In what circumstances will a jury at a federal criminal trial find that the use of a firearm under section 924(c) did not constitute a criminal offence?

In this case, since the only evidence connecting Ruiz Jr. with the gun was that he carried it in his waistband while delivering the drugs, the jury's finding of guilt under section 924(c) was undoubtedly based on the "carry" theory and did not involve the "use" prong upon which the jury was incorrectly instructed. Under the circumstances, there is no risk that this jury returned its guilty verdict "on the basis of acts that did not constitute a criminal offense." United States v. Pimentel, 83 F.3d 55, 60 (2d Cir.1996). The error in the instruction was harmless.