                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a1047n.06

                                              No. 11-6056

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                         FILED
                                                                                      Oct 01, 2012
UNITED STATES OF AMERICA,                            )
                                                                               DEBORAH S. HUNT, Clerk
                                                     )
        Plaintiff-Appellee,                          )
                                                     )   ON APPEAL FROM THE UNITED
v.                                                   )   STATES DISTRICT COURT FOR THE
                                                     )   MIDDLE DISTRICT OF TENNESSEE
ANTONIO LEE,                                         )
                                                     )
        Defendant-Appellant.                         )


        Before: GIBBONS and COOK, Circuit Judges; and ROSENTHAL, District Judge.*


        COOK, Circuit Judge. A jury convicted Antonio Lee of intentionally possessing a firearm

as a convicted felon in violation of 18 U.S.C. § 922(g)(1) and § 924. Lee appeals his conviction on

two grounds, challenging the sufficiency of the evidence and the district court’s admission of

evidence of prior bad acts under Federal Rule of Evidence 404(b). We AFFIRM.


                                                    I.


        In March 2009, Nashville police officers Ben Bryner, Jamie King, Shane Fairbanks, and

Derrick Keeler were patrolling a high-crime apartment complex. From a darkened building

breezeway, the officers saw Lee park between two cars. The vehicle parked to Lee’s driver side

contained two unidentified persons, while three individuals occupied the vehicle to his passenger


         *The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas,
sitting by designation.
No. 11-6056
United States v. Lee


side.


        Lee stepped out of his car and stood between his car and the vehicle to his passenger side.

The officers approached the vehicles, and, upon recognizing Lee, Officer King called out, “[H]ey,

Antonio.” Startled by the officer’s voice, Lee quickly retreated to the back of his car and reached

toward his waistband. Officer Bryner then heard metal hit concrete. From his training, Bryner

surmised that Lee had dropped a gun. When Bryner shined his flashlight, he observed Lee

“attempt[ing] to kick something” and “saw something slide.” Officer Fairbanks heard the same

sound and looked under the car, finding a pistol by the front passenger tire. No one else was on foot

in the area, and the windows of the passenger-side vehicle remained closed throughout.


        The officers arrested Lee and called Officer Guldeman to transport Lee. Guldeman read Lee

his Miranda rights while Lee sat in the patrol car. As soon as Guldeman finished, Lee stated, “I

don’t want to remain silent.” Guldeman then re-warned Lee of his right to remain silent, but Lee

continued, “I’ll tell you the truth, the gun is mine.”


        Officers Bryner, Fairbanks, and Guldeman testified during Lee’s trial. Sade Bass, Lee’s

girlfriend and owner of the car, also testified—over Lee’s objection—that she had seen the firearm

in Lee’s possession earlier that day in her apartment. She asked Lee not to take the gun in her car but

Lee left the apartment to use her car anyway, with the gun in his front pocket. Soon thereafter, she

received a phone call from a friend informing her that the police were in her car. At trial, Bass

specifically identified the firearm as the one Lee was carrying that evening.

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No. 11-6056
United States v. Lee


        Wayne Kilday, Special Agent for the Bureau of Alcohol, Tobacco, and Firearms, testified

that Lee’s firearm was manufactured outside Tennessee. The parties stipulated that Lee had

previously been convicted of a felony.


                                                II.


A. Sufficiency of Evidence


        We review sufficiency challenges de novo, construing the evidence in the light most

favorable to the prosecution to determine whether a rational juror could have found each element of

the offense beyond a reasonable doubt. United States v. Gooding, 351 F.3d 738, 740–41 (6th Cir.

2003). To obtain a § 922(g)(1) conviction, government must prove three elements: (1) Lee had a

previous felony conviction; (2) Lee knowingly possessed the firearm specified in the indictment; and

(3) the firearm traveled interstate or affected interstate commerce. Id. at 741. It proved all three

here.


        Lee argues that the government failed to prove he possessed the same handgun “specified in

the indictment,” noting that the government’s evidence did not identify the gun by serial number.

Hence, Lee argues, insufficient evidence supported his conviction. But this argument misstates the

government’s burden of proof. According to the officers’ testimony, Lee confessed that the gun

belonged to him, and his girlfriend claimed to have seen him with the same gun just minutes before

the arrest. Further, two officers heard metal “sliding across” and “hitting” the concrete near


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No. 11-6056
United States v. Lee


Lee—the only civilian standing outside the vehicles—before recovering the pistol. The windows

of the two adjacent vehicles remained closed throughout the relevant times. All this evidence places

the firearm in Lee’s possession.


       Lee also asserts that no officer saw the gun in his hands and the gun was never submitted for

fingerprint analysis. This argument ignores Bass’s testimony—that she saw Lee with the gun in his

pocket minutes before the arrest. Lee attempts to sidestep this hurdle by claiming that the

government told Bass what to say, but the record reflects otherwise; Bass merely testified that she

learned from the government that the gun was a nine millimeter. Even without her testimony, a

reasonable jury could conclude that Lee had physical control over the weapon. Accordingly, we

reject Lee’s sufficiency challenge.


B. “Other Act” Evidence Under Rule 404(b)


       Lee next argues that Bass’s testimony constituted improper “other act” evidence under Rule

404(b). This rule, however, “does not apply to evidence that itself is probative of the crime

charged.” United States v. Price, 329 F.3d 903, 906 (6th Cir. 2003) (citing cases); see also United

States v. DeClue, 899 F.2d 1465, 1472 (6th Cir. 1990) (“Evidence which is probative of the crime

charged and does not solely concern uncharged crimes is not ‘other crimes’ evidence.” (citation

omitted)). Here, the government offered Bass’s testimony as “direct proof of the crime charged.”

We thus reject this meritless argument.



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No. 11-6056
United States v. Lee


                       III.


       We AFFIRM.




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