                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0612n.06
                              Filed: August 22, 2007

                                           No. 06-4017

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
        Plaintiff-Appellee,                              )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Southern
RICHARD NEWLAND,                                         )   District of Ohio
                                                         )
        Defendant-Appellant.




Before:           BOGGS, Chief Judge; CLAY and ROGERS, Circuit Judges.

                  BOGGS, Chief Judge. Richard Newland was charged with possession of marijuana

with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), possession of one

or more firearms in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. §

924(c)(1)(A)(i), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§

922(g)(1) and 924(a). The district court found him guilty on all three charges after a bench trial.

Newland appeals his convictions on the latter two charges, on the ground that there was insufficient

evidence presented to support them. For the following reasons, we affirm the judgment of the

district court.

                                                  I

        On September 3, 2004, Officer Vass of the Columbus Police went to Newland’s restaurant,
No. 06-4017
United States v. Newland

the R & N Barbeque, to do a “business check”: visiting the business and discussing security with

the owner. During his conversation with Newland, Officer Vass asked if Newland had a problem

with vehicles being left in his parking lot, and pointed to a green Ford Taurus parked in front as an

example. Newland responded that the Taurus belonged to him.

       After the business check, and following further investigation, Vass discovered that

Newland’s driver’s license had been suspended. A week later, around 11 p.m., Vass was patrolling

the area near Newland’s restaurant and saw Newland leaving the restaurant with “some type of bag

or package in his arms.” Vass noticed Newland’s Taurus sitting in the parking lot with the trunk

open. Vass then observed Newland go to the trunk, shut the trunk, get into the driver’s seat without

the bag, and drive out of the parking lot.

       Knowing Newland’s license had been suspended, Vass asked two other officers to initiate

a traffic stop. Officers Pappas and Weir pulled Newland over and requested his driver’s license.

Newland searched for his license, could not find it, and instead provided a Social Security card.

While Newland was searching for his license, Pappas observed the vehicle for anything illegal,

dangerous, or suspicious. A blue duffel bag placed between Newland and the front-seat passenger

caught his attention. Officer Pappas ran a check on Newland’s social security number and confirmed

that Newland’s license was indeed suspended. Pappas then requested that Newland step out of the

vehicle. Instead, Newland began to drive away. After a brief car chase, Newland jumped out of his

car and ran. Officer Pappas chased him on foot while Officer Weir stayed with the car and its three

passengers: an adult woman seated in the front passenger’s seat and two minor children of unknown

age and gender seated in the rear.

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       Once Newland was caught, Pappas escorted him back to the vehicle and assisted in taking

an inventory of the car’s contents. Pappas noticed that the blue duffel bag was missing, and recalled

only one moment during the chase when Newland had not been in his sight; this was during the car

chase, when Newland made a right turn at the corner of Joyce Street and Aberdeen Street. Police

went back to that corner and found the blue duffel bag there. According to the uncontested finding

of the district court, the bag was found in a front yard of a house, to the driver’s side of a car on

Newland’s route fleeing police.

       The blue duffel bag contained two loaded guns: a .50-caliber Desert Eagle and an Intertec

TEC-9 with a 30-round clip. During the trial, Officer Vass testified that a Desert Eagle is not often

seen in the drug trade as it is expensive and unwieldy. Vass testified that a TEC-9 is often seen in

the drug trade, and rarely seen used for business or home defense. Vass also testified that other

business owners in the area with whom he had talked maintained firearms at their businesses for the

purpose of defense.

       In the glove compartment of the car, the police found two small baggies of marijuana, in

amounts consistent with either personal use or street level sales. Above the driver’s side visor,

Officer Weir found an envelope containing cash and checks totaling $6,147. In the trunk of the car,

the police found a blue backpack containing a large amount of marijuana, Newland’s suspended

driver’s license, and a digital scale. The trunk also held a black canvas bag containing two bags of

marijuana, rubber bands, and razor blades. The total amount of marijuana found in the car was

1227.3 grams.

                                                 II

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United States v. Newland

        On May 8, 2006, the United States District Court for the Southern District of Ohio conducted

a bench trial and, after overruling a motion for acquittal, found Newland guilty of possession with

intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D) (Count One),

possession of one or more firearms in furtherance of a drug-trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A)(i) (Count Two) and possession of a firearm by a convicted felon, in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a) (Count Three).

                                                  III

        On appeal, Newland argues that there was insufficient evidence to support his convictions

on Counts Two and Three. “A defendant claiming ‘insufficiency of the evidence bears a very heavy

burden.’” United States v. Wright, 16 F.3d 1429, 1439 (6th Cir. 1994) (quoting United States v.

Vannerson, 786 F.2d 221, 225 (6th Cir. 1986)). “[T]he relevant 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.” Jackson v. Virginia, 443 U.S. 307,

319 (1979).

        “[O]ur court on appeal will reverse a judgment for insufficiency of evidence only if this

judgment is not supported by substantial and competent evidence upon the record as a whole, and

. . . this rule applies whether the evidence is direct or wholly circumstantial.” United States v. Stone,

748 F.2d 361, 363 (6th Cir. 1984). Further, it is “the majority view that circumstantial evidence

alone can sustain a guilty verdict and that to do so, circumstantial evidence need not remove every

reasonable hypothesis except that of guilt.” Id. at 362. “We are bound to make all reasonable

inferences and credibility choices in support of the . . . verdict.” United States v. Hughes, 895 F.2d

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1135, 1140 (6th Cir. 1990).

                                                  IV

         1. Count Three - Possession of a Firearm by a Convicted Felon

         At trial, Newland stipulated to being convicted of a predicate offense and to the movement

of the firearms in interstate commerce. The only question was whether Newland possessed the

firearms found in the blue duffel bag. See United States v. Moreno, 933 F.2d 362, 372 n.1 (6th Cir.

1991).

         Possession can be either actual or constructive. “Evidence of constructive possession suffices

to satisfy the requirement under § 922(g)(1) of proof that a defendant possessed a firearm, and

constructive possession, in turn, 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.” United States v. Newsom, 452 F.3d 593, 608 (6th Cir.

2006) (quoting United States v. Hadley, 431 F.3d 484, 507 (6th Cir. 2005)). Constructive possession

may be proven by either direct or circumstantial evidence. Id. at 609.

         In this case, there is sufficient evidence for a rational trier of fact to find constructive

possession beyond a reasonable doubt. First, Newland was seen by officers sitting directly next to

the blue duffel bag containing the two firearms. While proximity alone is not enough to sustain a

conviction, it “can certainly be a factor to be considered by the reviewing court.” Id. at 610. Further,

“[a]lthough ‘mere proximity’ to a gun is insufficient to establish constructive possession, evidence

of some other factor – including connection with a gun, proof of motive, a gesture implying control,

evasive conduct, or a statement indicating involvement in an enterprise – coupled with proximity

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may suffice.” United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003) (emphasis added).

Here, the district court coupled Newland’s proximity with a discussion of Newland’s motive to

possess the guns (protection of himself, his money, and his drugs), a gesture implying control

(throwing the bag out of the moving car), evasive conduct (fleeing the police in the car, and then

being the only person in the car to flee on foot), and connection with a gun (of the passengers in the

car, only Newland would be large enough to handle a Desert Eagle).

       Newland argues that one prong of that reasoning, that he threw the bag out of the moving car,

is an unreasonable inference. The bag, however, was found in a yard to the driver’s side of the car’s

route, Newland was a convicted felon prohibited from possessing firearms, Newland made the

decision to flee the police, the bag was somewhat heavy, and it was found in the grass of a front yard

a sidewalk’s length away from the street. Based on this, it is reasonable to infer that Newland threw

the bag from the car, and when reviewing for sufficiency of the evidence, we draw all reasonable

inferences in favor of the government.

       Weighing all of the evidence in the light most favorable to the prosecution, the district court

had sufficient evidence to find that Newland “knowingly ha[d] the power and the intention at a given

time to exercise dominion and control over [the guns].” Newsom, 452 F.3d at 610. Therefore, we

affirm the district court’s judgment on Count Three.

       2. Count Two – Possession of a Firearm in Furtherance of a Drug Trafficking Offense

       18 U.S.C. § 924(c) provides that “any person who, during and in relation to any crime of

violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence

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or drug trafficking crime . . . (i) be sentenced to a term of imprisonment of not less than 5 years.”

As we concluded above that there is sufficient evidence to finding a conclusion that Newland

possessed the firearms, the only question remaining is whether there is sufficient evidence to support

a conclusion that Newland’s possession of those firearms was in furtherance of a drug trafficking

offense.

       In order for possession to be in furtherance of a drug crime, “the firearm must be strategically

located so that it is quickly and easily available for use.” United States v. Mackey, 265 F.3d 457, 462

(6th Cir. 2001). Other factors that may be relevant are “whether the gun was loaded, the type of

weapon, the legality of its possession, the type of drug activity conducted, and the time and

circumstances under which the firearm was found.” Ibid. (citing United States v. Ceballos-Torres,

218 F.3d 409, 414-15 (5th Cir. 2000)). In Mackey, the defendant and the gun were found in the

living room of a crack house, with the gun “easily accessible to the defendant and located near . . .

scales and razor blades. [The] [d]efendant, stopped by police near the gun, possessed cocaine and

a large sum of cash.” Ibid. This was held to be sufficient evidence to support a Section 924(c)

conviction.

       In the instant case, Newland was seen by police seated next to the bag that contained two

loaded firearms. Newland was a convicted felon who was not permitted to possess a firearm.

Newland was in a car with a large amount of money and a large amount of drugs. Further, the

officers testified that the Desert Eagle and the TEC-9 were not often used for personal defense, and

that the TEC-9 in particular, especially with the 30-round clip, was common in the drug trade. In

reviewing for sufficiency of the evidence, we only ask whether any rational trier of fact could have

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found that Newland possessed the firearms in furtherance of a drug trafficking offense. As it was

in Mackey, that standard is met here.

                                               V

       For the reasons set out above, we AFFIRM the district court’s judgment of conviction on the

counts appealed.




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