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w . v i l l a no v a . e du/thir dc ir c uit_2013/67NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 12

- 1425

_____________ UNITED STATES OF AMERICA

v. TERRELL HAMPTON,

Appellant

_______________ On Appeal from the United States District Court for the Eas tern District of Pennsylvania (D.C. No. 1 1

- c r - 325

- 001 ) District Judge: Hon. Stewart Dalzell

_______________ Submitted Under Third Circuit LAR 34.1(a)

October 18, 2013 Before: RENDELL, JORDAN and LIPEZ * , Circuit Judge s .

(Filed : October 21, 2013 )

_______________ OPINION OF THE COURT

_______________ JORDAN, Circuit Judge

. Terrell Ross Hampton appeals his conviction by the United States District Court for the Ea stern District of Pennsylvania, arguing that the evidence was in sufficient to

________ _______ * Honorable Kermit V. Lipez, United States Court of Appeals Senior Judge for the First Circuit, sitting by designation.2

sustain the jury’s verdict of possession of a firearm by a convicted felon. For the reasons that follow, we will affirm.
I. Bac kground 1 On May 12, 2011, Secret Service agents arrested Hampton at the residence of Roxanne Mason at 5357 Delancey Street (“the Dela ncey House”) in Philadelphia, Pennsylvania. When the agents entered the Delancey House after announcing their presence, t hey found Hampton looking “very disheveled ,” as if he had “ j ust woke [ n ] up,” standing at the top of the stairs on the second floor. ( J.A. at 73

- 74, 10 6, 144.) The agents did not find Hampton with a firearm, but they did find a fully

- loaded Springfield Ar mory, model XD , .40 caliber pistol hidden between the mattress and box

- spring in the bedroom where he acknowledged he had been sleeping with Mason

. The agents also recovered Hampton’s shoes and cellular phone from that same bedroom. Mason admitted that s he and Hampton had been the only individuals in th at bedroom, and she asserted that the pistol did not belong to her. Prior to Hampton’s arrest , the Secret Service had obtained a photograph from his
F acebook page that showed him with a pistol of the same make and model as the one recovered from the Delancey House. Hampton admitted that the photo was of him , stating “I cannot deny that that is me in the picture.” ( J.A. at 314.) A copy of that same photograph was also found on H ampton’s cellular telephon e , indicating that the photograph w as taken on May, 2 , 2011, ten days before the Secret Service agents seized

1 In accordance with our standard of review, see infra note 3 , we set forth the facts in the light most favorable to the government. Additionally , because we write solely for the parti es, we set forth only those facts n ecessary to our analysis.3

the firearm during Hampton’s arrest. The cellular phone’s memory card also contained, as a deleted file, a sec ond photograph of Hampton holding a black, semiautomatic pistol of a type consistent with the recovered pistol. That photograph had been taken on April 3, 2011. At the close of a one

- day jury trial , 2 Hampton moved for a judgment of acquittal, pursuant to Rule 29 of the Federal Rules of C riminal Procedure, which the District Court denied. The following day, he was found guilty of possession of a firearm by a felon , in violation of 18 U.S.C. § 922(g)(1). Hampton then filed this t imely appeal.
II. Discussion 3 Hampton argues that the ev idence, even when viewed in the light most favorable
to the government, was insufficient to sustain his conviction because the government failed to prove beyond a reasonable doubt that he actually or constructively possessed the Springfield Armory, model X D , .40 caliber pistol. We disagree

. Hampt on puts forth four arguments to rebut the government’s claim of constructive possession : (1) that the government offered no physical evidence, including

2 Th at wa s Hampton’s second jury trial on th e present indictment. The fir st ended in a mistrial after a jury was unable to agree on a verdict.

3 The District Court had subject matter jurisdi ction under 18 U.S.C. § 3231. We exercise jurisdiction over Hampton’s appeal pursuant to 28 U.S.C. § 1291. We review the denial of a motion for judgment of acquittal de novo , viewing the evidence in the light most favorable to the government. United Stat es v. Flores , 454 F.3d 149, 154 (3d Cir. 2006). A jury verdict will be upheld if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979).4

no fingerprints, to directly link Hampton to the firearm; ( 2) that “there [were] 2 other adult individuals who were present in the house to whom the gun may have b elonged” (Appellant’s Br. at 16 ); (3) that the gun was found in a bedroom “that was plainly occupied by 2 very young children” ( id.) ; and (4) that, alth oug h the firearm s from the April 3 a nd May 2 photographs look similar to the firearm seized from the Delancey House, there is no ev idence that they are one and the same

. In addition , Hampton contends that failure to satisfy “proof requirements of possessi on for either time period (April 3 to May 11 or May 12) would be fatal to a guilty verdict.” ( Id . at 17.) Those arguments are unpersuasive for two fundamental reasons. First, Hampton mis construe s the felon

- in

- possession statute

. A s the government notes , we h ave recently held that being a felon

- in

- possession is a continuing offense. United States v. Benjamin , 711 F.3d 371, 378 (3d Cir. 2013). The government is therefore not required to prove that Hampton possessed the firearm during both “time pe riods” ( Appellee’s Br . at 16), as Hampton claims, but only that he po ssessed the firearm at some point, and that he had a continuing possessory interest in it: that is the essence of a n offense being continuing

. Benjamin , 711 F.3d at 378; see also United States v. Rivera , 77 F.3d 1348, 1351 (11th Cir. 1996) (“P roof of possession of a firearm as a convicted felon on one day within an alleged continuous possession is sufficient to support a conviction .”)

. Second, w hile Hampton correctly cites the standar d of review that we must apply, he ignore s the inferences that are most favorable to the government and instead draws inferences that are most favorable to him. His argument s that “2 other adult s” were present at the time the firearm was discovered and th at the evidence was ultimately5

insufficient to confirm that the firearms in the photographs were indeed the same as the one seized are, at bottom, inconsequential in light of what a reasonable jury could find. A person is conside red to constructively poss e s s a thing when , “ although not in actual possession, [that person] knowingly has both the power and the intention at a given time to exercise dominion or control over [the] thing, either directly or through another person
or persons .” United States v. Bl ackston , 940 F.2d 877, 883 (3d Cir. 1991) (citing Black’s Law Dictionary 1047 (5th ed. 1979)). Here, Hampton was sleeping on the mattress which had the firearm hidden under it

. While we have held that dominion and control cannot be established by “ me re p roximity ” to the prohibited item , United States v. Brown , 3 F.3d 673 , 680 (3d Cir. 199 3) (citations omitted) , or “mere knowledge” of the prohibited item’s existence, United States v. Garth , 188 F.3d 99 , 112 (3d Cir. 1999) , proximity and knowledge can righ tly be combined with evidence of ownership to prove possession. Cf. United States v. Booker , 436 F.3d 238, 242 (D.C. Cir. 2006) (“ Although mere proximity to a gun is insufficient to establish constructive possession , evidence of some other factor

– includ ing connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicati n g involvement in an enterprise

– coupled with proximity may suffice.” ). T he jury was shown two photographs from different dates in which Hampt on was holding a firearm that is consistent with the firearm that was recovered

. U pon viewing the evidence in the light most favorable to the government, a jury could easily conclude that the firearm s were one and the same

. Fingerprints were not necessar y to find Hampton guilty , given the evidence already arrayed against him

.6

In sum, a jury could and did properly find beyond a reasonable doubt that
H ampton was a felon in possession of a firearm , and the motion to acquit was thus without merit

. III. Con clusion Accordingly , we will affirm the District Court’s judgment.