United States v. Tavaris Lamon Body , 450 F. App'x 855 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10452 ELEVENTH CIRCUIT
Non-Argument Calendar JAN 5, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-00232-CG-B-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff–Appellee,
versus
TAVARIS LAMON BODY,
llllllllllllllllllllllllllllllllllllllll Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(January 5, 2012)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Tavaris Lamon Body was convicted of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). Body appeals his conviction and asks
that we vacate it for three reasons. First, he contends that the search of his home,
which uncovered the firearm, violated the Fourth Amendment. Second, he argues
that the district court should have held an evidentiary hearing under Franks v.
Delaware, 483 U.S. 154 (1978). And last, he argues that there was not sufficient
evidence to support his conviction.
At the outset, we note that Body has waived his first two arguments, and
thus, we will not address them. Body neither filed a motion to suppress nor
requested a Franks hearing in the district court. Federal Rule of Criminal
Procedure 12(b)(3)(C) requires that a motion to suppress be filed before trial. And
the failure to file such a motion before trial waives any objection unless the
defendant can demonstrate good cause for his failure to do so. Fed. R. Crim. P.
12(e); see also United States v. Ford, 34 F.3d 992, 994 n.2 (11th Cir. 1994).
Because Body has not demonstrated good cause for his failure to file a motion to
suppress before trial, he was waived that argument and we will not address it. We
have also applied Rule 12(e) to foreclose review of late-filed Franks motions.
United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990). Here, Body never
requested a Franks hearing, and thus he has also waived that claim.
We now turn to Body’s remaining argument. We review a district court’s
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denial of a motion for judgment of acquittal based on the sufficiency of the
evidence de novo. United States v. Friske, 640 F.3d 1288, 1290 (11th Cir. 2011).
But we consider the evidence in the light most favorable to the government and we
will not overturn a conviction if any reasonable construction of the evidence
supports the jury’s verdict. Id. at 1291.
To obtain a conviction under 18 U.S.C. § 922(g) the government must prove
that the defendant (1) had a felony conviction and (2) knowingly possessed a
firearm that (3) was in or affected interstate commerce. United States v. Funches,
135 F.3d 1405, 1406–07 (11th Cir. 1998). Body does not contest that he had a
felony conviction or that the firearm found in his house had been in or affected
interstate commerce, but rather only the possession element. Possession can either
be actual or constructive. To show constructive possession, the government must
establish that the defendant “exercised ownership, dominion, or control over the
firearm.” United States v. Gunn, 1229, 1234 (11th Cir. 2004).
At trial, police officers testified that they found Body and a gun at 928
Nellie Street. They also testified that they found a key to 928 Nellie Street on
Body, as well as a Western Union money order and an auto-repair work order in
Body’s name that both listed 928 Nellie Street as his address. Finally, after Body
had been read his Miranda rights, an officer asked him why he had the gun. The
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officer testified that Body responded that he had the gun for protection. We
conclude that this evidence is sufficient to support the jury’s finding that Body
exercised “dominion or control” over the firearm and thus there was sufficient
evidence to support his conviction. Cf. United States v. Clay, 355 F.3d 1281, 1284
(11th Cir. 2004) (allowing constructive possession in drug cases to be showed by
establish “ownership or dominion and control . . . over the premises on which the
drugs are concealed”).
AFFIRMED.
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