At high court: In a drugs-for-gun deal, is the gun being 'used'?
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- Date: Thu, 4 Oct 2007 20:56:20 -0400
Christian Science Monitor, USA
Thursday, October 04, 2007
At high court: In a drugs-for-gun deal, is the gun being 'used'?
By Warren Richey | Staff writer
The issue is coming up more often in sting operations - and has meant more jail
time for convicts.
from the October 5, 2007 edition
Washington - Federal law makes it a crime to "use" a gun during a drug offense.
But what if an unloaded gun is merely payment for the drugs?
That's the question set for argument at the US Supreme Court next Tuesday in
the case of a Louisiana man who traded 24 doses of the prescription drug
OxyContin for a .50 caliber Desert Eagle pistol.
At issue in Watson v. US is how to define the word "use" in a statute that
outlaws the "use" of a gun in a drug crime.
Although the case sounds unique, it is becoming increasingly common in sting
operations for undercover agents to introduce or suggest a gun as a form of
payment in a drug deal. Under the law as written by Congress, the gun adds an
automatic five years in prison - and sometimes much more - to any drug charges.
"It is a very heavy stick," says Mark Stancil, a Washington, D.C., lawyer and
adviser to the University of Virginia School of Law Supreme Court Litigation
Clinic, which is assisting in the Watson case.
The 2004 transaction
In November 2004, Michael Watson of Ascension, La., told an acquaintance he
wanted to buy a handgun for protection.
The man, who is in his 50s and is legally blind, said he needed the gun to
safeguard his possessions and his home after a couple of break-ins. But because
Mr. Watson was a convicted felon, he was barred from purchasing a firearm from
a licensed gun shop.
Unknown to Watson, his acquaintance was working as an informant for
law-enforcement officials. Instead of a cash transaction, the officials told
the acquaintance to suggest a drugs-for-gun barter deal between Watson and an
undercover federal agent posing as an illegal gun dealer. Watson agreed to the
swap.
Shortly after Watson exchanged the pills for the gun, he was placed under
arrest. Federal authorities charged him with drug dealing and possession of a
gun by a felon. But prosecutors didn't stop there. They also charged Watson
with "using" a gun during a drug-trafficking offense - a crime that carries a
five-year minimum mandatory sentence.
Prosecutors reasoned that since the unloaded pistol was "used" as payment for
the drugs, the gun was used in a way that triggered additional criminal
liability. Watson pleaded guilty to drug dealing and unlawful possession of the
gun, but he is appealing the charge that he "used" the gun in the drug deal.
The unloaded gun provided by the undercover agent was under Watson's control
for only a few moments before his arrest.
The justices must decide whether Watson's brief possession of the gun qualifies
as a prohibited "use" in a drug transaction under the federal statute.
The Supreme Court confronted a similar issue in a 1993 case in Florida
involving an attempt by a defendant to trade an automatic MAC-10 machine gun
for cocaine. The court ruled 6 to 3 that the transaction amounted to "use"
under the law.
"The fact that a gun is treated momentarily as an item of commerce does not
render it inert or deprive it of destructive capacity," Justice Sandra Day
O'Connor wrote for the majority.
But Watson's case is different, says Mr. Stancil. The 1993 Florida case
involved a defendant trading his own gun for drugs. Watson's case involves the
inverse - a defendant trading his own drugs for a gun.
Stancil says the juxtaposition makes a huge difference in how the high court
may interpret the word "use" in the statute.
He offers an example. "It is natural to say I 'used' $1 to buy a cup of
coffee," he says. "But it is completely unnatural to say I bought a cup of
coffee with $1 and thereby 'used' the coffee."
The lawyer adds, "In the plain and ordinary meaning of the statute, it makes no
grammatical sense to say that the buyer has used the object he is trying to
purchase simply by completing the transaction."
"By receiving a gun as payment for drugs, Watson did not 'use' that firearm,"
Stancil writes in his brief to the court. "Because Watson did not 'use' the
firearm in any ordinary recognizable sense of the word - let alone 'actively
employ' it - his conviction must be reversed."
Firearms' potential harm
Government lawyers disagree.
It was Watson who asked for a gun, says Solicitor General Paul Clement in his
brief. "By contributing to the introduction of the firearm into the
transaction, [Watson] caused the very harm that Congress sought to avoid in
enacting [the gun law]," he says.
"Regardless of which side of the guns-for-drugs barter a defendant is on, the
firearm's presence - and its integral role in the drug deal - causes the risk
to society that Congress sought to prevent," Mr. Clement says.
Although the Supreme Court resolved the "gun for drugs" issue in 1993 and
reaffirmed it in a subsequent decision in 1995, the high court has never
directly address the "drugs for gun" issue.
The federal appeals courts are split. Six side with the government's view. Four
embrace the approach outlined by Stancil.
When the issue arose at the high court in 1993, the question that divided the
justices was whether Congress meant to outlaw the use of guns as weapons.
Justice O'Connor and five other justices rejected that narrow reading of the
law. "We . see no reason why Congress would have intended courts and juries
applying [the law] to draw a fine metaphysical distinction between a gun's role
in a drug offense as a weapon and its role as an item of barter," she said. "It
creates a grave possibility of violence and death in either capacity."
Three justices dissented. Justices Antonin Scalia, John Paul Stevens, and David
Souter said under the ordinary meaning of the word "use," the statute outlaws
the use of a gun as a weapon - not for barter.
http://www.csmonitor.com/2007/1005/p03s01-usju.html
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