           Case: 17-11143   Date Filed: 09/28/2018   Page: 1 of 12


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 17-11143
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:16-cr-00333-VMC-MAP-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

MICHAEL WILSON,

                                              Defendant - Appellant.

                       ________________________

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

                            (September 28, 2018)



Before WILSON, JORDAN, and EDMONDSON, Circuit Judges.
                Case: 17-11143       Date Filed: 09/28/2018       Page: 2 of 12


PER CURIAM:



       Michael Wilson appeals his conviction for possession of a firearm by a

convicted felon: the violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). No

reversible error has been shown; we affirm.



                                                I.



       Wilson first contends the district court abused its discretion in admitting

evidence that Wilson was a member of a white supremacist organization. Wilson

contends the introduction of this evidence was unfairly prejudicial under Fed. R.

Evid. 403.

       We review for abuse-of-discretion a district court’s evidentiary rulings.

United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). * A district court “may


*
  Although Wilson’s lawyer raised no contemporaneous objection to the introduction of white
supremacist evidence at trial, this claim is preserved properly for appeal. “Once the court rules
definitively on the record -- either before or at trial -- a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.” Fed. R. Evid. 103(b); see Tampa Bay
Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1178 (11th Cir. 2013). Wilson filed a pre-trial
motion in limine seeking exclusion of the white supremacist evidence, which the district court
denied in a written order. At the beginning of trial, Wilson renewed his motion in limine
challenging the white supremacist evidence; the district court denied the motion “for the reasons
stated earlier.” Because the district court made definitive evidentiary rulings on the record,
Wilson preserved properly this claim for appeal.

        To the extent Wilson argues on appeal that his lawyer unreasonably erred in failing to
object contemporaneously to the introduction of the white supremacist evidence, that claim may
                                                2
                Case: 17-11143       Date Filed: 09/28/2018       Page: 3 of 12


exclude relevant evidence if its probative value is substantially outweighed by a

danger of . . . unfair prejudice.” Fed. R. Evid. 403. We have said, however, that

“Rule 403 is an extraordinary remedy which the district court should invoke

sparingly.” Dodds, 347 F.3d at 897 (quotations omitted). In considering

admissibility under Rule 403, we view “the evidence in a light most favorable to its

admission, maximizing its probative value and minimizing its undue prejudicial

impact.” Id.

       At trial, the government introduced the following evidence. Wilson’s then-

girlfriend, Robin Williams, testified that Wilson was a member of a “white pride

group” and “talked a lot about the Aryan Brotherhood.” An officer testified about

items found in the bedroom in which Wilson was located, including two knives

adorned with “Nazi insignia” and a t-shirt hanging on the wall, which read “White

Pride World Wide.” Photographs were admitted into evidence and published to the

jury depicting the two knives and the “White Pride” t-shirt. Deputy Kozera, a

former “gang detective,” testified that the “White Pride” t-shirt and the two “Nazi”

knives were evidence suggestive of a white supremacist group. Deputy Kozera

also testified that Wilson’s tattoos of “1488” and “Pure Bred” represented terms




be raised on collateral review. Cf. Massaro v. United States, 538 U.S. 500, 504-05 (2003)
(explaining that a motion brought under 28 U.S.C. § 2255 -- rather than a direct criminal appeal -
- is the preferred method for asserting claims for ineffective assistance of counsel).
                                                3
              Case: 17-11143     Date Filed: 09/28/2018   Page: 4 of 12


often used by white supremacists. Photographs of Wilson’s tattoos were admitted

into evidence and published to the jury.

      On appeal, Wilson raises no challenge to the district court’s determination

that the white supremacist evidence was “relevant” within the meaning of Fed. R.

Evid. 401. The chief issue in dispute at Wilson’s trial was whether Wilson was “in

possession” of the gun found in the bedroom. That Wilson was a member of a

white supremacist group had some tendency to make it more likely that the

bedroom in which the Nazi memorabilia and the “White Pride” t-shirt were found

belonged to Wilson and, thus, that the gun found in the bedroom also belonged to

Wilson.

      We must consider, however, whether the probative value of the white

supremacist evidence was substantially outweighed by the danger of unfair

prejudice. We have said that “[t]here is no place in a criminal prosecution for

gratuitous references to race . . . Elementary concepts of equal protection and due

process alike forbid a prosecutor to seek to procure a verdict on the basis of racial

animosity.” United States v. Bowman, 302 F.3d 1228, 1240 (11th Cir. 2002)

(concluding the district court abused its discretion in admitting evidence of an

organization’s “whites-only” policy when defendant was charged with no racially-

motivated crime and the evidence was cumulative of other evidence). “Such

inflammatory evidence retains a sufficiently countervailing probative value only


                                           4
              Case: 17-11143    Date Filed: 09/28/2018    Page: 5 of 12


when less prejudicial evidence fails to describe sufficiently the motive and nature

of the crime.” United States v. Lehder-Rivas, 955 F.2d 1510, 1518 (11th Cir.

1992).

      Unlike other cases in which we have concluded that evidence of a

defendant’s connection to a white supremacy group was admissible, the evidence

admitted in this case was not critical to establishing Wilson’s motive or to

complete the story of Wilson’s crime. See id. at 1518-19 (evidence of defendant’s

favorable views toward Hitler and the Third Reich was “of considerable probative

value” for proving defendant’s motives, including his desire to “facilitate the

demise of the United States by importing large quantities of cocaine”); United

States v. Mills, 704 F.2d 1553, 1559-60 (11th Cir. 1983) (evidence of defendant’s

membership in -- and about the history and activities of -- the Aryan Brotherhood

were necessary to prove motive and to complete the story of the crime where

defendant was accused of murdering a federal prisoner on the orders of a fellow

Aryan Brotherhood member).

      The government says, instead, that the white supremacist evidence was

introduced solely to link Wilson to the bedroom in which the gun was found. As

discussed in more detail in the next section, the government also seems to have

introduced enough other evidence to establish Wilson’s connection to the bedroom

and to the gun found therein. Although much of the government’s other evidence


                                          5
              Case: 17-11143     Date Filed: 09/28/2018    Page: 6 of 12


consisted of testimony from witnesses with criminal records, we have said that

“[m]ere corroboration of testimony . . . fails to justify the introduction of unrelated

bad acts.” See Lehder-Rivas, 955 F.2d at 1518 (rejecting the government’s

argument that witness testimony about swastika labels was necessary to

“corroborate related testimony by witnesses with shaky credibility.”).

      Given that evidence of Wilson’s membership in a white supremacy group

was unnecessary to establish Wilson’s motive or to provide a context for the crime

and that the evidence was cumulative of other (less unfair) evidence easily

sufficient to link Wilson to the bedroom and to the gun, the evidence was of

limited probative value. On this record, the prejudicial nature of the white

supremacist evidence might well have outweighed substantially the probative value

of the evidence. So, from this point on in today’s opinion, we will just suppose the

pertinent evidence should have been excluded under Rule 403. Cf. id. at 1518-19

(the district court abused its discretion by admitting testimony that defendant

planned to label his drugs with swastikas because the method of labeling the drugs

“was not critical to the prosecution’s establishment of a conspiracy.”).

      Even when the district court makes an erroneous evidentiary ruling, we will

not reverse a conviction “unless there is a reasonable likelihood that [the error]

affected the defendant’s substantial rights.” United States v. Langford, 647 F.3d

1309, 1323 (11th Cir. 2011). “No reversal will result if sufficient evidence


                                           6
              Case: 17-11143    Date Filed: 09/28/2018   Page: 7 of 12


uninfected by any error supports the verdict, and the error did not have a

substantial influence on the outcome of the case.” Id.

      Here, the government produced ample evidence -- including Wilson’s own

statement asserting ownership over the belongings in the house -- from which a

jury could conclude beyond a reasonable doubt that Wilson possessed the gun

charged in the indictment. Given the other strong evidence of Wilson’s guilt, we

are unpersuaded that the error in admitting the white supremacist evidence affected

Wilson’s substantial rights such that reversal is warranted. Cf. Bowman, 302 F.3d

at 1240 (although the district court erred in admitting evidence of the “whites-

only” policy, the error was harmless in the light of the overwhelming evidence of

defendant’s guilt); Lehder-Rivas, 955 F.2d at 1518-19 (admission of evidence

about swastika labels -- although erroneous -- was harmless where the testimony

was brief and where the jury was exposed to other similar properly-introduced

evidence).



                                         II.



      Wilson next challenges the district court’s denial of his motion for a

judgment of acquittal. Wilson argues that insufficient evidence exists to prove that

he “possessed” the gun charged in the indictment.


                                          7
              Case: 17-11143    Date Filed: 09/28/2018   Page: 8 of 12


      “We review de novo a district court’s denial of judgment of acquittal on

sufficiency of evidence grounds.” United States v. Rodriguez, 732 F.3d 1299,

1303 (11th Cir. 2013). In determining the sufficiency of the evidence to support a

conviction, “we consider the evidence in the light most favorable to the

government, drawing all reasonable inferences and credibility choices in the

government’s favor.” Id. We cannot overturn a jury’s verdict unless no

“reasonable construction of the evidence would have allowed the jury to find the

defendant guilty beyond a reasonable doubt.” Id.

      To obtain a conviction for possession of a firearm by a convicted felon, the

government must prove (1) the defendant was a convicted felon; (2) the defendant

was in knowing possession of a firearm; and (3) the firearm was in or affected

interstate commerce. United States v. Wright, 392 F.3d 1269, 1273 (11th Cir.

2004). Only the second element is at issue on appeal: whether Wilson knowingly

possessed the gun charged in the indictment. “Possession” may be either actual or

constructive. Id. Constructive possession is shown when the government proves --

through direct or circumstantial evidence -- that the defendant (1) knew about the

firearm’s presence and (2) “had the ability and intent to later exercise dominion

and control over that firearm.” United States v. Perez, 661 F.3d 568, 576 (11th

Cir. 2011).




                                         8
              Case: 17-11143     Date Filed: 09/28/2018   Page: 9 of 12


      At trial, an officer testified that -- during a search of the bedroom in which

Wilson was located -- the officer found in plain sight a loaded .45 caliber handgun,

which was silver in color with a brown handle. Williams testified that Wilson

owned a chrome gun with a brown handle and that Wilson carried the gun with

him “all the time.” Williams was shown photographs of several items officers

found in the bedroom and confirmed that the items -- including the gun -- belonged

to Wilson.

      Ricky Fann testified that, when he visited Wilson’s house less than a month

before Wilson’s arrest, Fann saw a “silver 1911 frame, .45 [caliber]

semiautomatic” lying on the bed near Wilson. Fann testified that he had at times

also seen Wilson carrying that gun in his pants or in his bag. Tabitha Higdon

testified that, on one occasion, Wilson asked her to hold a “small” and “silver” gun

for him.

      The government also introduced a recorded phone conversation between

Wilson and an unidentified woman. During the conversation -- recorded shortly

after Wilson’s arrest -- Wilson instructed the woman “to go down and get my stuff

out of that house . . . Everything in that house was mine that’s worth money . . .

Everything but the furniture.”

      Viewed in the light most favorable to the government, the evidence

presented at trial was sufficient to permit a reasonable factfinder to conclude


                                          9
             Case: 17-11143     Date Filed: 09/28/2018   Page: 10 of 12


beyond a reasonable doubt that Wilson possessed knowingly the gun found in the

bedroom. Three witnesses testified expressly that they had each seen Wilson with

a gun matching the description of the gun charged in the indictment. The gun was

found in plain view in the bedroom in which Wilson was located when police

executed the search warrant. Moreover, Wilson’s comments during the recorded

phone conversation -- that everything of value in the house belonged to him --

supports the conclusion that the gun found in the bedroom belonged to Wilson.

The district court committed no error in denying Wilson’s motion for judgment of

acquittal.



                                         III.



      Wilson next challenges the district court’s denial of his motion for a new

trial based on newly-discovered evidence. Wilson also contends that the district

court abused its discretion in ruling on the motion without an evidentiary hearing.

      In an affidavit submitted in support of his motion for a new trial, Wilson

alleged that a fellow inmate (Priscilla Ellis) told Wilson the following:

      Tabitha [Higdon] told me to tell you she only said what she said on
      the stand because they threatened they would take her daughter if she
      didn’t. She said she told them that she was too high to remember
      anything. She said she was going to take the Fifth but they threatened
      to take her daughter.


                                          10
             Case: 17-11143     Date Filed: 09/28/2018       Page: 11 of 12


      We review a district court’s denial of a motion for a new trial -- and the

district court’s denial of an evidentiary hearing -- under an abuse-of-discretion

standard. United States v. Fernandez, 136 F.3d 1434, 1438 (11th Cir. 1998).

“Motions for new trial based on newly discovered evidence are highly disfavored .

. . and should be granted only with great caution.” United States v. Campa, 459

F.3d 1121, 1151 (11th Cir. 2006) (en banc).

      To succeed on a motion for a new trial based on newly-discovered evidence,

the movant must satisfy these five elements: (1) the evidence was discovered after

trial; (2) the evidence could not have been discovered earlier through 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 “of such a

nature that a new trial would probably produce a different result.” United States v.

Lee, 68 F.3d 1267, 1273 (11th Cir. 1995). “The failure to satisfy any one of these

elements is fatal to a motion for new trial.” Id. at 1274.

      The newly-discovered evidence upon which Wilson relies -- evidence that

the government allegedly pressured Higdon to testify against Wilson -- serves only

to impeach Higdon’s credibility. Moreover, Wilson has failed to demonstrate that

the newly-discovered evidence would have “probably” changed the outcome of his

trial. Even if Wilson could show that Higdon testified falsely, Higdon’s testimony

was cumulative of other testimony and evidence linking Wilson to the gun found in


                                          11
              Case: 17-11143    Date Filed: 09/28/2018   Page: 12 of 12


the bedroom. Because Wilson failed to satisfy each of the required elements for a

new trial, the district court abused no discretion in denying his motion.

      The district court also abused no discretion in ruling on Wilson’s motion

without first holding an evidentiary hearing. “[A] motion for new trial may

ordinarily be decided upon affidavits without an evidentiary hearing.” United

States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977). This case presents no

“unique circumstances” warranting a departure from that general rule. See id.

(noting that evidentiary hearings may be warranted in cases “involving allegations

of jury tampering, prosecutorial misconduct, or third party confession.”). That the

district court judge who considered Wilson’s motion for new trial also presided

over Wilson’s criminal trial further undercuts the necessity of an evidentiary

hearing. See id. at 1373-74 (“the acumen gained by a trial judge over the course of

the proceedings made him well qualified to rule on the basis of affidavits without a

hearing.”).

      AFFIRMED.




                                         12
