United States v. Gilliam

934 F.3d 854 (2019) United States Court of Appeals for the Eighth Circuit 2019-08-20

criminal appeal after jury conviction on two ยง 922(g)(1) counts for the same firearm on two dates; multiplicity (merger) argument raised for the first time on appeal and reviewed for plain error; affirmed (result: claimant-won)

Facts

  1. 2 Actual or constructive possession not no-evidence
    Gilliam drew a .40 caliber Glock Model 23 from his waistband and fired three times.
  2. 2 Actual or constructive possession satisfied proved
    He was unarmed and coated with drywall and insulation.
  3. 2 Actual or constructive possession satisfied proved
    In the attic, officers found a handgun-the same handgun used to shoot Scrivo-underneath some insulation.
  4. 2 Actual or constructive possession satisfied proved
    The government presented sufficient evidence from which a reasonable jury could find that Gilliam possessed the gun at Bailey's apartment.
  5. 2 Actual or constructive possession satisfied proved
    When Detective Bray asked Bailey if Gilliam had a gun, she said that he did.
  6. 2 Actual or constructive possession satisfied proved
    When Gilliam eventually surrendered by coming out of the apartment, he had drywall dust and insulation on him.
  7. 2 Actual or constructive possession satisfied proved
    Additionally, the government introduced Gilliam's phone call to Calvillo from jail, in which he instructed Calvillo to take responsibility for possessing the gun.
  8. 2 Actual or constructive possession not no-evidence
    Constructive possession means that a person "has ownership, dominion or control over the [firearm] itself, or dominion over the premises in which the [firearm] is concealed ."
  9. 2 Actual or constructive possession not no-evidence
    When he left Jeffrey's apartment, he gave no instruction for the gun's transport or disposition.
  10. 2 Actual or constructive possession not no-evidence
    There are no facts in the record to demonstrate that Gilliam knew where the gun would be after leaving Jeffrey's apartment or controlled how it would arrive to any new location.
  11. 2 Actual or constructive possession not no-evidence
    The evidence places Gilliam in possession of the same firearm in different locations and on different days with the weapon in someone else's (Jeffrey's) exclusive possession for at least some period of time in the interim.
  12. 2 Actual or constructive possession not no-evidence
    Gilliam did not constructively possess the firearm after leaving it at Jeffrey's because he had no dominion over Jeffrey's apartment. Gilliam also had no dominion over Bailey's apartment.