UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4899

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

FRANK BAILEY, 

 Defendant – Appellant. 

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:07-cr-00559-RDB-1) 

Submitted: April 24, 2009 Decided: May 22, 2009 

Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Thomas L. Crowe, LAW OFFICES OF THOMAS L. CROWE, Baltimore, 

Maryland, for Appellant. Rod J. Rosenstein, United States 

Attorney, Debra L. Dwyer, Assistant United States Attorney, 

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 After a jury trial, Frank Bailey was convicted of 

distribution and possession with the intent to distribute 

cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006) 

(“count 1”), possession of a firearm in furtherance of a drug 

trafficking crime, in violation of 18 U.S.C. § 924(c) (2006) 

(“count 2”), and possession of a firearm and ammunition by a 

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006) 

(“count 3”). He was sentenced to 264 months in prison. Bailey 

appeals, asserting that the district court erred by denying his 

Fed. R. Crim. P. 29 motions for judgment of acquittal and his 

motions for a mistrial. Finding no error, we affirm. 

 We review de novo the district court’s denial of a 

Fed. R. Crim. P. 29 motion for judgment of acquittal. E.g., 

United States v. Reid, 523 F.3d 310, 317 (4th Cir.), cert. 

denied, 129 S. Ct. 663 (2008). In conducting this review, “the 

verdict of the jury must be sustained if there is substantial 

evidence, taking the view most favorable to the government, to 

support it.” Glasser v. United States, 315 U.S. 60, 80 (1942). 

This court has defined “substantial evidence” as “evidence that 

a reasonable finder of fact could accept as adequate and 

sufficient to support a conclusion of a defendant’s guilt beyond 

a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 

(4th Cir. 1996) (en banc). We consider circumstantial as well 

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as direct evidence, and we allow the government the benefit of 

all reasonable inferences from the facts proven to those sought 

to be established. United States v. Harvey, 532 F.3d 326, 333 

(4th Cir. 2008). 

 In his sole challenge to count 1 and as part of his 

challenges as to counts 2 and 3, Bailey contends that the 

evidence is insufficient because of contradictions in the 

testimony of the police officers concerning the location of the 

undercover surveillance vehicle from which they observed Bailey 

engaging in narcotics transactions. In resolving issues of 

substantial evidence, however, this court does not reweigh 

evidence or review witness credibility. United States v. 

Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Rather, it is the 

role of the jury to judge the credibility of witnesses, resolve 

conflicts in testimony, and weigh the evidence. United States 

v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). And after review 

of the record, we conclude that there was sufficient evidence 

from which a jury could conclude that Bailey knowingly 

distributed and possessed with intent to distribute cocaine 

base. 

 To establish a violation of 18 U.S.C. § 922(g)(1), the 

Government was required prove beyond a reasonable doubt that: 

(1) Bailey was a convicted felon; (2) he knowingly possessed the 

firearm and ammunition; and (3) the firearm and ammunition 

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traveled in interstate commerce. See United States v. 

Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). As this court 

held in Gallimore, 247 F.3d at 136-37, section 922(g)(1) does 

not require proof of actual or exclusive possession; 

constructive or joint possession is sufficient. The government 

may prove constructive possession by demonstrating that the 

defendant exercised, or had the power to exercise, dominion and 

control over the item. Id. at 137 (quoting United States v. 

Jackson, 124 F.3d 607, 610 (4th Cir. 1997)). Further, 

constructive possession may be proved by circumstantial 

evidence. United States v. Laughman, 618 F.2d 1067, 1077 (4th 

Cir. 1980). 

 To convict Bailey of violating 18 U.S.C. § 924(c), the 

government was required to prove that he (1) committed a drug 

crime and (2) possessed a firearm in furtherance of that drug 

crime. 18 U.S.C. § 924(c)(1)(A). In determining what evidence 

is sufficient to establish a violation of § 924(c), the 

statutory term “furtherance” should be afforded its plain 

meaning of “[t]he act of furthering, advancing, or helping 

forward.” United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 

2002) (internal citation omitted; alteration in original). 

Therefore, “§ 924(c) requires the government to present evidence 

indicating that the possession of the firearm furthered, 

advanced, or helped forward a drug trafficking crime.” Id. 

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Whether a firearm served such a purpose is a question of fact. 

In Lomax, this court adopted a series of factors that might lead 

a reasonable finder of fact to conclude the existence of a 

connection between a defendant’s possession of a firearm and his 

drug trafficking crime. Id. These factors include, but are not 

limited to: the type of drug activity being conducted, the 

accessibility of the firearm, the type of weapon, whether the 

weapon is stolen, the status of possession, whether the firearm 

is loaded, its proximity to drugs or drug profits, and the time 

and circumstances under which the gun is found. Id. Possession 

of a firearm in furtherance of a drug trafficking crime under 

§ 924(c) may be shown through either actual or constructive 

possession. See United States v. Booker, 436 F.3d 238, 241 

(D.C. Cir. 2006); United States v. Maldonado-Garcia, 446 F.3d 

227, 231 (1st Cir. 2006). 

 The evidence was sufficient to convict Bailey on 

counts 2 and 3. Although Bailey was not in actual possession of 

the loaded .22 caliber firearm seized from the living room of 

the residence from which he was observed selling cocaine base, 

the jury could infer his knowledge of and dominion and control 

over the firearm, as it was found on the floor under a couch in 

the residence’s living room, a room close to the residence’s 

front door. The evidence was also sufficient to show that 

Bailey constructively possessed the .22 caliber firearm in 

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furtherance of a drug trafficking crime. The evidence showed 

that the firearm was loaded and located in the living room not 

far from the entrance to the residence through which Bailey had 

been observed exiting to sell cocaine base on the front porch. 

The firearm, although located beneath the couch, was accessible 

to Bailey, the only occupant of the residence and a convicted 

felon prohibited from possessing the firearm or ammunition. 

Further, in light of the testimony from the government’s expert, 

the jury could find that the firearm was of the type used by 

drug traffickers for protection, and the firearm was found at 

night under circumstances indicating that Bailey was involved in 

drug distribution. Accordingly, the district court did not err 

in denying Bailey’s Rule 29 motions for judgment of acquittal. 

 This court reviews the district court’s denial of a 

motion for mistrial for abuse of discretion, United States v. 

West, 877 F.2d 281, 287-88 (4th Cir. 1989), and will disturb a 

district court’s ruling “only under the most extraordinary of 

circumstances.” United States v. Dorlouis, 107 F.3d 248, 257 

(4th Cir. 1997). “A defendant must show prejudice in order for 

the court’s ruling to constitute an abuse of discretion, and no 

prejudice exists if the jury could make individual guilt 

determinations by following the court’s cautionary 

instructions.” West, 877 F.2d at 288. Remarks by the 

prosecutor in an opening statement will lead to reversal if “(1) 

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the prosecutor’s remarks . . . [were] in fact . . . improper, 

and (2) such remarks . . . prejudicially affected the 

defendant’s substantial rights so as to deprive the defendant of 

a fair trial.” United States v. Brockington, 849 F.2d 872, 875 

(4th Cir. 1988) (internal citation marks omitted), overruled on 

other grounds by Bailey v. United States, 516 U.S. 137 (1995). 

 In this case, the district court denied a mistrial on 

the basis of the government’s improper remark because the remark 

was made during an opening statement. However, the court 

instructed the jury that the opening statements of the attorneys 

were not to be considered evidence, and jurors are presumed to 

follow the instructions delivered by the district court, see

United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998). 

Moreover, the evidence presented at trial was sufficient to 

sustain the jury’s verdict even without the improper remark in 

the government’s opening statement. Accordingly, because the 

government’s remark did not so prejudice Bailey’s substantial 

rights as to deny him a fair trial, the district court did not 

err in denying his requests for a mistrial. 

 We therefore affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

conclusions are adequately presented in the materials before the 

court and argument would not aid the decisional process. 

AFFIRMED