know which of the bases premised the jury's conclusion. Id.
Joseph claims that in light of the new narrower definition of "use" found in Bailey, the evidence against him was insufficient for conviction under § 924(c)(1). Review of the Court of Appeals 1989 decision in this case, Joseph, 282 U.S. App. D.C. 102, 892 F.2d 118, makes it clear that defendant-petitioner's contention is without merit. In its decision, the Court of Appeals specifically considered Joseph's challenge on the "carry" prong and found that the evidence was sufficient to uphold Joseph's conviction. Joseph, 892 F.2d at 125-26. That decision is not affected by the Supreme Court's decision in Bailey because Bailey went solely to the definition of "use," and not "carry." Therefore, this Court need not revisit the question of whether the evidence was sufficient to convict on the "carry" prong.
2. Improper Instruction on "Use"
The Supreme Court has distinguished cases where one basis for conviction is later found to be unconstitutional or illegal, rather than merely based on insufficient evidence. Yates v. United States, 354 U.S. 298, 312, 1 L. Ed. 2d 1356, 77 S. Ct. 1064 (1957); Griffin, 502 U.S. 46.
, 116 L. Ed. 2d 371, 112 S. Ct. 466 In such cases, a finding that one basis for conviction was illegal or unconstitutional is grounds for setting aside a verdict, even if the jury could have convicted on an alternate, legal ground. Id. One example of legal insufficiency is presentation to the jury of a "theory of conviction . . . [that] fails to come within the statutory definition of the crime." Griffin, 502 U.S. at 59.
In light of the Supreme Court's decision in Bailey, a jury instruction that defines "use" too broadly would appear to create the type of improper "theory of conviction" envisioned by the Court in Griffin, and thus be grounds for setting aside the verdict. The question this Court must decide, therefore, is whether the instruction given to the jury in this case was so broad as to create an illegal basis for conviction.
Reviewing a transcript of its instructions to the jury, the Court finds that it specifically told the jurors that "the term 'use' means to employ or avail oneself of." Trial Tr., June 21, 1988 at 185 (emphasis added). The Court in Bailey stated that definitions of "use" such as "'to employ' [and] 'to avail oneself of' . . . imply action and implementation." Bailey, 116 S. Ct. at 506. Therefore -- far from describing a mere passive use of a firearm -- this Court employed almost the exact language used by the Supreme Court to describe the proper interpretation of § 924(c)(1). The Court's instruction conformed to the Bailey rule and defendant-petitioner's motion for a new trial on the basis that the court improperly instructed the jury is without merit.
Having rejected both of Joseph's claims, the Court will deny his motion. An appropriate order accompanies this memorandum opinion.
United States District Judge
This matter comes before the Court on Defendant-Petitioner Ivan Joseph's Motion for Relief from Conviction Pursuant to 28 U.S.C. § 2255. For the reasons stated in the foregoing opinion, it is hereby ORDERED that the defendant's motion BE DENIED.
United States District Judge