                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JUNE 17, 2008
                                No. 07-14147                 THOMAS K. KAHN
                            Non-Argument Calendar                CLERK
                          ________________________

                       D. C. Docket No. 06-20544-CR-AJ

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

MELVIN ALVIN COX,
a.k.a. Reno,

                                                            Defendant-Appellant.

                          ________________________

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

                                (June 17, 2008)

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

      Melvin A. Cox appeals his jury conviction for being a felon in possession of

ammunition, in violation of 18 U.S.C. § 922(g)(1). On appeal he argues that: (1)
the district court abused its discretion when it denied his motion to suppress as

untimely and declined to reach the merits, on the sole ground that Cox refused to

waive his speedy trial rights; (2) the district court violated his Fifth Amendment

right to remain silent when it allowed a government witness to clarify the contents

of an audio recording and said, in the presence of the jury, that “individuals who

were parties to the conversation can testify about it”; and (3) there was insufficient

evidence of his guilt, independent of his post-arrest statements made to police, to

support his conviction. After thorough review, we affirm.

      We review the denial of a pre-trial motion on grounds of untimeliness for

abuse of discretion. United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990).

We review a district court’s refusal to grant a mistrial for abuse of discretion.

United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir.), cert. denied, 128 S.Ct.

218 (2007). We review the “sufficiency of the evidence to support a conviction de

novo, viewing the evidence in the light most favorable to the government and

drawing all reasonable inferences and credibility choices in favor of the jury’s

verdict.” United States v. Taylor, 480 F.3d 1025, 1026 (11th Cir.), cert. denied,

128 S.Ct. 130 (2007). We will uphold a district court’s denial of a motion for a

judgment of acquittal if a reasonable trier of fact could conclude the evidence

established the defendant’s guilt beyond a reasonable doubt. Id.



                                          2
      First, we are unpersuaded by Cox’s challenge to the district court’s denial of

his suppression motion. Pursuant to the Federal Rules of Criminal Procedure, a

motion to suppress must be brought prior to trial. Fed. R. Crim. P. 12(b)(3)(c).

Failure to bring the motion to suppress prior to trial, absent cause shown,

constitutes waiver. Fed. R. Crim. P. 12(e).

      In Smith, we applied Rule 12 to affirm the denial of a Franks 1 motion as

untimely where the motion was filed after the deadline for pre-trial motions had

passed, and was filed when a hearing was beginning on his motion to suppress

evidence, which had been timely filed. Smith, 918 F.2d at 1509. We found that

because the defendant had not attempted to establish cause for the untimeliness of

the motion, the district court did not abuse its discretion in denying the motion as

untimely. Id.; see also United States v. Ramirez, 324 F.3d 1225, 1228 (11th Cir.

2003) (holding, in the context of defenses based on defects in the indictment, that

Rule 12 was designed precisely to prevent a situation where defendants merely

wait to gain a strategic advantage by raising a defense out of time); United States v.

Milian-Rodriguez, 828 F.2d 679, 682-83 (11th Cir. 1987) (affirming, without

addressing the merits of, the district court’s denial of defendant’s motion to

suppress based on United States v. Chemaly, 741 F.2d 1346 (11th Cir. 1984),



      1
          Franks v. Delaware, 438 U.S. 154, 155-56 (1978).

                                               3
vacated, 741 F.2d 1363, reinstated, 764 F.2d 747 (11th Cir. 1985) (en banc), where

the defendants filed their motion to suppress before trial, but after the court’s

scheduled deadline for filing pre-trial motions, and well after the Chemaly

decision).

      Here, the district court had cautioned Cox on various occasions about

proceeding to trial in such a quick manner without time for his newly appointed

counsel to prepare, and indicated its willingness to allow time for this preparation.

Cox rejected these offers, and then waited to file his motion to suppress until after

his motion to dismiss on speedy trial grounds was denied. Therefore, the late filing

of the motion appears to have been a strategic move by Cox, and the district court

did not abuse its discretion when it denied his motion to suppress as untimely.

      We also reject Cox’s contention that the district court abused its discretion in

refusing to grant a mistrial after it allowed a government witness to clarify the

contents of an audio recording and said, in the presence of the jury, that

“individuals who were parties to the conversation can testify about it.” The Fifth

Amendment prohibits a prosecutor or the court from commenting directly or

indirectly on a defendant’s failure to testify. United States v. Knowles, 66 F.3d

1146, 1162 (11th Cir. 1995) (citation omitted). In the context of prosecutorial

misconduct, we have held that a prosecutor impermissibly comments on the



                                          4
defendant’s right to testify where: “(1) the statement was manifestly intended to be

a comment on the defendant’s failure to testify; or (2) the statement ‘was of such a

character that a jury would naturally and necessarily take it to be a comment on the

failure to the accused to testify.’” Id. at 1162-63 (emphasis and citation omitted).

      “Reversal is warranted only if the court made prejudicial comments that had

a clear effect on the jury and amounted to the denial of a fair trial.” United States

v. Tampas, 493 F.3d 1291, 1303 (11th Cir. 2007). In order to assess the prejudicial

impact of the comments, we evaluate them in the context of the trial as a whole and

assess their probable impact on the jury. United States v. Hernandez, 145 F.3d

1433, 1438 (11th Cir. 1998). Any potential prejudice regarding burden-shifting is

diminished by the court’s explicit instructions regarding the burden of proof in the

jury charge. Id. at 1439.

      In Tampas, we held that the district court did not abuse its discretion in

denying a motion for a mistrial on the grounds of the court’s comment, made after

a government objection to a defense witness’s testimony, “Why can’t the defendant

testify about that? Isn’t that hearsay?” Tampas, 493 F.3d at 1303. The court

offered to give a curative instruction, which Tampas declined. We held that, in the

context of the trial, “the brief question to defense counsel in the context of an

evidentiary objection had no clear effect on the jury.” Id.



                                           5
      The comment made by the district court in this case was less pointed than

that made by the court in Tampas. See Tampas, 493 F.3d at 1303. Further, the

district court specifically instructed the jury that Cox did not have to testify, and

that the jury could infer no negative implications from his choosing to exercise that

right. As such, it is not clear that the court’s comment was actually prejudicial to

Cox, but to the extent that it was, any potential prejudice was diminished by the

court’s instructions to the jury. See Hernandez, 145 F.3d at 1439. Accordingly,

the district court did not abuse its discretion in denying his motion for a mistrial.

      Finally, there was sufficient evidence of Cox’s guilt, independent of his

statements, to support his conviction.      Title 18, section 922 of the U.S. Code

provides that it shall be unlawful for any person convicted of a crime punishable

by imprisonment for a term exceeding one year to “possess in or affecting

commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(1). Thus, to support a

conviction under this section, the government must prove that the defendant: (1) is

a convicted felon; (2) in possession of; (3) any firearm or ammunition; (4) in or

affecting commerce. Id. Here, the parties stipulated that the ammunition found in

the house had traveled in interstate commerce, and that on May 1, 2006, Cox was

convicted of a felony, therefore leaving only element two in dispute.




                                           6
      The Supreme Court has held, in two pre-Miranda2 cases, that in general, an

accused may not be convicted on his own uncorroborated confession, Smith v.

United States, 348 U.S. 147, 152-53 (1954), and in order to admit a confession into

evidence, other evidence must “support[] the essential facts admitted sufficiently to

justify a jury inference of their truth.” Opper v. United States, 348 U.S. 84, 93

(1954). We have explained that:

               If the independent evidence is sufficient to establish the
               truth, trustworthiness and reliability of the accused’s
               statement to the investigating authorities, and the
               statements themselves supply whatever elements of the
               offense are not proved by the independent evidence, the
               proof is sufficient to send the case to the jury.

United States v. Micieli, 594 F.2d 102, 109 (11th Cir. 1979) (citation omitted).

      In this case, the government submitted independent evidence including the

ammunition found, the agents’ testimony as to where the ammunition was found,

and the testimony of Cox’s girlfriend that she remembered seeing bullets in the

kitchen at the house and that she saw, at some point, Cox with the bullets. This

evidence established the truth, trustworthiness and reliability of Cox’s confession

that he was in control of the house, that he was the only one who really lived there

full time, and that he knew there was ammunition in the kitchen of the house.

Viewing the evidence presented here in the light most favorable to the government,

      2
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                               7
and drawing all reasonable inferences and credibility choices in favor of the jury’s

verdict, the evidence was sufficient in this case for a reasonable trier of fact to

conclude that Cox was guilty beyond a reasonable doubt. Accordingly, we affirm

the district court’s denial of Cox’s motion for a judgment of acquittal.

      AFFIRMED.




                                          8
