                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-3365
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.
STANLEY GILBERT,
                                          Defendant-Appellant.

                         ____________
       Appeal from the United States District Court for the
       Southern District of Indiana, Indianapolis Division.
         No. 02 CR 178—Sarah Evans Barker, Judge.
                         ____________
    ARGUED JUNE 10, 2004—DECIDED DECEMBER 9, 2004
                     ____________




  Before CUDAHY, RIPPLE, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. In May, 2003, a jury convicted
Stanley Gilbert of being a felon in possession of a firearm
and a felon in possession of ammunition in violation of 18
U.S.C. § 922(g)(1). That criminal statute is violated if the
government demonstrates that: (1) the defendant has a
prior felony conviction; (2) the defendant possessed a fire-
arm or ammunition; and (3) the firearm or ammunition had
traveled in or affected interstate commerce. 18 U.S.C.
§ 922(g)(1); United States v. Allen, 383 F.3d 644, 647 (7th
Cir. 2004); United States v. Morris, 349 F.3d 1009, 1013
(7th Cir. 2003). Only the possession provision was at issue
2                                                No. 03-3365

in the trial. Because he had three previous convictions for
violent felonies, the district court sentenced him under 18
U.S.C. § 924(e)(1) to 188 months on each count, to be served
concurrently.
  Gilbert raises a number of challenges on appeal, but the
dispositive one concerns the admission at trial of pre-trial
statements made to police officers by Gilbert’s wife, Sherese
Gilbert (hereinafter referred to as “Sherese” so as to dis-
tinguish her from the defendant Gilbert). Sherese invoked
her marital testimonial privilege and refused to testify at
trial. The court, however, admitted the taped conversation
with the officers as well as its transcript into evidence. In
admitting the conversation into evidence, the court held
that it bore sufficient circumstantial guarantees of reliabil-
ity. The court relied for its ruling on prior caselaw that held
such statements were admissible under the residual
exception to the hearsay rule in Federal Rule of Evidence
807 (formerly Fed. R. Evid. 804(b)(5)) if the declarant were
unavailable as a witness and there were sufficient circum-
stantial guarantees of trustworthiness. In applying that rule,
courts have required that circumstantial guarantees of trust-
worthiness must be present and that the declaration “must
be ‘offered as evidence of a material fact,’ be more probative
of that point than any other evidence the proponent can
procure through reasonable efforts, and serve both ‘the gen-
eral purposes’ of the Rules of Evidence and ‘the interests of
justice.’ ” United States v. Bradley, 145 F.3d 889, 894 (7th
Cir. 1998), citing Fed. R. Evid. 804(b)(5)(A)-(C); Fed. R.
Evid. 102; United States v. Ismoila, 100 F.3d 380, 393 (5th
Cir. 1996); United States v. Dent, 984 F.2d 1453, 1462 (7th
Cir. 1993); see also Ohio v. Roberts, 448 U.S. 56 (1980),
abrogated by Crawford v. Washington, 124 S. Ct. 1354
(2004).
  Since Gilbert’s trial, however, the Supreme Court issued
Crawford v. Washington, 124 S. Ct. 1354 (2004). Addressing
a similar situation in which a wife’s out-of-court statements
No. 03-3365                                                   3

to a police officer were admitted at trial, the Crawford
Court held that the admission of testimonial hearsay
evidence in a criminal trial where the defendant has no
opportunity to cross-examine the witness violates the
Confrontation Clause of the Sixth Amendment. Id. at 1374.
In light of that Supreme Court decision, the government
acknowledges on appeal that the taped conversation was
not properly admissible, and that its admission at trial
violated Gilbert’s constitutional rights under the Confronta-
tion Clause. The government argues, however, that its
admission was harmless. Therefore, the issue before us is
whether it is clear beyond a reasonable doubt that a rational
jury would have found Gilbert guilty even absent the
admission of Sherese’s statement. Neder v. United States,
527 U.S. 1, 18 (1999); United States v. Nance, 236 F.3d 820,
825 (7th Cir. 2000). We therefore must consider the im-
properly admitted evidence in the context of the trial as a
whole.
  The firearm and ammunition that formed the basis for
the felon in possession charge were discovered at Sherese’s
residence pursuant to a search warrant on November 26,
2002. According to testimony by Gilbert, he and Sherese
separated in August, 2002. She later moved to the house at
615 N. Gray Street which she rented. Special Agent Susan
Roehrig testified that the utilities and the phone at the new
address were only in Sherese’s name. The couple also shared
some vehicles, including a blue Cadillac, which were regis-
tered at the old address. Gilbert visited Sherese at the Gray
Street residence in order to see his five stepchildren.
  The search warrant was issued as a result of an investiga-
tion of a prior incident that took place on November 20,
2002. On that date, Indianapolis police officers responded
to a report of shots fired at 1015 N. Gale Street. At the scene,
Rodney Myles spoke with the officers as an eyewitness. He
testified at trial as to the events that night. Myles testified
that he was the brother of Jesse Isaac, who was the ex-
4                                                    No. 03-3365

boyfriend of Gilbert’s daughter.1 He stated that there was
a dispute between Jesse and Gilbert relating to Jesse’s
relationship with Gilbert’s daughter.2 Gilbert came to the
Isaac house during the day of November 20, and spoke with
Myles at that time. That was the first time Myles had met
him. Myles described him at that time as “a pretty cool guy.”
Myles testified that he saw Gilbert again around 1:00 or
2:00 in the morning, in a blue Cadillac driving through the
alleyway. Myles approached the car, and Gilbert asked for
Jesse, but Myles informed him that Jesse was sleeping and
that he should come back another time. Myles then saw
Gilbert reach for a gun, and he stepped back. Gilbert drove
off and fired into the air four times. Myles then contacted
the police and officers were sent to the residence. After
speaking with Myles, those officers recovered four shell
casings from the area indicated by Myles. Although Myles
did not know Gilbert’s name at that time, his brother Jesse
apparently identified him to the police based on Myles’
description. Someone at the house—the testimony diverges
on this—then led the police to the Gray Street address. The
officers spoke with Sherese at that time, but neither Gilbert
nor the blue Cadillac were at that residence.
  On November 26, the police returned to Sherese’s resi-
dence with a search warrant. Officers present for that


1
  There was some testimony that Myles gave his name to the
officers as Rodney Isaac, but he testified at trial that his name
was Myles and therefore we will refer to him as Myles.
2
  The details of that dispute were developed to some extent in
pre-trial submissions and other statements, including evidence
that Gilbert suspected Jesse Isaac of burglarizing Sherese’s
residence, that an order of protection existed against Jesse Isaac,
and that Jesse Isaac had come to Sherese’s residence with a gun.
The jury heard only that a dispute existed related to their
relationship, and therefore that is all we will consider in address-
ing this issue.
No. 03-3365                                                5

search testified as to what transpired. In the course of that
search, they found Gilbert in the doorway of the master bed-
room unclothed. They located a firearm and ammunition in
the house. The firearm, a .45-caliber Hi-Point pistol con-
taining five rounds, was located in the master bedroom in
a pouch on the floor between a dresser and a wall. The fire-
arm could not be seen from the location where Gilbert was
found, because the open door to the bedroom blocked the
view of that area of the dresser, and because it was secreted
between the dresser and the wall. The firearm was lawfully
registered to Sherese. In a locked closet in another bedroom,
they found the gun box for the Hi-Point, which contained
instructions for the gun and a box of Fiocchi .45- caliber
ammunition. That closet also contained female clothing. The
key to that closet was located in Sherese’s bedroom, the
master bedroom in which the firearm was found, on her
dresser in a pink and white box containing hair clips. In
addition, four rounds of .32 Smith & Wesson RP ammuni-
tion were found on a dresser in the master bedroom.
   At the time of that search, Sherese spoke with an officer,
and a portion of that conversation was tape-recorded. The
government sought admission of part of that tape and
transcript at trial, which was granted by the district court.
In those excerpts, Sherese stated that only two persons had
access to the firearm, she and Gilbert. She further declared
that Gilbert knew where the key to the closet was kept, and
that on a number of occasions he had taken the gun out of
the closet and removed the trigger lock. After the officers
questioned her on November 20, she looked for the gun and
it was not in the pouch in her room. She informed them that
Gilbert had been at the house earlier that evening, and that
the gun reappeared the next day after he had returned to
the residence. Because Sherese invoked her marital testi-
monial privilege and refused to testify, Gilbert was unable
to conduct any cross-examination regarding that testimony.
Sherese attempted to recant the statements to the officers
6                                                No. 03-3365

a few days after the search, contending that the officers had
threatened her and that she feared she would lose her five
children. The court determined that the statements were
reliable and admitted them, and the jury did not hear the
recantation. As mentioned earlier, the government concedes
that in light of Crawford, the admission of those statements
by Sherese violated Gilbert’s constitutional rights under the
Confrontation Clause.
  In analyzing whether that error was harmless, it is im-
portant to note that the indictment charged possession of
the firearm and ammunition on or about November 26, the
date of the search when Gilbert was found at Sherese’s resi-
dence. The indictment did not allege possession on or about
November 20, the date that Gilbert allegedly fired shots
outside the Isaac residence. Accordingly, we must analyze
the error in light of its impact on that possession charge.
  Possession for purposes of the felon-in-possession prohi-
bition
    ‘may be either actual or constructive and it need not be
    exclusive but may be joint . . . . Actual possession exists
    when a tangible object is in the immediate possession
    or control of the party. Constructive possession exists
    when a person does not have actual possession but in-
    stead knowingly has the power and the intention at a
    given time to exercise dominion and control over an
    object.’ United States v. Garrett, 903 F.2d 1105, 1110
    (7th Cir. 1990). Actual and constructive possession may
    be proved by either direct or circumstantial evidence.
    See id.
United States v. Morris, 349 F.3d 1009, 1014 (7th Cir. 2003).
Here, the government argues that Gilbert had constructive
possession of the gun in that he knowingly had the power
and intention to exercise dominion and control over the
firearm and ammunition in the residence on the day of the
search. Sherese’s statements to the officers, however, pro-
No. 03-3365                                                   7

vided the most damaging evidence against Gilbert on that
charge. Her statement attributed to Gilbert knowledge of
the location of the firearm and the ammunition, as well as
knowledge as to the location of the key to the locked closet.
In addition, she testified as to Gilbert’s actions in exercising
control over the firearm in the past, thus furthering the gov-
ernment’s case. Absent her statement, the only evidence that
he possessed the firearm and ammunition on November 26
is his presence in the house in the doorway to the master
bedroom, and the testimony of Myles regarding the en-
counter during the prior week. Gilbert’s mere presence in
the room, however, without more, would not be enough to
establish constructive possession. United States v. Thomas,
321 F.3d 627, 636 (7th Cir. 2003). The government does not
argue that Gilbert resided in the house, nor that his
possessions in the room were so numerous as to evidence
control over the room and its contents. Compare id. and
cases cited therein. The bulk of the ammunition was located
in a closet containing female clothing, and the key was in a
pink and white box containing hair clips. Nothing tied
Gilbert to those locations. Moreover, the firearm was hidden
in a pouch between a dresser and a wall, and it was only
Sherese’s testimony that established Gilbert’s knowledge of
that location.
  A jury could credit the testimony by Myles, which would
help establish possession. The shell casings at the Isaac
house matched the firearm found in Sherese’s house, and
therefore if the jury credited Myles’ identification of Gilbert,
then that would indicate that Gilbert at least in the recent
past had been in possession of the firearm and ammunition
found in the residence. Gilbert testified as well, however, and
denied being at the Isaac house that night and discharging
a firearm. The forensic experts found no fingerprints or
palm prints of Gilbert on the firearm, the ammunition, the
gun pouch, or the gun box. Numerous fingerprints of
Sherese were found on the gun box in the closet, which
8                                               No. 03-3365

contained the instructions and the box of ammunition for
the Hi-Point firearm. Moreover, Myles’ family had a dispute
with Gilbert and therefore potentially had a reason to fab-
ricate that identification. Furthermore, by his own testi-
mony, Myles had only seen Gilbert once before, and the inci-
dent occurred at night while Gilbert was in a car. Finally,
given Jesse Isaac’s relationship with Gilbert’s daughter,
there was potential for others to have access to the firearm
at that house.
  That does not mean that the government must rule out
all other possibilities in order to satisfy harmless error
analysis. The standard is whether we can tell beyond a rea-
sonable doubt that the erroneous admission did not impact
the verdict. Here, the most probative evidence as to
Gilbert’s knowledge of the gun and intention to exercise
dominion over it was presented by Sherese, and that is
precisely the evidence that was wrongly admitted. The tes-
timony by Myles relates to Gilbert’s possession on a differ-
ent date, and was bolstered at trial by Sherese’s statement
that the gun was missing on that date and that only Gilbert
had access to it. Absent that corroboration, we cannot deter-
mine beyond a reasonable doubt whether the jury would
credit Myles’ testimony, nor whether a jury crediting that
testimony would find it sufficient to convince the jury
beyond a reasonable doubt that he possessed the firearm
and ammunition on the later date alleged in the indictment.
In fact, the government, in seeking the admission of the
evidence under the residual exception to the hearsay rule,
acknowledged the importance of her statement to the case
in the following exchange with the court:
    THE COURT: And I hear in your representation to me
    just now that because it’s the only evidence with respect
    to possession by Mr. Gilbert, at the residence at least,
    that it is the most and perhaps the only probative
    evidence on that point for which it’s being offered; is
    that right?
No. 03-3365                                                9

    MR. MORRISON: I think that’s correct, Judge. . . . .
Tr. 1 at 8. In light of the evidence as a whole at trial, we
cannot determine beyond a reasonable doubt that a jury
would have returned a guilty verdict absent the statements
by Sherese. Accordingly, Gilbert is entitled to a new trial
free from that error.
  Because we are reversing the conviction on that ground,
we need not decide the challenge raised by Gilbert to his
sentence. In addition, we leave for the district court on re-
mand Gilbert’s challenges relating to the motion to suppress.
Only some of those challenges were raised in the district
court, but the parties dispute whether that resulted from
waiver or from the government’s delay in providing the
documents upon which the challenges are based. Although
the additional allegations do not appear to be particularly
promising for Gilbert, given the remand for a new trial, it
makes more sense for the district court to have the full op-
portunity to consider the issue.
  In conclusion, although the district court properly fol-
lowed our precedent in admitting Sherese’s statements,
Crawford has since made it clear that the admission of her
statements is unconstitutional. Accordingly, the decision of
the district court is REVERSED and the case REMANDED for
a new trial.
10                                        No. 03-3365

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—12-9-04
