* Of the Tenth Circuit Court of Appeals, sitting by

designation.

Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1920

UNITED STATES OF AMERICA,

Appellee,

v.

JEFFREY PAUL BARNARD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, U.S. District Judge]

Before

 Selya, Circuit Judge,

Baldock,* Senior Circuit Judge,

and Howard, Circuit Judge.

Marvin H. Glazier for Appellant.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D.

Silsby, United States Attorney, was on the briefs, for Appellee.

June 14, 2005
1 Defendant raises a fourth issue, which we summarily reject.

Defendant argues the district court’s jury instruction relating to

“possession” under § 922(g) violated the Supreme Court’s decision

in Blakely v. Washington, 124 S.Ct. 2531 (2004) and other

sentencing cases. Defendant’s argument is misguided. Blakely and

its progeny concern only the Sixth Amendment in the context of

determinate sentencing schemes. Defendant, however, only appeals

his underlying conviction. He does not appeal his sentence. Such

cases, therefore, are wholly irrelevant. 

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BALDOCK, Senior Circuit Judge. A grand jury indicted

Defendant Jeffrey Paul Barnard on one count of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g).

Defendant filed a motion to suppress statements allegedly obtained

in violation of his Miranda rights prior to trial. The district

court denied the motion. Defendant proceeded to trial and a jury

convicted him. The district court denied Defendant’s subsequent

motion for a new trial, see Fed. R. Crim. P. 33, sentenced

Defendant to 103 months’ imprisonment, and entered final judgment.

Defendant appeals, arguing: (1) insufficient evidence exists to

support his conviction under 18 U.S.C. § 922(g); (2) the district

court erred in denying his motion to suppress statements obtained

in violation of his Miranda rights; and (3) the district court

erred in denying his motion for a new trial on the basis of newly

discovered evidence.1 We have jurisdiction, 28 U.S.C. § 1291, and

affirm.

I.

The evidence presented at trial was as follows:

Defendant, a convicted felon, resided in Millinocket, Maine, with
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his wife and stepson. Defendant’s former friend, Walter Cote,

testified that he first met Defendant in 1999. Cote was a frequent

visitor to Defendant’s home. There, Cote observed a .22 bolt

action rifle and a SKS semi-automatic rifle on numerous occasions.

Cote explained that the .22 rifle was “usually out in plain sight”

and he had seen the SKS rifle in Defendant’s bedroom. Cote also

testified that in the summer of 2000, he sold Defendant a 12-gauge

shotgun and a gun cabinet. After selling Defendant the cabinet,

Cote visited Defendant’s home and observed the cabinet in

Defendant’s bedroom. Defendant and Cote had a falling out in

November 2000. Thereafter, Cote notified law enforcement of

Defendant’s gun possession. 

Law enforcement officers checked Defendant’s criminal

record and confirmed his status as a convicted felon. Officers

executed a search warrant at Defendant’s residence on the morning

of December 3, 2000. Officers found Defendant in his bedroom and

placed him in custody. Officers found a loaded .22 rifle leaning

against the wall next to Defendant’s bed. Officers also seized a

SKS rifle, shotgun, and ammunition from a gun cabinet in

Defendant’s bedroom.

Officers transported Defendant to the police station.

There, Defendant complained of extreme back pain and numbness in

his legs. Officers called an ambulance. While waiting for the

ambulance, Officer Robert Johansen testified that Defendant asked
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him “why we were doing this to him?” Defendant then stated the

guns were only at his house to protect his family. Johansen

testified that he never asked Defendant any questions, but told

Defendant “now is not the time to discuss any matters with me.”

Nevertheless, once at the hospital, Defendant again told Johansen

that he only had the guns to protect his family. 

Defendant’s stepson, Wayde Batchelder, testified in

Defendant’s defense and claimed that he, his brother Harold

Edwards, and their friend, Jason Hartley, had placed the .22 rifle,

SKS rifle, and shotgun in Defendant’s home. The three witnesses

claimed they owned the guns and placed them in Defendant’s gun

cabinet, with a lock, in late November 2000. Defendant also

testified and denied (1) purchasing a shotgun from Cote, and (2)

that Cote was a frequent visitor to his home. The jury convicted

Defendant of being a felon in possession of a firearm.

II.

A.

Defendant first argues that insufficient evidence exists

to support his felon-in-possession conviction under § 922(g). We

review sufficiency of the evidence claims de novo, drawing all

reasonable inferences in favor of the Government. United States v.

Rivera-Ruiz, 244 F.3d 263, 266 (1st Cir. 2001). Under § 922(g),

the Government must prove: (1) the defendant had a previous felony

conviction; (2) the defendant knowingly possessed a firearm; and
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(3) the firearm was in or affecting interstate commerce. United

States v. Wight, 968 F.2d 1393, 1397 (1st Cir. 1992). Possession,

under the second element, may be actual or constructive. See id.

This circuit has consistently defined constructive possession as

follows: “Constructive possession exists when a person knowingly

has the power and intention at a given time to exercise dominion

and control over an object either directly or through others.”

United States v. Carlos Cruz, 352 F.3d 499, 510 (1st Cir. 2003)

(internal quotations omitted). “Constructive possession for

§ 922(g) purposes does not require ownership of the gun.” United

States v. Liranzo, 385 F.3d 66, 69 (1st Cir. 2004). When reviewing

a sufficiency of the evidence challenge to a § 922(g) conviction,

we must uphold any verdict the record supports. Id.

In this case, sufficient evidence exists to support

Defendant’s felon-in-possession conviction under § 922(g).

Defendant stipulated at trial that he was a convicted felon and

that the firearms affected interstate commerce. The sole issue,

therefore, was whether Defendant “possessed the firearms.” The

evidence clearly supports the jury’s verdict that Defendant

possessed the firearms. Cote testified he observed a .22 rifle and

a SKS rifle in Defendant’s home on numerous occasions. Further,

law enforcement officers testified they searched Defendant’s house

and found a loaded .22 rifle leaning against the wall in

Defendant’s bedroom where Defendant had been sleeping. A
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reasonable jury, based upon this and other evidence, could conclude

Defendant, at a minimum, had constructive possession of the .22

rifle because he exercised exclusive dominion and control over the

bedroom in which the firearm was located. See Liranzo, 385 F.3d at

70. Defendant’s arguments to the contrary focus mainly on

testimony indicating he did not own the firearms. A conviction

under § 922(g), however, does not require proof of ownership of the

firearms in question. See id. at 69.

B.

Defendant next argues the district court erred in denying

his motion to suppress statements obtained in violation of his

Miranda rights. We review the district court’s legal conclusions

on a motion to suppress de novo and its factual findings for clear

error. United States v. Meade, 110 F.3d 190, 193 (1st Cir. 1997).

It is well established that “the prosecution may not use statements

. . . stemming from custodial interrogation of the defendant unless

it demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination.” Miranda v.

Arizona, 384 U.S. 436, 444 (1966). In order for a defendant to

make out a claim under Miranda, “his statements must have been the

product of custodial interrogation.” United States v. Lopez, 380

F.3d 538, 545 (1st Cir. 2004). The “custody” element is satisfied

if the defendant is under arrest. United States v. Ventura, 85

F.3d 708, 710 (1st Cir. 1996). For Miranda purposes,
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“interrogation is ‘express questioning or its functional

equivalent.’” United States v. Genao, 281 F.3d 305, 310 (1st Cir.

2002) (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)).

Interrogation occurs only when police conduct is reasonably likely

to elicit an incriminating response from the suspect. See id. A

defendant’s voluntary statements, even if incriminating, generally

do not amount to a custodial interrogation. Lopez, 380 F.3d at

546.

The district court did not err in denying Defendant’s

motion to suppress the incriminating statements he made to Officer

Johansen regarding possession of the firearms. Defendant was under

arrest and therefore “in custody” when he made the challenged

statements. Defendant, however, was never interrogated and Miranda

warnings were not required. The district court found Officer

Johansen’s testimony at the suppression hearing credible. We are

extremely deferential to the district court’s credibility

determinations. United States v. Zapata, 18 F.3d 971, 975 (1st

Cir. 1994). Officer Johansen testified he never questioned

Defendant regarding his possession of the firearms. Further,

Officer Johansen testified that he informed Defendant not to make

any statements to him when Defendant began voluntarily supplying

information regarding his possession of the firearms. As a result,

any statements Defendant made to Johansen, incriminating or

otherwise, were not in response to direct questioning or the
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functional equivalent of direct questioning. See Genao, 281 F.3d

at 310-11. Therefore, Miranda warnings were not required.

C. 

Finally, Defendant argues the district court erred in

denying his motion for a new trial based upon newly discovered

evidence. We review the denial of a motion for a new trial for a

“manifest abuse of discretion.” United States v. Colon-Munoz, 318

F.3d 348, 357 (1st Cir. 2003). We hold, after reviewing the

record, that the district court did not manifestly abuse its

discretion in denying Defendant’s motion for substantially the same

reasons set forth in the district court’s thorough order.

See United States v. Barnard, 304 F.Supp. 2d 96 (D. Maine 2004). 

As the district court aptly noted, Defendant’s “new

evidence,” which apparently consisted of evidence showing Cote may

not have sold Defendant the shotgun introduced at trial, was known

and available to Defendant at the time of trial. Further,

Defendant’s failure to develop the evidence was due to a lack of

diligence on his part. See United States v. Mello, 469 F.2d 356,

358 (1st Cir. 1972); see also United States v. Vigneau, 337 F.3d

62, 69 (1st Cir. 2003). At trial, defense counsel, without going

into specifics, informed the district court he had discovered some

evidence that he might have to bring to the attention of the court.

Defendant, however, later notified the court that he was not going

to pursue the issue because it would only confuse matters.
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Defendant’s knowledge of the evidence at the time of trial and his

failure to develop the evidence precludes his motion for a new

trial. See United States v. Falu-Gonzalez, 205 F.3d 436, 442 (1st

Cir. 2000) (explaining that a motion for a new trial must be denied

if the defendant fails to carry his burden as to any one of the

applicable factors).

III. 

Based upon the foregoing, Defendant’s conviction is 

AFFIRMED.