Drugs for Guns—1st Circuit Court of Appeals

The 1st Circuit Court of Appeals issued a decision yesterday that narrows a close circuit split on whether or not the bartering of drugs for guns constitutes an illegal “use” of a firearm in the commission of a drug trafficking crime.^[1] In U.S. v. Cotto, No. 03-1477 (1st Cir. Aug. 2, 2006), the appeals court held that accepting guns in exchange for drugs is the type of nonpassive or “active‑employment” use specified in 18 U.S.C. § 924(c)(1)(A).^[2]

The statutory language states that “any person who, during and in relation to any…drug trafficking crime…uses or carries a firearm” is subject to a sentence of at least 5 years in jail in addition to the penalty for the underlying trafficking offense.^[3] The United States Supreme Court has already held that bartering the other way—trading guns for drugs—constitutes such use for the purpose of the statute.^[4]

The appeals court relied on two United States Supreme Court decisions: Smith v. U.S., 508 U.S. 223 (1993) and Bailey v. U.S., 516 U.S. 137 (1995).^[5] In Smith, the Supreme Court held that using a gun as currency in a drug deal was encompassed within the meaning “use” of the statute, including numerous variations on the receipt of a weapon in the course of the transaction. Bailey affirmed Smith, holding that “the active‑employment understanding of ‘use’ certainly includes…bartering…a firearm.”^[6]

Viewing Smith as controlling, the 1st Circuit reasoned that the active‑employment rationale applies no matter whether the exchange is guns for drugs or drugs for guns, as it was in this case. The three‑judge panel also held that this interpretation of “use” is consistent both with other appearances of the term “use” in 18 U.S.C. § 924 and with the general legislative intent of the statute.^[7]

With this decision, the 1st Circuit is allied with holdings in the 3rd, 5th, and 9th circuits (the 2nd and 4th circuits are less clear, but are viewed by this court as confirming).^[8] The 6th, 7th, 11th, and D.C. circuits agree with Mr. Cotto that using guns in an act of commerce is not at all the type of dangerous and potentially criminal “use” that the law seeks to prohibit.^[9] With the circuits now all but evenly split, Mr. Cotto may decide to seek a more favorable outcome from the United States Supreme Court.

Background
In the spring of 2000, Jose Cotto, Jr. was arrested in a sting arranged between what was then Bureau of Alcohol, Tobacco, and Firearms (ATF). In the alleged transaction, Mr. Cotto was attempting to exchange several bricks of heroin for a MAC‑11 handgun and two .380‑caliber handguns.^[10]

Mr. Cotto plead guilty to a charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial, he was found guilty of using a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c). The jury was unsympathetic to Mr. Cotto’s argument that no barter had taken place because he had not yet delivered the heroin, even though he had received the guns. On appeal, the court affirmed both the conviction and the combined sentence for both crimes of 144 months (12 years) in prison.^[11]

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[1] U.S. v. Cotto, No. 03‑1477 (1st Cir. Aug. 2, 2006).
[2] Cotto at 8.
[3] 18 U.S.C. § 924(c)(1)(A)(i).
[4] Smith v. U.S., 508 U.S. 223 (1993).
[5] Id. See also Bailey v. U.S., 516 U.S. 137 (1995).
[6] Cotto at 8, citing Bailey at 148.
[7] Cotto at 9-10.
[8] Cotto at 6 (stating that the 2nd and 4th Circuits “can be viewed as leaning that way”).
[9] Cotto at 8.
[10] Cotto at 2-4.
[11] Cotto at 4.