Academic journal article Harvard Law Review

Criminal Law - Firearms Regulation - First Circuit Holds That Trading Drugs for Guns Constitutes "Use" of a Gun for Purposes of 18 U.S.C. S. 924(c)

Academic journal article Harvard Law Review

Criminal Law - Firearms Regulation - First Circuit Holds That Trading Drugs for Guns Constitutes "Use" of a Gun for Purposes of 18 U.S.C. S. 924(c)

Article excerpt

CRIMINAL LAW -- FIREARMS REGULATION -- FIRST CIRCUIT HOLDS THAT TRADING DRUGS FOR GUNS CONSTITUTES "USE" OF A GUN FOR PURPOSES OF 18 U.S.C. [section] 924(c). -- United States v. Cotto, 456 F.3d 25 (1st Cir. 2006).

Drug dealers are villains of the first order in America. They contribute, directly and indirectly, to the breakdown of schools, workplaces, and neighborhoods. Beginning in the 1970s, Congress responded to these social threats by criminalizing nearly all conduct with an apparent link to drug possession or distribution. (1) As part of this effort, Congress enacted 18 U.S.C. [section] 924(c), which enhances sentences for drug offenses that involve firearms. (2) The section imposes liability upon any person who "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm." (3) Courts have found the statute's use requirement satisfied in a variety of instances, some of which may appear counterintuitive. (4) Recently, in United States v. Cotto, (5) the First Circuit employed an expansive conception of "use" in interpreting the statute: a unanimous panel held that bartering drugs in exchange for firearms constitutes "use" of a firearm within the statute's meaning. (6) In its decision, the court relied heavily on an inapplicable precedent, rejecting a more natural interpretation of the statute in favor of an interpretation promoting a perceived punitive policy underlying the legislation. Cotto thus illustrates a judicial failure to interpret criminal drug laws in a principled and rigorous manner and a preference instead to follow the harsh dictates of societal attitudes toward drug offenders.

From the summer of 1999 until the spring of 2000, Jose Cotto, Jr., a drug dealer, provided Amanda Tew, a teenager living with her grandparents, with heroin on over twenty separate occasions. (7) Instead of paying for the drugs with cash, Tew provided Cotto with guns stolen from her grandparents' basement. (8) When Tew was eventually arrested for possession of heroin, she agreed to participate in an undercover sting operation with the Bureau of Alcohol, Tobacco, and Firearms (ATF). (9) On July 10 and July 11 of 2000, in two recorded conversations, Tew told Cotto that she had one MAC-11 and two .380-caliber handguns to trade for drugs. (10) They then met in a parking lot where ATF agents had established a surveillance operation. (11) After inspecting the three guns in Tew's trunk, Cotto transferred them to the trunk of his car. He was arrested by ATF agents shortly thereafter. (12)

The government charged Cotto with one count of being a felon in possession of a firearm, pursuant to 18 U.S.C. [section] 922(g)(1), and one count of using a firearm during and in relation to a drug trafficking crime, pursuant to 18 U.S.C. [section] 924(c)(1). (13) He pled guilty to the felon-in-possession count and went to trial solely on the use-of-a-firearm count. At trial, Cotto argued that the heroin in his possession was for personal use, that he did not intend to trade the drugs for the guns, and that there was thus no predicate "drug trafficking crime" on which to hang the [section] 924(c)(1) count. (14) Following the trial, the jury returned a guilty verdict. (15)

The First Circuit affirmed the conviction, holding that a defendant who barters drugs for firearms is guilty of using a firearm under [section] 924(c)(1). Writing for the court, Judge Lynch (16) first pointed to two Supreme Court cases that addressed the question of what constituted use under the statute. In Smith v. United States, (17) the Court held that "a criminal who trades his firearm for drugs"--the inverse scenario from the one presented in Cotto--"'uses' [the firearm] during and in relation to a drug trafficking offense." (18) The Smith Court reasoned that the defendant had "derived service" from the gun as an item of barter and hence used it in an effort to obtain drugs. (19) Two years later, in Bailey v. …

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