UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

JOSEPH, IVAN T.


96-3105a

D.C. Cir. 1999


*	*	*


Wald, Circuit Judge: Appellant Ivan T. Joseph was con- victed in 1988
for several criminal offenses including violation  of 18 U.S.C. s
924(c)(1), which mandates a prison term of five  or more years for
anyone who "uses or carries a firearm"  "during and in relation to" a
drug trafficking crime. The  conviction was affirmed on appeal. See
United States v.  Joseph, 892 F.2d 118 (D.C. Cir. 1989). Six years
later Joseph  filed a motion under 28 U.S.C. s 2255 to vacate, set
aside, or  correct his sentence, arguing that the evidence presented
at  trial was insufficient to support a s 924(c)(1) conviction and 
that the jury instruction defining "using" was flawed in light  of
Bailey v. United States, 516 U.S. 137 (1995). He now  appeals the
district court's denial of the s 2255 motion, see  United States v.
Joseph, 939 F. Supp. 26 (D.D.C. 1996),  repeating the same arguments.
Joseph presents two new  arguments as well--that the jury instruction
defining "carry- ing" a firearm was flawed in light of the recently
decided case  of Muscarello v. United States, 118 S. Ct. 1911 (1998),1
and  that the indictment itself did not follow the statutory descrip-
tion of the offense. We agree with the district court's  disposition
of the "using" instruction and sufficiency claims  and hold further as
to the "carrying" claim that Muscarello  does not render erroneous the
"carrying" instruction and that  the indictment was proper.


I. Background


Joseph and his younger brother Lawrence Mayers (also  known as Shawn
Joseph) arrived by train at Union Station in 




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n 1 We ordered the parties to address the effect of Muscarello. See 
United States v. Joseph, No. 96-3105 (D.C. Cir. Sept. 1, 1998) (per 
curiam).


Washington, D.C. on February 23, 1988. At the time they  came under
police observation Mayers carried a tote bag.  The brothers walked to
a public telephone and Joseph placed  a call. Police officers
Detective Curley and Sergeant Bren- nan approached them and began to
converse with them. In  the course of their conversation Curley
received permission  from Mayers to search the tote bag. Because
Mayers had  (falsely) told the officers that he was only seventeen
years  old, Curley also sought and obtained consent for the search 
from Joseph. As Curley began the search Joseph reached  into the bag,
asking that the search be conducted elsewhere,  and stating, "I have
underwear and things in the bag." After  moving to a less trafficked
part of the train station, Curley  continued the search. He found a
loaded gun and 70.55  grams of crack cocaine in the tote bag.2


Joseph and Mayers were tried jointly before a jury on four  counts: (1)
possession with intent to distribute cocaine base in  violation of 21
U.S.C. ss 841(a), (b)(1)(A)(iii) and 18 U.S.C.  s 2; (2) using and
carrying a firearm during and in relation  to a drug trafficking crime
in violation of 18 U.S.C.  s 924(c)(1)3; (3) possession of an
unregistered firearm in 




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n 2 Additional facts concerning the events at Union Station are set 
out in our opinion in Joseph's direct appeal. See Joseph, 892 F.2d  at
120-21.


3 Subsection (c)(1) has been amended in ways not relevant to this  case
since Joseph was indicted. It currently provides in full:


Whoever, during and in relation to any crime of violence or  drug
trafficking crime (including a crime of violence or drug  trafficking
crime which provides for an enhanced punishment if  committed by the
use of a deadly or dangerous weapon or  device) for which he may be
prosecuted in a court of the United  States, uses or carries a
firearm, shall, in addition to the  punishment provided for such crime
of violence or drug traf- ficking crime, be sentenced to imprisonment
for five years, and  if the firearm is a short-barreled rifle,
short-barreled shotgun,  or semiautomatic assault weapon, to
imprisonment for ten  years, and if the firearm is a machinegun, or a
destructive  device, or is equipped with a firearm silencer or firearm
 muffler, to imprisonment for thirty years. In the case of his 


violation of D.C. Code s 6-2311(a); and (4) possession of  ammunition
for the unregistered firearm in violation of D.C.  Code s 6-2361. With
respect to the s 924(c)(1) charge, the  jury instructions included the
following:


This offense has three elements which the government  must prove to
your satisfaction beyond a reasonable  doubt. First, that on or about
the date alleged in the indict- ment, the defendants used or carried a
firearm. Second, that the defendants had knowledge that what  they
were using or carrying was a firearm. Third, that they did so during
and in relation to the  commission of a drug trafficking crime. The
term "use" means to employ or avail oneself of. The term "carry" means
to bear on or about one's  person, or to be convenient of access or
within reach.


Transcript 6/21/88 at 185 (emphasis added). Joseph was  convicted on
all four counts, Mayers only on the first.4  Joseph received
concurrent sentences of ten years, one year,  and one year for the
first, third, and fourth counts, respec- tively. As required by s
924(c)(1), a consecutive five year  term was imposed for the second




__________

n second or subsequent conviction under this subsection, such  person
shall be sentenced to imprisonment for twenty years,  and if the
firearm is a machinegun, or a destructive device, or  is equipped with
a firearm silencer or firearm muffler, to life  imprisonment without
release. Notwithstanding any other pro- vision of law, the court shall
not place on probation or suspend  the sentence of any person
convicted of a violation of this  subsection, nor shall the term of
imprisonment imposed under  this subsection run concurrently with any
other term of impris- onment including that imposed for the crime of
violence or  drug trafficking crime in which the firearm was used or 


4 On direct appeal we explained the verdict on the ground that  the
jury "apparently conclud[ed] that the physical possession by the 
younger brother represented no more than his performing the duty  of a
conduit for appellant." Joseph, 892 F.2d at 125 n.3.


Joseph unsuccessfully challenged his conviction on several  grounds on
direct appeal. He argued, inter alia, that the  evidence was
insufficient to support the s 924(c)(1) conviction  on either the
"using" or "carrying" grounds. Explaining that  sufficiency under one
prong was enough to sustain the convic- tion, and without deciding
whether there was sufficient evi- dence that Joseph "used" a firearm,
the court held that "the  evidence fits well within the statutory
meaning of 'carrying'  as defined in our recent decision in United
States v. Evans,  888 F.2d 891 (D.C. Cir. 1989)." Joseph, 892 F.2d at
125-26.  Quoting Evans to explain the meaning of "carry," the court 
continued: "When a person 'has a present ability to exercise  dominion
and control over' a firearm and further has the  firearm 'within easy
reach and available to protect him during  his ongoing [drug
trafficking] offense,' [ ] he has rather  plainly committed the act
Congress intended to preclude by  the passage of the statute." Id. at
126 (first brackets in  original).


In 1995 the Supreme Court rejected as too broad this  circuit's
definition of "uses" in the s 924(c)(1) context. We  had held that "
'one uses a gun, i.e., avails oneself of a gun,  and therefore
violates [s 924(c)(1)], whenever one puts or  keeps the gun in a
particular place from which one (or one's  agent) can gain access to
it if and when needed to facilitate a  drug crime.' " Bailey, 516 U.S.
at 141 (quoting United States  v. Bailey, 36 F.3d 106, 115 (D.C. Cir.
1994) (in banc)). The  Supreme Court said, to the contrary, "use"
requires "active  employment of the firearm." Id. at 144.


Like many others before and after him, Joseph responded  to the Supreme
Court's Bailey decision by collaterally attack- ing his s 924(c)(1)
conviction in a 28 U.S.C. s 2255 motion.  Joseph argued that, under
Bailey, his conviction was based  on insufficient evidence of "uses or
carries" and rested on an  improper jury instruction about the meaning
of "use." The  district court rejected his sufficiency argument by
explaining  that in a case where two acts are charged in the
conjunctive  and "where a jury has two or more bases of conviction,
and  the evidence on one basis is insufficient, a conviction will 
nevertheless be upheld if the evidence was sufficient on the 
alternative basis." United States v. Joseph, 939 F. Supp. at 


27 & n.3 (citing Griffin v. United States, 502 U.S. 46, 56  (1991);
Turner v. United States, 396 U.S. 398 (1970)). The  district court
reasoned that this principle applied to Joseph  because Bailey only
involved the "use" prong of s 924(c)(1)  and thus did not undermine
this court's prior holding on  direct appeal that the evidence was
sufficient to sustain  Joseph's conviction under a "carry" theory. See
id. at 28.  Nor was the district court persuaded by Joseph's
objections  to the jury instruction on "use," even though that
instruction  did not use the Supreme Court's phrase "active employment
 of the firearm." The court considered the instruction ade- quate
because it defined "use" by other phrases which the  Supreme Court
considered the functional equivalent of "active  employment"--i.e.,
"to employ" and "to avail oneself of." Id.  The court relied on a
specific passage from Bailey to that  effect:


The word "use" in the statute must be given its "ordinary  or natural"
meaning, a meaning variously defined as "[t]o  convert to one's
service," "to employ," "to avail oneself  of," and "to carry out a
purpose or action by means of."  These various definitions of "use"
imply action and imple- mentation.


516 U.S. at 145 (citations omitted; brackets in original;  emphases
added).


Joseph now appeals the denial by the district court of his  s 2255
motion, and raises dual objections to the "carry"  charge as well.


II. Discussion5


A.Use of the Conjunctive in the Indictment


Joseph claims error in the fact that the indictment used the 
conjunctive ("used and carried") while the statute uses the 
disjunctive ("uses or carries"). This is not an error:




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n 5 In this section we do not distinguish between arguments raised  by
Joseph himself in his pro se briefs and by the federal public 
defender on Joseph's behalf.


The appellant contends that ... where legislative defini- tion of a
crime sets forth disjunctively a number of acts,  the commission of
any one of which will be a violation of  the statute, the prosecution
may in a single count of an  indictment or information charge several
or all of such  acts in the conjunctive and under such charge make 
proof of any one or more of the acts, proof of one alone,  however,
being sufficient to support a conviction. This is  correct.... 


District of Columbia v. Hunt, 163 F.2d 833, 837-38 (D.C. Cir.  1947)
(citing Crain v. United States, 162 U.S. 625 (1896)).  This rule
applies to s 924(c)(1) indictments drafted in the  conjunctive, which
can support a conviction if the jury is  charged and the violation is
proved disjunctively. See United  States v. Dickey, 102 F.3d 157, 164
n.8 (5th Cir. 1996). Using  the conjunctive in the indictment protects
the defendant's  right to be informed of the charge(s) he faces:


Frequently a statute will specify various ways in which a  particular
crime may be committed. It is enough to  allege one of these ways
without negativing the others.  Or the pleading may allege commission
of the offense by  all the acts mentioned if it uses the conjunctive
"and"  where the statute uses the disjunctive "or." But if the 
indictment or information alleges the several acts in the  disjunctive
it fails to inform the defendant which of the  acts he is charged with
having committed, and it is  insufficient.


1 Charles Alan Wright, Federal Practice and Procedure  s 125, at 563-65
(1999) (footnotes omitted).


B.The "Use" Jury Instruction


We agree with the district court's rejection of Joseph's  argument that
the "use" instruction was flawed. The jury  instruction did not need
to use the specific phrase "active  employment." Rather, it only
needed to convey the meaning  of that phrase to assure that a
conviction would satisfy  Bailey. We easily find that the instruction
here did so by  using two other phrases from the dictionary meaning of


that the Supreme Court itself cited as conveying its correct  meaning.
See Bailey, 516 U.S. at 145.


C.The "Carry" Jury Instruction


Joseph's objection to the "carry" instruction demands more  attention.
As this court's discussion of Evans in Joseph's  direct appeal
demonstrates, our circuit law has previously  defined "carry" by
focusing on present access and control.  See supra p. 5; see also
United States v. Toms, 136 F.3d 176,  181 (D.C. Cir. 1998) ("the
weapon must be convenient of  access and within reach"); United States
v. Anderson, 881  F.2d 1128, 1141 (D.C. Cir. 1989) (challenge to the
same  "carry" definition as given at Joseph's trial "almost frivolous"
 under plain error standard).6 Joseph argues that Muscarello  v.
United States, 118 S. Ct. 1911 (1998), added a further  restriction on
the meaning of "carry," requiring that a gun be  physically "conveyed"


In Muscarello, the Court upheld "carry" convictions  against a
defendant who kept a gun in his locked glove  


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n 6 For simplicity we refer herein to our circuit's previous defini-
tions of "carry" as the "Evans definition," recognizing that other 
cases have employed variations on the Evans language.


7 This argument was not raised at trial, on direct appeal, or  before
the district court on the s 2255 motion because Muscarello  was
decided by the Supreme Court after the district court ruled on  the s
2255 motion. The government argues that Joseph has proce- durally
defaulted this claim by not raising it earlier and that he  must
therefore demonstrate "cause and prejudice" or "actual inno- cence."
Joseph asks us to apply the much laxer harmless error  standard under
the supervening-decision doctrine.


In United States v. Perkins, 161 F.3d 66 (D.C. Cir. 1998), the  court
examined procedural default issues in the s 924(c)(1) context  in
great detail, but ultimately found it unnecessary to resolve them.  We
do likewise. Even under the standard Joseph requests and  which is
most favorable to him--harmless error--the conviction  survives. See
id. at 74. Harmless error review of a jury instruc- tion cannot cause
a reversal in the absence of error and, as we  explain, Muscarello
does not render the "carry" instruction improp- er.


compartment as he drove to a drug sale and two defendants  who stored
guns in the trunk of the car they rode in to a drug  sale. See
Muscarello, 118 S. Ct. at 1914. The Court recog- nized that "the word
'carry' has many different meanings."  Id.; see also id. at 1915
(referring to the twenty-sixth defini- tion of "carry" in the Oxford
English Dictionary). Its hold- ing, hence, was confined to determining
that the word's  "primary" meaning, involving conveyance and moving,
creat- ed a proper basis for a conviction under s 924(c)(1). That 
meaning, it held, was satisfied by placing firearms in an 
inaccessible part of a car which the defendants drove or rode  in.


Given the vehicular situation it was addressing, it is not  surprising
that the Muscarello opinion repeatedly emphasized  the centrality of
the concept of conveyance to its decision.  Indeed, it was only the
fact that the inaccessible guns had  been hidden in a moving vehicle
that gave credence to its  conclusion that the defendants were
"carrying" them. From  this emphasis, however, Joseph would have us
conclude that  proof of personal conveyance is a necessary element of
any  conviction under the statute's "carry" prong. But the Court 
never suggested that the meaning it applied in Muscarello is  the only
one that Congress intended to reach by making  "carry" a part of the
statute. To the contrary, Muscarello  explains that "a gangster might
'carry' a gun (in colloquial  language, he might 'pack a gun') even
though he does not  move from his chair." Id. at 1915-16. The statute
would be  satisfied in this non-conveyance scenario because of an
alter- native "meaning that suggests support rather than movement  or
transportation...." Id. at 1915.


Our Evans definition of "carry" is satisfied by proof of  dominion and
control and ready accessibility to a gun during  a drug crime. That
definition may vary in some aspects from  the support-based definition
cited in Muscarello, but again  Muscarello does not state that its
"support" example is the  only legitimate variation from personal or
vehicular "convey- ance" that satisfies the statute. Language in
Muscarello is  cited by Joseph for the proposition that either


session or conveyance in a vehicle is a prerequisite to "carry-


The question before us is whether the phrase "carries a  firearm" is
limited to the carrying of firearms on the  person. We hold that it is
not so limited. Rather, it also  applies to a person who knowingly
possesses and conveys  firearms in a vehicle, including in the locked
glove com- partment or trunk of a car, which the person accompa-


Id. at 1913-14. We think the better contextual reading of  this passage
is that the Court was simply setting up a  contrast between a
circumstance that everyone would agree  amounts to "carrying" and the
facts of the Muscarello case in  order to illuminate the precise issue
it was confronting.  Thus, what Muscarello tells us is that
conveyance-based and  support-based definitions are proper under the
statute, but it  certainly does not tell us that all other
definitions--such as  the Evans formula--are improper, especially as
applied to the  facts of this case. We note especially the Court's
endorse- ment of the term's application to the placement of the gun in
 a location which allows the person to "accompany" it in its  journey.
If, as here, the gun is in a tote bag rather than a  glove compartment
but the defendant "accompanies" it none- theless and maintains
dominion over and access to it, surely  the Court's concept of


Moreover, there are other indications in Muscarello that  the Evans
definition would meet the Court's approval. The  Court looked to the
purpose of including "carry" in the  statute, explaining that Congress
sought to "combat the  'dangerous combination' of 'drugs and guns,' "
id. at 1916  (quoting Smith v. United States, 508 U.S. 223, 240
(1993)),  and to "persuad[e] a criminal to leave his gun at home." Id.
 From these perspectives, surely Congress would want to  reach those
whose employment of firearms satisfies the "car- ry" definition given
at Joseph's trial ("to bear on or about  one's person, or to be
convenient of access or within reach").  Employing Muscarello's
phrasing, "[i]t is difficult to say that,  considered as a class,"
such people "are less dangerous, or 


less deserving of punishment, than those who carry handguns  on their
person." Id. at 1916-17. The Court also stated that  " '[c]arry'
implies personal agency and some degree of posses- sion...." Id. at
1917. Our Evans definition meets these  requirements.


We conclude that the only change in the definition of  "carry" in our
circuit worked by Muscarello is an expansion.  When a firearm is not
"carried" under the still valid Evans  definition, a conviction may
now be obtained if the defendant  conveys the firearm by car within
the meaning of Muscarello.


Joseph argues less strenuously that, even if the jury in- struction in
his case does not conflict with Muscarello for lack  of a personal or
vehicular conveyance requirement, the in- struction still allowed an
unlawful conviction for what the  Supreme Court called "transporting"
a firearm. In defining  "transport," the Court explained that it
"implies the move- ment of goods in bulk over great distances,"
pointing to the  use of a parcel delivery service as an example. See
id. In  that example, the Court noted that only the truck driver "has 
'carried' the package in the sense of 'carry' that we believe 
Congress intended." Id. The Court also distinguished the  two terms
"carry" and "transport" by noting that " '[c]arry'  implies personal
agency and some degree of possession,  whereas 'transport' does not
have such a limited connota- tion...." Id. Given the trial court
instruction's emphasis on  access in defining "carrying," no
conviction based on "trans- porting" would have been allowed.


We therefore hold that the "carry" instruction in Joseph's  trial was
proper. Because there was no error, the conviction  survives this
challenge.


D.Sufficiency of the Evidence


In an argument closely related to the "carry" jury instruc- tion claim,
Joseph contends that the evidence was insufficient  for a s 924(c)(1)
conviction on either a "use" or "carry"  charge. On direct appeal, we
said that "[o]n an indictment  charged in the conjunctive, when there
is evidence sufficient  to support conviction on one of the acts
charged, the convic-


tion will not be disturbed for lack of sufficiency of the  evidence."
Joseph, 892 F.2d at 125.8 We reviewed the  evidence, concluded that it
was sufficient under the Evans  definition of "carry,"9 and said that
whether it was sufficient  under the "use" prong was therefore
irrelevant. See id. at  125-26. That decision dooms Joseph's claim of
insufficiency  here. Had our understanding of "carry" at the time of
the  appeal proved too expansive under Muscarello, as Joseph  argues,
we would have had to revisit the sufficiency question  and give
careful scrutiny to Joseph's claim. But we are  satisfied the Evans
definition remains good law. Thus, since  Bailey addressed the "use"
prong only, and Muscarello does  not invalidate our view of "carry,"
the conclusion reached in  Joseph's direct appeal in 1989 that there
was sufficient evi- dence of "carrying" remains sound.


III. Conclusion


Because Joseph has highlighted no errors in his trial and  conviction,
the denial of his 28 U.S.C. s 2255 motion is  affirmed.


So ordered.




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n 8 We relied for this proposition on Turner v. United States, 396 
U.S. 398 (1970). Turner closely paralleled this case in that it 
involved a narcotic statute phrased in the disjunctive ("to purchase, 
sell, dispense, or distribute....") and an indictment substituting 
"and" for the statutory "or." See id. at 402 & n.2. The Court 
explained that "[t]he general rule is that when a jury returns a 
guilty verdict on an indictment charging several acts in the conjunc-
tive ... the verdict stands if the evidence is sufficient with respect
 to any one of the acts charged." Id. at 420.


9 We reached this conclusion because the jury convicted Joseph  on the
firearm possession count (plainly on a constructive or joint 
possession theory), he "was at all relevant times within a few steps 
of, and usually no more than an arm's span from, the firearm," and 
the possession convictions supported the conclusion that he "car-
ried" the gun knowingly and in relation to the drug trafficking 
crime. Joseph, 892 F.2d at 125-26.