                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________  ELEVENTH CIRCUIT
                                                           SEPT 11, 2008
                            No. 07-15672                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                   D. C. Docket No. 07-00068-CR-KD

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

VINCENT L. HUTCHINS, SR.,

                                                       Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Alabama
                     _________________________

                         (September 11, 2008)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
      Vincent L. Hutchins, Sr., appeals his conviction for possessing two firearms

that had not been registered to him in the National Firearms Registration and

Transfer Record, in violation of 26 U.S.C. § 5861(d) . He raises two issues on

appeal, arguing the district court erred in denying his motion for judgment of

acquittal and the court abused its discretion in admitting evidence of

pseudophedrine found near the illegal firearms.

      First, Hutchins contends the district court erred in denying his motion for

judgment of acquittal because the Government offered insufficient evidence to

support his conviction. More specifically, Hutchins claims the Government failed

to show he had ever seen or actually possessed the firearms or that he had

knowledge of the specific characteristics of the firearms that required them to be

registered.

      We review the denial of a motion for judgment of acquittal de novo. United

States v. Brown, 441 F.3d 1330, 1368 (11th Cir. 2006). We apply the same

standard we use in reviewing the sufficiency of the evidence, viewing the facts and

drawing all reasonable inferences in the light most favorable to the Government.

United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002). The denial will be

upheld when “a reasonable fact-finder could conclude that the evidence




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established the defendant’s guilt beyond a reasonable doubt.” Id. (quotations and

citation omitted).

      Under § 5861(d), it is unlawful for any person “to receive or possess a

firearm which is not registered to him in the National Firearms Registration and

Transfer Record.” 26 U.S.C. § 5861(d). The term “firearm” includes “a shotgun

having a barrel or barrels of less than 18 inches in length.” Id. § 5845(a)(1).

Constructive possession is sufficient to sustain a conviction under § 5861(d).

United States v. Crawford, 906 F.2d 1531, 1534-35 (11th Cir. 1990).

“Constructive possession exists when a defendant has ownership, dominion, or

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

vehicle in which the object is concealed.” United States v. Leonard, 138 F.3d 906,

909 (11th Cir. 1998).

      Though § 5861(d) has no express mens rea requirement, the Government

must prove beyond a reasonable doubt “the defendant knew that the weapon he

possessed had the characteristics that brought it within the statutory definition of a

firearm.” United States v. Miller, 255 F.3d 1282, 1286 (11th Cir. 2001) (emphasis

in original). “There is no requirement under the statute that the defendant knew

that his possession was unlawful, or that the firearm was unregistered.” Id. at

1286 n.3. The Government need only show the defendant knew “the weapon has

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the features that subject it to registration requirements;” the defendant “does not

have to know what features define a ‘firearm’ under 26 U.S.C. § 5845(a).” United

States v. Ruiz, 253 F.3d 634, 638 n.4 (11th Cir. 2001). A jury can infer “the

requisite knowledge from the condition of the object . . . ‘including any external

indications signaling the nature of the weapon.’” United States v. Moore, 253

F.3d 607, 611 (11th Cir. 2001) (quoting Staples v. United States, 114 S. Ct. 1793,

1802 n.11 (1994)). We have upheld a jury verdict where the Government offered

no direct evidence the defendant knew his shotgun’s barrel was shorter than 18

inches, noting “the length of the barrel is a patently obvious characteristic, readily

apparent to anyone . . . who observes the gun.” Miller, 255 F.3d at 1287.

Testimony 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. Id.

      The district court did not err in denying Hutchins’ motion for judgment of

acquittal. Police found the firearms in a shed on Hutchins’ property. Hutchins

had the key that opened the shed in his bedroom, he directed police to the location

of his keys, and he correctly identified the key that unlocked the padlock on the

shed’s door. A reasonable jury could find Hutchins constructively possessed the

firearms based on his access to and control over the shed. At trial, Hutchins

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stipulated that the barrels of the shotguns were less than 18 inches, a fact that

would be readily apparent to anyone who saw the guns. So, the jury could infer

Hutchins knew the shotguns had characteristics that required them to be

registered. There is no dispute that the shotguns were not registered to Hutchins

in the National Firearms Registration and Transfer Record. Thus, a reasonable

jury could conclude the Government proved Hutchins’ guilt beyond a reasonable

doubt, and the district court did not err in denying Hutchins’ motion.

      Second, Hutchins contends the district court abused its discretion when it

admitted evidence of the pseudophedrine found near the shotguns. He claims the

evidence is irrelevant and highly prejudicial, since it is not probative as to his

illegal possession of firearms and creates the impression he is involved in illegal

drug activity, when no other evidence to that effect was produced.

      We review evidentiary rulings for an abuse of discretion. United States v.

Thomas, 242 F.3d 1028, 1031 (11th Cir. 2001). Under this standard, we must

affirm unless we conclude the district court made a clear error of judgment or

applied the wrong legal standard. United States v. Drury, 396 F.3d 1303, 1315

(11th Cir. 2005). Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Fed. R. Evid.

                                           5
401. Though generally admissible, relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice . . . .”

Fed. R. Evid. 403. We will not reverse based on the district court’s erroneous

admission of evidence if the error did not substantially influence the outcome and

sufficient evidence uninfected by error supports the verdict. United States v.

Harriston, 329 F.3d 779, 789 (11th Cir. 2003). An error in admitting evidence is

harmless “where there is overwhelming evidence of guilt.” Id.

      Evidence of illegal drugs or drug trafficking in close proximity, temporally

and physically, to firearms is relevant to proving knowing possession of the

weapons. Thomas, 242 F.3d at 1031-32. The presence of drug paraphernalia is

likewise admissible to prove possession of firearms found in the same room. Id.

(citing United States v. Fuller, 887 F.2d 144, 147 (8th Cir. 1989) (admitting

evidence of drug paraphernalia to show possession of sawed-off shotgun in

violation of 26 U.S.C. § 5861(d) because of “close and well-known connection

between firearms and drugs”)).

      While evidence of illegal drugs is relevant to showing possession of

firearms, pseudophedrine is not an illegal drug; it is just an ingredient used to

make illegal drugs. Additionally, the limited amount found and the absence of

other lab materials in the shed belie the inference that the pseudophedrine was for

                                          6
drug making. Even if the district court erred in finding the probative value of the

pseudophedrine to show possession of the firearms was not outweighed by the

prejudicial inference arising from the evidence that Hutchins was involved with

illegal narcotics, the error was harmless, since there was sufficient evidence

uninfected by error from which the jury could convict Hutchins. As discussed

above, the jury could infer constructive possession of the firearms from Hutchins’

access to and control of the locked shed where the firearms were found. Hutchins

stipulated that the barrels were less than 18 inches, and it is undisputed the

shotguns were not registered, as required by 26 U.S.C. § 5861(d).

      After a review of the record and upon consideration of the briefs of the

parties, we discern no reversible error. Therefore, we affirm.

      AFFIRMED.




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