* Of the Tenth Circuit Court of Appeals, sitti ng by

designation. Not for Publication in West's Federal Reporter

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

# United Stat es Court of Appeals

For the First C ircuit

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, 20051 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. Was hin gton , 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. -2- BALDOCK, Senior Circuit Judge . A grand jury indicted Defenda nt Jeffrey Paul Barnard on one count of being a felo n i n 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 pri or to trial. The district court denied the motion. Defendant proceeded to trial and a jury convictedhim. Th e di strict court denied Defendant’s subsequent motion f or a new trial, see Fed. R. Crim. P. 33, sentenced Defendant to 103 months’ imprisonment, and entered final judgment. Defenda n t 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 r ights; and (3) the district court erred in denying his motion for a new trial on the basis of newly discoveredevidence. 1 We have jurisdiction, 28 U.S.C. § 1291, and affirm. I.

Th e evidence presented at trial was as follo ws : Defendant, a convicted felon, resided in Millinocket, Maine, with-3-

his wife and stepson. Defendant’s former friend, Walter Cote, testifiedthat he first met Defendant in 1999. Cote was a frequent visitor to Defendant’s home. There, Cote observed a .22 bolt action rifle anda SKS semi-automatic rifle on numerous occasions. Cote explained that the .22 rifle was “usually out in plain sight” andhe had seen the SKS rifle in Defendant’s bedroom. Cote also testifiedthat 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 Nove mber 2000. Thereafter, Cote notified law enforcement of Defendant’s gun possession.

Law enforcement officers checked Defendant’s criminal recordand 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, Defenda nt com plained of extreme back pain and numbness in his legs. Of ficers called an ambulance. While waiting for the ambulance, Officer Robert Johansen testified that Defendant asked-4-

him“why we were doing this to him?” Defendant then stated the guns were only at his house to protect his family. Jo han sen testifi ed that he never asked Defendant any questions, but told Defendant “now is not the time t o 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 claimedthey 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.3 d 263 , 266 (1st Cir. 2001). Under § 922(g), the Government must prove: (1) the defendant had a previous felony

conv iction; (2) the defendant knowingly possessed a firearm; and-5-

(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. Th is c ircuit has consistently defined constructive possession as follows: “Constructive possession exists when a person knowingly has the power and intention at a given time to exer cise dominion andcontrol over an object either directly or through others .” UnitedStates 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 e xists 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 inter state commerce. The sole issue, therefore, was whether Defendant “possessed the firearms.” The

ev idence clearly supports the jury’s verdict that Defendan t possessedthe 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 andfound a loaded .22 rifle leaning against the wall in Defendant’s bedroom where Defendant had been sleeping. A-6-

reasonable jury, basedupon this andother evidence, could conclude Defendant, at a minimum, had constructive pos ses sion of the .22 rifle because he exercised exclusive dominion and control over the bedroomin which the firearm was located. See Liranzo , 385 F.3d at 70. Defendant’s arguments to the contrary focus mainl y 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-incriminat io n.” 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.3d538, 545 (1st Cir. 2004). The “custody” element is satisfied if the de fendant is under arrest. United States v. Ventura , 85 F.3d708, 710 (1st Cir. 1996). For Miranda purposes,-7-

“interrogation is ‘express questioning or its functional equivalent.’” United States v. Genao , 281 F.3d 305, 310 (1st Cir. 2002) (quoting Rhode Islandv. 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 , 38 0 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” w hen he made the challenged statements. Defendant, however, was never interrogated and Miranda warnings were not required. The dis trict 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 supplyi n g information regarding his possession of the firearms. As a result, any statements Defendant made to Jo han sen, incriminating or otherwise, were not in respo nse to direct questioning or the-8-

functional equivalent of direct questioning. See Genao , 281 F.3d at 310-11. Therefore, Miranda warnings were not required. C. Finally, Defen d ant 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.3d348, 357 (1st Ci r. 2003). We hold, after reviewing the record, that the district court did not manifestly a bus e 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 a pt ly noted, Defendant’s “new evidence,” which apparently consisted of evidence showing Cote may not have sold Defendant the shotgun introduced at trial, was known andavailable to Defendant at the time of trial. Further, Defendant’s failure to develop t he ev idence was due to a lack of diligence on his part. See United States v. Mello , 469 F.2d 356, 358 (1st Cir . 197 2); 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 matt ers .-9-

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 UnitedStates v. Falu-Gonzalez , 205 F.3d436, 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.