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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11143
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00333-VMC-MAP-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL WILSON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 28, 2018)
Before WILSON, JORDAN, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Michael Wilson appeals his conviction for possession of a firearm by a
convicted felon: the violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). No
reversible error has been shown; we affirm.
I.
Wilson first contends the district court abused its discretion in admitting
evidence that Wilson was a member of a white supremacist organization. Wilson
contends the introduction of this evidence was unfairly prejudicial under Fed. R.
Evid. 403.
We review for abuse-of-discretion a district court’s evidentiary rulings.
United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). * A district court “may
*
Although Wilson’s lawyer raised no contemporaneous objection to the introduction of white
supremacist evidence at trial, this claim is preserved properly for appeal. “Once the court rules
definitively on the record -- either before or at trial -- a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.” Fed. R. Evid. 103(b); see Tampa Bay
Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1178 (11th Cir. 2013). Wilson filed a pre-trial
motion in limine seeking exclusion of the white supremacist evidence, which the district court
denied in a written order. At the beginning of trial, Wilson renewed his motion in limine
challenging the white supremacist evidence; the district court denied the motion “for the reasons
stated earlier.” Because the district court made definitive evidentiary rulings on the record,
Wilson preserved properly this claim for appeal.
To the extent Wilson argues on appeal that his lawyer unreasonably erred in failing to
object contemporaneously to the introduction of the white supremacist evidence, that claim may
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exclude relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice.” Fed. R. Evid. 403. We have said, however, that
“Rule 403 is an extraordinary remedy which the district court should invoke
sparingly.” Dodds, 347 F.3d at 897 (quotations omitted). In considering
admissibility under Rule 403, we view “the evidence in a light most favorable to its
admission, maximizing its probative value and minimizing its undue prejudicial
impact.” Id.
At trial, the government introduced the following evidence. Wilson’s then-
girlfriend, Robin Williams, testified that Wilson was a member of a “white pride
group” and “talked a lot about the Aryan Brotherhood.” An officer testified about
items found in the bedroom in which Wilson was located, including two knives
adorned with “Nazi insignia” and a t-shirt hanging on the wall, which read “White
Pride World Wide.” Photographs were admitted into evidence and published to the
jury depicting the two knives and the “White Pride” t-shirt. Deputy Kozera, a
former “gang detective,” testified that the “White Pride” t-shirt and the two “Nazi”
knives were evidence suggestive of a white supremacist group. Deputy Kozera
also testified that Wilson’s tattoos of “1488” and “Pure Bred” represented terms
be raised on collateral review. Cf. Massaro v. United States, 538 U.S. 500, 504-05 (2003)
(explaining that a motion brought under 28 U.S.C. § 2255 -- rather than a direct criminal appeal -
- is the preferred method for asserting claims for ineffective assistance of counsel).
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often used by white supremacists. Photographs of Wilson’s tattoos were admitted
into evidence and published to the jury.
On appeal, Wilson raises no challenge to the district court’s determination
that the white supremacist evidence was “relevant” within the meaning of Fed. R.
Evid. 401. The chief issue in dispute at Wilson’s trial was whether Wilson was “in
possession” of the gun found in the bedroom. That Wilson was a member of a
white supremacist group had some tendency to make it more likely that the
bedroom in which the Nazi memorabilia and the “White Pride” t-shirt were found
belonged to Wilson and, thus, that the gun found in the bedroom also belonged to
Wilson.
We must consider, however, whether the probative value of the white
supremacist evidence was substantially outweighed by the danger of unfair
prejudice. We have said that “[t]here is no place in a criminal prosecution for
gratuitous references to race . . . Elementary concepts of equal protection and due
process alike forbid a prosecutor to seek to procure a verdict on the basis of racial
animosity.” United States v. Bowman, 302 F.3d 1228, 1240 (11th Cir. 2002)
(concluding the district court abused its discretion in admitting evidence of an
organization’s “whites-only” policy when defendant was charged with no racially-
motivated crime and the evidence was cumulative of other evidence). “Such
inflammatory evidence retains a sufficiently countervailing probative value only
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when less prejudicial evidence fails to describe sufficiently the motive and nature
of the crime.” United States v. Lehder-Rivas, 955 F.2d 1510, 1518 (11th Cir.
1992).
Unlike other cases in which we have concluded that evidence of a
defendant’s connection to a white supremacy group was admissible, the evidence
admitted in this case was not critical to establishing Wilson’s motive or to
complete the story of Wilson’s crime. See id. at 1518-19 (evidence of defendant’s
favorable views toward Hitler and the Third Reich was “of considerable probative
value” for proving defendant’s motives, including his desire to “facilitate the
demise of the United States by importing large quantities of cocaine”); United
States v. Mills, 704 F.2d 1553, 1559-60 (11th Cir. 1983) (evidence of defendant’s
membership in -- and about the history and activities of -- the Aryan Brotherhood
were necessary to prove motive and to complete the story of the crime where
defendant was accused of murdering a federal prisoner on the orders of a fellow
Aryan Brotherhood member).
The government says, instead, that the white supremacist evidence was
introduced solely to link Wilson to the bedroom in which the gun was found. As
discussed in more detail in the next section, the government also seems to have
introduced enough other evidence to establish Wilson’s connection to the bedroom
and to the gun found therein. Although much of the government’s other evidence
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consisted of testimony from witnesses with criminal records, we have said that
“[m]ere corroboration of testimony . . . fails to justify the introduction of unrelated
bad acts.” See Lehder-Rivas, 955 F.2d at 1518 (rejecting the government’s
argument that witness testimony about swastika labels was necessary to
“corroborate related testimony by witnesses with shaky credibility.”).
Given that evidence of Wilson’s membership in a white supremacy group
was unnecessary to establish Wilson’s motive or to provide a context for the crime
and that the evidence was cumulative of other (less unfair) evidence easily
sufficient to link Wilson to the bedroom and to the gun, the evidence was of
limited probative value. On this record, the prejudicial nature of the white
supremacist evidence might well have outweighed substantially the probative value
of the evidence. So, from this point on in today’s opinion, we will just suppose the
pertinent evidence should have been excluded under Rule 403. Cf. id. at 1518-19
(the district court abused its discretion by admitting testimony that defendant
planned to label his drugs with swastikas because the method of labeling the drugs
“was not critical to the prosecution’s establishment of a conspiracy.”).
Even when the district court makes an erroneous evidentiary ruling, we will
not reverse a conviction “unless there is a reasonable likelihood that [the error]
affected the defendant’s substantial rights.” United States v. Langford, 647 F.3d
1309, 1323 (11th Cir. 2011). “No reversal will result if sufficient evidence
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uninfected by any error supports the verdict, and the error did not have a
substantial influence on the outcome of the case.” Id.
Here, the government produced ample evidence -- including Wilson’s own
statement asserting ownership over the belongings in the house -- from which a
jury could conclude beyond a reasonable doubt that Wilson possessed the gun
charged in the indictment. Given the other strong evidence of Wilson’s guilt, we
are unpersuaded that the error in admitting the white supremacist evidence affected
Wilson’s substantial rights such that reversal is warranted. Cf. Bowman, 302 F.3d
at 1240 (although the district court erred in admitting evidence of the “whites-
only” policy, the error was harmless in the light of the overwhelming evidence of
defendant’s guilt); Lehder-Rivas, 955 F.2d at 1518-19 (admission of evidence
about swastika labels -- although erroneous -- was harmless where the testimony
was brief and where the jury was exposed to other similar properly-introduced
evidence).
II.
Wilson next challenges the district court’s denial of his motion for a
judgment of acquittal. Wilson argues that insufficient evidence exists to prove that
he “possessed” the gun charged in the indictment.
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“We review de novo a district court’s denial of judgment of acquittal on
sufficiency of evidence grounds.” United States v. Rodriguez, 732 F.3d 1299,
1303 (11th Cir. 2013). In determining the sufficiency of the evidence to support a
conviction, “we consider the evidence in the light most favorable to the
government, drawing all reasonable inferences and credibility choices in the
government’s favor.” Id. We cannot overturn a jury’s verdict unless no
“reasonable construction of the evidence would have allowed the jury to find the
defendant guilty beyond a reasonable doubt.” Id.
To obtain a conviction for possession of a firearm by a convicted felon, the
government must prove (1) the defendant was a convicted felon; (2) the defendant
was in knowing possession of a firearm; and (3) the firearm was in or affected
interstate commerce. United States v. Wright, 392 F.3d 1269, 1273 (11th Cir.
2004). Only the second element is at issue on appeal: whether Wilson knowingly
possessed the gun charged in the indictment. “Possession” may be either actual or
constructive. Id. Constructive possession is shown when the government proves --
through direct or circumstantial evidence -- that the defendant (1) knew about the
firearm’s presence and (2) “had the ability and intent to later exercise dominion
and control over that firearm.” United States v. Perez, 661 F.3d 568, 576 (11th
Cir. 2011).
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At trial, an officer testified that -- during a search of the bedroom in which
Wilson was located -- the officer found in plain sight a loaded .45 caliber handgun,
which was silver in color with a brown handle. Williams testified that Wilson
owned a chrome gun with a brown handle and that Wilson carried the gun with
him “all the time.” Williams was shown photographs of several items officers
found in the bedroom and confirmed that the items -- including the gun -- belonged
to Wilson.
Ricky Fann testified that, when he visited Wilson’s house less than a month
before Wilson’s arrest, Fann saw a “silver 1911 frame, .45 [caliber]
semiautomatic” lying on the bed near Wilson. Fann testified that he had at times
also seen Wilson carrying that gun in his pants or in his bag. Tabitha Higdon
testified that, on one occasion, Wilson asked her to hold a “small” and “silver” gun
for him.
The government also introduced a recorded phone conversation between
Wilson and an unidentified woman. During the conversation -- recorded shortly
after Wilson’s arrest -- Wilson instructed the woman “to go down and get my stuff
out of that house . . . Everything in that house was mine that’s worth money . . .
Everything but the furniture.”
Viewed in the light most favorable to the government, the evidence
presented at trial was sufficient to permit a reasonable factfinder to conclude
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beyond a reasonable doubt that Wilson possessed knowingly the gun found in the
bedroom. Three witnesses testified expressly that they had each seen Wilson with
a gun matching the description of the gun charged in the indictment. The gun was
found in plain view in the bedroom in which Wilson was located when police
executed the search warrant. Moreover, Wilson’s comments during the recorded
phone conversation -- that everything of value in the house belonged to him --
supports the conclusion that the gun found in the bedroom belonged to Wilson.
The district court committed no error in denying Wilson’s motion for judgment of
acquittal.
III.
Wilson next challenges the district court’s denial of his motion for a new
trial based on newly-discovered evidence. Wilson also contends that the district
court abused its discretion in ruling on the motion without an evidentiary hearing.
In an affidavit submitted in support of his motion for a new trial, Wilson
alleged that a fellow inmate (Priscilla Ellis) told Wilson the following:
Tabitha [Higdon] told me to tell you she only said what she said on
the stand because they threatened they would take her daughter if she
didn’t. She said she told them that she was too high to remember
anything. She said she was going to take the Fifth but they threatened
to take her daughter.
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We review a district court’s denial of a motion for a new trial -- and the
district court’s denial of an evidentiary hearing -- under an abuse-of-discretion
standard. United States v. Fernandez, 136 F.3d 1434, 1438 (11th Cir. 1998).
“Motions for new trial based on newly discovered evidence are highly disfavored .
. . and should be granted only with great caution.” United States v. Campa, 459
F.3d 1121, 1151 (11th Cir. 2006) (en banc).
To succeed on a motion for a new trial based on newly-discovered evidence,
the movant must satisfy these five elements: (1) the evidence was discovered after
trial; (2) the evidence could not have been discovered earlier through due
diligence; (3) the evidence is “not merely cumulative or impeaching;” (4) the
evidence is material to issues before the court; and (5) the evidence is “of such a
nature that a new trial would probably produce a different result.” United States v.
Lee, 68 F.3d 1267, 1273 (11th Cir. 1995). “The failure to satisfy any one of these
elements is fatal to a motion for new trial.” Id. at 1274.
The newly-discovered evidence upon which Wilson relies -- evidence that
the government allegedly pressured Higdon to testify against Wilson -- serves only
to impeach Higdon’s credibility. Moreover, Wilson has failed to demonstrate that
the newly-discovered evidence would have “probably” changed the outcome of his
trial. Even if Wilson could show that Higdon testified falsely, Higdon’s testimony
was cumulative of other testimony and evidence linking Wilson to the gun found in
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the bedroom. Because Wilson failed to satisfy each of the required elements for a
new trial, the district court abused no discretion in denying his motion.
The district court also abused no discretion in ruling on Wilson’s motion
without first holding an evidentiary hearing. “[A] motion for new trial may
ordinarily be decided upon affidavits without an evidentiary hearing.” United
States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977). This case presents no
“unique circumstances” warranting a departure from that general rule. See id.
(noting that evidentiary hearings may be warranted in cases “involving allegations
of jury tampering, prosecutorial misconduct, or third party confession.”). That the
district court judge who considered Wilson’s motion for new trial also presided
over Wilson’s criminal trial further undercuts the necessity of an evidentiary
hearing. See id. at 1373-74 (“the acumen gained by a trial judge over the course of
the proceedings made him well qualified to rule on the basis of affidavits without a
hearing.”).
AFFIRMED.
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