Sixth Circuit Endorses “Possible Guilt of Others” Instruction in Joint-Possession Trials and Reaffirms Constructive-Possession Factors for Drugs and Guns Found in Shared Vehicles

Introduction

In United States v. Jesse Gregory Fairley, No. 22-3923 (6th Cir. May 8, 2025), the Sixth Circuit affirmed a 30-year sentence following a jury’s conviction for possession with intent to distribute crack cocaine, felon-in-possession, and possession of a firearm in furtherance of a drug-trafficking crime. The case arose from police surveillance of a Cleveland convenience-store parking lot where officers observed Fairley and a 16-year-old, Terrez Wilson, conduct hand-to-hand transactions from a BMW SUV linked to Fairley.

On appeal, Fairley challenged (1) the sufficiency of the evidence (focusing on constructive possession), (2) a “third-party guilt” jury instruction adapted from Sixth Circuit Pattern Criminal Jury Instruction 8.08(2), (3) several evidentiary rulings under Rules 702, 404(b), and 403 (including a law-enforcement expert and social-media cash photos), (4) alleged witness intimidation arising from the prosecutor’s warnings to Wilson, and (5) prosecutorial misconduct during closing. The Sixth Circuit affirmed on all grounds.

The opinion is noteworthy for two clarifications with practical reach: first, it approves the use of the “possible guilt of others is no defense” instruction in joint-possession cases where the defense is not mistaken identity; second, it delineates appropriate boundaries for prosecutors and trial judges warning a defense witness—especially a juvenile—about potential exposure to federal charges, holding that neutral, in-court advisements and facilitating counsel are not intimidation.

Summary of the Opinion

• Sufficiency: The court held that substantial, competent evidence supported constructive possession of both crack cocaine and two pistols in the BMW, relying on proximity-plus factors (plain-view guns within arm’s reach, drugs co-located next to Fairley, substantial cash, Fairley’s dominion/control over the vehicle, and evasive statements).
• Jury Instructions: The panel upheld a modified version of PCJI 8.08(2) (possible guilt of others is no defense) where the prosecution’s theory was joint possession and the defense was not mistaken identity, distinguishing cases where the instruction can mislead jurors away from a credible third-party-perpetrator theory of innocence.
• Evidentiary Rulings:
  • Rule 702: Admitted expert testimony from a law-enforcement officer on drug-dealing practices as helpful and relevant to intent and context.
  • Rule 404(b): Admitted prior admissions to an officer about sources for drugs and firearms and unwillingness to stop trafficking; a post-offense “dangerous weapon” plea five days later, even if questionable, was harmless.
  • Rule 403: Admission of an Instagram photo showing Fairley with cash was, at worst, harmless given the strength of the government’s proof.
• Witness Warnings: Neutral, in-court advisements about potential federal exposure and the provision of counsel to Wilson did not constitute witness intimidation.
• Prosecutorial Misconduct: A brief mischaracterization and reference to Wilson’s juvenile adjudication (forfeiting a Ruger) did not constitute plain error or flagrant misconduct, especially given limiting instructions and strong evidence.

Analysis

Precedents Cited and Their Influence

• Sufficiency and Possession
  • United States v. Emmons; United States v. Gunter; United States v. Avery; United States v. Jackson; United States v. Taylor: These cases supply the de novo standard, deference to the verdict, and the “any rational trier of fact” test.
  • United States v. Gardner; United States v. Campbell; United States v. Bailey; United States v. Craven: Set out actual vs. constructive possession and allow circumstantial proof; Bailey is distinguished (gun under seat in a stolen car) to show why Fairley’s facts are stronger for constructive possession.
  • United States v. Arnold; United States v. Walker: Proximity is insufficient, but proximity plus other incriminating evidence (e.g., easy access, visibility, movement, positioning) suffices; Walker’s “minimal burden” for constructive possession informs the threshold here.
  • United States v. Hall; United States v. White (5th Cir.): Ownership, dominion, or control over the vehicle or premises where contraband is found can establish constructive possession; relied on to credit the oil-change receipt, regular use, and even the presence of Fairley’s puppy in the driver’s area as indicators of control.
• Jury Instructions
  • United States v. Eaton; United States v. Williams; United States v. Fisher; United States v. Young: Provide the abuse-of-discretion standard and the high threshold for reversal (instructions must be confusing, misleading, and prejudicial when viewed as a whole).
  • United States v. Larch and the PCJI 8.08 commentary: Recognize that the “possible guilt of others” instruction can sometimes mislead, but is appropriate where the jury must focus on the defendant’s guilt and where joint possession is at issue.
  • United States v. Farrow: Distinguished; Farrow’s problematic instruction arose where the defense was mistaken identity—i.e., third-party guilt, if accepted, exculpates the defendant entirely. Here, the government argued joint possession, not misidentification.
• Expert Testimony (Rule 702)
  • Daubert v. Merrell Dow Pharmaceuticals: Relevance (“fit”) and helpfulness baseline.
  • United States v. LaVictor: “Relevancy bar is low,” testimony must logically advance a material aspect of the case.
  • United States v. Jaffal; United States v. Dunnican; United States v. Swafford: Endorse police experts to explain drug-trafficking practices beyond common experience (e.g., scales, multiple drugs, firearms as tools of trade).
• Other-Acts Evidence (Rule 404(b)) and Balancing (Rule 403)
  • United States v. Adams; United States v. Clemis; United States v. Vance: Tripartite review—occurrence, permissible purpose, and Rule 403 balancing.
  • United States v. Barnes; United States v. Benton: “Substantially similar” and “reasonably near in time” benchmarks for intent/knowledge uses.
  • United States v. LaVictor (harmless error): Even if erroneous, overwhelming evidence can render admission harmless.
• Witness Intimidation and Due Process
  • United States v. Meda; United States v. Bauer; United States v. Vonner: Plain-error standard for unpreserved claims.
  • United States v. Stuart; Baze v. Parker: Defines “substantial interference” with a witness’s free determination to testify; balances defendant’s right to present a defense with witness’s Fifth Amendment rights and prosecutors’ ethical duties.
  • United States v. Morrison (3d Cir.): Distinguished as far more egregious (private, repeated threats, sham processes); here, warnings were neutral, in open court, with counsel provided.
• Prosecutorial Misconduct in Closing
  • United States v. Jones; United States v. Carson; United States v. Carter: Two-step analysis (impropriety, then flagrancy factors) guides plain-error review.
  • Slagle v. Bagley: Improper if statements inject facts not in evidence or violate rules.
  • United States v. Sanders; United States v. Blandford; United States v. Benson: A co-defendant’s plea or conviction is not substantive evidence of the defendant’s guilt; even a proper introduction can be misused in closing—courts police this boundary.
  • United States v. DeLoach; United States v. Busch; United States v. Barnett: “Invited response” doctrine—when the defense shifts blame, government may rebut with evidence of the third party’s adjudication, but must still avoid arguing it proves the defendant’s guilt.
  • United States v. Davis: Courts may limit closing arguments that rely on facts not in evidence.

Legal Reasoning

1) Constructive Possession Supported by Proximity Plus Evidence

The court treated possession as either actual or constructive. It did not need to reach actual possession because the record contained ample circumstantial proof of constructive possession. The key factors, read together, included:

• Location and visibility: Two loaded pistols (Glock 19 and Ruger LCP .380) were in plain view atop the center console by the emergency brake and gear shift, within arm’s reach of the front passenger seat Fairley had just occupied.
• Drugs within ready access: A bag of crack was inside a covered compartment of the same console; marijuana was in the console; cash lay in open console, on the floor, and on a seat.
• Observed dealing: Officers saw Fairley conduct multiple hand-to-hand transactions; at least one apparent buyer seemed like a “hardcore” user, supporting an inference of crack dealing rather than mere marijuana sales.
• Evasive statements: Fairley initially denied selling drugs, then minimized his conduct by admitting only marijuana sales—an evasiveness that can support knowledge and intent.
• Dominion and control over the vehicle: The SUV belonged to Fairley’s self-described spouse; he regularly drove it; an oil-change receipt listed Fairley as the customer; his puppy rested near the gas pedal—all indicating control of the vehicle (consistent with Hall and White), which supports constructive possession of items found within it.

Importantly, the court reiterated that proximity alone is insufficient (Arnold), but proximity plus “other incriminating evidence” (Walker) crossed the threshold here. Bailey’s contrary outcome (gun under seat of a stolen car) was distinguishable because Fairley’s repeated access to the non-stolen vehicle, coupled with plain-view weapons and the cash-drugs nexus, made knowledge and dominion far more plausible.

2) “Possible Guilt of Others” Instruction Proper in Joint-Possession Cases

The district court gave a version of PCJI 8.08(2): jurors should not let the possible guilt of others influence their decision, and they must decide only whether the government proved the defendant’s guilt beyond a reasonable doubt. Fairley’s theory was that someone else (likely Wilson) was the sole possessor. The government’s theory was joint possession. The court approved the instruction because:

• Joint possession means two or more people can each have possession at the same time; another person’s culpability would not negate Fairley’s guilt.
• The defense was not mistaken identity—unlike Farrow, where suggesting jurors ignore third-party guilt risked convicting an innocent defendant.
• The jury was also instructed on joint possession and that mere presence is insufficient, ensuring a focused, defendant-specific culpability analysis.

3) Rule 702 Expert Testimony: Drug-Trafficking Context Helps the Jury

The court admitted a law-enforcement officer’s expert opinions on how crack is packaged and sold, the use of scales, why dealers carry multiple drugs and firearms, and the difficulty of recovering fingerprints from guns. This testimony:

• Was grounded in the officer’s specialized experience (ATF TFO and CPD vice work).
• Logically advanced the government’s case on intent to distribute and explained contextual facts beyond the ken of lay jurors (LaVictor, Jaffal, Dunnican, Swafford).
• Survived Rule 403 because its probative value in explaining the scene (scales, packaging, cash, firearms) was high and not unfairly prejudicial.

4) Rule 404(b) Other-Acts Evidence: Prior Admissions In; Post-Offense Act Harmless

Two categories of other-acts evidence were challenged:

• Prior admissions to a law-enforcement officer that Fairley sourced drugs and firearms and did not intend to stop trafficking. The court held these statements were admissible to show opportunity, knowledge, and intent—especially given the short time frame between the admissions and the offense. They also countered Fairley’s claim that someone else possessed the contraband.
• A separate offense five days later involving a “dangerous weapon.” Even if admission of this evidence were questionable for lack of close similarity, any error was harmless in light of overwhelming evidence of guilt (LaVictor).

5) Rule 403: Instagram Cash Photo Admissible; Any Error Harmless

The court allowed one August 2020 Instagram image showing Fairley with a large amount of cash (a second cash-only image was withdrawn). Given the independent strength of the proof, any error was harmless.

6) Witness Warnings Were Neutral and Non-Intimidating

Before testifying, Wilson—already adjudicated in juvenile court—was warned in open court by the judge and the AUSA that inculpatory testimony could expose him to federal charges (potentially carrying a five-year minimum), and the court secured counsel for him. The Sixth Circuit held:

• Prosecutors have an ethical obligation to alert witnesses to potential criminal exposure; witnesses retain Fifth Amendment rights.
• Neutral, in-court warnings and facilitating counsel do not “substantially interfere” with a witness’s free choice to testify (Meda, Stuart, Baze).
• Morrison is inapposite; there, the prosecution engaged in repeated, private threats and sham processes. Here, the advisement was brief, transparent, and appropriate.

7) Closing Arguments: No Plain Error; Invited Response Doctrine Applies

The government briefly misstated defense counsel’s opening remarks and referenced Wilson’s juvenile adjudication (including Ruger forfeiture). While the government must not suggest that a third party’s plea proves the defendant’s guilt (Sanders, Benson), the defense’s blame-shifting strategy invited a rebuttal (DeLoach, Barnett, Busch). Any impropriety was not flagrant:

• Limiting instructions directed jurors not to consider others’ guilt.
• The references were brief and isolated.
• The evidence was strong, diminishing any likelihood of prejudice.

The court also upheld the government’s objection when defense counsel speculated in closing about plea-dismissal reasons not in evidence (Davis).

Impact

A. Pattern Instruction 8.08(2): Safer to Use in Joint-Possession Cases

The decision meaningfully clarifies when the “possible guilt of others” instruction is appropriate. In joint-possession prosecutions, where the defense is not mistaken identity, a properly framed instruction—paired with “mere presence” and joint-possession instructions—will likely withstand challenge. Defense counsel should, however, consider requesting clarifying language to ensure the jury understands that evidence of third-party possession can create reasonable doubt even if joint possession is alleged.

B. Constructive Possession in Vehicles: The “Proximity Plus” Playbook

The opinion reinforces a practical checklist for constructive possession of contraband in a shared vehicle:

• Items in plain view or within immediate reach of the defendant.
• Co-location of drugs, cash, and paraphernalia (e.g., scales) supporting distribution intent.
• Evidence of dominion and control over the vehicle (e.g., regular use, receipts, personal items).
• Evasive or minimizing statements post-arrest.
• Observed transactions consistent with the contraband found.

Defense strategies should therefore probe for facts like unfamiliar vehicles, concealed items inaccessible to the defendant, absence of control indicators, or credible alternative explanations for proximity.

C. Law-Enforcement Expert Testimony: Continued Acceptance with Guardrails

The Sixth Circuit continues to accept law-enforcement expertise on drug-trafficking practices, especially to prove intent to distribute. Practitioners should tether such testimony to specific evidentiary features (packaging, scales, cash, firearms) and avoid “profile-only” opinions that invite Rule 403 concerns.

D. Other-Acts Evidence: Short Temporal Gaps and Direct Admissions Are Persuasive

The court’s acceptance of Fairley’s prior admissions about sources for drugs and firearms underscores the weight such evidence carries for intent and opportunity when temporally close. Prosecutors should be prepared to articulate the permissible purpose and similarity; defense counsel should press the court for precise, limiting instructions and robust Rule 403 balancing.

E. Witness Warnings: Ethical, Neutral Advisements Are Not Intimidation

The opinion provides a blueprint for trial courts and prosecutors warning defense witnesses—especially juveniles—of potential exposure without chilling testimony: deliver the warning in open court, be neutral and factual, and provide counsel. Defense claims of intimidation will face a high bar absent “substantial interference.”

F. Closing Arguments: Use of a Third Party’s Adjudication to Rebut Blame-Shifting

Where the defense squarely shifts blame, the government may reference a third party’s adjudication to rebut—but must not argue that it proves the defendant’s guilt. Short, accurate references, coupled with limiting instructions, are less likely to warrant reversal under plain-error review.

Complex Concepts Simplified

• Actual vs. Constructive Possession:
  • Actual possession: The person has immediate physical control (e.g., holding a gun).
  • Constructive possession: The person does not physically hold the item but knows about it and has the power and intent to control it (e.g., items within reach in a car they control).
• Joint Possession: More than one person can possess the same item at the same time. One person’s guilt does not automatically exonerate another if both exercised control.
• PCJI 8.08(2) “Possible Guilt of Others” Instruction: Tells jurors to focus on the defendant’s guilt. Appropriate in joint-possession cases; potentially problematic only when the defense is mistaken identity (i.e., someone else did it, and if that’s true, the defendant is innocent).
• Rule 702 and Daubert: Expert opinions must be based on specialized knowledge that helps the jury understand evidence or decide a fact. The bar for helpfulness is low but real.
• Rule 404(b): Other crimes or wrongs cannot be used to prove propensity but can show motive, intent, knowledge, absence of mistake, identity, or opportunity. Courts still balance probative value vs. unfair prejudice under Rule 403.
• Standards of Review:
  • De novo: No deference (e.g., sufficiency of evidence).
  • Abuse of discretion: Deferential; reversal only for clear error of judgment (e.g., evidentiary rulings, jury instructions).
  • Plain error: Forfeited claims require showing a clear error that affected substantial rights and seriously affected the fairness, integrity, or public reputation of proceedings.
• Prosecutorial Misconduct in Closing: Courts ask whether remarks were improper and, if so, whether they were flagrant (misleading/prejudicial, extensive, deliberate, and whether the evidence was otherwise strong).
• Harmless Error: Even if a mistake occurred, a conviction stands if the error likely did not affect the verdict.

Conclusion

United States v. Fairley is a comprehensive reaffirmation and clarification of several recurring criminal-trial issues in the Sixth Circuit. On the merits, the court found robust “proximity plus” evidence of constructive possession where guns were in plain view and drugs and cash were co-located, coupled with dominion over the vehicle, observed transactions, and evasive statements. Procedurally, it green-lighted the use of the “possible guilt of others” instruction in joint-possession cases (while distinguishing mistaken-identity scenarios) and delineated fair boundaries for law-enforcement expert testimony on drug-trafficking practices under Rule 702.

The opinion also provides practical guidance: prosecutors and courts may warn a defense witness—particularly a juvenile—of potential exposure in a neutral, on-the-record manner and should facilitate counsel; such steps will not, without more, amount to witness intimidation. Finally, while the government must avoid suggesting that a third party’s plea or adjudication proves the defendant’s guilt, brief, accurate references may be permissible to rebut blame-shifting, especially when accompanied by limiting instructions and strong independent evidence.

The takeaways are clear: in shared-vehicle drug-and-gun cases, prosecutors should build “proximity plus” records; trial judges can safely deploy PCJI 8.08(2) in joint-possession settings with clarifying instructions; and both sides should calibrate evidentiary presentations and closings to avoid propensity pitfalls and preserve the integrity of the verdict.