                                UNPUBLISHED ORDER
                             Not to be cited per Circuit Rule 53




               United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604


                               Argued October 27, 2005
                              Decided December 16, 2005


                                         Before
                    Hon. FRANK H. EASTERBROOK, Circuit Judge
                    Hon. TERENCE T. EVANS, Circuit Judge
                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge


No. 04-3994

UNITED STATES OF AMERICA,
                                                 Appeal from the United States District
              Plaintiff-Appellee,                Court for the Southern District
                                                 of Illinois
      v.
                                                 No. 01 CR 30158
BRETT STALLINGS,                                 William D. Stiehl,
                                                 Judge.
              Defendant-Appellant.



                                         ORDER


       Brett Stallings was convicted of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and sentenced to 188 months of imprisonment.
Stallings raises two arguments on appeal: (1) there was inadequate evidence to
support the jury’s finding that he constructively possessed a firearm, and (2) he was
denied his Sixth Amendment right to effective assistance of counsel at trial. We
reject both arguments and affirm.
Appeal No. 04-3994                                                             Page 2


                                 I. BACKGROUND
       In June 2001, a group of state, county, and local police officers were
conducting routine enforcement duties near a housing project in East St. Louis,
Illinois. The officers were driving unmarked cars, but were wearing military-style
clothing with the word “Police” sewn on their uniforms.
       At approximately 8:45 p.m., the officers pulled into the parking lot of a tavern
where a group of people were standing. As the police approached, the crowd
dispersed. Stallings and a woman, Katrina Hawkins, however, remained in the
parking lot. Hawkins put her hands up immediately when an officer yelled “police,”
but Stallings did not. Instead, Stallings walked to a parked pickup truck, bent
down, and appeared to throw an object under the truck. “Almost instantaneously,”
according to the government’s evidence, multiple officers heard a metallic thud and
saw a gun spinning under the front tire of the truck. One of the officers then yelled
“gun,” and Stallings stepped back and raised his hands. Police retrieved a loaded
Astra .357 revolver from under the truck.
                                    II. ANALYSIS
A.    There was Sufficient Evidence to Support the Jury’s Guilty Verdict.
       On appeal, Stallings argues that there was insufficient evidence to convict
him of being a felon in possession of a gun. Because Stallings challenges the jury’s
verdict of guilt, we view the facts in the light most favorable to the government. See
United States v. Fassnacht, 332 F.3d 440 (7th Cir. 2003). To prevail on his claim,
Stallings must bear the “heavy burden” of showing that a rational jury could not
have found the existence of each element of the crime beyond a reasonable doubt.
United States v. Kitchen, 57 F.3d 516, 520 (7th Cir. 1995).
       At trial, the government had the burden of proving that: (1) Stallings had a
previous felony conviction; (2) Stallings possessed a firearm; and (3) the firearm had
traveled in or affected interstate commerce. See 18 U.S.C. § 922(g)(1). Because
Stallings conceded the first and third statutory elements prior to trial, the only
issue for the jury to decide was whether he possessed a gun. Possession for § 922(g)
purposes can be either actual or constructive. Kitchen, 57 F.3d at 520. 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 instead knowingly has the power and the intention at a given time to
exercise dominion and control over an object. Actual and constructive possession
may be proved by either direct or circumstantial evidence. United States v. Gilbert,
391 F.3d 882 (7th Cir. 2004).
      The government presented circumstantial evidence that Stallings either
actually or constructively possessed the gun found under the truck. Multiple police
Appeal No. 04-3994                                                                Page 3


officers testified that Stallings did not immediately comply with instructions to
show his hands. Instead, he walked toward the front of the pickup truck, bent
down, and made an “underhand throwing motion.” The officers then heard a metal
clinking sound and saw the gun spinning under the pickup truck. Rather than
refuting this circumstantial evidence, Stallings points out that: (1) no officer
actually saw him with the gun; (2) there was no evidence that he owned the gun or
the pickup truck; and (3) there were several other people who fled the scene that
could have possessed the gun.
       Stallings’s arguments, however, are not persuasive. To sustain a § 922(g)
conviction, the government was not required to produce an eyewitness who saw
Stallings holding the gun. See Kitchen, 57 F.3d at 521 (“Few would suggest that
‘possession’ of an object should be confined to instances of physical holding.”).
Stallings’s argument that he did not own the gun is also without merit because
ownership is not an element of conviction under 18 U.S.C. § 922(g)(1). The statute
is a possession statute, not an ownership statute. Stallings’s last argument, that
someone else could have thrown the gun before fleeing the scene, was a factual
determination that was rejected by the jury. We will not disturb the jury’s verdict
in this case because there is sufficient circumstantial evidence that Stallings had
control over the gun when he threw it under the pickup truck.


B.    Stallings Has Failed to Demonstrate That He Was Denied Effective
      Assistance of Counsel.
       Stallings’s second argument is that he was denied his Sixth Amendment
right to effective assistance of counsel at trial. Stallings first raised this issue in a
post-trial motion that was rejected by the district court. Although our review of his
constitutional claim is de novo, we note that, because Stallings presents his claim to
us on direct appeal, he is limited to the trial record. See United States v. Taglia,
922 F.2d 413, 417 (7th Cir. 1991). Had Stallings raised his Sixth Amendment claim
in a habeas corpus petition under 28 U.S.C. § 2255, he would have been able to
supplement the record with evidence that his trial counsel’s errors were not tactical
moves. Of course, Stallings may not have his cake and eat it too. Once we have
rejected his Sixth Amendment claim on direct appeal, the law of the case doctrine
bars him from reraising it in a habeas challenge. United States v. Trevino, 60 F.3d
333, 338 (7th Cir. 1995). We pointed out this no-win situation to Stallings’s counsel
at oral argument, cautioning that this court has never reversed a conviction on
direct appeal due to ineffective assistance of trial counsel. Counsel assured us that
Stallings was aware of the uphill battle he faced and willing to “take the risk” of
proceeding with this appeal.
      To demonstrate that he was denied effective assistance of counsel, Stallings
Appeal No. 04-3994                                                               Page 4


must show that his attorney’s performance was deficient, and the deficiency
prejudiced the outcome of his trial. Strickland v. Washington, 466 U.S. 668, 687
(1984). “Every indulgence will be given to the possibility that a seeming lapse or
error by defense counsel was in fact a tactical move, flawed only in hindsight.”
Taglia, 922 F.2d at 417-18.
       Stallings’s best argument is that his trial counsel was ineffective when he
failed to object when United States Marshals brought Stallings into the courtroom
wearing handcuffs.1 A criminal defendant “has the right to appear before the jury
free from shackles or other physical restraints.” Harrell v. Israel, 672 F.2d 632, 635
(7th Cir. 1982). We have previously found trial counsel’s performance deficient
when counsel failed to object to a defendant’s visible shackling. See Roche v. Davis,
291 F.3d 473, 483 (7th Cir. 2002).2 But in this case, we cannot conclude that
counsel was deficient because the circumstances surrounding the alleged
handcuffing incident are unclear from the record. There are many questions that
the record does not answer: Were the handcuffs conspicuous or at least noticeable,
such that we can infer that the jury was aware of the restraints? Did Stallings
really alert his lawyer to the jury seeing him in handcuffs? Did the district court
reasonably believe that Stallings posed a security threat? Without a more fully
developed record, we cannot conclude that Stallings was denied effective assistance
of counsel and we reject this claim.


                                  III. CONCLUSION
      For the foregoing reasons, the judgment of the district court is AFFIRMED.




      1
          Stallings also argues that counsel was ineffective when he failed to rebut or
object to aspects of the government evidence. These alleged shortcomings are the
sort of strategic lawyering that we have routinely held to be outside the scope of a
Sixth Amendment ineffective assistance of counsel challenge. See, e.g., Conner v.
McBride, 375 F.3d 643, 661 (7th Cir. 2004) (finding that a defendant’s counsel was
not ineffective for failing to object to certain evidence and arguments offered by the
government).
      2
         Importantly, we note that Roche v. Davis, 291 F.3d 473 (7th Cir. 2002), was
before this Court on a § 2255 habeas petition and not direct appeal.
