* Local Rule 47.5.1 provides: "The publication of opinions that have

no precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession." Pursuant to that Rule, the Court has determined that this

opinion should not be published.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 95-50078

(Summary Calendar)

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISAAC RODRIGUEZ,

Defendant-Appellant.

_______________________________________________

Appeal from the United States District Court

For the Western District of Texas

(94 CR 48 ALL)

_______________________________________________

September 5, 1995

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Isaac Rodriguez appeals his conviction for possession of a

firearm by a felon under 18 U.S.C. § 922(g) (1988) and possession

of a firearm with a removed serial number under § 922(k). He

claims that insufficient evidence supports the jury's finding that

he possessed a firearm. We affirm.

I
-2-

El Paso police officer Juan Rojas and military police officer

Carl Rinker responded to a dispatch call concerning an automobile

accident. Finding that a vehicle had crashed against the concrete

barrier of a bridge, and that the vehicle was empty, they conducted

a search of the surrounding area that included the bridge's

embankment and a ditch underneath the bridge. As Rojas and Rinker

concluded their search, Victor Garcia, who had been a passenger in

the car at the time of the accident, approached the officers and

identified himself to them. Rojas noted that Garcia was injured

and asked him for his name and address for the accident report.

Because the accident had occurred in a high-crime area, Rojas then

performed a pat-down search of Garcia. 

After the search, Isaac Rodriguez approached the accident

scene. According to the trial testimony of Government witnesses,

the following events ensued: Rojas asked Rodriguez to identify

himself. Rodriguez responded that the car was his mother's and

that it was stolen. Rojas again asked Rodriguez for

identification, but Rodriguez ignored him and appeared to Rojas to

be agitated and nervous. Rodriguez fidgeted with his hands and

placed them in his pocket. Rojas repeatedly asked Rodriguez to

remove his hands from his pockets, but Rodriguez ignored him.

Because Rodriguez continually ignored Rojas' requests, Rojas asked

him to come closer to be searched. Rodriguez resisted and Rojas

forced him to his knees. Standing behind Rodriguez, Rojas asked

him to place his hands behind his neck. Rodriguez complied, but

when Rojas began to search him, Rodriguez lowered his left hand.
-3-

Rojas asked him to place his hand behind his neck, and Rodriguez

reluctantly complied. However, when Rojas began the search again,

Rodriguez lowered his left hand towards his waist. Seeing a gun in

Rodriguez' left hand, Rojas punched Rodriguez to gain time in which

to distance himself from Rodriguez and to draw his own weapon. By

the time Rojas had drawn his weapon, he could no longer see a gun

in Rodriguez' hand. Rodriguez struggled when Rojas attempted to

handcuff him. With the help of Rinker, Rojas handcuffed Rodriguez

and placed him in the patrol car. Rojas then searched the area for

Rodriguez' gun, ultimately locating on the embankment what appeared

to him to be the gun he had seen in Rodriguez' hand. Both Rinker

and Rojas testified that the gun was not on the embankment when

they conducted their initial search of the area.

Rodriguez was charged with possession of a firearm by a felon

and possession of a firearm with removed serial numbers, and a

federal jury convicted him on both counts. Rodriguez appeals his

conviction, contending that insufficient evidence supports the

jury's verdict.

II 

Rodriguez challenges the sufficiency of the evidence

supporting his conviction under 18 U.S.C. §§ 922(g) and 922(k),

claiming that the evidence does not support the jury's finding that

he possessed the weapon found at the accident site. In our review

of the sufficiency of the evidence supporting the jury's verdict,

"we determine whether, viewing the evidence and the inferences that

may be drawn from it in the light most favorable to the verdict, a
 

1 We apply this standard of review because Rodriguez

preserved his sufficiency of the evidence claim by moving for a

judgment of acquittal at trial. We apply a stricter standard when

a defendant fails to preserve a sufficiency claim. See United

States v. Galvan, 949 F.2d 777, 782-83 (5th Cir. 1991) (applying

"manifest miscarriage of justice" standard where defendant failed

to move for a directed verdict or a judgment of acquittal).

-4-

rational jury could have found the essential elements of the

offenses beyond a reasonable doubt." United States v. PrunedaGonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, 504 U.S. 978,

112 S. Ct. 2952, 119 L. Ed. 2d 575 (1992).1 "The jury retains sole

responsibility for determining the weight and credibility of the

evidence," United States v. Jaramillo, 42 F.3d 920, 923 (5th

Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 2014, 131 L. Ed. 2d

1013 (1995), and we recognize that the jury is "free to choose

among reasonable constructions of [the] evidence," United States

v. Garza, 990 F.2d 171, 175 (5th Cir.), cert. denied, ___ U.S. ___,

114 S. Ct. 332, 126 L. Ed. 2d 278 (1993). We view the evidence,

both direct and circumstantial, as well as all reasonable

inferences from that evidence, in the light most favorable to the

verdict. Jaramillo, 42 F.3d at 923; United States v. Fierro, 38

F.3d 761, 768 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.

Ct. 1388, 131 L. Ed. 2d 240 (1995).

Rodriguez contends that insufficient evidence supports the

jury's finding that he possessed the weapon found at the accident

site. The Government presented the following evidence of

possession at trial: (1) Rojas saw in Rodriguez' hand a small,

semi-automatic handgun that was made of either faded black or blue

steel; (2) Near where he and Rodriguez struggled, Rojas found a
 

2 Section 922(g)(1) provides that:

It shall be unlawful for any person . . . who has been convicted in

any court of . . . a crime punishable by imprisonment for a term

exceeding one year . . . to ship or transport in interstate or

foreign commerce, or possess in or affecting commerce, any firearm

or ammunition; or to receive any firearm or ammunition which has

been shipped or transported in interstate or foreign commerce.

 

3 Section 922(k) states that it is unlawful to knowingly "transport

. . . any firearm which has had the importer's or manufacturer's serial number

removed, obliterated, or altered."

-5-

gun matching that description, and that to him appeared to be the

same gun he had seen in Rodriguez' hand; (3) Rojas and Rinker did

not find the gun during their initial search of the area, and

believed that they would have discovered it had it been there at

the time; (4) While Rojas was reading Rodriguez his rights,

Rodriguez stated that the gun was not his, although Rojas had not

mentioned the weapon he had found to Rodriguez.

To sustain a conviction for possession of a firearm by a felon

under § 922(g),2 the Government must prove beyond a reasonable

doubt that "(1) the defendant had a previous felony conviction, (2)

that the defendant possessed a firearm, and (3) the firearm had

travelled in or affected interstate commerce." United States v.

Wright, 24 F.3d 732, 734 (5th Cir. 1994). Section 922(k)3 requires

the Government to prove that Rodriguez knowingly possessed the

weapon found at the accident site and knew that the serial numbers

on the firearm were altered or removed at the time of his

possession. United States v. Hooker, 997 F.2d 67, 72 (5th Cir.

1993).

Rodriguez argues that the evidence was insufficient to prove

that he ever possessed the gun found at the accident site. He
 

4 Rodriguez contends that the jury should not have considered

Maldonado's trial testimony regarding Garcia's written statement as evidence of

guilt. The district court admitted Maldonado's testimony for purposes of

impeachment, and gave a corresponding limiting instruction. The jury is presumed

to have followed that instruction. United States v. Willis, 6 F.3d 257, 263 (5th

Cir. 1993).

 

5 See United States v. Polk, 56 F.3d 613, 629-30 (5th Cir. 1995)

(reversing conviction of defendant where uncontroverted evidence revealed that

it was physically impossible for defendant to have committed crime).

-6-

claims that (1) he never possessed the gun found at the accident

site, (2) he could not have possessed the gun found at the accident

site because it would have been impossible for him, under the

circumstances, to have thrown the weapon down the embankment, (3)

the gun found at the accident site was thrown from the bridge by

another person, (4) Garcia did not tell ATF agent Victor Maldonado

that Rodriguez had shown him the gun that night, and (5) the last

paragraph in Garcia's written statement, in which Garcia states

that Rodriguez had shown him the gun, was added after Garcia signed

the document.4

Taken in the light most favorable to the verdict, the evidence

at trial establishes that Rojas saw the gun that he found at the

accident site in Rodriguez' left hand, and the jury reasonably

could have inferred from this evidence that Rodriguez retrieved the

gun from his clothing and then threw it down the embankment.

Rodriguez argues that Rojas' testimony regarding the gun is

unreliable because Rojas, by his own testimony, had very little

time in which to identify something in Rodriguez' hand, and because

it would have been physically impossible for Rodriguez to have

thrown the gun down the embankment from a kneeling position.5

"[T]estimony generally should not be declared incredible as a
-7-

matter of law unless it asserts facts that a witness physically

could not have observed or events that could not have occurred

under the laws of nature." United States v. Osum, 943 F.2d 1394,

1405 (5th Cir. 1991). "Only when testimony is so unbelievable on

its face that it defies physical laws should the court intervene

and declare it incredible as a matter of law." United States v.

Lindell, 881 F.2d 1313, 1322 (5th Cir. 1989), cert denied, 496 U.S.

926, 110 S. Ct. 2621, 110 L. Ed. 2d 642 (1990).

Rojas saw the gun in Rodriguez' hand while he was attempting

to search Rodriguez, and thus was able to view the gun at a very

short distance. Because of his experience as a police officer,

Rojas is necessarily more familiar with firearms than the average

person. For these reasons, Rojas' testimony that, after only a

quick glance, he was able to identify the general size, type, and

color of the gun he saw in Rodriguez' hand is not so unbelievable

on its face that it defies physical laws. See United States v.

Velgar-Vivero, 8 F.3d 236, 240 n.11 (5th Cir. 1993) (upholding

conviction based in part on defendant's destruction of evidence

because "[while] it may have been difficult for a handcuffed

[person] to destroy evidence in the manner so stated, we do not

find that it defies the laws of physics"), cert. denied, ___ U.S.

___, 114 S. Ct. 1865, 128 L. Ed. 2d 486 (1994).

Similarly, Rojas' testimony that the gun he found at the

accident site was the same gun he had seen in Rodriguez' hand is

not so unbelievable on its face that it defies physical laws simply

because it would have been difficult for Rodriguez to have thrown
-8-

the gun down the embankment from a kneeling position. The evidence

at trial showed that Rodriguez would have had to have thrown the

gun over a concrete guard-rail for it to have landed on the

embankment. However, Rojas testified at trial that he found the

gun three to four feet down the embankment, and that the guard-rail

came up to Rodriguez' chest when Rodriguez was kneeling. Thus, it

would not have been physically impossible for Rodriguez, from his

kneeling position, to have thrown the gun to the spot on the

embankment where it was found. See id. (affirming conviction based

in part on evidence of defendant's actions that were difficult but

not impossible).

Because the events that Rojas described in his testimony are

not so unbelievable on their face as to be physically impossible,

Rojas' testimony supports Rodriguez' conviction. Taking the

evidence in the light most favorable to the verdict, there was

direct and sufficient evidence at trial to establish that Rodriguez

possessed the gun found at the accident scene. Because this is the

only element of his conviction under §§ 922(g) and 922(k) that

Rodriguez contests, we conclude that a rational jury could have

found the essential elements of the offenses beyond a reasonable

doubt. Cf. United States v. Speer, 30 F.3d 605, 612 (5th Cir.

1994) (holding that sufficient evidence supported jury's finding

that the government had proven the possession element of § 922(g),

under constructive possession theory, because police officer

testified at trial that co-defendant "was in visible possession of

a gun"), cert. denied, ___ U.S. ___, 115 S. Ct. 768, 130 L. Ed. 2d
-9-

664 (1995). 

III 

For the foregoing reasons, we AFFIRM Rodriguez' conviction.