                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2233
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                Ronald F. White, Jr.

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                           Submitted: January 18, 2019
                            Filed: February 15, 2019
                                 ____________

Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
                       ____________

SHEPHERD, Circuit Judge.

       Following our prior remand, United States v. White, 863 F.3d 784, 787 (8th
Cir. 2017) (en banc) (reversing conviction for possession of an unregistered firearm
and remanding for a new trial), and after a bench trial, Ronald F. White, Jr. was
convicted of possession of an unregistered firearm, in violation of 26 U.S.C.
§§ 5841, 5861(d), and 5871. Police officers found the firearm at issue, a 12-gauge
shotgun known as a “Street Sweeper,” in a duffel bag in a bedroom closet at White’s
parents’ residence. White would stay in the bedroom during his visits. The district
court1 sentenced White to 46 months imprisonment, with credit for time served,
and three years of supervised release. On appeal, White argues the evidence
presented at trial was insufficient to show he constructively possessed the
shotgun or that he was aware of the shotgun’s physical characteristics that brought
it within the ambit of the National Firearms Act, 26 U.S.C. § 5801 et seq. Having
jurisdiction under 28 U.S.C. § 1291, we affirm.

                                          I.

       “Sufficiency of evidence is highly fact intensive,” United States v. Patton, 899
F.3d 560, 563 (8th Cir. 2018), and “[o]ur review of the sufficiency of evidence is
limited.” United States v. Beltz, 385 F.3d 1158, 1163 (8th Cir. 2004). “We review
the sufficiency of the evidence de novo, viewing evidence in the light most favorable
to the government, resolving conflicts in the government’s favor and accepting all
reasonable inferences that support the verdict.” United States v. Grimes, 825 F.3d
899, 902 (8th Cir. 2016) (quoting United States v. Washington, 318 F.3d 845, 852
(8th Cir. 2003)). This same standard of review applies to bench trials. See United
States v. Erhart, 415 F.3d 965, 969 (8th Cir. 2005). “A [ ] verdict may be based on
circumstantial as well as direct evidence, and [t]he evidence need not exclude every
reasonable hypothesis except guilt. Indeed, [i]f the evidence rationally supports two
conflicting hypotheses, the reviewing court will not disturb the conviction.” United
States v. McArthur, 573 F.3d 608, 614 (8th Cir. 2009) (alterations in
original) (internal quotation marks and citations omitted). We “will reverse only if
there is no construction of the evidence that supports the verdict.” United States v.
Provost, 237 F.3d 934, 937 (8th Cir. 2001) (emphasis added).


      1
      The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.

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                                          II.

       “Section 5861(d) criminalizes possession of an unregistered ‘firearm.’” White,
863 F.3d at 786 (quoting 26 U.S.C. § 5845(a), (f)). The government must prove the
following elements beyond a reasonable doubt. First, that White knew he had
possession of the firearm. See United States v. Dukes, 432 F.3d 910, 915 (8th Cir.
2006). Second, that he “knew of the physical characteristics of the [firearm] bringing
[it] within the ambit of the Act.” White, 863 F.3d at 790. The Act defines a firearm
“to include a ‘destructive device,’ the barrel of which has a bore of more than
one-half inch in diameter.”2 Id. at 786 (quoting 26 U.S.C. § 5845(a), (f)). “The Street
Sweeper, a 12-gauge shotgun, is subject to the Act’s registration mandate because it
has a bore diameter of .729 inches.” Id. “[K]nowledge of the bore diameter is a
necessary element of the offense.” Id. at 792. Third, that the firearm was “not
registered to [White] in the National Firearms Registration and Transfer Record.”
26 U.S.C. § 5861(d). White challenges only the first and second elements.

        “Knowing possession may be actual or constructive.” Grimes, 825 F.3d at 902
(citing United States v. Hamilton, 332 F.3d 1144, 1150 (8th Cir. 2003)). The
government’s case against White was based on constructive possession.
“Constructive possession requires that the defendant has dominion over the premises
where the firearm is located, or control, ownership, or dominion over the firearm
itself. Constructive possession may be established by circumstantial evidence alone,
but the government must show a sufficient nexus between the defendant and the
firearm.” Id. (quoting United States v. Garrett, 648 F.3d 618, 622 (8th Cir. 2011)).
“[C]onstructive possession requires knowledge of the presence of a firearm . . . .”

      2
       In cases involving destructive devices, the government need not prove that the
firearm was capable of operating as designed or could readily be put in operating
condition because “it is not necessary that the device actually function as intended.”
United States v. Ragusa, 664 F.2d 696, 700 (8th Cir. 1981); accord United States v.
Hammond, 371 F.3d 776, 781 n.3 (11th Cir. 2004).

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United States v. White, 816 F.3d 976, 985 (8th Cir. 2016) (citing United States v.
Battle, 774 F.3d 504, 511 (8th Cir. 2014)). In the usual case, “the defendant’s control
over the area where the weapon was found . . . gives rise to a strong inference of
knowledge,” which “may be rebutted if other evidence contradicts it.” United States
v. Dooley, 580 F.3d 682, 686 (8th Cir. 2009). Additionally, “knowledge can be
inferred from circumstantial evidence, including any external indications signaling
the nature of the weapon.” Staples v. United States, 511 U.S. 600, 615 n.11 (1994).

                                          A.

       First, regarding whether White knew he possessed the shotgun, the district
court found “the duffel bag containing the Street Sweeper had the Amtrak train ticket
in [White’s name],” the “revolver found in the duffel bag along with the Street
Sweeper had [White’s] DNA,” the “owners of the home denied knowledge of the
guns and the duffel bag,” and “the duffel bag was found in the bedroom where
[White] sometimes stayed.” The district court found it “significant that the duffel bag
was found in that bedroom[’s] closet,” and that testimony established that White “had
some clothes there.” Cf. Patton, 899 F.3d at 563 (“That [the defendant]’s personal
documents were found with the ammunition [in a drawer] links [him] to the
ammunition and supports a reasonable inference that he knew it was there.”); United
States v. Boykin, 986 F.2d 270, 274 (8th Cir. 1993) (finding sufficient evidence of
constructive possession of a firearm because the evidence showed the
defendant’s “personal belongings were in the bedroom where the firearms were
located”). There was ample circumstantial evidence for the district court to
reasonably infer White constructively possessed the shotgun because he had access
to and control over the duffel bag found in his bedroom closet and had knowledge of
the shotgun because it was found inside the duffel bag along with the revolver, which
had his DNA on it, and the train ticket in his name.




                                         -4-
       White asserts, however, that the district court’s findings establish he had
constructive possession of the duffel bag, not constructive possession of the shotgun.
He asserts there was no evidence from which the district court could infer he knew
of the contents inside the duffel bag. See Appellant’s Br. 21 (“Even if Mr. White had
dominion and control over the bedroom or the duffel bag that does not mean that he
knew there was a firearm in the bag that had a bore over one-half inch in diameter.”).
At oral argument, defense counsel acknowledged it would be a “reasonable
inference” that White was “in the bag at some point in time” but, White argues, “[t]he
government did not present evidence that [he] opened the duffel bag while the Street
Sweeper was inside it” nor that he placed the revolver inside the bag “at the time the
bag contained the Street Sweeper.” Id. at 21-22 (emphasis added). In other words,
White states it is unknown how and when the shotgun got into the duffel bag.

       White’s arguments, however, are merely hypothetical. Here, at the very least,
“the evidence rationally supports two conflicting hypotheses.” McArthur, 573 F.3d
at 614 (internal quotation marks omitted). Although both hypotheses may be
reasonable, it is White’s that we must disregard on review. See id. This is
notwithstanding White’s reliance on United States v. Pace, 922 F.2d 451 (8th Cir.
1990). In Pace, we concluded the evidence was “insufficient to justify a reasonable
inference [the defendant] knew he was driving a car full of cocaine” because there
was no evidence he “opened or examined” the luggage containing the cocaine, which
belonged to another individual in the car. Id. at 453. Here, unlike in Pace, defense
counsel acknowledged it would be a “reasonable inference” that White was “in the
bag at some point in time.”

                                          B.

      Next, regarding whether White knew the shotgun had a bore diameter of more
than one-half inch, the district court found “the person possessing the gun is easily
aware of the bore being more than a half inch.” White asserts “[t]he court did not find

                                         -5-
[he] had ever seen or handled the Street Sweeper” nor did it find he “was familiar
with Street Sweeper shotguns in particular or shotguns in general, such that he would
know that 12 gauge shotguns have bores wider than one-half inch.”
Appellant’s Br. 23. We have already discussed the sufficiency of the evidence as to
White’s knowing possession of the shotgun. Further, in the absence of direct
evidence, the district court “can infer the requisite knowledge [of the physical
characteristics of a firearm] from the condition of the [firearm] . . . including any
external indications signaling the nature of the weapon.” United States v. Hutchins,
292 F. App’x 842, 844 (11th Cir. 2008) (per curiam) (internal quotation marks
omitted); see also Staples, 511 U.S. at 615 n.11; United States v. Spinner, 152 F.3d
950, 963 (D.C. Cir. 1998) (Garland, J., dissenting) (“[T]he law has no preference for
direct evidence over circumstantial, . . . and often it is the latter that is the more
reliable.”).

       In Hutchins, the court noted that “[t]estimony about the length of the gun’s
barrel and the admission of the gun into evidence can be sufficient circumstantial
evidence from which a jury could infer the defendant knew the length of the gun
barrel was less than 18 inches.” 292 F. App’x at 844 (citing United States v. Miller,
255 F.3d 1282, 1287 (11th Cir. 2001)); see also United States v. Gonzales, 535 F.3d
1174, 1179 (10th Cir. 2008) (finding sufficient evidence for jury to reasonably infer
the defendant knew the shotgun’s barrel was less than eighteen inches in length
because of testimony from officers regarding its length and because the shotgun was
also admitted into evidence). Although Hutchins involved testimony about the length
of a gun’s barrel, we see no meaningful distinction between testimony about the
length of a shotgun’s barrel versus the bore size of the barrel, especially if the
shotgun was admitted into evidence. Here, there is sufficient evidence of White’s
knowing possession of the shotgun. Moreover, there is testimony that the shotgun’s
bore diameter was approximately .752 inches, and the shotgun was admitted into
evidence. Accordingly, there was ample circumstantial evidence for the district court



                                         -6-
to reasonably infer White knew the shotgun had a bore diameter of more than one-
half inch.

                                      III.

      The judgment is affirmed.
                     ______________________________




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