                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                     No. 08-14354                      SEPTEMBER 30, 2009
                               ________________________                 THOMAS K. KAHN
                                                                            CLERK
                         D.C. Docket No. 07-80051-CR-DTKH

UNITED STATES OF AMERICA,


                                                                          Plaintiff–Appellee,

                                            versus

JULIEN GARCON,
a.k.a. Johnathan Imgramham,
a.k.a. Julian Garcon,
a.k.a. Tedric Sherman,

                                                                      Defendant–Appellant.

                               ________________________

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

                                   (September 30, 2009)

Before BARKETT and HULL, Circuit Judges, and SCHLESINGER,* District
Judge.

       *
         Honorable Harvey E. Schlesinger, United States District Court for the Middle District
of Florida, sitting by designation.
PER CURIAM:

      Julien Garcon appeals his conviction for being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g). Garcon urges this Court to vacate his

120-month sentence and remand his case for a new trial because: (1) the evidence

gathered from both an apartment he was occupying, and a photographic array that

identified him, should have been suppressed; (2) the expert testimony introduced

by the government regarding DNA sampling biased the jury’s decision-making;

and (3) the evidence presented against him was insufficient to find him guilty

beyond a reasonable doubt. After careful review of these arguments, we affirm

Garcon’s § 922(g) conviction.

      The relevant facts of Garcon’s story begin when a female acquaintance of

his, Shari Morant, entered into a one-year apartment lease with the Royal St.

George Apartments in West Palm Beach, Florida. That lease was set to run from

April 1, 2005, to March 31, 2006. After commencing the lease by faxing the

relevant documents to the leasing office, Morant requested that the keys for her

new apartment be released to her “brother.” Nicole Stevens, an employee of the

leasing company, agreed to this and released the apartment keys to a black male

that arrived on Morant’s behalf. Throughout the subsequent months, this same




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man regularly entered the leasing office to pay the monthly rent. In fact, Stevens,

who lived on the premises herself, saw this man on the property so often that she

called Morant to confirm whether the man was an unregistered occupant of her

apartment. Morant denied that the man resided with her.

      On November 8, 2005, Morant faxed Stevens a 30-day written notice to

vacate her apartment on December 8, 2005, and transfer her existing lease to an

affiliated property in Sanford, Florida. Stevens did not subsequently hear from

Morant. On December 12, 2005, an apartment maintenance crew attempted to

enter Morant’s apartment to determine its status before re-renting. They were

unable to enter as the apartment locks had been changed. Upon receiving this

news, Stevens unsuccessfully attempted to get in contact with Morant. Stevens

then ordered the maintenance workers to drill out the locks.

      After entering the apartment, Stevens observed a handgun in a shoe box near

the front door. She also observed a scale in the pantry, razor blades, and a clear

sandwich baggie containing a white powdery substance in the kitchen area.

Stevens then contacted the West Palm Beach Police Department (“WPBPD”).

Law enforcement officers arrived, and Stevens took them into the apartment where

the officers also observed the items inside. After obtaining a search warrant, the

WPBPD located the following in the apartment: extensive drug paraphernalia for



                                          3
the making of both powder and crack cocaine; approximately 175.1 grams of

cocaine hydrochloride; 40.22 grams of cocaine base; a 9 millimeter handgun; a 12-

gauge shotgun; a .40 caliber semi-automatic firearm; $48,865 in U.S. currency; a

Miami Auto Auctions identification card in the name of Julien Garcon; a second

identification card bearing a photo of the same man, though with the name

Jonathan Imgramham; a used condom; and a piece of chewed gum.

      Garcon’s DNA matched the samples collected from the condom and the

gum. DNA found on the semi-automatic firearm matched Garcon’s to a

probability of one in 1.3 million persons, despite the firearm containing the DNA

of at least three people. Stevens did not identify Garcon in the first photographic

lineup she was presented with. However, when presented with a second

photographic array, she did in fact correctly identify him.

      Following his arrest, Garcon sought to suppress all of the evidence seized

pursuant to the search warrant, based on a lack of probable cause. He also sought

to suppress Stevens’ eyewitness identification, based on law enforcement’s

“unduly suggestive” tactic of presenting two separate photographic arrays to her in

which Garcon was the only individual included in both. The district court granted

Garcon’s motion to suppress evidence in part, and denied it in part. After a jury

trial, Garcon was acquitted of three counts, each pertaining to cocaine possession.



                                          4
He was convicted of the fourth count, of being a felon in possession of a firearm.

This appeal followed. We have reviewed Garcon’s arguments as presented in his

brief and find no reversible error.

       There is no evidence in support of Garcon’s claim that Stevens was acting as

an agent of the government. Stevens ordered the maintenance workers to drill out

the locks after having received a written notice from Morant indicating that the

apartment would be vacated on December 5, 2008. With respect to any claim of

illegal entry of the apartment, we note that Stevens is a private individual who

acted independently of law enforcement in entering the apartment, and that the

leasing agreement is irrelevant because Garcon was a non-resident. Thus, the

Fourth Amendment is not at issue here with respect to either Stevens’ initial entry

into the apartment or her second entry where she escorted the officers into the

apartment.1

       We find no evidence to support Garcon’s claim that Stevens’ eyewitness

identification of him was unduly suggestive. Stevens had seen Garcon around the

property on multiple occasions. She had seen him in the leasing office when he

paid the monthly rent. She was presented with two separate photographic arrays,

each containing six photos. Her identification of Garcon in the second of these


       1
          There is an issue as to Garcon’s standing to raise a Fourth Amendment claim. The
district court only assumed, but did not decide, that Garcon had standing. We do likewise.

                                               5
was sound.

      We additionally find that the government-introduced expert testimony

regarding Garcon’s DNA on the semi-automatic firearm was not prejudicial, and

the district court did not abuse its discretion by permitting it. See United States v.

Russell, 703 F.2d 1243, 1249 (11th Cir. 1983). Garcon does not dispute the fact

that his DNA was found on the semi-automatic firearm, only that the introduction

of this evidence was improper in light of the fact that his DNA was not the only

match found on the firearm. We find no merit in this argument.

      The admission of expert testimony is governed by Rule 702 of the Federal

Rules of Evidence, as well as the Supreme Court’s holding in Daubert v. Merrell

Dow Pharm., Inc., 509 U.S. 579 (1993), which collectively require that expert

testimony be both reliable and relevant. Id. at 589-92. The district court allowed

the presentation of two demonstrative aids that illustrated how Garcon’s DNA

could not be excluded as a contributory source of DNA found on the firearm. We

find no error in the district court’s decision to allow the admission of these aids.

      Lastly, Garcon argues that the evidence presented against him was

insufficient to find him guilty beyond a reasonable doubt. The elements of the

crime of being a felon in possession of a firearm require the government to prove

beyond a reasonable doubt that the defendant “was a convicted felon, that he



                                           6
possessed a firearm in or affecting interstate commerce, and that he knew he

possessed the firearm.” United States v. Sweeting, 933 F.2d 962, 965 (11th Cir.

1991). The government has satisfied each of these elements.

      As noted above, Garcon was frequently spotted in the apartment complex,

putting him in the general vicinity of the firearm. Furthermore, several of

Garcon’s personal effects, including clothing, two separate identification cards, and

a condom containing his DNA, were found in the apartment. Garcon’s DNA was

also found on the semi-automatic firearm itself. Taken together, this evidence

supports the jury’s finding that Garcon did in fact possess the firearm. This finding

of possession, considered along with Stevens’ eyewitness identification of Garcon

in the second photographic array, constitutes evidence sufficient to support a

conviction.

AFFIRMED.




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