## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-3660

___________ United States of America, *
* Appellant, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Robert Stanford Johnson, *
* Appellee. *

___________ Submitted: October 18, 2006 Filed: Feburary 5, 2007

___________ Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.

___________ RILEY, Circuit Judge. A jury found Robert Stanford Johnson (Johnson) guilty of possession with intent to distribute cocaine base, in vi olation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug traffi cking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and being a felon in posse ssion of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court granted Johnson’s post-trial motion for judgment of acquittal with respect to the tw o firearm counts, and conditionally granted a new trial on the same counts in the even t the judgment of acquittal was vacated or reversed on appeal. The government appeal s. We reverse the district court’s judgment of acquittal and conditional gr ant of a new tria l, and remand with instructions to reinstate the jury’s verdict on both firearm counts.1 Officers also discovered throughout the residence numerous other items relating to the distribution of controlled substances, including cash, drugs, a digital scale, and plastic baggies, as well as two other firearms.
-2- I. BACKGROUND On October 21, 2004, officers of the Des Moines (Iowa) Police Department executed a search warrant at a Des Moines residence, located at 1826 Ninth Street. This residence served as a drug distribu tion center, in other words, a crack house. Upon executing the search warrant, officers found Johnson in the residence’s northeast bedroom asleep on a bed next to an infant. On top of a dresser located next to Johnson, and within his reach, was a shoe box with a torn lid covering half of the box. Inside the shoebox was a loaded Taurus .38 caliber handgun, covered by tissue paper. A search of the bedroom closet revealed several small empty Ziploc plastic baggies and Johnson’s state identification card. Officers also found a cable bill for the residence registered in Johnson’s name. A search of Johnson’s pants’ pockets yielded approximately five grams of co caine base and over $1,500 in cash. 1

A grand jury indicted Johnson on four counts: (1) conspir acy to distribute cocaine base, (2) possession with intent to distribute cocaine base, (3) possession of a firearm in furtherance of a drug traffi cking offense, and (4) being a felon in possession of a firearm. The government di smissed the conspir acy charge, and the case proceeded to trial on the remaining three counts.

Desseray Wright (Wright), Johnson’s girl friend and co-defendant, lived at the residence and was present during the searchon October 21, 2004. Pursuant to a plea agreement, Wright pled guilty to conspir acy to distribute cocaine base and possession of a firearm in relation to drug trafficking. At trial, Wright testified Johnson was a frequent visitor, who did not live at the residence but stayed there “on and off.” Wright verified Johnson shared the northeast bedroom with her when he stayed at the-3- residence, and Johnson’s family memb ers dropped by the house on a daily basis. According to Wright, although her name was on the residence’s lease and the household utilities, Michael Montgomery (M ontgomery), Wright’s co-conspirator, actually paid the residence’s rent. Wri ght testified, notwith standing Johnson’s name on the cable bill, Johnson never paid this bill before being “locked up.” Wright further testified Johnson did not participat e in any crack distribution activities with Wright or Montgomery.

During the October 2004 search, officers also located two other firearms in the residence: the first under a couch in the liv ing room and the second inside a purse in a dresser located in the bedroom where Johnson was sleeping. Wright testified Montgomery brought both of these firearms in to the residence. According to Wright, she saw Montgomery with one of the firear ms two days before the search and told Johnson about it, causing Johnson to become upset that Wright allowed someone to bring a firearm into the house. Wright never observed Johnson in possession of any of the three firearms. Wri ght also testified the shoebox itself, containing the Taurus .38 caliber handgun, belonged to her and was usually stored in the bedroom closet. In her testimony, Wright denied owning the Taurus .38 caliber handgun or knowing anything about it. Wright neither pl aced the handgun in the shoebox nor knew who moved the shoebox to the dresser. Wri ght also denied seeing the shoebox on the dresser or removing a portion of the lid. Wri ght further testified that on the day of the search (1) Johnson was alone, sleeping most of the day in the northeast bedroom; and (2) Wright was the only one to enter the bedroom, and did so when she placed her infant sister in the bed with Johnson.

In support of his case, Johnson presen ted the testimony of his younger brother, Nolan Allen (Allen), who testified the Taurus .38 caliber handgun found in the shoebox belonged to Allen. Allen stated he put the gun in the shoebox in his “brother’s room,” and placed the shoebox on the floor beside the bed before Johnson-4- arrived at the residence. Allen also ve rified the residence’s northeast bedroom was Johnson’s, and stated Johnson kept a few items in the bedroom.

Johnson also testified in his defense. Johnson stated that at the time of the search in October 2004, J ohnson rented and stayed at his own residence at 1614 Arlington Avenue in Des Moines, the same address listed on Johnson’s state identification card. Johnson visited Wright at least once a day and stayed the night once or twice each week, sleeping in Wri ght’s northeast bedroom. Johnson testified that when Wright told him Montgomery brought a gun into the residence, Johnson told Wright to make Montgomery get rid of the gun, because Johnson was a felon and “can’t be around weapons.” On October 21, 2004, Johnson arrived at Wright’s residence around 3:00 p.m. Before going to Wright’s bedroom to rest, Johnson observed at least eleven people in Wri ght’s residence, including Wright and Montgomery.

The jury convicted Johnson on all three counts. Following trial, Johnson renewed his motion for judgment of acquittal and alternative mo tion for a new trial. The district court denied the motion as to the possession with intent to distribute count, but granted the motion as to the two fi rearm counts. Alternatively, the district court ruled the guilty verdicts on the firearm counts were contrary to the weight of the evidence and a “miscarriage of justice may have occurred.” Thus, the district court conditionally granted Johnson’s motion for a new trial on the firearm counts in the event this court vacated or reversed th e district court’s judgment of acquittal.

The government appeals, arguing the district court erred in granting Johnson’s motion for judgment of acquittal, and in conditionally granting Johnson a new trial on the firearm counts.-5- II. DISCUSSION A. Judgment of Acquittal Under Federal Rule of Criminal Procedur e 29, a district court shall enter a judgment of acquittal if the evidence presente d at trial is insufficient to sustain a conviction. A district court must cons ider a motion for judgment of acquittal with “very limited latitude” and must neither asse ss the witnesses’ credibility nor weigh the evidence. United States v. Thompson , 285 F.3d 731, 733 (8th Cir. 2002) (quotation omitted). Rather, the district court must vi ew the evidence in th e light most favorable to the government, resolving evidentiary conflicts in the government’s favor and accepting all reasonable inferences draw n from the evidence supporting the jury’s verdict. Id. “The jury’s verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable- minded jury to c onclude guilt beyond a reasonable doubt.” Id. In reviewing a judgment of acquittal, we apply the same standard as the district court. Id.

To convict Johnson under 18 U.S.C. § 922(g )(1) for being a felon in possession of a firearm, the government was re quired to prove beyond a reasonable doubt (1) Johnson previously had been convict ed of a crime punishable by a term of imprisonment exceeding one year, (2) Johnson knowingly possessed a firearm, and (3) the firearm had been in or had affected interstate commerce. SeeUnited States v. Maxwell , 363 F.3d 815, 818 (8th Cir. 2004), cert. denied , 543 U.S. 1154 (2005). The parties stipulated to the first and third elements, thereby making the critical issue whether Johnson knowingly possessed the Taurus .38 caliber handgun found in the bedroom in which Johnson was sleeping. The government could prove this element with evidence showing Johnson had actual or constructive possession of the firearm. United States v. Walker , 393 F.3d 842, 846-47 (8th Cir.), cert. denied , 126 S. Ct. 463 (2005). “Constructive possession of the fir earm is established if the person has dominion over the premises where the firear m is located, or control, ownership, or dominion over the firearm itself.” United States v. Claybourne , 415 F.3d 790, 795-96-6- (8th Cir. 2005) (quotation omitted). Possession need not be exclusive, but instead may be joint. Ortega v. United States , 270 F.3d 540, 545 (8th Cir. 2001).

In granting Johnson’s motion for judgment of acquittal, the district court determined “the evidence was inadequate to permit a reasonable jury to find beyond a reasonable doubt that [Johnson] was guilty,” relying, in part, on this court’s opinion in United States v. Cruz , 285 F.3d 692 (8th Cir. 2002). Such reliance, however, is misplaced. Cruz addressed whether sufficient evidence supported two defendants’ convictions for possession of methamphetami ne with intent to distribute. Id. at 697. Recognizing a defendant’s mere physical proxi mity to contraband is insufficient, by itself, to prove constructive possession, we reversed both defendants’ convictions on this count, concluding the government pres ented insufficient evidence to prove the defendants had constructive po ssession of the drugs. Id. at 699-700. With regard to one defendant (Rufino Gonzales), we sp ecifically found the government presented no evidence establishing the defendant’s domin ion and control over the drugs or the house in which the drugs were found. Id. at 699. We also noted the absence of the defendant’s “personal effects or venue items” in the house, as well as the lack of any evidence indicating the defendant either resi ded at the house or had knowledge of and control over the drugs. Id.

Here, in contrast, law enforcement officers found Johnson sleeping in the residence’s northeast bedroom within arms-reach of a shoebox donning a half-torn lid and containing the Taurus .38 caliber handgun, veiled in tissu e paper. Inside the same room in the bedroom closet, officers f ound Johnson’s state identification card and a cable bill for the residence bearing Johnson’s name. Allen’s testimony indicated Johnson kept other items in the northeast bedroom as well. Johnson, Wright, and Allen each testified Johnson shared the northeast bedroom with Wright when Johnson stayed at the residence. Johnson was pres ent in the house on a daily basis, and slept in the house one or two nights each week. Wri ght also testified that on the day of the search, Johnson was the only adult in the bedroom for most of the day, and Wright-7- had been the only other person to enter th e bedroom while Johnson was sleeping there. With regard to the shoebox, which Wright usually stored in the bedroom closet, Wright denied placing a handgun in the shoe box, moving the shoebox to the top of the dresser, seeing the shoebox on the dresser, or removing a portion of the shoebox’s lid. Viewing the evidence in the light most favor able to the government and resolving all evidentiary conflicts in the government’s favor, we hold a reasonable jury could have concluded Johnson constructively possessed the firearm.

Our decision comports with this circ uit’s precedent addressing the issue of constructive possession. SeeUnited States v. Davis , 449 F.3d 842, 846 (8th Cir. 2006) (holding the government presented sufficient evidence the defendant constructively possessed a firearm found in a house based on the presence of the defendant’s pictures throughout the house, as well as the presence of men’s clothing and a receipt bearing the defendant’s name in the bedroom where firearm was located); Claybourne , 415 F.3d at 796 (finding sufficien t evidence of the defendant’s constructive possession of a firearm found in bedroom based on evidence of the defendant’s dominion over the bedroom; the presence of the defendant’s identification card, Social Security card, and a telephonebill in the defendant’s name in the bedroom; and the manner in wh ich the firearm was concealed); United States v. Boyd , 180 F.3d 967, 978-79 (8th Cir. 1999) (finding sufficient evidence of the defendant’s constructive possession of a firearm found in a bedroom closet given the defendant’s close proximity to the firearm at time of arrest; the testimony of the defendant’s girlfriend, who leased the residence, thatthe bedroom belonged to the defendant; and the presence of the defendant’s clothing and identification in the closet in which the firearm was discovered).

In so holding, we do note Allen’s te stimony indicating the firearm actually belonged to him, not Johnson, and that A llen placed the firearm in the shoebox shortly before Johnson’s arrival at the residence. While a jury might have viewed this evidence as the more plausibl e explanation for the firear m’s existence and concluded-8- Johnson did not knowingly possess the firearm, “the presence of one possible ‘innocent’ explanation for the government’s evidence does not preclude a reasonable jury from rejecting the exculpatory hypothe sis in favor of guilt beyond a reasonable doubt.” United States v. Maloney , 466 F.3d 663, 667 (8th Cir. 2006) (quotation omitted). The jury easily could have disb elieved Allen’s story and concluded Allen was covering for his older br other. Indeed, “[w]e enj oy no greater vantage point on appeal than did the jury at trial, and we have no right to usurp the jury’s role to judge the facts and make credibility findi ngs.” United States v. Porter , 409 F.3d 910, 915 (8th Cir.), cert. denied , 126 S. Ct. 504 (2005). Given the evidence of Johnson’s wellknown occupancy of the bedroom, the presen ce of his identification card and a cable bill bearing his name in the bedroom closet, testimony regarding the location of the shoebox containing the firearm, and Johnson’s close proximity to the firearm at the time of the search, we conclude the ev idence was sufficient to sustain Johnson’s conviction for being a felon in possession of a firearm.

We reach a similar conclusion with regard to Johnson’s conviction for possession of a firearm in furtherance of a drug trafficking offens e, which required the government to prove Johnson possessed a firear m in furtherance of a drug trafficking crime and used or carried that firearm during and in relation to a drug trafficking crime. See18 U.S.C. § 924(c)(1)(A). In lightof our determination there was sufficient evidence Johnson knowingly possessed the firearm, and given Johnson’s conviction for possession with in tent to distribute cocaine ba se, we conclude sufficient evidence supports the jury’s verdict on this count as well. See United States v. Patterson , 886 F.2d 217, 219 (8th Cir. 1989) (per curiam) (finding “it unnecessary to engage in a protracted discussion” of defendant’s attack on his conviction under 18 U.S.C. § 924(c), which essentially comprise s the elements of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841, and unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)).-9- B. Conditional Grant of Motion for a New Trial The government next argues the districtcourt erred in conditionally granting Johnson’s motion for a new trial on the tw o firearm counts, a decision which we review for an abuse of discretion. United States v. Campos , 306 F.3d 577, 579 (8th Cir. 2002) (standard of review ). Federal Rule of Criminal Procedure 33(a) authorizes a district court to “vacate any judgment and gr ant a new trial if the interest of justice so requires.” However, motions for new trials based on the wei ght of the evidence generally are disfavored, and the district c ourt’s authority to grant a new trial should be exercised sparingly and with caution. Campos , 306 F.3d at 579. The jury’s verdict must be allowed to stand unless “the evidence weighs heav ily enough against the verdict [such] that a miscarriage of jus tice may have occurred.” United States v. Lacey , 219 F.3d 779, 783 (8th Cir. 2000) (quotati on omitted). In determining whether a defendant is entitled to a new trial, the district court “may weigh the evidence and in so doing evaluate for itself the credibility of the witnesses.” Walker , 393 F.3d at 847 (quotation omitted). If, after performing this task, the district court concludes “the evidence preponderates sufficiently h eavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determin ation by another jury.” United States v. Anwar , 428 F.3d 1102, 1109 (8th Cir. 2005), cert. denied , 126 S. Ct. 1806 (2006) (quotation omitted).

Applying these principles, we conclude th e district court abused its discretion in granting Johnson’s motion for a new trial on the two firearm counts. Notwithstanding the district court’s proper citation to the aforementioned standards in its Rule 33 analysis, the district court failed to give due we ight to the evidence tending to show Johnson knowingl y possessed the firearm. Even assuming the district court credited Allen’s testimony that he, not Johnson, owned the firearm and placed the firearm in the shoebox on the floor besi de the bed, there was no testimony Allen removed a portion of the shoebox lid or placed the shoebox on the dresser before leaving the bedroom. Similarly, Wright te stified she usually kept the shoebox in her-10- closet—the same closet in which Johnson’ s identification and the cable bill in his name were both found—and denied moving th e shoebox to the dresser top or seeing the shoebox in that location. Moreover, Wright indicated after Johnson went in the bedroom to sleep
, Wright and her infant sister we re the only persons who entered the room before the search.

These facts, in combination with Johnson’s close proximity to the shoebox containing the firearm at the time of the s earch, convince us the jury’s guilty verdicts on the firearm counts must stand. The jury ’s verdicts, based on the record evidence and all the reasonable inferences drawn fro m the evidence, are notagainst the weight of the evidence and do not leav e this court with the sense any miscarriage of justice may have occurred. The grant of a ne w trial under Rule 33 is reserved for “exceptional cases in which the evidence pr eponderates heavily against the verdict.” See 3 Charles Alan Wright et al., Federal Practice and Procedure § 553 (3d ed. 2004). The case at bar does not fall within this cate gory. Accordingly, we reverse the district court’s conditional grant of a new trial.

III. CONCLUSION For the foregoing reasons, we reverse the district court’s judgment of acquittal and its conditional grant of a ne w trial. We remand this cas e to the district court with instructions to reinstate the jury’s verdicts on both firearm counts.

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