                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                April 30, 2008
                               No. 07-14593                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                       D. C. Docket No. 07-00042-CR-4

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

KEVIN LEROY GREEN,

                                                           Defendant-Appellant.


                         ________________________

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

                               (April 30, 2008)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Kevin Green, through counsel, appeals his conviction for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

On appeal, Green argues that (1) the evidence presented at trial was insufficient to

establish that he knowingly possessed a firearm; and (2) the district court abused

its discretion in denying his motion for a new trial based on the weight of the

evidence and newly discovered evidence.

      Beginning with the first issue, we review de novo “whether there is

sufficient evidence to support the jury’s verdict.” United States v. Ortiz, 318 F.3d

1030, 1036 (11th Cir. 2003) (per curiam). We will affirm a conviction if we

determine that “a reasonable trier of fact could conclude that the evidence

establishes guilt beyond a reasonable doubt.” Id. (internal quotation marks

omitted). In making this determination, we review the evidence in the light most

favorable to the government, drawing all reasonable inferences and making

credibility choices in the government’s favor. United States v. Garcia-Jaimes, 484

F.3d 1311, 1319-20 (11th Cir.), petition for cert. filed, (U.S. June 11, 2007) (No.

06-11863). Furthermore, “[i]t is not necessary that the evidence exclude every

reasonable hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt . . . .” United States v. Calderon, 127 F.3d 1314,

1324 (11th Cir. 1997).

      “To obtain a conviction for being a felon in possession of a firearm, the



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[government] must prove beyond a reasonable doubt that [Green] was (1) in

knowing possession of a firearm, (2) a convicted felon, and (3) that the firearm

affected interstate commerce.” United States v. Glover, 431 F.3d 744, 748 (11th

Cir. 2005) (per curiam) (internal quotation marks omitted). Green argues only that

the government failed to provide sufficient evidence to prove that he knowingly

possessed a firearm. Because Green stipulated at trial to being a convicted felon,

and he does not contest the sufficiency of the evidence establishing an interstate

nexus, any arguments based on those grounds are waived. See Access Now, Inc. v.

Southwest Airlines, Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (stating that issues

not argued on appeal are abandoned).

       A reasonable fact-finder could conclude beyond a reasonable doubt that

Green was in knowing possession of a gun based on the following evidence:

(1) the arresting officer saw Green make movements with his hand and heard a

clicking sound, like metal against stucco, hitting a nearby house; (2) immediately

thereafter, the officer discovered the gun where Green had been standing and

observed that it was marked with stucco residue; and (3) a witness identified the

gun retrieved by the officer as the gun she saw Green brandish earlier that night.1


       1
         Green contends that the witnesses’ testimony is not worthy of belief, based in part on
his allegations of bias and inconsistencies. We may not, however, review determinations made
by the jury as to the credibility of witness testimony unless such testimony is “incredible as a
matter of law.” Calderon, 127 F.3d at 1325. Testimony is incredible as a matter of law only

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       Next, we turn to Green’s argument that the district court abused its

discretion in denying his motion for a new trial on the basis of the weight of the

evidence and newly discovered evidence.

       “We review a district court’s denial of a motion for new trial for abuse of

discretion.” United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en

banc). The broad standard for granting a new trial is whether the verdict must be

set aside “‘in the interest of justice.’” United States v. Vicaria, 12 F.3d 195, 198

(11th Cir. 1994); see Fed. R. Crim. P. 33(a).

       We review a district court’s ruling on motion for a new trial based on the

weight of the evidence differently than we review a challenge to the sufficiency of

the evidence. See United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985).

In evaluating a motion for new trial based on the weight of the evidence, the

evidence is not viewed in the light most favorable to the verdict, and the district

court “may weigh the evidence and consider the credibility of the witnesses.” Id.

However, “[t]he court may not reweigh the evidence and set aside the verdict

simply because it feels some other result would be more reasonable.” Id. at 1312-

13. For a court to set aside the verdict, “[t]he evidence must preponderate heavily


when it is “unbelievable on its face” and relates to facts that the witness “physically could not
have possibly observed or events that could not have occurred under the laws of nature.” Id.
(internal quotation marks omitted). Green has failed to show that the testimony of any witness is
incredible as a matter of law.

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against the verdict, such that it would be a miscarriage of justice to let the verdict

stand.” Id. at 1313. We have noted that motions for new trial based on the weight

of the evidence are not favored and are granted “sparingly and with caution,” only

in “exceptional cases.” Id. (internal quotation marks omitted).

      A motion for a new trial based on newly discovered evidence is also “highly

disfavored” and “should be granted only with great caution.” Campa, 459 F.3d at

1151 (internal quotation marks omitted). A new trial based on newly discovered

evidence is warranted only if: “(1) the evidence was in fact discovered after trial;

(2) the defendant exercised due care to discover the evidence; (3) the evidence was

not merely cumulative or impeaching; (4) the evidence was material; and (5) the

evidence was of such a nature that a new trial would probably produce a different

result.” United States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005) (internal

quotation marks omitted). “The failure to satisfy any one of these elements is fatal

to a motion for a new trial.” Id. (internal quotation marks omitted).

      The district court did not abuse its discretion in denying Green’s motion for

a new trial. Even considering the credibility of the witnesses and any

inconsistencies in their testimony, the weight of the evidence does not

preponderate heavily against the verdict. Additionally, the photographs and

videotape, which Green relied on to support his motion on the basis of newly



                                            5
discovered evidence, were disclosed prior to trial, so they were not newly

discovered. Lastly, Green was not prejudiced by the timing of the fingerprint

expert’s examination of the gun because the expert did not find a useable print.

Accordingly, for the above stated reasons, we affirm Green’s conviction.

      AFFIRMED.




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