UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4790

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

AMIN J. HARRIS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. James R. Spencer, District

Judge. (CR-04-24)

Argued: May 27, 2005 Decided: July 20, 2005

Before WILKINS, Chief Judge, and WIDENER and WILKINSON, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Robert J. Wagner, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Richmond, Virginia, for Appellant. Stephen Wiley Miller, Assistant

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Richmond, Virginia, for Appellee. ON BRIEF: Frank W. Dunham, Jr.,

Federal Public Defender, Mary E. Maguire, Assistant Federal Public

Defender, Richmond, Virginia, for Appellant. Paul J. McNulty,

United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Amin J. Harris challenges his conviction for being a felon in

possession of a firearm, see 18 U.S.C.A. § 922(g)(1) (West 2000).

He argues that the evidence was insufficient to support his

conviction, that the district court abused its discretion in

denying his motion for a new trial, and that comments and actions

of the district court evinced bias that made a fair trial

impossible. We find no reversible error and therefore affirm the

conviction.

I.

In the early morning hours of January 1, 2004, 800 to 900

people were celebrating the new year inside the Canal Club on Cary

Street in the Shockoe Bottom section of Richmond. When the club

closed at 2:00 a.m., hundreds of people filled the streets, and

chaos erupted. From inside their cars, many began firing shots

into the air; some 250 shots were fired by the conclusion of the

incident.

Three police officers were on the scene and witnessed Harris

firing a pistol from the passenger seat of a tan Buick. He was

arrested for discharging a firearm in public and ultimately charged

with being a felon in possession of a firearm. There were two

others in the vehicle with Harris: James Edwards, the driver, and

Esan Jordan, a back-seat passenger. Two firearms were recovered

from the front floorboard of the vehicle.
*

Harris does not challenge his sentence under United States v.

Booker, 125 S. Ct. 738 (2005).

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Harris was given Miranda warnings and taken to the sheriff’s

office for processing. While there, he continually talked with

those around him, insisting that he was not the person who fired

the weapon. Tired of hearing him talk, an officer said, “Shut up,

man, I have heard enough. You know what you did.” J.A. 227

(internal quotation marks omitted). To that, Harris responded,

“All right, man, I shot the gun,” adding, “I shot the gun three

times.” Id. (internal quotation marks omitted).

Tried before a jury, Harris was convicted of violating

§ 922(g)(1). Shortly after the verdict, he filed a motion for a

new trial pursuant to Rule 33 of the Federal Rules of Criminal

Procedure. The basis for his motion was an affidavit signed by

Jordan claiming that he, not Harris, had fired the weapon. After

a hearing at which several witnesses including Jordan testified,

the district court denied the Rule 33 motion, concluding that

Jordan’s testimony was not newly discovered evidence that would

likely have resulted in acquittal. The district court sentenced

Harris to 63 months’ imprisonment.*

II.

Harris first argues that the evidence introduced against him

at trial was insufficient to support his conviction for being a

felon in possession of a firearm. We disagree.
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In resolving an evidence-sufficiency challenge, we are limited

to considering whether “there is substantial evidence, taking the

view most favorable to the Government, to support” the verdict.

Glasser v. United States, 315 U.S. 60, 80 (1942). When “the

evidence supports different, reasonable interpretations, the jury

decides which interpretation to believe.” United States v.

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation

marks omitted). Therefore, we will overturn a verdict on grounds

of evidence sufficiency only “where the prosecution’s failure is

clear.” Burks v. United States, 437 U.S. 1, 17 (1978).

To sustain a felon-in-possession conviction under § 922(g)(1),

the Government must establish that (1) the defendant previously had

been convicted of a felony, (2) the defendant knowingly possessed

a firearm, and (3) the possession was in or affecting interstate

commerce. See United States v. Langley, 62 F.3d 602, 606 (4th Cir.

1995) (en banc). Harris concedes that he is a felon and that his

possession, if established, affected interstate commerce. He

argues only that the Government failed to prove that he knowingly

possessed a firearm.

Specifically, Harris notes that the incident outside the Canal

Club lasted only a matter of seconds and occurred late at night,

amidst the chaos of hundreds of scrambling people. He adds that

only one of the three officers who testified actually saw his face;

the firearms were seized from the driver side of the Buick, not the
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passenger side where he had been seated; no fingerprints were on

the firearms; no conclusive expert testimony tied him to the

firearms; and his confession (“All right, man, I shot the gun.”)

was not documented in a contemporaneous police report. This

confluence of circumstances, he argues, resulted in “insufficient

evidence for a jury to find that [he] possessed a firearm.” Br. of

Appellant at 32.

Harris overlooks, however, that the Government introduced

evidence that he was in the seat occupied by the shooter; the

firearms recovered from the Buick were within his reach; at least

one officer saw his face during the incident; none of the officers

observed someone attempting to lean from the back seat, where

Jordan was seated, out the front passenger-side window;

streetlights illuminated the area at the time; and Harris later

confessed to possessing the firearm. While reasonable people may

disagree about whether Harris did indeed possess the firearm, the

Government did not completely fail to prove this element, and a

rational trier of fact could have found that Harris knowingly

possessed the firearm. Therefore, the evidence was sufficient to

sustain his conviction.

III.

Harris next argues that the district court erred in denying

his motion for a new trial on the basis of a post-trial affidavit

submitted by Jordan, the back-seat passenger of the Buick. Harris
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contends that the Jordan affidavit represented newly discovered

evidence that warranted a new trial. We again disagree.

Rule 33(a) of the Federal Rules of Criminal Procedure provides

that “[u]pon the defendant’s motion, the court may vacate any

judgment and grant a new trial if the interest of justice so

requires.” To justify a new trial based on newly discovered

evidence, a defendant must establish five elements: (1) the

evidence must be, in fact, newly discovered; (2) the defendant must

have been diligent in finding the new evidence; (3) the new

evidence must not be merely cumulative or impeaching; (4) it must

be material to the issues involved; and (5) it must be of such

nature that, on a new trial, it would probably produce an

acquittal. See United States v. Singh, 54 F.3d 1182, 1190 (4th

Cir. 1995). “Without ruling out the possibility that a rare

example might exist, we have never allowed a new trial unless the

defendant can establish all five elements.” Id. A decision of the

district court not to grant a new trial under Rule 33 is reviewed

for abuse of discretion. See id.

The district court denied Harris’ Rule 33 motion for two

reasons: (1) Jordan’s testimony may have been newly available, but

it was not newly discovered, and (2) Jordan’s testimony would not

have resulted in Harris’ acquittal, given the other significant

evidence of Harris’ guilt. We need not address the first ground

because we believe that the district court did not abuse its
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discretion in concluding that Jordan’s testimony would not have

resulted in Harris’ acquittal.

Jordan’s testimony at the hearing was riddled with

inconsistencies and changing stories. He also suffered from bias

and credibility issues. In contrast, the three police officers

testified with great consistency. And, as noted above, one officer

testified that Harris admitted to the crime. In light of this

evidence, the district court did not abuse its discretion in

concluding that Jordan’s testimony, if added to the mix of evidence

introduced at trial, would not have resulted in acquittal. See

United States v. Henry, 136 F.3d 12, 23 (1st Cir. 1998) (“[T]he

judge who tried the case is best equipped to examine the issue of

whether the new evidence would likely result in an acquittal.”).

Because the district court did not abuse its discretion in

concluding that Harris failed to establish all five elements set

forth in Singh, we reject Harris’ argument on this issue.

IV.

Finally, Harris argues that several comments and decisions

made by the district court evinced a bias against him that warrants

reversal of his conviction. Because Harris did not raise this

issue in the district court, our review is for plain error. See

Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-

32 (1993). To establish our authority to notice plain error,

Harris must show that an error occurred, that the error was plain,
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and that the error affected his substantial rights. See Olano, 507

U.S. at 732.

Although Harris goes to great lengths to identify comments and

decisions made by the district court that, in his view, evinced

improper bias against him, Harris does not explain how, if at all,

those comments and decisions affected his substantial rights.

Under the third prong of the Olano plain-error test, therefore,

Harris has failed to demonstrate that this alleged error warrants

reversal.

V.

For the reasons stated above, we find no reversible error and

affirm Harris’ conviction.

AFFIRMED