nationwide constructive notice of that mark, see 15 U.S.C. §§ 1072 & 1115(a); Old Dutch Foods, Inc. v. Dan Dee Pretzel & Potato Chip Co., 477 F.2d 150, 156 (6th Cir.1973), or any colorable imitations such as FIRST BANK or FIRST BANK IOWA, see 15 U.S.C. §§ 1114(1) & 1127. Thus, FB can only prohibit the use of FIRST BANK SYSTEM, or any colorable imitation, in its market area if it meets three requirements. First, FB must prove that it had a common-law trademark in FIRST BANK antedating registration of FBS’s mark. Second, FB must prove that its common-law mark is similar enough to FBS’s mark to create a substantial likelihood of confusion among consumers. See 15 U.S.C. §§ 1114(1) & 1125(a)(1)(A). Third, FB must demonstrate that the court’s exercise of equitable power is appropriate. See 15 U.S.C. § 1116.

Turning to the first requirement, a common-law trademark arises from the adoption and actual use of a word, phrase, logo, or other device to identify goods or services with a particular party. See, e.g., Co-Rect Prods., Inc. v. Marvy Advertising Photography, Inc., 780 F.2d 1324, 1329 (8th Cir.1985) (quoting the statutory definition set out in 15 U.S.C. § 1127); 3 Rudolf Callmann, The Law of Unfair Competition, Trademarks and Monopolies § 19.01, at 19-3 (4th ed.1994). To succeed on its claim of a common-law trademark, therefore, FB must prove: (1) that it actually used FIRST BANK in connection with banking services provided in the relevant Iowa counties; and (2) that FIRST BANK identified FB as the provider of those services in the minds of consumers.

Assuming, arguendo, that FB actually used FIRST BANK in connection with banking services provided in the relevant Iowa counties prior to FBS obtaining its federal registration, FB must prove that eon-sumers (i.e., its customers and potential customers) identified FIRST BANK with FB as the provider of those banking services in these counties prior to FBS obtaining its federally registered mark. In order to qualify for trademark protection, therefore, FIRST BANK must distinctly identify FB as the provider of certain banking services in the minds of consumers. We begin our inquiry as to whether FIRST BANK is sufficiently distinct to achieve this by classifying it into one of four categories: (1) generic; (2) descriptive; (3) suggestive; or (4) arbitrary or fanciful. See Cellular Sales, Inc. v. Mackay, 942 F.2d 483, 485 (8th Cir.1991). Generic terms are not entitled to protection under trademark law because “such words are in ‘the public domain and available for all to use[.]’ ” Id. at 486 (quoting Hallmark Cards, Inc. v. Hallmark Dodge, Inc., 634 F.Supp. 990, 997 (W.D.Mo.1986)). At the other end of the spectrum, we consider an arbitrary or fanciful mark the strongest possible trademark, thus entitling it to the maximum degree of legal protection without requiring any proof of secondary meaning. Id. A descriptive trademark is the weakest pro-tectable mark and requires proof that the mark has acquired secondary meaning. Id.

A trademark user establishes secondary meaning by showing that through “long and exclusive use in the sale of the user’s goods, the mark has become so associated in the public mind with such goods that the mark serves to identify the source of the goods and to distinguish them from those of others.” Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863, 870 (8th Cir.1994) (citing CoRect Prods., Inc., 780 F.2d at 1330). The primary inquiry in determining whether the mark has attained secondary meaning is whether the mark has become associated with a particular source in the consumer’s mind. Id. at 871 (citing Co-Rect Prods., Inc., 780 F.2d at 1332-33); First Fed. Sav. & Loan Ass’n of Council Bluffs v. First Fed. Sav. & Loan Ass’n of Lincoln, 929 F.2d 382, 384 (8th Cir.1991) (A descriptive term only becomes protectable under trademark law “when it conjures up a particular service or product in the minds of customers.”).

In the present case, FB concedes that FIRST BANK is a descriptive term and thus is not inherently distinctive. FB contends, however, that FIRST BANK acquired secondary meaning, thereby identifying the mark with banking services provided by FB in the relevant Iowa counties. To support its contention, FB offered testimony by the creator of the 1970 logo, advertising agent Jim Bowermaster, that the advertising campaign in late 1969 and early 1970, along with the 1970 logo, was to establish the concept of “First Bank.” Roy Messerschmidt, Chairman of FB, testified that the 1970 logo was used on all of the bank’s documents. He also testified that he thought, for the most part, that FB started answering the telephone “First Bank” in 1970. As noted earlier, advertising agent, Thomas Porter, testified that he was under the impression that people were referring to FB as “First Bank” in 1985. FB also argues that in addition to wide-spread dissemination of the 1970 logo, FB had substantial accounts in these counties prior to 1971.

This type of evidence simply fails to establish sufficient proof that consumers identified FIRST BANK with the services provided by FB, which is the focus of our secondary meaning analysis. FB’s evidence of secondary meaning consisted almost exclusively of efforts undertaken by the bank to identify itself as FIRST BANK prior to 1971. Although relevant, FB’s efforts are not determinative of whether consumers actually identified FIRST BANK with FB. See Co-Rect Prods., Inc., 780 F.2d at 1332 (stating that while “advertising is a relevant factor in determining whether a mark has acquired a secondary meaning, it is the effect of such advertising that is important, not its extent”) (emphasis in original); Wrist-Rocket Mfg. Co., 578 F.2d at 732 (stating that “common-law trademark rights cannot be established by advertising alone”); Charles E. McKenney & George F. Long, III, Federal Unfair Competition: LanhamAct § l¡$(a) § 3.05, at 3-53 (1995) (“Evidence of advertising and extent of use of the mark in controversy are obviously important factors but are not determinative, such proofs demonstrating a party’s efforts to establish secondary meaning but not necessarily demonstrating that such efforts were in fact successful”) (footnotes omitted). FB’s failure to identify itself with FIRST BANK in the minds of consumers was further highlighted by William Fultz, FB’s own expert witness on advertising who testified, on cross-examination, that it takes a long time for a business to establish an identity with a particular logo or slogan. He admitted that FB probably had not yet been successful in identifying itself as “First Bank” in the mid-1980s, given that customers had consistently referred to FB as “First National” in its advertisements.

Furthermore, the record reflects that FB never actually used the words “First” and “Bank” consecutively in any document, advertisement, or other printed medium prior to 1985, when it began to develop the 1985 logo. Moreover, Pingel, FB’s own trademark attorney, consistently referred to FB as “First National” in his letter of October 4, 1985, in which he recommended adopting and using FIRST BANK as soon as possible. Roy Messerschmidt also recommended to FB’s board of directors that it should start using FIRST BANK in the mid-1980s. Finally, the record is replete with examples of FB customers referring to FB as “First National” rather than “First Bank” throughout the 1980s.

FB asserts that Pingel’s references to FB as “First National” and recommendation that FB start using FIRST BANK, as well as Porter’s recommendation that FB change its name to “First Bank” in order to preempt FBS from using FIRST BANK in Iowa, should not have been given any weight by the district court because neither man knew that FB had used FIRST BANK in the past. At a minimum, however, the fact that neither of the two men hired by FB to promote it as FIRST BANK (i.e., its trademark lawyer and advertising agent) were aware that FB had attempted to identify itself with FIRST BANK in the past provides some indication of the success FB was experiencing in its effort to be recognized as “First Bank.”

When evidence on the issue of secondary meaning is, at best, conflicting, as in the present case, we will not disturb the district court’s factual finding unless upon reviewing the entire record we are left with the definite conviction that the lower court made a mistake. Aromatique, 28 F.3d at 868; see also First Fed. Sav. & Loan of Council Bluffs, 929 F.2d at 384 (holding that the district court was not clearly erroneous in finding that the term “First Federal” was a descriptive mark); G.H. Mumm & Cie v. Desnoes & Geddes, Ltd., 917 F.2d 1292, 1294 (Fed.Cir.1990) (stating that a determination of secondary meaning is a question of fact which is reviewed on appeal under the clearly erroneous standard). Applying this standard, we conclude that the district court did not commit clear error. We agree with the district court that FB failed to prove that FIRST BANK had attained secondary meaning before 1986, which is well after FBS registered its FIRST BANK SYSTEM trademark in 1971.

III. CONCLUSION

The district court did not commit clear error in finding that FB faded to prove the facts necessary to establish a common-law trademark that antedated FBS’s registration of its mark and thus FB was not entitled to the exclusive use of FIRST BANK in these counties. Moreover, we have examined the equitable considerations presented in this case and conclude that the district court did not abuse its discretion in denying the permanent injunction. Accordingly, we affirm the district court’s order. Finally, we have considered the other arguments advanced by FB and find them to be without merit.

      . The Honorable Charles R. Wolle, Chief Judge, United States District Court for the Southern District of Iowa.

      . For ease of reference, we refer to the plaintiff-appellant as "FB” and defendants-appellees as “FBS” throughout this opinion, while recognizing that the entities have undergone name changes and consolidation in the past.

      . In fact, FB was required to print the 1985 logo in combination with "FIRST NATIONAL BANK OF WEST DES MOINES” until it became a state chartered bank in 1993. Subsequently, FB printed the 1985 logo with other phrases, such as "THE BANK DES MOINES CALLS FIRST.”

      . The Restatement (Third) of the Law of Unfair Competition § 9 (1995) defines a trademark as "a word, name, symbol, device, or other designation, or a combination of such designations, that is distinctive of a person’s goods or services and that is used in a manner that identifies those goods or services and distinguishes them from the goods or services of others.”

      . A mark that suggests some quality or ingredient constitutes a suggestive trademark, which is entitled to trademark protection without proving secondary meaning. See 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 11.20, at 11-104.4 (3d ed.1996).

      . Some of the testimony took place only at the preliminary injunction hearing (e.g., Bowermas-ter’s testimony). Other testimony occurred during the first part of the bifurcated trial, or at both proceedings.

      . Although FB theoretically could obtain two common-law trademarks (i.e., FIRST BANK and FIRST NATIONAL), the absence of any customer reference to FB as "First Bank” in its advertisements supports the district court's conclusion that FB failed to prove that FIRST BANK had acquired secondary meaning identifying FB as the provider of certain banking services in the three Iowa counties until after 1986.

      . Even if FB were able to rebut the statutorily prescribed presumption that FBS owned a valid trademark dating from its registration in 1971, see 15 U.S.C. § 1115(a), the district court also found that FBS actually used and acquired secondary meaning in FIRST BANK SYSTEM in the relevant Iowa counties, thereby establishing a common-law trademark, before FB established a common-law trademark in FIRST BANK.

      . Because we conclude that FB failed to prove that FIRST BANK was distinctive (i.e., that it had acquired secondary meaning) prior to FBS’s registration or use of FIRST BANK SYSTEM— which is fatal to FB’s claim — we need not discuss any other factual requirement necessary to establish a common-law trademark. Likewise, because FB failed to prove that it had a common-law trademark we need not determine whether FIRST BANK and FIRST BANK SYSTEM or FIRST BANK IOWA are similar enough to create a likelihood of confusion among customers.


source: Caselaw Access Project

author: HANSEN, Circuit Judge.

license: Public Domain

text:
    GOPHER OIL CO., a Minnesota corporation, Plaintiff-Appellant/Cross Appellee, v. Roger E. BUNKER, Personal Representative of the Estate of Germaine S. Romness, Defendant-Appellee/Cross Appellant.
    Nos. 95-1309, 95-1338.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1995.
    Decided May 29, 1996.
    As Amended June 21, 1996.

      Keith J. Broady, Minneapolis, MN, argued, for appellanVcross-appellee Gopher Oil.
    James Beitz, Minneapolis, MN, argued, Michael C. Hagerty, Minneapolis, MN, briefed, for appellee/eross-appellant Robert Bunker.
    Before HANSEN, GIBSON, and MURPHY, Circuit Judges.
   HANSEN, Circuit Judge.

Gopher Oil brought this declaratory judgment action seeking a declaration that the Germaine Romness estate (the estate) is liable for a release of hazardous substances to the extent of Gopher Oil’s liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. §§ 9601-9675; the Minnesota Environmental Response and Liability Act (MERLA), Minn. Stat. Ann. §§ 115B.01-115B.24 (West 1987 & Supp.1994-95); and Minnesota common law principles of tort and contract. The district court granted the estate’s motion to dismiss for lack of subject matter jurisdiction, concluding that the claims were not yet ripe. We affirm in part and reverse and remand in part.

I. BACKGROUND

The United States Environmental Protection Agency (EPA) determined that a release of hazardous substances occurred at a dump site in Brooklyn Park, Minnesota, and expended response costs of over $1,373,000 to clean up the area. As authorized by CERC-LA, in January 1994, the EPA demanded reimbursement for the entire cost of the cleanup from each of ten potentially responsible parties (PRPs), a list including Gopher Oil but not the defendant in this suit. A representative of the EPA informed Gopher Oil that the EPA anticipated referring this matter to the Department of Justice and expected a CERCLA suit to be brought during the first quarter of 1995.

Gopher Oil brought this declaratory judgment suit in September 1994, seeking a declaration that the now-deceased owner of a predecessor corporation actually caused the release and that the deceased owner’s estate is liable for the sum demanded by the EPA. Specifically, Gopher Oil’s complaint asserts that when the release occurred in the 1960’s, the Brooklyn Park dump site was owned and operated by a corporation known as Gopher State Oil, whose sole shareholders were Charles and Germaine Romness. In 1973, Bame Oil acquired Gopher State from the Romnesses through a stock acquisition. As part of the stock transfer, the Romnesses agreed to indemnify Bame with respect to any of Gopher State’s liabilities existing at closing. Shortly thereafter, Bame Oil distributed Gopher State’s assets to itself, assuming all liabilities, known or unknown. Bame Oil then changed its own name to Gopher Oil.

Gopher State’s owners, the Romnesses, have both died. The Germaine Romness estate remains open, however, pending this litigation which follows the litigation of a third-party complaint by Gopher Oil against the estate in state court. The state court litigation involved a dump site near Stillwa-ter, Minnesota, which was owned by third parties who alleged that Gopher State Oil deposited waste oil sludge on the site. The third-party owners and operators of the dump site obtained a ruling that Gopher Oil is liable as a successor corporation for the acts of Gopher State. See State v. Gopher Oil Co., Nos. C1-95-738 & C2-95-733, 1995 WL 687688 (unpublished). In the same litigation, Gopher Oil brought a third-party complaint against the Romness estate, which the state district court dismissed due to limitation periods set forth in the probate code. The Minnesota Court of Appeals affirmed the dismissal of the third-party complaint on a different ground, concluding that the Rom-nesses’ agreement to indemnify Gopher Oil did not contemplate liability under later-enacted environmental statutes, thus precluding Gopher Oil’s indemnification claim. See State v. Gopher Oil Co., No. C8-94-225, 1994 WL 328631 (Minn.Ct.App. July 12,1994) (unpublished). The Minnesota Supreme Court denied further review.

After the state trial court had dismissed Gopher Oil’s third-party complaint in the Stillwater dump site litigation on the basis of probate limitations, Gopher Oil brought the present federal declaratory judgment action against the estate relating to the Brooklyn Park dump site. Count one of this suit alleges that the estate is a responsible party under CERCLA to the extent of Gopher Oil’s CERCLA liability, and count two sets forth the same claim under MERLA Count three seeks a declaration that the estate has primary tort liability to the extent of Gopher Oil’s liability to the EPA or any other party because the Romnesses were the active owners at the time of the release. Count four alleges that Gopher Oil is entitled to indemnity based upon the indemnity agreement executed by the Romnesses in the 1970’s when Bame Oil acquired Gopher State. Thus, this declaratory judgment action involves the same parties, the same indemnification agreement, and most of the same claims as the third-party complaint in the Stillwater dump site litigation.

The district court granted the estate’s motion to dismiss all four counts for lack of subject matter jurisdiction, concluding that the claims were not ripe because there was no actual controversy. Specifically, the court stated as follows:

It is apparently clear that the plaintiff did receive the letter almost a full year ago which warned it that it would be a potentially liable party. The plaintiff then commenced this suit in expectation that it would be named a defendant based on approximately ten months later a telephone call warning it again. In order to bring its claims in this court, however, the plaintiff must allege an actual controversy.
The mere possibility of being named a defendant as responsible party does not constitute the actual controversy which is required. This Court recognizes that the EPA, and the United States on its behalf, for any number of reasons, may well and yet decline to sue Gopher Oil, or they may select yet another among the ten, or others beyond those listed as potential defendants. They may also defer simply on the fact that this case is too small or any one of a number of reasons, which they seem to be able to come up with at a moment’s notice and somehow the eases do not get sued. In the event they are to be sued, those are another issue, but this Court at this time cannot find the requisite immediacy, and in this Court’s view there is little hardship to the plaintiff in withholding the Court’s consideration.

(Tr. on Def.’s Mot. to Dismiss, Appellant’s Addend, at 26-27.)

During the hearing, the district court also alternatively granted partial summary judgment to the estate on the ground that the doctrine of collateral estoppel bars the MER-LA claim, the tort claim, and the indemnity claim due to the prior state court litigation. However, the district court explicitly declined to rule alternatively on the CERCLA claim, which was not litigated in the Minnesota state court suit.

Gopher Oil appeals the dismissal of its complaint for lack of jurisdiction. The estate cross appeals, arguing that the complaint also should have been dismissed because Gopher Oil’s assumption of Gopher State’s liabilities bars the claims and the complaint fails to state a cause of action under CERC-LA, MERLA, or principles of contractual indemnity. At oral argument before this court, the parties disclosed that Gopher Oil had entered into a tolling agreement with the Department of Justice to facilitate discussions and possible settlement of the government’s demand for reimbursement. The agreement states that “the United States may terminate settlement negotiations and commence suit at any time.” (Tolling Agreement at 3.) More recently, we received notice that on March 25, 1996, the government filed a CERCLA cost-recovery suit against Gopher Oil and four other potentially responsible parties, but not including the Romness estate.

II. DISCUSSION

We review de novo a dismissal for lack of subject matter jurisdiction. Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d 1269, 1273 (8th Cir.1994). The Declaratory Judgment Act provides that when an “actual controversy” exists, any federal court may declare the rights and other legal relations of any interested party. 28 U.S.C. § 2201. Thus, to seek a declaratory judgment, the plaintiffs claim must be ripe. The doctrine of ripeness is basically a matter of timing, which requires (1) “a sufficiently concrete case or controversy within the meaning of Article III of the Constitution,” and also, (2) “prudential considerations must justify the present exercise of judicial power.” Christopher Lake Dev. Co., 35 F.3d at 1272-73. In other words, to satisfy the actual controversy requirement of the Declaratory Judgment Act, there must exist “ ‘a substantial controversy between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” Caldwell v. Gurley Refining Co., 755 F.2d 645, 649 (8th Cir.1985) (quoting Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941)) (other citation omitted). “A live dispute must exist between the parties at the time of the court’s hearing.” Id. at 650.

The district court concluded that the government’s threat of suit in this case was too speculative to create an actual controversy between Gopher Oil and the estate and that withholding a decision at this time would result in little hardship to Gopher Oil. We agree with the district court’s assessment that the MERLA and the tort liability claims (counts II and III) are not ripe for declaratory judgment because no actual controversy exists. No facts indicate an immediate threat of either MERLA or tort liability. The district court properly dismissed these claims for lack of subject matter jurisdiction.

Given the latest developments in this case, however, we disagree with the district court’s assessment that the CERCLA and contractual indemnity claims (counts I and IV) are not ripe. The complaint seeks a declaration that the prior owners caused the release of hazardous substances and are liable to the EPA to the extent of Gopher Oh’s existing liability. The estate argued that there was no actual controversy because Gopher Oil had not itself incurred response costs and the government had not yet brought a cost-recovery action against Gopher Oil. This argument is no longer valid.

The terms of CERCLA governing the timing of review prohibit judicial review of challenges to remedial action of the EPA until after the EPA has filed an action to recover response costs. 42 U.S.C. § 9613(h)(1). See also Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1389 (5th Cir.1989) (“until the government initiates a cost-recovery action, a potential responsible party cannot obtain judicial review of the agency action”) (internal quotations omitted). Because the EPA now has initiated a cost-recovery action pursuant to 42 U.S.C. § 9607, this suit to determine liability between Gopher Oil and the estate is ripe for adjudication. While ripe, we leave to the district court to determine whether CERCLA’s objective of avoiding piecemeal litigation would be best served if the subject matter of this declaratory judgment action were in some way or maimer determined in conjunction with the government’s cost-recovery action. See Voluntary Purchasing Groups, 889 F.2d at 1390 (noting that one of CERCLA’s objectives is to avoid piecemeal litigation).

Accordingly, while the district court may not have had subject matter jurisdiction at the time of the hearing, the present posture of the case presents a ripe CERCLA claim. We recognize that significant problems may exist concerning the sufficiency of the CERCLA claim, as suggested in the estate’s cross appeal. Nevertheless, given our conclusion that this claim is now ripe, we express no opinion on the issues raised in the cross appeal, leaving them instead to be considered in the first instance by the district court with a view toward avoiding piecemeal litigation.

We next consider the indemnity claim. Gopher Oil seeks indemnity from the Romness estate on the basis of the 1973 contractual indemnity agreement that the Romnesses signed when Bame Oil purchased Gopher State. “[T]he question of CERCLA liability and the interpretation of any indemnification agreement among the parties liable for the clean-up are inextricably related.” GNB Battery Tech., Inc. v. Gould, Inc., 65 F.3d 615, 621 (7th Cir.1995). We conclude that the contractual indemnity claim, like the CERCLA claim, is ripe. As a result, we must consider the district court’s alternative grant of summary judgment on the indemnity claim.

The district court held that the doctrine of collateral estoppel prohibits the relitigation of the indemnity claim because the state court judgment determined the claim adversely to Gopher Oil. Gopher Oil contends that collateral estoppel does not apply because the state court considered contractual indemnity only in the context of MERLA liability, not CERCLA liability.

We review a grant of summary judgment de novo, applying the same standard as the district court. See Shannon v. Ford Motor Co., 72 F.3d 678, 681 (8th Cir.1996). Summary judgment is appropriate where there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). We accord full faith and credit, to state court judgments, giving them the same preclusive effect in federal court as they would have in state court. See 28 U.S.C. § 1738; see also Teleconnect Co. v. Ensrud, 55 F.3d 357, 361 (8th Cir.1995). Accordingly, we look to the law of Minnesota to determine the preclusive effect of the state court third-party complaint.

In Minnesota, collateral estoppel, or issue preclusion, “applies where (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.” Johnson v. Consolidated Freightways, Inc., 420 N.W.2d 608, 613 (Minn.1988). Collateral estoppel is a flexible doctrine in Minnesota which allows consideration of “whether its application would work an injustice on the party against whom estoppel is urged.” Id. at 613-14.

The Minnesota Court of Appeals addressed the merits of Gopher Oil’s claim that it is entitled to indemnity from the estate for liability under environmental laws. The court of appeals affirmed the state trial court’s dismissal of Gopher Oil’s indemnity claim, holding as follows:

The liabilities at" issue in this case arise under environmental laws enacted ten years after the agreement was executed. They were neither contemplated by the parties nor covered by the agreement. The qualifying phrase “existing at closing” clearly limits Gopher State’s liability.

State v. Gopher Oil Co., No. C8-94-225, slip op. at 3, 1994 WL 328631 (Minn.Ct.App. July 12, 1994) (App. A-128). Gopher Oil correctly asserts that the Minnesota Court of Appeals was referring to Minnesota’s environmental laws (MERLA), not CERCLA, when it determined that the environmental liabilities at issue were not contemplated by the indemnity agreement. Although CERCLA liability was not raised in the state court proceedings, we conclude that the state court’s interpretation of the indemnity agreement applies with equal force to CERCLA liability. The court of appeals specifically determined that the language of the indemnity agreement limits Gopher State’s (and thus the estate’s) liability by the phrase, liabilities “existing at closing.” The state court held that this limiting phrase precludes liability under later enacted environmental laws such as MERLA, enacted ten years after the agreement. Likewise, this determination necessarily dictates that the phrase, “existing at closing,” also precludes liability under the environmental laws of CERCLA, enacted seven years after the agreement.

The intent of the indemnity agreement with regard to later enacted environmental laws is the identical issue that was fully litigated by Gopher Oil in the state court third-party complaint, and the issue was finally determined on its merits adversely to Gopher Oil. Thus, the district court correctly granted summary judgment on the ground that collateral estoppel bars relitigation of the indemnity issue.

III. CONCLUSION

Accordingly, we affirm the district court’s dismissal of the MERLA and tort claims for lack of jurisdiction, and we affirm the district court’s grant of summary judgment on the indemnity agreement claim. We reverse the dismissal of the CERCLA claim in light of the recently filed government cost-recovery suit and remand it for further consideration, without expressing any views on the merits or sufficiency of the CERCLA claim.

      . Gopher Oil sought here to avoid the probate limitations problems encountered in the Stillwa-ter dump site litigation by filing a timely probate claim within four months of receiving the EPA’s demand letter, in accordance with Minn.Stat. § 524.3-803, and filing this declaratory judgment action within 60 days of the estate's disal-lowance of the claim, in accordance with Minn. Stat. § 524.3-806(a).


author: FAGG, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. William WHITE BUFFALO, Appellant. UNITED STATES of America, Appellee, v. Ernest WHITE BUFFALO, Appellant.
    Nos. 95-3671SD, 95-3672SD.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 12, 1996.
    Decided May 30, 1996.

      Jamie L. Damon, argued, Pierre, SD, for appellant William White Buffalo.
    Stanley E. "Whiting, argued, Winner, SD, for appellant Ernest White Buffalo.
    Thomas J. Wright, argued, Pierre, SD (Karen E. Sehreier, U.S. Atty., on the brief), for appellee.
    Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
   FAGG, Circuit Judge.

A jury convicted William White Buffalo and his brother Ernest White Buffalo of aggravated sexual abuse and of aiding and abetting aggravated sexual abuse. See 18 U.S.C. § 2241(a) (1994), The White Buffalo brothers appeal, and we affirm.

According to Antoinette Boltz, she met William and Ernest .White Buffalo at a drinking party, they took her for a ride into the country, and then raped her. Although the victim told a hospital doctor she had not engaged in consensual sexual intercourse within seventy-two hours of the rape, laboratory test results suggested otherwise. At trial, the brothers wanted to offer the victim’s denial of earlier sexual intercourse and then introduce the test results to impeach her credibility. The district court decided the evidence about the victim’s past sexual behavior was inadmissible under Rule 412 of the Federal Rules of Evidence.

On appeal, the White Buffalo brothers contend the district court improperly refused to admit the test results. William argues the test results were admissible to impeach the victim’s truthfulness and to show her capability to fabricate a story about the rape. Contrary to William’s view, these are not recognized exceptions to Rule 412. United States v. Azure, 845 F.2d 1503, 1506 (8th Cir.1988). In the absence of an applicable exception, Rule 412 “specifically bars admission of evidence of the past sexual behavior of an alleged rape victim.” United States v. Blue Horse, 856 F.2d 1037, 1040 (8th Cir.1988). Unlike his brother, Ernest argues the district court should have admitted the test results under two of the exceptions listed in Rule 412. Ernest contends the test results showed “that a person other than the accused was the source of semen.” Fed. R.Evid. 412(b)(1)(A). Ernest cannot rely on this exception, however, because the Government did not introduce any evidence about the victim’s past sexual behavior or the presence of semen in the victim. See United States v. Shaw, 824 F.2d 601, 604 (8th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1033, 98 L.Ed.2d 997 (1988). Ernest also contends the district court’s refusal to admit the test results violated his constitutional right to confront the victim and impeach her general credibility with the lie to the doctor. Fed.R.Evid. 412(b)(1)(C). In Ernest’s view, “[a] jury cannot judge the credibility of a witness unless that jury is informed of each and every lie the witness told [before] the trial [about] the case.” We disagree. Because the victim’s statement about unrelated consensual sexual intercourse was of little or no probative value on the question of whether she falsely accused Ernest of rape, the exclusion of the test results did not deprive Ernest of a constitutional right. See United States v. Bartlett, 856 F.2d 1071, 1088-89 (8th Cir.1988). Thus, we conclude the district court did not abuse its discretion when it prohibited impeachment of the victim with her past sexual behavior. Fed.R.Evid. 412.

Finally, William contends the district court improperly denied his request for an acceptance of responsibility adjustment. Instead of accepting responsibility for rape, William makes it perfectly clear that he has “consistently denied raping [the victim], [because] the sexual intercourse was consensual.” The district court correctly denied William’s request. See U.S.S.G. § 3E1.1(a) (1994); United States v. Yankton, 986 F.2d 1225, 1230 (8th Cir.1993).

We affirm the White Buffalo brothers’ convictions and William’s sentence.


author: HEANEY, Circuit Judge.

text:
    Joseph EVANS, Appellant, v. Shirley S. CHATER, Commissioner, Social Security Administration, Appellee.
    No. 95-3491.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 13, 1996.
    Decided May 30, 1996.

      Anthony William Bartels, Jonesboro, AR, argued, for appellant.
    Chris C. Yu, Dallas, TX, argued (Paula J. Casey, U.S. Atty., Joseph B. Liken and Tina M. Waddell, on the brief), for appellee.
    Before MORRIS SHEPPARD ARNOLD, FLOYD R. GIBSON, and HEANEY, Circuit Judges.
   HEANEY, Circuit Judge.

Joseph Evans, a black male bom November 17, 1955, has a high school equivalency and prior work experience as a truck driver. He was hit by a track in May 1982 and suffered severe injuries to his right lower back and hip. He was treated for this injury, and in 1984, he returned to work as a truck driver for three years. He has not worked since that time.

In January 1992, Evans filed a claim for Social Security disability insurance and Supplemental Security Income (SSI) benefits, alleging an inability to work beginning April 15,1989. He contended that he was disabled due to chronic, lower back pain, arthritis, uncontrolled hypertension, chest pain, headaches, and depression. His claim was denied initially and on reconsideration. A hearing was held before an administrative law judge (ALJ) on August 26, 1993. The ALJ found that Evans was unable to perform his past work as a truck driver, but that he could perform a full range of sedentary work. The Appeals Council affirmed the ALJ’s decision. Evans sought review in the district court, which denied relief. He now appeals from that decision.

We hold that substantial evidence in the record as a whole supports the ALJ’s decision that Evans was able to perform sedentary work at least until September 30, 1991, the date on which he last qualified for disability-insured status. We have doubts, however, as to whether he remained able to perform sedentary work after that date. We thus remand to the district court with directions to remand to the Secretary for a determination of whether, after September 30,1991, Evans became eligible for SSI benefits under 42 U.S.C. § 1382.

The record, including Evans’ medical history, supports the ALJ’s determination that Evans was not disabled within the meaning of Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383d as a result of his 1982 accident. Indeed, Evans returned to work as a truck driver and continued in that occupation until 1987. Beginning in 1990, however, Evans’ physical condition deteriorated significantly. Since then, he has been in and out of the hospital numerous times for high blood pressure and related complications. In May 1990, Evans was hospitalized with chest pain and an elevated blood pressure of 200/150. Thallium stress tests revealed no evidence of stress-induced ischemia (a deficiency of blood supply to the heart) and other cardiac tests were essentially negative. He was discharged with directions to lose weight, to exercise, and to take medication to control his blood pressure. His condition continued to deteriorate after that date.

Evans was hospitalized again on January 26, 1992, with chest pains and accelerated hypertension (200/140). He was not taking any medication at the time and he was treated for high blood pressure, back problems, pain, and obesity. He complained of headaches during the four-day hospitalization and his discharge diagnosis included “uncontrolled hypertension with headache.” Tr. 437. He continued to have elevated blood pressure after his release: on June 16, 1992, his blood pressure fluctuated greatly from 140/98 in the morning to 220/140 that evening; on July 1,1992, it was 220/124; and on August 8, 1992, he suffered from both hypertension and congestive heart failure.

Evans was again hospitalized on May 25, 1993 with a blood pressure of 160/130 and weighing 300 pounds. He was discharged after his blood pressure reportedly responded to medication. On July 6, 1993, however, an internal medicine specialist hospitalized Evans because of increasing angina and blood, pressure that was not controlled by increased medication. This condition continued, including a week-long hospitalization in August 1993 for malignant hypertension, documented coronary atherosclerosis, and angina pectoris. On October 11, 1993, Evans underwent angioplasty and was discharged from the hospital five days later.

Evans was readmitted on December 22, 1993 for chest pain, atherosclerotic heart disease, hypertension, and glucose intolerance. After an adjustment in his medication, Evans was discharged only to be readmitted on January 24, 1994, again for hypertension and atherosclerotic heart disease.

It must be noted that because the hearing before the ALJ was held on August 26,1993, the ALJ did not consider Evans’ medical history after that date. The Appeals Council, on the other hand, considered the subsequent history, but it determined that it did not affect the ALJ’s finding of no disability. We question the Appeals Council’s decision.

The record reveals that Evans now suffers, and has suffered for some time, from significant nonexertional impairments: hypertension, obesity, pain, and atherosclerotic heart disease. Thus, the question is whether these impairments at any time after September 30, 1991 became severe enough to have prevented Evans from performing the full range of activities listed in the Medical-Vocational Guidelines found in Appendix 2 to Sub-part P of Part 404, 20 C.F.R. §§ 404.1501-1599 (“Guidelines”). The Guidelines can be used to determine disability, provided that the nonexertional impairments do not significantly diminish the claimant’s residual capacity to perform the activities listed in them. Reed v. Sullivan, 988 F.2d 812, 816 (8th Cir.1993); Thompson v. Bowen, 850 F.2d 346, 349-50 (8th Cir.1988). Here, however, where there is substantial evidence as to significant nonexertional limitations during the period in question, the Guidelines are not applicable.

Rather, on remand a vocational expert should be called and asked a proper hypothetical question detailing Evans’ medical and activity history from September 30, 1991 to the present. O’Leary v. Schweiker, 710 F.2d 1334, 1343 (8th Cir.1983) (hypothetical must precisely set out all of the claimant’s impairments); Cole v. Harris, 641 F.2d 613, 615-16 (expert must focus on individual complainant’s capacity to work). The expert should be requested to give an opinion as to whether, in light of his nonexertional impairments, Evans was able to perform any jobs in the local or national economy on a full-time basis from September 30, 1991 through the date of the Appeals Council’s decision. Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir.1989) (claimant must be able to perform the requisite physical acts on a full-time basis in a sometimes competitive and stressful environment of the working world); McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (same). On remand, the Secretary and the claimant should be permitted to present current medical reports of treating or consulting doctors.

We therefore reverse the district court’s denial of relief and remand to the district court with directions to remand to the Secretary for disposition consistent with this opinion.


author: FLOYD R. GIBSON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. George A. WEBSTER, Jr., Defendant-Appellant.
    No. 95-2026.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 14, 1995.
    Decided May 30, 1996.

      Dennis Doherty, Chicago, IL, argued, for appellant.
    Michael K. Fagan, St. Louis, MO, argued, for appellee.
    Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
   FLOYD R. GIBSON, Circuit Judge.

In a seven count indictment, the Government charged George A. Webster, Jr., with committing various narcotics and firearms offenses. A jury convicted Webster on all counts, and he now appeals. Though a recent Supreme Court opinion requires us to reverse Webster’s conviction for violating 18 U.S.C. § 924(c)(1) (1994) by using or carrying a firearm “during and in relation to” a drug trafficking crime, we otherwise affirm.

I. BACKGROUND

On September 28, 1998, Missouri officials arrested James Suggs as he was travelling to a location where he was scheduled to sell a half-ounce of crack cocaine to an undercover officer. Suggs immediately began cooperating with police and informed them that appellant George Webster was his narcotics supplier. At that time, the officers arranged to observe a transaction between Webster and Suggs during which Suggs would pay Webster $550 for crack that the supplier had “fronted” him. Missouri Highway Patrol Trooper Paula Woodruff accompanied Suggs to the meeting; while she was not physically present in Webster’s car when the exchange occurred, she was able to witness the two dealers conversing from another vehicle parked nearby. Further, she had “wired” Suggs with a hidden device that recorded the event. The tape, though partially inaudible due to a prevalent electronic hum that obscures the recording, indicated to Trooper Woodruff that the speakers were planning future drug deals. This belief was confirmed by Suggs’s own account of the discussion.

On January 13, 1994, Missouri Highway Patrol Corporal Kevin Glaser monitored another drug transaction between Suggs and Webster. After searching Suggs and his residence to verify that both were free of drugs, Corporal Glaser concealed a video camera in the living room of Suggs’s trailer home. In addition, the officer hid a miniature tape recorder on Suggs. Corporal Glaser then secluded himself within the bedroom of the house and waited for Webster’s imminent appearance. When Webster arrived at the trailer, he and Suggs conducted a transaction in which Suggs purchased an approximate half-ounce of crack cocaine for $600. The recording devices memorialized the deal, but there were problems with both media. The separate audio recordings created by the instruments were, again, partially inaudible. Additionally, as the stationary video camera was unable to fully accommodate the movements of its ambulatory subjects, Webster and Suggs at some points ventured beyond the range of the camera’s lens. The video does reveal, however, that the two men exchanged items across a kitchen counter, and Trooper Glaser later retrieved from the counter a substance that proved to be crack cocaine.

During this period of time when Webster was unknowingly transacting business with a confidential informant, he had other, more overt, encounters with law enforcement authorities. Police officers in Carbondale, Illinois arrested Webster on January 25,1994 as he exited a train from Chicago. The officers found that Webster was carrying a large amount of cocaine in a leather bag. In subsequent custodial interviews, Webster admitted his involvement in a narcotics distribution enterprise and informed investigators that he had purchased “for his protection” a firearm with a “banana clip.” This admission corroborated statements made by Suggs, indicating that Webster had brandished a similar weapon to the informant and had stated that “if something go down, I [Webster] have some protection.” Authorities, though, were unable to locate the gun during a search of the residence in which Webster said the weapon was stored. Nonetheless, while thereafter executing a federal search warrant at a different dwelling, officers discovered several individuals, including Webster, along with a banana clip like Webster had described. The officers also found within the house illegal drugs, drug paraphernalia, and paperwork in Webster’s name. In a contemporaneous consensual search of Webster’s parked vehicle, the officials found over 700 rounds of ammunition for the banana clip.

The Government returned a seven count indictment against Webster, charging him with: 1) one count of conspiracy to distribute cocaine base (count one); 2) two substantive counts of distributing cocaine base (counts two and three); 3) one count of using a firearm during the commission of a drug trafficking felony (count four); 4) one count of unlawful acquisition of a firearm by a convicted felon (count five); and 5) two counts of possession of a firearm by a felon (counts six and seven). At Webster’s trial, Trooper Woodruff testified during cross-examination that her review of the recording she caused to be made clearly indicated to her “that Mr. Webster is talking to Mr. Suggs, and they are discussing future drug transactions.” The prosecutor did not, however, play the tape of that conversation for the jury. In contrast, the prosecutor did play for the jury both the audio and video tapes of the deal that took place at Suggs’s trailer.

On the fourth and last day of trial, Webster relayed to the district judge that he wished to discharge his appointed counsel, Mr. Jeffrey Rosanswank. The following colloquy, edited for relevance, then ensued:

THE COURT: All right. Come up, Mr. Webster, to the podium.... Now, I am going to ask you some questions, and the questions that I am going to ask you involve your apparent request to discharge your attorney. And, accordingly, I will not allow those questions and your answers to be used against you. But do you desire to discharge your attorney?
THE DEFENDANT: Yes, I do, your Honor.
THE COURT: Now, we are in the middle of trial. As a matter of fact, we are near the end of the trial. If I allow you to discharge your present attorney, I am not going to continue the case, and I am not going to appoint another attorney for you. Do you still want to discharge him under those circumstanee[s]?
THE DEFENDANT: Well, I have a right, if I discharge my attorney, I have a right—
THE COURT: You do not have that right. We are in the middle of trial. This case is in jeopardy, so we must proceed. I will let you proceed, if you wish to proceed on your own, but I am not going to get another lawyer for you. It’s that simple. I will do this: If you want to represent yourself, I will allow you to do this for the remainder of the trial, but I am going to insist that Mr. Rosanswank sit with you in an advisory-attorney capacity. I am assuming you are not skilled in the law. That’s true, is it not?
THE DEFENDANT: That’s true.
THE COURT: You have no legal training, do you?
THE DEFENDANT: That’s true.
THE COURT: You would not have the slightest idea about how to consider the Court’s instructions that we are going to give to the jury at the end of the ease, do you?
THE DEFENDANT: No, I don’t.
THE COURT: Now, under all of those circumstances, and knowing that you are not skilled, and that you do have a skilled attorney representing you at the present time, do you still want to discharge him?
THE DEFENDANT: Yes, I do, your Honor.

After the court undertook an assessment of Webster’s capacity to knowingly and voluntarily waive his right to counsel, the dialogue continued:

THE COURT: You understand that we are still going to proceed in this matter, and you are going to have to represent yourself, with Mr. Rosanswank advising you?
THE DEFENDANT: Yes, I do.
THE COURT: And you want to proceed on that basis?
THE DEFENDANT: The question is, your Honor, I really don’t, but—
THE COURT: Well, you want another lawyer, and I have already told you I am not going to stop this trial and get you another lawyer. But other than that, do you still want to proceed in the way that I have just suggested?
THE DEFENDANT: I don’t want to proceed in that way. I say I don’t want to proceed in that way.
THE COURT: Well, that’s the only way I am going to let you. I am going to let you proceed in one of two ways: The first is[,] we will go along just as we have been. Mr. Rosanswank will continue to be your attorney.... Now, the second option is that Mr. Rosanswank be discharged, and that you represent yourself. But if we do that, I am going to insist that Mr. Rosan-swank stay at your side in an advisory capacity. Now, which of the two ways do you wish to proceed? I am only going to let you go one of those two ways.
THE DEFENDANT: Well, I am discharging Mr. Rosanswank, and I know I can’t represent myself, so — I am just not going to do it both ways.
THE COURT: Well, you are going to do it one of the two ways.... [W]e do not allow a case to be disrupted at the very end of it, at the whim of a defendant, because you do not like the way Mr. Ro-sanswank may be representing your interests, or whatever your motivation is, to seek to discharge him. Now, do you wish to go ahead and represent yourself, with Mr. Rosanswank advising you, or do you wish to have him continue to serve as your attorney, or neither? If it’s neither, I will make the decision.
THE DEFENDANT: It’s neither.
THE COURT: All right. I am going to deny your request to discharge Mr. Rosan-swank, and I am going to insist that he continue to represent you.

The court then inquired into the basis for Webster’s discontent and allowed the defendant, without fear of incrimination, to make any statement for the record. Webster disclosed that he wished to discharge his attorney because he thought that the transcripts for certain pretrial hearings were inaccurate and contained statements from individuals who had not testified at the proceedings. After finding that the offered reasons had “nothing to do with the effectiveness of Mr. Rosanswank,” the court reaffirmed its decision denying Webster’s request to discharge his lawyer.

Later that day, the jury convicted Webster on all counts. The district court sentenced Webster to two hundred ninety-five months imprisonment, which included a mandatory sixty month consecutive term for using or carrying a firearm during and in relation to a drug trafficking crime. This appeal followed, and Webster now challenges his convictions by arguing that: 1) the district court violated his Sixth Amendment rights by improperly disposing of his request to discharge appointed counsel; 2) the district court committed error by admitting into evidence the audio and video recordings of narcotics transactions; and 3) the district court improperly instructed the jury on the law applicable to 18 U.S.C. § 924(c)(1) and, in any ease, there was insufficient evidence to sustain his conviction for using or carrying a firearm during and in relation to a drug trafficking crime. In light of the Supreme Court’s opinion in Bailey v. United States, — U.S.-, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), we reverse Webster’s conviction for violating 18 U.S.C. § 924(c)(1), but we affirm the district court in all other respects.

II. DISCUSSION

A. Webster’s Attempt to Replace Counsel

In asserting that the district court incorrectly disposed of his request to discharge Mr. Rosanswank, Webster basically advances two discrete arguments. First, he claims that the district court wrongfully refused to replace his court appointed attorney. Also, Webster maintains that the court’s action deprived him of his constitutional right to self-representation.

1. Attorney Discharge

A motion to substitute court appointed counsel is committed to the district court’s sound discretion. Hunter v. Delo, 62 F.3d 271, 274 (8th Cir.1995). To prevail on the request, a criminal defendant must demonstrate “a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.” United States v. Long Crow, 37 F.3d 1319, 1324 (8th Cir.1994) (quotations omitted), cert. denied, — U.S. -, 115 S.Ct. 1167, 130 L.Ed.2d 1122 (1995). “Last-minute requests to substitute defense counsel are not favored.” United States v. Klein, 13 F.3d 1182, 1185 (8th Cir.), cert. denied, — U.S.-, 114 S.Ct. 2722, 129 L.Ed.2d 846 (1994).

In this case, the district court acted well within its wide discretion when it declined to provide substitute counsel. Webster’s extremely untimely request, which came on the last day of trial, did not even begin to meet the standards for replacement set forth in our previous eases. Indeed, as the district court correctly observed, the alleged basis for Webster’s complaints had absolutely nothing to do with Mr. Rosanswank’s representation, but rather involved perceived inaccuracies in transcripts of pretrial proceedings. Accordingly, we find that the district court correctly refused Webster’s attempt to obtain substitute counsel.

2. The Right to Self-Representation

Webster alleges that the district court impinged upon his Sixth Amendment right to self-representation by offering him the “Hobson’s choice” of continued representation by a lawyer in whom he had lost all trust or proceeding pro se with that same attorney serving as standby counsel. Webster concedes that a trial judge may, over a pro se defendant’s objections, permissibly appoint standby counsel to assist the defendant in an advisory capacity. See McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 954, 79 L.Ed.2d 122 (1984). Still, he declares that the district judge in this case committed error by insisting that Mr. Rosanswank be Webster’s standby counsel. According to Webster, the district court could have cured the constitutionally offensive choice by displaying a willingness to appoint standby counsel other than Mr. Rosanswank.

We do not agree that the district court’s actions violated Webster’s Sixth Amendment rights. First of all, it does not appear to us that Webster successfully invoked his right to self-representation. A defendant who wishes to waive his right to counsel, and thereby to proceed pro se, must do so clearly and unequivocally. Hamilton v. Groose, 28 F.3d 859, 862-63 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 741, 130 L.Ed.2d 643 (1995). To the extent that Webster at all tried to express a desire to represent himself, a review of the record suggests that attempt was anything but clear and unequivocal. While conversing with the district judge, Webster never explicitly indicated that he wanted to proceed pro se; to the contrary, at one point he stated that he knew he could not represent himself. It was the trial judge who initially proposed that Webster might proceed pro se as an alternative to continued representation by Mr. Rosan-swank, and Webster’s primary, if not exclusive, objective seems to have been the procurement of substitute counsel. Recognizing that the district judge must “indulge in every reasonable presumption against a defendant’s waiver of his right to counsel,” id. at 862 (quotation and alteration omitted), we would be extremely reluctant to find that Webster clearly and unequivocally expressed his desire to represent himself.

Even assuming that Webster did correctly invoke this constitutional prerogative, his claim still fails. Appointment of standby counsel is within the discretion of the district court, and a pro se defendant does not enjoy an absolute right to standby counsel. Locks v. Sumner, 703 F.2d 403, 407-08 (9th Cir.), cert. denied, 464 U.S. 933, 104 S.Ct. 338, 78 L.Ed.2d 307 (1983); see also United States v. Swinney, 970 F.2d 494, 498 (8th Cir.)(“[T]he district court may properly require the defendant to choose either to proceed pro se, with or without the help of standby counsel, or to utilize the full assistance of counsel_”), cert. denied, 506 U.S. 1011, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992). It necessarily follows that a defendant does not have a right to standby counsel of his own choosing. See United States v. Mills, 895 F.2d 897, 904 (2d Cir.), cert. denied, 495 U.S. 951, 110 S.Ct. 2216, 109 L.Ed.2d 541 (1990); United States v. Martin, 790 F.2d 1215, 1218 (5th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 231, 93 L.Ed.2d 157 (1986). Where a district court has elected to appoint standby counsel, the defendant will be able to compel the attorney’s dismissal only by meeting the criteria applicable to the discharge of a lawyer fully representing the accused. See Swinney, 970 F.2d at 498-99 (applying general discharge test to standby counsel situation).

As discussed previously, Webster woefully failed to establish reasons justifying substitution of his appointed counsel. Naturally, then, he was not entitled to demand a different attorney to serve in a standby capacity. It makes no difference that, in this case, the advisory attorney would have been the same lawyer in whom Webster reportedly had lost confidence. The options offered by the district court, characterized by Webster as a “Hobson’s choice,” represented a reasonable balance between a respect for Webster’s asserted rights and an understandable desire to prevent disruption of an almost concluded criminal trial. See id. at 499 (“A defendant has no right to manipulate his right for the purpose of delaying and disrupting the trial.”)(quotations omitted). In fact, other circuits have expressly approved a district court’s decision to require the defendant to either continue with appointed counsel or proceed pro se with that same lawyer acting as a standby attorney. See, e.g., United States v. Mitchell, 788 F.2d 1232, 1236 (7th Cir.1986)(“[T]he trial court did not offer [the defendant] an impermissible choice by requiring him to proceed either pro se plus [unwanted] standby counsel or with an attorney he didn’t like.”). Webster made no allegation before the district court that Mr. Rosanswank had provided ineffective assistance, and he was thus faced with “a real alternative” between proceeding pro se or continuing with appointed counsel as his attorney. See United States v. Blum, 65 F.3d 1436, 1442 (8th Cir.1995)(dismissing similar “Hobson’s choice” argument where defendant had been offered “a real alternative”), cert. denied, — U.S.-, 116 S.Ct. 824, 133 L.Ed.2d 767 (1996). We find that the district court scrupulously honored Webster’s Sixth Amendment rights.

B. Admission of Tape Recordings

Webster complains that the district court wrongfully received into evidence the audio and video tapes produced by the Government. The admission of tape recordings is “within the sound discretion of the trial court and will not be reversed unless there has been an abuse of that discretion.” United States v. Martinez, 951 F.2d 887, 888 (8th Cir.1991)(quotations and alteration omitted), cert. denied, 503 U.S. 994, 112 S.Ct. 1695, 118 L.Ed.2d 407 (1992).

As a preface to the introduction of a recording, the Government must make a pri-ma facie showing of the tape’s trustworthiness. To decide if the Government has met its foundational burden, the district court uses as a general guideline the factors we enumerated in United States v. McMillan, 508 F.2d 101, 104 (8th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975). That case requires the prosecution to demonstrate:

(1) the recording device was capable of recording the events offered in evidence; (2) the operator was competent to operate the device; (3) the recording is authentic and correct; (4) changes, additions, or deletions have not been made in the recording; (5) the recording has been preserved in a manner that is shown to the court; (6) the speakers on the tape are identified; and (7) the conversation elicited was made voluntarily and in good faith, without any kind of inducement.

United States v. Roach, 28 F.3d 729, 733 (8th Cir.1994). These criteria are a useful gauge for determining whether the tape’s “substance and the circumstances under which it was obtained [provide] sufficient proof of its reliability.” Id. at 733 n. 4 (quotation omitted).

Even when the Government satisfactorily clears the McMillan hurdle, the defendant may still prevent admission of the tape by proving that it is inaccurate because of inaudibility or some other infirmity. United States v. Font-Ramirez, 944 F.2d 42, 47 (1st Cir.1991), cert. denied, 502 U.S. 1065, 112 S.Ct. 954, 117 L.Ed.2d 122 (1992). A partially inaudible recording will be inadmissible where the defendant establishes that the unintelligible portions are “so substantial, in view of the purpose for which the tape[ ] [is] offered, as to render the recording as a whole untrustworthy....” United States v. Huff, 959 F.2d 731, 737 (8th Cir.)(quotation omitted), cert. denied, 506 U.S. 855, 113 S.Ct. 162, 121 L.Ed.2d 110 (1992).

We conclude that the Government properly authenticated each of the three contested recordings under the McMillan factors. Webster maintains, however, that the two audio tapes are so inaudible that the district court should have prohibited their admission. He complains as well that the audio track of the video tape is hopelessly unintelligible; in addition, he claims that the video is inaccurate because the camera’s lens was partially obscured and because the stationary recorder was unable to completely track its subjects’ movements. We address these allegations seriatim.

1. The September 28, 1993 Audio Tape

We have listened to this tape and agree with Webster that a constant electronic hum severely hampers a listener’s ability to discern the recorded conversation. The district court did admit this tape into evidence; significantly, however, the Government never played it for the jury. Rather, the prosecutors offered the cassette primarily because its mere existence tended to corroborate the testimony of certain witnesses. Because the jury could not have been adversely affected by something that it never heard, we cannot say that the district court abused its discretion when it allowed the Government to introduce this properly authenticated tape. Likewise, the district court did not commit plain error when it allowed Trooper Paula Woodruff, in response to defense queries, to testify concerning her evaluation of the contents of this tape.

2. The January 13, 1994 Audio Tape

Webster did not object at trial to the introduction of this microcassette, and the district court did not commit plain error by accepting it into evidence. See Roach, 28 F.3d at 732 (applying plain error analysis where defendant had not objected to admission of tape).

3. The January 13, 1994 Video Tape

We have little difficulty in deciding that the district court properly exercised its discretion by approving the admission into evidence of this video. True, the camera’s lens was partially obscured, and the recording did not preserve all of Suggs’s and Webster’s actions; furthermore, the tape’s audio track is less than clear. Nevertheless, these infirmities are not so pervasive as to render the tape as a whole untrustworthy. The video still has significant probative value, for it shows Suggs and Webster conducting some sort of trade across a kitchen counter. After this exchange, Webster can be seen holding in his hand what appears to be a wad of money. Moreover, as noted above, Corporal Glaser later collected crack cocaine from the counter. Given these facts, we think it was certainly within the district court’s discretion to admit this videotape.

C. Webster’s Conviction Under 18 U.S.C. § 924(c)(1)

In his initial brief before this Court, Webster alleged that the Government presented insufficient evidence to sustain his conviction for using or carrying a firearm during and in relation to a drug trafficking crime. After we accepted the case as submitted, the Supreme Court in Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), explained that the word “use” as employed in 18 U.S.C. § 924(c)(1) has a narrower meaning than this Court had previously indicated. Compare id. at-, 116 S.Ct. at 505-09 with United States v. Matra, 841 F.2d 837, 841-43 (8th Cir.1988). Consequently, we granted the parties’ motions to allow supplemental briefing addressing the effect of Bailey on this appeal.

Webster raises two grounds in support of his argument that the recent Supreme Court opinion compels reversal of this firearm conviction. First, he asserts that the district court’s jury instruction was erroneous. In addition, he continues to maintain that there was insufficient evidence to support his conviction under 18 U.S.C. § 924(c)(1). We reverse for instructional error.

In relevant portion, the district court charged the jury:

[I]n order to sustain its burden of proof for the crime of using or carrying a firearm during and in relation to ... a drug trafficking crime, as charged in Count 4 of the indictment, the Government must prove these following two essential elements beyond a reasonable doubt:
And first:
The defendant committed the crime of conspiracy to distribute cocaine base, and to possess cocaine base with the intent to distribute it, as charged in the indictment.
And second:
During and in relation to the commission of that crime, the defendant knowingly used or carried one or more firearms.
Now, the phrase “uses or carries a firearm” means having a firearm or firearms available to assist or aid in the commission of the crime alleged in Count 1 of the indictment.
In determining whether the defendant used or carried a firearm, again, you can consider all of the factors received in evidence in the case, including the nature of the underlying drug trafficking crime alleged; the proximity of the firearm in question; the usefulness of the firearm to the crime alleged; and the circumstances surrounding the presence of the firearm.
Now, the Government is not required to show that the
defendant actually displayed or fired the weapon.
The Government is required, however, to prove beyond a reasonable doubt that the firearm was in the defendant’s possession, or under the defendant’s control, at the time that a drug trafficking crime was committed, or otherwise facilitated the commission of the offense, or at least had a role in the offense.

Because Webster did not object to this instruction as given, we may reverse only if the district court committed plain error. See United States v. Ryan, 41 F.3d 361, 366 (8th Cir.1994)(en banc), cert. denied, — U.S. -, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995).

In United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Supreme Court elaborated upon the plain error analysis applicable in cases, like the one presently before us, governed by Federal Rule of Criminal Procedure 52(b). Before considering reversal under that Rule, we must first find that the district court committed an unwaived error. Id. at 732-34, 113 S.Ct. at 1776-78. Second, the error must be plain, that is, clear and obvious, under current law. Id. at 734, 113 S.Ct. at 1777-78. Third, the appellant must show that the error affected his substantial rights by prejudi-cially influencing the outcome of the district court proceedings. Id. at 734-35, 113 S.Ct. at 1777-78. Where these prerequisites are met, a court of appeals may order correction of the mistake. Id. at 735, 113 S.Ct. at 1778. We will exercise this discretion in the appellant’s favor where the error “‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at 736, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936))(alteration omitted).

Viewing the facts of this case in light of the Supreme Court’s decision in Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), we find that the district court committed error. The judge informed the jury that a defendant “uses or carries a firearm” whenever he has “a firearm or firearms available to assist or aid in the commission” of a drug trafficking offense. In evaluating whether Webster “used or carried” the weapon, the jury was told to consider, inter alia, “the proximity of the firearm in question” and “the circumstances surrounding the presence of the firearm.” It seems to us that the cumulative effect of these and other statements allowed the jury to find that Webster criminally used or carried the weapon in question due to the “mere presence and ready availability of [the] firearm.” United States v. Mejia, 8 F.3d 3, 5 (8th Cir.1993)(quotation omitted). Of course, a conviction based on this factual finding would have been entirely in accord with the previous law of this circuit, but it is inconsistent with the Supreme Court’s admonition that “the inert presence of a firearm, without more, is not enough to trigger § 924(c)(1).” Bailey, — U.S. at -, 116 S.Ct. at 508; see also United States v. Price, 76 F.3d 526, 527-28, 530 (3d Cir.1996)(finding that Bailey invalidated instruction very similar to the charge here, but concluding that the error in that case was harmless).

To determine whether the error is clear under current law, we must resolve a question expressly left unanswered in Olano. There, the Court declined to consider “the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.” Olano, 507 U.S. at 734, 113 S.Ct. at 1777. Following the lead of several of our sister circuits, we conclude that, in deciding whether an error is clear under current law, the proper focus is the law applicable on appeal rather than at trial. See United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994)(“‘[C]urrent law' as used in [plain error analysis] means the law current at the time of the appeal, not at trial.”), cert. denied, — U.S. -, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995); United States v. Retos, 25 F.3d 1220, 1230 (3d Cir.1994)(assessing plain error under law applicable at time of appeal); United States v. Jones, 21 F.3d 165, 173 & n. 10 (7th Cir.1994)(same). But cf. United States v. Washington, 12 F.3d 1128, 1138-39 (D.C.Cir.)(deeiding that plain error framework is inapplicable where the error was not obvious under current law at the time of trial, but analyzing claims under the “supervening decision” doctrine), cert. denied, — U.S. -, 115 S.Ct. 98, 130 L.Ed.2d 47 (1994). As such, we find the district court’s § 924(c)(1) instruction to be clearly erroneous under current law.

Furthermore, Webster has successfully demonstrated that the error affected his substantial rights. As Chief Judge Arnold counseled in his separate opinion in Ryan:

Here, the instruction was erroneous with regard to an essential element of the crime. Had the jury been properly instructed in this case, it could have reached a different conclusion. Consequently, the judicial proceeding was compromised, and [the criminal defendant] was unavoidably prejudiced.

Ryan, 41 F.3d at 370 (Arnold, C.J., concurring and dissenting); cf. Viola, 35 F.3d at 42 (finding that where superseding opinion alters previously settled law, it is no longer necessary under the plain error analysis for the defendant to prove prejudice; instead, the Government must show that the error did not affect the defendant’s substantial rights). We have already mentioned that the pertinent instruction in the ease sub judice allowed the jury to convict Webster on this count even though it might not have found the factual predicate required by Bailey. Accordingly, we believe that Webster has satisfactorily established that the error “affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. at 1778.

Finally, because it is unclear whether a properly instructed jury would have found Webster guilty of violating § 924(c)(1), we feel that a failure to correct the district court’s error could “result[ ] in a miscarriage of justice” and would “ ‘seriously affect[ ] the fairness, integrity, or public reputation of judicial proceedings.’ ” Ryan, 41 F.3d at 366 (quoting Olano, 507 U.S. at 736, 113 S.Ct. at 1779). We therefore find it necessary to exercise our discretion under Rule 52(b) and reverse Webster’s conviction for using or carrying a firearm during and in relation to a drug trafficking crime.

III. CONCLUSION

We reverse Webster’s conviction for using or carrying a firearm during and in relation to a drug trafficking crime and remand for a new trial on that count, but we affirm his convictions on the six remaining counts in the indictment.

      . Webster initially raised an additional ground for relief claiming that the district court committed error in sentencing. He has since voluntarily withdrawn this argument.

      . Webster additionally contends that the district court, before making its decision, did not adequately consider the grounds underlying his motion. Of course, once an indigent defendant requests substitute counsel, “the court has a duty to inquire into the factual basis of the defendant's dissatisfaction.” United States v. Blum, 65 F.3d 1436, 1441 (8th Cir.1995), cert. denied, -U.S. -, 116 S.Ct. 824, 133 L.Ed.2d 767 (1996). Here, the district court granted Webster leave to freely explain the reason for his discontent. Only after Webster had taken advantage of this opportunity did the court conclusively deny the request for replacement counsel. We therefore conclude that the district court satisfactorily inquired into the basis of Webster's dissatisfaction.

      . In fact, the district court could have denied outright Webster’s petition to represent himself. "ITlhe right to self-representation is unqualified only if demanded before trial. Once trial commences, that right is subject t<3 the trial court’s discretion which requires a balancing of the defendant’s legitimate interests. in representing himself and the potential disruption and possible delay of proceedings already in progress.” United States v. Wesley, 798 F.2d 1155, 1155-56 (8th Cir.1986) (citation omitted). Under the circumstances of this case, it would have been within the district court’s discretion to altogether refuse Webster’s request to proceed pro se for the few hours that remained in his trial.

      . Webster also urges us to find that the district judge committed error by neglecting to assess the tapes in camera before they were played for the juiy. We acknowledge that, where possible, it is good practice for the district court to make a pretrial evaluation of a recording's admissibility. See United States v. Nicholson, 815 F.2d 61, 62-63 (8th Cir.1987). In this case, however, the defense waited until trial before it questioned the tapes’ reliability. As observed by our colleagues on the First Circuit:
      If [a pretrial assessment of admissibility] is not possible, we see no reason why the district court must lengthen a trial by listening to the tapes outside the presence of the jury. Some tape recording playbacks run for a considerable period of time. If the recordings are properly authenticated, the trial judge can listen to them as they are played to the jury and rule on objections when made.

        United States v. Carbone, 798 F.2d 21, 25 (1st Cir.1986). We agree with this statement, and we thus decide that the district judge did not commit error when he failed to originally listen to the tapes outside the presence of the jury. See Nicholson, 815 F.2d at 63 (“We disagree with any suggestion, however, that a failure to [listen to tapes before trial] necessarily indicates an abuse of discretion.”).

      . Also, contrary to Webster’s assertions, the district court did not permit Corporal Glaser to comment inappropriately about what was portrayed on the video.

      . This serves to distinguish the case at bar from United States v. McKinney, 79 F.3d 105, 108-09 (8th Cir.1996), in which we deemed a Bailey challenge waived because, among other factors, the appellant "did not argue in his initial appeal brief that his conviction for using firearms was in any way infirm.' ’

      . Though the Supreme Court recognized that in some situations errors might be presumed prejudicial or corrected despite their effect on the outcome, see Olano, 507 U.S. at 735, 113 S.Ct. at 1778, this is not such a “special” case.

      . The Government claims that the instruction adequately defined the term "carry,” but we disagree. In fact, it appears that this Court’s traditional definition of the term “use” was so expansive that it effectively swallowed the word “carry.” Prior to Bailey, we had infrequent occasion to explicate on the meaning of “carry,” and we have only recently held that a person carries a weapon for purposes of § 924(c)(1) when he bears “the firearm on or about his person.” United States v. White, 81 F.3d 80, 83 (8th Cir.1996). The district judge in this case, acting consistently with our previous caselaw, perpetuated the subordination of the term. His instruction defined “use” and “carry” collectively, and the charge did not refer to the words as having separate meanings. Therefore, we are unable to conclude that the court properly apprised the jury of the meaning of “carry.”

      . In reaching this conclusion, we reject the Government’s contention that no rational jury could fail to find that Webster used or carried the weapon in question. In our view, a properly instructed jury might reasonably have determined that the Government’s proof did not establish a violation of § 924(c)(1). At the same time, though it is a close question, we hold that there was sufficient evidence to support Webster's conviction on this count.

      . Because we reverse for trial error instead of evidentiary insufficiency, we remand for a new trial on this count. See United States v. Schrader, 10 F.3d 1345, 1352 (8th Cir.1993)(“As there was trial error but not insufficiency of the evidence, defendants may be retried.”). We note, though, that any subsequent prosecution for this offense must be consistent with the wording of the original indictment. In other words, the Government must prove beyond a reasonable doubt that Webster used or carried the gun during and in relation to the drug conspiracy charged in count one of the indictment.