United States v. Adrian Bailey , 882 F.3d 716 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-1031
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ADRIAN BAILEY,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:15-cr-10033-MMM-JEH-1 — Michael M. Mihm, Judge.
ARGUED NOVEMBER 1, 2017 — DECIDED FEBRUARY 16, 2018
Before MANION, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Adrian Bailey offered to sell mari-
juana to an informant who had already brokered the purchase
of a firearm from him; the informant accepted the offer and
purchased $40 worth of marijuana from Bailey contemporane-
ously with the firearm purchase. On that basis, Bailey was
convicted after a bench trial of possessing a firearm in further-
2 No. 17-1031
ance of a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A).
Bailey appeals the conviction, contending that the facts do not
tie the gun and the marijuana purchase together so as to
demonstrate that the gun actually furthered the marijuana sale;
as he sees it, his possession of the firearm was simply coinci-
dent with the marijuana transaction. We disagree. Because it
was the opportunity to purchase a firearm that brought the
informant to Bailey and made possible the secondary sale of
marijuana to the informant, the facts support the finding that
Bailey’s possession of the weapon furthered the marijuana sale.
We therefore affirm his conviction.
I.
In late March of 2015, Bailey telephoned Jordan Allen to
inquire about a lawnmower that Allen had posted for sale on
Facebook. Allen and Bailey had met on a prior occasion
through Bailey’s father, who had cleaned some automobiles for
Allen. Bailey indicated that he was interested in the lawn-
mower and offered to trade Allen a gun for it. Allen said that
he would have to think about it. During the same conversation,
the two had what Allen would later describe as a “light
discussion” about an opportunity to purchase marijuana:
Bailey told him that he had some “good weed” for sale if Allen
was interested. R. 45 at 46, 94.
Allen, as it turned out, was a convicted felon who at that
time was facing charges of aggravated battery and criminal
damage to property; he also knew that Bailey had a criminal
history and was on parole. He contacted Galesburg, Illinois
police officer Bryan Anderson, with whom he had worked as
an informant for a number of years, in the hope of parlaying
No. 17-1031 3
the call from Bailey into a dismissal of the criminal charges
pending against himself. Anderson directed Allen to see if
Bailey would sell the gun to him for cash rather than trading it
for the lawnmower.
Allen followed up with Bailey about the possibility of
buying the gun, and the two proceeded to have a number of
telephone conversations and exchanges of text messages over
the terms of a purchase. Bailey initially proposed to sell Allen
two guns for $500. Allen replied that it was his “buddy” who
was going to purchase the guns, and that Allen was waiting for
his friend to assemble the money. Bailey urged him to “hurry
up” or the guns would be sold to someone else. R. 45 at 49.
Bailey subsequently told Allen that those guns had in fact been
sold, but he told Allen he could sell him another (single) gun
for $200. They arranged to meet at Bailey’s home to complete
the transaction; Bailey texted Allen his address.
Allen had also advised Anderson that Bailey had marijuana
available for sale, and Anderson had instructed Allen to go
ahead and buy a small amount. Anderson remarked that the
dual purchase was a “more plausible” scenario that might allay
any suspicions on Bailey’s part about the transaction. Allen
never discussed with Bailey in advance what quantity of
marijuana Bailey had available or the terms on which he would
sell it to Allen. Allen simply assumed that Bailey would have
at least $40 worth on hand to sell him.
The transaction was consummated at Bailey’s home in
Galesburg on March 31, 2015. Deputy Ben Johnston of the
Peoria County Sheriff’s Office, who would pose as the
“buddy” who wanted the gun, met Allen ahead of time.
4 No. 17-1031
Johnston had $200 in pre-recorded 20-dollar bills with him to
buy the gun, and he gave another $40 in pre-recorded cash to
Allen to purchase the marijuana. Johnston used a key-fob
camera to record the meeting. After Bailey informed them by
phone that the gun had arrived, Allen and Johnston drove
together to his home.
Bailey met them on the front porch of his residence,
handing Allen a red and black “Beats by Dr. Dre” headphones
box as they entered the home. Allen put the box down on a
couch, prompting Bailey to point at the box and remark, “It’s
in there.” R. 45 at 15. Johnston sat down next to the box and
opened it to reveal a Smith & Wesson revolver inside. As
Johnston was inspecting the gun, Bailey asked Allen whether
he still wanted some marijuana. Allen responded in the
affirmative and handed Bailey the $40. Bailey removed five
small baggies of marijuana from a larger bag and handed them
to Allen.1 Bailey then picked up the gun and manipulated it to
show Johnston that it was in working condition. The gun was
unloaded, and Johnston asked Bailey about ammunition.
Bailey said that he could provide bullets on the following day.
Bailey remarked that he had sold six other guns over the
course of the preceding week and might be able to sell addi-
tional firearms to Johnston if he was interested. Johnston paid
Bailey $200 for the firearm, and he and Allen left Bailey’s
home.
A warrant-authorized search of Bailey’s residence was
conducted later that same day. Officers recovered $220 of the
1
The five baggies were later determined to contain 4.7 grams of marijuana.
No. 17-1031 5
$240 in pre-recorded bills that Allen and Johnston had used to
buy the marijuana and the revolver. They also retrieved
roughly 90 grams of marijuana from multiple bags found
around the house, as well as a digital scale.
A grand jury later charged Bailey with three offenses: (1)
possession, with the intent to distribute, the marijuana he sold
to Allen, in violation of 21 U.S.C. § 841(b)(1)(C); (2) possession
of a firearm following a felony conviction, in violation of 18
U.S.C. § 922(g)(1); and (3) possessing a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A).2 Bailey pleaded guilty to the first two offenses,
but opted for a bench trial on the section 924(c) charge.
After a one-day trial at which Allen, Anderson, and
Johnston testified for the government, Judge Mihm denied
Bailey’s motion for a judgment of acquittal, see Fed. R. Crim. P.
29, and convicted him of possessing a firearm in furtherance of
a drug trafficking offense. R. 32; R. 46. Although the judge
characterized Allen’s testimony as “checkered,” R. 46 at 4, he
credited Allen’s account of events leading up to the March 31
purchase of the firearm and marijuana.3 And after reviewing
the video recording of the transaction captured by Johnston’s
key-fob camera, he was confident that Bailey understood he
2
The indictment actually charged Bailey with both using and carrying a
firearm during and in relation to a drug trafficking offense and possessing
a firearm in furtherance of such an offense, R. 1 at 2, but at trial, the
government relied solely on the possession prong of section 924(c)(1)(A).
3
The judge found that Allen was not forthcoming regarding the status of
the pending criminal charges against him and what he hoped to gain from
his testimony against Bailey.
6 No. 17-1031
would be selling marijuana as well as the gun to Allen and
Johnston at the March 31 transaction. Judge Mihm was also
satisfied that the evidence established a specific, non-theoreti-
cal nexus tying Bailey’s possession of the gun to a drug
offense—in this case, the marijuana sale to Allen. See generally
United States v. Castillo, 406 F.3d 806, 815 (7th Cir. 2005)
(government must present viable theory supported by specific,
non-theoretical evidence to demonstrate how gun furthered
drug possession or distribution). He found persuasive the
Fourth Circuit’s decision in United States v. Lipford, 203 F.3d
259, 267 (4th Cir. 2000), which recognized that, given the illicit
nature of the narcotics trade, a drug purchaser may have a
need and interest in bolstering his credentials with a seller by
assenting to the seller’s offer to sell him a gun in addition to
drugs; in that sense, the buyer’s willingness to purchase the
gun facilitates the drug purchase by establishing the buyer as
a good customer in the eyes of the seller. In this case, the
converse was true. Bailey was in the business of selling both
guns and drugs (in the district court’s words, he operated a
“one-stop shop,” R. 32 at 7; see also R. 46 at 14), but it was the
gun that brought Allen to Bailey as a buyer, and when Bailey
offered to sell him marijuana as well, Allen (at Anderson’s
instruction) agreed, as a means of bolstering his credentials
with Bailey. In this scenario, the sale of the gun made the drug
purchase possible by bringing Bailey a prospective customer
for a secondary marijuana sale that he might not otherwise
have made. In short, it was not mere coincidence that the gun
was present and changed hands at the same time as the
marijuana transaction; there had been multiple discussions of
No. 17-1031 7
the concurrent sales prior to consummation, and it was the gun
purchase that furthered the marijuana purchase.
II.
Bailey challenges the sufficiency of the evidence underlying
his section 924(c) conviction. We review de novo the district
court’s denial of his Rule 29 motion for judgment of acquittal.
E.g., United States v. Johnson, 874 F.3d 990, 998 (7th Cir. 2017).
Construing the evidence in the government’s favor, we ask
whether any rational trier of fact could find the elements of the
offense beyond a reasonable doubt. Id. The section 924(c)
charge in this case required the government to establish three
elements: that Bailey distributed marijuana to Allen, that he
possessed a firearm, and that his possession of the firearm was
“in furtherance of” the marijuana transaction. § 924(c)(1)(A);
see United States v. Castillo, supra, 406 F.3d at 812. There is no
dispute as to the first two elements: Bailey’s appeal is focused
solely on whether his possession of the firearm was in further-
ance of the marijuana sale, so we confine our review to that
element of the offense.
As we have noted, Bailey’s position is that the sale of the
gun in this case was “merely coincident with” the sale of the
marijuana. Bailey Br. 18. This is not the usual scenario in which
a firearm is used as a means of protecting or intimidating the
parties to a drug transaction. The government’s theory instead
is that Bailey’s sale of the firearm to Allen and Johnston
fostered the secondary sale of marijuana in the sense that it
was the firearm that lured Allen into his orbit and brought him
a customer for his marijuana, in the same way that grocery and
convenience stores use the lure of staples such as milk and
8 No. 17-1031
bread (typically placed strategically at the back of the store) to
attract customers who will make additional purchases once on
the premises. But Bailey insists that there is nothing to tie the
gun sale to the marijuana sale. He points out that Allen had
made no advance commitment to purchase marijuana as well
as the gun; that one sale was not conditioned in any way on the
other; that there was no discussion of the terms of any mari-
juana purchase; that the gun was the focus of the parties’
discussions; and that he (Bailey) had no expectation prior to
the transaction that either Allen or his friend (Johnston) would,
in the end, purchase marijuana. Cf. United States v. Wilson, 115
F.3d 1185, 1191–92 (4th Cir. 1997) (where informant sought to
buy marijuana from defendant, defendant agreed to sell
informant as much marijuana as he wanted and then spontane-
ously offered to sell informant a rifle in addition to marijuana,
and informant then elected to purchase the rifle and ammuni-
tion only instead of the marijuana, the defendant’s sale of the
rifle did not further his marijuana sales; “[i]t was a completely
independent, yet contemporaneous action”).
As the parties agree, the natural and ordinary connotation
of “in furtherance of” is furthering, advancing, or helping
forward. Castillo, 406 F.3d at 814. Thus, the government bears
the burden of articulating a viable theory as to how the firearm
advanced the possession or distribution of narcotics and
presenting specific, non-theoretical evidence to tie the gun and
the narcotics together. Id. at 815. The inquiry is obviously a
fact-intensive one, and the particular nexus may vary from case
to case. See id.
Bailey is right, of course, to point out that this is not the
frequent scenario in which a gun is used, displayed, or in some
No. 17-1031 9
other way employed to protect the drugs, the proceeds of drug
sales, or the dealer himself. See United States v. Amaya, 828 F.3d
518, 525 (7th Cir. 2016) (collecting cases). To that extent, most
of the factors we have cited as relevant to the determination of
whether the gun in some manner furthered the drug transac-
tion (including the type of drug activity being conducted, the
accessibility of the firearm, the type of firearm, whether it was
stolen, the legal or illegal status of the defendant’s possession
of the gun, whether it was loaded, the proximity of the gun to
drugs or drug proceeds, and the timing and circumstances in
which the gun was found), see Amaya, 828 F.3d at 525–26 (citing
United States v. Huddleston, 593 F.3d 596, 602 (7th Cir. 2010)),
have no real relevance here. But using the gun as a means of
protection is not the sole scenario to which section 924(c)
applies. Bailey himself concedes that trading a gun for drugs
can amount to use of the gun in furtherance of a drug transac-
tion. See Smith v. United States, 508 U.S. 223, 113 S. Ct. 2050
(1993) (exchange of gun for narcotics constitutes “use” of
firearm during and in relation to drug trafficking offense under
section 924(c)(1)); see also United States v. Vaughn, 585 F.3d 1024,
1029–31 (7th Cir. 2009) (defendant offered rifle he knew his
drug customer wanted as incentive for customer to re-sell the
fronted marijuana quickly and at full price so that defendant
would be paid for the marijuana in timely manner). So we
must instead consider, as a matter of logic, whether the district
judge as the trier of fact reasonably could find that the sale of
the gun to Allen and Johnston meaningfully furthered the sale
of the marijuana to Allen, as the government postulates, or
whether the gun sale was simply coincident with the marijuana
sale, as Bailey contends.
10 No. 17-1031
We believe the evidence was sufficient to support the
district court’s finding that the gun sale facilitated the mari-
juana sale in such a way as to satisfy the “in furtherance of”
element of section 924(c). There is no dispute that what Allen
wanted was the gun: that was the purchase that he and Bailey
negotiated via phone and text, and that was the purchase that
Bailey, Allen, and Johnston (as Allen’s “buddy”) anticipated
consummating on March 31 at Bailey’s home. Nor is there any
dispute, however, that Bailey was in the business of selling
marijuana as well as guns, and that he had mentioned the
availability of “weed” for purchase to Allen at least once.
(Bailey insists that the subject came up only once prior to
March 31, but the district court found that the potential
purchase of marijuana was discussed by Bailey and Allen
multiple times in advance of the March 31 transaction, R. 46 at
14, and that finding was not clearly erroneous.) It is true that
Bailey did not insist on Allen purchasing marijuana as a
condition of the gun sale; nor was the price or any other aspect
of the latter sale dependent on Allen buying some marijuana
from Bailey. But in a literal sense, the gun purchase was what
brought Allen to Bailey’s home, where Bailey offered him the
opportunity to purchase marijuana, and in that sense Bailey’s
agreement to sell the gun to Allen and Johnston made the
secondary sale of marijuana to Allen possible. Judge Mihm was
free to conclude, as he did, that one aspect of Bailey’s business
(gun sales) furthered the second aspect (marijuana sales) by
bringing him customers for marijuana who would not other-
wise have come to him but for the prospect of purchasing a
gun—in the same way that legitimate retailers use one set of
products to lure customers into so-called impulse purchases.
No. 17-1031 11
The two sales at issue here were more than simply coincidental
in this respect.
Moreover, Bailey does not contest the notion, advanced in
the Fourth Circuit’s Lipford decision, that a buyer in an illicit
market (whether for drugs or guns) may wish to enhance his
bona fides with a seller by accepting the seller’s offer to sell him
a second item of contraband (in Lipford, a gun; here, the
marijuana). 203 F.3d at 267. In this case, Anderson advised
Allen to pursue Bailey’s offer to sell him marijuana in addition
to the gun as a means of establishing his credibility with Bailey.
We see nothing wrong with this additional theory as to how
the gun purchase facilitated the marijuana purchase, in the
sense that it indicates the buyer (Allen) would not have
purchased the marijuana but for his desire to purchase the gun
from Bailey.
We add that Bailey’s sale of marijuana to Allen was not by
happenstance, a circumstance that might have weakened the
nexus between the two transactions. The record suggests that
Bailey was engaged in the sale of marijuana and firearms on a
regular basis: Bailey mentioned other gun sales during his texts
and phone calls with Allen and during the March 31 transac-
tion, and when he distributed the five baggies of marijuana to
Allen, he did so from a larger stash of the drug. (The search of
Bailey’s home confirmed the presence of a significant quantity
of marijuana, along with a digital scale.) The district judge
himself characterized Bailey’s enterprise as offering “one-stop
shopping” for both marijuana and firearms. R. 46 at 14; see also
R. 32 at 7–8. And of course it was Bailey who at the start of his
negotiations with Allen proposed to sell him marijuana in
12 No. 17-1031
addition to the firearm.4 So it was not as if the secondary
marijuana sale occurred by serendipity, as it might have, for
example, had Allen or Johnston, in finalizing the purchase of
the firearm, noticed Bailey smoking a joint of marijuana and
asked him if he had any to sell them. One can infer from the
evidence that Bailey, having interested Allen in the gun
purchase, saw an opportunity to make an additional marijuana
sale and did so. This was enough to satisfy the “in furtherance
of” prong of section 924(c).
III.
For the foregoing reasons, we conclude that the evidence is
sufficient to support Bailey’s conviction pursuant to section
924(c).
AFFIRMED
4
The district court noted that there was some dispute as to whether it was
Bailey or Allen who first raised the subject of marijuana. R. 46 at 13–14.
Viewing the evidence in the light most favorable to the government, we
have assumed that it was Bailey.