USA v. Victor Q. Vu

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 05, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-14067
Non-Argument Calendar
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D. C. Docket No. 09-00085-CR-T-23-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR Q. VU,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 5, 2010)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Victor Q. Vu appeals his conviction for being a convicted felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Vu argues that the

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district court erred when it denied his motion for judgment of acquittal based on
the insufficiency of the evidence. After thorough review, we affirm.
We review “de novo whether there is sufficient evidence in the record to
support a jury’s verdict . . ., viewing the evidence in the light most favorable to the
government, and drawing all reasonable factual inferences in favor of the jury’s
verdict.” United States v. Beckles, 565 F.3d 832, 840 (11th Cir.), cert. denied, 130
S.Ct. 272 (2009). “It is not necessary that the evidence exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt, provided a reasonable trier of fact could find that the evidence
establishes guilt beyond a reasonable doubt.” United States v. Young, 906 F.2d
615, 618 (11th Cir. 1990). Furthermore, we are “bound by the jury’s credibility
determinations, and by its rejection of the inferences raised by the defendant.”
United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005).
To convict a defendant of being a convicted felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1), the government must prove beyond a
reasonable doubt three elements: “(1) that the defendant was a convicted felon, (2)
that the defendant was in knowing possession of a firearm, and (3) that the firearm
was in or affecting interstate commerce.” Beckles, 565 F.3d at 841 (internal
quotation marks omitted) (holding the evidence sufficient to establish the
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defendant’s knowing possession of a firearm beyond a reasonable doubt when,
among other things, the defendant admitted to a law enforcement officer that he
had acquired the shotgun for his protection and that officer’s testimony went
uncontradicted at trial). In considering the evidence, it is reasonable for the jury to
infer that a defendant’s false statement to police demonstrates a consciousness of
guilt. United States v. Jernigan, 341 F.3d 1273, 1279 (11th Cir. 2003).
In this case, the government presented sufficient evidence to prove beyond a
reasonable doubt that Vu was in knowing possession of a firearm -- the only
element that Vu has challenged on appeal. As the record shows, the government
presented Officer White’s testimony at trial that she saw Vu make a quick
movement toward his waistline and then throw an object, which she recognized as
a firearm, over the fence. Officer Bell subsequently discovered a loaded Bersa
.380 handgun on the opposite side of the fence from where Vu stood. When he
picked it up, it felt warm, as though it recently had been against a person’s body.
Officer White testified further that Vu admitted he used the gun for his protection
and that he threw it because he did not want to go back to jail. See Beckles, 565
F.3d at 841 (holding police officer’s uncontradicted testimony that defendant
admitted he acquired shotgun for protection sufficient to establish knowing
possession). In addition to Vu’s incriminating statement and Officers White’s and
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Bell’s observations, the jury was entitled to consider Vu’s initial false statement
that he had thrown a baseball bat over the fence as evidence of his knowing
possession of a firearm. See Jernigan, 341 F.3d at 1279.
On this record, the evidence is sufficient to conclude, beyond a reasonable
doubt, that Vu knowingly possessed a firearm. Although Vu asserts that the
evidence provides equal support to a theory of innocence as it does a theory of
guilt, “[i]t is not necessary that the evidence exclude every reasonable hypothesis
of innocence.” Young, 906 F.2d at 618. Furthermore, the jury declined to adopt
Vu’s alternate theories of innocence and we are bound by the jury’s rejection of
such inferences. See Peters, 403 F.3d at 1268.
AFFIRMED.
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