                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0066n.06

                                            No. 06-6546

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                    FILED
                                                                                     Feb 03, 2010
                                                                               LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE EASTERN
                                       )                  DISTRICT OF KENTUCKY
JERRY SAMPSON SPENCER,                 )
                                       )
                                                                 OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: GIBBONS, SUTTON, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. A jury convicted defendant Jerry Sampson Spencer

of three counts of distributing a controlled substance, 21 U.S.C. § 841(a)(1), four counts of

intentionally possessing with the intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1),

and possessing a firearm after having been convicted of a crime punishable by imprisonment for a

term exceeding one year (felon in possession of a firearm), 18 U.S.C. § 922(g)(1). The district court

denied Spencer’s motion for judgment of acquittal on the felon in possession of a firearm count, and

sentenced him to 58 months’ imprisonment.1 Spencer appeals, challenging the sufficiency of the

evidence on the felon in possession of a firearm count. We AFFIRM.

                                                  I


        1
         The court sentenced Spencer to 58 months on seven of the counts, including the felon in
possession of a firearm count, and to 36 months on count 7 (possession with intent to distribute
Xanax), all terms to be served concurrently.
No. 06-6546
United States v. Spencer

       A paid undercover informant working with Operation UNITE2, a drug task force, testified that

he purchased drugs from Spencer at Spencer’s residence three times in July 2005. At the first buy

on July 2, 2005, Spencer and his wife were present. The informant entered the residence through the

front door into the living room, where he observed a gun cabinet made of glass that contained rifles,

including one with a scope. Spencer sold him four Lortabs in the kitchen. The second buy, on July

5, 2005, was of methadone and took place in the master bedroom, where the informant observed a

couple of shotguns and a pistol on the night stand. The informant testified he could not recall whether

anyone other than Spencer was present during the second buy. At the third buy, on July 14, 2005,

Spencer and his wife were present. Spencer retrieved Tylox capsules from a small bag and sold them

to the informant in the kitchen. When asked whether he observed firearms during the third buy, the

informant testified that he had not paid attention.

       Later on July 14, 2005, UNITE detectives executed a search warrant at Spencer’s residence.

Spencer was outside the residence with another man, Dustin Spaulding, moving a refrigerator.

Detectives searched Spaulding and found nothing on him. Spencer’s wallet contained over $5,000

cash. Detective Keith Napier searched the kitchen and located a mesh bag on the kitchen table that

contained numerous pills, including 100 Tylox pills, 55 Hydrocodone pills, as well as 14 Fentanyl

patches, unlabeled prescription bottles and two bags of marijuana. A digital scale was found on the

kitchen stove.




        2
            “UNITE” stands for Unlawful Narcotics Investigations, Treatment and Education.

                                                  2
 No. 06-6546
 United States v. Spencer

        Detective Craig Burch, who had obtained the deed for the residence, searched the master

bedroom. Burch testified that a Marlin .22 caliber rifle was leaning against a master bedroom wall

and that he found 525 .22 caliber rounds in an open box in the night stand. Men’s and women’s

clothing, and adult magazines, were strewn around the master bedroom, but no children’s clothes.

Burch testified that he also walked through the entire residence and found a Marlin .22 caliber long

semi-automatic rifle in the upstairs hallway next to the stairs leading to the basement, and three

shotguns in the basement: a Stevens 9478 single-shot 12-gauge shotgun; a Harrington & Richardson

model 58 410-gauge shotgun; and a New England Firearms model SB1 20-gauge shotgun. A round

of 410-shotgun ammunition was found in the basement–apart from that, all the ammunition was

found in the master bedroom. Bureau of Alcohol, Tobacco and Firearms Special Agent Teal testified

that each of the five firearms seized functioned as designed. Teal had to take one of the .22 caliber

rifles to a specialist to remove the trigger lock before he could function test it. Teal testified that the

different types of ammunition recovered during the search included ammunition that would have

worked in all but one of the firearms. Bureau of Alcohol, Tobacco and Firearms agent Hicks, an

expert witness regarding trafficking of controlled substances, testified that the controlled substances

located at the residence were consistent with distribution rather than personal use, and that the

presence of firearms was typical in trafficking cases for protection of drugs and money.

        The district court denied Spencer’s motion for directed verdict on the felon in possession of

a firearm count. The defense called no witnesses.

                                                    II



                                                    3
 No. 06-6546
 United States v. Spencer

        We review de novo the district court’s denial of Spencer’s motion for a judgment of acquittal,

and must determine “whether, 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.” United States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002) (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)). “Circumstantial evidence alone is sufficient to sustain a conviction and

such evidence need not remove every reasonable hypothesis except that of guilt.” United States v.

Kelley, 461 F.3d 817, 825 (6th Cir. 2006) (quoting United States v. Spearman, 186 F.3d 743, 746 (6th

Cir. 1999)).

        To sustain a conviction of 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 affecting interstate commerce. United States v. Schreane, 331

F. 3d 548, 560 (6th Cir. 2003).

        Only the element of possession is in dispute in the instant case.3 Actual or constructive

possession is sufficient to give rise to criminal liability under § 922(g)(1). United States v. Campbell,

549 F.3d 364, 374 (6th Cir. 2008). “Constructive possession exists when a person does not have

possession but instead knowingly has the power and intention at a given time to exercise dominion



         3
         The parties stipulated to Spencer’s status as a convicted felon, R. 51, p. 100-01, and Spencer
 does not dispute that the five firearms were manufactured outside the state of Kentucky, as testified
 to by Bureau of Alcohol, Tobacco and Firearms Special Agent Jesse Hooker, R. 52, p. 88.

                                                   4
 No. 06-6546
 United States v. Spencer

and control over an object, either directly or through others.” United States v. Grubbs, 506 F.3d 434,

439 (6th Cir. 2007) (quoting United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973)). Proof

that a person has dominion over the premises where the firearm is located is sufficient to establish

constructive possession. United States v. Bailey, 553 F.3d 940, 944 (6th Cir. 2009). Where a

defendant is in nonexclusive possession of premises in which illicit contraband is found, it cannot be

inferred that he knew such contraband was present and had control of it unless there are other

incriminating statements or circumstances tending to buttress such an inference. Id. at 945 n.3.

       Spencer asserts that no rational trier of fact could have found him to be in either actual or

constructive possession of the firearms. We disagree.

       Spencer owned the home where the firearms were found. The informant observed a gun

cabinet containing rifles in the living room when he was at Spencer’s residence on July 2, 2005 to

purchase drugs. The informant was shown a photograph of the rifle found in the master bedroom

during the execution of the search warrant and testified that it was one of the rifles he observed in the

gun cabinet. Only Spencer and his wife were present at the residence on that date. The informant

also observed shotguns and a pistol in the master bedroom on July 5, 2005, when he bought drugs

from Spencer in the master bedroom. Five firearms were seized from the home on July 14, 2005.

One of the firearms and all but one round of ammunition were found in the master bedroom, along

with other personal items including men’s and women’s clothing, adult magazines and a prescription

bottle. Spencer did not contend that the personal items were not his. Although the firearms were not




                                                   5
No. 06-6546
United States v. Spencer

loaded when the search warrant was executed, ammunition for four of the five firearms was accessible

in the master bedroom.4

       All the evidence supported the reasonable inference that Spencer had knowledge of, and

dominion and control over the firearms. No evidence supported an inference that they belonged to

his children, and the most generous inference in Spencer’s favor would be that he possessed the

firearms jointly with his wife.

       We conclude that the district court properly denied Spencer’s motion for acquittal, as there

was sufficient evidence to support a finding that Spencer constructively possessed the firearms

specified in the indictment. We AFFIRM.




        4
         The facts in United States v. Bailey, 553 F.3d 940 (6th Cir. 2009), on which Spencer relies,
stand in stark contrast to the instant case. After evading the police, Bailey was stopped while driving
a stolen car and a loaded gun was found underneath his seat. Bailey testified at trial that he was
unaware of the gun, had not put a gun inside the car, and did not have a gun on his person when he
got in the car. There were no fingerprints on the gun and other persons had used the car on the night
of Bailey’s arrest and in the preceding days. Id. at 946-47. This court found the evidence
insufficient to support the jury’s verdict, noting that “[t]he mere fact that Bailey was driving the car
in which the police found the firearm is not enough to establish dominion over the premises and
thereby dominion and control over the firearm.” Id. at 947.

                                                  6
