United States Court of Appeals

For the Eighth Circuit

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No. 16-3649

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Antuan Rochelle Gaines

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: March 10, 2017

 Filed: June 23, 2017

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Before RILEY, Chief Judge, GRUENDER, Circuit Judge, and SCHREIER, 1 2

District Judge.

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RILEY, Chief Judge. 

The Honorable William Jay Riley stepped down as Chief Judge of the United

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States Court of Appeals for the Eighth Circuit at the close of business on March 10,

2017. He has been succeeded by the Honorable Lavenski R. Smith. 

The Honorable Karen E. Schreier, United States DistrictJudge for the District 2

of South Dakota, sitting by designation. 
Antuan Gaines appeals his conviction for being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1), arguing (1) the district court abused 3

its discretion in admitting gang-related evidence, and (2) the evidence introduced at

his jury trial was insufficient to find him guilty. Having appellate jurisdiction under

28 U.S.C. § 1291, we affirm. 

I. BACKGROUND

In the early afternoon of November 4, 2013, Little Rock, Arkansas, plain

clothes police officers observed a person-of-interest in a homicide investigation

standing in a parking lot with a group of men dressed in red and black attire. Due to

a concern for safety, because the officers were aware of a recent increase in gang

activity and the individuals’ clothing indicated they might be members of a local

gang, the officers called for uniformed backup. Several marked police cars

responded. As Officer Charles Starratt approached the group, he saw one man, later

identified as Gaines, make a motion toward the man’s waist and then duck down out

of the officer’s sight next to a vehicle. Officer Starratt then heard “a metal on

pavement sound.” Gaines obeyed officers’ commands to get on the ground, and

while handcuffing Gaines, Officer Starrattspotted a handgun underneath the car next

to which Gaines had been standing. 

Gaines was indicted for being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1) and proceeded to a jury trial in February 2016. Before trial, the

government filed notice of its intent to present evidence of Gaines’s “gang

membership, and the fact that he was with several other members of the gang when

he and three others were found in possession of firearms” and “[l]imited evidence

regarding the homicide investigation” as “‘relevant to multiple aspects of th[e] case:

the overarching factual scenario at issue, [Gaines’s] presence at the scene, and why

The Honorable Kristine G. Baker, United States DistrictJudge for the Eastern 3

District of Arkansas. 

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he would have a [firearm].’” (Second and third alterations in original) (quoting

United States v. Molton, 743 F.3d 479, 482 (7th Cir. 2014). The district court

permitted the government to introduce limited evidence of Gaines’s gang affiliation,

but noted “any sort of expert taking the stand and giving a dissertation on gang life

and the violence of gangs and the violence of this gang in particular, . . . atsome point

that becomes objectionable under 403.” See Fed. R. Evid. 403 (“The court may

exclude relevant evidence if its probative value is substantially outweighed by a

danger of . . . unfair prejudice.”).

Over Gaines’s objection at trial, the district court allowed an expert witness to

testify about Gaines’s involvement in a local gang. Before thistestimony, the district

court instructed the jury to consider the evidence only as to Gaines’s knowledge,

intent, and motive in possessing the firearm.

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The limiting instruction read to the jury was: 4

Ladies and gentlemen of the jury, I anticipate that you will hear

evidence that Mr. Gaines is alleged to be affiliated with a gang. You

may consider this evidence only if you unanimously find it more likely

true than not true. You decide that by considering all of the evidence

and deciding what evidence is more believable. This is a lower standard

than proof beyond a reasonable doubt. If you find this evidence has

been proved, then you may consider it to help you decide Mr. Gaines’

knowledge, intent, and motive regarding the charges against him in this

case. You should give it the weight and value you believe it is entitled

to receive. If you find that this evidence has not been proved, you must

disregard it. 

Remember, even if you find that Mr. Gaines may have committed

similar acts in the past, this is not evidence that he committed such an

act in this case. You may not convict a person simply because you

believe he may have committed similar acts in the past. Mr. Gaines is

on trial only for crimes charged and you may consider the evidence of

prior acts only on the issues that I have explained in this instruction. 

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The expert testified the local gang, Highland Park Pirus (HPP), is associated

with the color red and included the parking lot where Gaines was arrested in its

territory. The government had previously introduced photographs—to which Gaines

did not object at trial—of the clothes Gaines was wearing the day of his arrest,

including a knit cap with the initials HPP, and the expert witness testified this cap

indicated Gaines was affiliated with the HPP gang. As part of the expert witness’s

testimony, the government attempted to introduce photographs of clothing items worn

by individuals other than Gainesin the parking lot the day of his arrest that referenced

the HPP gang, but the district court found these photographs unduly prejudicial. The

government then introduced, over Gaines’s objection, photographs oftwo of Gaines’s

tattoos that the expert witness also identified as associated with the HPP gang. 

The expert witness went on to testify that members ofstreet gangs like HPP are

involved in illegal activity and possess firearms, but the district court sustained

Gaines’s objections to further testimony regarding why members of street gangs

possess guns, and that the homicide the officers were investigating was gang-related. 

In addition to the expert testimony linking Gaines to the local street gang,

Officer Starratt testified he responded to the call for backup and, while approaching

the group, Gaines caught his attention “[b]ecause he made a motion [Officer Starratt]

would consider as a threat to [his] person.” Officer Starratt testified he discovered

the firearm underneath the vehicle after Gaines dropped out of sight next to the

vehicle and Officer Starratt heard a “metal on pavement sound.” While Officer

Starratt testified “[t]here was another individual at the front of the car” near Gaines,

he also testified no other individual was within reaching distance of the gun. No

A limiting instruction in the final jury instructions included substantially the same

language. 

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officer testified to actually seeing Gaines with a firearm, and no physical evidence

tied Gaines to the firearm recovered at the scene. 

Gaines moved for a judgment of acquittal at the close ofthe government’s case,

which the district court denied. After the district court overruled Gaines’s motion to

exclude evidence of his potential witnesses’ affiliation with the HPP gang, Gaines

rested without introducing any evidence. The district court instructed the jury and

included a second limiting instruction on the gang-affiliation evidence. The jury

returned a guilty verdict. Gaines filed timely notice of appeal. 

II. DISCUSSION

A. Gang-Related Evidence

Gaines argues the district court abused its discretion in overruling his

objections to the introduction of evidence of Gaines’s gang affiliation—namely,

photographs of his gang-related clothing and tattoos and the explanatory expert

testimony. See United States v. McKay, 431 F.3d 1085, 1093 (8th Cir. 2005) (“We

review district court rulings on the admission of prejudicial evidence such as alleged

gang affiliation for an abuse of discretion.”). 

“Evidence of gang membership is admissible if relevant to a disputed issue,”

United States v. Lemon, 239 F.3d 968, 971 (8th Cir. 2001), but not “if its purpose is

solely ‘to prejudice the defendant or prove his guilt by association with unsavory

characters,’” United States v. Ellison, 616 F.3d 829, 833 (8th Cir. 2010) (quoting

McKay, 431 F.3d at 1093). As we recently outlined in United States v. Payne-Owens,

gang-related evidence is often admissible where “the defendant is . . . a gang member

himself,” the issues in the case “‘concern the mere fact of a defendant’s gang

membership’ rather than ‘sanction[ing] a wide ranging inquiry into the generic

criminality and violent dispositions of gangs,’” and the evidence “‘is generally an

unavoidable incident of presenting other permissible evidence.’” United States v.

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Payne-Owens, 845 F.3d 868, 873 (8thCir. 2017) (quoting United States v. Street, 548

F.3d 618, 632 (8th Cir. 2008)). 

Gaines claims “though the government attempted to disguise the evidence as

admissible [Rule] 404(b) evidence, the evidence was offered merely to prejudice Mr.

Gaines and prove his guilt by association.” See Fed. R. Evid. 404(b) (“Evidence of

a crime, wrong, or other act is not admissible to prove a person’s character in order

to show that on a particular occasion the person acted in accordance with the

character. . . . This evidence may be admissible for another purpose.”). Gaines

argues any relevance of his gang affiliation was “substantially outweighed by the

danger of unfair prejudice” when “the government went the ‘guilty by association’

route.” See Fed. R. Evid. 403. 

We have previously cautioned against the “relentless attempt to convict [a

defendant] through his association” with a gang when the government “injected into

the trial over defense counsel’s objection” the gang’s “general reputation for drugrelated activities,” and did so “merely to show that [the defendant] is a bad person and

thus more likely to have committed the crime.” United States v. Roark, 924 F.2d

1426, 1430-34 (8th Cir. 1991). But “[h]ere, unlike in Roark, the government did not

relentlessly attempt to convict [Gaines] by arguing guilt by association.” PayneOwens, 845 F.3d at 874. Instead, in the government’s words, the evidence of

Gaines’s gang affiliation was offered to “give[] context to the reason that the officers

were there that day, the steps that they took that day, the reason that they stopped that

day” and to establish Gaines’s knowledge, intent, motive, or opportunity. Gaines’s

membership in the HPP gang provided important background for the officers’

testimony of why they were in the area and called for uniformed backup to approach

the men in the parking lot. The photographs of Gaines’s gang-related clothing and

tattoos were also probative of Gaines’s motive to possess a gun “even if that alleged

motive derived from his gang involvement.” Payne-Owens, 845 F.3d at 874. 

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The government’s expert witness also testified briefly about the HPP gang and

Gaines’s affiliation with them. Again, we find no reversible error. The expert

informed the jury that Gaines’s clothing and tattoos were indicative of gang

membership, and we have repeatedly held explanatory evidence like this to be

admissible. See, e.g., Payne-Owens, 845 F.3d at 872 (affirming admission of

“generic and fleeting testimony” by an expert witness about hand signs and slang

associated with a local gang); United States v. Sills, 120 F.3d 917, 920 (8th Cir.

1997) (affirming admission of testimony to aid the jury with the meaning of gangrelated graffiti). The expert also testified about how, in his experiences, street gangs

are involved in illegal activity and members often possess firearms. This is a bit more

concerning. But the government and its witness then moved on, having only shared

a well-known generality about gangs’ involvement in illegal activities. These brief

statements—situated within a limited amount of gang evidence we have already

deemed admissible—do not tip the scales so much as to constitute an abuse of

discretion or unfair prejudice that requires a new trial.

Any unfairly prejudicial effect of the gang-related evidence did not

substantially outweigh its probative value. See Fed. R. Evid. 403. The majority of

the testimony at trial focused on the officers’ observations at the scene, and the

government introduced limited evidence Gaines was affiliated with HPP, a far cry

from the “extensive, prejudicial testimony concerning the violent tendencies and

criminal dispositions of gangs in general and of [the local gang] in particular” we

have previously found to be unduly prejudicial. Street, 548 F.3d at 631. The district

court carefully considered each piece of gang-related evidence the government sought

to introduce and balanced its probative value against its prejudicial nature, and we

cannot say the result of this deliberate balancing was an abuse of discretion. 

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The district court was presented with a Catch-22 in ruling on the additional

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gang-related evidence the government sought to introduce. On one hand, allowing

the expert witness to testify as to why gang members possess guns and present gangrelated information about the homicide the officers were investigating would have

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Granted, the probative value of the gang-related evidence was not strong, and

the government risked turning the focus of the trial to Gaines’s gang membership

rather than his knowing possession of a firearm. Yet we cannot say “‘the evidence

clearly had no bearing on the case and was introduced solely to show defendant’s

propensity to engage in criminal misconduct.’” United States v. Gant, 721 F.3d 505,

509 (8th Cir. 2013) (quoting United States v. Farish, 535 F.3d 815, 819 (8th Cir.

2008)). What may have developed into an unduly prejudicial effect of the gangrelated evidence was mitigated by the district court’s careful balancing of each piece

of evidence and repeated cautions that the jury consider evidence of Gaines’s gang

affiliation only “to help [them] decide Mr. Gaines’ knowledge, intent, and motive

regarding the charges against him.” See Payne-Owens, 845 F.3d at 874; McKay, 431

F.3d at 1093. By allowing the government to present evidence of Gaines’s gang

affiliation only as an important contextual explanation and as evidence of Gaines’s

motive to possess a firearm, the district court did not abuse its discretion. 

B. Sufficiency of the Evidence

Gaines also contends the evidence was insufficient to establish he knowingly

possessed the firearm. “To obtain a conviction under 18 U.S.C. § 922(g)(1) the

government must ‘prove beyond a reasonable doubt (1) [the defendant] previously

had been convicted of a crime punishable by a term of imprisonment exceeding one

year, (2) [the defendant] knowingly possessed a firearm, and (3) the firearm had been

made Gaines’s gang membership more relevant—the background information would

have provided more clarity on why Gaines’s gang membership could motivate him

to possess a gun and why the officers were interested in approaching the gang

members in the parking lot. On the other hand, this evidence would have turned

Gaines’s gang membership into a significant theme of the trial and may have tipped

the scales toward undue prejudice. The district court did not abuse its discretion in

attempting to walk a careful line between allowing the government to introduce

relevant evidence and ensuring Gaines was not unfairly prejudiced. 

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in or had affected interstate commerce.’” United States v. Cowling, 648 F.3d 690, 6

700 (8th Cir. 2011) (quoting United States v. Johnson, 474 F.3d 1044, 1048 (8th Cir.

2007)). “We review sufficiency of the evidence claims de novo and reverse only if

no reasonable jury could have found [the defendant] guilty.” United States v.

Daniels, 625 F.3d 529, 532 (8th Cir. 2010). Taking “the evidence in the light most

favorable to the verdict and accept[ing] all reasonable inferences that can be drawn”

from that evidence, we find the evidence sufficient. United States v. Griffith, 786

F.3d 1098, 1102 (8th Cir. 2015). 

“‘A defendant knowingly possesses a firearm if he has actual or constructive

possession of it,’” United States v. Green, 835 F.3d 844, 852 (8th Cir. 2016) (quoting

United States v. Wells, 469 F.3d 716, 719 (8th Cir. 2006)), but “[m]ere

proximity . . . isinsufficient to establish constructive possession.” Cowling, 648 F.3d

at 700. We agree with the government’s assertion that “the evidence at trial proved

more than mere proximity. Circumstantial evidence was presented . . . that Gaines

removed the firearm from his waist and dropped it under a car before he could be

arrested.” As Gaines highlights, the gun was in a public area, no witnesses testified

they saw Gaines holding the firearm, and no forensic evidence tied Gaines to the

firearm. But one officer did testify he saw Gaines “make a motion toward the rear of

the vehicle toward his waist” and duck out of sight, and then the officer heard “a

metal on pavement sound” before discovering the firearm underneath the car next to

where Gaines had stood. This is sufficient circumstantial evidence to support

Gaines’s conviction. Cf. United States v. White, 816 F.3d 976, 985 (8th Cir. 2016)

(“[B]ecause ‘a jury rarely has direct evidence of a defendant’s knowledge of a

firearm’s presence . . . knowledge is generally established through circumstantial

Gaines stipulated at trial he was a felon and the government presented

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sufficient evidence at trial that the firearm charged in the indictment had been in or

had affected interstate commerce. Gaines only challenges the sufficiency of the

evidence to prove he knowingly possessed the firearm.

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evidence.’” (quoting United States v. Battle, 774 F.3d 504, 511 (8th Cir. 2014)

(omission in original)). 

Gaines’s contention the government’s witnesses contradicted one another “so

much so that a rational jury could not have found beyond a reasonable doubt that the

evidence established that Mr. Gaines knowingly possessed the firearm” is

unconvincing. “In reviewing the motion for judgment of acquittal . . . the court does

not assess the credibility of the witnesses, because that is the province of the jury.” 

United States v. Stewart, 854 F.3d 472, 475 (8th Cir. 2017). The relatively minor

inconsistences between the officers’ testimony—the number of people present in the

parking lot, their proximity to one another, and what commands officers gave before

Gaines’s arrest—do not establish that no reasonable jury could have believed the

major points of the officers’ testimony. 

III. CONCLUSION

Because the district court did not abuse its discretion in admitting certain gangrelated evidence and the evidence overall was sufficient to support Gaines’s

conviction, we affirm. 

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