                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAY 11, 2006
                             No. 05-13600                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 04-00435-CR-T-26-TBM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MICHAEL COURAN,

                                                         Defendant-Appellant.


                       ________________________

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

                              (May 11,2006)

Before MARCUS, WILSON and FAY , Circuit Judges.

PER CURIAM:
       Michael Couran appeals his conviction for conspiracy to possess a firearm

after a felony conviction, in violation of 18 U.S.C. § 371.1 Couran argues that the

district court erred in denying his motion for a judgment of acquittal, made

pursuant to Fed.R.Crim.P. 29(a),2 because the government failed to present

sufficient evidence to establish that a conspiratorial agreement existed between

himself and his co-conspirator, Tedrick Randall (also known as “Teddy Randall”),

to possess a firearm. For the reasons set forth more fully below, we affirm.

       A federal grand jury returned a superseding indictment, charging Couran and

co-conspirator Randall with committing the above-referenced conspiracy offense,

with the overt act being in possession of a Stevens 12-gauge shotgun while being

convicted felons. In describing the “manner and means” of the conspiracy, this

superseding indictment included as follows:

       It was a part of the conspiracy that [Couran and Randall] were
       involved in a reported home invasion in Bradenton, Florida on April
       3, 2004. . . . It was further a part of the conspiracy that [Couran and

       1
           Couran has abandoned by not raising on appeal any challenges to his conviction for
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). See
United States v. Smith, 416 F.3d 1350, 1352 n.1 (11th Cir.) (explaining that the prudential rule
of declining to consider issues not timely raised in a party’s initial brief is “well-established” in
this Circuit), cert. denied, 126 S.Ct. 784 (2005). Moreover, although Couran sought in the
district court a judgment of acquittal based on a variance in the date charged in his superseding
indictment and the testimony at trial, he explicitly has waived our review of this argument on
appeal.
       2
          Rule 29 provides that, “[a]fter the government closes its evidence or after the close of
all the evidence, the court on the defendant’s motion must enter a judgment of acquittal of any
offense for which the evidence is insufficient to sustain a conviction.” See Fed.R.Crim.P. 29(a).

                                                  2
       Randall] stole a motor vehicle following the reported home invasion. .
       . . It was further a part of the conspiracy that [Couran and Randall],
       on April 3, 2004, following the reported home invasion and the theft
       of the motor vehicle, conspired to possess a firearm. . . ..

       During Couran’s jury trial, he stipulated that he was a convicted felon.

Deputy Jeffrey Bliss, a deputy with the Manatee County Sheriff’s Office, also

testified, stating that, after spotting a vehicle that had been reported stolen, he

stopped the vehicle and ordered the three persons inside of the vehicle to exit it.

These three persons were later identified as Couran, who was the front-seat

passenger, Randall, who was the driver, and Loucanis Phillips, who was a back-

seat passenger.3 After these men were placed in custody, back-up deputies

conducted a cursory search of the vehicle and recovered the unloaded shotgun from

between the two front seats.4 Moreover, after Deputy Bliss advised Couran of his

right to remain silent, Couran stated that, although he knew about the shotgun, it

was owned by Randall and it had been in the vehicle before Couran.

       On the other hand, co-conspirator Randall—who had plead guilty to the

conspiracy count and had agreed to testify against Couran in exchange for the


       3
         Deputy Bliss testified that after Couran and Randall were arrested for possessing the
shotgun, Phillips was released and not charged in relation to the shotgun.
       4
         A photograph of this shotgun that was introduced into evidence showed that it was
found on the front-passenger side of the vehicle, to the right of the console. Michael Gistinger, a
Special Agent with the U.S. Justice Department’s Bureau of Alcohol, Tobacco, Firearms, and
Explosives, also testified that, although 80 to 90 percent of firearms are tested for fingerprints,
the shotgun in question was not tested.

                                                 3
government agreeing to dismiss his § 922(g) offense and recommend a minor-role

adjustment at sentencing—stated that, during that same evening as their arrest, he

drove Couran to a house, where Couran picked up the shotgun. When Couran

came back to the vehicle, he placed the shotgun between his legs, barrel up.

Randall also testified that (1) the vehicle belonged to his girlfriend,5 and (2) he

never touched the shotgun. Randall and Couran, however, drove around for

approximately 30 to 45 minutes, with the shotgun in between them in the vehicle,

before Deputy Bliss stopped them. Additionally, Randall conceded that he was a

convicted felon.

       At the conclusion of the government’s evidence, Couran moved for a

judgment of acquittal on the conspiracy count, pursuant to Rule 29. Couran

argued, among other things, that the government had failed to establish that a

conspiratorial agreement existed between himself and Randall because Randall, the

only person who testified about this agreement, had stated that Randall “had

nothing to do with it.” The government responded that Randall’s admission that he

and Couran had driven around for at least 30 to 45 minutes, with the shotgun

sitting in between them in the vehicle, was “an admission of essentially

transporting, conspiring with another convicted felon to possess the firearm.”


       5
          At sentencing, the government stated that, although Randall’s girlfriend had reported
the vehicle stolen, it was not, in fact, stolen.

                                                4
      Agreeing with the government, the district court denied Couran’s Rule 29

motion. After Couran exercised his right not to testify, the jury convicted him as

charged in his superseding indictment. The district court ultimately sentenced

Couran to concurrent sentences of 60 months’ imprisonment on the conspiracy

offense and to 240 months’ imprisonment on the possession offense.

      Couran argues on appeal that the district court erred in denying his Rule 29

motion for a judgment of acquittal because, after excluding the unproven facts in

his superseding indictment, the government had produced insufficient evidence to

establish that he conspired with Randall to possess a firearm as convicted felons.

Citing to United States v. Gunn, 369 F.3d 1229 (11th Cir.), cert. denied, 543 U.S.

937 (2004), Couran asserts that knowledge, alone, is insufficient to prove

constructive possession. Couran concludes that, assuming as true Randall’s

testimony, Randall, at most, only was aware that Couran had brought the shotgun

into the vehicle and thus, did not enter into a conspiratorial agreement to possess it.

      Whether sufficient evidence supports a conviction is a question of law

subject to de novo review. United States v. Alaboud, 347 F.3d 1293, 1296 (11th

Cir. 2003). “In assessing the sufficiency of the evidence, this Court views the

evidence in the light most favorable to the government with all reasonable

inferences and credibility choices made in the prosecution’s favor.” Id. “A jury’s



                                           5
verdict must be sustained against such a challenge if ‘any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’”

Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560 (1979)).

      In Gunn, the case relied on by Couran, we examined whether sufficient

evidence supported three co-conspirators’ § 922(g) convictions, where the

government explicitly disavowed reliance upon the theory of conspiratorial

liability. See Gunn, 369 F.3d at 1234-35. We determined that a reasonable jury

could have concluded that two of the co-conspirators—the leader of the conspiracy

and a conspirator who played a leadership role and was a passenger in the vehicle

containing the firearms—had the power and intention to exercise control over the

firearms. See id. at 1235-36. The third co-conspirator, however, was not a

“principal player” in the conspiracy, never had met with the undercover agent to

plan the robbery, and had arrived at the warehouse containing the drugs in a

vehicle without firearms. See id. at 1236. Thus, we concluded that, although the

trial evidence showed that this third co-conspirator knew about the firearms, this

knowledge was insufficient, alone, to establish that he had actual or constructive

possession of them and his § 922(g) conviction had to be vacated. See id.




                                           6
      On the other hand, to support a conspiracy conviction, the offense at issue

here, the government must establish “(1) an agreement between the defendant and

one or more persons, [and] (2) the object of which is to do either an unlawful act or

a lawful act by unlawful means.” United States v. Pineiro, 389 F.3d 1359, 1368

(11th Cir. 2004) (quotation omitted). In addition to proving that a conspiratorial

agreement existed, the government must establish that “the defendant knew of it,

and [the] defendant, with knowledge, voluntarily joined it.” Id. (quotation

omitted).

      In proving the requisite knowledge for a conspiracy offense, the government

may show knowing participation in the conspiracy through either circumstantial or

direct evidence, and it need only prove that the defendant knew of the general

nature and scope of the conspiracy. Id. “It is well-settled that the existence of an

agreement in a conspiracy case is rarely proven by direct evidence that the

conspirators formally entered or reached an agreement. . . . The more common

method of proving an agreement is through circumstantial evidence.” See id. at

1369 (quotation and internal marks omitted). Thus, we concluded in Pineiro that a

reasonable jury could have concluded that the defendant had an illegal agreement

with one or more co-conspirators to manufacture marijuana when the government

presented evidence showing a close personal relationship between the defendant



                                           7
and a co-conspirator, along with the similarities in “grow houses” operated by the

co-conspirators during the same relevant time period. See id. at 1368-69.

      In conjunction with clarifying that direct evidence of the conspiratorial

agreement is not required, we also have explained that, although “[m]ere presence

is insufficient to establish knowing participation in a conspiracy,” a conspiracy

conviction will be upheld “when the circumstances surrounding a person’s

presence at the scene of conspiratorial activity are so obvious that knowledge of its

character can fairly be attributed to him.” United States v. Molina, No. 04-13114,

slip op. at 1756 (11th Cir. March 24, 2006) (quotations omitted). Indeed,

“[a]lthough not controlling, presence and association are material and probative

factors that a jury may consider in reaching its verdict.” United States v. Lluesma,

45 F.3d 408, 410 (11th Cir. 1995). “A jury may infer knowledgeable voluntary

participation from presence, when the presence is such that it would be

unreasonable for anyone other than a knowledgeable participant to be present.”

See id. (a reasonable jury could conclude that one of the defendants understood

that shipping containers with stolen equipment were being exported to Venezuela

when (1) a co-conspirator testified that the co-conspirator had talked to the

defendant about a high-level co-conspirator who had made money from exporting




                                          8
goods; and (2) the warehouse used to store these containers was located in a

neighborhood with other import/export businesses).

      In the instant case, the evidence in the record includes that Randall never

touched the shotgun and that the shotgun was not tested for fingerprints.

However, Randall testified that he drove Couran to a house, where Couran had

picked up the shotgun. Additionally, Randall testified that he and Couran had

driven around for approximately 30 to 45 minutes, with the shotgun in between

them in the vehicle, before Deputy Bliss stopped them. Thus, similar to the facts in

Pineiro, a reasonable jury could have concluded from the circumstantial evidence

that Couran and Randall had an illegal agreement to possess the shotgun. See

Pineiro, 389 F.3d at 1368-69. Indeed, a reasonable jury could have inferred

Randall’s voluntary participation in the possession of the shotgun because “it

would [have been] unreasonable for anyone other than a knowledgeable participant

to be present.” See Lluesma, 45 F.3d at 410.

      To the extent Couran is arguing that his conspiracy conviction was not

supported by sufficient evidence because the government failed to prove all of the

facts charged in his superseding indictment, including that he was part of a

conspiracy to commit a home invasion and steal a motor vehicle, the government

“need not prove all facts charged in the indictment as long as it proves other facts



                                          9
charged in the indictment which do satisfy the essential elements of the crime.”

See United States v. Smith, 231 F.3d 800, 818 n.21 (11th Cir. 2000) (quoting

United States v. England, 480 F.2d 1266, 1269 (5th Cir. 1973)). Furthermore,

although Couran arguably is questioning Randall’s credibility due to the fact that

Randall was hoping for a minor-role adjustment in his guideline range, credibility

determinations are for a jury to make. See United States v. Andrews, 953 F.2d

1312, 1318 (11th Cir. 1992). Randall’s testimony that he and Couran had driven

around with the shotgun between them in the vehicle also was corroborated by a

photograph of the shotgun, which reflected that it was recovered from the front-

passenger side of the vehicle, to the right of the console. Thus, a reasonable trier

of fact, viewing the evidence in the light most favorable to the government, could

have found, beyond a reasonable doubt, that Couran and Randall knowingly

participated in a conspiracy to possess a firearm as convicted felons. See Alaboud,

347 F.3d at 1296.

      Accordingly, we conclude that Couran’s § 371 conviction was supported by

sufficient evidence. We, therefore, affirm.

      AFFIRMED.




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