by a defendant, it is actively employed, hence "used." Id. at 507-508. In so finding, the Court acknowledged the coercive power of intimidation inherent in an offender's explicit reference to, or the visible presence of, a firearm. Id. at 508. "A reference to a firearm calculated to bring about a change in the circumstances of the predicate offense is a 'use,' just as the silent but obvious and forceful presence of a gun on a table can be a 'use.'" Id. The Court thus plainly endorsed a threat-as-use reading of Section 924(c).
Such a reading takes on great significance in applying Bailey to the instant matter. We note first that Bailey, decided after both Polanco's trial and appeal, has retroactive effect. See Rodriguez v. United States, 933 F. Supp. 279, 1996 WL 361538, at *2 (S.D.N.Y. 1996); United States v. Quinones, 1996 U.S. Dist. LEXIS 8892, No. 89 Cr. 291 (RWS), 1996 WL 351290, at *2 (S.D.N.Y. June 26, 1996); see also Paese v. United States, 927 F. Supp. 667, 670-71, 1996 WL 264980, at *4 (S.D.N.Y. 1996). The issues raised therein are thus properly before us here. We note further that the Government has conceded that the instructions given at Polanco's trial were inconsistent with Bailey as they failed to charge the jury on active employment. Government's Memorandum of Law in Opposition to Luis Polanco's Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 and Application for Bail at 15.
However, it is well-settled that the mere fact of an error in a jury charge is not by itself adequate grounds for the grant of a Section 2255 application. Petitioner must establish that he has suffered a deprivation of constitutional rights, resulting from constitutional error at trial or sentence, want of jurisdiction in the sentencing court, or an error of law or fact that constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962); see Napoli v. United States, 32 F.3d 31, 35 (2d Cir. 1994), cert. denied, 130 L. Ed. 2d 784, 115 S. Ct. 900 (1995). A faulty jury instruction, alone, does not rise to this level, particularly when the evidence suffices to establish guilt. Ianniello v. United States, 10 F.3d 59, 63 (2d Cir. 1993).
Viewed in light of Bailey, the facts underlying the July 26, 1989, drug transaction support Polanco's conviction under Section 924(c). The prominent display of a firearm on the person of Polanco's co-conspirator, who was present throughout the negotiations between Joy and Polanco, evidences a conspiratorial intent to intimidate Joy. The handgun was plainly visible in the waistband of the co-conspirator's pants; Joy testified at trial that he observed the weapon, Trial Tr., p. 227. Joy also testified that, feeling threatened, he submitted to Polanco's demands, id. ; the gun thus had its intended effect.
This "silent but obvious and forceful presence of" the firearm satisfies Bailey's active-employment requirement. Bailey, 116 S. Ct. at 508; see United States v. Giraldo, 80 F.3d 667, 675 (2d Cir. 1996) (declining to find "use" in light of fact that gun was not visible). Indeed its presence in apartment # 14 depicts a far more threatening scenario than the illustration offered in Bailey of a gun prominently placed on a table. Bailey, 116 S. Ct. at 508. Initially, Polanco's co-conspirator, bearing the .38 Titan, was positioned so as to block Joy's egress from the living room, where the cocaine sale was taking place. During the negotiations, he remained in the immediate vicinity; when an argument arose between Joy and Polanco, this unidentified man approached Joy and began "jumping around" him, Trial Tr., p. 227. More so than the stationary and inert presence of a gun on a table, the firearm here, effectively encroaching upon Joy's very freedom to leave, was clearly "calculated to bring about a change in  circumstances," per Bailey, 116 S. Ct. at 508.
Analyzing the evidence under the "use" prong of Section 924(c), we conclude that the visible presence of the gun on the person of Polanco's co-conspirator constitutes active employment by Polanco. Whereas the facts may not suffice to extend the co-conspirator's Section 924(c) culpability to Polanco under the statute's "carry" prong, see Giraldo, 80 F.3d at 676 (requiring reasonable foreseeability if extending responsibility under conspiracy theory, and specific knowledge and affirmative act relating to firearm if culpability is to be extended through aiding and abetting); United States v. Medina, 32 F.3d 40 (2d Cir. 1994) (specific knowledge and participation required under aiding-and-abetting theory); Pinkerton v. United States, 328 U.S. 640, 646-48, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946) (reasonable foreseeability required under conspiracy theory); see also United States v. Pimentel, 83 F.3d 55, 58 (2d Cir. 1996) (based on prior "training" and "routine," as well as own admission at trial, defendant "had reason to believe" firearm would be carried by co-conspirator), such an extension through "use" does not require the same particularized showing, see United States v. Thomas, 86 F.3d 647, 1996 WL 289972, at *3 (7th Cir. 1996) (ruling that active employment of handguns by co-conspirators would support defendants' "use" conviction, but remanding case as determination was one for jury, not court), at least not in the intimidation-as-use context. In the instant matter, Polanco' co-conspirator essentially served as the table referred to in Bailey -- a vessel, albeit ambulatory, on which a firearm was visibly displayed. Just as the obvious presence of a firearm on a table would amount to "use" under Bailey, so the noticeable presence of the gun in the waistband of the co-conspirator's pants constitutes active employment by Polanco here.
The Government argues that the discovery, during the August 1, 1989, search, of the handgun atop the cocaine bar also suffices, by itself, to support Polanco's "use" conviction. We disagree. The mere fact that a firearm was visible on the bar at the time of the search, when no sale was underway, does not constitute intimidation. Indeed, in similar cases, the Government has conceded that the recovery of drugs and guns from an apartment during a lawful search fails, in light of Bailey, to sustain a conviction for "use." See United States v. Hernandez, 85 F.3d 1023, 1032, 1996 WL 309980, at *8 (2d Cir. 1996). The fact that the gun here was in plain view during execution of the warrant is of no moment.
Therefore, as the evidence adduced at trial indicates that the gun was visibly displayed during the narcotics transaction, we find, per Bailey, that the record supports Polanco's conviction and sentence for "use" of a firearm under Section 924(c). Accordingly, the Court denies both Polanco's motion to vacate and the bail application. As we find that the petition presents a question of substance for appellate review, a certificate of appealability will issue.
Dated: July 24, 1996
New York, New York
Leonard B. Sand
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