                                                                        [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                               FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                        U.S.
                                ________________________ ELEVENTH CIRCUIT
                                                                       DECEMBER 2, 2011
                                       No. 10-13338                       JOHN LEY
                                 ________________________                   CLERK


                          D.C. Docket No. 2:09-cr-00027-MHT-WC-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                       Plaintiff-Appellee,



                                             versus

EUGENE LAMAR PENDLETON,

l                                                      llllllllllllllllllllDefendant-Appellant.

                                ________________________

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

                                     (December 2, 2011)

Before DUBINA, Chief Judge, COX, Circuit Judge, and HUNT,* District Judge.

PER CURIAM:

         *
       Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of
Georgia, sitting by designation.
                                         I.

      Appellant Eugene Lamar Pendleton appeals his convictions on federal drug

and firearms charges. During the course of the proceedings that resulted in a

mistrial, the government conceded that a surveillance video purporting to depict

Pendleton engaging in a crack cocaine transaction actually depicted someone else.

Following the mistrial, a federal grand jury issued a superseding indictment

charging Pendleton with, among other things, possession with intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count 2); possession of a firearm

in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i) (Count 3); and possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 4).

      Pendleton based two pretrial motions on the government’s concession: a

motion to dismiss the superseding indictment, which he contended was tainted by

the testimony of a government agent that Pendleton was engaged in crack cocaine

transactions; and a motion to suppress evidence recovered in a December 24,

2008, search pursuant to a warrant that he contended was supported by the

intentionally or recklessly false statements of Detective R.K. Johnson, the affiant

officer. The court denied both motions, and the case proceeded to trial, where

numerous witnesses testified against Pendleton. Ultimately, the jury found him

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guilty on the three aforementioned counts. Pendleton moved for a new trial,

essentially reiterating his suppression arguments, which the court denied without

opinion. In a post-trial order confirming its earlier oral denial of the motion to

suppress, the district court found that Detective Johnson acted with reckless

disregard for the truth in identifying Pendleton in the affidavit as the crack seller

but that suppression was unwarranted because the affidavit, even without the

language identifying Pendleton, established probable cause sufficient to support a

warrant.

                                          II.

      On appeal, Pendleton raises four issues. First, he argues that the district

court abused its discretion in denying his motion to dismiss the superseding

indictment because the grand jury that issued it was exposed to a government

witness’s false testimony and also reviewed evidence that was recovered following

an unlawful search. Second, he argues that the district court erred in denying his

motion to suppress because Detective Johnson’s false statements, made with

reckless disregard for the truth, tainted the rest of the affidavit such that probable

cause did not exist to issue the warrant. Third, he argues that the evidence

presented at trial was insufficient to convict him of the charged offenses because it

was inadequate to connect him to the residence where the contraband was

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recovered. Finally, he argues, for the first time on appeal, that the district court

abused its discretion in denying his motion for a new trial because its post-verdict

ruling that Detective Johnson acted with reckless disregard for the truth, if known

prior to trial, would have resulted in his acquittal on all charges.

      After reviewing the record, reading parties’ briefs, and having the benefit of

oral argument, we affirm Pendleton’s convictions.

                                          III.

      We review a district court’s denial of a motion to dismiss an indictment for

abuse of discretion, but review its legal reasoning de novo. United States v.

Wetherald, 636 F.3d 1315, 1320 (11th Cir. 2011).

      The grand jury is permitted to consider evidence that otherwise would be

inadmissible—including evidence obtained in violation of the Fourth Amendment.

See United States v. Calandra, 414 U.S. 338, 34–55, 94 S. Ct. 613, 620–23,

(1974) (holding that the exclusionary rule did not apply to grand jury

proceedings).

      Where the government uses or elicits false testimony during criminal

proceedings, it will not amount to prosecutorial misconduct unless the prosecutor

either: (1) knowingly used perjured testimony; or (2) failed to correct what he later

learned to be false testimony. United States v. McNair, 605 F.3d 1152, 1208 (11th

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Cir. 2010). Even then, the testimony must be material. Id. at 1208–11 (holding

that prosecutorial misconduct did not occur because there was nothing to suggest

that the testimony actually was false). If prosecutorial misconduct occurs in the

context of a grand jury proceeding, the proper remedy is to dismiss the indictment.

United States v. Accetturo, 858 F.2d 679, 681 (11th Cir. 1988).

      Nevertheless, “dismissal of an indictment for prosecutorial misconduct is an

extreme sanction which should be infrequently utilized.” Id. Even if an error

occurs before a grand jury, it will not be cause to question an indictment unless the

error “substantially influenced” the grand jury’s decision to issue charges, or if

grave doubt existed that the decision was free from such influence. Bank of Nova

Scotia v. United States, 487 U.S. 250, 263, 108 S. Ct. 2369, 2378 (1988) (holding

that errors did not substantially influence the grand jury’s decision to charge the

defendants where a grand jury investigation lasted 20-months and “involv[ed]

dozens of witnesses and thousands of documents”).

      There is nothing in the record to suggest that the testimony of the

government’s witness before the grand jury, which was based on his personal

knowledge at the time, was intentionally false. Even if it was, it did not

substantially influence the grand jury’s decision, as the charges in the superseding

indictment were based on incidents unrelated to the allegedly false testimony.

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Lastly, even if the currency on Pendleton’s person was obtained in violation of the

Fourth Amendment, the grand jury is not precluded from reviewing it.

                                         IV.

      We review the denial of a motion to suppress as a mixed question of law

and fact, reviewing legal questions de novo and factual questions for clear error.

United States v. Martinelli, 454 F.3d 1300, 1306 (11th Cir. 2006). Similarly, we

review de novo whether probable cause existed to support a search warrant. Id.

(quotation omitted).

      To obtain a warrant to search a defendant’s residence, law enforcement must

convince the authorizing magistrate that probable cause exists for the search,

which occurs “when the totality of the circumstances allows the conclusion that

there is a fair probability that contraband or evidence of a crime will be found in a

particular place.” See United States v. Kapordelis, 569 F.3d 1291, 1310 (11th

Cir. 2009) (quotation omitted). The affidavit need not allege that any illegal

activity occurred at the residence. Id. Still, it should “establish a connection

between the defendant and the residence to be searched and a link between the

residence and any criminal activity.” Id.; but see United States v. Martin, 297 F.3d

1308, 1314–15 (11th Cir. 2002) (holding that probable cause existed to support a

warrant notwithstanding the fact that the affidavit did not specifically link the

                                          6
defendant to either criminal activity or the place to be searched, but contained

detailed factual allegations concerning illicit activities at that place).

      Affidavits supporting search warrants are “presumptively valid.” United

States v. Gamory, 635 F.3d 480, 490 (11th Cir. 2011). However, a defendant may

attack the government’s affidavit by making a substantial preliminary showing

that the affidavit included a false statement that was either made: (1) knowingly

and intentionally or (2) with reckless disregard for the truth. Franks v. Delaware,

438 U.S. 154, 171, 98 S. Ct. 2674, 2684 (1978).

      Nevertheless, “even intentional or reckless omissions will invalidate a

warrant only if inclusion of the omitted facts would have prevented a finding of

probable cause.” Kapordelis, 569 F.3d at 1309 (11th Cir. 2009) (quotation and

alteration omitted). The burden is on the defendant to establish that, “absent those

misrepresentations or omissions, probable cause would have been lacking.”

Gamory, 635 F.3d at 490–91 (quotation omitted). In assessing whether the alleged

false statements in an affidavit are material, the district court should disregard the

challenged portions of the affidavit. Kapordelis, 569 F.3d at 1309. The court

must then determine whether the remaining portions of the affidavit establish

probable cause. Id. If the affidavit, even after excising the allegedly offensive

content, remains sufficient to establish probable cause, then no further inquiry is

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required. Id. (rejecting the argument that a intentionally or recklessly false

information taints an entire affidavit even after it is excised).

      We need not consider whether Detective Johnson acted with reckless

disregard for the truth when swearing that Pendleton was observed engaging in

crack deals. Assuming arguendo that he did act with reckless disregard for the

truth, the affidavit, independent of any reference to Pendleton, continued to

contain statements concerning drug transactions at the residence the warrant

targeted. Because these statements were sufficient to establish probable cause that

documents relating to drug transactions would be found at that residence, we

conclude that the district court did not err by denying the motion to suppress.

                                           V.

      The sufficiency of the government’s evidence produced at trial is a question

of law subject to de novo review. United States v. Spoerke, 568 F.3d 1236, 1244

(11th Cir. 2009).

      In reviewing the sufficiency of the evidence, the inquiry is whether, after

viewing the evidence in the light most favorable to the prosecution with all

reasonable inferences and credibility choices made in the government’s favor, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Id. As such, we will not disturb a guilty verdict unless “no trier

                                           8
of fact could have found guilt beyond a reasonable doubt.” United States v. Yost,

479 F.3d 815, 818–19 (11th Cir. 2007) (quotation omitted).

      It is the jury’s responsibility to weigh and resolve conflicts in the evidence.

United States v. Pearson, 746 F.2d 787, 794 (11th Cir. 1984). The district court is

prohibited from assessing the credibility of witnesses or substituting its own

judgment of guilt or innocence for that of the jury. United States v. Burns, 597

F.2d 939, 941 (5th Cir. 1979). Thus, the jury’s credibility determination must

stand unless the testimony is incredible as a matter of law. United States v. Steele,

178 F.3d 1230, 1236 (11th Cir. 1999). Testimony is legally “incredible” only if it

is “unbelievable on its face” and “relates to facts that the witness could not have

possibly observed or events that could not have occurred under the laws of

nature.” Id.

      To convict a defendant under 21 U.S.C. § 841(a)(1), the government must

prove that the defendant (1) knowingly (2) possessed marijuana (3) with intent to

distribute it. See United States v. Harris, 20 F.3d 445, 453 (11th Cir. 1994). Each

of these elements, including intent to distribute, may be proven by direct or

circumstantial evidence. Id.

      Possession may be actual or constructive. United States v. Tinoco, 304 F.3d

1088, 1123 (11th Cir. 2002). In the latter case, constructive possession occurs

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when the “defendant maintained dominion or control over the drugs or over the

premises where the drugs are located.” Harris, 20 F.3d at 453. (quotation omitted).

As such, when a defendant owns or otherwise exercises control over a residence

where contraband is found, he may be found to be in constructive possession of

that contraband. United States v. Garcia, 447 F.3d 1327, 1338 (11th Cir. 2006);

see also United States v. Morales, 868 F.2d 1562, 1573 (11th Cir. 1989) (holding

that rent receipts and an electric bill for an apartment in defendant’s name was

sufficient to establish his dominion and control over that apartment).

      To establish possession of a firearm in furtherance of a drug trafficking

crime pursuant to 18 U.S.C. § 924(c)(1), the government must show that: (1) the

defendant possessed the firearm; and (2) the firearm in question “helped,

furthered, promoted, or advanced” the drug trafficking activity. See United States

v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002).

      To support a conviction under 18 U.S.C. § 922(g)(1), the government must

prove that: (1) the defendant was a convicted felon; (2) the defendant knew he was

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

commerce. United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004).

      After the government introduced the marijuana and guns recovered during

the December 24, 2008 search, it introduced numerous witnesses to testify that

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Pendleton resided at the address where the search occurred. It also introduced

witnesses who had seen Pendleton engaged in drug deals at that address and in

actual possession of the recovered guns. Pendleton did not demonstrate that the

testimony of any of these witnesses was legally incredible. Accordingly, we

conclude that the government presented sufficient evidence upon which a

reasonable jury could find him guilty beyond a reasonable doubt of each offense of

conviction.

                                          VI.

      We review the district court’s rulings on motions for a new trial for abuse of

discretion. United States v. Thompson, 422 F.3d 1285, 1294–95 (11th Cir. 2005).

Criminal arguments raised for the first time on appeal, however, are reviewed for

plain error. United States v. Fontenot, 611 F.3d 734, 737 (11th Cir. 2010).

Reversal under this standard is permitted only when: (1) there is error; (2) that is

plain; (3) that affect’s a defendant’s substantial rights; and (4) “seriously affects

the fairness, integrity or public reputation of judicial proceedings.” Id. (quotation

omitted). An error is plain when it is “obvious” or “clear under current law.” Id.

Thus, “there can be no plain error where there is no precedent from the Supreme

Court or this court directly resolving it.” Id. (quotations omitted).




                                           11
          A defendant may move a court for a new trial, which the district court

retains discretion to grant in the “interests of justice.” Fed. R. Crim. P. 33(a). A

motion based on newly discovered evidence must be filed within three years of the

verdict. Fed. R. Crim. P. 33(b)(1). When a motion for a new trial is based on new

evidence, the evidence in question: (1) must have in fact been discovered after

trial; (2) must be discovered following the exercise of due care; (3) cannot be

“merely cumulative or impeaching”; (4) must be material; and (5) must be “of such

a nature that a new trial would probably produce a different result.” Thompson,

422 F.3d at 1294 (quotations omitted). Failure to satisfy any of these requirements

will be fatal to the motion for a new trial. Id. When a court is convinced that a

new trial would not produce a different result, it need not inquire into the other

requirements. United States v. Starett, 55 F.3d 1525, 1554 (11th Cir. 1995).

          Although evidence going solely to a witness’s credibility is disfavored

under this five-part test, newly-discovered evidence may raise questions

concerning the fairness of the trial itself. United States v. Williams, 613 F.2d 573,

575 (5th Cir. 1980) (holding that a juror’s short, ex parte contact with the district

court did not impugn the fairness of the proceedings sufficient to warrant a new

trial).




                                            12
      In the absence of any controlling authority establishing that a district court’s

post-verdict opinion confirming its oral ruling on a pretrial motion to suppress is

sufficient grounds for a new trial, Pendleton cannot establish that the district court

plainly erred in refusing to grant a new trial on this basis. In any event, a new trial

was unwarranted because even if Detective Johnson had not testified at trial at all,

the numerous other witnesses who testified to Pendleton’s control over the

contraband and the residence where it was recovered overwhelmingly established

Pendleton’s guilt. Our confidence in the jury’s verdict is undisturbed.

                                         VII.

      For the above-stated reasons, we affirm Pendleton’s convictions.

      AFFIRMED.




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