                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-3660
                                    ___________

United States of America,                *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
Robert Stanford Johnson,                 *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: October 18, 2006
                                  Filed: Feburary 5, 2007
                                  ___________

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       A jury found Robert Stanford Johnson (Johnson) guilty of possession with
intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1); possession of
a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i); and being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). The district court granted Johnson’s post-trial motion for
judgment of acquittal with respect to the two firearm counts, and conditionally granted
a new trial on the same counts in the event the judgment of acquittal was vacated or
reversed on appeal. The government appeals. We reverse the district court’s
judgment of acquittal and conditional grant of a new trial, and remand with
instructions to reinstate the jury’s verdict on both firearm counts.
I.    BACKGROUND
      On October 21, 2004, officers of the Des Moines (Iowa) Police Department
executed a search warrant at a Des Moines residence, located at 1826 Ninth Street.
This residence served as a drug distribution center, in other words, a crack house.
Upon executing the search warrant, officers found Johnson in the residence’s
northeast bedroom asleep on a bed next to an infant. On top of a dresser located next
to Johnson, and within his reach, was a shoebox with a torn lid covering half of the
box. Inside the shoebox was a loaded Taurus .38 caliber handgun, covered by tissue
paper. A search of the bedroom closet revealed several small empty Ziploc plastic
baggies and Johnson’s state identification card. Officers also found a cable bill for the
residence registered in Johnson’s name. A search of Johnson’s pants’ pockets yielded
approximately five grams of cocaine base and over $1,500 in cash.1

       A grand jury indicted Johnson on four counts: (1) conspiracy to distribute
cocaine base, (2) possession with intent to distribute cocaine base, (3) possession of
a firearm in furtherance of a drug trafficking offense, and (4) being a felon in
possession of a firearm. The government dismissed the conspiracy charge, and the
case proceeded to trial on the remaining three counts.

       Desseray Wright (Wright), Johnson’s girlfriend and co-defendant, lived at the
residence and was present during the search on October 21, 2004. Pursuant to a plea
agreement, Wright pled guilty to conspiracy to distribute cocaine base and possession
of a firearm in relation to drug trafficking. At trial, Wright testified Johnson was a
frequent visitor, who did not live at the residence but stayed there “on and off.”
Wright verified Johnson shared the northeast bedroom with her when he stayed at the


      1
        Officers also discovered throughout the residence numerous other items
relating to the distribution of controlled substances, including cash, drugs, a digital
scale, and plastic baggies, as well as two other firearms.

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residence, and Johnson’s family members dropped by the house on a daily basis.
According to Wright, although her name was on the residence’s lease and the
household utilities, Michael Montgomery (Montgomery), Wright’s co-conspirator,
actually paid the residence’s rent. Wright testified, notwithstanding Johnson’s name
on the cable bill, Johnson never paid this bill before being “locked up.” Wright
further testified Johnson did not participate in any crack distribution activities with
Wright or Montgomery.

       During the October 2004 search, officers also located two other firearms in the
residence: the first under a couch in the living room and the second inside a purse in
a dresser located in the bedroom where Johnson was sleeping. Wright testified
Montgomery brought both of these firearms into the residence. According to Wright,
she saw Montgomery with one of the firearms two days before the search and told
Johnson about it, causing Johnson to become upset that Wright allowed someone to
bring a firearm into the house. Wright never observed Johnson in possession of any
of the three firearms. Wright also testified the shoebox itself, containing the Taurus
.38 caliber handgun, belonged to her and was usually stored in the bedroom closet.
In her testimony, Wright denied owning the Taurus .38 caliber handgun or knowing
anything about it. Wright neither placed the handgun in the shoebox nor knew who
moved the shoebox to the dresser. Wright also denied seeing the shoebox on the
dresser or removing a portion of the lid. Wright further testified that on the day of the
search (1) Johnson was alone, sleeping most of the day in the northeast bedroom; and
(2) Wright was the only one to enter the bedroom, and did so when she placed her
infant sister in the bed with Johnson.

      In support of his case, Johnson presented the testimony of his younger brother,
Nolan Allen (Allen), who testified the Taurus .38 caliber handgun found in the
shoebox belonged to Allen. Allen stated he put the gun in the shoebox in his
“brother’s room,” and placed the shoebox on the floor beside the bed before Johnson



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arrived at the residence. Allen also verified the residence’s northeast bedroom was
Johnson’s, and stated Johnson kept a few items in the bedroom.

       Johnson also testified in his defense. Johnson stated that at the time of the
search in October 2004, Johnson rented and stayed at his own residence at 1614
Arlington Avenue in Des Moines, the same address listed on Johnson’s state
identification card. Johnson visited Wright at least once a day and stayed the night
once or twice each week, sleeping in Wright’s northeast bedroom. Johnson testified
that when Wright told him Montgomery brought a gun into the residence, Johnson
told Wright to make Montgomery get rid of the gun, because Johnson was a felon and
“can’t be around weapons.” On October 21, 2004, Johnson arrived at Wright’s
residence around 3:00 p.m. Before going to Wright’s bedroom to rest, Johnson
observed at least eleven people in Wright’s residence, including Wright and
Montgomery.

       The jury convicted Johnson on all three counts. Following trial, Johnson
renewed his motion for judgment of acquittal and alternative motion for a new trial.
The district court denied the motion as to the possession with intent to distribute
count, but granted the motion as to the two firearm counts. Alternatively, the district
court ruled the guilty verdicts on the firearm counts were contrary to the weight of the
evidence and a “miscarriage of justice may have occurred.” Thus, the district court
conditionally granted Johnson’s motion for a new trial on the firearm counts in the
event this court vacated or reversed the district court’s judgment of acquittal.

       The government appeals, arguing the district court erred in granting Johnson’s
motion for judgment of acquittal, and in conditionally granting Johnson a new trial on
the firearm counts.




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II.    DISCUSSION
       A.    Judgment of Acquittal
       Under Federal Rule of Criminal Procedure 29, a district court shall enter a
judgment of acquittal if the evidence presented at trial is insufficient to sustain a
conviction. A district court must consider a motion for judgment of acquittal with
“very limited latitude” and must neither assess the witnesses’ credibility nor weigh the
evidence. United States v. Thompson, 285 F.3d 731, 733 (8th Cir. 2002) (quotation
omitted). Rather, the district court must view the evidence in the light most favorable
to the government, resolving evidentiary conflicts in the government’s favor and
accepting all reasonable inferences drawn from the evidence supporting the jury’s
verdict. Id. “The jury’s verdict must be upheld if there is an interpretation of the
evidence that would allow a reasonable-minded jury to conclude guilt beyond a
reasonable doubt.” Id. In reviewing a judgment of acquittal, we apply the same
standard as the district court. Id.

       To convict Johnson under 18 U.S.C. § 922(g)(1) for being a felon in possession
of a firearm, the government was required to prove beyond a reasonable doubt
(1) Johnson previously had been convicted of a crime punishable by a term of
imprisonment exceeding one year, (2) Johnson knowingly possessed a firearm, and
(3) the firearm had been in or had affected interstate commerce. See United States v.
Maxwell, 363 F.3d 815, 818 (8th Cir. 2004), cert. denied, 543 U.S. 1154 (2005). The
parties stipulated to the first and third elements, thereby making the critical issue
whether Johnson knowingly possessed the Taurus .38 caliber handgun found in the
bedroom in which Johnson was sleeping. The government could prove this element
with evidence showing Johnson had actual or constructive possession of the firearm.
United States v. Walker, 393 F.3d 842, 846-47 (8th Cir.), cert. denied, 126 S. Ct. 463
(2005). “Constructive possession of the firearm is established if the person has
dominion over the premises where the firearm is located, or control, ownership, or
dominion over the firearm itself.” United States v. Claybourne, 415 F.3d 790, 795-96



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(8th Cir. 2005) (quotation omitted). Possession need not be exclusive, but instead
may be joint. Ortega v. United States, 270 F.3d 540, 545 (8th Cir. 2001).

        In granting Johnson’s motion for judgment of acquittal, the district court
determined “the evidence was inadequate to permit a reasonable jury to find beyond
a reasonable doubt that [Johnson] was guilty,” relying, in part, on this court’s opinion
in United States v. Cruz, 285 F.3d 692 (8th Cir. 2002). Such reliance, however, is
misplaced. Cruz addressed whether sufficient evidence supported two defendants’
convictions for possession of methamphetamine with intent to distribute. Id. at 697.
Recognizing a defendant’s mere physical proximity to contraband is insufficient, by
itself, to prove constructive possession, we reversed both defendants’ convictions on
this count, concluding the government presented insufficient evidence to prove the
defendants had constructive possession of the drugs. Id. at 699-700. With regard to
one defendant (Rufino Gonzales), we specifically found the government presented no
evidence establishing the defendant’s dominion and control over the drugs or the
house in which the drugs were found. Id. at 699. We also noted the absence of the
defendant’s “personal effects or venue items” in the house, as well as the lack of any
evidence indicating the defendant either resided at the house or had knowledge of and
control over the drugs. Id.

       Here, in contrast, law enforcement officers found Johnson sleeping in the
residence’s northeast bedroom within arms-reach of a shoebox donning a half-torn lid
and containing the Taurus .38 caliber handgun, veiled in tissue paper. Inside the same
room in the bedroom closet, officers found Johnson’s state identification card and a
cable bill for the residence bearing Johnson’s name. Allen’s testimony indicated
Johnson kept other items in the northeast bedroom as well. Johnson, Wright, and
Allen each testified Johnson shared the northeast bedroom with Wright when Johnson
stayed at the residence. Johnson was present in the house on a daily basis, and slept
in the house one or two nights each week. Wright also testified that on the day of the
search, Johnson was the only adult in the bedroom for most of the day, and Wright

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had been the only other person to enter the bedroom while Johnson was sleeping there.
With regard to the shoebox, which Wright usually stored in the bedroom closet,
Wright denied placing a handgun in the shoebox, moving the shoebox to the top of the
dresser, seeing the shoebox on the dresser, or removing a portion of the shoebox’s lid.
Viewing the evidence in the light most favorable to the government and resolving all
evidentiary conflicts in the government’s favor, we hold a reasonable jury could have
concluded Johnson constructively possessed the firearm.

        Our decision comports with this circuit’s precedent addressing the issue of
constructive possession. See United States v. Davis, 449 F.3d 842, 846 (8th Cir.
2006) (holding the government presented sufficient evidence the defendant
constructively possessed a firearm found in a house based on the presence of the
defendant’s pictures throughout the house, as well as the presence of men’s clothing
and a receipt bearing the defendant’s name in the bedroom where firearm was
located); Claybourne, 415 F.3d at 796 (finding sufficient evidence of the defendant’s
constructive possession of a firearm found in bedroom based on evidence of the
defendant’s dominion over the bedroom; the presence of the defendant’s identification
card, Social Security card, and a telephone bill in the defendant’s name in the
bedroom; and the manner in which the firearm was concealed); United States v. Boyd,
180 F.3d 967, 978-79 (8th Cir. 1999) (finding sufficient evidence of the defendant’s
constructive possession of a firearm found in a bedroom closet given the defendant’s
close proximity to the firearm at time of arrest; the testimony of the defendant’s
girlfriend, who leased the residence, that the bedroom belonged to the defendant; and
the presence of the defendant’s clothing and identification in the closet in which the
firearm was discovered).

      In so holding, we do note Allen’s testimony indicating the firearm actually
belonged to him, not Johnson, and that Allen placed the firearm in the shoebox shortly
before Johnson’s arrival at the residence. While a jury might have viewed this
evidence as the more plausible explanation for the firearm’s existence and concluded

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Johnson did not knowingly possess the firearm, “the presence of one possible
‘innocent’ explanation for the government’s evidence does not preclude a reasonable
jury from rejecting the exculpatory hypothesis in favor of guilt beyond a reasonable
doubt.” United States v. Maloney, 466 F.3d 663, 667 (8th Cir. 2006) (quotation
omitted). The jury easily could have disbelieved Allen’s story and concluded Allen
was covering for his older brother. Indeed, “[w]e enjoy no greater vantage point on
appeal than did the jury at trial, and we have no right to usurp the jury’s role to judge
the facts and make credibility findings.” United States v. Porter, 409 F.3d 910, 915
(8th Cir.), cert. denied, 126 S. Ct. 504 (2005). Given the evidence of Johnson’s well-
known occupancy of the bedroom, the presence of his identification card and a cable
bill bearing his name in the bedroom closet, testimony regarding the location of the
shoebox containing the firearm, and Johnson’s close proximity to the firearm at the
time of the search, we conclude the evidence was sufficient to sustain Johnson’s
conviction for being a felon in possession of a firearm.

        We reach a similar conclusion with regard to Johnson’s conviction for
possession of a firearm in furtherance of a drug trafficking offense, which required the
government to prove Johnson possessed a firearm in furtherance of a drug trafficking
crime and used or carried that firearm during and in relation to a drug trafficking
crime. See 18 U.S.C. § 924(c)(1)(A). In light of our determination there was
sufficient evidence Johnson knowingly possessed the firearm, and given Johnson’s
conviction for possession with intent to distribute cocaine base, we conclude sufficient
evidence supports the jury’s verdict on this count as well. See United States v.
Patterson, 886 F.2d 217, 219 (8th Cir. 1989) (per curiam) (finding “it unnecessary to
engage in a protracted discussion” of defendant’s attack on his conviction under 18
U.S.C. § 924(c), which essentially comprises the elements of possession with intent
to distribute cocaine base, in violation of 21 U.S.C. § 841, and unlawful possession
of a firearm, in violation of 18 U.S.C. § 922(g)).




                                          -8-
        B.    Conditional Grant of Motion for a New Trial
        The government next argues the district court erred in conditionally granting
Johnson’s motion for a new trial on the two firearm counts, a decision which we
review for an abuse of discretion. United States v. Campos, 306 F.3d 577, 579 (8th
Cir. 2002) (standard of review). Federal Rule of Criminal Procedure 33(a) authorizes
a district court to “vacate any judgment and grant a new trial if the interest of justice
so requires.” However, motions for new trials based on the weight of the evidence
generally are disfavored, and the district court’s authority to grant a new trial should
be exercised sparingly and with caution. Campos, 306 F.3d at 579. The jury’s verdict
must be allowed to stand unless “the evidence weighs heavily enough against the
verdict [such] that a miscarriage of justice may have occurred.” United States v.
Lacey, 219 F.3d 779, 783 (8th Cir. 2000) (quotation omitted). In determining whether
a defendant is entitled to a new trial, the district court “may weigh the evidence and
in so doing evaluate for itself the credibility of the witnesses.” Walker, 393 F.3d at
847 (quotation omitted). If, after performing this task, the district court concludes
“the evidence preponderates sufficiently heavily against the verdict that a serious
miscarriage of justice may have occurred, it may set aside the verdict, grant a new
trial, and submit the issues for determination by another jury.” United States v.
Anwar, 428 F.3d 1102, 1109 (8th Cir. 2005), cert. denied, 126 S. Ct. 1806 (2006)
(quotation omitted).

       Applying these principles, we conclude the district court abused its discretion
in granting Johnson’s motion for a new trial on the two firearm counts.
Notwithstanding the district court’s proper citation to the aforementioned standards
in its Rule 33 analysis, the district court failed to give due weight to the evidence
tending to show Johnson knowingly possessed the firearm. Even assuming the district
court credited Allen’s testimony that he, not Johnson, owned the firearm and placed
the firearm in the shoebox on the floor beside the bed, there was no testimony Allen
removed a portion of the shoebox lid or placed the shoebox on the dresser before
leaving the bedroom. Similarly, Wright testified she usually kept the shoebox in her

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closet—the same closet in which Johnson’s identification and the cable bill in his
name were both found—and denied moving the shoebox to the dresser top or seeing
the shoebox in that location. Moreover, Wright indicated after Johnson went in the
bedroom to sleep, Wright and her infant sister were the only persons who entered the
room before the search.

       These facts, in combination with Johnson’s close proximity to the shoebox
containing the firearm at the time of the search, convince us the jury’s guilty verdicts
on the firearm counts must stand. The jury’s verdicts, based on the record evidence
and all the reasonable inferences drawn from the evidence, are not against the weight
of the evidence and do not leave this court with the sense any miscarriage of justice
may have occurred. The grant of a new trial under Rule 33 is reserved for
“exceptional cases in which the evidence preponderates heavily against the verdict.”
See 3 Charles Alan Wright et al., Federal Practice and Procedure § 553 (3d ed. 2004).
The case at bar does not fall within this category. Accordingly, we reverse the district
court’s conditional grant of a new trial.

III.   CONCLUSION
       For the foregoing reasons, we reverse the district court’s judgment of acquittal
and its conditional grant of a new trial. We remand this case to the district court with
instructions to reinstate the jury’s verdicts on both firearm counts.
                         ______________________________




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