                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                No. 07-10257                    JAN 09 2008
                            Non-Argument Calendar             THOMAS K. KAHN
                                                                  CLERK
                          ________________________

                     D. C. Docket No. 06-00101-CR-3-LAC

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                     versus

ORTAYVIUS LESURE,
HALEIFU GOLDSMITH,

                                                          Defendants-Appellants.
                          ________________________

                  Appeals from the United States District Court
                      for the Northern District of Florida
                        _________________________

                                (January 9, 2008)

Before ANDERSON, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      After a jury trial, Ortayvius Lesure appeals his conviction for possession of

multiple firearms and ammunition by a convicted felon, a violation of 18 U.S.C.
§§ 922(g)(1) and (2), and Haleifu Goldsmith appeals his conviction for aiding and

abetting the foregoing offense, a violation of 18 U.S.C. §§ 922(g)(1) and 2.1 On

appeal, the defendants challenge the sufficiency of the evidence to support their

convictions. More specifically, Lesure asserts that the government proved only

that he was in the “mere vicinity” of the firearms seized by law enforcement when

he was arrested, but not that he was in possession of those firearms. Goldsmith

contends that the evidence was insufficient to convict him of aiding and abetting

the crime of being a felon in possession of a firearm, because the government

failed to prove that Goldsmith knew that Lesure, the principal, was a convicted

felon. Goldsmith also asserts, for the first time on appeal, that the district court

erred by instructing the jury on aiding and abetting a § 922(g) offense, because the

instruction did not explain that the government was required to prove that he, as

the aider and abettor, had to know of the principal’s status as a convicted felon.

After careful review, we affirm.

                                               I.




       1
         Lesure has abandoned any sufficiency challenge to his conviction for aiding and abetting
by failing to sufficiently develop an argument on that basis in his brief. Cf. United States v.
Jernigan, 341 F.3d 1273, 1284, n.8 (11th Cir. 2003) (concluding that an appellant abandoned a
Fed.R.Evid. 404(b) argument on appeal where his brief contained “only four passing references to
the evidence admitted under Fed.R.Evid. 404(b), each of which [was] embedded under different
topical headings”). For the same reason, Goldsmith has abandoned any such challenge to his
conviction for possession of a firearm by a convicted felon.

                                               2
      The relevant facts are these.    On September 20, 2006, in a superceding

indictment, Lesure was charged with possessing multiple firearms and ammunition

after previously being convicted of a felony and Goldsmith was charged with

aiding and abetting the foregoing offense (“Count One”), in violation of 18 U.S.C.

§§ 922(g)(1) and 2; in Count Two of the superseding indictment, Goldsmith was

charged with possessing multiple firearms and ammunition after previously being

convicted of a felony and Lesure was charged with aiding and abetting the

foregoing offense (“Count One”), in violation of 18 U.S.C. §§ 922(g)(1), 924(e)

and 2. The defendants, through separate appointed counsel, both pled not guilty

and proceeded to a joint jury trial.

      At trial, the government presented the following evidence. Deputy David

Brown, of the Escambia County Sheriff’s Office (“ECSO”), was working the late-

night shift on June 9, 2006, when he responded to a radio call regarding a

disturbance at room number 235 of the Western Inn, a motel in Pensacola, Florida.

When he arrived at the motel, he stood in the hallway for approximately one

minute and overheard two males arguing inside of room number 235. One of the

males was yelling that he wanted a gun in order to shoot someone.

      At some point, one of the males, whom Deputy Brown later identified as

Goldsmith, opened the motel room door, observed Brown and other officers



                                         3
standing outside, and immediately slammed the door shut. The officers then forced

entry into the motel room, at which point Deputy Brown observed Goldsmith

diving onto the floor and the other male, later identified as Lesure, standing near a

table at the edge of the bed. In addition to the defendants, there also was a minor

female, who was seated on the bed. As the officers entered the motel room, Lesure

and Goldsmith continued yelling and Lesure started saying that there were firearms

in the motel room. Thereafter, Deputy Brown observed in plain view two .22

caliber rounds on top of a microwave in the motel room and a loaded firearm, a .38

caliber handgun, on a shelf near the motel room door. Brown testified that the .38

caliber handgun was “readily accessible” to Goldsmith at the time he first opened

the motel room door and observed the officers standing outside.

      After the officers read Lesure and Goldsmith their Miranda rights, Lesure

indicated that more firearms were inside of a red bag near a chair and next to the

bed. The officers ultimately recovered six firearms and some ammunition from

this bag, as well as a small pocket firearm, a .22 Derringer, from behind the chair.

The Derringer and the bag of handguns were located in close proximity to where

Lesure was standing when the officers entered the motel room. The officers also

recovered six or seven “big pieces” of crack cocaine.




                                         4
      After the arrests, while he was sitting in the police car, Goldsmith stated that

he originally went to room number 235 to get a gun to shoot two people who had

allegedly robbed him of his drugs. Goldsmith also admitted that he was the person

whom Deputy Brown had overheard yelling for a gun to shoot some people. The

officers later determined that Lesure and his girlfriend had rented the motel room.

      Deputy Krystal Jeffcoat, also of the ECSO, participated in the forced entry

into room 235 and subsequent arrest of the defendants. She testified consistently

with Deputy Brown’s description of the events. Deputy Jeffcoat described Lesure,

upon being detained, as sweating and repeatedly stuttering, “the bed, the bag, the

bed, the bag.” Deputy Jeffcoat also described Lesure as “real[ly] jumpy and

looking over his shoulder,” and “just acting very nervous.” At one point, Deputy

Jeffcoat asked Lesure where the bag of guns, to which Lesure had referred, was

located. Lesure nodded towards a chair right next to the bed. Another officer

retrieved a red book bag from under the chair, and discovered that it contained

firearms and ammunition.

      Deputy Jeffcoat further indicated that Lesure provided at least three false

names, as well as a false address, Social Security number, and a date of birth.

Lesure eventually provided Deputy Jeffcoat with his correct name and information,

and explained that there were active warrants for his arrest. Deputy Jeffcoat asked



                                          5
Lesure whether he was a convicted felon, to which Lesure responded affirmatively,

and whether Lesure knew that it was illegal for him to possess a firearm as a

convicted felon, to which Lesure also responded affirmatively.

      Following Deputy Jeffcoat’s testimony, Lesure and Goldsmith both

stipulated that they were convicted felons, and that the firearms and ammunition

seized from room number 235 on June 9, 2006 had traveled in interstate

commerce. The government then rested, but reserved the right to present rebuttal

testimony. The following exchange followed:

      THE COURT:         . . . I do remind you [the jury] that the defendant is
      not required to prove anything or call any witnesses or present any
      evidence. This would be the opportunity for them to do so if they
      wish. And reserving all rights for motions to the defendants, [defense
      counsel for Goldsmith]?

      [GOLDSMITH’S COUNSEL]: Your Honor, at this time we would
      make a motion for judgment of acquittal.

      THE COURT:         I said, I’ll reserve those rights and we’ll attend to
      those afterwards. So proceed on.

      Goldsmith then testified on his own behalf. He first met Lesure in 1997 and

began purchasing dope from him “every now and then.” Goldsmith testified that

he traveled to the Western Inn Motel on June 9, 2006, because it was “a[] place to

get high [].”   He said that after he arrived, he began “partying and stuff” and

smoking “dope” with a couple of people other than Lesure and the minor female.



                                         6
Goldsmith eventually ran into Lesure in the motel’s hallway, and asked Lesure

whether he had any “dope.” Lesure responded that he had “dope,” as well as guns,

for sale.

       Thereafter, Goldsmith proceeded to another person’s motel room to smoke

“dope,” and after doing so, left the motel premises. He later returned to the motel,

at which point he went to the other person’s motel room, where he smoked more

dope and where another person robbed him of the dope that he had and pulled a

gun on him. After he was robbed, Goldsmith left the room and then remembered

that Lesure also had a room at the motel. He proceeded to Lesure’s room, where

he explained what had happened to him, and asked for a gun.           When Lesure

refused to give him a gun, Goldsmith became angry and decided to go elsewhere to

find help. When he opened the motel room door to leave, he observed the police

standing outside in the hallway.

       According to Goldsmith, the officers then entered room number 235, and

threw him to the floor and searched him after Lesure alleged that Goldsmith was in

possession of a firearm.     After the officers were unable to locate a gun on

Goldsmith, Lesure pointed to a shelf directly behind Goldsmith and said that a gun

was on a shelf. Both Goldsmith and the officer who searched him turned towards

the shelving unit, and Goldsmith observed, apparently for the first time, a gun



                                         7
lying on a shelf. Goldsmith immediately denied that he knew anything about the

gun. An officer then removed Goldsmith from the room, and Goldsmith overheard

Lesure asking his girlfriend, the minor female, to tell the police that the firearm

belonged to Goldsmith.        Goldsmith, at some point, explained the situation

regarding the robbery to the police, but the police nevertheless took him to jail.

      Defendant Lesure presented the testimony of “M. Rich,” the minor female

who was in room number 235 on the night of June 9, 2006. She said that on that

evening, she, her boyfriend (Lesure), and her mother went to have dinner at the

Waffle House around 9:00 p.m. Approximately one hour later, Rich and Lesure

returned to the Western Inn Motel, where they ran into Goldsmith. Rich went

inside the motel room, while Lesure remained in the hallway talking to Goldsmith.

      Thereafter, Goldsmith and Lesure entered the motel room, purportedly

because Goldsmith wanted to eat Lesure’s leftovers from the Waffle House. Rich

said that when he entered, Goldsmith was carrying a zipped burgundy and black

book bag. Goldsmith sat down at the table in the room, and set the zipped book

bag by a chair. However, Goldsmith then stood up and walked out of the motel

room, returning approximately five minutes later, when he asked Lesure to hand

him a gun from the book bag so he could rob someone.               Lesure, apparently

realizing for the first time that the book bag contained firearms, told Goldsmith to



                                           8
leave the motel room. Goldsmith, in turn, opened the door to exit the motel room,

and, upon observing the police standing outside in the hallway, threw a firearm that

he was holding behind one of the chairs.

      At one point, Rich testified that she did not actually observe Goldsmith in

possession of any firearms other than the one that he threw behind the chair, but

Goldsmith had walked near the shelf on which the officers discovered another

firearm.   At another point, however, Rich testified that she actually observed

Goldsmith place the firearm on the shelf. Lesure never opened the book bag, and

the book bag remained zipped the entire time. After Rich’s testimony, Lesure

rested.

      Goldsmith then moved for a judgment of acquittal, arguing that the

government had failed to satisfy its burden “as to aiding and abetting or possession

in this matter.” He also later asserted he was entitled to a judgment of acquittal

because there was insufficient evidence to prove, beyond a reasonable doubt, that

he possessed a firearm on June 9, 2006. Notably, for purposes of this appeal,

Goldsmith did not argue for an acquittal on the aiding and abetting count on the

ground that there was no evidence that he knew, or should have known, that

Lesure, the principal, was a convicted felon. Lesure also moved for a judgment of




                                           9
acquittal, asserting that there was insufficient evidence to find that he possessed,

either actually or constructively, the firearm.

      After the district court denied the motions for judgments of acquittal, the

court charged the jury, including the following Eleventh Circuit Pattern Jury

Instruction with respect to aiding and abetting:

      [T]he guilt of a defendant in a criminal case may be proved without
      evidence that the defendant personally did every act involved in the
      commission of the crime charged.         The law recognizes that[,]
      ordinarily[,] anything a person can do for one's self may also be
      accomplished through the direction of another person as an agent[,] or
      by acting together with[,] or under the direction of[,] another person
      or persons in a joint effort.

             So, if the acts or conduct of an agent, employee[,] or other
      associate of the defendant are willfully directed or authorized by the
      defendant, or if the defendant aids and abets another person by
      willfully joining together with that person in the commission of a
      crime, then the law holds the defendant responsible for the conduct of
      that other person just as though the defendant had personally engaged
      in such conduct.

             However, before any defendant can be held criminally
      responsible for the conduct of others, it is necessary that the defendant
      willfully associate in some way with the crime, and willfully
      participate in it. Mere presence at the scene of a crime and even
      knowledge that a crime is being committed are not sufficient to
      establish that a defendant either directed or aided or abetted the crime.
      Now, you must find beyond a reasonable doubt that the defendant was
      a willful participant and not merely a knowing spectator.

See also 11th Cir. Pattern Jury Instruction (Crim.), Special Instruction 7. Neither

Lesure nor Goldsmith objected to the court’s use of this Circuit’s Pattern Jury

                                           10
Instruction for aiding and abetting, nor did either defendant propose any other

version of the instruction for aiding and abetting.

       The jury found the defendants guilty, as charged in both counts. Goldsmith

later filed a written motion for a judgment of acquittal, or, alternatively, for a new

trial, pursuant to Fed. R. Crim. P. 29. Concerning the aiding and abetting offense

charged in Count One, Goldsmith argued that the evidence demonstrated that when

he entered the motel room, Lesure already was in possession of the firearms. Thus,

according to Goldsmith’s argument, he could not have been guilty of aiding and

abetting Lesure in the principal offense, because that offense had already been

committed when he arrived on the scene. Goldsmith also asserted that there was

no evidence that he willfully joined together with Lesure to aid and abet Lesure’s

possession of the firearms. Notably, Goldsmith did not argue that knowledge of a

principal’s status as a convicted felon was an essential element of the offense of

aiding and abetting a § 922(g) violation, nor did he assert that the government

failed to satisfy this element.

       The district court denied Goldsmith’s post-trial motion. The district court

sentenced Lesure to a 120-month term of imprisonment on Count One and a 42-

month term on Count Two, with the terms to run consecutively. The district court

sentenced Goldsmith to a 120-month term of imprisonment on Count One and a



                                          11
360-month term on Count Two, with the terms to run concurrently. This appeal

followed.

                                        II.

      We first address Lesure’s challenge to the sufficiency of the evidence to

support his conviction for violating 18 U.S.C. § 922(g), as charged in Count One.

We review a challenge to the sufficiency of the evidence de novo, resolving all

reasonable inferences from the evidence in favor of the jury’s verdict. See United

States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). The evidence is sufficient

where a reasonable trier of fact, choosing among reasonable interpretations of the

evidence, could find guilt beyond a reasonable doubt. United States v. Hasson,

333 F.3d 1264, 1270 (11th Cir. 2003). “The evidence may be sufficient though it

does not ‘exclude every reasonable hypothesis of innocence or [is not] wholly

inconsistent with every conclusion except that of guilty. . . . A jury is free to

choose among reasonable constructions of the evidence.’”          United States v.

Alvarez-Sanchez, 774 F.2d 1036, 1039 (11th Cir. 1985) (citation omitted).

      To sustain a conviction under § 922(g), the government must prove, beyond

a reasonable doubt, three elements: “(i) that the defendant has been convicted of a

crime punishable by imprisonment for a term exceeding one year, (ii) that the

defendant knowingly possessed a firearm or ammunition, and (iii) such firearm or



                                        12
ammunition was in or affected interstate commerce.” United States v. Funches,

135 F.3d 1405, 1406-07 (11th Cir. 1998). Since Lesure stipulated to the first and

third elements, the only element at issue is the second element: whether he

knowingly possessed a firearm or ammunition.

      “[A]ny firearm possession, actual or constructive, by a convicted felon is

prohibited by [18 U.S.C. § 922(g)].” United States v. Howell, 425 F.3d 971, 977

(11th Cir. 2005). The government can establish actual possession of a firearm by

proving that “the defendant either had physical possession of or personal dominion

over the thing allegedly possessed.” United States v. Leonard, 138 F.3d 906, 909

(11th Cir. 1998). “[T]he government can establish constructive possession of a

firearm by proving ‘ownership, dominion, or control over the firearm.’” United

States v. Thompson, 473 F.3d 1137, 1143 (11th Cir. 2006) (citations omitted),

cert. denied, 127 S. Ct. 2155 (2007).         A defendant can be in constructive

possession of a firearm even if it is not on him or near his person. United States v.

Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). Moreover, a defendant may be

deemed to be in constructive possession of contraband where he owns or exercises

dominion and control over the premises in which the contraband is concealed.

United States v. Molina, 443 F.3d 824, 829 (11th Cir. 2006).




                                         13
         Viewing the evidence in the light most favorable to the jury’s guilty verdict,

we conclude that there was ample evidence from which a reasonable juror could

conclude, beyond a reasonable doubt, that Lesure was, at the very least, in

constructive possession of multiple firearms at the time of his arrest in the motel

room. Although he was not holding a firearm when the police entered the motel

room, the government demonstrated that he exerted dominion and control over the

firearms and ammunition through evidence that he had rented the motel room in

which the contraband was seized, and that the book bag of firearms and

ammunition were located “right next to him” when the police officers entered the

room.     Moreover, according to Deputy Jeffcoat, after Lesure was detained, but

before the officers discovered the book bag of guns, he was “real[ly] jumpy and

looking over his shoulder,” and “just acting very nervous.”            He also began

sweating and repeatedly stuttering, “[T]he bed, the bag, the bed, the bag,” and then

mentioned something about a bag of guns in the motel room. According to Deputy

Jeffcoat, Lesure initially provided at least three false names, and a false address,

Social Security number, and date of birth. On this record, there was sufficient

evidence on which a reasonable juror could have relied to conclude that Lesure

was guilty, beyond a reasonable doubt, of possession of a firearm by a convicted

felon.



                                           14
                                                  III.

       As for Goldsmith’s challenge to the district court’s denial of his motion for a

judgment of acquittal, based on the insufficiency of the evidence to convict him of

aiding and abetting, as well as his related challenge to the jury instruction on aiding

and abetting, we likewise discern no reversible error. We normally review such

claims de novo. See Rudisill, 187 F.3d at 1267 (sufficiency of the evidence);

United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000) (jury instruction).

However, in the district court, Goldsmith never asserted the arguments he makes

on appeal -- that the government was required to prove that he knew of Lesure’s

status as a convicted felon, but failed to do so, and that the district court was

required to so instruct the jury.2 Accordingly, our review is for plain error only.

See United States v. Hasson, 333 F.3d 1264, 1277 (11th Cir. 2003) (jury

instruction); United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998)

(sufficiency of the evidence).            Plain error is found only where the defendant

demonstrates: (1) there is an error; (2) the error is plain; (3) the error affects the

defendant’s substantial rights; and (4) the error “seriously affects the fairness,


       2
           His general objection to the sufficiency of the evidence did not preserve the more
specific claim he now makes in this Court. Cf. United States v. Dennis, 786 F.2d 1029, 1042 (11th
Cir. 1986) (“To preserve an issue at trial for later consideration by an appellate court, one must raise
an objection that is sufficient to apprise the trial court and the opposing party of the particular
grounds upon which appellate relief will later be sought. A general objection or an objection on
other grounds will not suffice”).

                                                  15
integrity, or public reputation of a judicial proceeding.” United States v. Olano,

507 U.S. 725, 732 (1993).

      To sustain a conviction for aiding and abetting, the evidence must show that

the defendant shared the criminal intent of the principal and committed an overt act

in furtherance of the criminal venture. See United States v. Guida, 792 F.2d 1087,

1095 (11th Cir. 1986); see also United States v. Schwartz, 666 F.2d 461, 463 (11th

Cir. 1982) (holding that to prove a defendant guilty of aiding and abetting the

commission of a crime, in violation of 18 U.S.C. § 2, the government must prove

“that the defendant associated himself with a criminal venture, participated in it as

something he wished to bring about, and sought by his actions to make it succeed”

(quotation and citation omitted)). Even when the government provides little direct

evidence of an aider-and-abettor’s intent, a jury’s conviction will not be overturned

if there is adequate circumstantial evidence from which the jury could infer the

defendant’s knowledge of the criminal scheme. See United States v. Griffin, 324

F.3d 330, 357-58 (5th Cir. 2003).

       Given the applicable standard of review, it is notable to observe at the outset

that “[w]hen neither the Supreme Court nor [we have] resolved an issue, and other

circuits are split on it, there can be no plain error in regard to that issue.” United

States v. Evans, 478 F.3d 1332, 1338 (11th Cir.), cert. denied, 128 S.Ct. 257



                                         16
(2007). As Goldsmith recognizes in his brief, neither this Court nor the Supreme

Court has addressed whether a defendant’s knowledge that the principal was a

convicted felon is an essential element of the offense of aiding and abetting a

Section 922(g) violation. Moreover, the circuits that have addressed the issue of an

aider-and-abettor’s intent, within the context of a § 922(g) offense, are split on the

issue.   Compare United States v. Canon, 993 F.2d 1439, 1442 (9th Cir. 1993)

(“The government did not have to prove Canon, as a principal, knew he was a

felon.   No greater knowledge requirement applies to [an aider and abettor]”)

(internal citation omitted), and United States v. Moore, 936 F.2d 1508, 1527-28

(7th Cir. 1991) (concluding that a defendant satisfied the “association” prong of the

“aiding and abetting” test because he was aware of the principal’s use of a gun in

multiple armed robberies), with United States v. Gardner, 488 F.3d 700, 715 (6th

Cir. 2007) (holding that “in order for aiding-and-abetting liability to attach under §

922(g), the government must show that the defendant knew or had cause to know

that the principal was a convicted felon”), and United States v. Xavier, 2 F.3d

1281, 1286 (3d Cir. 1993) (“The government concedes ‘proof of knowledge (or

reasonable cause to believe) of an ex-felon’s status is a required element for

conviction, as an aider and abettor, under Section 922(g)(1).’ We agree.”).




                                         17
       Thus, given the sharp difference of opinion on the issue, even if we were to

find error,3 it is clear that Goldsmith cannot satisfy his burden to show that such

error was plain. In short, neither the district court’s denial of Goldsmith’s motion

for judgment of acquittal nor the district court’s use of the Pattern Jury Instruction

on aiding and abetting was plain error since it is not plain under Supreme Court

precedent, or our law, that an aider and abetter’s knowledge of the principal’s

status as a convicted felon is an essential element of the offense of aiding and

abetting a § 922(g) violation.

       AFFIRMED.




       3
         As for the elements of the underlying substantive crime, again, to establish a violation of
§ 922(g), the government must prove: “(i) that the defendant has been convicted of a crime
punishable by imprisonment for a term exceeding one year, (ii) that the defendant knowingly
possessed a firearm or ammunition, and (iii) such firearm or ammunition was in or affected
interstate commerce.” Funches, 135 F.3d at 1406-07. Given Goldsmith’s failure on the second
prong of the plain error test, we need not reach the first prong of the test, but pause to note that as
to the principal, knowledge of felon status is not an element of a § 922(g) offense. Cf. United States
v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997) (discerning no error in district court’s § 922(g)
instruction to the jury that it was not necessary for the defendant to know that he had been convicted
of a felony; citing United States v. Langley, 62 F.3d 602, 604-606 (4th Cir. 1995) (holding that proof
that a defendant had knowledge of his status of a convicted felon is not needed in order to prove that
a defendant knowingly possessed a firearm after a felony conviction)); United States v. Miller, 105
F.3d 552, 555 (9th Cir. 1997) (“We agree with the decisions from other circuits that the § 924(a)
knowledge requirement applies only to the possession element of § 922(g)(1), not to the interstate
nexus or to felon status.”). We would be hard-pressed to require the government to satisfy a greater
knowledge requirement as to a § 922(g) aider and abettor. See United States v. Canon, 993 F.2d
1439, 1442 (9th Cir. 1993) (“The government did not have to prove Canon, as a principal, knew he
was a felon. No greater knowledge requirement applies to [an aider and abettor]”) (internal citation
omitted)).

                                                  18
