[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 30, 2008
No. 07-14593 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00042-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN LEROY GREEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 30, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Kevin Green, through counsel, appeals his conviction for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
On appeal, Green argues that (1) the evidence presented at trial was insufficient to
establish that he knowingly possessed a firearm; and (2) the district court abused
its discretion in denying his motion for a new trial based on the weight of the
evidence and newly discovered evidence.
Beginning with the first issue, we review de novo “whether there is
sufficient evidence to support the jury’s verdict.” United States v. Ortiz, 318 F.3d
1030, 1036 (11th Cir. 2003) (per curiam). We will affirm a conviction if we
determine that “a reasonable trier of fact could conclude that the evidence
establishes guilt beyond a reasonable doubt.” Id. (internal quotation marks
omitted). In making this determination, we review the evidence in the light most
favorable to the government, drawing all reasonable inferences and making
credibility choices in the government’s favor. United States v. Garcia-Jaimes, 484
F.3d 1311, 1319-20 (11th Cir.), petition for cert. filed, (U.S. June 11, 2007) (No.
06-11863). Furthermore, “[i]t 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. Calderon, 127 F.3d 1314,
1324 (11th Cir. 1997).
“To obtain a conviction for being a felon in possession of a firearm, the
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[government] must prove beyond a reasonable doubt that [Green] was (1) in
knowing possession of a firearm, (2) a convicted felon, and (3) that the firearm
affected interstate commerce.” United States v. Glover, 431 F.3d 744, 748 (11th
Cir. 2005) (per curiam) (internal quotation marks omitted). Green argues only that
the government failed to provide sufficient evidence to prove that he knowingly
possessed a firearm. Because Green stipulated at trial to being a convicted felon,
and he does not contest the sufficiency of the evidence establishing an interstate
nexus, any arguments based on those grounds are waived. See Access Now, Inc. v.
Southwest Airlines, Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (stating that issues
not argued on appeal are abandoned).
A reasonable fact-finder could conclude beyond a reasonable doubt that
Green was in knowing possession of a gun based on the following evidence:
(1) the arresting officer saw Green make movements with his hand and heard a
clicking sound, like metal against stucco, hitting a nearby house; (2) immediately
thereafter, the officer discovered the gun where Green had been standing and
observed that it was marked with stucco residue; and (3) a witness identified the
gun retrieved by the officer as the gun she saw Green brandish earlier that night.1
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Green contends that the witnesses’ testimony is not worthy of belief, based in part on
his allegations of bias and inconsistencies. We may not, however, review determinations made
by the jury as to the credibility of witness testimony unless such testimony is “incredible as a
matter of law.” Calderon, 127 F.3d at 1325. Testimony is incredible as a matter of law only
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Next, we turn to Green’s argument that the district court abused its
discretion in denying his motion for a new trial on the basis of the weight of the
evidence and newly discovered evidence.
“We review a district court’s denial of a motion for new trial for abuse of
discretion.” United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en
banc). The broad standard for granting a new trial is whether the verdict must be
set aside “‘in the interest of justice.’” United States v. Vicaria, 12 F.3d 195, 198
(11th Cir. 1994); see Fed. R. Crim. P. 33(a).
We review a district court’s ruling on motion for a new trial based on the
weight of the evidence differently than we review a challenge to the sufficiency of
the evidence. See United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985).
In evaluating a motion for new trial based on the weight of the evidence, the
evidence is not viewed in the light most favorable to the verdict, and the district
court “may weigh the evidence and consider the credibility of the witnesses.” Id.
However, “[t]he court may not reweigh the evidence and set aside the verdict
simply because it feels some other result would be more reasonable.” Id. at 1312-
13. For a court to set aside the verdict, “[t]he evidence must preponderate heavily
when it is “unbelievable on its face” and relates to facts that the witness “physically could not
have possibly observed or events that could not have occurred under the laws of nature.” Id.
(internal quotation marks omitted). Green has failed to show that the testimony of any witness is
incredible as a matter of law.
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against the verdict, such that it would be a miscarriage of justice to let the verdict
stand.” Id. at 1313. We have noted that motions for new trial based on the weight
of the evidence are not favored and are granted “sparingly and with caution,” only
in “exceptional cases.” Id. (internal quotation marks omitted).
A motion for a new trial based on newly discovered evidence is also “highly
disfavored” and “should be granted only with great caution.” Campa, 459 F.3d at
1151 (internal quotation marks omitted). A new trial based on newly discovered
evidence is warranted only if: “(1) the evidence was in fact discovered after trial;
(2) the defendant exercised due care to discover the evidence; (3) the evidence was
not merely cumulative or impeaching; (4) the evidence was material; and (5) the
evidence was of such a nature that a new trial would probably produce a different
result.” United States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005) (internal
quotation marks omitted). “The failure to satisfy any one of these elements is fatal
to a motion for a new trial.” Id. (internal quotation marks omitted).
The district court did not abuse its discretion in denying Green’s motion for
a new trial. Even considering the credibility of the witnesses and any
inconsistencies in their testimony, the weight of the evidence does not
preponderate heavily against the verdict. Additionally, the photographs and
videotape, which Green relied on to support his motion on the basis of newly
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discovered evidence, were disclosed prior to trial, so they were not newly
discovered. Lastly, Green was not prejudiced by the timing of the fingerprint
expert’s examination of the gun because the expert did not find a useable print.
Accordingly, for the above stated reasons, we affirm Green’s conviction.
AFFIRMED.
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