In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3078
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A LDUFF D OODY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:09-CR-26 RLM—Robert L. Miller, Jr., Judge.
A RGUED JANUARY 12, 2010—D ECIDED A PRIL 2, 2010
Before P OSNER, F LAUM, and W ILLIAMS, Circuit Judges.
F LAUM, Circuit Judge. The defendant, Alduff Doody,
was charged with possessing a firearm in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. § 924(c).
Unlike the defendants most commonly charged under
§ 924(c), Doody did not possess the firearm for protection.
Instead, he accepted the gun as collateral to secure a
drug debt. Thus, he argues, his conduct did not violate
§ 924(c). Because Doody took possession of a firearm in
manner that facilitated a drug transaction, we affirm.
2 No. 09-3078
I. Background
On March 11, 2009, Doody was indicted by a grand
jury on one count of possessing a firearm in furtherance
of a drug trafficking crime in violation of 18 U.S.C. § 924(c)
and one count of distributing cocaine in violation of
21 U.S.C. § 841(a)(1). Although he originally pleaded not
guilty to both counts, on May 20, 2009, Doody agreed to
plead guilty to Count 2 of the indictment, distributing
a controlled substance. The parties also agreed that
Count 1 would be submitted to the district court in a
bench trial on stipulated facts. Doody waived his right
to appeal, except for the right to appeal an adverse deci-
sion as to guilt or innocence as a result of the bench trial
on Count 1. On May 27, 2009, the district court approved
the plea agreement.
According to the stipulated facts, Doody distributed
powder cocaine from about April 2008 through Feb-
ruary 2009 in Marshall County, Indiana. He distributed a
little over a kilogram of powder cocaine during that ten-
month period. On August 5, 2008 and February 24, 2009,
Doody distributed cocaine to two confidential informants
working with the Bureau of Alcohol, Tobacco, and Fire-
arms. In a separate transaction in the fall of 2008, Doody
distributed one-sixteenth of an ounce of cocaine to Gil
Rodriguez, who did not at that time have the money to
pay for it. Rodriguez instead offered his nine-millimeter
pistol as collateral to secure the drug debt. Doody took
possession of the firearm and held it for four or five days
until Rodriguez paid him $60 for the cocaine. Doody
then returned the firearm to Rodriguez. When agents
No. 09-3078 3
searched Doody’s residence on February 24, 2009, they
found nine-millimeter ammunition and a nine-millimeter
magazine.
The district court conducted the bench trial on June 8,
2009. Based exclusively on the stipulated facts, the
district court denied Doody’s motion for an acquittal and
found Doody guilty of Count 1 of the indictment. On
August 20, 2009, the district court sentenced Doody to
60 months of imprisonment on Count 1 of the indictment
and 51 months of imprisonment on Count 2 of the indict-
ment, with the terms to run consecutively. Doody appeals
his conviction on Count 1.
II. Analysis
We review a claim that a district court’s verdict after a
bench trial is unsupported by the evidence with the
same deferential standard that applies to a jury verdict:
we reverse only if, after viewing the evidence in the
light most favorable to the government, we determine
that no rational trier of fact could have found the defen-
dant guilty beyond a reasonable doubt. See United States
v. Arthur, 582 F.3d 713, 716-17 (7th Cir. 2009). We review
de novo the trial court’s ruling on a Rule 29 motion for
a judgment of acquittal, asking whether evidence exists
from which any rational trier of fact could have found
the essential elements of a crime beyond a reasonable
doubt. United States v. Hach, 162 F.3d 937, 942 (7th Cir.
1998). Here, because the facts were stipulated before
trial, these questions are the same, and turn on the
legal question of whether a defendant who accepts a
4 No. 09-3078
firearm as collateral to secure a drug debt can be said to
possess that firearm “in furtherance” of a drug trafficking
crime and thus be convicted under 18 U.S.C. § 924(c).
Section 924(c) provides for a mandatory minimum
sentence of five years for any person “who, during and
in relation to any . . . drug trafficking crime . . . uses or
carries a firearm, or who in furtherance of any such
crime, possesses a firearm . . . .” 18 U.S.C. § 924(c)(1)(A)
(2010). The “uses” prong of § 924(c) has been the subject of
a line of Supreme Court cases, culminating in a case
addressing the receipt of a firearm in exchange for
drugs. First, in Smith v. United States, 508 U.S. 223 (1993),
the Supreme Court held that a person who trades his
firearm for drugs “uses” the firearm “during and in
relation to . . . [a] drug trafficking crime.” Two years
later, in Bailey v. United States, 516 U.S. 137 (1995), the
Court suggested it would follow a more restrictive inter-
pretation of “use,” holding that a defendant who had a
loaded firearm locked in a bag in the trunk of his car
and a defendant who had an unloaded pistol locked in
a trunk in her bedroom closet did not “use” the fire-
arms during and in relation to their drug-dealing
activities because they did not “actively employ” them.
Id. at 147-51. Finally, in Watson v. United States, 552 U.S.
74 (2004), a unanimous Court held that a defendant
who receives a gun as payment for drugs does not “use” a
gun for the purposes of § 924(c). Id. at 83. By the time
the Court decided Watson, Congress had responded to
Bailey by amending § 924(c) to its present form, adding
the prohibition on possessing a firearm in furtherance
of a drug trafficking crime. Because the defendant in
No. 09-3078 5
Watson was charged under only the “use” prong of
§ 924(c), the Court reserved the question of whether he
could have been found guilty of possessing a gun “in
furtherance of” his drug trafficking. Id.
Since Watson, six courts of appeals have considered
whether a defendant who receives a firearm in exchange
for drugs possesses that firearm in furtherance of a drug
trafficking crime, and all six have decided or assumed
without deciding that such a defendant does violate
§ 924(c). See United States v. Mahan, 586 F.3d 1185, 1188
(9th Cir. 2009) (“a defendant who accepts firearms in
exchange for drugs possesses the firearms ‘in furtherance
of’ a drug trafficking offense”); United States v. Sterling,
555 F.3d 452, 458 (5th Cir. 2009) (assuming without de-
ciding that bartering drugs for guns constitutes “posses-
sion in furtherance” of a drug trafficking offense);
United States v. Dolliver, 228 Fed. Appx. 2, 3 (1st Cir. 2007)
(holding that trading drugs for a gun violates the “in
furtherance of” prong of § 924(c)); United States v. Luke-
Sanchez, 483 F.3d 703, 706 (10th Cir. 2007) (same); United
States v. Frederick, 406 F.3d 754, 764 (6th Cir. 2005) (same).
We have not previously addressed this question, but
we have considered the “in furtherance of” prong of
§ 924(c) in other situations. In United States v. Castillo,
406 F.3d 806 (7th Cir. 2005), we considered what might
be the archetypical possession of a gun in furtherance of
drug trafficking: possessing a gun to protect the drugs
and the dealer and to serve as a warning to those who
might attempt to steal the drugs. Id. at 815. We inter-
preted the phrase “in furtherance of” to mean “furthering,
6 No. 09-3078
advancing, or helping forward.” Id. at 814. Castillo
places the burden on the government to “present a viable
theory as to how the gun furthered the [drug distribu-
tion] . . . and it must present specific, non-theoretical
evidence to tie that gun and the drug crime together
under that theory.” Id. at 815. Applying this standard, we
concluded that the government had established that
the defendant had possessed a gun for protection during
a drug offense and thus violated § 924(c). Id. at 815-16.
In United States v. Vaughn, 585 F.3d 1024 (7th Cir. 2009),
we applied the standard articulated in Castillo to a more
unusual scenario. In Vaughn, the defendant had pre-
viously acquired a rifle from a man named Gee, who
often bought drugs from him. Gee later became a con-
fidential informant and asked if he could buy back the
rifle. Vaughn declined to sell him the rifle, but said he
would give the rifle back to Gee if Gee sold six pounds
of marijuana for him. Gee agreed, and Vaughn gave him
the rifle after Gee paid him for the marijuana. Id. at 1027.
We held that by offering the rifle as an incentive for
selling marijuana, Vaughn possessed it in furtherance of
a drug trafficking crime. Id. at 1029. We acknowledged
that this was a “novel” use of § 924(c) but held that
Vaughn’s possession of the rifle “helped forward” the
sale of six pounds of marijuana by acting as an incen-
tive to sell the marijuana, speeding payment for the
marijuana, and assuring the full payment of the mari-
juana’s purchase price. Id. at 1029-30.
Castillo and Vaughn lead us to the same interpretation
of § 924(c) as our sister circuits: when a defendant
No. 09-3078 7
receives a gun for drugs, he takes possession of the
firearm in a way that “further[s], advance[s], or help[s]
forward” the distribution of drugs. Castillo, 406 F.3d at
814. As the Sixth Circuit observed, “If the defendant did
not accept possession of the gun, and instead insisted
on being paid fully in cash for his drugs, some drug
sales—and therefore some drug trafficking crimes—
would not take place.” Frederick, 406 F.3d at 764. The
same is true when the defendant holds the gun only as
collateral, rather than taking permanent ownership of
it. Without the gun serving as security for the drug debt,
some drug dealers would refuse to extend credit to
their customers, and some drug transactions would not
take place. Receiving a gun in exchange for drugs—
whether as payment or collateral—facilitates the drug
transaction.
Doody makes two closely related arguments against
this interpretation of § 924(c). First, he relies on the
holding in Watson that mere “receipt” is not “use” and on
18 U.S.C. §§ 922(g) & (h), both of which make it a
crime to “receive” a firearm or ammunition under cer-
tain circumstances. This, Doody suggests, means that
Congress must use the word “receipt,” not “possession,”
to criminalize accepting a gun for drugs. Second, he
argues that he did not possess the pistol “during and in
relation to” the drug trafficking crime, because he
did not possess the gun during the drug distribution or
possessed it only momentarily (the record is silent on
whether the gun or the contraband was handed over
first), after which he possessed the gun only “ ‘in further-
ance of’ a secured debt.”
8 No. 09-3078
Doody’s reliance on Watson is misplaced. Watson
rested on the plain meaning of the word “use”—one
who receives something in a bartering transaction is
not ordinarily said to use the object he received in rela-
tion to trade. 552 U.S. at 79. Here, Doody “possessed” the
pistol in the ordinary meaning of the word: he held it
and controlled it. Whatever the merits in another context
of Doody’s argument that Congress intended to distin-
guish “possession” from “receipt,” the distinction makes
no difference here. After receiving the gun, Doody pos-
sessed it. And unless Doody had been willing to take
possession of the gun in exchange for drugs, the transac-
tion could not have taken place. Thus, Doody’s eventual
possession furthered his drug trafficking crime.
Finally, we must address Doody’s argument that he did
not violate § 924(c) because he did not take possession
of the gun until after he distributed the drugs. This argu-
ment rests on a misreading of the text of § 924(c). The
mandatory minimum applies to a defendant “who, during
and in relation to any . . . drug trafficking crime . . . , uses
or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm . . . .” 18 U.S.C. § 924(c)(1)(A)
(2010) (emphasis added). The repetition of the subject
“who” in this parallel construction makes clear that
“during and in relation to” applies only to those defen-
dants accused of using or carrying a firearm. For those
who are charged with possessing a firearm, the only
limit is that the possession be “in furtherance of” the drug
trafficking crime. Thus, Doody cannot rely on the fact
that his possession of the firearm may not have come
until after the drugs were distributed. Even if it did not
No. 09-3078 9
come until after the drugs were distributed, Doody’s
possession of the pistol made the drug transaction pos-
sible, and thus furthered it, and § 924(c) requires no more.
III. Conclusion
The district court’s judgment of conviction is A FFIRMED.
4-2-10