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United States v. Bailey

United States Court of Appeals, Seventh Circuit

February 16, 2018

United States of America, Plaintiff-Appellee,
v.
Adrian Bailey, Defendant-Appellant.

          Argued November 1, 2017

         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.

          Before MANION, KANNE, and ROVNER, Circuit Judges.

          ROVNER, Circuit Judge.

         Adrian Bailey offered to sell marijuana 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 contemporaneously with the firearm purchase. On that basis, Bailey was convicted after a bench trial of possessing a firearm in furtherance 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 coincident 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 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. 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 additional 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 $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).[ ...


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