Submitted: March 8, 2017
from United States District Court for the Western District of
Missouri - Kansas City
RILEY,  Chief Judge, GRUENDER, Circuit
Judge, and GRITZNER,  District Judge.
April 2014, police officers began investigating Marcus
McIntosh to determine whether he was involved in a conspiracy
to traffic crack cocaine. The investigation culminated when
officers obtained a warrant and searched a home McIntosh
owned (but did not permanently reside in), where they found
drugs, marked money, and several firearms. McIntosh was
indicted on several drug and gun related counts. The case
went to trial, and the jury found McIntosh guilty of five of
the six charges filed against him, including one for being a
felon in possession of a firearm. See 18 U.S.C.
§ 922(g)(1). The district court sentenced McIntosh to 180
months in prison on each count, to be served concurrently.
See id. § 924(e)(1) (statutory minimum).
McIntosh raises only one issue on appeal: whether the
government presented sufficient evidence to establish he
knowingly possessed a firearm. We conclude there was sufficient
evidence, and therefore affirm. See 28 U.S.C. §
1291 (appellate jurisdiction).
moved for a judgment of acquittal after the government
finished presenting its evidence at trial. See Fed.
R. Crim. P. 29(a) ("[T]he court on the defendant's
motion must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a
conviction."). The district court denied the motion, and
the jury found McIntosh did indeed possess a gun. "We
review the denial of a motion for judgment of acquittal
de novo, viewing the evidence and all reasonable
inferences in the light most favorable to the jury's
verdict." United States v. McDonald,
826 F.3d 1066, 1072 (8th Cir. 2016) (per curiam). Thus
McIntosh can prevail only if no reasonable jury could have
found he knowingly possessed a firearm beyond a reasonable
doubt. See id. With that perspective in mind, we
recount the evidence offered at trial.
the Kansas City Police Department (Missouri) learned about
McIntosh's potential drug-dealing activities in spring
2014, Detective Don Stanze spearheaded an investigation into
McIntosh and his two suspected accomplices, brothers Tyrone
and Tyronn Campbell. Detective Stanze worked with two
confidential informants and several undercover detectives to
organize and execute a string of controlled buys over the
months that followed. Of relevance here are four controlled
buys occurring at 3910 Flora Avenue, a single-story house
McIntosh owned. Though McIntosh maintained another residence
and did not live at 3910 Flora, his then-girlfriend, Sherita
Hardison, did live at the Flora house. It is unclear how
often McIntosh stayed the night, however, Hardison testified
McIntosh "was there almost every day."
last controlled buy occurred on August 8, 2014, when a
confidential informant used marked money to purchase crack
cocaine from McIntosh at 3910 Flora. Not long after the deal
was complete, officers served a knock and announce warrant,
and the tactical team found McIntosh in the living room and
arrested him. Hardison was also arrested. At trial, the
government presented a considerable amount of evidence seized
during the search. Most relevant for our purposes are the
three guns found in the bedroom where Hardison (and, on
occasion, McIntosh) slept: there was a .22-caliber Ruger
semiautomatic pistol sitting in plain view on top of a
nightstand, next to a piece of mail addressed to McIntosh and
a small amount of crack cocaine; a 9mm PW Arms pistol hidden
between the mattresses; and a 12-gauge shotgun resting
against an entertainment center. Officers also found items
indicative of drug dealing elsewhere in the house-digital
scales, ingredients and equipment used to make crack cocaine,
and a safe containing crack cocaine and most of the marked
money from that day's deal.
Stanze interviewed both McIntosh and Hardison at the police
station shortly after the search concluded, and the officer
testified about these interrogations at trial. McIntosh and
Hardison each claimed the guns belonged to a man named Curly
Pouncil, who had brought the guns to 3910 Flora about a month
and a half earlier while he was renting a room in the
basement. Most notably, Detective Stanze said McIntosh
"admitted . . . that he knew the guns were there, that
he had handled the firearms, had moved the firearms from
place to place, and on a couple of occasions had actually
taken one of the firearms to investigate a disturbance . . .
that was going on outside of his residence." This
conflicted with what Hardison-who admittedly was
"very" high on crack cocaine during the post-arrest
interview-first told Detective Stanze, when she claimed
McIntosh never handled the weapons. Hardison changed her
story at trial, testifying that although McIntosh did not
carry a gun around on a day to day basis, he handled the
weapons when he needed them for their "protection"
and would "sit at the table with [a gun] when he was
cutting up" drugs.
attacks the adequacy of this evidence in several ways. He
first takes aim at the government's evidence suggesting
he had constructive possession of the guns. See
United States v. Battle, 774 F.3d 504, 511 (8th Cir.
2014) ("The government can prove knowing possession by
showing actual or constructive possession, and possession can
be sole or joint. Constructive possession is established if
the person has dominion over the premises where the firearm
is located, or control, ownership, or dominion over the
firearm itself." (citation and internal quotation marks
omitted)). McIntosh emphasizes he did not permanently reside
at 3910 Flora with Hardison, yet this fact does not negate
the possibility of constructive possession. For instance, in
United States v. Butler we upheld a jury verdict
where the gun was found between the mattress and box springs
in a home owned by the defendant's girlfriend, even
though the defendant "maintained a separate
apartment." United States v. Butler, 594 F.3d
955, 964 (8th Cir. 2010). The evidence showed the defendant
had been staying with his girlfriend "for some period of
time, " appeared to use the house for drug trafficking,
and was present when the search occurred. Id. at
964-65. The gun was hidden in the south part of the bed,
which was the same side of the room that officers found the
defendant's wallet and a few other personal effects.
See id. The Butler facts are not so
different than the facts here. Yes, McIntosh maintained a
different residence. But there is evidence to indicate
McIntosh was at 3910 Flora-a house he owned, unlike the
defendant in Butler-"almost every day, "
used the residence to store and sell drugs, and was present
during the search. One of the guns was found right by a piece
of mail addressed to McIntosh at 3910 Flora. This is all
circumstantial evidence McIntosh had constructive possession
of the guns. See id. at 965 ("Constructive
possession of a firearm . . . may be established with
also attempts to marginalize the evidence that suggests he
ever exercised actual possession over the guns. The
bulk of McIntosh's argument on this point is spent
attacking Hardison's credibility. McIntosh's arsenal
for this attack is well-stocked. Hardison admitted she
changed her story somewhere between the first interrogation
and the trial (though Hardison was "very" high on
crack at the first interview). Hardison acknowledged the
government encouraged her to cooperate and she had not yet
been charged for her own involvement. In addition, not only
was Hardison no longer romantically involved with McIntosh,
she was now pitted against him (and his new girlfriend) in a
civil suit in which McIntosh sought to evict her from 3910
Flora and she counterclaimed for "lies being told
against" her. Given these concerns, we agree a jury
would have had ample reason to discredit Hardison.
"But weighing the evidence and assessing the credibility
of witnesses are 'exclusively for the jury.'"
United States v. Ellis, 817 F.3d 570, 577 (8th Cir.
2016) (quoting United States v. Kirk, 528 F.3d 1102,
1111 (8th Cir. 2008)). McIntosh raised these credibility
issues at trial, and they "were for the jury-not the
court-to resolve." Id.; accord Butler,
594 F.3d at 964 ("We do not weigh the evidence or assess
the credibility of witnesses.").
Hardison's testimony supports the verdict,  so does the
admission McIntosh made to Detective Stanze. McIntosh also
complains the video recording of his interrogation was never
played for the jury, yet McIntosh never objected nor did he
offer the recording himself. We see nothing wrong with
submitting McIntosh's statement through Detective
Stanze's testimony. See also, e.g.,
United States v. Boyd, 180 F.3d 967, 978-79 (8th
Cir. 1999) (determining ...