                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0067n.06
                            Filed: January 29, 2009

                                            No. 07-2216

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE EASTERN
                                       )                  DISTRICT OF MICHIGAN
ROBERT LLEWELLYN MALONE,               )
                                       )
                                                                  OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MOORE and WHITE, Circuit Judges; and VINSON,* District Judge.

       C. ROGER VINSON, District Judge. Defendant-Appellant Robert Llewellyn Malone

appeals his conviction of the offense of possession of a firearm by a convicted felon, in violation of

Title 18, United States Code, Section 922(g)(1). For the following reasons, we AFFIRM.

                                        I. BACKGROUND

       Prior to the events giving rise to this appeal, the defendant was convicted of a felony offense

in Michigan state court. After he completed his jail sentence, Vischaun Rambus, a Michigan state

probation officer, began supervising him in late September 2005. Rambus conducted the initial home

visit on October 21, 2005, and he verified at the time that the defendant was living at 5609 Edwards

Avenue in Flint, Michigan, where he resided with his mother, her husband, another of her sons, and


       *
         The Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
No. 07-2216
United States v. Malone



her goddaughter. The defendant was at the house with some friends when Rambus made his initial

visit. Rambus verified that the defendant’s bedroom was located in the basement of the house, and

it was the only bedroom on that level. This was the only home visit Rambus made.

        The defendant was required to report to Rambus every Monday and fill out a form declaring

where he was residing. He consistently reported that he was residing at 5609 Edwards Avenue, and

he never reported any change of address. The defendant last reported to Rambus on December 12,

2005, and failed to report to him at any time thereafter. Because of the defendant’s failure to report

as required, Rambus obtained an arrest warrant on January 20, 2006. He then accompanied a group

of officers to 5609 Edwards Avenue on February 23, 2006, in order to execute the arrest warrant.

        The defendant was not there. The officers were allowed into the residence by the defendant’s

mother, and she permitted them to search his bedroom. While in the basement, one of the officers

found a Norinco SKS assault rifle (made in China) and a .38 caliber round of ammunition between

the mattress and box spring of the defendant’s bed. The firearm was preserved for fingerprints, but

no prints of value were recovered. The officers also found in the bedroom correspondence addressed

to the defendant at 5609 Edwards Avenue, as well as his driver’s license and a temporary operator’s

license (both with his address listed as 5609 Edwards Avenue), his social security card, and his birth

certificate. His mother confirmed that “everything in that room” belonged to the defendant, including

some clothes from when he was younger (e.g., “a spider man outfit”).

        In February 2006, when the warrant was executed, the defendant was not living regularly at

5609 Edwards Avenue. His mother testified that she would see him there “occasionally.” When he


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was there, he stayed in the basement, although he sometimes “slept all over the house.” During this

same time, his friends would often “hang out” in the basement and backyard. On some occasions his

friends would be in the basement, even though the defendant was not there. This caused friction

between the defendant and his mother, and they argued because she told him that she “didn’t want

his friends hanging around so much.” Although she would keep the doors locked, the defendant had

a key and she explained that “the problem was that Robert was unlocking and letting them in.” His

stepfather testified that on two occasions he found the defendant’s friends in the basement without

the defendant being there.

        The day after the gun was seized from his bedroom, the defendant called Rambus because,

according to Rambus, “he knew the assault rifle had been found” and he was “concerned about the

. . . contraband that was found in his home.” The defendant asked “what was going to happen” to

him, and Rambus advised that he should surrender to the police, which he did not do.

        The defendant was eventually arrested after being indicted in federal court on a charge of

being a felon in possession of a firearm, in violation of Title 18, United States Code, Section 922(g).

The case proceeded to trial. When the government rested its case, the defendant moved for judgment

of acquittal, which was denied. After the defendant presented evidence and then rested his case, he

renewed his motion for judgment of acquittal, which was also denied. The jury found him guilty and

he was ultimately sentenced to 104 months incarceration. He now appeals, arguing that the evidence

was insufficient to support the conviction.

                                  II. STANDARD OF REVIEW


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        This appeal, as just noted, raises a sufficiency-of-the-evidence challenge to the defendant’s

conviction. The standard of review is straightforward:

                 Because [the defendant] moved for judgment of acquittal twice
                 during the trial --- at the close of the prosecution’s case and at the
                 close of all the evidence --- we review his motion for judgment of
                 acquittal de novo. In a sufficiency-of-evidence challenge to a
                 conviction, the question 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. We will reverse a judgment for insufficiency of evidence only
                 if, viewing the record as a whole, the judgment is not supported by
                 substantial and competent evidence. But while this means we do not
                 weigh the evidence or assess the credibility of the witnesses, this
                 Court’s power of review in these cases is not toothless. We have
                 defined substantial evidence as being more than a scintilla. It means
                 such relevant evidence as a reasonable mind might accept to support
                 a conclusion. It is evidence affording a substantial basis of fact from
                 which the fact in issue can be reasonably inferred.

United States v. Grubbs, 506 F.3d 434, 438-39 (6th Cir. 2007) (citations and quotation marks

omitted; emphasis in original). “[A] defendant claiming insufficiency of the evidence bears a heavy

burden.” United States v. Maliszewski, 161 F.3d 992, 1005 (6th Cir. 1998). Further, circumstantial

evidence by itself may be sufficient to sustain a conviction and the evidence at trial need not exclude

every reasonable explanation except that of guilt. United States v. Gonzalez, 512 F.3d 285, 294 (6th

Cir. 2008).

                                          III. DISCUSSION

        To establish the offense charged in this case, the government was required to prove that: (1)

the defendant had a prior felony conviction; (2) he knowingly possessed the firearm specified in the

indictment; and (3) the firearm traveled in and/or affected interstate or foreign commerce. Grubbs,

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supra, 506 F.3d at 439. The parties stipulated at trial that elements (1) and (3) were present, so the

only contested issue in the district court --- and now on appeal --- is whether there was sufficient

evidence for the jury to find that the defendant knowingly possessed the firearm.

        Under Title 18, United States Code, Section 922(g)(1), a conviction may be based on either

actual or constructive possession of a firearm. Actual possession requires that the defendant have

“immediate possession or control” of the firearm. United States v. Craven, 478 F.2d 1329, 1333 (6th

Cir. 1973), abrogated on other grounds by, Scarborough v. United States, 431 U.S. 563, 97 S. Ct.

1963, 52 L. Ed. 2d 582 (1977). Because the defendant was not in the house when the arrest warrant

was executed (and, therefore, he could not have “immediate possession or control” of the firearm

found under his bed), the government’s case was based on a theory of constructive possession.

        “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, supra, 478 F.2d at 1333. “Proof that ‘the person

has dominion over the premises where the firearm is located’ is sufficient to establish constructive

possession” of that firearm. United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998) (citation

omitted); accord Grubbs, supra, 506 F.3d at 439 (“In contrast to a situation where the defendant has

physical contact with a firearm --- e.g., he holds it, holsters it, or keeps it in a place where it is

immediately accessible --- constructive possession may be proven if the defendant merely had

‘dominion over the premises where the firearm is located.’”) (citation omitted). In this context, we

have asked and answered the following question:


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                 [H]ow incriminating does the evidence have to be to support a finding
                 of constructive possession? Though it would be unreasonable, and
                 perhaps impossible, to expect a crystal clear path forward in such
                 fact-intensive inquiries, our prior cases demonstrate at least one
                 common thread: When 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. See, e.g., United States
                 v. Black, 525 F.2d 668, 669 (6th Cir.1975) (holding direct testimony
                 tying a defendant to a gun was not required when the gun was found
                 in the defendant’s truck and when the defendant had both ammunition
                 for the gun and a rack in which it could have been kept). Of course,
                 this means the opposite should also be true --- the less evidence tying
                 a defendant to a gun at the time of arrest, the greater the
                 circumstantial evidence must be to support a conviction.

Grubbs, supra, 506 F.3d at 439-40. This court has repeatedly and frequently held that constructive

possession may be shown to exist if the contraband is found in a defendant’s bedroom or personal

living space. For example, in Grubbs, we held that the government failed to establish constructive

possession where the defendant was merely a “temporary guest” in the house where a gun was found.

But, the court took pains to note that the result would have been different if the defendant “had some

contact with the room where it was found” because “we have sustained a conviction for constructive

possession when the weapon is found in areas over which the defendant exercised control, such as

his bedroom.” See id. at 440; see also, e.g., United States v. Coffee, 434 F.3d 887 (6th Cir. 2006)

(conviction upheld where firearms were found in the closet in a bedroom “filled exclusively with

defendant’s belongings”); United States v. Hadley, 431 F.3d 484 (6th Cir. 2005) (conviction sustained

where firearm was found in a drawer of an armoire located in bedroom that defendant shared with

his wife; noting that “[a]t a minimum, then, the evidence would have permitted the inference that


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Defendant had constructive possession, if perhaps only jointly with his wife, over a weapon kept in

the couple’s bedroom”) (collecting multiple cases); id. at 516 (collecting additional cases and noting

that “this court has held that discoveries of a firearm in a master bedroom closet of the defendant’s

residence, and in a dresser by the defendant’s bed, sufficed to support a felon-in-possession

conviction on a constructive-possession theory”) (Sutton, J., concurring); United States v. Dunlap,

209 F.3d 472 (6th Cir. 2000) (conviction upheld when guns were seized at apartment for which the

defendant co-signed the lease and in which he frequently conducted narcotics trade, despite argument

that he lacked ready access to the apartment because his co-conspirator solely resided there); United

States v. Jones, 21 F.3d 429 (6th Cir. 1994) (unpublished table decision) (evidence established joint

constructive possession of firearm where, inter alia, (1) the defendant notified his parole officer that

he lived at the house in question; (2) the guns were found in a closet that contained men’s shoes and

clothing; and (3) various other items, including parole documents and his identification, were found

in “close proximity” to the guns); United States v. Clemis, 11 F.3d 597 (6th Cir. 1993) (dominion and

control established where guns were found in the master bedroom in a nightstand along with a man’s

personal items); accord United States v. Boykin, 986 F.2d 270 (8th Cir. 1993) (conviction sustained

where the defendant --- who was arrested elsewhere --- was charged as felon-in-possession after a

gun was found between the mattress and box spring in master bedroom that he shared with his wife,

which contained men’s clothing, some correspondence addressed to him, and “other evidence [that]

indicated Boykin occupied the master bedroom”).




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        The defendant does not appear to take issue with this well established case law. In arguing

that the evidence against him was insufficient, however, he makes several claims. He points out that

no fingerprints were found on the firearm; there were no reports of him ever possessing the firearm;

and, relatedly, there was no testimony from anyone claiming to have seen him with the gun. He also

argues that since there was no evidence that he continued to reside at 5609 Edwards Avenue after

his report to Ramos on December 12, 2005, his dominion and control of the bedroom is doubtful.

His mother testified at trial that he was not staying at the house regularly and that she would only see

him there “occasionally.” The defendant thus claims that whatever control he may have had over the

bedroom in the past, the government “failed to establish that he exercised exclusive possession and

control of the room at the time the firearm was discovered.” Specifically, his mother and stepfather

testified that his friends occupied the basement at times when the defendant was not present.

        The defendant’s arguments are not persuasive, whether viewed individually or collectively.

First, as was noted in Coffee, supra, 434 F.3d at 887, “[t]he fact that no identifiable fingerprints were

found on [a gun] is not determinative” as it has been explained that “fingerprints are rarely identified

on firearms.” Id. at 897. Nor is it especially significant that no one had reported seeing the defendant

with the firearm on previous occasions. The firearm at issue is, after all, a large assault rife, and not

one with which the defendant would likely walk around in public view of other people. His strongest

argument is that he was not consistently residing at 5609 Edwards Avenue in February 2006, so he

no longer had the necessary dominion and control over the bedroom.




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        The defendant is mistaken when he suggests that the government was required to prove “that

he exercised exclusive possession and control of the room.” Constructive possession may be either

sole or joint, as several of our cases cited above illustrate. Other circuits are in accord. For example,

the defendant in United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995) was convicted of possession

of firearms by a felon. The firearms were discovered next to the bed and in a dresser drawer in a

bedroom in his girlfriend’s house. In that same bedroom, agents found men’s and women’s clothing,

shoes and toiletries, various papers and invoices bearing the defendant’s name, and a bracelet bearing

his gang’s insignia. The Seventh Circuit noted that: “Whether Kitchen actually lived with Williams

is the subject of some dispute.” Id. at 520. Indeed, Kitchen claimed to be living elsewhere when the

guns were seized, and --- just like the defendant in our case --- it was alleged that he only stayed at

the house where the guns were found “occasionally.” See id. In rejecting this argument, the Court

of Appeals stated:

                 Under the doctrine of constructive possession, the jury could have
                 determined that Kitchen possessed the weapons. The evidence
                 adduced at trial suggested that Kitchen was something more than a
                 casual visitor at Williams’s home. In many of the recorded drug
                 conversations with Kitchen, agents had reached him by calling the
                 telephone number at that address. According to the government,
                 Kitchen had stated that he lived at that address. Agents in fact saw
                 Kitchen at that address on numerous occasions. The search revealed,
                 in addition to the firearms, a number of Kitchen’s possessions-his El
                 Rukn bracelet, bills and papers bearing his name and various articles
                 of men’s clothing. . . . Kitchen argues that he in fact lived with his
                 mother in Robbins, Illinois, and only visited Williams occasionally.
                 But the jury was under no obligation to accept his testimony on this
                 point. It could have instead concluded that Kitchen shared the
                 residence with Williams.


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Id. at 520-21. The court went on to note that it was immaterial that the defendant was incarcerated

at the time the agents actually seized the guns because the jury “might nevertheless have determined

that he constructively possessed the guns before he was incarcerated, despite the fact that the guns

were seized later.” See id. at 521 (emphasis in original). Notably, the court rejected the argument that

Kitchen could not be found to have possessed the guns because other individuals had access to the

area where they were discovered:

                 Neither is it material that other adults had access to the residence and
                 may have had the same power to exercise control over the firearms
                 that Kitchen had. Constructive possession may be either sole or joint.
                 The fact that Williams, too, had access to the firearms fails to negate
                 the inference that Kitchen did as well. The law recognizes the
                 possibility of joint possession.

                 The evidence is therefore sufficient to support Kitchen’s conviction
                 for a felon’s possession of a firearm under Section 922(g)(1). The
                 jury might well have determined that he lived at the residence and
                 occupied the bedroom where the guns were located.

Id. at 521 (citations omitted).

        The defendant here further argues that “[m]ere control or dominion over the place where

contraband is found is not enough by itself to establish constructive possession when there is joint

occupancy in a place.” By this, he appears to be claiming that his friends “hanging out” at his house

a few times without him constitutes joint occupancy, which negates constructive possession. The

defendant relies on three non-Sixth Circuit cases for this argument, each of which can be easily

distinguished. First, in United States v. Mills, 29 F.3d 545 (10th Cir. 1994), the guns at issue were

found hidden and secretly stored in a dining room table compartment owned by the defendant’s


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roommate, and, further, this roommate testified that she put them there “without Mills’ knowledge

and contrary to his instructions.” Id. at 550. The Tenth Circuit noted that with respect to constructive

possession and joint occupancy, circuit precedent required that there be “‘some evidence supporting

at least a plausible inference that the defendant had knowledge of and access to the weapon or

contraband.’” Id. at 549-50 (citation omitted). Because such evidence was plainly lacking in Mills,

the conviction was reversed. Similarly, in the next case relied upon by the defendant, United States

v. Mergerson, 4 F.3d 337 (5th Cir. 1993), the defendant shared a bedroom with his girlfriend and a

gun was found between their mattress and box springs. In rejecting the government’s argument that

his living in the bedroom was by itself enough to establish constructive possession, the Fifth Circuit

held that more was required. Specifically, as was the case in Mills, the court held that there needed

to be “at least a plausible inference that the defendant had knowledge of and access to the weapon

and contraband.” Id. at 349. The conviction was reversed in that case because there was no “indicia

that established that Mergerson even knew of the weapon.” Id. And finally, in United States v. Reese,

775 F.2d 1066 (9th Cir. 1985), the Ninth Circuit held that if a residence is jointly occupied, “the mere

fact that contraband is discovered at the residence will not, without more, provide evidence sufficient

to support a conviction based on constructive possession.” See id. at 1073 (emphasis added). Thus,

all three cases stand for the proposition that something “more” is required to establish constructive

possession where there is joint possession. As discussed further below, the evidence here establishes

the “more” that is required.




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        The defendant also cites to United States v. Lawrence, 471 F.3d 135 (D.C. Cir. 2006), which

is similar in some respects, but quite different in totality. The guns there were found in a bedroom

that Lawrence allegedly shared with his girlfriend. Law enforcement also found men’s clothing in

the bedroom, including a distinctive “zoot suit” jacket; an I.D. card bearing Lawrence’s name; more

than 90 pieces of mail also bearing his name; and photos of Lawrence, including one of him wearing

the “zoot suit” jacket. His girlfriend (who was charged as a co-defendant) testified that Lawrence had

a key to her apartment and that he stayed there several nights a week. She also said that he kept his

clothing and possessions at the apartment and that he received mail there. The court opined: “If we

considered the testimony of Lawrence’s co-defendant, we would conclude that sufficient evidence

supported his convictions.” Id. at 139. However, circuit precedent precluded the court from relying

on that testimony, so the Court of Appeals was left with only the evidence that was admitted during

the government’s case-in-chief, which it found to be “thin.” For example, most of the mail found in

the bedroom did not list the apartment as Lawrence’s address (they were sent to Lawrence when he

was previously incarcerated, so the address was redacted for the jury). Also, most of the mail did not

bear a postmark, and those that did were postmarked five to six years earlier. The “zoot suit” jacket

--- and the photo of Lawrence wearing that jacket --- were “many years old.” And the identification

card did not bear his picture and gave no clue as to when it was issued, when it became effective,

or when it expired. All this, coupled with the fact that no witnesses (other than his girlfriend) placed

Lawrence at the apartment, was enough to warrant reversal.




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        In this case, in contrast to the facts in the above four cases, the gun was indisputably found

in the defendant’s own bedroom (along with his clothes and his personal effects). The defendant also

demonstrated that he had knowledge of the gun. He called his probation officer the day after it was

seized because he was “concerned” about what was going to happen to him. Notably, he did not deny

at the time that the firearm was his, he did not offer any explanation as to why it was found under

his bed, nor did he accuse his friends of leaving it there without permission. If not a tacit admission

that the gun was his, it certainly provides sufficient basis for inferring that he had knowledge of the

firearm in his room.

        Moreover, the testimony of the defendant’s mother established that his connection to the

room was not insignificant. She testified, for example, that the bedroom in the basement was his; that

he had his own key to the house; that he was not just a casual visitor; and that everything in the room

belonged to him. This testimony, coupled with the physical items the agents recovered at the scene

(including the correspondence addressed to the defendant, his driver’s license, social security card,

and birth certificate) and his post-seizure statement, clearly exceeds the “thin” evidence in Lawrence

and distinguishes this case from the other cases upon which the defendant relies.

        This case is more similar to our factual scenario in Craven, supra, 478 F.2d at 1329. The

firearms there were found, inter alia, in the master bedroom of a house, along with monogrammed

men’s shirts bearing the initials JPC. The defendant, James P. Craven, was not present at the time

of the search, but his wife, his children, and two other adults were in the house. When he later

surrendered to police, they asked him about the guns. Craven did not deny that he owned the guns,


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nor did he deny having knowledge about them. Rather, he stated in response to questioning that he

was a gun collector and he had generally had guns for some time. At trial, Craven put forth evidence

that two other individuals (besides his wife) resided in the house, and that he no longer lived at that

address because he had moved in with another woman at a separate address. Also, he put forth

evidence that the night before the raid the other individuals in the house gave a party and a guest left

one of the firearms behind. After the jury found him guilty, he appealed, arguing, in relevant part,

insufficiency of the evidence. We concluded that, when viewed most favorably for the government,

the evidence “amply establishes that Craven had constructive possession of the firearms.” See id. at

1333. We noted that “[a]lthough possession of the residence is insufficient to establish possession

of all the contents of the house, the government’s evidence went much further.” Id. Specifically, the

evidence showed: (1) one gun was found in the master bedroom along with the defendant’s clothes;

(2) there was testimony indicating that he slept in the room and, therefore, he had constructive joint

possession of it; and (3) he had given statements post-arrest which “allowed the jury reasonably to

infer that these weapons belonged to him.” See id. at 133-34. Inasmuch as these three factors are also

present here, the result must be the same. The evidence in this case was sufficient to support the

jury’s finding of constructive possession of the firearm.

                                        IV. CONCLUSION

        For these reasons, the defendant’s conviction is AFFIRMED.




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        MOORE, Circuit Judge, concurring in the judgment. I write separately to note the very

restrictive standard of review that binds us in this case. As the majority notes, “[i]n a sufficiency-of-

evidence challenge to a conviction, the question 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.” United States v. Grubbs, 506 F.3d 434, 438 (6th Cir. 2007)

(internal quotation marks omitted). This standard of review prevents us from weighing evidence and

assessing witness credibility. Id. at 438-39. Malone presented testimony that he was not the only

individual with access to the basement bedroom and that he had not been staying there routinely.

Both of these facts could indicate that someone else placed the gun under the bed without Malone’s

knowledge. However, given the conflicting evidence that Malone held the bedroom out as his

residence, that Malone’s belongings were found near the gun, that no one else’s belongings were

found in the room, and that Malone called his probation officer the day after the search, expressed

concern to his probation officer that contraband had been found in his home, and asked his probation

officer what would happen to him as a result, I cannot conclude that it was irrational for the trier of

fact to conclude that Malone constructively possessed the weapon in question. Accordingly, I concur

in the judgment affirming Malone’s conviction.




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