United States v. Mark Phelps

Court of Appeals for the Ninth Circuit
877 F.2d 28, 1989 WL 59976, 1989 U.S. App. LEXIS 8096 (1989)

ELI5:

Rule of Law:

Trading a firearm solely as an item of barter in exchange for controlled substances does not constitute 'using' a firearm 'during and in relation to' a drug trafficking crime under 18 U.S.C. § 924(c)(1).

Facts:

Phelps and a co-conspirator operated a methamphetamine laboratory but required a supply of ephedrine to continue production.
Undercover federal agents Fabiano and Paur met with Phelps, with Fabiano offering to supply the chemical and Paur posing as an associate interested in buying an automatic weapon.
Phelps informed the agents of his expertise in converting semi-automatic firearms to fully automatic mode.
When Agent Paur asked to purchase a MAC 10 pistol, Phelps refused an outright cash sale.
Instead, Phelps offered to give the gun to Paur in exchange for the delivery of the first ten-pound shipment of ephedrine.
Phelps displayed the automatic pistol to the agents; it was unregistered and unloaded.
The agents subsequently executed a search warrant and arrested Phelps.

Procedural Posture:

The government charged Phelps with five counts in federal district court, including using a firearm during a drug trafficking crime.
A jury convicted Phelps on all five counts.
Phelps appealed his conviction on the firearm count to the United States Court of Appeals for the Ninth Circuit.

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Issue:

Does a defendant 'use' a firearm 'during and in relation to' a drug trafficking crime when they trade an unloaded firearm solely as barter for drugs?

Opinions:

Majority - Eugene A. Wright

No, using a firearm merely as currency in a drug transaction does not violate the statute. The court reasoned that the legislative history of 18 U.S.C. § 924(c)(1) indicates Congress intended to punish persons who carry firearms as offensive weapons for specific criminal acts. The phrase 'in relation to' was added to ensure a connection between the weapon and the crime, specifically to exclude situations where a gun is merely present or unrelated. Relying on the principle of lenity, the court construed the ambiguous statutory language in favor of the defendant. The court found that because the firearm was unloaded and used solely for barter, it did not play a role as an offensive weapon, nor did it 'embolden' the actor to protect himself or intimidate others, which are the requisite elements for a conviction under this statute.

Analysis:

This decision represents a narrow interpretation of the federal firearms statute 18 U.S.C. § 924(c)(1). By applying the rule of lenity, the Ninth Circuit distinguished between firearms used as weapons (offensive/defensive utility) and firearms used as commerce (barter). The court established that the mere presence of a gun or its use as a distinct form of payment does not satisfy the 'in relation to' requirement unless the weapon facilitated the crime by emboldening the perpetrator or providing protection. This creates a significant precedent limiting the statute's reach in non-violent contexts, although the Supreme Court would later address this specific fact pattern differently in subsequent years.

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