UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ROBERT F. ROBERTS, Defendant - Appellant. No. 09-3245 (D.C. No. 6:08-CR -10188-MLB-1) (D. Kan.)

ORDER AND JUDGMENT 1

Before O'BRIEN , Circuit Judge, BRORBY , Senior Circuit Judge, and GORSUCH , Circuit Judge.
Robert F. Roberts appeals from his convic tion of being a fel on in possession of a firearm. Specifically, he qua rrels with key evidentiary ruli ngs and claims the district court erred in denying his post- trial motion for a new trial (bas ed on ineffec tive assistance of trial counsel) and denying his moti on for DNA testing of the firearm. 2 He also claims

1 This order and judgment is an unpublis hed decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. 2 Roberts was also convicted of possession of seven grams of marijuana but this conviction is not at issue here. FILED United States Court of Appeals Tenth Circuit 

### March 29, 2011
Elisabeth A. Shumaker Clerk of Court- 2 - the evidence was insuffici ent to support his conviction. We affirm. 3
I. BACKGROUND A. Factual Background We review the facts in the light most fa vorable to the government, given that it prevailed at trial. United States v. Martin , 613 F.3d 1295, 1298 ( 10th Cir. 2010). Around 2 a.m. on April 6, 2008, Officers Thatcher and Pena of the Wichita Police Department were outside a local “after-hours” nigh tclub preparing to do a “club check.” 4 (R. Vol. 3 at 194-95.) While waiting for backup, the office rs learned by radio traffic that a 911 call from the club had reported a black male had a ttempted to enter the cl ub with a firearm. The man was described as wearing a white t-sh irt, dark pants and a large belt buckle. Thatcher and Pena drove their patrol car through the back parking lot looking for a suspect matching this descrip tion. They saw Roberts, wear ing similar clothing, walking along an outside wall behind the club. Seeing the possible suspect, Thatcher made a U-turn and drove toward Roberts, stopping approximately ten feet away. Pena , the first out of the patrol car, yelled to Roberts, “hey, stop.” (R. Vol. 3 at 210.) Wh en Roberts failed to heed Pena’s shout, Pena walked toward him. Roberts began to run aw ay, reaching in the area of his waistband or front pockets as he ran. Seeing this movement, Pena shouted, “gun.” ( Id . at 212.) As Pena ran behind Roberts, Thatcher positio ned himself on the other side of several

3 Our jurisdiction derives from 28 U.S.C. § 1291.

4 A “club check” is a visit to a bar licensed to remain open after 2 a.m. to ensure no liquor is sold after that time.- 3 - dumpsters in order to close off a means of escape. Both officers testified they saw Roberts pull a gun from his right pocket, pass it to his left hand and toss it into a dumpster as he ran. When Roberts’ escape route quickly led to a dead end he stopped and complied with Thatcher’s command to ge t on the ground. Thatcher, al ong with other officers who had arrived at the scene, secured and searched Roberts. They found two small bags of marijuana, one in each of the front coin pockets of Roberts’ blue jeans. While Thatcher secured Roberts, Pena searched the dumpster. In it, he found a 9 mm handgun on top of the trash. The gun was photographed, taken into evidence and processed.
B. Procedural Background Roberts was charged with possessing seven grams of marijuana and being a felon in possession of a firearm. Pr ior to trial, the government filed a notice and memorandum seeking to admit evidence of a 1999 felony firearms convicti on of Roberts; it was offered to show intent – his knowing possession of a firearm. 5 Roberts objected, arguing “the possession of a firearm for the purpose of co mmitting a robbery nine years [earlier had] no probative value in determini ng whether [he] possessed a fire arm at a social club.” (R. Supp. Vol. 1 at 20.) He further claimed a ny probative value of the evidence was far outweighed by its prejudicial effect. The court withheld its ruling until trial. At trial, the government presented the evid ence recited above and, in addition, the

5 “The government need not prove any partic ular ‘intent,’ but must show only that a felon possessed a firearm ‘knowingly.’ Thus , ‘knowledge’ and ‘intent’ are equivalent here.” United States v. Moran , 503 F.3d 1135, 1144 n.6 (10t h Cir. 2007) (quotations and citation omitted).- 4 - testimony of Officer Robert Shea. Over Robert s’ objection, Shea testified to an incident in May, 1999 – nine years before the curre nt charges – he was involved in a police investigation at a residence where Roberts wa s present. Roberts was asked if he had a weapon. Roberts said no, but the subsequent search rev ealed a revolver in the right pocket of Roberts’ cargo pants. The trial c ourt immediately instru cted the jury Shea’s testimony could be considered solely for th e purpose of determining whether Roberts intended to possess a firearm at the club. Defense witness Gerald Allen, the co-manag er of the club, testified all customers who entered the club through the front door – the only permitted en try – were “wanded” with a metal detector prior to entry and males were “patted down” to make sure they were unarmed. (R. Vol. 3 at 400, 419.) Allen said he called 911 the night of Roberts’ arrest after he prevented a male from entering the back door of the club. As Allen pushed the man out the door, he felt the firearm. A llen testified Roberts was not that man. The defense also re-called Officer Pena to testify about a photograph officers found in Roberts’ pocket when he was searched that nigh t. The photograph showed Roberts and some other people inside the club. Pena testified he believed the picture was taken earlier that evening because Roberts was wearing the same clothing in the picture as he was wearing at the time of his arrest . On cross-examina tion, the government moved to admit the picture. Defense coun sel objected, arguing the photograph should not be admitted because it showed hand gestur es which could unfairly prejudice the jury against Roberts as being connected with gang activity. Th e court admitted the photograph and again gave a limiting instructi on that its sole purpose was to demonstrate,- 5 - if the jury believed it, that Robert s was inside the club that evening. Detective Timothy Mitchell, a fingerpri nt examiner for the Wichita police department, testified he had examined the gu n found in the dumpster for fingerprints but “did not locate any comparable prints.” (R. Vol. 3 at 425.) He said this was not unusual, as only about one in ten firearms have suffici ent fingerprint detail to make an effective comparison for identification. When as ked about DNA swabs taken from the gun, Mitchell stated he believed the gun was subm itted for DNA analysis (an area outside his expertise) but he did not know the results. 6 Roberts testified to having arrived at th e club around midnight with friends. He entered through the front entran ce, was patted down by security and then went to the bar. He was not carrying a weapon and did not have a weapon that night. After several hours, he went out the back exit to get a cigar from hi s car. As he headed back to the club, he stopped to visit with “a couple of guys” he was “acquainted with ” who had gathered by the back exit. (R. Vol. 3 at 438.) As That cher and Pena pulled th rough the parking lot, some people started to leave. But when the squad car made a U-turn in the lot, “everybody started runnin’.” ( Id . at 441.) When Pena got out of the car and called to Roberts, Roberts’ acquaintances took o ff running and he followed suit. Roberts explained he ran because he “h ad two bags of weed in [his ] pocket, marijuana, and [he] was also on house arrest and wasn ’t supposed to be there.” ( Id. at 445.) After Roberts was caught, Thatcher asked him “who was y our little buddies that took off runnin’ and

6 In fact, neither the prosecution nor the defense had submitted the DNA samples for analysis.- 6 - ran down the stairs?” ( Id . at 447.) When Roberts re sponded he did not know them, Thatcher told Pena, “I think one of ‘em ditched something in the trash can, go over there.” ( Id . at 447.) Pena found the gun and Th atcher began questi oning Roberts about the identity of the person who threw it. Robe rts told Thatcher he didn’t know who threw the gun to which Thatcher responded, “well, we gonna take you and charge you with it.” ( Id . at 448.) On cross-examination, the prosecut or initiated the following colloquy: Q. Now, the pockets in your jeans, those are deep pockets, aren’t they? Those two front pockets? A. What do you consider deep? Q. Well, they’re big pockets; right? A. Yeah. Pretty big. Q. The coin pockets wh ere you had your marijuana, those are some good sized pockets as well; right? A. Yeah. Q. Now, when you carry a firearm, yo u like to carry it in your pocket; right? A. I don’t carry firearms. Q. Well, you did in 1999; correct? A. Yes. Q. And you had it in your pocket then, didn’t you? A. Cargo pants. Q. But it was in a pocket, wasn’t it? A. Yeah. Q. And it was on your right side, wasn’t it?- 7 - A. I don’t recall. I don’t remember. ( Id . at 458-59.) No objection was lodged. During closing argument, defense counsel expounded on the fact there was no physical evidence connecti ng Roberts to the gun: [The police] [s]ubmitted the gun for DN A analysis. Apparently no DNA or otherwise you would have heard about it. No fingerprints. Said he couldn’t find any fingerprints. If th ey’d found DNA, I guarantee you, you would have heard about it. ( Id . at 492.) Despite the lack of Roberts’ fingerprints or DNA on the gun, the jury convicted him of being a felon in possession of a firearm (Count 1) and possession of 7 grams of marijuana (Count 2). Sentencing was set for May 18, 2009. On May 11, 2009, Roberts wrote a letter to the court asking for a new trial based on ineffective assistance of counsel. Roberts alleged his attorney had failed to call three important “subpoenaed” witnesses. 7 (R. Vol. 1 at 62.) He alleged one witness was the thir d arresting officer, Officer Watson. Roberts claimed: Officers [sic] Watson’s testimony would have also supported my innocents, [sic] he was also an officer on the sc ene who placed me in front of a nonidentifiable line-up, he along with the other two arresting officers were trying to convince me to reveal the name of the individual who actually threw the gun into the dumpster in wh ich I had no knowledge of. Officer Watson would have also te stified to all the conversations between myself and other assisting officers, which were who the name of the other individual was that actually to ssed the gun into the dumpster. The fact that the officers asked me who it was that threw the gun contradicts their testimonies of being one-hundred per cent sure that i[t] was

7 Roberts also alleged his attorney had not effectively represented him on Count 2 but that issue is not raised on appeal.- 8 - myself who tossed the gun into the dumpster. ( Id .) On May 12, 2009, Roberts’ counsel file d a motion for a new trial stating Officer Watson had told a member of Roberts’ family that he would have corroborated Roberts’ version of the events. The same officer, howev er, had told defense counsel prior to trial “he did not hear the other officers ask Mr. Roberts who threw the firearm and did not himself ask Mr. Roberts to tell the officers w ho threw the handgun in to the dumpster.” ( Id . at 57.) On May 13, 2009, the court forw arded Roberts’ letter to trial counsel. Eventually, new counsel, Mr. Falk, took over Roberts’ defense. The sentencing date was delayed. On July 13, 2009, the district court judge wrote a letter to counsel to confirm the substance of several telephone calls between the court and counsel. Defense coun sel informed the court he had discovered DNA swabs were taken from the gun but trial counsel had not requested a DNA analysis. He wished to base the ineffective assistance claim on trial counsel’s failure to request DNA testing and asked for additional time to arrange for a DNA test. The court asked for further briefing on the appropriateness of deciding a motion for a new trial based on ineffective assistance of counsel at this point in the proceed ings and on the DNA-testing claim. After the government and Roberts submitte d further briefing as requested by the court, the district court held an evidentiary hearing on th e motions. At the hearing, Roberts withdrew his claim based on the pu rported testimony from the other officers, 8

8 Falk told the court: “If [the officer] were to testify, I believe he would testify the Defendant told him he didn’t do this and he said, well, if yo u didn’t do it, you need to tell them who did.” (R. Vol. III at 580.) Appare ntly the second office r’s testimony was also unhelpful because only one officer was present at the hearing.- 9 - leaving only the ineffective assi stance of counsel claim based on the failure to submit the DNA samples for testing. He argued a DNA test may have shown Roberts had not possessed the gun and, further, may have identified the real culprit. Roberts’ trial counsel tes tified he did not seek DNA testing because the DNA was not the “focal point” of the defense strategy. (R. Vol. III at 524.) Rather, the defense was that Roberts was trying to get marijuana out of his pock ets, not a gun. The strategy was to convince the jury that the police officers, looking for a man with a gun, were in a heightened state of alarm. Contrary to the officers’ test imony, the parking lot was too dark to actually see Roberts throw a gun. Tria l counsel testified he did not feel the need to have the DNA tested because he was alrea dy able “to argue to the jury that there was no evidence of [Roberts’] fingerprints on the gun and there was no evidence . . . of his DNA.” (R. Vol. 3 at 528.) Although tr ial counsel did not recollect any specific conversation with Roberts about whether to have the DNA sa mples tested, he stated, “I thought we were in as good a position as we would have been if the material had been tested and it came back negative. We were able to make the same argument.” ( Id . at 540.) Falk asked the court to have the DNA test ed before reaching a conclusion as to whether trial counsel was ineffective for faili ng to do so earlier. He argued that if the DNA testing showed Roberts’ DNA was not on the gun, Roberts’ version of events would have at least th e same credibility as Thatcher’s a nd Pena’s. More importantly, if the DNA samples showed the presence of the DNA of a third-party rather than Roberts’, it would undermine confidence in the jury’s verdict. The c ourt rejected this suggestion.- 10 - Because DNA testing would no t have been dispositive of whether Roberts handled the gun, Roberts failed to show his counsel was ineffective under Strickland v. Washington , 466 U.S. 668, 687 (1984). Th us, further testing was unwarra nted. It denied the motion for a new trial and sentenced Roberts to 51months imprisonment. On appeal, Roberts raises five issues: (1) the district court erred in admitting evidence of his 1999 prior felony; (2) the court erre d in admitting th e photograph of Roberts at the club; (3) the evidence at tria l was insufficient to es tablish guilt beyond a reasonable doubt; (4) the court erred in deny ing his motions for a new trial based on ineffective assistance of trial counsel; and (5) the court erred in denyi ng his request to test the DNA samples.
II. DISCUSSION A. Trial 1. Admission of Prior Felony Roberts argues the district court erred in admitting evidence of his 1999 conviction under Rule 404(b). That rule provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan , knowledge, identity, or absence of mistake or accident. Fed. R. Evid. 404(b). “We review the distri ct court's decision to admit evidence under 404(b) for abuse of discretion.” United States v. Commanche , 577 F.3d 1261, 1266 (10th Cir. 2009). We “will not disturb an evidentiary ruling absent a distinct showing that it was based on a clearly erroneous finding of f act, or an erroneous conclusion of law or- 11 - manifests a clear error in judgment.” United States v. Contreras , 536 F.3d 1167, 1170 (10th Cir. 2008) (quotations omitted). The admission of “other act s” evidence under Rule 4 04(b) requires a four-factor inquiry: “(1) whether the evid ence is offered for a proper purpose, (2) its relevancy, (3) that the probative value of th e evidence is not substantially outweighed by its prejudicial effect, and (4) a limiting instruction is given if the defendant so requests.” United States v. Cardenas Garcia , 596 F.3d 788, 7 97 (10th Cir.) (quot ations omitted), cert. denied , 130 S. Ct. 3299 (2010). “Rule 404(b) is a rule of inclusion, and . . . accordingl y 404(b) evidence, like other relevant evid ence, should not lightly be ex cluded when it is central to the prosecution’s case.” United States v. Jernigan , 341 F.3d 1273, 1280 (10th Cir. 2003) (quotations omitted). “The thre shold inquiry . . . is whether that evidence is probative of a material issue othe r than character.” Huddleston v. United States , 485 U.S. 681, 686 (1988)). a) Purpose “To obtain a conviction under 18 U.S.C. § 922(g)(1) for possession by a felon of a firearm or ammunition, the government had to prove (1) [Roberts] was convicted of a felony; (2) he thereafter knowingly possessed a firearm and/or ammunition; and (3) the possession was in or affecti ng interstate commerce. United States v. Wilson , 107 F.3d 774, 779 (10th Cir. 1997). The government maintains the evidence of Roberts’ 1999 possession of a firearm was admissible to show he knowingly possessed the gun tossed into the dumpster. Roberts counters the prosecutor’s use of the evidence in crossexamination to show his propensity to carry a firearm belies this contention.- 12 - The only contested element was Roberts’ knowing possession of the gun. Roberts “placed his knowledge of the firearm’s presen ce at the scene on his person at issue by pleading not guilty to the crime and requiri ng the government to prove his guilt beyond a reasonable doubt.” United States v. Oaks , 606 F.3d 530, 539 (8th Cir. 2010.) “Rule 404(b) explicitly contem plates the admission of evidence of prior convictions to establish intent.” United States v. Cherry , 433 F.3d 698, 701 (10th Cir. 2005). Roberts’ prior conviction for possession of a fi rearm “addresses the material issue of his knowledge of the presence of the firearm a nd his intent to possess it.” Oaks , 606 F.3d at 539. Thus, Roberts’ 1999 conviction, if it meets the othe r 404(b) requirements, is admissible. b) Relevancy Roberts argues his prior conviction is too re mote in time to be relevant. “[T]here is no absolute rule regarding the number of y ears that can separate offenses. Rather, the court applies a reasonableness standard and ex amines the facts and circumstances of each
case.” United States v. Franklin , 704 F.2d 1183, 1189 (10th Cir. 1983); see United States v. Cuch , 842 F.2d 1173, 1178 (10th Cir. 1988) (previous assau lt eight years ago not too remote); United States v. Walker , 470 F.3d 1271, 1275 (8th Cir. 2006) (“[T]here is no specific number of years beyond which prior ba d acts are no longer relevant to the issue of intent.”) (quotations omitted). In calculating the time span between Ro berts’ offense and the instant crimes, we do not count any periods of incarceration. See Cherry , 433 F.3d at 702 n. 4. Roberts’ prior gun possession occurred on May 10, 1999, and his current offense occurred on April 6, 2008. As far as we can tell from th e appellate record, Roberts was incarcerated- 13 - for at least six years during that period. Consequently, the ap plicable time between Roberts’ 1999 conviction and the instant crime is approximately three years. The district court did not abuse its discretion in adm itting Roberts’ 1999 conviction because it was too remote in time. Roberts also argues his 1999 convicti on was irrelevant because the factual circumstances surrounding that conviction are distinct from the ci rcumstances in this case. Apparently, Roberts’ possession of th e gun in 1999 was linke d to his involvement in a burglary. He argues the situation here, his possession of a gun at a social event, is so unlike the 1999 incident that the two have no be aring on each other. Relevant evidence is “evidence having an y tendency to make the existence of any fact that is of consequence to the determ ination of the action more probable or less probable than it would be without the evidence .” Fed. R. Evid. 401. The fact Roberts previously possessed a gun in hi s right front pants pocket is certainly relevant to whether he knowingly possessed a weapon in his right front pants pocket on the night of his arrest. The circumstances were suffici ently similar to establish relevance. c) Prejudicial effect Roberts argues the probative value of the 1999 conviction was substantially outweighed by unfair prejudice. 9 “[T]his determination . . . calls for a common sense

9 Federal Rule of Evidence 403 provides: Although relevant, evidence may be ex cluded if its probative value is substantially outweighed by the danger of unfair prejudice , confusion of the issues, or misleading the ju ry, or by considerations of undue delay, waste of time, or needless presentati on of cumulative evidence.- 14 - assessment of all the circumstances su rrounding the extrinsic offense, including prosecutorial need, overall similarity between th e extrinsic act and the charged offense, as well as temporal remoteness.” Jernigan , 341 F.3d at 1283 (q uotations omitted). As discussed above, the 1999 conv iction carried sufficient simila rity and was not too remote in time. In addition, its prob ative value to the government was substantial. There was no physical evidence connecting Roberts to the gu n and Roberts’ defense was that Pena and Thatcher were lying about seeing him throw the gun into the dumpster. Only the unembellished relevant facts of Roberts’ prior conviction were revealed. Shea testified Roberts denied he had a weapon but, when searched , Shea discovered a gun in the right front pocket of Roberts’ pants. The court did not allow any further details of the prior convic tion and immediately provided a limiting instruction. See United States v. Trogdon , 575 F.3d 762, 766 (8 th Cir. 2009) (danger of unfair prejudice negated when facts of prior conviction limite d and court gave a limiting instruction), cert. denied , 130 S. Ct. 1116 (2010). Upon review of the requisite balancing under rule 403, “we give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.

” United States v. Cerno , 529 F.3d 926, 935 (10th Cir. 2008) (quotations omitted). “Because district court judges have front-ro w seats during trial and extensive experience ruling on evidentiary i ssues, our review affords the distri ct court considerable discretion in performing the Rule 403 balancing test.” Id . at 935-36 (quotations omitted). We cannot say the district court’s decision to adm it this evidence manife sts a clear error in judgment.- 15 - d) Limiting Instruction The district court gave th e jury an appropriate limit ing instruction immediately following Officer Shea’s testimony. It informed the jury that the parties had agreed to stipulate to the fact that the Roberts had a prior felony conviction and admonished the jury: The evidence that you just heard . . . rela tes to the nature of [Roberts’] prior felony conviction. The nature of th e conviction being that he previously had a weapon, a firearm, in 1999 . . . relative to the prior conviction. You may consider that evidence . . . only fo r the purpose of judging whether he knowingly possessed a weap on in this case . . . . That’s a limiting instruction. You can’t consider the f act that his previous conviction was for a felon in possession of a firearm fo r any other purpose than judging whether he knowingly possesse d a firearm in this case. (R. Vol. 3 at 273.) This instruction appropriately constrained the jury’s considera tion of the evidence and “[w]e presume jurors will remain true to their oath and conscientiously follow the trial court's instructions.” United States v. Carter , 973 F.2d 1509, 1513 (10th Cir. 1992). Moreover, in addition to the instruction fo llowing Shea’s testimony, the jury received instruction explaining how it mu st limit its consideration of evidence at several points before it began its deliberations. The dist rict court did not abuse its discretion in admitting evidence of Robe rts’ prior conviction.
2. Admission of Photograph Roberts claims the district court erred in admitting the photograph taken in the club the evening of his arrest, again arguin g the photograph was ir relevant and unfairly prejudicial. This argument is without me rit. Defense counsel invited the testimony- 16 - regarding the photograph and explained to the court: “The relevance is to show [Roberts] was inside the club after having been frisk ed and there was no firearm found when he went inside the club.” (R. Vol. 3 at 394.) Roberts further argues the evidence was mo re prejudicial than probative and the court recognized that fact when it allowe d the evidence. He relies on the following exchange: The Court: This is ridiculous. What makes you think the jurors are going to recognize this as gang signs? Defense: Your Honor, I haven’t wa tched as much television as [the jury has]; but from what little I’ve se en, I’m concerned about that. The Court: I’ll bet you are. ( Id . at 394-95.) We do not find the court’s sarcasm constitutes reco gnition that counsel’s concerns of undue prejudice were warranted. In addition, the photograph’s admission was immediately followed by a limiting instruction: [The photograph] is received, Ladi es and Gentlemen, for the limited purpose of demonstrating, if you believe it, and it’s up to you to decide this based on the testimony, that the Defenda nt was in the club on the night in question. You’re not to assume or take anything else from the photograph. ( Id . at 395.) Moreover, defense counsel was not s hy about later using the photograph to advance his argument. It was used during Roberts’ direct examination and again in closing argument: [W]e know from the photograph Mr. Roberts was in the club before that evening. You’ll see the photograph. It ’s a framed photograph just like you get when you go to certain events. It’s not the kind of photograph you’re going to carry around in your wallet or carry around with you. It’s a photograph from what happened that night. He was wearing the same- 17 - clothes. So he was in the club. A nd he couldn’t have gotten in that club without somebody frisking him, without running the wand. He was in the club. If he had a firearm, he wouldn’t have gotten in. ( Id . at 493.) “Generally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.” United States v. Cruz-Rodriguez , 570 F.3d 1179, 1184 (10th Cir. 2009) (quoting Ohler v. United States , 529 U.S. 753, 755 (2000)). If Roberts wished to identify a photograph and us e it for his defense, the prosecution could certainly have the photograph admitted and shown to the jury. The photograph’s relevance is obvious and speculation as to what the jurors may garner from Roberts’ gestures does not estab lish unfair prejudice.
B. Sufficiency of the Evidence When reviewing the sufficiency of the ev idence to support a jury verdict, we review the record de novo and ask only “whether, taki ng the evidence --both direct and circumstantial, together with the reasonable inferences to be draw n therefrom-- in the light most favorable to the government, a re asonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Serrata , 425 F.3d 886, 8 95 (10th Cir. 2005) (quotations omitted). “We will not re-weigh the evidence or assess the credibility of witnesses.” Id . “The evidence necessa ry to support a verdict need not conclusively exclude every other reasonable hypothesis and need not ne gate all possibilities except guilt. Instead, [it] only has to reasonably support the jury's finding of guilt beyond a reasonable doubt.” Id . (quotations omitted). Roberts claims the government failed to present evidence that could convince a- 18 - reasonable factfinder that he knowingly possessed the gun f ound in the dumpster. He argues: “The government’s case rest[ed] almo st entirely on the tes timony of two Wichita Police Officers.” (Appellant’s Br. at 19 .) Roberts’ maintained he rebutted the government’s evidence by raising questions as to the lighting in the area and the location of the dumpster in which the gun was discarded, the lack of fingerprints on a gun which was allegedly just handled by the defendant and testimony that Roberts was not the subject of the 911 report. While this may show the quality of Robe rts’ defense, the pr osecution presented the testimony of eyewitnesses who testifie d they saw Roberts toss the gun into the dumpster. Despite Roberts’ best efforts, “the jury obviously chose to credit the evidence of the government’s eyewitnesse s and to discredit the eviden ce in [Roberts’] favor -- a choice the jury was free to make.” Serrata , 425 F.3d at 896. Considering “the evidence introduced at trial together with the reasona ble inferences therefro m,” the jury reasonably could find Roberts guilty be yond a reasonable doubt. Id

. C. Ineffective Assist ance of Counsel Generally, ineffective assistance claims must be brought on collateral review “so that a factual record enabling effective appella te review may be developed in the district
court.” United States v. Hamilton , 510 F.3d 1209, 1213 (10t h Cir. 2007). In rare instances, such claims are su fficiently developed at the di strict court level to be appropriate for review on direct appeal. Id . This is one such instance. The district court held a full evidentiary hearing on the matter and issued an or der stating its findings and conclusions. See United States v. Galloway , 56 F.3d 1239, 1240 (1 0th Cir. 1995) (“An- 19 - opinion by the district court is a valuable aid to appellate review for many reasons, not the least of which is that in most cases the district court is familiar with the proceedings and has observed counsel's performan ce, in context, firsthand.”). Roberts claims his attorney’s failure to test the gun for DNA, in light of his persistent claims of innocence, constitute s ineffective assistan ce of counsel under Strickland v. Washington , 466 U.S. 668, 687 (1984). “ Strickland requires a defendant to establish deficient performance and prejudice.” Knowles v. Mirzayance , 129 S. Ct. 1411, 1420 (2009) (citing Strickland , 466 U.S. at 687). “The proper measure of attorney performance remains simply reasonableness under prevai ling professional norms.” Id

. Our review “of counsel's performance must be highly deferential.” Id . We “indulge a strong presumption that counsel ’s conduct falls within the wide range of reasonable professional assistance.” Strickland , 466 U.S. at 689. As a resu lt, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id . at 690.
In LaFevers v. Gibson , we rejected an argument th at counsel was ineffective for failing to test DNA because “even favorable DNA test results would not make a difference in this case.” 182 F.3d 705, 722 (10th Cir. 1999). DNA testing cannot, despite Roberts’ assertions to the contrary, prove that he did not throw the gun into the dumpster. Even if testing revealed the DNA of a third party, that finding would only show that someone other than Roberts had also handled the gun. To be sure, evidence of some other person’s DNA would have bolstered Roberts’ theo ry of the case but it would not have ruled out his guilt.- 20 - On the other hand, defense counsel was aw are of eyewitnesses who were ready to testify they saw Roberts throw the gun into the dumpster. It was not unreasonable for counsel to avoid the possibly damaging ev idence which could result from further investigation should Roberts’ DNA be found on the gun. As it turned out, counsel was able to elicit favorable testimony that the DNA swabs were submitted for testing, but no DNA evidence was offered at trial. Counsel’s strategy was sound. “A conscious and informed decision on tr ial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial w ith obvious unfairness.” Skinner v. Quarterman , 528 F.3d 336, 341 (5th Cir. 2008). Roberts’ counsel made an informed, strategic decision that further DNA testing posed more of a risk than being able to argue the absence of such evidence and we will not seco nd-guess that choice. Couns el’s performance was not deficient.
D. DNA Test Because further DNA testing could not exonera te Roberts, the district court denied his motion to conduct tests on the DNA swab s retrieved by the government. Roberts claims this was error, arguing “the outcome of this trial is unreliabl e” and further testing would have provided some “finality.” (Appellant’s Br. at 20.) We disagree. Individuals under a federal sentence of imprisonment may move for postconviction DNA testing und er certain conditions. See 18 U.S.C. § 3600. While we recognize Roberts had not been sentenced pr ior to his motion to test the DNA, he was sentenced before the court denied it. Thus, we find the § 3600 analysis helpful given the- 21 - posture of this case. Under § 3600, upon written motion of th e defendant, the court that enters a defendant’s judgment of conviction is to or der DNA testing of specified evidence if ten prerequisites are met. See § 3600(a)(1)-(10). Most relevant to this appeal, the applicant is required to identify a theory of defense that would estab lish his “actual innocence,” and the applicant must show that “[t]he propos ed DNA testing of the specific evidence may produce new material evidence that would . . . raise a re asonable probability that the applicant did not commit the offense.” § 36 00(a)(6)&(8). We review de novo whether DNA testing would produce a “reasonable pr obability” that Roberts did not possess the
gun. See United States v. Fasano , 577 F.3d 572, 575 (5th Ci r. 2009). The district court's “underlying fact findings are re viewed only for clear error.” Id

. The district court determined “even a ne gative test result wo uld not demonstrate that [trial counsel] was ineffective and that defendant should receive a new trial.” (R. Vol. 3 at 603.) A negative re sult “would have proved no mo re that the negative finding on fingerprints.” ( Id .) And, in fact, defense counsel to ld the jury in closing argument there was no DNA connecting Roberts to the gun. The only result which would be different from the advantage Roberts had at trial would be the presence of anot her person’s DNA on the gun. Even that result, however, would fail to raise a reasona ble probability Robe rts did not throw the gun into the dumpster. “DNA testing alone do es not always resolve a case. Where there is enough other incriminating evidence and an explana tion for the DNA result, science alone cannot prove a prisoner innocent.” Dist. Attorney’s Office for th e Third Judicial Dist. v.- 22 - Osborne , 129 S. Ct. 2308, 2316 (2009). Eyew itness testimony established Roberts disposed of the gun; Pena and Thatcher te stified they were certain they saw Roberts throw the gun into the dumpster. The gun was found on the top of the trash in the dumpster moments after Roberts was apprehe nded. Although Roberts claims he was frisked when he entered the club and no weapon was found, his own testimony established he had just returned from his car when the officers arrived. Given these facts, we cannot find the result of the trial was unrelia ble or that further testing would produce a “reasonable probability” Roberts did not possess the gun.
AFFIRMED.

Entered by the Court: Terrence L. O’Brien United States Circuit Judge