[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 31, 2009
No. 09-10008 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00234-CR-J-33TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HASSAN KARIM MUHAMMAD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 31, 2009)
Before DUBINA, Chief Judge, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Appellant Hassan Karim Muhammad appeals his conviction for being a
felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Before trial, Muhammad moved to suppress the gun and his
incriminating statements. A magistrate judge held a suppression hearing and
recommended denying the motion. Muhammad did not object, and the district
court accepted the motion. After the government’s case-in-chief at trial,
Muhammad renewed the motion to suppress on the grounds that certain testimony
revealed new evidence. The district court denied the motion, reasoning that the
evidence was not new.
Muhammad argues on appeal that (1) the district court erred in denying his
motion to suppress, (2) the court erred in denying his motion to renew his motion
to suppress, and (3) the government did not present sufficient evidence of his guilt.
First, regarding the initial motion to suppress, Muhammad argues that the
officer did not have a reasonable suspicion to stop him. The government responds
that, because Muhammad did not object to the magistrate’s recommendation, he
waived his right to challenge the district court’s denial of his motion to suppress.
Pursuant to Fed.R.Crim.P. 59(b)(2), which became effective in 2005, a
defendant’s failure to file specific written objections to a magistrate’s
recommendation within ten days after being served with the recommendation, or
by some other date set by the court, constitutes a waiver of his right to appellate
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review.
Because Muhammad did not file objections to the magistrate judge’s report
and recommendation, we conclude that he waived appellate review of the denial of
his motion to suppress.
Regarding the motion to renew, Muhammad argues that officer Brown’s trial
testimony that he called in a suspicious person rather than a reckless driver or some
other traffic violation, justified renewed consideration of his motion to suppress
because it demonstrated that Brown did not have a reasonable suspicion that
criminal activity was afoot when he stopped Muhammad. The government notes
that the motion should be construed as a motion to reconsider the denial of the
motion to suppress.
We review the district court’s denial of a renewed motion to suppress based
on new facts for an abuse of discretion. See United States v. Montos, 421 F.2d
215, 220 (5th Cir. 1970). Ordinarily, when a motion to suppress is denied before
trial, the legal basis of this denial becomes the law of the case for purposes of the
trial, subject to appellate review, and the defendant may not relitigate the
suppression issue at trial. Id. However, “[i]f new facts come to light at trial, the
trial judge in the exercise of his discretion may consider anew the suppression
issue.” Id. In United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004), we
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affirmed the district court’s denial of a defendant’s motion to reopen a suppression
hearing based on new evidence because the “new evidence” was not inconsistent
with the evidence presented at the suppression hearing. Id.
We conclude from the record here that the district court did not abuse its
discretion in denying the motion to renew. Because the officer testified on both
occasions that he stopped Muhammad because he was suspicious of him, his trial
testimony did not differ from the suppression-hearing evidence and would not have
led to a different outcome on the motion to suppress.
Finally, regarding sufficiency of the evidence, Muhammad argues that the
evidence presented did not prove beyond a reasonable doubt that Muhammad ever
had knowing possession of the firearm and did not exclude every reasonable
hypothesis except that of guilt.
We review de novo a claim of insufficient evidence to convict. United
States v. Nolan, 223 F.3d 1311, 1314 (11th Cir. 2000). We view the evidence in
the light most favorable to the government, but “are bound by the jury’s credibility
determinations, and by its rejection of the inferences raised by the defendant.”
United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005). To uphold a
conviction, we “need only determine that a reasonable fact-finder could conclude
that the evidence established the defendant’s guilt beyond a reasonable doubt.” Id.
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(internal quotation marks omitted). The evidence need not “exclude every
reasonable hypothesis of innocence or [be] wholly inconsistent with every
conclusion except that of guilt, since a jury is free to choose among reasonable
constructions of the evidence.” Id. (internal quotation marks omitted).
In order to convict a defendant of possession of a firearm by a convicted
felon, pursuant to § 922(g)(1), the government must prove beyond a reasonable
doubt that (1) the defendant was a convicted felon, (2) the defendant knew that he
was in possession of a firearm, and (3) the firearm affected or was in interstate
commerce. United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). The
second prong, that of possession, may be shown by direct as well as circumstantial
evidence. Id.
We conclude from the record that sufficient evidence supported
Muhammad’s conviction under § 922(g). Muhammad only challenges whether he
had knowing possession of the firearm. Officer Brown testified that when he was
apprehending Muhammad, he saw Muhammad toss a pair of shorts. When the
officer returned to the spot where Muhammad had tossed the shorts, he saw a
firearm sticking out from inside the shorts. This circumstantial evidence was
sufficient for a reasonable fact-finder to conclude that Muhammad possessed the
firearm while running from the officer. Accordingly, we affirm Muhammad’s
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conviction.
AFFIRMED.
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