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United States v. Bailey, No. 06?5576 (6th Cir. Jan . 20, 2009).

Opinion by Judge Moore.
Granted petition for rehearing and amended portions of panel opinion. Reversed the defendant?s convictions under Sections 922(g)(1) and 924(c)(1)(A)(i). Affirmed conviction under Section 841(a)(1).

Defendant raised sufficiency-of-the-evidence claim. Court found that any conclusions it had made based on evidence only admitted for impeachment purposes were erroneous. Without this evidence, there was insufficient evidence to uphold firearms convictions. Issue was whether there was sufficient evidence that defendant "possessed" the firearm. Opinion goes into "constructive possession."

Some points of note:

*The mere fact that the defendant "was driving the car in which the police found the
firearm is not enough to establish dominion over the premises and thereby dominion and
control over the firearm." Id. at 9.
*To determine that a defendant had "constructive possession" over a firearm requires "additional circumstantial evidence beyond the defendant?s having driven the car in which the firearm was found." Id.
*The defendant did attempt to evade arrest, but this evasion "proves little because [defendant] might well have taken this action in an effort to evade detection of the two bags of crack cocaine found in his pants." Id. at 6.
*A holding that driving a car as its lone occupant suffices to establish "constructive possession" of a firearm found beneath the driver?s seat would "institute an untenable strict-liability regime for constructive possession" under there firearm statutes. Id. at 10.
*"Because the evidence in this case is limited to the fact that [defendant] was driving the
car in which police found the loaded gun, there exists insufficient evidence for any
rational factfinder to conclude beyond a reasonable doubt that [defendant] had constructive
possession of the gun." Id. at 12.
*Evidence admitted only for impeachment purposes cannot be considered by a court considering the sufficiency of the evidence to support a conviction. Id. at 12?13.

There was a dissent/concurrence by Judge Griffin:

Disagreed with conclusion that without the impeachment evidence (as substantive evidence) "the evidence is insufficient for any rational juror to find [defendant] guilty of possession of a
firearm" in violation of the statutes. Id. at 15 (Griffin, J., dissenting in part and concurring in part).

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