                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 18 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10051

              Plaintiff - Appellee,              D.C. No. 1:12-cr-00293-AWI-
                                                 BAM-1
 v.

JASWINDER SINGH,                                 MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Anthony W. Ishii, Senior District Judge, Presiding

                       Argued and Submitted January 5, 2016
                            San Francisco, California

Before: WALLACE, KOZINSKI, and O’SCANNLAIN, Circuit Judges.

      Jaswinder Singh appeals from his jury conviction of one count of being an

alien in possession of a firearm under 18 U.S.C. § 922(g)(5)(A). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                         I.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      “We review de novo the district court’s denial of the motion to suppress, but

review the underlying findings of fact for clear error.” United States v. Rodgers,

656 F.3d 1023, 1026 (9th Cir. 2011).

      At the motion to suppress hearing, the district judge determined that the

federal agents did not have probable cause to conduct a custodial interrogation, but

that during the time period leading up to Singh’s formal arrest, Singh was free to

leave, and thus no de facto arrest or Fourth Amendment violation occurred. Upon

de novo review, based on the informant’s detailed letters regarding Singh’s false

identity and the agents’ corroboration that Singh had a gun in his control, the

agents had probable cause to believe Singh was an alien in constructive possession

of a firearm before he was interviewed. Any evidence obtained during the

interview is therefore admissible.

      “An informant’s description of illegal activity is sufficient to establish

probable cause if the totality of the circumstances indicate that the tip is reliable.”

United States v. Elliott, 893 F.2d 220, 223 (9th Cir. 1990). A detailed report

displaying an adequate basis for the informant’s knowledge and the revealed

identity of the informant are indicia of veracity and reliability of information. Id.

      The informant, Singh’s ex-girlfriend, sent letters to Immigration and

Customs Enforcement (ICE) identifying Singh as an illegal alien. The responding


                                            2                                      14-10051
ICE agent then called the informant before approaching Singh at the store. Thus,

based on detailed information provided by a known informant, the officers had

probable cause to believe that Singh was unlawfully in the United States.

      The agents also had probable cause to believe that Singh had constructive

possession of a firearm prior to the interview. Constructive possession of a firearm

is established when a person knows of its presence and has the power and intention

to control it. United States v. Nungaray, 697 F.3d 1114, 1117 (9th Cir. 2012). The

informant wrote that Singh had a gun, and the agents corroborated that information

upon entering the store. When asked if there was a gun, Singh responded

affirmatively and reached below the counter. Singh knew of the gun’s presence,

was able to reach it from where he stood, and did so. At that point, the agents had

reasonably trustworthy information to believe that Singh had the power and

intention to control the gun.

      Because the agents had probable cause to arrest Singh prior to the interview

that took place in the back room, the district court’s denial of the motion to

suppress was proper. We need not decide whether the interview in fact constituted

a de facto arrest or custodial interrogation. If the agents de facto arrested Singh,

the agents had probable cause to do so.

                                          II.


                                           3                                     14-10051
      We review de novo a district court’s denial of a motion for acquittal based

on insufficiency of the evidence. United States v. Mincoff, 574 F.3d 1186, 1191-92

(9th Cir. 2009). Viewed in a light most favorable to the government, id., the

evidence permits a rational trier of fact to find the elements of possession of a

firearm by an illegal alien.

      The informant’s letters were in evidence at trial in addition to her testimony

regarding Singh’s unlawful presence and the existence of a gun. The government

introduced testimony about Singh’s actions and statements in the store to prove

constructive possession of a firearm. Further, the inculpatory statements Singh

made during the back room interview are admissible because the agents had

sufficient probable cause to make an arrest.

                                          III.

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

new trial. United States v. King, 660 F.3d 1071, 1076 (9th Cir. 2011). Singh

contends that the evidence and the equities weighed heavily against the jury verdict

on a constructive possession theory. For the same reasons the district court did not

err in denying the motion for acquittal based on the government’s evidence under

de novo review, we hold the district court did not abuse its discretion in denying

the motion for a new trial.


                                           4                                    14-10051
AFFIRMED.




            5   14-10051
