                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                       November 29, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-7000
                                                 (D.C. No. 6:15-CR-00050-JHP-1)
KENNETH JAMES HEBERT, a/k/a Keno,                          (E.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

      Kenneth Hebert appeals his conviction following a jury trial for being a felon

in possession of an explosive device, in violation of 18 U.S.C. §§ 842(i)(1) and

844(a)(1) and (2). He asserts that the evidence was insufficient to sustain his

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

                                           I

      Hebert lived in a house in Hugo, Oklahoma, with Carney Hood, Hood’s

girlfriend Lacy Miller, and Miller’s two children. The house was condemned and the

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
occupants were told to leave. Sometime after they vacated the house, Ricky Britt, a

Code Enforcement Officer, removed blankets covering a window so patrolling police

officers could see if people were inside. Britt discovered a box of blasting caps in a

bedroom, together with items that looked like bomb-building materials. He looked in

the box and very gently picked out one of the items to confirm that it was a blasting

cap. He then replaced it and called the police.

      Hebert was indicted and charged with being a felon in possession of an

explosive, which makes it unlawful for any person who has been convicted of a

felony to “possess any explosive which has been shipped or transported in or

affecting interstate . . . commerce.” 18 U.S.C. § 842(i)(1). At trial, the government

presented four witnesses. First, Britt testified about finding the box of blasting caps.

Second, Lieutenant Steve Babcock, a Hugo police officer, testified that he responded

to Britt’s call reporting the box of blasting caps. Third, Miller testified about seeing

the box in the house where she and Hebert had lived. And finally, Special Agent for

the Bureau of Alcohol, Tobacco, Firearms and Explosives, Ashley Stephens, related

his interview with Hebert after his arrest, during which Hebert said he acquired the

box of blasting caps when he cleaned out the shed of an acquaintance. Hebert told

Agent Stephens that he took the box home and gave it to Hood, and that he did not

know what was in the box. Agent Stephens also testified that a blasting cap is a

primary explosive whose purpose is to initiate a secondary high explosive. Both

officers described the warnings printed on the box of blasting caps.



                                            2
       At the close of the government’s case, Hebert moved for a judgment of

acquittal based on insufficient evidence. The court denied the motion. Hebert did

not testify and the defense presented no evidence. The jury returned a guilty verdict.

Hebert was sentenced to 63 months’ imprisonment, followed by three years of

supervised release. He timely appealed, arguing the evidence presented at trial that

he knew the box contained explosive blasting caps was insufficient to convict him.1

                                            II

       “We review the denial of a motion for judgment of acquittal, and hence the

sufficiency of the evidence to support the jury verdict, de novo.” United States v.

Alexander, 817 F.3d 1205, 1209 (10th Cir. 2016) (quotation omitted). This requires

us to “view the evidence in the light most favorable to the government to determine

whether a rational trier of fact could have found the elements of the offense beyond a

reasonable doubt.” Id. (quotation omitted). “[T]his court does not decide credibility

issues or reweigh the evidence.” United States v. Johnson, 821 F.3d 1194, 1201

(10th Cir. 2016). Rather, “[w]e accept the jury’s resolution of conflicting evidence.

As long as the possible inferences are reasonable, it was for the jury, not the court, to

determine what may have occurred. The only question is whether the government’s

evidence, credited as true, suffices to establish the elements of the crime.” Id.

(citations, ellipsis, and quotations omitted).

       1
         To the extent Hebert contends the government failed in its burden to prove
that a blasting cap is an explosive as defined by 18 U.S.C. § 844(j), he stipulated
before the district court that the blasting caps were explosives under federal law.
Moreover, he has not attempted to refute Agent Stephens’ testimony that the blasting
caps were explosives.
                                            3
                                           III

      To establish Hebert’s guilt under § 842(i)(1), the government was required to

“prove beyond a reasonable doubt that: (1) [he] was previously convicted of a

felony; (2) he thereafter knowingly shipped, transported, received or possessed an

explosive; and (3) the possession was in or affecting interstate or foreign commerce.”

United States v. Markey, 393 F.3d 1132, 1135 (10th Cir. 2004). Only the second

element of knowledge is in dispute; Hebert stipulated that he was a convicted felon,

that the blasting caps were explosives, and that the blasting caps had traveled in

interstate commerce.

      Hebert argues that the evidence was insufficient to show he knowingly

possessed explosives because two of the four trial witnesses testified that they

thought the box found in Hebert’s former residence contained something other than

blasting caps. He relies on the testimony of Officer Britt that when he first looked at

the box, he thought it contained shoelaces. Acknowledging Britt’s unequivocal

statement that, after he read the warnings on the box and looked at one of the items in

the box, he knew they were blasting caps, Hebert nevertheless contends that Britt

would not have picked one up if he truly believed they were blasting caps. And he

misstates Britt’s testimony by saying Britt did not know what was in the box until he

read the writing on the individual blasting cap that he picked up. But Britt testified

that it looked like shoelaces until he read the writing on the box that said blasting

caps. Thus, the jury was fully justified in crediting Britt’s testimony that he knew the

box contained blasting caps. See Johnson, 821 F.3d at 1202.

                                            4
       Hebert next points to the testimony of his former housemate Miller. Miller

testified that during her initial telephone interview with the police, she said she

thought the box contained speaker wire. At trial, however, she stated that Hebert

offered the box to Hood and said they were blasting caps. Hebert argues that if

Miller had known the box contained blasting caps, she would not have permitted

them near her children. This is mere speculation; there is no evidence of Miller’s

parenting policies. Again, we do not reweigh the evidence, but assess it in the light

most favorable to the government.

       Thus, Hebert’s argument is that there was no evidence that he knew what the

box contained—a position supported by two witnesses who also did not realize the

box contained blasting caps. But Britt’s testimony was clear: He knew the box

contained blasting caps, so he called the police and guarded the box until it was

removed from the house. Miller’s testimony was less clear. She explained that she

was untruthful during the telephone interview with the police because she did not

want to become involved. Even though Miller changed her story, it was within the

province of the jury to decide what part of her testimony to credit and what to reject.

Cf. United States v. Cooper, 654 F.3d 1104, 1115 (10th Cir. 2011) (holding court

does not “weigh conflicting evidence or consider witness credibility,” and witnesses’

conflicting or differing accounts do “not necessarily render the evidence

insufficient”).

       Hebert also contends that the jury was confused, as evidenced by a note they

sent out during deliberations asking whether they were to determine that Hebert was

                                            5
guilty of being a felon in possession of an explosive or that he was guilty of knowing

he was in possession of an explosive. After consultation with counsel, the court

responded that the jury had received all the law and evidence appropriate for their

consideration. However, the issue on appeal is not jury confusion, but whether the

evidence and the reasonable inferences to be drawn from it were sufficient to convict.

      Furthermore, the writing on the box itself was sufficient evidence from which

the jury could infer that Hebert knew the box contained blasting caps and the blasting

caps were explosives. The following wording was clearly displayed on the box:

“DANGEROUS EXPLOSIVES,” “KEEP FROM CHILDREN,” “LOCK UP

BLASTING CAPS,” and “HANDLE CAREFULLY.” These cautions plainly printed

on the outside of the box, together with Hebert’s statement that he took the box home

from the shed where he found it, gave rise to the reasonable inference that Hebert

knowingly possessed an explosive device.

                                          IV

      We AFFIRM Hebert’s conviction.


                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




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