NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0412n.06
No. 09-1349 FILED
Jul 12, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
WALTER A. WILSON )
)
Defendant-Appellant. )
)
BEFORE: CLAY, ROGERS, and COOK, Circuit Judges.
ROGERS, Circuit Judge. Walter Antraell Wilson appeals his conviction and 235-month
sentence for being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and
924(e). Wilson was arrested after being apprehended a short distance from the scene where a man
police believed to be Wilson fired a gun into the air outside of a bar. Police recovered a weapon
approximately 150 feet away from where Wilson was arrested. Wilson was convicted after a jury
trial, but he argues that the district court erred in instructing the jury that it could consider evidence
of his alleged flight from the bar parking lot after the shooting as substantive evidence of Wilson’s
guilt. Wilson also argues that his sentence is unreasonable because the district court overemphasized
his criminal history and did not address his arguments for a downward variance. The evidence
presented at trial was sufficient to support a jury instruction on flight and the district court did not
abuse its discretion in sentencing Wilson.
No. 09-1349
United States v. Wilson
Around 2:00 A.M. on August 27, 2007, Officer Jeffrey Bouma of the Grand Rapids Police
Department was on patrol in his marked patrol car outside of a bar. Bouma positioned himself just
outside the parking lot to monitor the crowd at the bar, Julian’s II, because he was on duty in the area
and there had been problems at Julian’s II around closing time in the past, including several fights
and shootings. When the bar closed and the patrons began to leave, Bouma heard a disturbance
coming from the entrance. Bouma then moved his car to a different position where he had a better
view of the parking lot and entrance to Julian’s II, and he saw an altercation involving approximately
20 people that looked like it was about to break into a fight. At this time, Bouma saw a heavyset
African-American male standing just outside the large group in a gray sweatshirt, jeans, and a hat
raise his hand and fire what appeared to be a handgun in the air.
As soon as Bouma saw and heard the gun fire, the people who had been congregating in the
parking lot scattered. The individual who had fired the gun immediately turned and started moving
towards Andre Street, just south of Julian’s II. Bouma drove through the Julian’s II parking lot
towards Andre Street, but he lost eye contact with the shooter for an estimated 10 to 15 seconds.
When Bouma turned onto Andre Street, he turned on his spotlight to search for the suspect and
noticed someone matching the description of the person who fired the gun walking down the street
“very fast.” Bouma did not see anyone else on the street, and he turned on the flashing lights on his
patrol car, activating the video camera. Bouma then pulled over his vehicle to try to make contact
with the suspect, but Bouma realized that he had not put the car in park and the car was still rolling
when he exited, so he got back into the car and drove towards the suspect, who had continued to jog
away from Bouma. Bouma pulled his vehicle next to the suspect and ordered him at gunpoint to
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get on the ground. The suspect immediately complied, and he was arrested and identified as Walter
Wilson.
As Bouma was handcuffing Wilson, other officers arrived in response to Bouma’s initial call
for backup. Bouma did not discover a gun on Wilson, and Officer Eric Hornbacher started to search
the path that Wilson had traveled in search of a firearm. After three to five minutes, Hornbacher
located a revolver in the strip of grass between the sidewalk and Andre Street. Bouma read Wilson
his rights, but Wilson denied that he shot the gun and gave a description of the person he claimed
was the actual shooter. Approximately thirty minutes after Wilson’s arrest, a crime scene technician
photographed the area where the gun was found and performed tests to collect trace gunshot
evidence from Wilson.
At trial, the Government put on several witnesses as part of its case-in-chief. Bouma testified
to the facts described above, and the Government showed the jury a video taken from Bouma’s patrol
car after Bouma’s dashboard camera activated automatically when Bouma turned on his flashing
lights. Hornbacher estimated that he found the weapon between 100 and 150 feet away from the spot
where Wilson had been arrested. The crime scene technician, Brian Reed, testified that he found two
live rounds and one spent casing in the weapon. Reed also testified about the procedures he used
to check for fingerprints, which he did not find on the gun, and the process of collecting samples for
gunshot residue tests. Allison Murtha, a forensic scientist, then described the process of analyzing
the gunshot residue samples and testified that she had analyzed the samples that Reed collected from
Wilson. She testified that she found one “unique” gunshot residue particle on the back of Wilson’s
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left hand, one “consistent with” particle, and nine “single component particles.”1 Murtha also
testified that she found one unique particle on Wilson’s right hand, zero consistent with particles,
and fourteen single component particles. Based on these tests, Murtha concluded that Wilson either
had discharged a firearm, had been in close proximity to a firearm when it was discharged, or had
come into contact with an environment or surface that previously had gunshot residue on it. On
cross-examination, Murtha acknowledged that lab tests conducted on people who were tested
immediately after firing weapons in a firing range yielded hundreds or even thousands of unique
particles. A firearms expert also testified that Wilson was not charged with being a felon in
possession of a firearm because the expert could not determine whether the weapon allegedly used
was an antique, which would exclude it from the definition of firearm under federal law.
The Government also put on two witnesses who were in the Grand Rapids Courthouse
Marshal’s lockup with Wilson on July 15, 2008. One of the men, Anton Mann, testified that he
heard Wilson tell a man called Blunt that Wilson was in lockup because he had fired the gun at
Julian’s II. Mann said he heard Wilson describe leaving the scene and stashing the gun before the
police arrested him a block away. According to Mann, Wilson had stated that he gave the officer
a description of another man because Wilson felt the officer was not quite sure that Wilson was the
shooter and Wilson felt like he could beat the charge because there were a lot of people in the
1
Murtha testified that when a gun is fired, the weapon typically discharges particles
containing lead, antimony, and barium. Particles containing all three elements, which are unique to
gunshot residue, are called unique particles. Particles containing two of the elements are called
consistent with particles, and particles containing one of the elements are called single component
particles.
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No. 09-1349
United States v. Wilson
parking lot and the police could not pinpoint him as the shooter. Mann admitted that he had a
lengthy criminal history and stated on cross-examination that he was facing 30 years to life for
federal drug charges. Jonathan Bowman, known as “Blunt,” then testified that he had been friends
with Wilson for six or seven years, and that Bowman had been in lockup with Mann and Wilson as
Mann described. Bowman initially testified that he could not recall many of the details of what was
said, including whether Wilson had admitted firing the gun, but Bowman later stated on redirect
examination that “[t]he truth would be that my friend shot the gun, I guess.” Bowman also testified
that he was awaiting sentencing for crimes that included the possibility of a life sentence, and that
the terms of his plea agreement required him to cooperate with the Government.
Prior to closing arguments, Wilson objected to the proposed jury instruction on flight, which
was based on pattern jury instruction 7.14. Wilson argued that there were approximately 20 people
who scattered when the shots were fired and that Wilson stopped immediately when Bouma ordered.
The district court overruled the objection and stated, “The court believes there [are] sufficient facts
on the record that, if believed, justify the giving of the flight instruction.” During closing argument,
the Government argued that Wilson’s alleged flight was evidence of his guilt, stating that although
everybody ran when the shots were fired, Wilson continued to flee even after a police car with
flashing lights began to pursue him. Wilson’s counsel did not directly address the flight evidence
during closing argument.
After closing arguments, the court instructed the jury and included the following instruction
on flight:
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You have also heard testimony that after the crime was supposed to have been
committed the defendant fled the scene. If you believe the defendant fled the scene,
then you may consider this conduct, along with all the other evidence in deciding
whether the Government has proved beyond a reasonable doubt that he committed
the crime charged. This conduct may indicate that he thought he was guilty and was
trying to avoid punishment. On the other hand, sometimes an innocent person may
flee for some other reason.
After five hours of deliberations, the jury sent a note to the court stating, “At this time, the
jury cannot agree.” The parties agreed to have the court read the jury an “Allen charge” instructing
the members of the jury to continue their deliberations in a reasonable attempt to reach a verdict.
The jury then passed several more notes to the court, and Wilson’s counsel moved for a mistrial.
As the district court heard arguments on how to proceed, the jury sent a note requesting to see the
video of Wilson’s arrest taken from Bouma’s patrol car. Based on the last note, the court denied
Wilson’s motion for a mistrial. Less than an hour after watching the video, the jury returned a
verdict of guilty.
At sentencing, Wilson did not dispute the calculations in the Presentence Report, which
called for a mandatory minimum sentence of 15 years’ imprisonment, based on 18 U.S.C. § 924(e),
and a guideline sentence of 235 to 293 months based on a total offense level of 33 and a criminal
history category of VI. Wilson argued for a variance downward to the statutory minimum of 15
years, based on Wilson’s view that because no one was hurt, his possession of the ammunition was
relatively benign. Wilson also argued that his violent felony conviction for fleeing and eluding a
police officer caused a disproportionate increase in Wilson’s sentence by making him an armed
career criminal. The district court rejected Wilson’s arguments for a downward variance and
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characterized Wilson’s criminal history as “atrocious,” but the court sentenced Wilson to the low
end of the guidelines range, 235 months’ imprisonment. Wilson filed this timely appeal.
The district court did not abuse its discretion in instructing the jury that it could consider
Wilson’s alleged flight as substantive evidence that Wilson fired the gun. The probative value of
flight evidence generally “depends upon the degree of confidence with which four inferences can be
drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from
consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from
consciousness of guilt concerning the crime charged to actual guilt of the crime charged.” United
States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977); see United States v. Oliver, 397 F.3d 369, 376
(6th Cir. 2005). This case is atypical because Wilson did not object to the admission of evidence of
his alleged flight, as such an objection would have been fruitless; Wilson instead objected only to
the jury charge instructing the jury that the alleged flight could be considered as substantive evidence
of Wilson’s guilt. Beginning with the Fifth Circuit in Myers, courts have generally applied the same
four-part test to determine whether the evidence warrants a jury instruction on flight: “a flight
instruction is improper unless the evidence is sufficient to furnish reasonable support for all four of
the necessary inferences.” Myers, 550 F.2d at 1050. Here, there was sufficient evidence to allow
a reasonable jury to draw each of the required inferences. First, sufficient evidence existed to
support an inference that Wilson fled based on Bouma’s testimony that he had observed Wilson walk
very quickly away from the scene; the video taken from Bouma’s dashboard camera corroborated
Bouma’s testimony by showing Wilson jogging down the street away from the crime. Similarly,
there was sufficient evidence for a jury to infer that this flight was caused by guilt. Bouma testified
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that Wilson continued to move away from Bouma even after Bouma turned on his flashing lights and
pulled his patrol car next to Wilson. A jury would be able to infer from this evidence of
consciousness of guilt that Wilson was aware that his alleged act of firing a weapon into the air could
lead to his being charged with possession of ammunition. Finally, the jury could infer from this
evidence of consciousness of guilt in possession of ammunition that Wilson was actually guilty of
being a felon in possession of ammunition. Because there was reasonable evidentiary support for
each of the Myers inferences, the district court did not abuse its discretion in giving the flight
instruction.
The limited nature of the instruction also supports this conclusion. When relevant, flight
evidence is admissible as an admission by conduct. Oliver, 397 F.3d at 376.
The task for a District Court in determining whether to admit evidence of flight, thus,
is to determine whether the proffered evidence in fact tends to prove guilt and not
merely the terror that may befall an innocent person confronted by the criminal
justice system, and whether the evidence, even if probative of guilt, is so prejudicial
that its admission offends Fed. R. Evid. 403.
United States v. Dillon, 870 F.2d 1125, 1126 (6th Cir. 1989). Here, the limiting instructions in the
jury charge minimized the potential for prejudice to Wilson. The court stated that the jury could
consider evidence of flight if it believed that the defendant fled the scene, and cautioned that while
the evidence may indicate that the defendant thought he was guilty and was trying to avoid
punishment, “sometimes an innocent person may flee for some other reason.” The jury instructions
were appropriately limited, allowing the jury to consider evidence of flight, along with all the other
evidence, only if it believed that Wilson did in fact flee and that his flight was probative of his guilt.
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Because there was sufficient evidence to support an instruction on flight, the court need not
determine whether any error in offering such a limited jury instruction would be harmless.
Wilson argues that the district court should not have given the flight instruction because
Wilson merely left the scene of a shooting along with all the other witnesses, but this argument fails
because there was sufficient evidence for a jury to infer from Wilson’s actions that he was fleeing
out of guilt. Wilson’s argument that fleeing in the face of gunfire late at night in a high-crime area
is not remarkable implicates a lack of support for the second Myers inference—from flight to guilt.
Officer Bouma testified that there were approximately twenty people involved in an altercation, all
of whom scattered immediately after the gunshots. However, Bouma’s testimony also establishes
that Wilson continued to flee even after Bouma chased Wilson down another street in a patrol car
with flashing lights and a spotlight; therefore, the jury could have inferred from this evidence that
Bouma fled out of guilt, rather than fear of the real shooter. Moreover, that Wilson was motivated
to flee by guilt need not be the only permissible inference from the evidence presented at trial. In
United States v. Touchstone, 726 F.2d 1116, 1118-19 (6th Cir. 1984), this court affirmed the district
court’s decision to allow flight evidence and a jury instruction on flight when the defendants failed
to show up after the third day of trial, despite the fact that their continued presence at trial was not
required under Federal Rule of Criminal Procedure 43(b)(1). Because there was reasonable support
for an inference that Wilson fled the scene out of guilt, rather than fear of the actual shooter, the
district court did not abuse its discretion in giving the flight instruction.
Although Wilson also argues that the instruction should not have been allowed because there
was no connection between the flight and a law enforcement action, this argument fails because of
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the immediacy of the alleged flight in relation to the crime charged. Wilson mistakenly characterizes
the issue as one of a “linkage between the flight and some sort of law enforcement action,” but it is
on the threat of law enforcement that the inquiry turns. The question is not whether Wilson knew
he was being pursued by police, as Wilson suggests, but whether a jury could infer that Wilson fled
out of fear of prosecution for being a felon in possession of ammunition. The requirement that a jury
be able to draw an inference between flight and guilt of the crime charged is usually met when the
defendant flees immediately after the commission of the crime for which he is being prosecuted.
“For flight evidence to be admissible, the timing of flight must itself indicate the sudden onset or the
sudden increase of fear in the defendant’s mind that he or she will face apprehension for, accusation
of, or conviction of the crime charged.” Dillon, 870 F.2d at 1128. Firing a weapon into the air
outside a crowded bar could have triggered the onset of fear in Wilson’s mind that he would be
prosecuted for being a felon in possession of ammunition. Because the flight occurred immediately
after Wilson allegedly fired a gun into the air, an illegal act that would have led to Wilson’s arrest
and probable prosecution for being a felon in possession of ammunition, there was reasonable
evidentiary support for an inference that Wilson left the scene out of an increase of fear that he
would be charged with being a felon in possession. The district court correctly determined that the
evidence was sufficient to support a jury instruction on flight.
The district court also did not abuse its discretion in sentencing Wilson. The Government
argues that this court should review Wilson’s objections to his sentence under plain-error review
because Wilson failed to object to the sentence after it was announced. Wilson is not entitled to
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relief because even under the more lenient abuse-of-discretion standard, Wilson cannot show that
his sentence was procedurally or substantively unreasonable.
Wilson’s sentence was procedurally reasonable. “‘A sentence may be procedurally
unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to
consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge
deems an appropriate sentence without such required consideration.’” United States v. Jones, 489
F.3d 243, 250-51 (6th Cir. 2007) (quoting United States v. Ferguson, 456 F.3d 660, 664 (6th Cir.
2006)) (internal quotation marks omitted). Here, the sentencing transcript reflects that the district
court considered the § 3553(a) factors in determining the sentence, acknowledged that the guidelines
were advisory, and considered Wilson’s arguments for a downward variance. This is sufficient to
establish that Wilson’s sentence was procedurally reasonable.
Wilson argues that the district court erred in referring to Wilson’s “atrocious” criminal
history because there was no prior criminal history that had not already been counted in the
calculations of the guidelines range, but this argument clearly lacks merit. Title 18 U.S.C. §
3553(a)(1) instructs sentencing courts to consider “the history and characteristics of the defendant”
in imposing a sentence. “The guidelines represent the Sentencing Commission’s attempt to reconcile
the same § 3553(a) factors that district courts must consider in sentencing defendants.” United
States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc). Therefore, it is not only permissible,
but salutary that the district court would discuss the same criminal history that comprised Wilson’s
criminal history score. Wilson cites United States v. Matheny, 450 F.3d 633, 641 (6th Cir. 2006),
for the proposition that a sentencing judge should focus on prior criminal conduct that was not
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counted in the calculation of the criminal history score, but the court in that case was reviewing an
above-guidelines sentence. In explaining that two of Matheny’s previous convictions were not
counted in his criminal history score and stating that Matheny’s criminal history category understated
Matheny’s criminal history, the court was merely explaining the district court’s decision to impose
a 36-month sentence when the guidelines recommended a sentence not greater than 30 months’
imprisonment. Id. Nothing in Matheny supports Wilson’s claim that a sentencing court should focus
on criminal history not considered by the guidelines in determining a defendant’s sentence.
That the district court did not specifically address all of Wilson’s reasons for a downward
variance does not affect the procedural reasonableness of Wilson’s sentence. Wilson asserts that the
district court failed to consider his arguments that he defused a dangerous situation in breaking up
a crime, that Wilson’s previous conviction for flight from the police did not warrant an increase in
his sentence, and that the fifteen-year sentence Wilson requested represented “flat time” that Wilson
would serve in full. It is true that the record should reflect that a district court considered the
defendant’s arguments for a lower sentence, see Jones, 489 F.3d at 251, and the record here reflects
just that. The court addressed the circumstances surrounding Wilson’s possession of ammunition,
including the fact that Wilson fired a round of ammunition in the parking lot of a bar in a high-crime
area. The district court also acknowledged Wilson’s arguments regarding the increase of the
sentence as a result of the application of the Armed Career Criminal Act. Although the district court
did not specifically address Wilson’s argument that a 15-year sentence was appropriate because the
sentence would involve flat time, “a sentencing judge is not required to explicitly address every
mitigating argument that a defendant makes, particularly when those arguments are raised only in
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passing.” United States v. Madden, 515 F.3d 601, 611 (6th Cir. 2008). Wilson raised the flat-time
argument only in the context of the broader argument that the 15-year sentence would be sufficient
to punish Wilson given the relatively benign facts of the case. The district court considered this
argument and explained its reasons for rejecting the argument on the record.
Wilson’s sentence was also substantively reasonable. A sentence is substantively reasonable
if the length of the sentence is reasonable in light of the § 3553(a) factors. United States v. Tate, 516
F.3d 459, 469 (6th Cir. 2008). Because the district court sentenced Wilson to a within-guidelines
sentence, the sentence is entitled to a presumption of reasonableness. Vonner, 516 F.3d at 389.
Wilson’s arguments do not rebut the presumption that his within-guidelines sentence was reasonable.
A sentence is substantively unreasonable when a sentencing court fails to consider relevant
sentencing factors, gives an unreasonable amount of weight to a relevant factor, selects a sentence
arbitrarily, or bases the sentence on impermissible factors. Jones, 489 F.3d at 252. Because the
district court’s determination of Wilson’s sentence represented a careful consideration of the §
3553(a) factors, did not over-emphasize any particular factor, and did not rely on impermissible
reasons, Wilson’s sentence was substantively reasonable.
For these reasons, the judgment of the district court is affirmed.
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