United States v. Marcus McIntosh, 2017 U.S. App. LEXIS 10920

In April–August 2014, Kansas City police investigated Marcus McIntosh for alleged crack-cocaine trafficking; McIntosh owned (but did not permanently live in) 3910 Flora Avenue where his girlfriend Sherita Hardison resided.
Four controlled buys occurred at the Flora house; on August 8, 2014 officers effected a warrant, arrested McIntosh in the living room, and searched the home.
In the bedroom where Hardison (and sometimes McIntosh) slept, officers found three firearms (a .22 Ruger on a nightstand beside mail addressed to McIntosh, a 9mm hidden between mattresses, and a 12-gauge shotgun), crack cocaine, marked buy money (in a safe), and drug paraphernalia.
Detective Stanze testified McIntosh admitted he knew the guns were there, had handled and moved them, and on some occasions took a gun to investigate disturbances; Hardison testified at trial that McIntosh handled guns for protection and when cutting drugs (she had earlier given inconsistent statements).
McIntosh was indicted and convicted of multiple counts, including being a felon in possession of a firearm under § 922(g)(1); he moved for judgment of acquittal which the district court denied and appealed only the sufficiency of the evidence of knowing possession.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence that McIntosh knowingly possessed firearms	Gov: constructive and actual possession supported by ownership of house, presence at search, gun by mail addressed to McIntosh, drug trafficking evidence, and McIntosh’s admissions	McIntosh: did not permanently reside at Flora, guns belonged to tenant Curly Pouncil, Hardison unreliable, no forensic or surveillance evidence tying him to firearms, interrogation video not played	Affirmed: viewing evidence in light most favorable to verdict, sufficient circumstantial and testimonial evidence of constructive and actual possession
Weight/credibility of Hardison’s testimony	Gov: Hardison’s trial testimony corroborates possession and handling	McIntosh: Hardison changed statements, was intoxicated at first interview, had motives to lie	Rejected as appellate ground; credibility for jury to decide
Reliance on post-arrest admissions	Gov: Detective’s testimony about McIntosh’s admissions admissible and probative	McIntosh: interrogation video not played to jury; challenges to how admission presented	Court allowed officer’s testimony about admissions; no objection below was fatal
Ownership vs possession	Gov: ownership irrelevant to possession; presence and control suffice	McIntosh: guns belonged to Pouncil so he did not possess them	Court: ownership does not preclude finding possession; conviction stands

United States v. McDonald, 826 F.3d 1066 (8th Cir. 2016) (standard for reviewing denial of judgment of acquittal)
United States v. Battle, 774 F.3d 504 (8th Cir. 2014) (constructive possession may be shown by dominion over premises or firearm)
United States v. Butler, 594 F.3d 955 (8th Cir. 2010) (constructive possession upheld where defendant stayed at girlfriend’s home and used it for drug trafficking)
United States v. Ellis, 817 F.3d 570 (8th Cir. 2016) (credibility assessments are for the jury)
United States v. Kirk, 528 F.3d 1102 (8th Cir. 2008) (same)
United States v. Boyd, 180 F.3d 967 (8th Cir. 1999) (officer testimony about defendant’s post-arrest admission can support conviction)
United States v. Varner, 678 F.3d 653 (8th Cir. 2012) (forensic evidence not required to prove possession)
United States v. Boykin, 986 F.2d 270 (8th Cir. 1993) (ownership is irrelevant to possession)
United States v. Opare-Addo, 486 F.3d 414 (8th Cir. 2007) (appellate courts avoid probing jurors’ motives for inconsistent verdicts)