United States v. Gilliam — 934 F.3d 854 (2019) · United States Court of Appeals for the Eighth Circuit · 2019

United States Court of Appeals for the Eighth Circuit · 2019-08-20

18usc922: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)

Original case on neochart.com

Case and law context

18 U.S.C. § 922(g)

Role: applied; posture: criminal appeal after jury conviction on two § 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; claim:

Uncertainty

Element possession: route: the court says only "possessed"; the evidence is that he personally hid the gun in the attic (handling), and the court separately says he had no dominion over Bailey's apartment, so `actual` rather than `constructive`

Element possession: scope: decided on plain-error review of an unpreserved multiplicity claim, with the burden on the defendant; kept as merits because the court applies the constructive-possession test to this case's facts, but a consumer must not read "not-satisfied" as a government loss

Element possession: basis: `no-evidence` is used for "no facts in the record"; the party who failed to show possession is the defendant, not the claimant

Misfit

None recorded

B · Case × element grid

Top-level elements follow claim order in panels of up to six elements. Case rows repeat across panels. Every recorded block retains its holding and basis; multiple blocks are not merged into a case-level verdict. ✓ satisfied · ✗ not satisfied · ○ not reached · · not addressed. Muted blocks are not counted. Sub-element evidence remains on case and element pages.

Elements 1–6 of 12

18 U.S.C. § 922(g)
CaseOne applicable prohibited categorySection 925(a)(1) government-use firearm or ammunition exceptionActual or constructive possessionFirearm or ammunition under section 921Possession in or affecting commerceKnowledge of possessing the firearm or ammunition
United States v. Gilliam — 934 F.3d 854 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 (18usc922: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md))· not addressed· not addressed· not addressed· not addressed· not addressed

Elements 7–12 of 12

18 U.S.C. § 922(g)
CaseKnowledge of the relevant disqualifying statusSecond Amendment limit on the unlawful-user theory applied to HemaniShip or transport in interstate or foreign commerceKnowing shipping, transportation or receiptReceipt of the prohibited objectReceived object previously shipped or transported across borders
United States v. Gilliam — 934 F.3d 854 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 (18usc922: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md))· not addressed· not addressed· not addressed· not addressed· not addressed· not addressed

Instances and excluded annotation blocks

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopePatternExact source quotations
United States v. Gilliam — 934 F.3d 854 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 — satisfied · proved (18usc922: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md))Actual or constructive possessionsatisfied
Counted merits instance
applied / merits

basis: proved; party: Rico Gilliam; count: second § 922(g)(1) count -- possession of the same Glock at Bailey's apartment on November 6, 2014; subject: party=Rico Gilliam; count=second § 922(g)(1) count -- possession of the same Glock at Bailey's apartment on November 6, 2014

Sufficiency of the second possession, decided as the first step of the multiplicity argument. The first possession (the shooting at Jeffrey's apartment) was admitted and has no block.
gun hidden under attic insulation of another person's apartment during a police standoff; defendant emerged covered in drywall dust
When Detective Bray asked Bailey if Gilliam had a gun, she said that he did.
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [7229:7305] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

When Gilliam eventually surrendered by coming out of the apartment, he had drywall dust and insulation on him.
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [7306:7416] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

In the attic, officers found a handgun-the same handgun used to shoot Scrivo-underneath some insulation.
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [3007:3111] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Additionally, the government introduced Gilliam's phone call to Calvillo from jail, in which he instructed Calvillo to take responsibility for possessing the gun.
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [7576:7738] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

He was unarmed and coated with drywall and insulation.
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [2591:2645] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The government presented sufficient evidence from which a reasonable jury could find that Gilliam possessed the gun at Bailey's apartment.
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [6848:6986] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

United States v. Gilliam — 934 F.3d 854 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 — not · no-evidence (18usc922: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md))Actual or constructive possessionnot
Counted merits instance
applied / merits

basis: no-evidence; party: Rico Gilliam; count: the uncharged interim between the October 17 shooting at Jeffrey's apartment and the November 6 arrest (continuous-possession / multiplicity argument); subject: party=Rico Gilliam; count=the uncharged interim between the October 17 shooting at Jeffrey's apartment and the November 6 arrest (continuous-possession / multiplicity argument)

Here it is the DEFENDANT who asserts possession (continuous, so that the two counts merge); the court finds no constructive possession during the interim, which is why two counts stand.
gun left with a third party who carried it elsewhere; no instruction, no knowledge of its whereabouts, no dominion over either apartment
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 ."
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [8766:8941] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 1 (1 = tagged; 0 = not tagged)

When he left Jeffrey's apartment, he gave no instruction for the gun's transport or disposition.
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [9238:9334] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.

Evidence kind: fact; polarity: cuts-against; absent flag: 1; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [9335:9512] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.

Evidence kind: fact; polarity: cuts-against; absent flag: 1; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [9935:10157] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Gilliam drew a .40 caliber Glock Model 23 from his waistband and fired three times.
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [985:1068] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [10282:10469] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Court interpretations recorded from this case

interpretation

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 ."

United States v. Gilliam — 934 F.3d 854 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 (18usc922: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md))

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 ."
Source: docroot/ir/caselaw/f3d_934.jsonl#/f3d/934/0854-01; Unicode character offsets [8766:8941] (end exclusive); SHA-256 2e08976bfab5ab7797deea351bac1ee5e91126d5ca3cef2eee7c97cb3ac373bb.