                              In the

     United States Court of Appeals
                 For the Seventh Circuit
No. 13-1403

UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,

                                v.


LAMAR TUCKER,
                                             Defendant-Appellant.

        Appeal from the United States District Court for the
            Northern District of Illinois, Eastern Division.
       No. 1:11-cr-00147-1 — Sharon Johnson Coleman, Judge.


 ARGUED NOVEMBER 4, 2013 — DECIDED DECEMBER 11, 2013


   Before EASTERBROOK, KANNE, and TINDER, Circuit Judges.
    KANNE, Circuit Judge. Police officers found a Sears Roebuck
rifle under a mattress in an apartment leased by Lamar
Tucker’s mother. Tucker was convicted of possessing a firearm
after having been convicted of a crime punishable by a prison
term of at least a year. He now appeals, arguing the evidence
was insufficient to establish that he constructively possessed
the rifle, and that he was denied a fair trial because the district
2                                                           No. 13-1403

court indicated it would admit evidence of his six prior felonies
if he chose to testify. Neither claim is valid.
                           I. BACKGROUND
    On May 21, 2010, Chicago police officers obtained a
warrant authorizing the search of 2950 West Harrison Street,
Apartment 502. When they began searching the two-bedroom
apartment, Tucker was not there, but his mother, Vanessa
Tucker, and his niece, Tequillia Williams were. During the
search, Officer Jason Edwards found a Sears Roebuck rifle
under the mattress of a bunk bed in one of the bedrooms.
Officer Edwards also recovered several documents bearing
Tucker’s name from under the bed. These documents included
a letter from the IRS addressed to Tucker at 2950 West Harri-
son Street. In searching the apartment, officers also found $237
cash in the refrigerator, eight clear baggies of heroin inside a
potato chip bag, as well as ammunition.
   During the search, another officer apprehended Tucker a
few blocks away. The officer detained Tucker and notified the
searching officers. During a post-arrest interview, Officer Fred
Caruso told Tucker that the officers had found a gun under
Tucker’s bed.1 Tucker responded that the rifle was not his and
that he was holding it for someone else. Tucker was charged
with possessing a firearm after having been convicted of a
crime punishable by a term of imprisonment longer than a
year, in violation of 18 U.S.C. § 922(g)(1).



1
  Officer Caruso testified about the interview at trial. Tucker himself did
not testify.
No. 13-1403                                                      3

   At trial, Tucker argued that he did not have a substantial
connection to the apartment where the rifle was found and that
the officers fabricated his post-arrest admissions.
    In support of this defense, Tucker presented testimony
from Vanessa Tucker and Tequillia Williams. Vanessa Tucker
testified that Tucker did not have keys to the apartment, was
not listed on the apartment lease, and did not keep any of his
things there, although he did visit from time to time. Tequillia
Williams corroborated Vanessa Tucker’s testimony, adding
that a neighbor named “Pam” would bring Tucker’s mail to
Apartment 502. Officer Edwards testified in rebuttal that one
of the searching officers asked Vanessa Tucker which bedroom
was Tucker’s, and that she pointed toward the bedroom where
the rifle was found.
   After a short deliberation, the jury found Tucker guilty.
                          II. ANALYSIS
    Tucker makes two claims on appeal: (1) that the evidence
was insufficient to support the jury’s finding that he construc-
tively possessed the rifle and (2) that the district court’s
decision to admit evidence of Tucker’s six prior felonies
precluded a fair trial. Both claims lack merit.
   A. Constructive Possession
   A defendant who makes an insufficient evidence claim
“faces a nearly insurmountable hurdle.” United States v. Morris,
576 F.3d 661, 666 (7th Cir. 2009) (quoting United States v. Pulido,
69 F.3d 192, 205 (7th Cir. 1995)). We will reverse a conviction
because of insufficient evidence only if “the record is devoid of
evidence from which a reasonable jury could find guilt … .”
4                                                    No. 13-1403

United States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010). When
conducting this analysis, we take all facts in the light most
favorable to the government. Morris, 576 F.3d at 666.
    To convict Tucker under 18 U.S.C. § 922(g)(1), the govern-
ment bore the burden of proving that (1) Tucker had a prior
felony conviction, (2) Tucker possessed the Sears Roebuck rifle,
and (3) the rifle moved in interstate commerce. United States v.
Caldwell, 423 F.3d 754, 757 (7th Cir. 2005). Tucker and the
government stipulated to the first and third elements. Thus,
the only question was whether Tucker possessed the Sears
Roebuck rifle.
    Possession can be either actual or constructive. Id. The
government does not contend that Tucker actually possessed
the rifle; thus, our discussion is limited to constructive posses-
sion. A person constructively possesses an item when, al-
though he does not actually possess it, he exercises dominion
and control over it. Morris, 576 F.3d at 666. Constructive
possession can be proven by direct or circumstantial evidence.
United States v. Kelly, 519 F.3d 355, 361 (7th Cir. 2008).
    Here, we have direct evidence that Tucker possessed the
rifle: Officer Caruso’s testimony that Tucker admitted he was
holding the gun for a friend. This is enough to support
Tucker’s conviction, regardless of his nexus to the apartment
where the gun was found. See United States v. Bloch, 718 F.3d
638, 642 (7th Cir. 2013) (appellant “spared the government the
problems of proof ordinarily associated with constructive
possession, particularly the complexities that sometimes arise
when firearms are discovered in a place occupied by the
defendant but outside of his exclusive control,” because he told
No. 13-1403                                                   5

the police the gun was his). Because Tucker admitted he was
holding the gun for a friend, the government did not need to
prove that he lived in Apartment 502 to establish his construc-
tive possession of the rifle. Tucker suggests that because this
testimony was not videotaped, recorded, or memorialized in
a signed statement, it is not reliable and cannot support his
conviction. But the jury was entitled to credit Officer Caruso’s
testimony despite Tucker’s arguments it was unreliable. See
Kelly, 519 F.3d at 362. Thus, the jury had adequate evidence on
which to base its conclusion that Tucker possessed the gun.
   B. Admission of Tucker’s Prior Felonies
   Tucker additionally argues that the trial court’s decision to
admit evidence of his six prior felonies precluded a fair trial.
But he did not testify at trial, and has thus waived this claim.
Luce v. United States, 469 U.S. 38, 43 (1983).
                       III. CONCLUSION
    Neither of Tucker’s claims succeed: the government
presented ample evidence for the jury to conclude that he
possessed the Sears Roebuck rifle, and Tucker did not preserve
his claim that admission of his prior felonies precluded a fair
trial. Thus, we AFFIRM the decision of the district court.
