United States v. Bailey

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0021a.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 06-5576
v.
,
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Defendant-Appellant. -
TERRELL R. BAILEY,
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Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 05-00038—David L. Bunning, District Judge.
Argued: September 18, 2007
Decided and Filed: January 20, 2009
*
Before: MOORE and GRIFFIN, Circuit Judges; TARNOW, District Judge.

_________________

COUNSEL
ARGUED: Jessica A. Dipre, DINSMORE & SHOHL, Cincinnati, Ohio, for Appellant.
Andrew Sparks, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky,
for Appellee ON BRIEF: Jessica A. Dipre, Michael J. Newman, Jennifer K. Swartz,
DINSMORE & SHOHL, Cincinnati, Ohio, for Appellant. Charles P. Wisdom, Jr., David
P. Grise, ASSISTANT UNITED STATES ATTORNEYS, Lexington, Kentucky, for
Appellee.
MOORE, J., delivered the opinion of the court, in which TARNOW, D. J.,
joined. GRIFFIN, J. (pp. 15-21), delivered a separate opinion dissenting in part and
concurring in part.

*
The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.

1
No. 06-5576 United States v. Bailey Page 2

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AMENDED OPINION
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KAREN NELSON MOORE, Circuit Judge. Defendant Terrell R. Bailey
(“Bailey”) has submitted a petition for rehearing by the panel or, in the alternative, a
petition for rehearing en banc, challenging our prior panel opinion upholding his
convictions and sentences for possession with intent to distribute crack cocaine in
violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of drug
trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(i); and being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). See United States v. Bailey, 510 F.3d
562 (6th Cir. 2007). We grant the petition for rehearing and amend the panel opinion
to correct a factual mistake concerning which evidence had been admitted for the jury’s
consideration regarding Bailey’s firearm convictions and thus may be reviewed on an
insufficiency-of-the-evidence challenge. We also amend the opinion to reflect the legal
consequences of correcting the prior opinion’s factual mistake.

We adhere to our prior panel opinion, except for the opening paragraph and parts
III.B., III.C., IV, and V. We VACATE parts III.B., III.C., IV, and V, and substitute the
opinion below for those parts. We adopt by reference the following parts of our prior
panel opinion: part I, discussing the factual and procedural background; part II,
affirming the district court’s sentencing of Bailey as a career offender; the opening
paragraph of part III, setting forth the standard for a sufficiency-of-the-evidence
challenge; and part III.A., affirming Bailey’s conviction pursuant to 21 U.S.C.
§ 841(a)(1). In sum, we AFFIRM Bailey’s conviction under 21 U.S.C. § 841(a)(1),
REVERSE his conviction under 18 U.S.C. § 924(c)(1)(A)(i), and REVERSE his
conviction under 18 U.S.C. § 922(g)(1). We REMAND to the district court for further
proceedings consistent with this opinion.

In evaluating Bailey’s insufficient-evidence claim, the prior panel opinion relied
heavily on Elizabeth Stanford’s (“Stanford”) written and oral statements made at the
scene of the arrest stating that she had seen Bailey place the gun under his seat in the car.
No. 06-5576 United States v. Bailey Page 3

These statements constituted one of four key components of evidence that the opinion
cited in support of the decision to uphold Bailey’s conviction under 18 U.S.C.
§ 924(c)(1)(A)(i) and the only evidence that the opinion cited in support of the decision
to uphold Bailey’s conviction under 18 U.S.C. § 922(g)(1). The prior opinion’s reliance
on anything Stanford said or wrote at the scene of the arrest, however, was mistaken.
The district court had admitted her arrest-scene statements only for impeachment
purposes and had forbidden the jury from considering the statements as evidence in
determining Bailey’s guilt. We therefore amend the panel opinion to correct this factual
mistake.1

After allowing the prosecutor to ask Stanford questions about statements she
made on the night of Bailey’s arrest, and after allowing Jordan to testify to what Stanford
told him that night, the district court gave the jury the following instructions:

You heard through [Jordan] that Miss Stanford gave other oral
statements at the time that the car was—after she was pulled out of the
vehicle. You are permitted to consider those statements for the purposes
of judging her credibility to determine the veracity of the written
statement. She apparently gave a written statement that said one thing,
she testified differently today. She gave the written statement and oral
statement at the time. You can consider the oral statements that she gave
to determine her credibility for impeachment purposes, if you will.
You’re not to consider those for the truth of what she said orally.
And that may be a legal—I try to make things as non-legal as I
can. I’ve been up here thinking how I can give this limiting instruction
in a way that you can understand. I guess the easiest way to explain it is
you can consider her oral statements in judging her credibility. That’s
probably the easiest way to explain it to you. You are not to consider it
for the truth of what she actually said. That is, regarding the gun and the
drugs.
The written statement has been admitted into evidence and you’ll
have that as Exhibit 12.

1
In opposition to Bailey’s petition for rehearing, the government argues that Bailey has waived
his right to object to the admission of Stanford’s written statement because he never made this objection
at trial. This argument is inapposite. The district court ultimately allowed the jury to consider Stanford’s
written statement only for impeachment purposes, which Bailey does not now challenge on his petition
for rehearing. Moreover, when the district judge initially admitted the written statement, before changing
his mind and excluding the evidence for all but impeachment purposes, Bailey did make an objection.
Trial Tr. at 134, United States v. Bailey, No. CR 05-38 (E.D. Ky. 2006) (noting that Stanford’s statement
was “admitted over objection”).
No. 06-5576 United States v. Bailey Page 4

Trial Tr. at 160 (emphasis added). Shortly after making this ruling that clearly limits the
use of Stanford’s oral statements, however presented to the jury, to impeachment, the
district court also limited the use of Exhibit 12 to impeachment only. Id. at 181. The
district court limited the use of all testimony and reports purporting to reproduce
Stanford’s oral and written declarations made at the scene of the arrest to use for
impeachment only. Whether information about these statements came from the written
report, from Stanford’s testimony, or from Jordan’s testimony, such information was
admitted only to impeach Stanford and not for the truth “regarding the gun and the
drugs.” Id. at 160; see also Joint Appendix (“J.A.”) at 61 (Written Jury Instr. 21,
limiting use of prior statements or testimony to impeachment only).

Once we remove Stanford’s oral and written statements made on the night of
Bailey’s arrest from the body of evidence that we may consider, then there remains
insufficient evidence to convict Bailey under either § 924(c)(1)(A)(i) or § 922(g)(1).2
Because Bailey contests only the “possession” elements of both his firearm-related
convictions, we will address the sufficiency of the evidence for Bailey’s conviction
under both §§ 924(c)(1)(A)(i) and 922(g)(1) by generally discussing the sufficiency of
the evidence to establish possession. “Both actual possession and constructive
possession may be proved by direct or circumstantial evidence.” United States v.
Craven, 478 F.2d 1329, 1333 (6th Cir.), cert. denied, 414 U.S. 866 (1973). “A person
who knowingly has direct physical control over a thing at a given time is then in actual
possession of it.” United States v. Frederick, 406 F.3d 754, 765 (6th Cir. 2005). Bailey
did not have a gun on his person when the police arrested him. See United States v.
Pugh, 405 F.3d 390, 394, 404 (6th Cir. 2005) (holding that defendant who “was pulled
out of bed and had a shotgun beneath his body,” therefore, “actually possessed the gun

2
As noted above, we adopt by reference the opening paragraph of Part III of the original panel
opinion setting forth the standard of review as follows:
“The relevant question in assessing a challenge to the sufficiency of the evidence is
whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. McAuliffe, 490 F.3d 526, 537 (6th Cir.
2007). When reviewing the record, “the court views all evidence in the light most
favorable to the prosecution and determines whether there is any evidence from which
a reasonable jury could find guilt beyond a reasonable doubt.” United States v. Talley,
164 F.3d 989, 996 (6th Cir.1999).
U.S. v. Bailey, 510 F.3d 562, 566 (6th Cir. 2007).
No. 06-5576 United States v. Bailey Page 5

when he was apprehended”). Nor did the police see Bailey holding a gun prior to his
arrest. See United States v. Caraway, 411 F.3d 679, 680, 683 (6th Cir. 2005) (finding
sufficient evidence to establish actual possession when officer saw defendant holding
gun and then drop the gun while fleeing). There is no evidence to establish that Bailey
had direct physical control over the firearm; accordingly, we must conclude that Bailey
did not actually possess the firearm.

“Constructive possession exists when a person does not have actual possession
but instead knowingly has the power and the intention at a given time to exercise
dominion and control over an object, either directly or through others.” Craven, 478
F.2d at 1333 (emphasis added). “Proof that ‘the person has dominion over the premises
where the firearm is located’ is sufficient to establish constructive possession.”3 United
States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998) (quoting United States v. Clemis,
11 F.3d 597, 601 (6th Cir. 1993)), cert. denied, 525 U.S. 1166 (1999). However,
“[p]resence alone cannot show the requisite knowledge, power, or intention to exercise

3
Our caselaw does not define “dominion.” A consensus, however, has developed in federal and
state courts “that where the defendant is in nonexclusive possession of premises on which [illicit
contraband] [is] found, it cannot be inferred that he knew of the presence of such [contraband] and had
control of [it], unless there are other incriminating statements or circumstances tending to buttress such
an inference.” Emile F. Short, Annotation, Conviction of Possession of Illicit Drugs Found in Premises
of which Defendant was in Nonexclusive Possession, 56 A.L.R. 3d 948, § 4 (1974).
The corollary, demonstrated by our own caselaw discussed infra, is that nonexclusive possession
does not establish “dominion over the premises” sufficient to show constructive possession. This axiom
accords with the doctrinal development of the dominion-over-the-premises rule in the Sixth Circuit. The
leading case, United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998), quotes United States v. Clemis,
11 F.3d 397, 601 (6th Cir. 1993), for the principle, and Clemis in turn cites United States v. Snyder, 913
F.2d 300, 304 (6th Cir. 1990). The Snyder case addressed a sentencing enhancement for possession of a
firearm during the commission of an offense and cited an Eighth Circuit case quoting a Fifth Circuit case
for the definition of constructive possession. Ultimately, then, we must look to the Fifth Circuit opinion,
United States v. Cardenas, 748 F.2d 1015 (5th Cir. 1984), for the origins of the dominion-over-the-
premises rule in our caselaw. Cardenas held that “[a] person has constructive possession if he has
‘ownership, dominion, or control over the contraband itself, or dominion over the premises in which the
contraband is concealed.” 748 F.2d at 1019 (internal quotations omitted). The Fifth Circuit immediately
elaborated: “To find constructive possession, however, more evidence than mere physical proximity of
the defendant to the [contraband] is required. It is necessary that some nexus between the accused and the
[contraband] be established.” Id. at 1019-20. “[M[ere presence in the area where the [contraband] is
discovered or mere association with . . . the property where it is located[] is insufficient to support a
finding of possession.” Id. at 1020. Cardenas thus stands for the principle that physical proximity to the
contraband and presence in the premises where the contraband is found cannot show dominion over the
premises sufficient to establish constructive possession of the contraband. The principle accords with the
widely held rule that nonexclusive possession of the premises cannot establish constructive possession over
items found within the premises.
No. 06-5576 United States v. Bailey Page 6

control over the unregistered firearms.”4 United States v. Birmley, 529 F.2d 103, 107-08
(6th Cir. 1976).

We find it critical in this case to reiterate that the theory of constructive
possession requires “specific intent.” United States v. Newsom, 452 F.3d 593, 606 (6th
Cir. 2006). We also find instructive our sister circuits’ illumination of the standard
required for the government to establish such intent. The Fifth Circuit has recently
explained that if a defendant “den[ies] any knowledge of a thing found in an area under
his control,” as Bailey does in this case, “[t]he government then must offer evidence to
prove that the defendant (1) knew that the thing was present, and (2) intended to
exercise[] dominion or control over it.” United States v. Jones, 484 F.3d 783, 788 (5th
Cir. 2007). The D.C. Circuit holds that in addition to knowledge and proximity, “[t]here
must be some action, some word, or some conduct that links the individual to the
[contraband] and indicates that he had some stake in [it], some power over [it].” United
States v. Clark, 184 F.3d 858, 863 (D.C. Cir. 1999) (quoting United States v. Pardo, 636
F.2d 535, 549 (D.C. Cir. 1980)). The Tenth Circuit discusses the same widely held
doctrine: “the government must present evidence to show some connection or nexus
between the defendant and the firearm,” which can be established by a showing that the
defendant had “knowledge and access . . . [to the] firearm.” United States v. Jameson,
478 F.3d 1204, 1209 (10th Cir.), cert. denied, --- U.S. ---, 128 S. Ct. 321 (2007).

Once we remove Stanford’s written and oral statements made at the scene of
Bailey’s arrest, the only evidence supporting Bailey’s conviction for constructive
possession of the firearm is the fact that the loaded gun was found underneath Bailey’s
seat in the stolen car he was driving and that he had attempted to evade police. The
attempt to evade arrest, however, proves little because Bailey might well have taken this
action in an effort to evade detection of the two bags of crack cocaine found in his pants.

4
The dissent states that “proximity [to a firearm] coupled with other incriminating evidence” can
establish constructive possession. Dissent at 17. However, the cases that the dissent cites in support of
this proposition are distinguishable from Bailey’s. For example, in United States v. Mayberry, 540 F.3d
506, 515 (6th Cir. 2008), although the defendant did not challenge his conviction for possessing a firearm,
we noted that there was sufficient evidence of constructive possession because the defendant had touched
the firearm, given conflicting explanations for why he touched it, tried to get others to lie about the firearm,
and had used the weapon in two armed robberies.
No. 06-5576 United States v. Bailey Page 7

Bailey testified at trial that he was not aware of the gun inside the car; that he did not put
a gun inside the car; and that he did not have a gun on his person when he got inside the
car. Stanford testified at trial that she first saw the gun when the police officers removed
it from the car. Even if the jury found that Bailey and Stanford were not credible, the
government did not advance any evidence establishing constructive possession beyond
the fact that Bailey drove the car in which the gun was found. Of particular significance,
the government could not show that Bailey’s fingerprints were on the gun. Furthermore,
Bailey did not own the car he was driving, but rather borrowed the car from his friend
John. Bailey offered uncontradicted testimony at trial that on the night in question, John
dropped off the car for Bailey to use to drive his girlfriend Stanford home. Bailey also
used the car to drive his friend Darius to Darius’s house and was driving Stanford home
when the police stopped him. Because individuals other than Bailey used the car on the
night Bailey was arrested and in the days before, no juror could conclude beyond a
reasonable doubt that the mere fact that Bailey was driving the car meant that Bailey had
placed the gun beneath the driver’s seat.5 In sum, the government has presented no
evidence establishing a nexus between Bailey and the gun by showing that Bailey had
knowledge of, access to, and an intent to exercise control over the gun.

After the close of the evidence, Bailey renewed his motion for a judgment of
acquittal on the two counts charging him with possession of a firearm under §§ 922(g)
and 924(c)(1)(A)(i). The district court denied these motions, stating that “viewing the
evidence in the light most favorable to the Government, though the defendant denied the
knowledge about the gun, the credibility of the witnesses is in the exclusive province of
the jury, and they can choose or not to believe him as relates to the gun.” Trial Tr. at

5
The decision in United States v. Castano, 543 F.3d 826 (6th Cir. 2008), is distinguishable. In
Castano, the owner of the truck in which the firearm was found testified that he had thoroughly cleaned
his car right before lending it to the defendant and that there was no gun in the car when he lent it to the
defendant. Id. at 829. Although the defendant presented evidence that someone else had left the gun in
the truck the night before the truck was cleaned and loaned to the defendant, there was no suggestion that
a third party entered the truck after the defendant borrowed it. Id. at 830-31. In this case, by contrast,
there was uncontradicted testimony that multiple people other than Bailey either had access to or drove
the car on the night that the gun was found. The fact that the car’s owner testified that there was no gun
in the car when it was stolen is irrelevant because many other people had access to the car that night and
Bailey was not in sole possession of the car from the time that it was stolen until the time the gun was
found.
No. 06-5576 United States v. Bailey Page 8

370. The district court is correct that assessment of the credibility of the witness lies
within the province of the jury. In reviewing the sufficiency of the evidence, however,
the court of appeals must not “allow the jury’s discrediting of the defendant’s testimony
to make up for a shortfall in the sufficiency of the government’s evidence.” United
States v. Toms, 136 F.3d 176, 182 (D.C. Cir. 1998). The reason for this rule, first
articulated by Judge Learned Hand in 1952, is that “[t]here is no principled way of
deciding when the government’s proof, less than enough to sustain the conviction, is
nevertheless enough to allow adding negative inferences from the defendant’s testimony
to fill the gaps.” United States v. Zeigler, 994 F.2d 845, 850 (D.C. Cir. 1993) (applying
Dyer v. MacDougall, 201 F.2d 265 (2d Cir. 1952)). Although the sufficiency-of-the-
evidence standard is highly deferential to the jury, we cannot let this deference blind us
on review to the government’s burden to prove guilt beyond a reasonable doubt.
Regardless of whether the jury believed Bailey or Stanford’s oral testimony that Bailey
did not have control over the firearm found by the police underneath Bailey’s seat, the
prosecution had the burden of producing sufficient evidence to convict. The government
has failed to produce evidence that Bailey had knowledge of, access to, and the intent
to exert control over the gun and, therefore, has not established constructive possession.

The facts of Bailey’s case are readily distinguishable from those present in
United States v. Arnold, 486 F.3d 177 (6th Cir. 2007) (en banc), cert. denied, --- U.S. ---,
128 S. Ct. 871 (2008), in which this court sitting en banc found sufficient evidence to
convict on a felon-in-possession charge. In Arnold, a witness had called 9-1-1 minutes
before the defendant’s arrest to report that the defendant had threatened her with a gun.
Id. at 181-82. The description of the gun that the witness gave to the police officers
matched that for the gun found by the officers beneath the passenger seat in which the
defendant sat. Id. The fact that a witness, only minutes prior to the defendant’s arrest,
had seen the defendant with a gun matching the description of the one found thus proved
critical to the result in Arnold. The en banc decision in Arnold does not reject or even
conflict with our long-established principle that the sufficient-evidence standard requires
something more than merely the location of a firearm near the driver’s seat of a car
driven by the defendant. See, e.g., United States v. Murphy, 107 F.3d 1199, 1208 (6th
No. 06-5576 United States v. Bailey Page 9

Cir. 1997) (holding that sufficient evidence existed to convict defendant on a felon-in-
possession charge where the defendant was the only person in the car, the weapon was
found on the seat next to the driver’s seat, and the defendant made an “unsolicited
disclaimer of the weapon”). Indeed, the majority opinion in Arnold noted that the facts
in that case involved more than “[p]resence alone,” observing “[h]ere we have ‘other
incriminating evidence, coupled with presence, . . . [that] serve[s] to tip the scale in favor
of sufficiency.” Arnold, 486 F.3d at 183 (quoting Birmley, 529 F.2d at 107-08).

By contrast with Arnold, in the instant case no witness saw Bailey with a gun;
the requisite additional incriminating evidence is absent. Since Arnold, we have
explained that “[w]hen the defendant is found in close proximity to a firearm at the time
of the arrest, the inference of dominion and control is particularly strong, and thus the
incriminating evidence needed to corroborate the conviction is less.” United States v.
Grubbs, 506 F.3d 434, 440 (6th Cir. 2007). We continue to affirm, however, that some
amount of additional evidence beyond proximity is required. Id. at 439. The fact pattern
in this case falls within the category of cases that the majority in Arnold distinguished,
in which “the sole connection between the defendant and the gun was the gun’s
proximity to the defendant.” Arnold, 486 F.3d at 183.

The mere fact that Bailey was driving the car in which the police found the
firearm is not enough to establish dominion over the premises and thereby dominion and
control over the firearm. In Newsom, we stated that “[t]he fact that [the defendant] was
the only person in the SUV where the gun was found underneath his seat supports the
conclusion that [the defendant] had the power to exercise dominion and control over the
firearm.” 452 F.3d at 609 (emphasis added). We immediately proceeded to state,
however, that “the defendant’s mere presence in a car where a gun is found and
proximity to a gun are insufficient proof of constructive possession.” Id. That the
defendant drove and was the sole person in the car did not conclusively establish
dominion and control over the gun within the car. To determine that the defendant had
constructive possession over the firearm we required additional circumstantial evidence
beyond the defendant’s having driven the car in which the firearm was found. Id.
No. 06-5576 United States v. Bailey Page 10

Likewise, our en banc opinion in Arnold, 486 F.3d at 183, distinguished the facts in that
case from those at issue in United States v. Hishaw, 235 F.3d 565, 573 (10th Cir. 2000).
In Hishaw, the Tenth Circuit affirmed the doctrine, also followed by the Fourth, Ninth,
and D.C. Circuits, that “[i]n instances of joint occupancy in which the government fails
to demonstrate a nexus between the defendant and the contraband, they have concluded
that the government’s evidence of constructive possession was insufficient.” 235 F.3d
at 572. Because the defendant had testified that the car he was driving belonged to his
brother’s friend and because “[t]he government presented no evidence to rebut this
statement or to show the extent of [the defendant’s] dominion . . . over the car,” the
Tenth Circuit concluded that the government had not established constructive
possession. Id. By distinguishing the facts in Hishaw from those in Arnold, we
demonstrated implicit agreement with the holding of Hishaw. Moreover, since Arnold,
we have again endorsed the principle that “if a defendant is found with a firearm under
the seat of the car he is driving, and he is the lone [occupant] of the car,” those facts
alone without other incriminating evidence do not establish constructive possession.
Grubbs, 506 F.3d at 440.

Were we to hold that driving the car as its lone occupant sufficed to establish
constructive possession of a firearm found underneath the driver’s seat, then we would
thereby institute an untenable strict-liability regime for constructive possession under
18 U.S.C. §§ 922(g)(1) and 924(c)(1)(A)(i). Imagine the following scenario: A teenager
drives himself and three friends to a neighborhood party late one afternoon. The friends
listen to music in the car, talk, laugh, look out the window and are generally distracted.
One friend, riding in either the front passenger seat or the passenger seat directly behind
the driver, slips a small firearm onto the floorboard beneath the driver’s seat
unbeknownst to the driver or the other passengers. When they arrive at the party, the
driver and his friends get out of the car, and the driver locks the doors. Later that
evening, the driver gets back into his car alone, turns on the ignition, and begins his trip
home. When he rolls through a stop sign, police pull over his car for a traffic infraction,
and they also ask for permission to search the vehicle. The driver thinks he has nothing
to hide and consents to the search. The police discover a firearm beneath the driver’s
No. 06-5576 United States v. Bailey Page 11

seat. Do we want to institute a legal rule that would mandate the conclusion that the
driver has constructive possession over the firearm? Our en banc decision in Arnold
does not adopt such a rule, nor should we do so in this case.

Cases in which our sister circuits have found constructive possession are readily
distinguishable from the instant case. In cases involving a police officer’s discovery of
a firearm located on or underneath a seat of the car that the defendant drove or rode in
as a passenger, courts of appeals have found sufficient evidence to establish constructive
possession when there exists additional evidence beyond proximity. Other incriminating
evidence may include such evidence as a police officer’s testimony that he or she saw
the defendant bend down to conceal something beneath the seat, the discovery of
ammunition within the control of the defendant that fits the firearm at issue, a
defendant’s statement to police suggesting that he had knowledge of the firearm, or the
fact that the defendant not only drove the car but also had the car registered in his name.
See, e.g., Jameson, 478 F.3d at 1210 (holding that sufficient evidence existed to establish
constructive possession when a sergeant had testified that the defendant made “furtive
movements” in leaning forward as if to conceal an object; the firearm was in “plain
view”; and the jury could infer that the defendant had placed his foot on the firearm);
United States v. Tindall, 455 F.3d 885, 887 (8th Cir. 2006) (the defendant “was the
driver and sole occupant of the car at the time of the incident, and the car had been
registered to [the defendant] and his wife for more than two years prior to the arrest”),
cert. denied, --- U.S. ---, 127 S. Ct. 1028 (2007); United States v. Wright, 392 F.3d 1269,
1273-74 (11th Cir. 2004) (the defendant owned the vehicle he was operating when police
pulled him over and discovered the gun and the defendant “commented [to the police]
that it would be ‘lights out’ if he made it back to the vehicle and formed a pistol with his
hand,” thereby indicating knowledge of the gun), cert. denied, 544 U.S. 968 (2005);
United States v. Liranzo, 385 F.3d 66, 68-70 (1st Cir.) (the precarious position of the gun
at a 45-degree angle indicated that someone placed the gun in that position after the car
stopped; the evidence showed that none of the car’s occupants but the defendant could
have put the gun in position; and a police officer had seen the defendant reach
underneath his seat), cert. denied, 543 U.S. 1013 (2004); United States v. Jackson, 301
No. 06-5576 United States v. Bailey Page 12

F.3d 59, 64 (1st Cir. 2002) (the defendant owned the car he was driving when the police
found a gun underneath his seat and the ammunition discovered on the defendant fit the
gun); Clark, 184 F.3d at 862-63 (the defendant’s “reaching actions” in the area of the
floorboard where the police found the gun linked the defendant to the gun); United
States v. Gill, 58 F.3d 334, 336-37 (7th Cir. 1995) (the defendant’s clothes were piled
on top of the rifle on the back seat of car occupied solely by the defendant and “the
handle of the rifle was in partial view”); United States v. Gutierrez, 995 F.3d 169, 171-
72 (9th Cir. 1993) (the police had seen “furtive” movements on the part of the defendant
and had observed that “[t]he left corner of the back seat, where [the defendant] was
seated, had been pulled out approximately six inches in an apparent effort to conceal a
watch cap and loaded firearm”).

Because the evidence in this case is limited to the fact that Bailey was driving the
car in which police found the loaded gun, there exists insufficient evidence for any
rational factfinder to conclude beyond a reasonable doubt that Bailey had constructive
possession of the gun. We therefore vacate part III.C. of our prior panel opinion, and we
reverse the district court’s denial of Bailey’s motion for a judgment of acquittal on the
felon-in-possession count.

There also exists insufficient evidence to support Bailey’s conviction under
§ 924(c)(1)(A)(i). To convict a defendant under this statute, the prosecution must prove
that Bailey “possesse[d] a firearm,” “in furtherance of” a “drug trafficking crime.”
§ 924(c)(1)(A).

The element of the offense in dispute is Bailey’s possession of the firearm. Our
prior panel opinion found that four pieces of evidence were sufficient to show that
Bailey possessed the firearm and that he did so in furtherance of a drug-trafficking
crime: “(1) the .357 magnum was loaded; (2) it was quickly and easily accessible under
Bailey’s seat; (3) it was discovered in a stolen vehicle; and, (4) Stanford’s testimony that
she told the police that Bailey placed the gun under his seat.” Bailey, 510 F.3d at 568.
Because the district court admitted the oral and written statements that Stanford made
at the scene of Bailey’s arrest for impeachment purposes only, we cannot consider this
No. 06-5576 United States v. Bailey Page 13

fourth piece of evidence. For the same reasons as explained above, we conclude that the
location of the loaded gun under the driver’s seat of a stolen vehicle driven by Bailey
and Bailey’s evasion of the police does not amount to sufficient evidence to prove that
Bailey had actual or constructive possession of the weapon.

Once we eliminate Stanford’s written and oral statements made at the time of
Bailey’s arrest, our decision in United States v. Mackey, 265 F.3d 457 (6th Cir. 2001),
cert. denied, 534 U.S. 1097 (2002), does not support Bailey’s conviction under
§ 924(c)(1)(A)(i). In Mackey, the defendant had “concede[d] that he constructively
possessed the gun, but he claim[ed] that there was no evidence that the possession was
‘in furtherance of’ the drug crime.” 265 F.3d at 460. We concluded that “for the
possession to be in furtherance of a drug crime, the firearm must be strategically located
so that it is quickly and easily available for use.” Id. at 462 (emphasis added). We also
set forth other factors relevant to determining whether a defendant possessed a weapon
in furtherance of a crime: “whether the gun was loaded, the type of weapon, the legality
of its possession, the type of drug activity conducted, and the time and circumstances
under which the firearm was found.” Id. Here, the issue is not whether a gun possessed
by Bailey was so possessed in furtherance of a drug trafficking crime. Rather, the issue
is the prior question of whether Bailey possessed the gun. If Bailey had conceded
possession as the defendant in Mackey had, or if the government had produced sufficient
evidence to prove possession, then the fact that the gun was loaded and located
underneath Bailey’s seat would likely demonstrate that Bailey possessed the gun in
furtherance of his drug trafficking crime. As we explained above, however, the location
of the gun and its loaded condition cannot alone show constructive possession. We
therefore vacate part III.B. of our prior panel opinion, and we reverse the district court’s
denial of Bailey’s motion for a judgment of acquittal regarding his charge under
§ 924(c)(1)(A)(i).

In conclusion, we AFFIRM Bailey’s conviction under 21 U.S.C. § 841(a)(1),
REVERSE his conviction under 18 U.S.C. § 924(c)(1)(A)(i), and REVERSE his
conviction under 18 U.S.C. § 922(g)(1). We VACATE parts III.B., III.C., IV, and V of
No. 06-5576 United States v. Bailey Page 14

our prior panel opinion and REMAND to the district court for further proceedings
consistent with this opinion.
No. 06-5576 United States v. Bailey Page 15

___________________________________________________

DISSENTING IN PART, CONCURRING IN PART
___________________________________________________

GRIFFIN, Circuit Judge, dissenting in part, and concurring in part. I would deny
the petition for rehearing en banc and adhere to our original disposition. Accordingly,
I respectfully dissent from the portion of the amended opinion that reverses Bailey’s
firearm possession convictions. I concur in the portion of the amended opinion that
adopts and incorporates by reference Sections I, II and III.A of our prior opinion. I join
the majority in revising and amending the factual summary.

In response to defendant Bailey’s pro se petition for rehearing en banc, we have
supplemented the previously filed appellate record by directing counsel to furnish us
with additional portions of the trial transcript not included in the Joint Appendix. (See
generally FED. R. APP. P. 30 and former 6TH CIR. R. 30.) As the majority notes
correctly, the supplemented transcript reveals, after some uncertainty, that the district
court allowed Elizabeth Stanford’s written and oral on-the-scene statements to the police
to be admitted at trial only for the limited purpose of impeachment. Accordingly, we
revise and amend the factual background recited in our previous opinion.

However, I disagree and respectfully dissent from the majority’s holding that,
after excluding all of Stanford’s on-the-scene statements as substantive evidence, the
evidence is insufficient for any rational juror to find Bailey guilty of possession of a
firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A)(i), and felon in
possession of a firearm, 18 U.S.C. § 922(g)(1).1

In this regard, on the issues of actual or constructive possession, the majority’s
opinion appears more in line with Judge Moore’s dissent in United States v. Arnold, 486
F.3d 177 (6th Cir. 2007) (en banc), than with the majority en banc Arnold opinion. I
believe, however, that when the principles of the Arnold majority decision are properly

1
Bailey’s conviction of possession with intent to distribute five grams or more of crack cocaine,
21 U.S.C. § 841(a)(1), and 360-month sentence are unaffected by the majority’s amended opinion.
No. 06-5576 United States v. Bailey Page 16

applied to the case at bar, any rational trier of fact could have found the essential
elements of the crimes proved beyond a reasonable doubt based upon the evidence
admitted at trial. Bailey fled from the police in a stolen vehicle that he operated and
controlled. At the time, Bailey possessed crack cocaine with the intent to distribute. The
owner of the car testified that she did not own a handgun and that there was no handgun
in the car at the time it was stolen. Finally, the police discovered a loaded and
unholstered .357-magnum revolver within Bailey’s reach underneath his driver’s seat.

It is well settled that, on appeal, a defendant challenging the sufficiency of the
evidence bears a “very heavy burden.” United States v. Chavis, 296 F.3d 450, 455 (6th
Cir. 2002) (citing United States v. Tocco, 200 F.3d 401, 424 (6th Cir. 2000)).
Specifically, “[w]hen reviewing an insufficient-evidence claim, this court must decide
whether, after viewing the evidence in a light most favorable to the government, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007)
(emphasis added) (citing United States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002);
United States v. Gibbs, 182 F.3d 408, 421 (6th Cir. 1999)). See also Jackson v. Virginia,
443 U.S. 307, 319 (1979).

In applying this standard, we do not “weigh the evidence, consider the credibility
of witnesses, or substitute [our] judgment for that of the jury.” United States v.
Ferguson, 23 F.3d 135, 140 (6th Cir. 1994). We will reverse a judgment on
insufficiency-of-the-evidence grounds “‘only if [the] judgment is not supported by
substantial and competent evidence upon the record as a whole.’” United States v.
Barnett, 398 F.3d 516, 522 (6th Cir. 2005) (quoting United States v. Stone, 748 F.2d 361,
363 (6th Cir. 1984)). “If the evidence, however, is such that a rational fact finder must
conclude that a reasonable doubt is raised, this court is obligated to reverse a denial of
an acquittal motion.” United States v. Lloyd, 10 F.3d 1197, 1210 (6th Cir. 1993) (citing
United States v. Collon, 426 F.2d 939, 942 (6th Cir. 1970)).

We have held that a defendant’s mere presence near a firearm is not enough to
show constructive possession, Arnold, 486 F.3d at 183; see also Parker v. Renico, 506
No. 06-5576 United States v. Bailey Page 17

F.3d 444, 449-50 (6th Cir. 2007). However, proximity coupled with other incriminating
evidence may “‘show the requisite knowledge, power, or intention to exercise control
over’ the gun to prove constructive possession.” Arnold, 486 F.3d at 183 (quoting
United States v. Birmley, 529 F.2d 103, 107-08 (6th Cir. 1976)). Consequently,
proximity plus “evidence of some other factor” such as “proof of motive” may suffice
to establish constructive possession. United States v. Mayberry, 540 F.3d 506, 514 (6th
Cir. 2008) (quoting United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003))
(internal quotation marks omitted).

We recently applied this rationale in United States v. Castano, 543 F.3d 826 (6th
Cir. 2008). In Castano, the police stopped the defendant while he was driving a truck
with his girlfriend, who was riding in the passenger seat. A search of the vehicle
revealed a box containing marijuana in the truck bed and a loaded .44-caliber Smith &
Wesson revolver discovered “in the truck’s center console, positioned within easy reach
of the driver.” Id. at 828. The defendant argued that the government did not introduce
sufficient evidence to establish that he had constructive possession of the firearm.
Specifically, he asserted that the government failed to show that he knew the gun was
present in the vehicle. Id. at 837-38. At trial, several officers testified regarding “the
frequency of finding firearms when making arrests for drug trafficking offenses and
about the need for drug traffickers to protect themselves.” Id. at 838. On appeal, we
noted that drugs were found in the truck in close proximity to the defendant and that the
defendant pleaded guilty to possession of marijuana with intent to distribute. Ultimately,
we affirmed the defendant’s § 922(g) conviction, concluding that the “evidence
demonstrated that Castano had a strong motive to possess a firearm to protect himself
and his drugs during the planned drug transaction . . . .” Id.

There are clear parallels between Castano and the case at bar. Both cases
involved possession with intent to distribute illegal drugs, and police officers testified
in each case regarding the proclivity of drug dealers to carry firearms. Thus, the
defendants had the same motive to carry a firearm – as protection during their illegal
drug-distribution activities. See United States v. Rhodes, 2008 WL 4809488, *2 (6th Cir.
No. 06-5576 United States v. Bailey Page 18

Nov. 5, 2008) (unpublished) (“the drugs provided a motive for possessing the
ammunition: protecting the drug stash.”); United States v. Hardin, 248 F.3d 489, 499
(6th Cir. 2001) (“This Court has held many times that guns are ‘tools of the trade’ in
drug transactions.”).

Significantly, Bailey fled when a police officer identified the stolen car and
attempted to stop him. As previously noted, it is well established that proximity to a
firearm, when accompanied by some other factor such as “proof of motive, a gesture
implying control, evasive conduct, or a statement indicating involvement in an
enterprise,” may be sufficient to demonstrate constructive possession. United States v.
Newsom, 452 F.3d 593, 610 (6th Cir. 2006) (emphasis added) (quoting Alexander, 331
F.3d at 127). Flight from the police certainly qualifies as “evasive conduct.” See United
States v. Newland, 243 F. App’x 151, 154 (6th Cir. 2007) (rejecting a challenge to the
sufficiency of the evidence based on proximity to the firearm coupled with, inter alia,
fleeing from the police). As we explained in United States v. Motley, 93 F. App’x 898
(6th Cir. 2004)2:

Motley contends that there was insufficient evidence to support his
conviction on Count Two of the indictment, which charged him with
being a felon in possession of a firearm on October 8, 1999. We use a
deferential standard to review this claim. The test is “whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). We are unpersuaded by Motley’s arguments that no physical
evidence – such as a fingerprint – was introduced to link him to the gun
found in the car he was driving and that the only evidence linking him to
the weapon was his mere presence in the car. Evidence of constructive
possession suffices to satisfy the requirement of proof that a defendant
possessed a firearm, United States v. Clemis, 11 F.3d 597, 601 (6th Cir.
1993), and “[c]ircumstantial evidence by itself can support a defendant’s
conviction.” United States v. Copeland, 321 F.3d 582, 600 (6th Cir.
2003). “Constructive possession exists when a person does not have
actual possession but instead knowingly has the power and the intention

2
Unpublished opinions of this court are not precedentially binding under the doctrine of stare
decisis, but may be considered for their persuasive value. United States v. Lancaster, 501 F.3d 673, 677
(6th Cir. 2007), and United States v. Sanford, 476 F.3d 391, 396 (6th Cir. 2007).
No. 06-5576 United States v. Bailey Page 19

at a given time to exercise dominion and control over an object, either
directly or through others.” United States v. Kincaide, 145 F.3d 771, 782
(6th Cir. 1998).
Motley’s mere proximity to the firearm does not, without more,
constitute probative evidence that he was in constructive possession of
the weapon. But in this case, the jury had more than Motley’s mere
proximity to the weapon to consider. It is undisputed that Motley was
driving the car, and proof that a defendant “has dominion over the
premises where the firearm is located” contributes to a finding of
constructive possession. Clemis, 11 F.3d at 601. Furthermore, the jury
heard testimony that when police officers pulled up behind Motley on
October 8, 1999, he tried to evade them by turning a corner at high
speed, pulling into a stranger’s driveway, exiting the car, and attempting
to flee. Because Motley was the driver, the jury was permitted to infer
that it was his decision to take evasive action, and the jury could
consider such action probative of his possession of the gun. Finally, the
jury heard evidence that . . . when police officers searched Motley’s
bedroom . . . they found a holster and ammunition clip matching the
pistol found in the car. Cumulatively, the incriminating evidence just
described constitutes sufficient evidence for a reasonable juror to convict
Motley on Count Two of the indictment.
Motley, 93 F. App’x at 900-01 (emphasis added).

In the present case, the majority endeavors to discount Bailey’s evasive conduct:
“[t]he attempt to evade arrest, however, proves little because Bailey might well have
taken this action in an effort to evade detection of the two bags of crack cocaine found
in his pants.” (Maj. Op. at 7.) While this “might” have been Bailey’s motivation, it is
equally – if not more – reasonable to conclude that Bailey was fleeing because of the
firearm or because of both the firearm and the crack cocaine. Regardless, Bailey’s
motivation for his flight is a question for the jury, and a rational trier of fact could
conclude that the firearm contributed to Bailey’s decision to flee from the police. See
United States v. Coffee, 434 F.3d 887, 895-96 (6th Cir. 2006) (“it is not necessary that
such evidence remove every reasonable hypothesis except that of guilt.”).

Viewing the evidence in the light most favorable to the prosecution, as we are
required to do, Arnold, 486 F.3d at 180, United States v. Grubbs, 506 F.3d 434, 438 (6th
Cir. 2007), we assume that the jury credited the car owner’s unrebutted testimony.
Therefore, the jury made the logical and reasonable inference that because there was not
No. 06-5576 United States v. Bailey Page 20

a handgun in the car before it was stolen, but there was a loaded handgun in the car when
Bailey was arrested, Bailey possessed the firearm found underneath his seat. As we
emphasized in Arnold, “[t]he critical point is that the jury could have drawn different
inferences from this evidence, and our mandate is to affirm when the jury’s choice was
a rational one – which it was here.” Arnold, 486 F.3d at 182. Under the circumstances,
“we must respect the jury’s inferences over our own.” Id.

The majority also believes that it is “[o]f particular significance” that “the
government could not show that Bailey’s fingerprints were on the gun,” (Maj. Op. at 7),
but cites to no authority requiring fingerprints to establish possession. Indeed, we
specifically rejected this requirement in Motley and in Arnold: “Because ‘possession
may be proved by direct or circumstantial evidence,’ United States v. Craven, 478 F.2d
1329, 1333 (6th Cir. 1973), we cannot overturn the jury’s decision merely because it had
to draw reasonable inferences to find Arnold guilty.” Arnold, 486 F.3d at 181. See also
United States v. Campbell, — F.3d —, 2008 WL 5060374, *6 (6th Cir. Dec. 2, 2008)
(“When engaged in this analysis, we are bound to make all reasonable inferences and
credibility choices in support of the verdict.”); United States v. Kimbrel, 532 F.3d 461,
465 (6th Cir. 2008) (“the government may indeed prove possession of a firearm by
circumstantial evidence”) (citing Arnold, 486 F.3d at 181).

Having concluded that there was sufficient evidence to sustain Bailey’s
conviction for being a felon-in-possession of a firearm, I would also affirm his
conviction for possession of a firearm in furtherance of drug trafficking. The majority
concedes that if Bailey possessed the gun, “then the fact that the gun was loaded and
located underneath Bailey’s seat would likely demonstrate that Bailey possessed the gun
in furtherance of his drug trafficking crime.” (Maj. Op. at 13.) As explained above, I
believe the evidence was sufficient for a rational trier of fact to conclude that Bailey
possessed the gun, and I agree with the majority that the location of the gun would allow
the jury to conclude that it was used in furtherance of drug trafficking.

It is worth noting that the district court sentenced Bailey to 60 months of
incarceration for being a felon in possession of a firearm and 120 months of
No. 06-5576 United States v. Bailey Page 21

incarceration for possession of a firearm in furtherance of a drug trafficking crime.
However, this combined 180-month sentence was to be served concurrently with
Bailey’s 360-month sentence for possession of crack cocaine with intent to distribute.
The majority opinion affirms Bailey’s cocaine charge. Therefore, on remand, the district
court will presumably reimpose its 360-month sentence for possession with intent to
distribute crack cocaine, and Bailey will continue his 360 months of incarceration.

For these reasons, I respectfully concur in part and dissent in part.