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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10441
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00532-MSS-TBM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALVOID KENNON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 15, 2019)
Before WILLIAM PRYOR, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
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A jury convicted Alvoid Kennon of being a felon in possession of a firearm
and ammunition, in violation of
18 U.S.C. §§ 922(g)(1) and 924(e). On appeal, Mr.
Kennon challenges his conviction on sufficiency of the evidence grounds. After
careful review, we affirm.
I
On the morning of April 13, 2016, police officers were preparing to execute a
search warrant for a home on West 3rd Street in Bradenton, Florida. Detective Carl
Jones was stationed in an unmarked vehicle about one block away from the
residence. He observed a green Ford Expedition drive up to the residence and park
in front of it. He then saw Mr. Kennon exit from the driver’s side of the Expedition.
Detective Jones did not see anybody else in the Expedition, or anybody else exit the
Expedition. He radioed the search-warrant team about having seen Mr. Kennon, who
had an outstanding warrant for a failure to appear at a prior court date.
Two additional detectives, Detective Ben Pieper and Detective Andres Perez,
arrived within minutes, also in an unmarked vehicle. Shortly thereafter, they exited
their vehicle and yelled, “Stop, police.” Mr. Kennon ran. After a brief pursuit,
Detective Perez caught up with Mr. Kennon, and took him into custody.
When the search-warrant team arrived at the residence, two detectives
searched the Expedition. Through the window, they saw a pistol in plain view. They
secured the pistol, and found several rounds of ammunition within it. Inside the car,
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the officers also found title for a different vehicle that had previously been registered
to Mr. Kennon, as well as a Florida photo identification card and gym membership
card, both belonging to Mr. Kennon.
In December of 2016, a federal grand jury charged Mr. Kennon, in a one-
count indictment, with being a felon in possession of a firearm and ammunition. The
case proceeded to a jury trial. At trial, the government presented testimony from,
among others, Special Agent Walton Lanier of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF). Agent Lanier testified that he had examined the
pistol found in the green Expedition and determined that it was a Glock
manufactured in Austria. He similarly testified that the ammunition found inside the
pistol been manufactured in Arkansas and the Czech Republic.
Mr. Kennon presented three witnesses, including his mother, who testified
that she was the registered owner of the Expedition. She further stated that several
days before Mr. Kennon was arrested, she had given the keys to the Expedition to
Frederick Jefferson, the sole occupant of the West 3rd Street residence, so that Mr.
Jefferson could perform maintenance on the vehicle. She also testified that Mr.
Jefferson frequently carried a gun and that the gun found in the Expedition was a
favorite of his.1
1
Mr. Jefferson passed away in November of 2016.
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Mr. Kennon moved for a judgment of acquittal under Fed. R. Crim. P. 29,
arguing, among other things, that the evidence was insufficient to prove that he
knowingly possessed the firearm and ammunition. The district court denied Mr.
Kennon’s motion, and the jury found him guilty.
II
We review de novo the denial of a motion for acquittal on sufficiency-of-the-
evidence grounds. See United States v. Peters,
403 F.3d 1263, 1268 (11th Cir. 2005).
In doing so, we view all evidence in the light most favorable to the government and
draw all reasonable inferences in favor of the jury’s verdict, and we ask whether any
rational trier of fact would have found all the essential elements of the crime beyond
a reasonable doubt. See United States v. Eckhardt,
466 F.3d 938, 944 (11th Cir.
2006); United States v. Ramirez,
426 F.3d 1344, 1351 (11th Cir. 2005). But where a
defendant raises on appeal a challenge to the sufficiency of the evidence that he did
not raise in the district court, we review only for plain error. See United States v.
Joseph,
709 F.3d 1082, 1093 (11th Cir. 2013); United States v. Baston,
818 F.3d
651, 663-64 (11th Cir. 2016).
To prevail under plain-error review, Mr. Kennon must show “(1) that the
district court erred, (2) that the error was plain, and (3) that the error affected his
substantial rights.” United States v. Vandergrift,
754 F.3d 1303, 1307 (11th Cir.
2014) (internal quotation marks omitted).
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III
To prove that a defendant violated § 922(g)(1), the government must show
that he knowingly possessed a firearm or ammunition, that he was a convicted felon,
and that the firearm or ammunition was in or affecting interstate commerce. See
United States v. Palma,
511 F.3d 1311, 1315 (11th Cir. 2008).
A
Mr. Kennon contests the first element of the offense, arguing that there was
no evidence that he knowingly possessed the firearm, and insufficient evidence to
find that he constructively possessed it. For purposes of § 922(g)(1), “the
government need not prove actual possession in order to establish knowing
possession; it need only show constructive possession through direct or
circumstantial evidence.” United States v. Green,
565 F.3d 832, 841 (11th Cir. 2009)
(citations omitted). A defendant constructively possesses a firearm or ammunition
if he “has knowledge of the [item] coupled with the ability to maintain control over
it or reduce it to his physical possession.” United States v. Derose,
74 F.3d 1177,
1185 (11th Cir. 1996). In order to establish constructive possession, the government
must produce evidence of ownership, dominion or control over the item, or of the
vehicle or premises in which the item is found. See United States v. Wright,
392 F.3d
1269, 1273 (11th Cir. 2004).
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Here, there was sufficient circumstantial evidence indicating that Mr. Kennon
constructively possessed the pistol and ammunition. Mr. Kennon exited the
Expedition from the driver’s side, and shortly afterwards detectives saw a pistol in
plain view on the passenger seat. There were no other passengers in the Expedition
when Mr. Kennon drove and parked it in front of the target house. And two cards in
Mr. Kennon’s name, including his Florida identification card, were found inside the
vehicle along with the firearm.
Viewing this evidence in the light most favorable to the government, a
reasonable fact-finder could have found that Mr. Kennon had driven the Expedition
with the pistol in the passenger seat. Based on this, it could also reasonably have
found that Mr. Kennon had knowledge and control of the pistol and ammunition.
See United States v. Howard,
742 F.3d 1334, 1341-42 (11th Cir. 2014) (finding
evidence sufficient to show constructive possession where officers found firearm in
glove compartment and defendant had been in driver’s seat shortly before the
search); United States v. Gates,
967 F.2d 497, 499 (11th Cir. 1992) (defendant who
was passenger in vehicle with two firearms found under the driver’s seat “had
sufficient access to the firearms to establish possession”).
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B
Mr. Kennon also argues that the evidence was insufficient to prove the
interstate commerce element of the offense. Because he did not raise this objection
in the district court, we review this argument only for plain error.
The main evidence that the pistol and ammunition traveled in interstate
commerce was the testimony of ATF Agent Lanier. As to the firearm, Agent Lanier
testified that it was a “Glock model 22, generation 3, .4 caliber semiautomatic
handgun,” and that it was manufactured in Austria. He based his conclusion on,
among other things, an inscription on the gun indicating the manufacturing location
and importing location, his experience as a Glock user and armorer, his experience
inspecting firearms, and his experience training officers how to use Glock firearms.
As to the ammunition, Agent Lanier testified, again based partly on inscriptions on
the rounds, that the rounds were manufactured in Arkansas and the Czech Republic.
The jury did not err, much less plainly err, in finding this evidence sufficient
to establish the interstate commerce nexus. We have explained that § 922(g) “only
requires that the government prove some minimal nexus to interstate commerce,
which it may accomplish by demonstrating that the firearm possessed traveled in
interstate commerce.” United States v. Wright,
607 F.3d 708, 715 (11th Cir. 2010)
(internal quotation marks omitted). And we have noted that inscriptions on weapons
provide “a clear indication of interstate commerce.” United States v. Brantley, 68
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F.3d 1283, 1287 (11th Cir. 1995). See also United States v. Clay,
355 F.3d 1281,
1286 (11th Cir. 2004) (firearm inscription indicating the manufacturer’s name and
location was sufficient to establish interstate commerce element of § 922(g)); United
States v. Patterson,
820 F.2d 1524, 1526 (9th Cir. 2016) (an inscription indicating
that a gun, found in California, was manufactured in Florida was sufficient to
establish that the gun traveled in interstate commerce). 2
C
Finally, Mr. Kennon argues that there was insufficient evidence for a
reasonable jury to find that the gun at issue here was a firearm as defined by the
applicable statute. See
18 U.S.C. § 921(a)(3) (defining a “firearm” as, among other
things, “any weapon . . . which will or is designed to or may readily be converted to
expel a projectile by the action of an explosive”). Specifically, he points to the fact
that there was no trace report for the serial number on the gun, no testing performed
on the gun, no specific evidence that the gun was operable, and no formal expert
opinion that the gun met the statutory definition of a firearm.
We disagree. “The government need not show to a scientific certainty that a
defendant is carrying a device that fires projectiles by means of an explosive. Indeed,
2
Mr. Kennon also appears to argue that the inscription on the pistol was inadmissible testimonial
hearsay evidence in the context of this case. But Mr. Kennon cites no authority and provides scant
reasoning to support the notion that a manufacturing inscription on a firearm is testimonial in the
sense that its “primary purpose [is] to establish or prove past events potentially relevant to later
criminal prosecution.” Davis v. Washington,
547 U.S. 813, 822.
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the government need not offer the gun itself into evidence or produce an expert
witness to identify a firearm.” United States v. Woodruff,
296 F.3d 1041, 1049 (11th
Cir. 2002) (internal quotation marks omitted). Here, the actual firearm and the
ammunition it contained were in evidence, and the jury heard witness testimony
about the firearm’s make and model. The jury therefore had a sufficient basis on
which to find that the pistol satisfied the statutory definition of a firearm.
IV
For the foregoing reasons, we affirm.
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