US v. Gurka

Filing 920100512

Opinion

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var WPFootnote1 = '                   Since Gurka only had two bags of cocaine at that time,\
the agent agreed that Gurka could pay the third bag later. \
'

var WPFootnote2 = '                   Counts One through Five charged Gurka with drug\
violations, including the June 26, 2007, distribution offense, the\
cocaine found in Gurka\'s home, and three earlier drug sales.\
'

var WPFootnote3 = '                   The government opted not to charge Gurka with possession\
of the other two guns involved in the barter, the silencer, or the\
guns found at his home. Had Gurka been convicted of possessing a\
gun "equipped with a . . . silencer" in furtherance of a drug\
crime, he would have faced a mandatory thirty-year prison sentence. \
18 U.S.C. § 924(c)(1)(B)(ii).\
'

var WPFootnote4 = '                   Gurka\'s opening brief initially cited a variety of\
material not in the record. We granted the government\'s motion to\
strike his brief and ordered Gurka to file a new one, which did not\
cite such material. The order noted that Gurka could submit "an\
offer of proof," addressing "evidence he would submit to the\
district court were the case remanded." Gurka\'s revised brief now\
includes as an addendum a lengthy "proffer" consisting of an\
excerpt from the transcribed recording of his June 26 transaction\
with the ATF agent, a copy of the ATF report pertaining to his\
arrest, and an affidavit from his trial counsel, addressing\
counsel\'s failure to present this evidence before the district\
court. Gurka\'s reply brief contains excerpts from two additional\
recorded conversations with an ATF agent. Despite the order\'s\
instructions, Gurka repeatedly cites to this material, using it as\
the foundation of his argument for remand.\
'

var WPFootnote5 = '                   Gurka instead relies almost entirely on facts contained\
in his "proffer."\
'

var WPFootnote6 = 'The Senate hearing on the amendment that led to inclusion of\
the possession prong is filled with references to weapons used to\
intimidate, threaten or embolden. E.g., A Bill to Throttle\
Criminal Use of Guns: Hearing on S. 191 Before the S. Comm. on the\
Judiciary, 105th Cong. 4 (1997) ("Senate Hearing") (statement of\
Sen. Helms); id. (statement of Sen. DeWine); id. at 9-10 (statement\
of Kevin Di Gregory, Deputy Assistant Att\'y Gen., Criminal\
Division, Department of Justice); id. at 35-37 (prepared statement\
of Thomas G. Hungar, Gibson, Dunn, and Crutcher). \
'

var WPFootnote7 = 'Interestingly, there are a couple of references in the Senate\
hearing, where the "possession" amendment was under consideration,\
to guns used as barter; but they are essentially descriptions,\
rather than endorsements, of the dicta in Bailey v. United States,\
516 U.S. 137 (1995), reiterating the holding of Smith, that barter\
can be deemed "use" of the gun. Senate Hearing, supra, at 1\
(statement of Sen. Hatch); id. at 10 (statement of Kevin Di\
Gregory, Deputy Assistant Att\'y Gen., Criminal Division, Department\
of Justice).\
'

var WPFootnote8 = 'That transaction, arising under the "use" prong, was found to\
meet the required "during and in relation to" standard of that\
provision. Even if "in furtherance" is a "slightly higher\
standard" of connection than "during and in relation to," H. Rep.\
105-344, at 11 (1997), the former phrase\'s literal meaning permits\
this same line of reasoning.\
'

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