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At high court: In a drugs-for-gun deal, is the gun being 'used'?

The issue is coming up more often in sting operations – and has meant more jail time for convicts.

By Staff writer of The Christian Science Monitor / October 5, 2007


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?

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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.