Appeal from Judgments of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge), dated September 25, 2008 (Gardner) and November 14, 2008 (Gladden), following a jury trial, convicting defendants of conspiracy, drug and firearm offenses and sentencing Gardner to 180 months' imprisonment and Gladden to 300 months' imprisonment. We hold that when a defendant acquires a firearm using drugs as payment he possesses the firearm in furtherance of a drug trafficking crime. We accordingly affirm the judgment of the district court.
The opinion of the court was delivered by: Katzmann, Circuit Judge
Before FEINBERG and KATZMANN, Circuit Judges, CASTEL, District Judge.*fn1
The threshold issue presented on appeal is whether acquiring a firearm using drugs as payment constitutes possessing that firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Defendant-Appellant Edward Gardner appeals from the September 25, 2008 judgment of the United States District Court for the Southern District of New York (Rakoff, J.). Defendant-Appellant Kenroy Gladden appeals from the November 14, 2008 judgment of the United States District Court for the Southern District of New York (Rakoff, J.). Gardner and Gladden were convicted, following a jury trial, of conspiracy, drug and firearm offenses, including a violation of 18 U.S.C. § 924(c)(1)(A), which prohibits the possession of a firearm in furtherance of a drug trafficking crime. At trial, the district court instructed the jury that it could find a violation of this provision if it unanimously concluded beyond a reasonable doubt that the defendants "acquired the firearm by paying for it with drugs involved in the conspiracy."
On appeal, Gardner and Gladden contend that acquiring a firearm using drugs as payment does not constitute possession of that firearm in furtherance of a drug trafficking crime, and therefore the district court erroneously instructed the jury and there was insufficient evidence to support their convictions under 18 U.S.C. §(c)(1)(A). We hold that acquiring a firearm using drugs as payment constitutes possessing that firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). We therefore conclude that the district court properly instructed the jury and that there was sufficient evidence to support defendants' convictions.*fn2
This case began with an undercover investigation into crack cocaine sales in the Bronx. Undercover agents purchased crack cocaine from Najir Williams, who became a cooperating witness in the case against Gardner and Gladden. At trial, Williams testified to the relationship between Gardner and Gladden and their drug trafficking activities, and the jury concluded beyond a reasonable doubt that Gardner and Gladden were involved in a drug trafficking conspiracy.
Relevant to this appeal, Williams testified about an occasion when Gardner and Gladden acquired two firearms with drugs. On that occasion, Williams testified that he, Gardner and Gladden were sitting in Gladden's SUV when a Pontiac car pulled up next to them and parked. A few minutes later, a man entered the passenger seat of Gladden's SUV with a black backpack. The man asked for $600 for two guns that were in the backpack. Gladden stated that he did not want to pay cash for the guns, but instead wanted to give the man "some work," meaning some crack cocaine, for the guns. The man responded that he "[didn't] know about that" and that he wanted some cash, at which point he put the guns back inside the backpack, told them to give him a minute and exited the vehicle. Williams then saw the man enter the Pontiac and noticed that there was another occupant in the driver's seat of that vehicle. When the man returned to Gladden's SUV with his backpack, he stated "all right, we will take work for the guns," meaning that he would take the drugs for the guns. The man then pulled out the guns and handed them to Gladden. Gladden stated that he would give the man an onion, meaning an ounce of crack cocaine, for the guns, and the man agreed. The man then exited Gladden's SUV and got back inside the Pontiac.
After the man exited the SUV, Gladden turned to Gardner and instructed him to get an onion, and Gardner went inside the house and returned with the drugs. The man then entered Gladden's SUV again and Gladden handed him the drugs. Presumably because an ounce of crack cocaine was worth more than $600, Gladden told the man that, after they finished selling the drugs, they should give him back $200. The man then pocketed the drugs and exited Gladden's SUV, and Gladden handed the firearms to Gardner and asked him to "put these things up for me." Before Gardner and Williams left, Gladden got a call on his phone.Williams noticed that the driver of the Pontiacwas also on the phone. Williams testified that the man on the phone told Gladden that he did not want crack cocaine and that he wanted powder cocaine instead. Gladden responded "that that will take a minute" and that he had to "go around the block to deal with that." Gardner and Williams then exited the vehicle and went inside their house where they inspected the guns. There is no evidence in the record regarding whether Gladden actually swapped the crack cocaine for power cocaine.
Gardner and Gladden were charged with violating 18 U.S.C. § 924(c)(1)(A), which provides that "[a]ny person who, during and in relation to any crime of violence or drug trafficking crime... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm," shall be subject to a penalty in addition to that for the underlying crime. At the conclusion of their trial, the district court instructed the jury as follows:
[T]he government must prove that the defendant you are considering possessed this firearm for the purpose of furthering the conspiracy charged in Count 1, that is, to help in carrying out the conspiracy. In this regard, the firearm does not have to have been actually used. The defendant must be shown to have possessed the gun for the purpose of playing some role, even if small, in the furtherance of the conspiracy.
Also you may [find] that a given defendant possessed the firearm in furtherance of the conspiracy if you unanimously conclude beyond a reasonable doubt that he acquired the firearm by ...