F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 1, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-3429
v. (D. of Kan.)
MICHAEL LEE ROBINSON, (D.C. No. 04-CR-40041-SAC)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **
A jury in the United States District Court for the District of Kansas
convicted Michael Lee Robinson on one count of possessing a firearm after
having been convicted of a felony, in violation of 18 U.S.C. § 922(g). Following
his conviction, Robinson moved the district court under Federal Rule of Criminal
Procedure 29(c) to set aside the jury verdict and enter a judgment of acquittal. In
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
a detailed memorandum and order, the district court denied the motion. On
appeal, Robinson argues that a judgment of acquittal should have been granted.
We affirm the district court’s order.
BACKGROUND
Officer Patrick Hannan, while on patrol, observed a yellow Cadillac that
matched the description of a car that was the subject of a police chase several
days earlier. Hannan followed the Cadillac, and when it made an illegal right-
hand turn, Hannan activated his emergency lights in order to make a stop. Instead
of stopping, however, the driver of the Cadillac accelerated and led Hannan on a
short chase through a Topeka, Kansas neighborhood. The driver of the Cadillac
pulled into a vacant parking lot, exited the car, and began running. Hannan
followed the suspect, who was later identified as Robinson, on foot. Hannan
testified that as Robinson ran, “he was holding his waist area with his right hand”
as if he was holding an object in his pants. Hannan stated that “[w]hen people
run, obviously they’re running with the sprinter’s motion, and he was still running
with just his left hand in that motion and his right hand was still staying at his
waist area.”
As the foot chase continued, Robinson tripped and fell to the ground.
Hannan observed a black object fall to the ground and slide a couple of feet
across the asphalt. According to Hannan, who was approximately 15 yards behind
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Robinson when this occurred, the object was dark in appearance and Hannan
believed it to be a handgun. Robinson quickly picked up the object and continued
running toward a nearby apartment complex. Hannan lost sight of Robinson for
approximately two to three seconds when Robinson rounded a corner at the
apartments. When Hannan rounded the corner and regained visual contact,
Robinson was closer than Hannan expected him to be. Robinson was no longer
holding his waist area or running; both of his hands were empty and he was
slowing to a walk.
Hannan then arrested Robinson and conducted a search incident to lawful
arrest. No incriminating evidence was found on Robinson’s person. Hannan,
now joined by backup officers, then searched the immediate vicinity. A fellow
officer located a loaded semi-automatic firearm atop a ten-foot roof overhanging
a porch. In Hannan’s opinion, the gun had not been on the roof very long. The
firearm was found lying in a puddle of water approximately one-quarter inch
deep, but the top of the firearm was dry. According to Hannan, it had been
raining all morning up until about 15 minutes prior to the chase. Had the gun
been on the roof longer than 15 minutes, it would have showed signs of rain.
Further, Hannan testified that, in his experience, a gun will begin to rust after one
day in the rain. Lastly, Hannan testified that the gun could not have been placed
on the roof through a window, because the windows above the roof did not open.
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Fingerprint analysis by the Topeka Police Department was unable to match partial
prints found on the magazine of the gun to Robinson. According to the
fingerprint examiner, the prints found on the gun were not of a quality that would
have enabled a successful match.
ANALYSIS
The denial of a motion for a judgment of acquittal is reviewed de novo,
viewing the evidence in the light most favorable to the government. United States
v. Lawrence , 405 F.3d 888, 901 (10th Cir. 2005) (citation omitted). Our role is to
determine whether there is evidence from which a jury could find the defendant
guilty beyond a reasonable doubt. United States v. Bailey , 327 F.3d 1131, 1140
(10th Cir. 2003). In reviewing the evidence, however, we do not “weigh the
evidence or consider the credibility of the witnesses in making [our]
determination.” Id. (quotation omitted). We may reverse the jury’s verdict “only
if no rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Haslip , 160 F.3d 649, 652 (10th
Cir. 1998) (quotation omitted).
Although we will not uphold a conviction obtained merely by piling
inference on inference, see United States v. Valadez-Gallegos , 162 F.3d 1256,
1262 (10th Cir. 1998), we will uphold a verdict where “[c]ircumstantial evidence,
taken together with any reasonable inferences which flow from such evidence, is
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sufficient to establish guilt beyond a reasonable doubt.” United States v.
Lazcano-Villalobos , 175 F.3d 838, 843 n.2 (10th Cir. 1999) (quotation and
citation omitted).
To prevail under 18 U.S.C. § 922(g), the government must prove three
elements: (1) that the accused was previously convicted of a felony; (2) the
accused thereafter knowingly possessed a firearm; and (3) the firearm had been
shipped in interstate commerce. See United States v. Colonna , 360 F.3d 1169,
1178 (10th Cir. 2004). In this case, elements (1) and (3) are not in dispute.
Robinson’s only argument is that the government failed to produce evidence that
he knowingly possessed the firearm.
The evidence in this case, viewed in the light most favorable to the
government, was sufficient to support the jury’s verdict. A reasonable jury could
infer that the gun found on the roof had been thrown there by Robinson. This
conclusion is bolstered by ample circumstantial evidence, including the manner in
which Robinson held his pants as he ran, the black object seen by Hannan
(identified as a gun by the pursuing officer) that fell from Robinson’s pants, the
location of the gun near where Robinson gave up the chase, and evidence that the
gun had only been on the roof a short time. As noted by the district court, the
jury apparently found Hannan’s testimony to be clear, credible, and persuasive,
and Robinson has shown no compelling reason to discredit the jury’s findings.
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We do not weigh conflicting evidence or second-guess findings of fact made by
the jury. See United States v. Magallanez , 408 F.3d 672, 682 (10th Cir. 2005)
(citations omitted). Here, the jury could properly credit the testimony of the
officer in determining guilt.
CONCLUSION
Thus, because the government presented sufficient evidence to support the
jury’s findings, we AFFIRM the district court’s order denying Robinson’s motion
for judgment of acquittal.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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