                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                    File Name: 09a0298p.06

                 UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                      No. 08-1349
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 THOMAS A. DAVIS,
                                                 -
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
               No. 07-00191—Robert Holmes Bell, District Judge.
                                   Argued: April 24, 2009
                           Decided and Filed: August 20, 2009
                                                                                      *
            Before: COLE and CLAY, Circuit Judges; CLELAND, District Judge.

                                    _________________

                                         COUNSEL
ARGUED: Jeffrey J. O’Hara, LAW OFFICE, Grand Rapids, Michigan, for Appellant.
Phillip J. Green, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee. ON BRIEF: Jeffrey J. O’Hara, LAW OFFICE, Grand Rapids,
Michigan, for Appellant. Phillip J. Green, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
                                    _________________

                                          OPINION
                                    _________________

        CLELAND, District Judge. Defendant-Appellant Thomas A. Davis appeals his
conviction for being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Defendant challenges the district court's findings on the admissibility of the


        *
        The Honorable Robert H. Cleland, United States District Court for the Eastern District of
Michigan, sitting by designation.


                                               1
No. 08-1349            United States v. Davis                                                      Page 2


contents of an emergency 911 call made by a woman who would later be called as a
witness, and other statements made by an unidentified woman who alerted a passing
police officer. Defendant also argues that, based on the record, no rational jury could
have found that he possessed the firearm, either actually or constructively. We disagree
and will AFFIRM.

                                        I. BACKGROUND

A.       Factual Background

         In the early days of July, 2007, Defendant decided to go joyriding in a rented car
accompanied by his friend, Senecca McElwee, and a gun. Specifically, the evidence
adduced at trial established that, on July 7, 2007, McElwee paid Thomas Latham fifty
dollars to rent a car for him. Latham rented a blue 2007 Chevy Cobalt from Enterprise
Rent-A-Car, and immediately turned it over to McElwee. McElwee and Defendant spent
the next several days together, taking turns driving the car.

         On July 10, 2007, seventeen-year-old Ronica McIntosh was walking with her
teenage cousin and two small children when she saw a man she recognized as Defendant
riding in a vehicle, and was able to see that he was holding a gun. McIntosh testified
that she was alarmed for two reasons: because she saw the gun and because she thought
Defendant had been involved in a murder which had occurred about a week earlier at the
Brick House Bar in Grand Rapids, Michigan.1 McIntosh felt responsible for the safety
of the small children and picked up her pace. She immediately called 911, but her initial
911 call was dropped. When she called back and was reconnected, she recited the
license plate number she saw as BEW 7533, and said that the car was a Ford Focus. The
plate number was the same as that registered to the Cobalt that Latham had rented for
McElwee, and Special Agent Michael Heffron would later testify that a Ford Focus
looks similar to a Chevy Cobalt. Even though she had seen only one gun, McIntosh said



         1
           McIntosh testified first outside the presence of the jury in order to provide a record on which
the court could rule on the admissibility of the 911 tape. After the jury was brought back in, she testified
substantially the same, except that, as ordered, she did not mention anything about the Brick House
murders.
No. 08-1349        United States v. Davis                                         Page 3


that she told the 911 dispatcher that Defendant had two because she thought this would
make the police respond more quickly. She also told the dispatcher it had been five
minutes since she saw him, but she testified that this was incorrect and it had only been
between thirty seconds and a minute.

       The following day, on July 11, 2007, Grand Rapids Police Officer Michael
LaFave, having been waved down by a woman on the street saying that she had recently
seen Defendant with a gun and in a car bearing license plate BEW 7533, relayed to his
dispatcher all the information she gave him – Defendant’s name, the car’s description,
the license plate number, and that Defendant was said to have a gun. This information
was transmitted by LaFave over police radio, and anyone with a police scanner could
have heard his statements.

       Douglas testified that, on July 11, 2007, he along with Defendant, McElwee, and
Christopher Jeffries were driving around in the Chevy Cobalt. At some point, Defendant
left the car and entered a residence. When he returned, Defendant stated that “somebody
called the boys on us,” which Douglas understood to mean that someone had reported
them to the police. The four men drove the car back to a house on Calvin street, where
they had visited earlier in the day. The men smoked marijuana and, at some point,
McElwee and Defendant went outside by themselves. When they returned, they
announced that they had a plan to change the rental car for another. The men then met
Latham, who had originally rented the Cobalt, and Latham exchanged the car at
Enterprise for a Chrysler PT Cruiser.

       The Grand Rapids Police Department, together with the Federal Bureau of
Investigation (“FBI”), followed up on the tip that Officer LaFave received from the
unidentified woman. The FBI ran the license plate BEW 7533 through the department’s
records and found that it was registered to Enterprise. Enterprise informed Special
Agent Patrick Kelly that the license plate was registered to a Chevy Cobalt. When
Latham returned to Enterprise to exchange the Cobalt for the PT Cruiser on July 11,
2007, Enterprise contacted FBI agents. Agents drove to the rental agency and placed the
PT Cruiser under surveillance. The case agents and the Grand Rapids officers followed
No. 08-1349         United States v. Davis                                           Page 4


the PT Cruiser a short distance back to Grand Rapids, where the officers conducted a
traffic stop. Inside the car were four men, including Defendant, who was in the front
passenger seat at the time of the stop. All four men were ordered to put their hands in
the air, and all of them complied except Defendant. Instead, Defendant was observed
making a “furtive movement” and bending over in an apparent attempt to put something
under his seat. Eventually, however, Defendant complied with police commands.

        Grand Rapids police officers searched the car and found a firearm under the
passenger seat. Officer James Wojczynski testified that he immediately looked under
the passenger seat because of Defendant’s “obvious stuffing actions under the seat.”
The officers also found a small baggie of marijuana under the seat, positioned behind the
pistol. The gun was not visible, but was about halfway under the seat, with its handle
facing toward the front and its barrel facing toward the rear. There were only three or
four inches between the bottom of the seat and the floorboard. Officer Wojczynski
testified that it would have been “very unlikely” that Defendant could have thrown the
baggie of marijuana past the gun under the seat.

        Defendant was taken into custody where he was given his Miranda warnings,
which he voluntarily waived. Defendant originally denied placing anything under his
seat and then later stated that he put the marijuana under the seat. Defendant denied
placing the gun under the seat and denied that the gun was his. The three other
occupants of the car also denied knowledge of the gun.

B. Procedural Background

        On August 9, 2007, Defendant was indicted for being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 921(a). A jury trial began on
November 13, 2007. Defendant objected to the admission of (1) a July 11, 2007
statement made by the unidentified woman to Officer Michael LaFave indicating that
she had seen Defendant with a handgun and (2) similar statements made on July 10,
2007 by McIntosh during a 911 telephone call. The district court overruled the
objections, finding that the first statement was not being offered to prove the truth of the
matter asserted but rather to explain the police officers’ subsequent actions, and
No. 08-1349            United States v. Davis                                                       Page 5


concluding that the 911 call fell within the hearsay exceptions of excited utterance and
present sense impression. At the close of the Government’s case, Defendant moved for
a directed verdict, which was denied. The Government contends that Defendant did not
renew his motion at the close of all the proofs.2

         The jury returned its guilty verdict on November 15, 2007. On February 29,
2008, District Court Judge Robert Holmes Bell sentenced Defendant to forty-eight
months in custody. Defendant timely appealed on March 12, 2008.

                                            II. ANALYSIS

A.       Alleged Evidentiary Errors

1. Standard of Review

         “An appellate court reviews all evidentiary rulings--including constitutional
challenges to evidentiary rulings--under the abuse-of-discretion standard.” United States
v. Schreane, 331 F.3d 548, 564 (6th Cir. 2003) (citing Gen. Elec. Co. v. Joiner, 522 U.S.
136, 141 (1997)); see also United States v. Wright, 343 F.3d 849, 865 (6th Cir. 2003)
(“All evidentiary rulings, including hearsay, are reviewed for abuse of discretion.”). “An
abuse of discretion will be found upon a ‘definite and firm conviction that the court
below committed a clear error of judgment in the conclusion it reached upon a weighing
of the relevant factors.’” Schreane, 331 F.3d at 564 (quoting Super Sulky, Inc. v. U.S.
Trotting Ass’n, 174 F.3d 733, 740 (6th Cir. 1999) (internal quotation marks and citation
omitted)).

         “The applicable standard of review for an evidentiary ruling of the district court
where the evidentiary issues relate to a claimed violation of the Sixth Amendment is the
de novo standard.” United States v. Robinson, 389 F.3d 582, 591-92 (6th Cir. 2004)
(citing United States v. Lloyd, 10 F.3d 1197, 1216 (6th Cir. 1993) (“Because, here, the



         2
           Portions of the transcript are missing from the records transmitted on appeal, but only five pages
separate the district court’s denial of the Rule 29 motion and the court’s statement that the proofs had been
closed. It thus appears that Defendant did not offer any evidence and the case went directly to the jury
after the Government’s case.
No. 08-1349         United States v. Davis                                          Page 6


evidentiary issues relate to a claimed violation of the Sixth Amendment . . . we review
the district court’s rulings de novo.”)).

2. Hearsay Rulings

       Defendant first challenges the admission of the statements made by the
unidentified woman to Officer LaFave. Defendant contends that the statements were
improperly admitted, relying on Federal Rule of Evidence 802, which provides that
hearsay is not admissible except under certain exceptions. “Hearsay” is defined as “a
statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c); see
also United States v. Childs, 539 F.3d 552, 559 (6th Cir. 2008).

       The district court ruled before trial, in response to Defendant’s motion in limine,
that the woman’s statement could be admitted because it was being offered not to prove
the truth of the matter asserted, but to aid in understanding the officers’ subsequent
actions. “In some circumstances, out of court statements offered for the limited purpose
of explaining why a government investigation was undertaken have been determined not
to be hearsay.” United States v. Gibbs, 506 F.3d 479, 486-87 (6th Cir. 2007) (quoting
United States v. Martin, 897 F.2d 1368, 1371 (6th Cir. 1990)). In Gibbs, the agent’s
testimony–that he had been told by another that Gibbs “had some long guns, shotguns
and/or rifles hidden in his basement bedroom”–was offered “solely as background
evidence to show why Gibbs's bedroom was searched. Whether Gibbs had long guns,
shotguns, or rifles in his bedroom was not offered for its truth, because the testimony did
not bear on Gibbs's alleged possession of the .380 Llama pistol with which he was
charged.” Id. at 486-87.

       Similarly, in this case, LaFave testified that after being flagged down, he
immediately broadcast the information the woman reported about Defendant having been
seen in a particular car with a particular license plate number and carrying a gun. The
statement by the woman was offered not to prove that Defendant was riding in a certain
car, or prove that the car bore a certain license number, or that Defendant was, in fact,
in possession of a particular firearm. The testimony, rather, was deployed almost
No. 08-1349          United States v. Davis                                      Page 7


surgically to establish that LaFave had broadcast exactly the information the woman
gave him, and the influence that the police broadcast appeared to have on Defendant’s
subsequent actions:

       Q:      Why were you looking for the defendant that day in a light blue or gray
               small car with that license plate number?
       A:      I had been stopped earlier in the day.
       Q:      Who stopped you earlier in the day?
       A:      A female.
       Q:      A female? Do you know who it was?
       A:      No.
       Q:      All right. And what happened when that woman stopped you that caused
               you to be looking for the defendant in that vehicle with license plate
               BEW 7533?
       A:      She told me the subject was in that car with a gun.
       ....
       Q:      Okay. Now when you received this information, did you report that
               information over your radio to your dispatch?
       A:      Yes, I did.
(J.A. 113-115.) Officer LaFave also testified that the information reported to dispatch
included the name of Thomas Davis, a description of the car, the license plate number
BEW 7533, and that Davis had been seen with a gun. In addition, Officer LaFave
confirmed that the information was broadcast over the police radio, and that “if someone
had a police scanner [and was listening], they would have heard that information.”

       This testimony, read in context, fairly precisely provides an explanation of what
Defendant subsequently did and said that afternoon: midway through his ride in and
around the neighborhood, Defendant entered and soon emerged from a house saying that
“somebody called the boys on us.” A short while later, Defendant announced his plan
to exchange the Chevy Cobalt for another. A logical inference is that Defendant had
access to a police scanner–perhaps in the house he visited– and came to know that local
officers thought he had a gun and were actively searching for him in a particular car.
No. 08-1349            United States v. Davis                                                       Page 8


The woman’s statement was not offered to prove the truth of its content. It explained
(perhaps only incidentally) what the officer did and, more importantly, it established a
foundation for the evidence about the visit to the house that would demonstrate
Defendant’s actions and culpable state of mind. In short, the jury was properly invited
to focus on Defendant’s reaction to the statement, not the “truth” of its substance.3

         “The truth of the matter asserted” in the woman’s statement, either as it was
reported to LaFave or repeated by him in the broadcast, was of no consequence to the
significance of what Defendant apparently thought and how he was seen to react after
hearing that the statement had been uttered. We agree with the district court’s
conclusion that the statement did not constitute hearsay. The record before us does not
reveal how (or even whether) the district court cautioned the jury about the limited scope
of this testimony as the Government suggested would be necessary,4 but we also have
been presented with no contemporaneous objection to the trial testimony–only the
pretrial motion in limine that was denied. Nor, we note, is there any argument now
offered by Defendant that the court further erred in the manner it handled the evidence
once the motion in limine had been overruled. We sustain the ruling admitting this
evidence.

         Defendant next challenges the admission of the contents of the 911 call. The
district court held that the 911 call was admissible as both an excited utterance and a
present sense impression. A present sense impression is “[a] statement describing or
explaining an event or condition made while the declarant was perceiving the event or
condition, or immediately thereafter.” Fed. R. Evid. 803(1). Here, McIntosh testified


         3
            Admitting into evidence an anonymous citizen’s statement such as this could also help render
understandable what might otherwise make no obvious sense to a jury (and which could, without
explanation, appear to be some kind of unsavory or illegal targeting of a suspect ). See United States v.
Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (“There are no doubt times when the testimony regarding a tip
from an informant is relevant. If a jury would not otherwise understand why an investigation targeted a
particular defendant, the testimony could dispel an accusation that the officers were officious intermeddlers
staking out Silva for nefarious purposes.”). A statement such as the one given to LaFave can help to
explain the common-sense, legitimate reason that an officer, with or without first making a radio report,
set out to look for a suspect with a gun in a specific car.
         4
            In arguing against Defendant’s motion in limine, the Government stated ,“So we would intend
to offer it and of course the Court would have to give a cautionary instruction, but it would be offered not
for the truth of the matter asserted.” (J.A. 22-23.)
No. 08-1349            United States v. Davis                                                      Page 9


that she made the 911 call within thirty seconds to a minute after seeing Defendant. This
911 call, made “immediately []after” witnessing the described event, is not
distinguishable from one that was contemporaneous with the event itself. It meets the
definition of a present sense impression under Rule 803(1).5 See United States v.
Parker, 936 F.2d 950, 954 (7th Cir. 1991) (holding that statements made about an event
after walking approximately 100 feet or so qualified as a present sense impression under
Rule 803(1)).

         The district court held that the statements made during the 911 call were also
admissible as an excited utterance.6 An excited utterance is “[a] statement relating to
a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition.” Fed. R. Evid. 803(3). The district court
had “some difficulty” fitting the 911 call within the rubric of an excited utterance and
we agree that the statement better fits the present sense impression exception. “The
excited utterance exception is based on the belief that the statement is reliable because
it is made while the declarant is under the stress of excitement. It is unlikely that the
statement is contrived or the product of reflection.” Haggins v. Warden, Fort Pillow
State Farm, 715 F.2d 1050, 1057 (6th Cir. 1983). This circuit has held that there are
three elements for establishing admissibility as an excited utterance. “First, there must
be an event startling enough to cause nervous excitement. Second, the statement must
be made before there is time to contrive or misrepresent. And, third, the statement must
be made while the person is under the stress of the excitement caused by the event.”
Haggins, 715 F.2d at 1057.




         5
            Although McIntosh told the dispatcher it had been five minutes since she saw Defendant, she
later testified that this was incorrect and it had only been between thirty seconds and one minute. Under
either scenario, within the context of witnessing a known acquaintance with a firearm, the statements were
made “sufficiently contemporaneous to satisfy the requirements of Rule 803(1).” Parker, 936 F.2d at 954.
         6
           Both parties state that the district court allowed the statement as an excited utterance, but the
transcript is unclear as to whether the court allowed the statement under both exceptions, or just as a
present sense impression. The transcript seems to suggest that the court considered both exceptions, but
ruled that the testimony fit under the present sense impression exception rather than the excited utterance
exception. Nonetheless, because the parties both assert that the district court found the statements
admissible as an excited utterance, we will address this issue as well.
No. 08-1349        United States v. Davis                                        Page 10


       Here, McIntosh testified that she saw Defendant with a gun and that she was
scared because she thought that Defendant had been involved in a murder which had
recently occurred. McIntosh walked quickly away because she felt responsible for taking
care of the small children in her custody and soon thereafter called 911. Under these
circumstances, the 911 call meets the first and third Haggins elements. Seeing a person
with a gun who is thought to have been involved in a murder is a startling event
sufficient to meet the first Haggins element, particularly when he was seen while
McIntosh was accompanying children for whom she felt responsible. She made the
statement soon enough after the event to satisfy the third prong of the Haggins test,
where she was still under the stress of the event. Under Haggins and its progeny, it does
not matter whether the call was made thirty seconds or five minutes after witnessing the
event. “[O]ur cases do not demand a precise showing of the lapse of time between the
startling event and the out-of-court statement. The exception may be based solely on
‘[t]estimony that the declarant still appeared nervous or distraught and that there was a
reasonable basis for continuing [to be] emotional[ly] upset.’” United States v. Arnold,
486 F.3d 177, 185 (6th Cir. 2007) (en banc) (alterations in original) (quoting Haggins,
715 F.2d at 1058)).

       There is some question as to whether the 911 call meets the second prong of the
Haggins test, that is, whether the statement was made before there was time to contrive
or misrepresent. Despite the small amount of time between witnessing the event and the
911 call, there were certain acknowledged “exaggerations” in McIntosh’s 911 call.
McIntosh told the 911 dispatcher that Defendant had two guns, instead of the one she
testified to, and she told the dispatcher it had been five minutes since she saw him, not
the mere thirty seconds to one minute she later was to relate under oath. These
exaggerations, however, do not preclude the applicability of the excited utterance
exception under Haggins’s second prong. As this circuit has previously held, “a
statement that satisfies all of the elements of our test for excited utterances meets the
threshold for admissibility under Rule 803(2), even though its reliability might be
subject to challenge on such grounds as inconsistency with subsequent statements or the
speaker’s motive to fabricate.” United States v. Hadley, 431 F.3d 484, 498 (6th Cir.
No. 08-1349         United States v. Davis                                         Page 11


2005). Here, the statement meets the second Haggins prong because McIntosh made the
911 call only moments after witnessing the event. The fact that she later stated she made
“exaggerations” goes to the weight, not the admissibility of the 911 call. See id. (“Any
challenges to the reliability of these statements would go to their weight rather than their
admissibility . . .”). Thus, we conclude that the 911 call was properly admitted as an
excited utterance as well as a present sense impression, and we uphold the district
court’s ruling.

3. Confrontation Clause

        Defendant contends that admission of the unidentified woman’s statements
violate the Confrontation Clause of the Sixth Amendment. We disagree. It is true that
“[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the
common law required: unavailability and a prior opportunity for cross-examination.”
Crawford v. Washington, 541 U.S. 36, 68 (2004). “The admission of a testimonial
statement, however, does not necessarily trigger a violation of the Confrontation
Clause.” Gibbs, 506 F.3d at 486 (citing United States v. Pugh, 405 F.3d 390, 399 (6th
Cir. 2005)). Instead, to constitute a Confrontation Clause violation, “the statement must
be used as hearsay – in other words, it must be offered for the truth of the matter
asserted.” Id. (citing Pugh, 405 F.3d at 399). As explained above, the statements made
by the unidentified woman were not offered to prove the truth of the matter asserted, but
only as background for LaFave’s investigation. See id. (holding that introduction of
background evidence to show why a location was searched did not violate the
Confrontation Clause because it was not offered to prove the truth of the matter
No. 08-1349            United States v. Davis                                                    Page 12


asserted).7     Accordingly, the admission of these statements did not violate the
Confrontation Clause.

4. Harmless Error

         Finally, we find that, even if the district court erred in admitting either the 911
call or the unidentified woman’s statements to Officer LaFave, any error was harmless.
“[A]n error by a district court with respect to the admission of evidence is subject to
harmless error analysis, and it is well settled that an error which is not of a constitutional
dimension is harmless unless it is more probable than not that the error materially
affected the verdict.” United States v. Childs, 539 F.3d 552, 559 (6th Cir. 2008) (quoting
United States v. Daniel, 134 F.3d 1259, 1262 (6th Cir. 1998)). “In determining whether
an error is harmless, the reviewing court must take account of what the error meant to
the jury, not singled out and standing alone, but in relation to all else that happened.”
Gibbs, 506 F.3d at 485 (6th Cir. 2007) (quoting United States v. Pugh, 405 F.3d 390, 401
(6th Cir. 2005)). It is more probable than not that the jury would have reached the same
verdict based on other evidence of Defendant’s possession of the gun, including
McIntosh’s live testimony at trial that she actually saw the Defendant riding by flashing
a gun, and Officer Wojczynski’s testimony that he saw Defendant appear to stuff
something under his seat exactly where the gun was later found. In light of this
substantially equivalent evidence of Defendant’s guilt, we find that any evidentiary
errors were harmless. See United States v. Robinson, 389 F.3d 582, 593 (6th Cir. 2004)
(“This admission was not prejudicial since other substantially equivalent evidence of the
same facts had otherwise been admitted into evidence.”).




         7
          The facts of this case are different from those in United States v. Hearn, 500 F.3d 479 (6th Cir.
2007). In Hearn, the district court had allowed the government to introduce the statements of confidential
informants as background information. Id. at 483-84. On appeal, the defendant argued, and we agreed,
that admission of the statements violated his Sixth Amendment right to confront witnesses. Id. at 484.
In Hearn, unlike in this case, the witness testified with unnecessary detail and “[t]he excessive detail
occurred twice, was apparently anticipated, and was explicitly relied upon by the prosecutor in closing
arguments.” Id. In this case, however, the challenged statement was admitted solely to provide
background information and was mentioned only briefly in the Officer’s testimony. Moreover, there is
no evidence, nor even any allegation, that the statement was in any way exploited as an attempted end-run
around the Sixth Amendment. At oral argument, Defendant’s counsel conceded that there was little, if any
mention of the statements in the Government’s closing argument at trial.
No. 08-1349            United States v. Davis                                                     Page 13


B. Sufficiency of the Evidence

1. Standard of Review

         The district court’s denial of a motion for acquittal based on sufficiency of the
evidence is reviewed de novo.8 United States v. Mabry, 518 F.3d 442, 447-48 (6th Cir.
2008). “In reviewing challenges regarding the sufficiency of the evidence presented to
the jury, we are limited to ascertaining whether, viewing the evidence in the light most
favorable to the government, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Carmichael, 232
F.3d 510, 519 (6th Cir. 2000) (internal quotations and citations omitted) (emphasis in
original). “The appellate court must view all evidence and resolve all reasonable
inferences in favor of the government.” United States v. Hughes, 505 F.3d 578, 592 (6th
Cir. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Searan, 259 F.3d 434, 441 (6th Cir. 2001)). In doing so, however, the court cannot
independently weigh the evidence nor substitute its judgment for that of the jury.
Id. (citations omitted). Thus, “[a] defendant bringing such a challenge bears a ‘very
heavy burden.’” United States v. Daniel, 329 F.3d 480, 485 (6th Cir. 2003) (quoting
United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986)).

2.       Discussion

         To obtain a conviction for being a felon in possession of a firearm under
18 U.S.C. § 922(g)(1), the Government must prove beyond a reasonable doubt “(1) that
the defendant has a prior conviction for a crime punishable by imprisonment for a term
exceeding one year; (2) that the defendant thereafter knowingly possessed the firearm
and ammunition specified in the indictment; and (3) that the possession was in or

         8
           The Government contends that we should review only to determine whether there was a
“manifest miscarriage of justice,” which is the appropriate standard when a defendant fails to renew a
motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 at the close of all
proofs. United States v. Abdullah, 162 F.3d 897, 903 (6th Cir. 1998). “A ‘miscarriage of justice’ exists
only if the record is ‘devoid of evidence pointing to guilt.’” Id. (citation omitted). However, portions of
the relevant transcript are missing, and it is unclear from the record what occurred after the original Rule
29 motion, made after the close of the Government’s case, was denied. It appears that Defendant did not
offer any evidence and the case went directly to the jury after the Government’s case. Nonetheless, we
need not determine whether a renewed Rule 29 motion was made or whether it was even necessary,
because, as discussed below, even under a de novo standard Defendant’s conviction will be upheld.
No. 08-1349        United States v. Davis                                        Page 14


affecting interstate commerce.” Schreane, 331 F.3d at 560 (citing United States v.
Daniel, 134 F.3d 1259, 1263 (6th Cir. 1998)). Defendant challenges only the second
element, whether there was sufficient evidence that he knowingly possessed the firearm.
“Actual or constructive possession is sufficient to give rise to criminal liability under
§ 922(g).” Schreane, 331 F.3d at 560 (citing United States v. Murphy, 107 F.3d 1199,
1207 (6th Cir. 1997)). “Both actual and constructive possession may be proved by
circumstantial evidence.” Id. (citation omitted).

       Defendant argues that no rational jury could find actual or constructive
possession because, at most, the Government only proved that Defendant was present
near the gun. It is true that “[m]ere presence on the scene plus association with illegal
possessors is not enough to support a conviction for illegal possession of an unregistered
firearm. Presence alone cannot show the requisite knowledge, power, or intention to
exercise control over the unregistered firearms.” United States v. Birmley, 529 F.2d 103,
107-108 (6th Cir. 1976) (citations omitted). “However, other incriminating evidence,
coupled with presence, . . . will serve to tip the scale in favor of sufficiency.”
Id. (citations omitted). In this case, the Government produced ample evidence for the
jury to find that Defendant knowingly possessed a firearm. McIntyre testified that she
saw and recognized Defendant, who rode along flashing a gun. The jury could
reasonably credit her testimony, especially in light of Officer Wojczynski’s testimony.
Officer Wojczynksi testified that after they stopped the PT Cruiser, he saw Defendant
appear to stuff something under his seat and that when he searched the car he found the
gun exactly where Defendant was observed to be reaching. Defendant offers various
theories about why this evidence should be discounted – for example, that any of the
four occupants in the vehicle could have been responsible for the gun, and that
Defendant could have been throwing only the marijuana under the seat and not the gun.
While these and other possible theories may be inventive or interesting, they are
unavailing since we must draw all reasonable inferences in favor of the government.
Hughes, 505 F.3d at 592. Indeed, “‘[s]ubstantial and competent’ circumstantial evidence
by itself may support a verdict and need not ‘remove every reasonable hypothesis except
No. 08-1349        United States v. Davis                                       Page 15


that of guilt.’” United States v. Lee, 359 F.3d 412, 418 (6th Cir. 2004) (quoting United
States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984)).

       The evidence of Defendant’s guilt was abundant. Any “rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’”
Carmichael, 232 F.3d at 519 (6th Cir. 2000) (quoting Jackson, 443 U.S. at 319).

                                III. CONCLUSION

       Defendant’s conviction is AFFIRMED.
