              Case: 12-13088    Date Filed: 06/27/2013    Page: 1 of 10


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                            Nos. 12-13088 & 12-15099
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 2:10-cr-00377-VEH-HGD-1



UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

JOSHUA PERSON,

                                                               Defendant-Appellant.

                           ________________________

                   Appeals from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                  (June 27, 2013)

Before CARNES, BARKETT, and MARCUS, Circuit Judges.

PER CURIAM:

      Joshua Person, in two consolidated direct appeals, challenges his conviction

for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and
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the district court’s denial of his motion for a new trial based on newly discovered

evidence. Person contends that the government failed to present sufficient

evidence to prove that he possessed the firearm found beneath the driver’s seat of

his car and that the evidence offered at trial tended to show only that he was in

close proximity to the firearm and knew of its presence. He also argues that the

district court abused its discretion in denying his motion for a new trial, which was

based on an allegation of newly discovered evidence in the form of newly available

testimony from his son, William Hall, who could not be located at the time of trial

and could have testified that he inadvertently left his gun in Person’s car after he

had driven the car.

                           I. Sufficiency of the Evidence

      We review de novo whether there is sufficient evidence to support a jury’s

verdict, viewing the evidence in the light most favorable to the government and

drawing all reasonable inferences and credibility choices in favor of the verdict.

United States v. Cochran, 683 F.3d 1314, 1321 (11th Cir. 2012). “A jury’s verdict

cannot be overturned if any reasonable construction of the evidence would have

allowed the jury to find the defendant guilty beyond a reasonable doubt.” United

States v. Friske, 640 F.3d 1288, 1291 (11th Cir. 2011) (quotation marks omitted).

To sustain a conviction, “[t]he evidence need not be inconsistent with every

reasonable hypothesis except guilt, and the jury is free to choose between or


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among the reasonable conclusions to be drawn from the evidence presented at

trial.” Id. (quotation marks omitted).

      In order to convict a defendant of violating 18 U.S.C. § 922(g)(1), the

government must prove that (1) the defendant was a convicted felon, (2) he

knowingly possessed a firearm, and (3) the firearm was in or affected interstate

commerce. United States v. Beckles, 565 F.3d 832, 841 (11th Cir. 2009).

Possession, which is the only element contested in this appeal, “may be actual or

constructive, joint or sole.” United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir.

2004). Constructive possession exists when a defendant “has knowledge of the

thing possessed coupled with the ability to maintain control over it or reduce it to

his physical possession even though he does not have actual personal dominion”

over the object. United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996).

“[M]ere presence in the area of an object or awareness of its location is not

sufficient to establish possession.” Beckles, 565 F.3d at 841. However, we have

held on numerous occasions that the government may establish constructive

possession by showing that the defendant exercised ownership, dominion, or

control over the object itself or over the premises or vehicle in which it is

concealed. See e.g., United States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir.

2005) (“Constructive possession exists when a defendant has ownership, dominion,

or control over an object itself or dominion or control over the premises or vehicle


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in which the object is concealed.”) (quotation marks omitted); United States v.

Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (same); Gunn, 369 F.3d at 1234

(same); Derose, 74 F.3d at 1185 (same).

       The undisputed evidence presented at trial showed that Person was

approached by a police officer just as he pulled over and parked his car outside his

stepdaughter’s apartment. Because Person was playing his music quite loudly, the

officer had decided to issue Person a citation for a noise violation. As the officer

was drafting the citation he asked Person if there was anything illegal in the car

that he should know about. Person responded that there was a pistol underneath

the driver’s seat that belonged to his son, William Hall, who had been driving the

car earlier that day. The officer then retrieved the pistol, which was loaded and not

housed in a container, from underneath the driver’s seat. According to the trial

testimony of Person’s stepdaughter, Marguerite Johnson, Hall was carrying the

pistol earlier that day while driving his father’s car. 1

       Person contends that the government failed to establish the element of

possession by presenting sufficient evidence that he exercised ownership,

       1
          During the evidentiary hearing on his post-verdict motion for a new trial, Person
testified that he was unaware that the pistol was underneath his car seat until mere moments
before he was approached by the police officer. Person explained that he was on his way to a
barbecue at his stepdaughter’s home and, as he reached down to pick up a pan of meat from the
floor of his car, he noticed the gun beneath his driver’s seat. Person, however, did not testify at
trial on his own behalf and there was no evidence presented to the jury to suggest that he only
became aware of the firearm shortly before it was seized. Not surprisingly, Person does not
contend that his post-verdict testimony is relevant to determining whether the evidence presented
to the jury at trial was sufficient to support its verdict.
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dominion, or control over the firearm, instead of mere proximity to and knowledge

of its whereabouts. Given the uncontradicted testimony offered at trial that his son

physically possessed the pistol and was driving his car earlier that same day,

Person argues that no reasonable jury could conclude that he himself possessed the

firearm simply because he controlled the vehicle in which it was found.

      Although “the essence of constructive possession is the power to control the

contraband itself,” ownership, dominion, or control over a vehicle in which

contraband is found, coupled with knowledge of that contraband, is sufficient to

establish constructive possession. See United States v. Cochran, 683 F.3d 1314,

1318 (11th Cir. 2012) (explaining that control over the premises in which

contraband is found “permits an inference” of the power to control that contraband

and is “enough to uphold a conviction on a sufficiency of the evidence challenge”);

Wright, 392 F.3d at 1273. Contrary to Person’s contention, the evidence presented

at trial established more than mere presence in the vicinity of the firearm or mere

awareness of its location. Instead, it showed that he owned the car in which the

firearm was found, was in sole control of the car when that firearm was found, and

knew of its presence before it was found. Because the evidence demonstrated that

Person exercised ownership, dominion, and control over the vehicle in which the

firearm was concealed, the jury reasonably could have inferred that he

constructively possessed that firearm. See United States v. Leonard, 138 F.3d 906,


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909 (11th Cir. 1998) (“The jury reasonably could have inferred that [the defendant]

was the owner of a vehicle in which he knew cocaine and a gun were located, and

therefore in constructive possession of both.”).

      Moreover, while uncontradicted testimony offered at trial indicated that the

firearm belonged to Person’s son and that his son had driven his car on the date of

the incident, that evidence did not preclude the jury from reasonably concluding

that the defendant himself possessed the firearm. Possession, after all, may be

“joint or sole” and “ownership is not a requirement for possession.” United States

v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir. 2010) (quotation marks omitted).

And the jury was in no way obligated to credit each and every sliver of trial

testimony, including that concerning Hall’s connection to the firearm and his

father’s car, even if that testimony was uncontradicted. See Wright, 392 F.3d at

1274 (explaining that assessing the credibility of witness testimony “is within the

jury’s exclusive province”). We therefore hold that the government presented

sufficient evidence to support Person’s conviction for possessing a firearm as a

convicted felon.

                             II. Motion for a New Trial

      We review a district court’s denial of a motion for a new trial for abuse of

discretion. United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en

banc). We may not disturb the district court’s ruling unless the court made a clear


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error of judgment or applied the wrong legal standard. Josendis v. Wall to Wall

Residence Repairs, Inc., 662 F.3d 1291, 1307 (11th Cir. 2011).

       Federal Rule of Criminal Procedure 33 permits a district court to grant a new

trial based on newly discovered evidence “if the interest of justice so requires.”

Fed. R. Crim. P. 33. Such motions are highly disfavored and should be granted

with great caution. Campa, 459 F.3d at 1151. To merit a new trial, a defendant

must show that the evidence (1) was discovered after trial, (2) could not have been

discovered earlier through the exercise of due diligence, (3) is not merely

cumulative or impeaching, (4) is material, and (5) is of such a nature that a new

trial would probably produce a different result. United States v. DiBernardo, 880

F.2d 1216, 1224 (11th Cir. 1989). Newly available evidence is not the same as

newly discovered evidence and, as such, it does not warrant the grant of a new trial

under Rule 33. Id. at 1224–25; United States v. Metz, 652 F.2d 478, 480 (5th Cir.

Unit A 1981). 2

       The district court concluded that William Hall’s newly available testimony,

which indicated that he inadvertently left his gun under the driver’s seat of

Person’s car without his knowledge, was not newly discovered for purposes of



       2
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit, including Unit A
panel decisions of that circuit, handed down before October 1, 1981.


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Rule 33 because Person knew of the substance of Hall’s testimony before trial. 3 At

the evidentiary hearing on his motion for a new trial, Person testified that he

unsuccessfully tried to located Hall before trial so that Hall could testify that the

gun belonged to him and that he had left it in Person’s car.

       Person nonetheless contends that he was not aware of the precise manner in

which Hall would “explain the events of that day.” He also contends that the

district court abused its discretion in failing to distinguish DiBernardo and Metz,

both of which involved the exculpatory testimony of codefendants who rendered

themselves unavailable to testify at trial by invoking their respective Fifth

Amendment privileges against self-incrimination. See DiBernardo, 880 F.2d at

1219–20, 1224–25; Metz, 652 F.2d at 480. Person asserts that, unlike the newly

available testimony at issue in DiBernardo and Metz, Hall’s testimony was

“patently unavailable” at trial because his exact location was unknown, and it is

more reliable than the self-interested testimony of a convicted codefendant. For

similar reasons, Person maintains that, at the very least, we should modify the

principles announced in DiBernardo and Metz to hold that known testimony from a

non-codefendant who was physically unavailable at the time of trial can serve as a

basis for granting a new trial based on newly discovered evidence.


       3
          Person, for good reason, expressly disclaims any suggestion that his own testimony, as
set forth in the post-verdict hearing on his motion for a new trial, qualifies as newly discovered
evidence warranting a new trial.
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      Although Person may not have known all the details of Hall’s testimony, he

was aware of the general thrust of that testimony and that it could be exculpatory.

Because Hall’s testimony was known before trial, under binding circuit precedent

it does not qualify as newly discovered evidence. See DiBernardo, 880 F.2d at

1224–25; Metz, 652 F.2d at 480.

      Person’s attempts to distinguish or modify that binding precedent are

unavailing. The decisions in DiBernardo and Metz were based on the premise that

previously known but unavailable witness testimony or other evidence cannot be

characterized as “newly discovered” within the meaning of Rule 33. See

DiBernardo, 880 F.2d at 1224; Metz, 652 F.2d at 480. Those decisions were not

based on the presumed motives or trustworthiness of unavailable witnesses or the

reasons for their unavailability. And while Person urges us to temper the principle

that known but previously unavailable testimony, whatever its source or apparent

reliability, is not newly discovered for purposes of Rule 33, we are not at liberty to

do so. See United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008)

(“Under the prior precedent rule, we are bound to follow a prior binding precedent

unless and until it is overruled by this court en banc or by the Supreme Court.”)

(quotation marks omitted).




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      For these reasons, we affirm Person’s conviction under 18 U.S.C. §

922(g)(1) for unlawfully possessing a firearm as a convicted felon and affirm the

district court’s denial of his motion for a new trial.

      AFFIRMED.




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