Saturday, March 13, 2010


United States v. Gardner, No. 08-4793-cr (2d Cir. March 10, 2010)(Feinberg, Katzmann, CJJ, Castel, DJ)

18 U.S.C. § 924(c)(1)(A) makes it a crime to possess a firearm in furtherance of a drug trafficking crime. Here, the defendants challenged the applicability of this section in their case, where they purchased firearms using drugs as payment.

The trial evidence showed that the defendants acquired two firearms and paid for them with drugs, specifically an “onion” - one ounce of crack cocaine. They instructed the gun seller to sell the crack and give them $200 - the difference between the value of the drugs and that of the guns.

In affirming, the circuit began with a bit of history. The pre-1998 § 924(c) did not have an “in furtherance” requirement. It made it a crime only to use or carry a firearm “during and in relation to” a drug trafficking offense. Under that version of the statute, the Supreme Court first held that a defendant who received drugs in exchange for a gun violated § 924(c), then later held that a defendant who received a gun in exchange for drugs did not. A person did not “use” a firearm “simply by receiving it in a barter transaction.”

But the current version of the statute contains a different theory of culpability. A person can now violate § 924(c) if he “possesses a firearm” “in furtherance of” a drug trafficking crime. The Supreme Court has not addressed whether paying for a gun with drugs satisfies this language, and the Second Circuit long ago mentioned it only in dicta, noting that “trading drugs for a gun will probably” violate the statute.

Since then, however, several other circuits have held that trading drugs for weapons constitutes possession in furtherance of a drug trafficking crime, although there is a split, with the Third Circuit seemingly going the other way.

The circuit had little trouble joining the majority. It noted that the defendants possessed the guns and that their doing so furthered a drug trafficking crime - their own sale of the crack cocaine to the gun seller. It is “natural to say that a person who trades drugs for guns ‘possesses’ the guns ‘in furtherance of’ the transaction.” Moreover, the defendants instructed the gun seller to sell the crack to raise the money he owed them. Thus, their possession of the guns promoted “further drug trafficking” as well.



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