                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3649
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                              Antuan Rochelle Gaines

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                             Submitted: March 10, 2017
                                Filed: June 23, 2017
                                  ____________

Before RILEY,1 Chief Judge, GRUENDER, Circuit Judge, and SCHREIER,2
District Judge.
                              ____________

RILEY, Chief Judge.


      1
       The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
      2
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota, sitting by designation.
       Antuan Gaines appeals his conviction for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1), arguing (1) the district court3 abused
its discretion in admitting gang-related evidence, and (2) the evidence introduced at
his jury trial was insufficient to find him guilty. Having appellate jurisdiction under
28 U.S.C. § 1291, we affirm.

I.     BACKGROUND
       In the early afternoon of November 4, 2013, Little Rock, Arkansas, plain
clothes police officers observed a person-of-interest in a homicide investigation
standing in a parking lot with a group of men dressed in red and black attire. Due to
a concern for safety, because the officers were aware of a recent increase in gang
activity and the individuals’ clothing indicated they might be members of a local
gang, the officers called for uniformed backup. Several marked police cars
responded. As Officer Charles Starratt approached the group, he saw one man, later
identified as Gaines, make a motion toward the man’s waist and then duck down out
of the officer’s sight next to a vehicle. Officer Starratt then heard “a metal on
pavement sound.” Gaines obeyed officers’ commands to get on the ground, and
while handcuffing Gaines, Officer Starratt spotted a handgun underneath the car next
to which Gaines had been standing.

      Gaines was indicted for being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1) and proceeded to a jury trial in February 2016. Before trial, the
government filed notice of its intent to present evidence of Gaines’s “gang
membership, and the fact that he was with several other members of the gang when
he and three others were found in possession of firearms” and “[l]imited evidence
regarding the homicide investigation” as “‘relevant to multiple aspects of th[e] case:
the overarching factual scenario at issue, [Gaines’s] presence at the scene, and why


      3
       The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.

                                         -2-
he would have a [firearm].’” (Second and third alterations in original) (quoting
United States v. Molton, 743 F.3d 479, 482 (7th Cir. 2014). The district court
permitted the government to introduce limited evidence of Gaines’s gang affiliation,
but noted “any sort of expert taking the stand and giving a dissertation on gang life
and the violence of gangs and the violence of this gang in particular, . . . at some point
that becomes objectionable under 403.” See Fed. R. Evid. 403 (“The court may
exclude relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice.”).

       Over Gaines’s objection at trial, the district court allowed an expert witness to
testify about Gaines’s involvement in a local gang. Before this testimony, the district
court instructed the jury to consider the evidence only as to Gaines’s knowledge,
intent, and motive in possessing the firearm.4

      4
          The limiting instruction read to the jury was:

      Ladies and gentlemen of the jury, I anticipate that you will hear
      evidence that Mr. Gaines is alleged to be affiliated with a gang. You
      may consider this evidence only if you unanimously find it more likely
      true than not true. You decide that by considering all of the evidence
      and deciding what evidence is more believable. This is a lower standard
      than proof beyond a reasonable doubt. If you find this evidence has
      been proved, then you may consider it to help you decide Mr. Gaines’
      knowledge, intent, and motive regarding the charges against him in this
      case. You should give it the weight and value you believe it is entitled
      to receive. If you find that this evidence has not been proved, you must
      disregard it.

             Remember, even if you find that Mr. Gaines may have committed
      similar acts in the past, this is not evidence that he committed such an
      act in this case. You may not convict a person simply because you
      believe he may have committed similar acts in the past. Mr. Gaines is
      on trial only for crimes charged and you may consider the evidence of
      prior acts only on the issues that I have explained in this instruction.

                                           -3-
       The expert testified the local gang, Highland Park Pirus (HPP), is associated
with the color red and included the parking lot where Gaines was arrested in its
territory. The government had previously introduced photographs—to which Gaines
did not object at trial—of the clothes Gaines was wearing the day of his arrest,
including a knit cap with the initials HPP, and the expert witness testified this cap
indicated Gaines was affiliated with the HPP gang. As part of the expert witness’s
testimony, the government attempted to introduce photographs of clothing items worn
by individuals other than Gaines in the parking lot the day of his arrest that referenced
the HPP gang, but the district court found these photographs unduly prejudicial. The
government then introduced, over Gaines’s objection, photographs of two of Gaines’s
tattoos that the expert witness also identified as associated with the HPP gang.

      The expert witness went on to testify that members of street gangs like HPP are
involved in illegal activity and possess firearms, but the district court sustained
Gaines’s objections to further testimony regarding why members of street gangs
possess guns, and that the homicide the officers were investigating was gang-related.

       In addition to the expert testimony linking Gaines to the local street gang,
Officer Starratt testified he responded to the call for backup and, while approaching
the group, Gaines caught his attention “[b]ecause he made a motion [Officer Starratt]
would consider as a threat to [his] person.” Officer Starratt testified he discovered
the firearm underneath the vehicle after Gaines dropped out of sight next to the
vehicle and Officer Starratt heard a “metal on pavement sound.” While Officer
Starratt testified “[t]here was another individual at the front of the car” near Gaines,
he also testified no other individual was within reaching distance of the gun. No




A limiting instruction in the final jury instructions included substantially the same
language.

                                          -4-
officer testified to actually seeing Gaines with a firearm, and no physical evidence
tied Gaines to the firearm recovered at the scene.

       Gaines moved for a judgment of acquittal at the close of the government’s case,
which the district court denied. After the district court overruled Gaines’s motion to
exclude evidence of his potential witnesses’ affiliation with the HPP gang, Gaines
rested without introducing any evidence. The district court instructed the jury and
included a second limiting instruction on the gang-affiliation evidence. The jury
returned a guilty verdict. Gaines filed timely notice of appeal.

II.   DISCUSSION
      A.      Gang-Related Evidence
      Gaines argues the district court abused its discretion in overruling his
objections to the introduction of evidence of Gaines’s gang affiliation—namely,
photographs of his gang-related clothing and tattoos and the explanatory expert
testimony. See United States v. McKay, 431 F.3d 1085, 1093 (8th Cir. 2005) (“We
review district court rulings on the admission of prejudicial evidence such as alleged
gang affiliation for an abuse of discretion.”).

       “Evidence of gang membership is admissible if relevant to a disputed issue,”
United States v. Lemon, 239 F.3d 968, 971 (8th Cir. 2001), but not “if its purpose is
solely ‘to prejudice the defendant or prove his guilt by association with unsavory
characters,’” United States v. Ellison, 616 F.3d 829, 833 (8th Cir. 2010) (quoting
McKay, 431 F.3d at 1093). As we recently outlined in United States v. Payne-Owens,
gang-related evidence is often admissible where “the defendant is . . . a gang member
himself,” the issues in the case “‘concern the mere fact of a defendant’s gang
membership’ rather than ‘sanction[ing] a wide ranging inquiry into the generic
criminality and violent dispositions of gangs,’” and the evidence “‘is generally an
unavoidable incident of presenting other permissible evidence.’” United States v.



                                         -5-
Payne-Owens, 845 F.3d 868, 873 (8th Cir. 2017) (quoting United States v. Street, 548
F.3d 618, 632 (8th Cir. 2008)).

       Gaines claims “though the government attempted to disguise the evidence as
admissible [Rule] 404(b) evidence, the evidence was offered merely to prejudice Mr.
Gaines and prove his guilt by association.” See Fed. R. Evid. 404(b) (“Evidence of
a crime, wrong, or other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with the
character. . . . This evidence may be admissible for another purpose.”). Gaines
argues any relevance of his gang affiliation was “substantially outweighed by the
danger of unfair prejudice” when “the government went the ‘guilty by association’
route.” See Fed. R. Evid. 403.

       We have previously cautioned against the “relentless attempt to convict [a
defendant] through his association” with a gang when the government “injected into
the trial over defense counsel’s objection” the gang’s “general reputation for drug-
related activities,” and did so “merely to show that [the defendant] is a bad person and
thus more likely to have committed the crime.” United States v. Roark, 924 F.2d
1426, 1430-34 (8th Cir. 1991). But “[h]ere, unlike in Roark, the government did not
relentlessly attempt to convict [Gaines] by arguing guilt by association.” Payne-
Owens, 845 F.3d at 874. Instead, in the government’s words, the evidence of
Gaines’s gang affiliation was offered to “give[] context to the reason that the officers
were there that day, the steps that they took that day, the reason that they stopped that
day” and to establish Gaines’s knowledge, intent, motive, or opportunity. Gaines’s
membership in the HPP gang provided important background for the officers’
testimony of why they were in the area and called for uniformed backup to approach
the men in the parking lot. The photographs of Gaines’s gang-related clothing and
tattoos were also probative of Gaines’s motive to possess a gun “even if that alleged
motive derived from his gang involvement.” Payne-Owens, 845 F.3d at 874.



                                          -6-
       The government’s expert witness also testified briefly about the HPP gang and
Gaines’s affiliation with them. Again, we find no reversible error. The expert
informed the jury that Gaines’s clothing and tattoos were indicative of gang
membership, and we have repeatedly held explanatory evidence like this to be
admissible. See, e.g., Payne-Owens, 845 F.3d at 872 (affirming admission of
“generic and fleeting testimony” by an expert witness about hand signs and slang
associated with a local gang); United States v. Sills, 120 F.3d 917, 920 (8th Cir.
1997) (affirming admission of testimony to aid the jury with the meaning of gang-
related graffiti). The expert also testified about how, in his experiences, street gangs
are involved in illegal activity and members often possess firearms. This is a bit more
concerning. But the government and its witness then moved on, having only shared
a well-known generality about gangs’ involvement in illegal activities. These brief
statements—situated within a limited amount of gang evidence we have already
deemed admissible—do not tip the scales so much as to constitute an abuse of
discretion or unfair prejudice that requires a new trial.

       Any unfairly prejudicial effect of the gang-related evidence did not
substantially outweigh its probative value. See Fed. R. Evid. 403. The majority of
the testimony at trial focused on the officers’ observations at the scene, and the
government introduced limited evidence Gaines was affiliated with HPP, a far cry
from the “extensive, prejudicial testimony concerning the violent tendencies and
criminal dispositions of gangs in general and of [the local gang] in particular” we
have previously found to be unduly prejudicial. Street, 548 F.3d at 631. The district
court carefully considered each piece of gang-related evidence the government sought
to introduce and balanced its probative value against its prejudicial nature, and we
cannot say the result of this deliberate balancing was an abuse of discretion.5

      5
        The district court was presented with a Catch-22 in ruling on the additional
gang-related evidence the government sought to introduce. On one hand, allowing
the expert witness to testify as to why gang members possess guns and present gang-
related information about the homicide the officers were investigating would have

                                          -7-
        Granted, the probative value of the gang-related evidence was not strong, and
the government risked turning the focus of the trial to Gaines’s gang membership
rather than his knowing possession of a firearm. Yet we cannot say “‘the evidence
clearly had no bearing on the case and was introduced solely to show defendant’s
propensity to engage in criminal misconduct.’” United States v. Gant, 721 F.3d 505,
509 (8th Cir. 2013) (quoting United States v. Farish, 535 F.3d 815, 819 (8th Cir.
2008)). What may have developed into an unduly prejudicial effect of the gang-
related evidence was mitigated by the district court’s careful balancing of each piece
of evidence and repeated cautions that the jury consider evidence of Gaines’s gang
affiliation only “to help [them] decide Mr. Gaines’ knowledge, intent, and motive
regarding the charges against him.” See Payne-Owens, 845 F.3d at 874; McKay, 431
F.3d at 1093. By allowing the government to present evidence of Gaines’s gang
affiliation only as an important contextual explanation and as evidence of Gaines’s
motive to possess a firearm, the district court did not abuse its discretion.

       B.     Sufficiency of the Evidence
       Gaines also contends the evidence was insufficient to establish he knowingly
possessed the firearm. “To obtain a conviction under 18 U.S.C. § 922(g)(1) the
government must ‘prove beyond a reasonable doubt (1) [the defendant] previously
had been convicted of a crime punishable by a term of imprisonment exceeding one
year, (2) [the defendant] knowingly possessed a firearm, and (3) the firearm had been




made Gaines’s gang membership more relevant—the background information would
have provided more clarity on why Gaines’s gang membership could motivate him
to possess a gun and why the officers were interested in approaching the gang
members in the parking lot. On the other hand, this evidence would have turned
Gaines’s gang membership into a significant theme of the trial and may have tipped
the scales toward undue prejudice. The district court did not abuse its discretion in
attempting to walk a careful line between allowing the government to introduce
relevant evidence and ensuring Gaines was not unfairly prejudiced.

                                         -8-
in or had affected interstate commerce.’”6 United States v. Cowling, 648 F.3d 690,
700 (8th Cir. 2011) (quoting United States v. Johnson, 474 F.3d 1044, 1048 (8th Cir.
2007)). “We review sufficiency of the evidence claims de novo and reverse only if
no reasonable jury could have found [the defendant] guilty.” United States v.
Daniels, 625 F.3d 529, 532 (8th Cir. 2010). Taking “the evidence in the light most
favorable to the verdict and accept[ing] all reasonable inferences that can be drawn”
from that evidence, we find the evidence sufficient. United States v. Griffith, 786
F.3d 1098, 1102 (8th Cir. 2015).

       “‘A defendant knowingly possesses a firearm if he has actual or constructive
possession of it,’” United States v. Green, 835 F.3d 844, 852 (8th Cir. 2016) (quoting
United States v. Wells, 469 F.3d 716, 719 (8th Cir. 2006)), but “[m]ere
proximity . . . is insufficient to establish constructive possession.” Cowling, 648 F.3d
at 700. We agree with the government’s assertion that “the evidence at trial proved
more than mere proximity. Circumstantial evidence was presented . . . that Gaines
removed the firearm from his waist and dropped it under a car before he could be
arrested.” As Gaines highlights, the gun was in a public area, no witnesses testified
they saw Gaines holding the firearm, and no forensic evidence tied Gaines to the
firearm. But one officer did testify he saw Gaines “make a motion toward the rear of
the vehicle toward his waist” and duck out of sight, and then the officer heard “a
metal on pavement sound” before discovering the firearm underneath the car next to
where Gaines had stood. This is sufficient circumstantial evidence to support
Gaines’s conviction. Cf. United States v. White, 816 F.3d 976, 985 (8th Cir. 2016)
(“[B]ecause ‘a jury rarely has direct evidence of a defendant’s knowledge of a
firearm’s presence . . . knowledge is generally established through circumstantial


      6
        Gaines stipulated at trial he was a felon and the government presented
sufficient evidence at trial that the firearm charged in the indictment had been in or
had affected interstate commerce. Gaines only challenges the sufficiency of the
evidence to prove he knowingly possessed the firearm.

                                          -9-
evidence.’” (quoting United States v. Battle, 774 F.3d 504, 511 (8th Cir. 2014)
(omission in original)).

      Gaines’s contention the government’s witnesses contradicted one another “so
much so that a rational jury could not have found beyond a reasonable doubt that the
evidence established that Mr. Gaines knowingly possessed the firearm” is
unconvincing. “In reviewing the motion for judgment of acquittal . . . the court does
not assess the credibility of the witnesses, because that is the province of the jury.”
United States v. Stewart, 854 F.3d 472, 475 (8th Cir. 2017). The relatively minor
inconsistences between the officers’ testimony—the number of people present in the
parking lot, their proximity to one another, and what commands officers gave before
Gaines’s arrest—do not establish that no reasonable jury could have believed the
major points of the officers’ testimony.

III.   CONCLUSION
       Because the district court did not abuse its discretion in admitting certain gang-
related evidence and the evidence overall was sufficient to support Gaines’s
conviction, we affirm.
                        ______________________________




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