FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Nov. 23, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-17099

Non-Argument Calendar

________________________

D. C. Docket No. 08-20527-CR-UU

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEWEY HYLOR,

Defendant-Appellant.

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No. 08-17112

Non-Argument Calendar

________________________

D. C. Docket No. 08-20527-CR-UU

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO WILSON,

Defendant-Appellant.
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Appeals from the United States District Court

for the Southern District of Florida

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(November 23, 2009)

Before DUBINA, Chief Judge, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:

Appellants Dewey Hylor and Antonio Wilson have consolidated their

appeals of their convictions for possession of a firearm or ammunition by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). They argue that the

evidence was insufficient to sustain their convictions because the government did

not show that they were in knowing possession of the guns and ammunition in

question. Additionally, Hylor argues that during closing arguments, the prosecutor

made improper statements regarding witness Officer Freire’s credibility that

constitute reversible error.

I. Sufficiency of the evidence

We review the sufficiency of the evidence to support a conviction de novo,

“viewing the evidence in the light most favorable to the government, with all

reasonable inferences and credibility choices made in the government’s favor.”

United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (internal quotation

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marks and alteration omitted). We “must accept a jury’s inferences and

determinations of witness credibility.” Id. An appellate court will not overturn a

conviction on the ground of insufficient evidence unless no rational trier of fact

could find that the evidence established the defendant’s guilt beyond a reasonable

doubt. Id. “A jury is free to choose among reasonable constructions of the

evidence,” and “it is not necessary that the evidence exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every conclusion except

that of guilt.” United States v. Williams, 390 F.3d 1319, 1323-24 (11th Cir. 2004)

(internal quotation marks omitted).

Under § 922(g)(1), it is unlawful for a felon to knowingly possess a firearm

or ammunition that has affected or was in interstate commerce. 18 U.S.C.

§ 922(g)(1); United States v. Glover, 431 F.3d 744, 748 (11th Cir. 2005). Because

the parties stipulated at trial that Hylor was a convicted felon and that the guns and

ammunition in question traveled in interstate commerce, the only issue for the jury

was whether the evidence was sufficient to prove that Hylor knowingly possessed

the guns or ammunition. Possession can be either actual or constructive. United

States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005). “To prove actual

possession the evidence must show that the defendant either had physical

possession of or personal dominion over the thing allegedly possessed.” United

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States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998). “Constructive possession

exists when a defendant has ownership, dominion, or control over an object itself

or dominion or control over the premises or the vehicle in which the object is

concealed.” Id.

We conclude that the record evidence, viewed in the light most favorable to

the government, with all reasonable inferences and credibility determinations made

in the government’s favor, was sufficient to support the jury’s conclusion that

Hylor and Wilson were in knowing possession of the guns or ammunition. Officer

Freire’s testimony alone, that he observed Hylor and Wilson holding and trying to

hide two firearms, was sufficient to support the convictions.

II. Improper vouching for a witness’s credibility

“Absent a contemporaneous objection, the propriety of the Government’s

closing argument and alleged prosecutorial misconduct in improperly vouching for

a witness’[s] credibility are reviewed under a plain error standard.” United States

v. Newton, 44 F.3d 913, 920 (11th Cir. 1994). Under plain-error review, the

defendant has the burden to show that there was plain error that affected his

substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007),

cert. denied, 128 S. Ct. 867 (2008). An error affects a party’s substantial rights if it

had “a substantial influence on the outcome of the case.” Id. (internal quotation

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marks omitted). In addition, the error must seriously affect the “fairness, integrity,

or public reputation of judicial proceedings.” Id. (internal quotation marks

omitted).

“Attempts to bolster a witness by vouching for his credibility are normally

improper and constitute error.” Newton, 44 F.3d at 921. However, “[t]he

prohibition against vouching does not forbid prosecutors from arguing credibility, .

. . it forbids arguing credibility based on the reputation of the government office or

on evidence not before the jury.” Id. (quoting United States v. Hernandez, 921

F.2d 1569, 1573 (11th Cir. 1991)).

We conclude from the record that the prosecutor’s statements were not

improper because he did not argue Officer Freire’s credibility based upon the

reputation of the government office or based on evidence not before the jury.

Rather, he submitted to the jury that Officer Freire was telling the truth, and that

the evidence supported his testimony. In any event, the court’s repeated

instructions to the jury that the lawyers’ statements during closing arguments were

not to be considered evidence dispelled any prejudice which may have resulted

from the prosecutor’s statements. Thus, there was no plain error.

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Based on our review of the record and the consideration of the parties’

briefs, we affirm Hylor and Wilson’s convictions for possession of a firearm or

ammunition by a convicted felon.

AFFIRMED.

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