                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 04-13577                 ELEVENTH CIRCUIT
                                                                JUNE 2, 2005
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                   D.C. Docket No. 04-00013-CR-T-23TBM

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

     versus

WARREN DAVID MILLER,

                                                  Defendant-Appellant.
                        __________________________

                 Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (June 2, 2005)

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

     Warren David Miller appeals his conviction for theft of government property --

specifically, a government-owned colonoscope -- from the Orlando Veterans
Administration hospital, in violation of 18 U.S.C. § 641. On appeal, he argues that

the district court erred by (1) denying his motions for judgment of acquittal, based on

the sufficiency of the evidence, and (2) denying his motion for a new trial based on

newly discovered evidence. We review challenges 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. Lluesma, 45 F.3d 408, 409-10 (11th Cir. 1995). “We review the denial of

a motion for a new trial based on newly discovered evidence for abuse of discretion.”

United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003).

      After thorough review of the record, as well as careful consideration of the

parties’ briefs, we find no reversible error and affirm.

      First, Miller argues that there was no evidence in this case upon which a

reasonable jury could conclude, beyond a reasonable doubt, that he stole and sold the

colonoscope to Philip Lonbeck, who testified against him at trial. Miller contends

that Lonbeck’s inconsistent statements over the course of the investigation and during

the trial did not create a reasonable basis from which to impute guilt. He asserts that

Lonbeck’s testimony was incredible as a matter of law.

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      “It is not necessary that the evidence exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except that of guilt,

provided that a reasonable trier of fact could find that the evidence established guilt

beyond a reasonable doubt. A jury is free to choose among the constructions of the

evidence.” United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997). Indeed,

“[c]redibility determinations are the exclusive province of the jury.” Id. at 1325

(quotation omitted).

      For testimony of a government witness to be incredible as a matter of
      law, it must be unbelievable on its face. It must be testimony as to facts
      that [the witness] physically could not have possibly observed or events
      that could not have occurred under the laws of nature. Further, the fact
      that [the witness] has consistently lied in the past, engaged in various
      criminal activities, [and] thought that his testimony would benefit him
      does not make his testimony incredible.

Id. (citations and quotations omitted).

      Section 641 of Title 18 provides: “Whoever . . . steals . . . or without authority,

sells, conveys or disposes of any . . . thing of value of the United States or of any

department or agency thereof . . . Shall be fined under this title or imprisoned not

more than ten years, or both.” 18 U.S.C. § 641. The elements of theft of government

property are: (1) the property belongs to the United States; (2) the defendant stole the

property; (3) the defendant did so knowingly and wilfully with intent to deprive the




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owner of the use or benefit of the property; and (4) the property had a value in excess

of $1,000. See 11th Cir. Pattern Jury Instr. (Crim.), Offense Instr. 21 (2003).

      In the present case, the district court did not err by denying Miller’s motions

for judgment of acquittal. The government presented testimony establishing that the

colonoscope was United States property and was valued in excess of $1,000, and that

Miller had access to the colonoscope and the opportunity to steal it. Hospital

employees who testified for the government stated that the colonoscope was never

delivered to them, but instead remained in Miller’s department. Lonbeck stated that

Miller sold the colonoscope to him, and was able to produce evidence of payment.

      In short, the government presented sufficient evidence from which “a

reasonable fact finder could have concluded that the evidence established the

defendant’s guilt beyond a reasonable doubt.” United States v. Fallen, 256 F.3d

1082, 1087 (11th Cir. 2001). Miller’s arguments with respect to the inconsistency

and incredibility of witnesses are without merit. Credibility determinations are the

sole province of the jury, and we, in reviewing sufficiency of the evidence, must

construe all credibility inferences in favor of the government. Calderon, 127 F.3d at

1325. Miller offered no evidence that Lonbeck’s testimony was “unbelievable on its

face” or contained facts or events that could not have possibly occurred. Id. Thus, the




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district court did not err by denying Miller’s motions for acquittal based on the

sufficiency of the evidence.

       We likewise are unpersuaded by Miller’s argument that newly discovered

evidence of a hospital employee’s theft of prescription forms, after this employee

testified for the government at Miller’s trial, satisfied the test for granting a new trial.

Miller argues that the new evidence is material and not merely cumulative or

impeaching because it relates to the crime of stealing from the hospital and impugns

the witness’s testimony regarding the whereabouts of the missing scope. He asserts

that the new evidence would produce an acquittal because in light of it, a reasonable

jury would not have convicted him on the circumstantial evidence. We disagree.

       To succeed on a motion for new trial based on newly discovered
       evidence, the movant must establish that (1) the evidence was
       discovered after trial, (2) the failure of the defendant to discover the
       evidence was not due to a lack of due diligence, (3) the evidence is not
       merely cumulative or impeaching, (4) the evidence is material to issues
       before the court, and (5) the evidence is such that a new trial would
       probably produce a different result. Indeed, we have held that motions
       for a new trial are highly disfavored, and that district courts should use
       “great caution” in granting a new trial motion based on newly
       discovered evidence.

Jernigan, 341 F.3d at 1287 (citations and quotations omitted).

       The government concedes that the first two prongs of the Jernigan test are

satisfied. However, Miller failed to show that the remaining three prongs are met.



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The fact that the employee-witness stole prescription forms may impeach her

testimony regarding the whereabouts of the missing colonoscope, but her other

testimony is unaffected by the new evidence and confirms the witness’s testimony.

The newly discovered evidence is merely cumulative or impeaching and is not

material. Additionally, Lonbeck’s testimony that Miller sold him the scope, sent it

to him, and accepted a check as payment is also unaffected. It is unlikely that a new

trial encompassing the new evidence would produce a different result. Id. On this

record, the district court did not abuse its discretion by denying Miller’s motion for

a new trial based on newly discovered evidence.

      For the above reasons, we affirm the district court.

      AFFIRMED.




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