65 F.4th 287
6th Cir.2023Background
- Shortly before 1:00 a.m., police responded to a "shots fired" call and found an apartment with blood, gunpowder odor, a spent shell casing, and items scattered; Ivan Crump was the only person inside, wearing only a towel.
- Officers performed a protective sweep and observed a 9mm pistol and an AK-style (Draco/RAS47) pistol in plain view in a bedroom near mason jars of marijuana; they later obtained and executed a search warrant and seized both firearms, ammunition, 870 g of marijuana (packaged for resale), 27.3 g of crack, scales, drug paraphernalia, multiple cellphones, and documents in Crump’s name.
- Jail-call recordings admitted at trial contained statements by Crump admitting he had fired a gun, discussing the seized guns/drugs/phones, and expressing intent to return to drug trafficking; text messages and phone contacts supported knowledge/use of multiple phones and requests for an AK-47.
- Crump was indicted and convicted under 18 U.S.C. §§ 922(g)(1) and 924 for being a felon in possession of firearms and ammunition; the district court instructed on actual and constructive possession and declined Crump’s requested special unanimity instruction.
- At sentencing the court found, by a preponderance, that the firearms were possessed "in connection with" a controlled-substance offense (applying the fortress theory) and imposed an armed-career-criminal–era enhanced sentence (downward variance to 210 months); Crump appealed.
Issues
| Issue | Crump's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support § 922(g) possession (actual or constructive) | Evidence showed only presence in apartment; no direct proof he possessed the guns | Circumstantial evidence plus jail calls, blood on gun/Crump, proximity to drugs, ID documents support actual possession of the Draco and constructive possession of both guns and ammo | Affirmed: a rational juror could find actual possession of the Draco and constructive possession of guns/ammo |
| Jury instructions: (1) instruction on actual possession; (2) special unanimity instruction for theory of possession | (1) No evidence supported an actual-possession instruction; (2) jury must unanimously agree on the theory (actual vs constructive) for the Draco | (1) Evidence supported actual-possession instruction; (2) actual vs constructive are means to prove the element of possession—no special unanimity required | (1) No plain error in giving actual-possession instruction; (2) no abuse of discretion in denying requested unanimity instruction |
| Lay-witness testimony (Detective Hughes testified about a drug ledger) | Detective Hughes improperly gave lay testimony characterizing an exhibit as a drug ledger | Trial court excluded Hughes’s contested testimony under Rule 701 and instructed jury to disregard what it had heard | No abuse of discretion—the court excluded the testimony and cured any concern by instructing the jury to disregard it |
| Sentencing enhancement: firearms possessed "in connection with" controlled-substance offense (fortress theory) | District court failed to show sufficient nexus between guns and drugs to support enhancement | Guns were adjacent to large, resale-packaged drugs and paraphernalia; defendant trafficked (multiple phones, packaged marijuana, scales); fortress theory applies to find nexus by preponderance | Affirmed: district court’s factual finding not clearly erroneous; enhancement and sentence were reasonable |
Key Cases Cited
- United States v. Ward, 957 F.3d 691 (6th Cir. 2020) (elements for § 922(g) conviction)
- Latimer v. United States, 16 F.4th 222 (6th Cir. 2021) (standard for sufficiency review)
- United States v. Washington, 702 F.3d 886 (6th Cir. 2012) (reviewing sufficiency with all reasonable inferences for government)
- United States v. Brooks, 987 F.3d 593 (6th Cir. 2021) (actual possession requires physical control but no minimum duration)
- United States v. Bailey, 553 F.3d 940 (6th Cir. 2009) (constructive possession requires power and intent to exercise dominion and control)
- United States v. Moreno, 933 F.2d 362 (6th Cir. 1991) (definition of constructive possession)
- United States v. Walker, 734 F.3d 451 (6th Cir. 2013) (minimal quantum of evidence needed when defendant is near contraband)
- United States v. Newsom, 452 F.3d 593 (6th Cir. 2006) (circumstantial and direct evidence can establish possession)
- Richardson v. United States, 526 U.S. 813 (1999) (unanimity requirement and distinction between elements and means)
- United States v. Hendrickson, 822 F.3d 812 (6th Cir. 2016) (standard for review of refusal to give specific unanimity instruction)
- United States v. DeJohn, 368 F.3d 533 (6th Cir. 2004) (no unanimity required as to which firearm satisfied possession element)
- United States v. Shanklin, 924 F.3d 905 (6th Cir. 2019) (fortress theory and proximity analysis for "in connection with" determinations)
- United States v. Goodman, 519 F.3d 310 (6th Cir. 2008) (similar application of "in connection with" language across guidelines)
- United States v. Ennenga, 263 F.3d 499 (6th Cir. 2001) (large drug stash near guns supports fortress theory)
- United States v. Seymour, 739 F.3d 923 (6th Cir. 2014) (application of fortress theory in sentencing)