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UNITED STATES v. MITCHELL

July 16, 1996

United States of America
v.
Wilson Mitchell, Petitioner.


JUNE L. GREEN, UNITED STATES DISTRICT COURT JUDGE


The opinion of the court was delivered by: GREEN

I. Introduction

 This matter is before the Court upon Petitioner Wilson Mitchell's Motion for Relief from Conviction Pursuant to 28 U.S.C. § 2255. Mitchell claims that his conviction under 18 U.S.C. § 924(c) violated the laws of the United States in that the instructions given to the jury by this Court were not in accord with Bailey v. United States, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995). Mitchell asks for a retrial on the Section 924(c) charge. The Court denies the Motion because the jury instruction he complains of did not work actual prejudice to his case at trial.

 II. Background

 District of Columbia police officers arrested Wilson Mitchell on November 6, 1989 during a traffic stop of a car in which Mitchell was a passenger. Police recovered an unlicensed .38 caliber pistol from the crotch area of Mr. Mitchell's pants. Upon searching the car, police recovered 54.73 grams of 75% pure crack cocaine. Wilson Mitchell was convicted under 21 U.S.C. §§ 841 (a) & (b) (1) (a) of "possession with intent to distribute 50 grams or more of cocaine." (Judgment ("J.") at 1.) Mitchell received a sentence of 165 months on this count. (J. at 2.) Mitchell was also convicted under 18 U.S.C. § 924(c) (1) which provides, in relevant part: "Whoever, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years . . . ." Mitchell received a sentence of 60 months on this count. (J. at 2.)

 Subsequent to Mitchell's conviction, the Supreme Court invalidated the District of Columbia Circuit's definition of the term "use" in Section 924(c) (1). Bailey v. United States, 133 L. Ed. 2d 472, 116 S. Ct. 501, 505 (1995). In Bailey, the Court held that, "Evidence of the proximity and accessibility of a firearm to drugs or drug proceeds is [not] alone sufficient to support a conviction for 'use' of a firearm during and in relation to a drug trafficking offense under 18 U.S.C. § 924(c) (1)," 116 S. Ct. at 503, and "that a conviction for 'use' of a firearm under § 924(c) (1) requires more than a showing of mere possession." Id. at 506. The Court concluded "that the language, context, and history of § 924(c) (1) indicate that the Government must show active employment of the firearm." Id.

 At the close of Mitchell's trial, the court instructed the jury that:

 
Title 18, Section 924(c) (1) of the United States Code makes it an offense for a person to carry or use a firearm during and in relation to a drug trafficking crime.
 
* * * *
 
The essential elements of this offense, each of which the Government must prove beyond a reasonable doubt, are:
 
First, that on or about the date alleged in the indictment, the Defendants used or carried a firearm, that is the firearm described in Count 2 of the indictment for Mitchell...
 
* * * *
 
The term use means to employ or to avail oneself of....
 
In order to establish that the Defendant used or carried the firearm, the Government need not show that the Defendant actually ...

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