Filed: Feb. 05, 2008
Latest Update: Feb. 21, 2020
Summary: , SILER, Senior Circuit Judge.Wallace for possession of a sawed-off shotgun.court granted Alexanders request for new counsel.trial under Fed. United States v. Diaz, 300 F.3d 66, 78 (1st Cir.Barnes, 890 F.2d 545, 549 (1st Cir.district court held that Alexander did not timely file his motions.
Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2475
UNITED STATES OF AMERICA,
Appellee,
v.
LARRY DEAN ALEXANDER,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Howard, Circuit Judge,
Stahl, Senior Circuit Judge,
and Siler,* Senior Circuit Judge.
Margaret D. McGaughey, Appellate Chief, United States
Attorney, with whom Paula D. Silsby, United States Attorney, was on
brief for appellee.
Edward C. Spaight, with whom Marvin H. Glazier, was on brief
for appellant.
February 5, 2008
*
Of the Sixth Circuit, sitting by designation.
SILER, Senior Circuit Judge. In 2005, Appellant Larry Dean
Alexander was convicted of three counts of possession of an
unregistered sawed-off shotgun.1 Following his trial, Alexander
made several motions for a mistrial or new trial, all of which the
district court denied as untimely. Alexander now appeals his
conviction, arguing that there was insufficient evidence to sustain
the conviction and that the district court erred in denying his
motions for a mistrial or new trial.
For the following reasons, we AFFIRM.
I.
In December 2003, law enforcement officers arrested Marc
Wallace for possession of a sawed-off shotgun. Wallace claimed
that Alexander sold him the shotgun in late November 2003.
However, the accounts of how Alexander sold the weapon to Wallace
varied among the witnesses called at Alexander’s trial.
Wallace testified Alexander handed Wallace the shotgun at the
entrance to Wallace’s home, and Wallace then gave Alexander fifty
dollars in exchange for the shotgun. Wallace did not testify that
Alexander covered or wrapped the shotgun in any way; rather, he
testified that he examined the shotgun prior to its purchase. He
1
One count was for possession of the unregistered weapon in
violation of 26 U.S.C. §§ 5861(d) and 5871; another count was for
possession by a convicted felon in violation of 18 U.S.C. §
922(g)(1); and a third count charged possession after conviction of
a misdemeanor crime of domestic violence in violation of 18 U.S.C.
§ 922(g)(9).
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further testified that when Alexander initially contacted him about
the gun, Alexander told him that the gun was “messed up” and that
the handle of the weapon was cut.
Kelly Ross, Wallace’s girlfriend, also testified that the sale
took place outside of Wallace’s home. She testified that she saw
Alexander reach into the trunk of his car, remove the shotgun,
which was wrapped in a blanket, and hand the wrapped shotgun to
Wallace. Ross explained that she did not see the shotgun inside
the blanket. She further testified that Alexander explained that
the barrel of the shotgun was shortened, but he insisted the
shotgun was of legal size.
Alcohol Tobacco and Firearms agent Brent McSweyn testified
that after Wallace’s arrest, he examined the shotgun and determined
that the barrel was shorter than the legal length.
After Alexander was convicted on all counts, the district
court granted Alexander’s request for new counsel. Alexander later
wrote the district court that he “would like to have a motion to
challenge the Jury’s verdict,” and asserted that witnesses
proffered false testimony during trial. Alexander’s new counsel
moved pursuant to Fed. R. Crim. P. 33, seeking a new trial, and
argued that he was renewing the motion for a new trial that
Alexander made by letter. The district court, however, noted that
Alexander did not formally docket the letter with the court, and
thus denied Alexander’s “renewed motion” as untimely. At no time
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during the trial did Alexander move for judgment of acquittal
pursuant to Fed. R. Crim. P. 29.
II.
If Alexander did not properly preserve his objection, then we
“can provide relief on a sufficiency challenge only if the verdict
threatens to work a clear and gross injustice.” United States v.
Gobbi, 471 F.3d 302, 309 (1st Cir. 2006) (citing United States v.
Maldonado-Garcia,
446 F.3d 227, 230 (1st Cir. 2006), and United
States v. Hadfield,
918 F.2d 987, 996 (1st Cir. 1990)).
Additionally, we do not evaluate witness credibility; all
credibility issues are resolved “in favor of the verdict.” United
States v. Andujar,
49 F.3d 16, 20 (1st Cir. 1995) (citing United
States v. Garcia,
983 F.2d 1160, 1164 (1st Cir. 1993)).
We review a district court’s denial of a motion for a new
trial under Fed. R. Crim. P. 33 for a “manifest abuse of
discretion.” United States v. Diaz, 300 F.3d 66, 78 (1st Cir.
2002) (quoting United States v. Gonzalez-Gonzalez,
258 F.3d 16, 20
(1st Cir. 2001)).
III.
To satisfy the statutes, “possession” of a weapon may be
“either actual or constructive, sole or joint.” United States v.
Wight, 968 F.2d 1393, 1397 (1st Cir. 1992) (citations omitted).
“In order to show constructive possession, the government must
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prove that the defendant ‘had dominion and control over the area
where the contraband was found.’” Id. (quoting United States v.
Barnes,
890 F.2d 545, 549 (1st Cir. 1989), and citing United States
v. Vargas,
945 F.2d 426, 428 (1st Cir. 1991), and United States v.
Lochan,
674 F.2d 960, 966 (1st Cir. 1982)).
There was sufficient evidence to prove that Alexander was in
possession of the shotgun. Both Wallace and Ross testified that
Alexander removed the shotgun from Alexander’s car and then handed
the shotgun to Wallace.
IV.
On the question of knowledge, a defendant need not know every
characteristic of the weapon that subjects the weapon to
regulation. United States v. DeBartolo, 482 F.2d 312, 316 (1st
Cir. 1973). It is enough for the government to prove that the
defendant “knows that he is dealing with a dangerous device of such
type as would alert one to the likelihood of regulation.”
Id. A
defendant can no more escape liability for failing to inspect the
length of a shotgun’s barrel than if he failed to inquire as to
whether the weapon is registered.
Id. at 317.
Although Alexander contends there was no proof that he knew
the shotgun was sawed off, there is sufficient evidence to dispute
his contention. First, Alexander told Wallace that the gun was
“messed up.” Further, Ross testified that Alexander told them the
barrel of the weapon was shortened. Finally, the government need
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not have proved that Alexander knew every characteristic of the
shotgun, but merely that he was in possession of the shotgun, and
thus had a duty to inspect the size of the barrel. Id.
V.
The district court did not err in denying Alexander’s motion
for a new trial, and this court does not have the authority to
grant Alexander a new trial. See
Diaz, 300 F.3d at 78. The
district court held that Alexander did not timely file his motions.
There is nothing in the record before us to suggest, nor does
Alexander make a compelling argument, that the district court
abused its discretion in finding the motions were untimely.
AFFIRMED.
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