                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0229n.06

                                            No. 11-6118

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                      FILED
                                                                                       Mar 05, 2013
                                                                                 DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )
                                                          )        ON APPEAL FROM THE
               v.                                         )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE WESTERN
CAMERON BRASWELL,                                         )        DISTRICT OF TENNESSEE
                                                          )
       Defendant-Appellant.                               )
                                                          )



BEFORE: MERRITT, CLAY, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant Cameron Braswell appeals his convictions by a jury of being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possession with intent to distribute cocaine,

ecstasy, and marijuana, in violation of 21 U.S.C. § 841(a)(1). Specifically, he challenges whether

the trial evidence sufficiently established the possession element of these offenses. For the reasons

set forth below, Braswell’s claims are without merit, and we therefore affirm.

                                                  I.

       On February 12, 2010, Officer Mario McNeal of the Memphis Police Department obtained

a search warrant for Braswell’s residence located in apartment number three at the Southern Place

apartment complex in Memphis, Tennessee. Before obtaining the search warrant, McNeal and

Officer David Miller deployed a confidential informant to purchase controlled substances from
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United States v. Braswell


Braswell. During these purchases, the officers not only directly observed Braswell engage in “hand-

to-hand” drug transactions, but also observed him coming and going from apartment number three

at the Southern Place complex.

       With the assistance of Officer Jonathan Overly, McNeal and Miller executed the search

warrant for Braswell’s residence at approximately 10:00 p.m. on February 12, 2010. Upon entry,

the officers smelled a strong odor of marijuana and saw an individual named Eric Thacker sitting

in the living room. After detaining Thacker, officers located Braswell’s girlfriend, Karman Davis,

and her son in the guest bedroom. The officers found Braswell hiding in the master bedroom closet.

       As the officers removed Braswell from the closet, they noticed a torn bag containing ecstasy

pills in the corner of the closet, as well as numerous ecstasy pills scattered on the closet floor. They

also found five small bags of cocaine on the closet floor. The officers further discovered a hole in

the closet wall. Suspecting that Braswell was attempting to hide other contraband in that hole, the

officers removed portions of the wall and recovered two large bags of cocaine and nine small bags

of marijuana. The officers additionally recovered ten small bags of cocaine and approximately

$1,600 in cash from Braswell’s pockets. Because the officers’ presence agitated Braswell, they

escorted him to the squad car while the search of the apartment continued.

       The completed search produced the following additional items: (1) seven small bags of

marijuana in the kitchen; (2) two digital scales with cocaine and marijuana residue in the kitchen;

(3) plastic bags consistent with drug distribution; (4) a drug ledger with amounts owed for drugs; (5)

approximately $1,700 in cash in a jacket pocket; (6) a cellular telephone with text messages related


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to drug distribution; and (7) a loaded .9mm handgun under the cushion of a chair in the living room.

In total, the officers recovered approximately 60.41 grams of marijuana, 75.82 grams of powder

cocaine, and 51 ecstasy pills.

       After waiving his Miranda rights, Braswell gave a written statement about the handgun. He

specifically admitted that he was in possession of the firearm because it was “in the house.” He also

said that the firearm was probably loaded and that Davis had purchased it from Braswell’s “homeboy

G Unit” for $150.

       While being questioned about the handgun, Braswell made statements about the drugs. He

admitted,“[t]hose are my drugs but just don’t— don’t let me get that gun.” Braswell freely stated

that he would “take the charge of everything but the gun.” Braswell then offered to work as an

informant in exchange for not being charged for possession of the firearm.

       On May 25, 2010, a federal grand jury returned a four-count indictment against Braswell,

charging him with one count of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1), and three counts of possession with intent to distribute cocaine, ecstasy, and marijuana,

in violation of 21 U.S.C. § 841(a)(1). At trial, Officers McNeal, Miller, and Overly testified as fact

witnesses. The government also offered opinion testimony that: (1) the contraband recovered was

consistent with drug distribution; (2) the substances found were, in fact, cocaine, marijuana, and

ecstasy; and (3) the loaded handgun had traveled through interstate commerce. Additionally, the

government presented two recorded phones calls that Braswell made from jail shortly after his arrest




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in which he stated multiple times that the drugs and handgun seized during the search belonged to

him.

       At the close of the government’s proofs, Braswell made a motion for a judgment of acquittal

on all counts under Rule 29 of the Federal Rules of Criminal Procedure. The district court denied

the motion and submitted the case to the jury after Braswell announced his intention not to testify

or present any counterproof. The jury returned a verdict of guilty on all counts. Braswell timely

appealed the district court’s denial of his Rule 29 motion.

                                                 II.

                                                 A.

       “We review de novo the district court’s denial of a motion for judgment of acquittal pursuant

to Fed. R. Crim. P. 29 and assess the evidence in the light most favorable to the prosecution to

determine whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010) (internal

quotation marks, footnote, and citation omitted). We draw “all reasonable inferences in support of

the jury’s verdict” and will reverse a judgment for insufficient evidence “only if the judgment is not

supported by substantial and competent evidence upon the record as a whole.” Id.

       Braswell’s sole argument on appeal is that no rational jury could have found that he

possessed either the handgun or the drugs found during the search. The standard for possession is

the same under 18 U.S.C. § 922 (g)(1) and 21 U.S.C. § 841 (a)(1). United States v. Hunter, 558 F.3d

495, 504 (6th Cir. 2009). Proof of either “actual” or “constructive” possession is sufficient under


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both statutes. Id. Actual possession exists when an individual knowingly has direct physical control

over the contraband at a given time. Id. Constructive possession exists when a person does not have

physical possession, but knowingly has the power and the intention at a given time to exercise

dominion and control over the contraband, either directly or through others. Id. “The element of

possession can be proven by either direct or circumstantial evidence.” United States v. Campbell,

549 F.3d 364, 374 (6th Cir. 2008). We turn to Braswell’s sufficiency-of-the-evidence arguments

with the above principles in mind.

                                                 B.

       After reviewing the trial record, we conclude that any rational trier of fact could have found

that Braswell constructively possessed the handgun in violation of 18 U.S.C. § 922 (g)(1). While

the proofs do not show that Braswell was in actual possession, the circumstantial evidence easily

supplies a basis to conclude that he exercised constructive possession. Braswell gave Officer Miller

a written statement in which he admitted possession because it was “in the house.” Braswell also

offered detailed knowledge about the gun, such as whether it was loaded, from whom it was

purchased, and for how much. Officers McNeal and Miller testified that Braswell never denied

possessing the firearm, but rather attempted only to convince them not to charge him with possession

of that firearm. This is consistent with Braswell’s jail-house phone call in which he told “Renee”

that he wanted his girlfriend Davis to “take the pistol charge” because he had a prior felony

conviction, stating at one point that he had previously told Davis to “say it’s your pistol charge and

tell them folks it’s my [drugs].” The jury also heard uncontradicted opinion evidence that the


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contraband recovered from the search of apartment number three was consistent with a drug

distribution operation and that it is “very common” for drug dealers to possess firearms to protect

themselves and their supply. Thus, any rational trier of fact could have found that Braswell

constructively possessed the firearm.

       Braswell’s citation to United States v. Bailey, 553 F.3d 940 (6th Cir. 2009), does not alter

our conclusion. In Bailey, the majority rejected the government’s constructive possession theory

based solely on the defendant’s presence in a stolen car that, unknown to the defendant, contained

a firearm. 553 F.3d at 943–44. Here, the government presented an entire universe of circumstantial

evidence from which a rational jury could find that Braswell constructively possessed the handgun

found in his residence. Accordingly, Bailey is distinguishable and the evidence was sufficient to

establish the possession element of 18 U.S.C. § 922(g)(1).

                                                  C.

       We further conclude that any rational trier of fact could have found that Braswell actually and

constructively possessed cocaine, ecstasy, and marijuana in violation of 21 U.S.C. § 841 (a)(1). The

record amply demonstrates both categories of possession. Braswell does not dispute that McNeal

and Overly found ten distribution-size bags of cocaine in his pockets upon his arrest. He also does

not dispute that he told McNeal and Miller that all the controlled substances recovered from the

apartment belonged to him. Moreover, Braswell stated numerous times in his recorded jail phone

calls with “Renee” and “Pookie” that all the drugs belonged to him, explaining in great detail to

“Renee” that he threw the marijuana and cocaine “in that hole” in the closet and that the ecstasy pills


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“spilt [sic] all over the floor” because he “had so many pills and the pill bag wasn’t tied up, and they

was [sic] so small.” Braswell also expressed to “Renee” his displeasure with the authorities charging

Davis with “all my dope” because he repeatedly told the officers that all the drugs were his. This

undisputed evidence precludes Braswell from carrying the “heavy burden” of demonstrating that the

trial proofs were insufficient to establish the possession element under 21 U.S.C. § 841 (a)(1).

Wettstain, 618 F.3d at 583.

                                                  III.

       For these reasons, we affirm the judgment of the district court.




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