553 F.3d 940 (6th Cir. 2009), 06-5576, United States v. Bailey

Docket Nº:06-5576.
Citation:553 F.3d 940
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Terrell R. BAILEY, Defendant-Appellant.
Case Date:January 20, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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553 F.3d 940 (6th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,


Terrell R. BAILEY, Defendant-Appellant.

No. 06-5576.

United States Court of Appeals, Sixth Circuit.

January 20, 2009

Argued: Sept. 18, 2007.

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Jessica A. Dipre, Dinsmore & Shohl, Cincinnati, Ohio, for Appellant.

Andrew Sparks, Assistant United States Attorney, Lexington, Kentucky, for Appellee


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.

Before MOORE and GRIFFIN, Circuit Judges; TARNOW, District Judge. [*]

MOORE, J., delivered the opinion of the court, in which TARNOW, D. J., joined. GRIFFIN, J. (pp. __ - __), delivered a separate opinion dissenting in part and concurring in part.



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. 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

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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.

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

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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, 94 S.Ct. 54, 38 L.Ed.2d 85 (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 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

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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, 119 S.Ct. 1085, 143 L.Ed.2d 86 (1999). However, " [p]resence alone cannot show the requisite knowledge, power, or intention to exercise 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...

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