THE FEDERAL CORNER
April 2007
YET ANOTHER “USE” OF A FIREARM ISSUE
F. R. (Buck) Files, Jr.
For today’s quiz, the question is this: Is it a violation of 18 U.S.C. §924(c)(1)(A) to receive a firearm in exchange for drugs? If you have been reading the opinions of the Supreme Court and the United States Court of Appeals for the Fifth Circuit, there is a temptation for you to say, “Yes, you goose, of course it is – and it has been the law in our Circuit since at least 1994.” See United States v. Zuniga, 18 F.3d 1254 (5th Cir. 1994) and United States v. Ulloa, 94 F.3d 949 (5th Cir. 1996).
On February 26, 2007, the Supreme Court granted certiorari in Watson v. United States, ___ S.Ct., ___, 2007 WL 559880 (U.S.) and I now have some concern as to whether the law is as clear as I thought it was. Surprisingly, there is a significant split in the Circuits on this issue: The First, Third, Fourth, Fifth, Eighth and Ninth Circuits have held that receiving a firearm in exchange for drugs is a §924(c)(1)(A) violation. The Sixth, Seventh, Eleventh and D.C. Circuits have held that an individual may not be convicted of a §924(c)(1)(A) violation based on the mere receipt of a firearm in exchange for drugs.
The question presented for review in Watson is as follows:
18 U.S.C. §924(c)(1)(A) criminalizes the ‘use’ of a firearm during and in relation to a drug trafficking offense and imposes a mandatory consecutive sentence of at least five years' imprisonment. In Bailey v. United States, 516 U.S. 173 (1995), this Court held that ‘use’ of a firearm under §924(c) means ‘active employment.’ Id. at 144. The question presented in this case is:
Whether mere receipt of an unloaded firearm as payment for drugs constitutes ‘use’ of the firearm during and in relation to a drug trafficking offense within the meaning of 18 U.S.C. §924(c)(1)(A) and this Court's decision in Bailey.
Watson v. United States, 2006 WL 309548 [Petitioner’s Brief].
Watson is a case that comes out of the United States Court of Appeals for the Fifth Circuit. The facts were not well developed in the panel’s per curiam opinion; however, they are well set out in the Government’s Brief:
As stipulated in the plea agreement, in November 2004, law enforcement officers, assisted by an informant, were investigating petitioner's drug trafficking and firearm activities. Pet. App. 8a. Petitioner had previously been convicted of two state felony offenses. Id. at 11a. Petitioner told the informant that he wished to purchase a firearm to protect himself against robbers. Id. at 9a. When petitioner asked the informant how much the firearm would cost, the informant replied that he did not know, but that his source would be willing to exchange the firearm for drugs. Ibid. Petitioner advised the informant that he would be willing to trade drugs for the firearm, and they arranged an exchange. Ibid .
On the day of the transaction, the informant and an undercover agent met petitioner outside petitioner's residence. Petitioner exchanged 24 dosage units of oxycodone hydrochloride for a “Desert Eagle” .50 caliber semi-automatic pistol. Pet. App. 9a. After the exchange, agents apprehended petitioner and found the pistol in his vehicle. Ibid. Law enforcement officers found additional firearms and controlled substances in a subsequent search of petitioner's residence. Id. at 9a-10a. Petitioner informed the agents that he had prescriptions for the controlled substances, and that he sometimes sold his prescribed drugs to raise extra cash. Id. at 10a. Petitioner also told the agents that he purchased the Desert Eagle pistol as a means to protect his drugs and his other firearms from theft. Id. at 10a-11a.
Watson v. United States, 2007 WL 244975 [Brief of the United States].
Watson was indicted in the Middle District of Louisiana for violations of 21 U.S.C. §841(a)(1), 18 U.S.C. §924(c)(1)(A) and 18 U.S.C. §922(g)(1). He entered into a plea agreement upon the above stipulated facts and agreed to plead guilty to all counts of the indictment; however, he reserved his right to appeal whether, as a matter of law, the stipulated facts would support a conviction for the use of a firearm during and in relation to a drug trafficking offense.
The district judge held, under Fifth Circuit law, that the stipulated facts were sufficient to support Watson’s guilt; thereafter, Watson appealed his §924(c)(1)(A) conviction. The Fifth Circuit affirmed Watson’s conviction based on Circuit precedent, citing Zuniga, supra and Ulloa, supra. United States v. Watson, 191 Fed.Appx. 326 (5th Cir. 2006).
Many lawyers who represent defendants in federal criminal cases would probably say that the Supreme Court had already written on this issue – and they would be close to being correct. In Smith v. United States, 113 S.Ct. 2050 (1993) the Court was presented with the “flip side” of this issue; i. e., whether trading a firearm for narcotics is a violation of 18 U.S.C. §924(c)(1)(A). The facts in Smithwere these:
Upon arriving at Hoag's motel room, the undercover officer presented himself to petitioner as a pawnshop dealer. Petitioner, in turn, presented the officer with a proposition: He had an automatic MAC-10 and silencer with which he might be willing to part. Petitioner then pulled the MAC-10 out of a black canvas bag and showed it to the officer. The officer examined the gun and asked petitioner what he wanted for it. Rather than asking for money, however, petitioner asked for drugs. He was willing to trade his MAC-10, he said, for two ounces of cocaine. The officer told petitioner that he was just a pawnshop dealer and did not distribute narcotics. Nonetheless, he indicated that he wanted the MAC-10 and would try to get the cocaine. The officer then left, promising to return within an hour.
Rather than seeking out cocaine as he had promised, the officer returned to the Sheriff's Office to arrange for petitioner's arrest.
What is interesting about Smith is the Court’s parsing of the term “to use:”
Webster's defines ‘to use’ as ‘[t]o convert to one's service’ or ‘to employ.’ Webster's New International Dictionary 2806 (2d ed. 1939). Black's Law Dictionary contains a similar definition: ‘[t]o make use of; to convert to one's service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of.’ Black's Law Dictionary 1541 (6th ed. 1990). Indeed, over 100 years ago we gave the word ‘use’ the same gloss, indicating that it means “ ‘to employ’ ” or “ ‘to derive service from.’ ” Astor v. Merritt, 111 U.S. 202, 213, 4 S.Ct. 413, 419, 28 L.Ed. 401 (1884). Petitioner's handling of the MAC-10 in this case falls squarely within those definitions. By attempting to trade his MAC-10 for the drugs, he ‘used’ or ‘employed’ it as an item of barter to obtain cocaine; he ‘derived service’ from it because it was going to bring him the very drugs he sought.
The Court held that the exchange of a gun for narcotics constituted “use” of a firearm “during and in relation to …[a] drug trafficking crime” within the meanings of 18 U.S.C. §924(c)(1)(A).
As we are all aware, the Court again looked at §924(c)(1)(A) and considered the word “use” within the context of the statute:
We agree with petitioners, and hold that §924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.
The language of §924(c)(1), supported by its history and context, compels the conclusion that Congress intended “use” in the active sense of “to avail oneself of.” To sustain a conviction under the “use” prong of §924(c)(1), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime.
United States v. Bailey, 116 S.Ct. 501 (1995).
It is, of course, impossible to predict what the Justices of the Supreme Court will do in Watson; however, I learned long ago never to ignore the wisdom of the Hon. Henry Politz, a former Chief Judge of the United States Court of Appeals for the Fifth Circuit. In Ulloa, supra, he dissented – and, as usual, what he wrote makes sense:
I disagree with the majority on the merits of this appeal. Bailey clearly requires “active employment” of the firearm. In the case at bar, however, the firearm was exclusively the passive object of Ulloa's actions. It cannot be gainsaid that one may “use” a firearm without “possessing” it at the moment of use, but I am persuaded beyond peradventure that there must be some showing that the defendant exercised actual dominion over or otherwise meaningfully manipulated the weapon. Absent such a showing, there is nothing more than a firearm present at a transaction involving illegal drugs, a circumstance that, without more, does not state an offense under section 924(c)(1).FN6 I perceive a meaningful difference between bartering “with a firearm,” which Bailey and Smith expressly place within the ambit of section 924(c)(1), and bartering “for a firearm,” as is the situation presented herein.
Maybe the question in Watson should be, “Did Judge Politz get it right – eleven years ago?”
