UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4340
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT STACY MCNEAL, a/k/a Stacy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:10-cr-00043-F-6)
Submitted: December 16, 2011 Decided: January 4, 2012
Before MOTZ, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter A. Schmidlin, III, STEWART & SCHMIDLIN, PLLC, Smithfield,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Stacy McNeal appeals his conviction following a
jury trial and sentence of 120 months’ imprisonment for
possessing a firearm as a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2006). McNeal challenges the district
court’s denial of his Fed. R. Crim. P. 29 motions for a judgment
of acquittal, asserting that the evidence was insufficient to
sustain his conviction. We affirm.
We review de novo a district court’s decision to deny
a motion for a judgment of acquittal. United States v. Hickman,
626 F.3d 756, 762-63 (4th Cir. 2010), cert. denied, 2011 WL
4345018 (U.S. Oct. 17, 2011) (No. 11-6404). Where such a motion
alleges insufficiency of the evidence, we must sustain the
jury’s verdict if, viewing the evidence in the light most
favorable to the government, “any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Green, 599 F.3d 360, 367
(4th Cir.) (internal quotation marks omitted), cert. denied, 131
S. Ct. 271, 340 (2010). In making this determination, we review
the record to determine whether the conviction is supported by
“substantial evidence,” where “substantial evidence is evidence
that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Hickman, 626 F.3d at 763 (internal
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quotation marks omitted). Because the credibility of witnesses
is properly assessed by the jury rather than by this court on
appeal, we “cannot make [our] own credibility determinations but
must assume that the jury resolved all contradictions in
testimony in favor of the Government.” United States v.
Penniegraft, 641 F.3d 566, 572 (4th Cir. 2011) (internal
quotation marks omitted).
To sustain a conviction for a violation of 18 U.S.C.
§ 922(g)(1), the Government must prove: “(1) the defendant
previously had been convicted of a crime punishable by a term of
imprisonment exceeding one year; (2) the defendant knowingly
possessed, transported, shipped, or received, the firearm; and
(3) the possession was in or affecting commerce, because the
firearm had travelled in interstate or foreign commerce.”
United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en
banc).
McNeal’s conviction was supported by his possession of
two firearms, a Taurus PT-22 handgun and a shotgun. As to the
handgun, McNeal asserts that the evidence was insufficient to
establish that he possessed the weapon. With respect to the
shotgun, he claims that the evidence failed to demonstrate the
requisite nexus with interstate commerce. Upon careful review
of the record, we find no merit in either contention.
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The evidence presented during McNeal’s trial was
sufficient to allow a reasonable juror to find that McNeal
constructively possessed the handgun. Constructive possession,
which satisfies the “possession” element of 18 U.S.C.
§ 922(g)(1), is established by demonstrating “ownership,
dominion, or control over the contraband or the premises or
vehicle in which the contraband was concealed.”. United States
v. Herder, 594 F.3d 352, 358 (4th Cir.), cert. denied, 130 S.
Ct. 3440 (2010); United States v. Scott, 424 F.3d 431, 434-36
(4th Cir. 2005).
In McNeal’s case, a significant quantum of evidence
demonstrated his knowledge, ownership, and control of the
handgun, and we find unpersuasive his attempt to analogize the
facts of his case to those we considered in United States v.
Blue, 957 F.2d 106 (4th Cir. 1992). In contrast to the scant
indications of possession present in Blue, the evidence here
established that McNeal arranged for receipt of the handgun,
took delivery of the weapon, was aware of its location in his
car, and participated in an incident in which it was used by his
friend. Accordingly, we conclude that a reasonable juror could
find that McNeal constructively possessed the handgun.
Turning to the shotgun, we have held that a
“connection to interstate commerce can be satisfied through
proof that the firearm or ammunition is manufactured in one
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state and possessed in another.” See United States v. Williams,
445 F.3d 724, 740 (4th Cir. 2006). McNeal asserts that no such
finding can be made because the shotgun was never recovered and
the expert testimony alone was insufficient to meet the
Government’s burden of proof.
We have found, however, that where the Government is
unable to produce the subject firearm, expert testimony
indicating that no type of shotgun is manufactured in the state
in which the defendant is alleged to have possessed the weapon
is sufficient to establish the interstate commerce element of a
18 U.S.C. § 922(g)(1) charge. Williams, 445 F.3d at 729, 740.
Because just such testimony regarding the shotgun possessed by
McNeal was offered at his trial, we hold that the evidence was
sufficient to allow a reasonable juror to determine that the
weapon traveled in interstate commerce. ∗
Accordingly, we reject McNeal’s challenge to the
district court’s denial of his Fed. R. Crim. P. 29 motions for a
judgment of acquittal and affirm the judgment below. We
dispense with oral argument because the facts and legal
∗
We also reject McNeal’s challenge, raised for the first
time on appeal, that the jury’s deliberations (under thirty
minutes) were too brief to be reasonable. See United States v.
Aguilera, 625 F.3d 482, 487 (8th Cir. 2010) (agreeing with other
circuits that “brief jury deliberation alone is not a sufficient
basis for a new trial;” collecting cases).
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conclusions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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