Submitted: November 15, 2018
from United States District Court for the Northern District
of Iowa - Waterloo
BENTON, BEAM, and ERICKSON, Circuit Judges.
BENTON, Circuit Judge.
D. Nickelous was convicted of unlawfully possessing a firearm
in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3),
922(g)(9), and 924(a)(2). The district court sentenced him to
120 months' imprisonment. He appeals his conviction.
Having jurisdiction under 28 U.S.C. § 1291, this court
was convicted of unlawfully possessing a firearm after a
shooting at a fraternity party. He claims the district court
erred in denying his motion for judgment of acquittal because
the evidence was insufficient. This court reviews de novo the
"denial of a motion for judgment of acquittal."
United States v. Roberts, 881 F.3d, 1049, 1052 (8th
Cir. 2018). The evidence is viewed "in the light most
favorable to the jury verdict and giving the verdict the
benefit of all reasonable inferences." United States
v. Casteel, 663 F.3d 1013, 1019 (8th Cir. 2011).
Reversal is appropriate "only if no reasonable jury
could have found the defendant guilty beyond a reasonable
stipulated to all elements of conviction except possession of
a firearm. See United States v. Anderson, 78 F.3d
420, 422 (8th Cir. 1996) (to convict "under 18 U.S.C.
§ 922(g)(1), the government had to show beyond a
reasonable doubt that (1) he had been convicted of a felony;
(2) he thereafter possessed a firearm; and (3) the firearm
had traveled in or affected interstate commerce"). The
government produced as evidence of possession: (1) Nickelous
admitted attending a fraternity party and having an
altercation there; (2) his former classmate testified she
heard a gunshot at the party and then saw Nickelous, wearing
a red sweatshirt, waving a silver revolver; (3) two other
people at the party-one a security guard and the other a
member of the Army National Guard-testified the shooter was
wearing a red sweatshirt; (4) a police officer testified that
multiple partygoers reported a shooting by a man wearing a
red sweatshirt; (5) another officer, who found Nickelous 200
feet from the party (wearing a red sweatshirt), testified
that he saw Nickelous drop a metal object next to a pickup
truck; (6) the officer testified that Nickelous refused to
stop when ordered; (7) the officer found a silver revolver in
the spot where Nickelous dropped the object; and (8) when
officers apprehended Nickelous, his hand was bleeding, and he
said he had "gotten his ass kicked at the party."
questions his classmate's credibility, arguing her
testimony is biased and based on "assumptions and
prejudices." However, "[t]his court does not weigh
the credibility of the witnesses or the evidence. The jury
has the sole responsibility to resolve conflicts or
contradictions in testimony, and credibility determinations
are resolved in favor of the verdict." United States
v. Aldridge, 664 F.3d 705, 715 (8th Cir. 2011) (internal
also challenges the conviction because there was no physical
evidence. But "there is sufficient evidence to support a
conviction for felon in possession where a gun was
immediately recovered from the location where the defendant
was observed dropping something." United States v.
Jefferson, 206 Fed.Appx. 654, 655 (8th Cir. 2006).
See United States v. Bailey, 831 F.3d 1035, 1039
(8th Cir. 2016) (holding evidence was sufficient where a
firearm was recovered "along the route" of
defendant's flight within 45 minutes of his
apprehension); United States v. Light, 406 F.3d 995,
997-98 (8th Cir. 2005) (holding evidence was sufficient where
police "recovered a gun from the alley" where
defendant was apprehended even though no one saw him drop it
or "kept an eye on the spot where the gun was
district court did not err in finding the evidence sufficient
argues the district court erred in excluding expert testimony
on eyewitness identification. "This court reviews the
exclusion of expert testimony for abuse of discretion."
United States v. Martin, 391 F.3d 949, 954 (8th Cir.
2004). "Expert testimony is admissible only if the
expert 'is proposing to testify to (1) scientific
knowledge that (2) will assist the trier of fact to
understand or determine a fact in issue.'"
Id., quoting Daubert v. Merrell Dow Pharm.,
509 U.S. 579, 592 (1993); Fed.R.Evid. 702. The district court
"has broad discretion" in balancing the reliability
and probative value of evidence "against its prejudicial
effect." United States v. Kime, 99 F.3d 870,
883 (8th Cir. 1996).
expert opined that there was "a high probability that
without conscious intent" and" no intentional
bias," the classmate "misconstrued some other
object like a phone as a gun." The district court
excluded the proposed testimony because it would not assist
the trier of fact. "The evaluation of eyewitness
testimony is for the jury alone. It is the exclusive province
of the jury to determine the believability of a witness. . .
. An expert is not permitted to offer an opinion as to the
believability or truthfulness of a victim's story."
Id. at 884 (internal quotation marks omitted).
Defense counsel is "capable of exposing to ...