                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                        SEPTEMBER 19, 2007
                            No. 06-15778
                                                         THOMAS K. KAHN
                        Non-Argument Calendar
                                                             CLERK
                      ________________________

                D. C. Docket No. 05-00444-CR-T-27-MSS

UNITED STATES OF AMERICA,


                                                  Plaintiff-Appellee,

                                 versus

TONY E. CHRISTIAN,

                                                  Defendant-Appellant.


                      ________________________

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

                         (September 19, 2007)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Tony E. Christian (“Christian”) appeals his conviction for being a felon in

possession of firearms, in violation of 18 U.S.C. § 922(g)(1). Because the district

court did not abuse its discretion by admitting evidence of Christian’s uncharged

drug activity and because the government produced sufficient evidence to support

Christian’s conviction, we affirm.

                                 BACKGROUND

      Christian, who is serving a three-year sentence for being a felon in

possession of firearms, appeals his conviction on two main grounds. First,

Christian argues that a confidential informant’s testimony about Christian’s

alleged drug activity and the physical evidence of drugs and drug paraphernalia

found in the same bedroom as the firearms underlying the charge were not relevant

and should have been excluded under Fed. R. Evid. 402. In the alternative,

Christian contends that even if the district court found the evidence of drug

activity relevant, it should have excluded it pursuant to Fed. R. Evid. 403 because

the danger of unfair prejudice substantially outweighed its probative value.

Secondly, Christian argues that the government failed to present evidence,

unconnected to the evidence of drug activity, sufficient to support his conviction.

                           STANDARDS OF REVIEW




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      We review the district court’s rulings on admission of evidence for abuse of

discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).

“[W]hen employing an abuse-of-discretion standard, we must affirm unless we

find that the district court has made a clear error of judgment, or has applied the

wrong legal standard.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.

2004), cert. denied, 125 S. Ct. 2516 (2005).

      We review sufficiency of the evidence and the district court’s denial of a

motion for a judgment of acquittal de novo, “viewing the evidence in the light

most favorable to the government and drawing all reasonable inferences and

credibility choices in favor of the jury’s verdict.” United States v. Ramirez, 426

F.3d 1344, 1351 (11th Cir. 2005). Viewing the evidence in this light, we

determine “whether a reasonable trier of fact could find that the evidence

established guilt beyond a reasonable doubt.” United States v. Calhoon, 97 F.3d

518, 523 (11th Cir. 1996).

                                   DISCUSSION

                                          I.

      We first consider Christian’s argument that the district court erred by

admitting testimonial and physical evidence of his alleged drug activity, claiming

that such evidence was irrelevant to the charge of being a felon in possession of a

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firearm and should have been excluded under Fed. R. Evid. 402. Alternatively,

Christian argues that even if relevant, the probative value of this evidence was

substantially outweighed by its prejudicial effect, barring its admissibility under

Fed. R. Evid. 403.

      Evidence that is not relevant is not admissible. Fed. R. Evid. 402. Relevant

evidence “may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice.” Fed. R. Evid. 403. While respecting the great

degree of discretion a district court has in weighing probative value and prejudice

under Rule 403, “we have also recognized that Rule 403 is ‘an extraordinary

remedy which the district court should invoke sparingly and [t]he balance . . .

should be struck in favor of admissibility.’” United States v. Dodds, 347 F.3d 893,

897 (11th Cir. 2003) (alteration in original) (internal quotations and citations

omitted). The risk of undue prejudice can be reduced by a district court’s limiting

instruction. Ramirez, 426 F.3d at 1354. We presume the jury followed the

instructions given to it by the district court. Id. at 1352.

      We have previously held that in a prosecution for the unlawful possession

of firearms by a convicted felon under 18 U.S.C. § 922(g), evidence of the

defendant’s accompanying drug trafficking is relevant, direct evidence of the

defendant’s knowing possession of the seized firearms. United States v. Thomas,

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242 F.3d 1028, 1032 (11th Cir. 2001). Evidence of drugs and drug paraphernalia

to establish the defendant’s knowledge and constructive possession of firearms

withstands the Rule 403 balancing test where “the evidence of [the defendant’s]

drug trafficking was in sufficiently close proximity, temporally and physically” to

the firearms. Id.

      Here, the district court did not abuse its discretion in finding that the

evidence of Christian’s uncharged drug activity was relevant evidence not

substantially outweighed by the danger of undue prejudice. Because Christian

stipulated that during and prior to the time of the alleged firearm possession he

had been convicted of a felony and that the seized firearms satisfied the

jurisdictional elements of § 922(g), the defense case centered on Christian’s

knowledge and constructive possession of the firearms. Specifically, Christian

argued that the home containing the firearms remained under his deceased

mother’s name but was used by several of Christian’s siblings at various times,

that he had not lived in the house for several years and was not at the house when

agents executed the search warrant and seized the firearms. He further argued that

the materials found in the house that bore Christian’s name and address were dated

before his alleged possession of the seized firearms, May 23, 2004.




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      The government proffered the testimony of a confidential informant, Dana

Finnigan (“Finnigan”), that while buying crack cocaine from Christian and

working as a handyman at the house, he saw Christian possessing firearms, selling

drugs, and exchanging stolen items for crack cocaine. The government also

proposed to offer the drugs and drug paraphernalia seized from the same room as

the firearms to corroborate Finnigan’s testimony. The district court initially

excluded this evidence in its entirety. Yet, it later found that the evidence of the

drug scales and half-pound of marijuana was admissible proof of Christian’s

knowledge and constructive possession of the firearms, admitting them in reliance

on Thomas. We find no error in this decision. The district court did not abuse its

discretion by admitting evidence of Christian’s drug-distribution activity because

it was relevant to proving his knowledge of possession of the firearms, and the

district court gave appropriate limiting instructions. See Thomas, 242 F.3d at

1032-33. Nor did the district court did abuse its discretion in determining that the

probative value of the evidence was not substantially outweighed by unfair

prejudice. Thomas, 242 F.3d at 1032-33 (quotation omitted).

                                          II.

      Christian next argues that the government failed to present evidence

sufficient to establish his actual or constructive possession of the firearms. He

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contends that the only evidence the government presented in support of the charge

was Finnigan’s testimony, which was discredited on cross-examination.

Specifically, Christian points to Finnigan’s statement on direct examination that he

saw Christian and another man, Lamont Crow (“Crow”), at the Fuller Street

residence with the firearms on May 23, 2004, the date Christian allegedly

committed the offense. The defense countered this testimony by presenting a

booking sheet from the Polk County Sheriff’s Office showing that Crow was

booked into jail on May 18, 2004 and released September 29, 2004. On cross-

examination, Finnigan eventually revised his testimony, claiming to have seen

Christian and Crow at the residence on the exact date one year earlier, May 23,

2003. Christian claims he impeached Finnigan’s credibility, and that the

government failed to present sufficient evidence, unconnected to Finnigan’s

testimony, to support his conviction.

      The credibility of witnesses generally is within the sole province of the trier

of fact. “For testimony to be incredible as a matter of law, it must be unbelievable

on its face, i.e., testimony as to facts that [the witness] could not have possibly

observed or events that could not have occurred under the laws of nature.” United

States v. Thompson, 422 F.3d 1285, 1291 (11th Cir. 2005) (alteration in original)

(quotation marks omitted), cert. denied, 127 S.Ct. 748 (2006).

                                           7
      Finnigan’s testimony, when viewed as a whole, cannot be said to have been

incredible as a matter of law. Although Finnigan’s credibility may have been

weakened on cross-examination, the jury could have found the remainder of

Finnigan’s testimony credible. Finnigan testified that he saw handguns and rifles

on several occasions in the locked room, and he described with detail drugs and a

drug scale in the same room. The government corroborated Finnigan’s testimony.

First, the officers executing the search warrant found that the room containing four

rifles and two handguns was locked as Finnigan had described, supporting the

conclusion that only Christian had access to that room. Also consistent with

Finnigan’s testimony, the officers found a black scale and a half-pound of

marijuana in the same room.

      Moreover, Agent Smith, who led the execution of the search warrant,

testified to the correspondence, credit cards, and checkbooks bearing Christian’s

name that were found in the same locked room as the firearms. Agent Smith also

testified that the room contained three or four photo albums containing pictures of

Christian and other people.

      The district court admitted postal records linking the Fuller Street house

where the firearms were seized to P.O. Box 691 in Davenport, Florida, the same

address listed on Christian’s Florida driver’s license through March 2006. The

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government presented evidence of a Motion and Notice of Hearing from the office

of a Florida State Attorney addressed to Christian at both the P.O. Box and Fuller

Street addresses. It also established that Christian was the last person to have paid

property taxes for the Fuller Street residence, making payments in 2000, 2001, and

2003.

        Based on witness testimony and physical evidence that Christian lived in,

and controlled access to, the locked bedroom where firearms and materials bearing

his name were found, the evidence was sufficient to support Christian’s

conviction.

                                   CONCLUSION

        The district court did not abuse its discretion by admitting evidence of

Christian’s drug activity because this evidence was probative of his knowing

possession of firearms. The government produced sufficient evidence for a

rational trier of fact to find Christian’s guilt beyond a reasonable doubt.

Therefore, we will not vacate his conviction.

        AFFIRMED.




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