United States v. Dewey Hylor , 353 F. App'x 361 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-17099 Nov. 23, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 08-20527-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEWEY HYLOR,
Defendant-Appellant.
________________________
No. 08-17112
Non-Argument Calendar
________________________
D. C. Docket No. 08-20527-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO WILSON,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(November 23, 2009)
Before DUBINA, Chief Judge, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Appellants Dewey Hylor and Antonio Wilson have consolidated their
appeals of their convictions for possession of a firearm or ammunition by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). They argue that the
evidence was insufficient to sustain their convictions because the government did
not show that they were in knowing possession of the guns and ammunition in
question. Additionally, Hylor argues that during closing arguments, the prosecutor
made improper statements regarding witness Officer Freire’s credibility that
constitute reversible error.
I. Sufficiency of the evidence
We review the sufficiency of the evidence to support a conviction de novo,
“viewing the evidence in the light most favorable to the government, with all
reasonable inferences and credibility choices made in the government’s favor.”
United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (internal quotation
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marks and alteration omitted). We “must accept a jury’s inferences and
determinations of witness credibility.” Id. An appellate court will not overturn a
conviction on the ground of insufficient evidence unless no rational trier of fact
could find that the evidence established the defendant’s guilt beyond a reasonable
doubt. Id. “A jury is free to choose among reasonable constructions of the
evidence,” and “it 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. Williams, 390 F.3d 1319, 1323-24 (11th Cir. 2004)
(internal quotation marks omitted).
Under § 922(g)(1), it is unlawful for a felon to knowingly possess a firearm
or ammunition that has affected or was in interstate commerce. 18 U.S.C.
§ 922(g)(1); United States v. Glover, 431 F.3d 744, 748 (11th Cir. 2005). Because
the parties stipulated at trial that Hylor was a convicted felon and that the guns and
ammunition in question traveled in interstate commerce, the only issue for the jury
was whether the evidence was sufficient to prove that Hylor knowingly possessed
the guns or ammunition. Possession can be either actual or constructive. United
States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005). “To prove actual
possession the evidence must show that the defendant either had physical
possession of or personal dominion over the thing allegedly possessed.” United
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States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998). “Constructive possession
exists when a defendant has ownership, dominion, or control over an object itself
or dominion or control over the premises or the vehicle in which the object is
concealed.” Id.We conclude that the record evidence, viewed in the light most favorable to
the government, with all reasonable inferences and credibility determinations made
in the government’s favor, was sufficient to support the jury’s conclusion that
Hylor and Wilson were in knowing possession of the guns or ammunition. Officer
Freire’s testimony alone, that he observed Hylor and Wilson holding and trying to
hide two firearms, was sufficient to support the convictions.
II. Improper vouching for a witness’s credibility
“Absent a contemporaneous objection, the propriety of the Government’s
closing argument and alleged prosecutorial misconduct in improperly vouching for
a witness’[s] credibility are reviewed under a plain error standard.” United States
v. Newton, 44 F.3d 913, 920 (11th Cir. 1994). Under plain-error review, the
defendant has the burden to show that there was plain error that affected his
substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007),
cert. denied, 128 S. Ct. 867 (2008). An error affects a party’s substantial rights if it
had “a substantial influence on the outcome of the case.” Id. (internal quotation
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marks omitted). In addition, the error must seriously affect the “fairness, integrity,
or public reputation of judicial proceedings.” Id. (internal quotation marks
omitted).
“Attempts to bolster a witness by vouching for his credibility are normally
improper and constitute error.” Newton, 44 F.3d at 921. However, “[t]he
prohibition against vouching does not forbid prosecutors from arguing credibility, .
. . it forbids arguing credibility based on the reputation of the government office or
on evidence not before the jury.” Id. (quoting United States v. Hernandez, 921
F.2d 1569, 1573 (11th Cir. 1991)).
We conclude from the record that the prosecutor’s statements were not
improper because he did not argue Officer Freire’s credibility based upon the
reputation of the government office or based on evidence not before the jury.
Rather, he submitted to the jury that Officer Freire was telling the truth, and that
the evidence supported his testimony. In any event, the court’s repeated
instructions to the jury that the lawyers’ statements during closing arguments were
not to be considered evidence dispelled any prejudice which may have resulted
from the prosecutor’s statements. Thus, there was no plain error.
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Based on our review of the record and the consideration of the parties’
briefs, we affirm Hylor and Wilson’s convictions for possession of a firearm or
ammunition by a convicted felon.
AFFIRMED.
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