United States of America v. James D. Sumler, a/k/a CHEW, a/k/a SMOKE James D. Sumler

PRECEDENTIAL
Filed June 27, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3143
UNITED STATES OF AMERICA
v.
JAMES D. SUMLER,
a/k/a CHEW,
a/k/a SMOKE
James D. Sumler,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim No. 00-cr-00102 )
District Judge: Honorable William L. Standish
Argued May 1, 2002
Before: NYGAARD, ROTH, and WEIS, Circuit Judge s.
Filed June 27, 2002
Karen S. Gerlach, Esquire (ARGUED)
Assistant Federal Public Defender
Shelley Stark, Esquire
Federal Public Defender
415 Convention Tower
960 Penn Avenue
Pittsburgh, Pennsylvania 15222
Attorneys for Appellant
Michael L. Ivory, Esquire (ARGUED)
Assistant United States Attorney
Bonnie R. Schlueter, Esquire
Assistant United States Attorney
Mary Beth Buchanan, Esquire
United States Attorney
633 United States Post Office
& Courthouse
Pittsburgh, Pennsylvania 15219
Attorneys for Appellee
OPINION OF THE COURT
WEIS, Circuit Judge.

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In this appeal we conclude that bartering illegal drugs for
a gun constitutes use of a firearm in connection with drug
trafficking and invokes the mandatory sentence provisions
of 18 U.S.C. S 924. We also decide that evidence of
brandishing the gun on subsequent occasions was
admissible in connection with a count charging a drug
distribution conspiracy. Accordingly, we will affirm the
judgment of the District Court.
A jury convicted defendant of conspiracy to distribute
cocaine base in violation of 21 U.S.C. S 846 and the use of
a firearm in relation to a drug trafficking crime in violation
of 18 U.S.C. S 924(c)(1)(A)(i). He was sentenced to 82
months imprisonment on the conspiracy count and a
consecutive 60-month term on the gun charge.
Defendant and others sold crack-cocaine from a house in
Jeanette, Pennsylvania for several months in 1999. Joe
Wells was one of the customers who frequented the place.
On one occasion, Wells traded a gun for cocaine from a co-
defendant who also used the house for drug trafficking.
Defendant offered to buy the gun from the co-defendant,
but was refused. A few days later, defendant obtained a
gun from Wells in exchange for drugs.
The government produced evidence that after acquiring
the gun, defendant used it to threaten a disgruntled drug
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customer, as well as some inhabitants of the house.
Whether this was proper evidence had been briefed and
discussed at some length in pretrial conferences.
Ultimately, the trial judge ruled that it could be admitted.
On appeal, defendant asserts that the District Court
erred in two critical areas. The first challenge is to the
ruling that the acquisition of the gun in exchange for crack-
cocaine was a statutorily proscribed "use" in"relation to" a
drug transaction. The second objection is to the District
Court’s ruling that the brandishing and threatening use of
the gun were admissible as evidence of the drug conspiracy.
In addition, defendant argues that the two counts should
have been severed.
I.
The most serious point defendant raises is the criminality
of trading drugs for guns, an issue that has divided the
Courts of Appeals. The question is whether such an
exchange constitutes "use" of a gun in relation to drug
trafficking. 18 U.S.C. S 924(c)(1)(A) requires the imposition
of specific penalties if the defendant "during and in relation
to . . . drug trafficking uses . . . a firearm."
Smith v. United States, 508 U.S. 223 (1993), held that an
individual who trades a gun for drugs, rather than selling
it for money, violates section 924(c)(1). The Supreme Court
pointed out that two conditions must be satisfied to sustain

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a conviction: the gun must be "used" and that use must
occur "in relation to" drug trafficking. Smith, 508 U.S. at
232. After a thorough analysis, the Court concluded that
Congress intended "use" to cover not only utilization as a
weapon but also as an article of trade or barter. Id. at 236-
37. The Court reasoned that Congress did not intend"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
. . . ." Id. at 240.
"Use," however, was not in itself enough, because
utilization must necessarily be established "during and in
relation to" drug trafficking. In construing that
requirement, the Court stated that the gun’s "presence . . .
was not the product of happenstance," but was an integral
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part of the narcotics transaction. Id. at 238. Without the
gun the deal would not have been possible in the
circumstances presented there.
Two years later, the Court revisited the "use" application
in Bailey v. United States, 516 U.S. 137 (1995). In that
case, police officers found drugs in the passenger
compartment of the defendant’s automobile and a gun in
the trunk. The Court decided that in that context and
under section 924(c)(1), mere possession of a gun was not
sufficient and that "the Government must show active
employment of the firearm" during commission of the
crime. Bailey, 516 U.S. at 143-44.
As examples of "use," the Court cited brandishing,
displaying, bartering, striking with, and firing or attempting
to discharge a firearm. Id. at 148. The Court took great
pains to point out that Smith was not to be considered
undermined. "[O]ur decision today is not inconsistent with
Smith . . . [where] it was clear that the defendant had ‘used’
the gun; the question was whether that particular use
(bartering) came within the meaning of section 924(c)(1)."
Id.
Although Smith resolved the "use" issue in circumstances
where a defendant traded a gun in order to obtain drugs,
the question remained whether the statutory penalties were
applicable when the situation was reversed. In other words,
does section 924(c)(1) apply when drugs were traded for a
gun? On this point, the Courts of Appeals have disagreed.
In United States v. Ulloa, 94 F.3d 949, 956 (5th Cir.
1996), the Court of Appeals for the Fifth Circuit, upholding
the defendant’s conviction, stated that "[b]y bartering drugs
for firearms, [defendant] ‘actively employed’ the firearms,
because they were an ‘operative factor’ in the drug
trafficking offenses: [Defendant] required that he be
furnished firearms in exchange for his drugs."
In United States v. Cannon, 88 F.3d 1495 (8th Cir. 1996),
the defendants acquired guns for drugs and cash. The

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Court of Appeals for the Eighth Circuit upheld the
conviction and rejected the contention that Smith did not
govern because it involved trading guns for drugs, rather
than drugs for guns. Cannon, 88 F.3d at 1509. The Court
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viewed this argument as "a distinction without a difference
. . . ‘use’ certainly includes . . . bartering." Id. (citing Bailey,
516 U.S. at 148).
The Court of Appeals for the Ninth Circuit agreed that
"[t]here is no question that bartering a firearm for drugs
constitutes ‘use’ of the weapon ‘in relation to [a] drug
trafficking crime’ within the meaning of section 924(c)(1)."
United States v. Ramirez-Rangel, 103 F.3d 1501, 1506 (9th
Cir. 1997) (citing Smith, 508 U.S. at 225-37). In that case,
the machine gun had been supplied by undercover law
enforcement agents. Ramirez-Rangel, 103 F.3d at 1503.
Concerned about the officers’ conduct, the Court remanded
for further proceedings on the defense of sentence
entrapment. Id. at 1506-09.1 See also United States v.
Garnett, 243 F.3d 824, 832 (4th Cir. 1002) ("Undoubtedly,
giving the gun to [a conspirator] and receiving cocaine base
in return constitutes a ‘trade,’ and such circumstances can
conclusively constitute ‘use’ ‘during and in furtherance of ’
a drug trafficking offense.").
Cases in other Courts of Appeals have come to a different
conclusion. In United States v. Stewart, 246 F.3d 728 (D.C.
Cir. 2001), the Court reversed a conviction where the
defendant had secured guns from undercover agents in
exchange for cash and crack-cocaine. After reviewing Smith
and Bailey, the Court reasoned that "[t]he [defendant] has
not employed the gun, availed himself of the gun, or derived
any service from the gun by simply trading his drugs for it.
[A] seller does not use a buyer’s consideration." Stewart,
246 F.3d at 731 (internal quotations omitted).
In United States v. Warwick, 167 F.3d 965 (6th Cir.
1999), the Court concluded that by accepting a weapon
offered by an undercover agent, a defendant does not
actively do anything because his conduct is inherently
passive. The Court found Ulloa and Cannon distinguishable
because defendants in those cases had actively devised the
plan for the exchange of drugs for guns. Warwick , 167 F.3d
_________________________________________________________________
1. "Sentencing entrapment occurs when a defendant, although
predisposed to commit a minor or lesser offense, is entrapped into
committing a greater offense subject to greater punishment." Id. at 1506.
(internal citations and quotations omitted).
5
at 976. See also United States v. Layne, 192 F.3d 556 (6th
Cir. 1999) (following Warwick).

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Similarly, in United States v. Westmoreland, 122 F.3d
431 (7th Cir. 1997), the Court reversed a conviction and
applied the passive conduct approach where the
government agent provided the gun. Significantly, in that
case the agent admitted that he had deliberately made the
gun a part of the transaction in order to set up a conviction
under section 924(c)(1). Westmoreland, 122 F.3d at 436.
The Court noted that "[w]e might well have a different case
had the transaction occurred between two defendants
instead of between a government agent and a defendant."
Id. at 436 n.1. Further indicating its wariness, the Court
also found "significant the fact that the government agent
introduced the gun into the transaction, rather than the
defendant requesting the gun in payment for the drugs. But
we need not decide the effect of those factors today. . . ."
Id.
Thus, two of the courts that declined to extend Smith to
a drugs-for-gun transaction did so in circumstances where
the activities of the government agents and sentence
entrapment colored the picture. We are confronted with a
circuit split, but the circumstances in the case at hand
guide us easily toward the majority approach rather than
the much weaker minority cases. Here, the transaction was
between two private individuals and, therefore, the spectre
of sentence entrapment does not lurk in the shadows. In
addition, it was the defendant in this case who actively
solicited the barter of drugs for guns.
The Westmoreland Court advanced a forceful argument in
declaring "there is no grammatically correct way to express
that a person receiving a payment is thereby ‘using’ the
payment." 122 F.3d at 435. Although we grant legitimacy to
that argument, we cannot evade the brute fact that the
Supreme Court in both Bailey and Smith explained that the
word "use" means "barter." We recall Judge Learned Hand’s
admonition, "But it is one of the surest indexes of a mature
and developed jurisprudence not to make a fortress out of
the dictionary . . . ." Cabell v. Markham, 148 F.2d 737, 739
(2d Cir. 1945). Humpty Dumpty in Lewis Carroll’s Through
the Looking Glass stated it best when he said,"When I use
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a word . . . it means just what I choose it to mean neither
more nor less." L. Carroll, Through the Looking Glass &
What Alice Found There 124, reprinted in Journeys in
Wonderland (Derrydale 1979). We too are not free to ignore
a dictated definition.
Therefore, we conclude that in the circumstances of this
case the defendant was properly convicted of a section
924(c)(1) violation.
II.
Defendant’s second major contention is that the District
Court erred in admitting evidence of three incidents when
the defendant pointed the gun at individuals during

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disagreements over the conduct of drug trafficking at the
crack house.
As noted earlier, the admissibility of this evidence was
reviewed in detail during pretrial conferences. The
Government committed itself to limiting the evidence of gun
pointing to the drug conspiracy count, and not to offer it in
connection with the section 924 count. The district judge
decided that the testimony would be admitted, but only in
connection with the conspiracy count because the evidence
was "relevant and it was admissible as such rather than as
404(b) [character evidence]." He also concluded that the
prejudice did not outweigh the relevance.
Federal Rule of Evidence 404 bars evidence of past acts
for the purpose of showing a propensity for committing
similar criminal acts or generally for showing the bad
character of the defendant. However, as we pointed out in
United States v. Gibbs, 190 F.3d 188, 218 (3d Cir. 1999),
"Rule 404(b) does not limit the admission of evidence of the
defendant’s participation in acts of violence as direct proof
of a conspiracy." Activity, albeit violent, that shows the
existence and nature of a conspiracy is relevant. See 22
Charles A. Wright & Kenneth W. Graham, Jr., Federal
Practice and Procedure, S 5239, at pages 450-52 (1978 &
Supp. 2001).
In this case, defendant brandished his gun in response to
a complaint by a dissatisfied customer. He did so again
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when one of his cohorts failed to warn him about a
customer being armed and, on another occasion, to keep a
customer at a distance from a crack house. These incidents
were conduct connected with and occurring during the
conspiracy.
Defendant also contends that such evidence had a
spillover effect on the gun transaction count and, therefore,
a severance should have been granted. We have
considerable doubt that this issue was properly raised in
the District Court, but assuming that it was, it lacks merit.
Here, the evidence was inextricably intertwined, and denial
of severance would not have been an abuse of discretion.
Accordingly, the judgment of the District Court will be
affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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