NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0043n.06
No. 14-1439
FILED
Jan 13, 2015
UNITED STATES COURTS OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
)
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
CARL SHAW-VINCENT SIX, )
) OPINION
Defendant-Appellee. )
BEFORE: COLE, Chief Judge; KETHLEDGE, Circuit Judge; and OLIVER, District Judge.*
OLIVER, District Judge. Defendant-Appellant Carl Shaw-Vincent Six (“Defendant-
Appellant,” “Defendant,” “Appellant,” or “Six”), appeals his conviction in district court for
being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and denial of his Motion for
New Trial. For the reasons stated herein, we AFFIRM the judgment of the district court and the
district court’s denial of his Motion for New Trial.
I. FACTUAL AND PROCEDURAL HISTORY
Defendant was indicted on March 21, 2012, for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The Government alleged that Defendant was returning to his
neighborhood where a shooting had previously occurred when he was arrested and found in
possession of a nine-millimeter handgun. The Government also alleged that Defendant was
*
The Honorable Solomon Oliver, Jr., Chief Judge, United States District Court for the Northern
District of Ohio, sitting by designation.
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United States v. Six
returning to the neighborhood to retaliate against the gang who was responsible for the shooting.
Defendant maintains that he was not aware there were guns in his van. He asserts that he had
begun to drive his friend, Frank Natale (“Natale”), to the hospital because he thought Natale had
been injured during a shooting in front of Defendant’s mother’s house. When he realized that
Natale had not been shot, he decided to return to his mother’s house. Defendant asserts that all
the guns in the van belonged to Natale and were never in Defendant’s actual or constructive
possession.
The trial began on October 29, 2012, and lasted two days. The Government called three
witnesses: Monica Ann Bullock (“Bullock”), Officer Kevin Smith (“Officer Smith”), and ATF
Special Agent John Miller (“Agent Miller”). Bullock, the police dispatcher, was used to
authenticate a recording of a 911 call reporting a shooting just prior to Defendant’s arrest.
Officer Smith gave testimony describing Defendant’s arrest on the night of the offense.
He testified that he and his partner were dispatched in response to calls regarding a shooting. He
stated that the callers mentioned an “unknown male white above 5’10” wearing a black hat and
had [a] gun [sic]” driving a black minivan. He also testified that he pulled in front of the van,
partially blocking it, and asked Defendant if he had a driver’s license. According to Officer
Smith, Defendant replied “no” as Officer Smith was getting out of the vehicle. Officer Smith
testified that as he approached the van with his gun drawn, he saw someone “shuffling” in the
back of the van. That person was Natale, a passenger in the van. Officer Smith said that he then
saw a firearm sticking out of Natale’s pocket. He stated that he grabbed the firearm and gave it
to his partner after she handcuffed Natale. He also testified that, after Natale was handcuffed, he
opened the driver’s door and ordered Defendant out of the van. According to Officer Smith, that
is when he saw a nine-millimeter handgun on the driver’s seat. Agent Miller testified that the
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nine-millimeter gun recovered from the driver’s seat was manufactured in Florida and could not
have been manufactured in Michigan.
The Defense called three witnesses: Rolando Ortiz (“Ortiz”) and Curtis Vanderlaan
(“Vanderlaan”), who were both inside of Defendant’s mother’s (“Ms. Six”) house when the
alleged shooting occurred, and Defendant. Ortiz testified that he came out of the house after he
heard gunshots. He also testified that he saw Natale with two guns and that Natale ran and
jumped in the van in which Defendant was sleeping. Vanderlaan gave similar testimony about
the immediate aftermath of the shooting, indicating he saw Natale with two guns—one “long
gun” and one “short gun.” Vanderlaan also testified that he saw the arrest through the window of
Ms. Six’s house. According to Vanderlaan, Officer Smith pulled Defendant out of the driver’s
seat before approaching Natale, who was in the back of the van—not after Natale was
handcuffed, as Officer Smith testified.
Defendant testified that he was sleeping in a black minivan in the driveway of his
mother’s house when he was awakened by gunshots. According to Defendant, Natale jumped in
the van and told him to “drive, drive, drive, drive.” Defendant testified that he thought Natale
was shot so he started driving towards the hospital. He further testified that once he realized
Natale was not shot, he proceeded to drive back to his mother’s house where he was previously
parked. According to Defendant, he was on his way back to the house when Officer Smith and
his partner pulled in front of his vehicle and shined a bright light on him.
Consistent with Vanderlaan’s testimony, Defendant testified that Officer Smith pulled
him out of the car almost immediately. According to Defendant, he was already secured in the
back of one of the squad cars when the officers pulled Natale out of the van. Thereafter, the
officers searched Natale and the van. Defendant testified that he never had a gun in his
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possession or knew there were guns in the van. During cross-examination, Defendant testified
that he did not see any guns that night, but stated: “after I was detained, put in the vehicle, I seen
one officer like he said pull something and probably put it in his back pocket or out of [Natale]’s
pocket.” Also on cross-examination, Defendant testified that he saw the police “collect the guns
and go to the vehicles or to the back of their cruiser and secure them I guess from what they
say.” (emphasis added).
A jury found Defendant guilty on October 30, 2012. Defendant subsequently replaced
his counsel and filed a Motion for New Trial on January 24, 2013. Defendant set forth the
following arguments: (1) ineffective assistance of counsel; (2) prosecutorial misconduct;
(3) cumulative effect of errors; (4) verdict against the great weight of the evidence; and
(5) insufficient evidence as a matter of law. Defendant’s ineffective assistance of counsel claim
was based on his trial counsel’s, Amy Gierhart (“Gierhart”), failure to fully investigate a “res
gestae” witness, Ms. Six’s neighbor, Harry Irizarry (“Irizarry”). The district court held a hearing
regarding the Motion on April 23, 2013, at which Irizarry and Gierhart both testified. The
district court issued a written opinion denying the Motion in its entirety on October 18, 2013.
Defendant filed the current appeal on April 14, 2014.
II. ANALYSIS
Defendant raises five arguments on appeal. First, Defendant argues that he was denied
his right to effective assistance of counsel under the Sixth Amendment because his trial counsel
failed to fully investigate an exculpatory “res gestae” witness. Second, Defendant argues that
his right to due process, right to remain silent, and right to confrontation under the Fifth, Sixth,
and Fourteenth Amendments were denied due to prosecutorial misconduct. Third, Defendant
argues that the cumulative effect of the errors made during his trial produced a setting that was
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fundamentally unfair in violation of the Fifth and Fourteenth Amendments. Fourth, Defendant
argues that the district court violated his right to due process under the Fifth and Fourteenth
Amendments by denying Defendant’s Motion for New Trial. Finally, Defendant argues that his
right to due process under the Fifth and Fourteenth Amendments was violated by his conviction
upon evidence that was insufficient as a matter of law.
Though unclear, it appears that Defendant-Appellant is both directly appealing his
conviction and appealing the district court’s denial of his Motion for New Trial on all issues,
except one, the issue relating to the verdict being against the great weight of the evidence. That
issue is only being raised in respect to denial of his Motion for New Trial. Defendant-Appellant
does not appeal his conviction on the ground that the verdict was against the great weight of the
evidence, as this argument purely appeals the district court’s denial of his Motion for New Trial.
On direct appeal, this court reviews findings of law and mixed findings of law and fact de novo.
See United States v. Ball, 771 F.3d 964, 967 (6th Cir. 2014). This court reviews a district court’s
denial of a motion for new trial for abuse of discretion. United States v. Holder, 657 F.3d 322,
328 (6th Cir. 2011). Abuse of discretion exists where the district court relied on “clearly
erroneous findings of fact,” used an erroneous legal standard, or improperly applied the law. Id.
(quoting United States v. Pugh, 405 F.3d 390, 397 (6th Cir. 2005)).
A. Ineffective Assistance of Counsel
The district court denied Defendant’s ineffective assistance of counsel claim, holding that
Gierhart’s decision to not further investigate Irizarry or call him as a witness was a rational,
strategic decision. The court specifically found that Gierhart called and spoke with Irizarry and
concluded that Irizarry did not reveal that he knew anything about the issues she felt were critical
to the case, and that using Irizarry as a witness could possibly allow the introduction into
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evidence of 911 calls implicating Defendant in the earlier shooting. The court also found it
rational for Gierhart to decide that Irizarry’s close relationship to Defendant and Defendant’s
mother would have had a substantial effect on his believability. Given these facts, the court finds
that the district court did not abuse its discretion.
To prove ineffective assistance of counsel, Defendant must show that “counsel’s conduct
so undermined the proper functioning of the adversarial process that the trial cannot be relied on
as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To
warrant reversal of a conviction, Defendant must satisfy a two-part test. First, Defendant must
show that counsel was deficient and that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
Second, Defendant must show that counsel’s deficient representation prejudiced Defendant;
specifically, that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id.
In conducting the first part of the analysis, the Supreme Court has stated that the
appropriate “standard for attorney performance is that of reasonably effective assistance.” Id.
To show deficient representation, Defendant “must show that counsel’s representation fell below
an objective standard of reasonableness.” Id. at 688. Defendant must identify the specific acts
or omissions that allegedly violated the objective standard of reasonableness. Id. at 690.
Defendant “must overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. at 689 (internal quotation marks omitted).
In an ineffective assistance of counsel claim based on a failure to investigate, “counsel
has a duty to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Id. at 691. The reasonableness of counsel’s decisions
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may depend on the defendant’s statements or actions. Id. Where a defendant has given counsel
reason to believe that further investigation would be futile or harmful, the defendant cannot later
challenge counsel’s decision not to further investigate. Id.
Defendant argues that his trial counsel, Gierhart, was ineffective for failing to fully
investigate Irizarry, an important exculpatory witness who observed Defendant’s arrest.
Defendant contends that Irizarry could have corroborated Defendant’s and Vanderlaan’s version
of the arrest—that Defendant was pulled out of the car, arrested, handcuffed, and put inside the
squad car before the police ever found Natale or searched the van.
Gierhart asserts that the decision not to further investigate Irizarry was strategic.
Specifically, Gierhart testified at the evidentiary hearing that she called and spoke with Irizarry,
at which time she asked him an open-ended question to determine what he witnessed. According
to Gierhart, Irizarry only gave an account of hearing gun shots and seeing an additional dark van
speeding away afterwards. Irizarry made no mention of seeing Defendant’s arrest or police
search. Irizarry also told her that he was very close with Defendant’s mother and considered her
a sister and Defendant a nephew. Gierhart chose not to use Irizarry as a witness because she
believed that: (1) Irizarry’s potential testimony was irrelevant; (2) his potential testimony
regarding his observation of another van in the area at the time of the shooting might have
allowed the Government to introduce the contents of 911 calls implicating Defendant in the
shooting; and (3) Irizarry’s close relationship with Defendant and Defendant’s mother made
Irizarry easily impeachable.
Gierhart exercised reasonable judgment in deciding not to further investigate Irizarry or
call him as a witness. Unlike in Towns v. Smith, 395 F.3d 251 (6th Cir. 2005), where this court
found counsel’s assistance to be ineffective because defense counsel failed to call or speak to a
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witness who counsel knew may have had exculpatory information, Gierhart called and spoke
with Irizarry to reasonably determine whether Irizarry would be helpful to Defendant’s case. It
was based on information obtained during that call that Gierhart decided not to further
investigate Irizarry or call him as a witness. It is not the court’s duty to second-guess Gierhart’s
strategic decisions but, instead, to decide whether they were in fact strategic decisions and not
neglect. Based on the above circumstances and the reasoning provided by Gierhart, the court
finds Gierhart’s decision to be both strategic and reasonable.
Even if Gierhart’s failure to further investigate Irizarry was unreasonable, it did not
prejudice Defendant. To show prejudice, Defendant has to show more than the fact that
Gierhart’s errors had “some conceivable effect on the outcome of the proceeding.” Strickland,
466 U.S. at 693 (emphasis added). Rather, the Defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. Based on Irizarry’s testimony at the evidentiary hearing, his
testimony at trial would have been largely redundant of the accounts given by Vanderlaan and
Defendant. It is also not likely the jury would have found his testimony credible. First, Irizarry
provided conflicting accounts of Defendant’s arrest, including key details, such as whether the
police pulled in front or behind of Defendant’s van and whether he actually witnessed the entire
incident. Further, Irizarry had a close relationship with Defendant that could have been used to
impeach his credibility as a witness. Therefore, it is not reasonably probable that Irizarry’s
testimony would have changed the result of Defendant’s trial.
The court finds no clearly erroneous findings of fact, use of erroneous legal standards, or
improper application of law by the district court, and therefore, no abuse of discretion. Thus, this
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court denies Appellant’s claim of ineffective assistance of counsel and affirms the district court’s
denial of Defendant’s Motion for New Trial on this issue.
B. Prosecutorial Misconduct
Defendant argues that prosecutorial misconduct during his trial denied him of his right to
due process, right to remain silent, and right to confrontation under the Fifth, Sixth, and
Fourteenth Amendments. Generally, on direct appeal, this court reviews whether prosecutorial
misconduct requires reversal of a defendant’s conviction de novo. United States v. Tarwater,
308 F.3d 494, 511 (6th Cir. 2002). However, if the appellant failed to raise its prosecutorial
misconduct objection at trial, the appellate court reviews the claim for plain error. United States
v. Barnes, 278 F.3d 644, 646 (6th Cir. 2002).
Defendant-Appellant makes two prosecutorial misconduct arguments: (1) it was
prosecutorial misconduct for the Government to comment during closing arguments on
Defendant’s post-arrest silence; and (2) the Government elicited prejudicial testimony from
Defendant, Ortiz, and Vanderlaan by asking questions on cross-examination that implied that
Defendant, Ortiz, and Vanderlaan were gang members. Defendant made a prosecutorial
misconduct objection at trial to the Government’s mention of Defendant’s post-arrest silence.
However, Defendant raises his latter prosecutorial misconduct argument for the first time on
appeal.
1. Comments on Post-Arrest Silence
During closing arguments, counsel for the Government made the following statement:
And you heard the testimony of Mr. Six himself who doesn’t know
how this firearm ended up on his seat, no idea. And he’s
immediately pulled out of the van and he doesn’t see Officer Smith
even grab the gun. And you didn’t hear any testimony from Mr.
Six that when the gun was found, that he protested that’s not my
gun, where did you guys find that?
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There is no dispute that Defendant properly raised his prosecutorial-misconduct objection to
Government’s mention, in closing arguments, of Defendant’s post-arrest silence. In denying
Defendant’s Motion for New Trial, the district court held that the Government’s remarks were
not improper because they were used for impeachment purposes to rebut Defendant’s theory of
the case. The district court also held that, even if the remarks were unreasonable, they were not
flagrant because Defendant had the opportunity to relay his own version of events in his
testimony, which prevented any prejudice or jury confusion. This court finds the district court’s
reasoning for denying Defendant’s Motion well-taken and reaches a similar conclusion in the
court’s direct appeal analysis of Defendant’s conviction.
A direct appeal for prosecutorial misconduct is reviewed de novo. See United States v.
Carter, 236 F.3d 777, 783 (6th Cir. 2001). Under de novo review, the court must first determine
“whether the prosecutor’s conduct and remarks were improper.” Id. If so, the court must next
determine whether the conduct and remarks were flagrant and warrant reversal. Id. In
determining flagrancy, the court considers: “(1) whether the conduct and remarks of the
prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or
remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally
made; and (4) whether the evidence against the defendant was strong.” Id. If flagrant, the court
must reverse. United States v. Stover, 474 F.3d 904, 915 (6th Cir. 2007). If the prosecutor’s
conduct and remarks were not flagrant, the “[c]ourt will only reverse if ‘[(1)] proof of the
defendant’s guilt was not overwhelming, [(2)] the defendant objected to the improper remarks,
and [(3)] the court failed to cure the error with an admonishment to the jury.’ ” Id. (quoting
United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994)) (brackets omitted).
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Defendant argues that the Government’s mention of Defendant’s post-arrest silence was
an improper violation of the Fifth Amendment that “shifted the burden of proof to the Defendant
and violated Defendant’s right to confrontation.” (Appellant’s Br. at 11.) The Government
argues that mention of Defendant’s silence was a proper use of “pre-Miranda silence” to
impeach Defendant’s credibility as a witness and fairly reply to Defendant’s theory of the case.
(Appellee’s Br. at 26.) Under the Fifth Amendment, “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself . . . .” U.S. Const. amend. V. It is well-settled that
a defendant’s post-arrest, post-Miranda silence cannot be used at trial to substantively imply the
defendant’s guilt or impeach the defendant’s credibility as a witness. Doyle v. Ohio, 426 U.S.
610, 611 (1976); Griffin v. California, 380 U.S. 609, 615 (1965). This Circuit has also held that
it is a violation of the Fifth Amendment to use pre-arrest silence as substantive evidence of guilt.
Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000). However, a prosecutor may reference a
defendant’s post-arrest, pre-Miranda silence to impeach that defendant’s credibility on cross-
examination. Fletcher v. Weir, 455 U.S. 603, 605–07 (1982). A prosecutor may also reference a
defendant’s choice to remain silent if it is a fair reply to the defense’s theory of the case or legal
argument—such as the defense’s assertion that the defendant was not given the opportunity to
speak on his or her own behalf. Hall v. Vasbinder, 563 F.3d 222, 233 (6th Cir. 2009) (citing
United States v. Robinson, 485 U.S. 25, 34 (1988); Lockett v. Ohio, 438 U.S. 586, 595 (1978)).
Such reply is limited to the scope of the defendant’s theory or argument. Id. at 233.
Here, the Government did not mention Defendant’s post-arrest silence during cross-
examination and, instead, raised the issue for the first time during closing arguments. The
Government relies primarily on Seymour v. Walker, 224 F.3d 542, 559–60 (6th Cir. 2000), in
arguing that it is proper for the prosecutor to mention the defendant’s post-arrest, pre-Miranda
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silence to impeach the defendant’s credibility as a witness, even if done for the first time during
closing arguments. In Seymour, this court rejected a request for habeas corpus relief based on
prosecutorial misconduct. The court held that the prosecutor’s mention during closing
arguments of the defendant’s failure to claim self-defense at the time of the murder was proper as
an impeachment of defendant’s credibility as a witness, not proof of substantive guilt, and thus
did not warrant reversal. Seymour, 224 F.3d at 560.
Defendant objects to the following statement made by Government=s counsel during
closing argument: “And you didn’t hear any testimony from Mr. Six that when the gun was
found, that he protested that’s not my gun, where did you guys find that?” Defendant maintains
that this statement could not be used to attack his pre-Miranda silence because he testified that
he did not see any firearms that night and that he did not see the police seize any firearms from
his vehicle that night. However, the Government points to the fact that during cross-
examination, Six testified, “I seen them collect the guns and go to the vehicle or to the back of
their cruiser and secure them I guess from what they say.” Defendant counters by arguing that
his above-mentioned statement was only meant to indicate that he saw that something was being
recovered by the police and that he only found out after the fact that he had been watching the
police officers secure the guns. Defendant also suggests that before the Government could
attempt to impeach his testimony, it would have first had to ask him if he had made any
comment upon observing the guns being removed from his vehicle.
In light of the fact that Six was adamant in his testimony that he did not know that there
were guns in his vehicle and that his statement could be construed as an admission that he saw
the police remove guns from his vehicle, it was not improper for the Government to attempt to
impeach the Defendant by showing that when he saw the officers recover the guns, he showed no
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surprise or bewilderment. The statement made by the Government’s counsel regarding
Defendant’s silence was not made as a comment on substantive evidence but served to challenge
Defendant’s testimony that he did not know that guns were in his vehicle. In light of Seymour,
the court finds that such use of Defendant’s pre-Miranda silence was not improper as
impeachment. Further, as in Seymour, it was not improper for the Government’s counsel to raise
the issue in closing argument. There is no requirement that the Government’s counsel first ask
Defendant if he made any comments upon observing the guns being removed from the vehicle
during cross-examination as a predicate to the Government’s argument in closing.
Thus, this court finds no prosecutorial misconduct based on the Government’s remarks
during closing arguments, nor any abuse of discretion by the district court in denying
Defendant’s Motion for New Trial.
2. Implied Gang Affiliation During Cross-Examination
Because Defendant did not make a prosecutorial misconduct objection to the
Government’s gang-affiliation questioning at trial, the issue is reviewed for plain error. Barnes,
278 F.3d at 646. To succeed under a plain error review, the appellant must show that (1) an error
occurred during trial, (2) the error was plain, (3) the error “affected the defendant’s substantial
rights,” and (4) the error “seriously affected the fairness, integrity or public reputation of the
judicial proceedings.” Id. The term “ ‘[p]lain’ is synonymous with ‘clear’ or, equivalently,
‘obvious.’ ” United States v. Olano, 507 U.S. 725, 734 (1993).
Defendant argues that it was plain error for the Government to ask Ortiz, Vanderlaan, and
Defendant several questions about possible gang involvement, and for the Government to
attempt to impeach Ortiz’s denial of gang involvement by questioning him about pictures
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showing Ortiz making hand gestures. Defendant argues that such questioning elicited irrelevant
and prejudicial testimony. This court finds Defendant’s argument not to be well-taken.
First, the line of questioning was not irrelevant or improper. The Government’s theory of
the case was that Defendant and Natale were never headed to the hospital and, instead, were
seeking retaliation for a gang-related shooting that had just occurred. Establishing gang
involvement on the parts of the witnesses, including Defendant, was relevant to this theory.
Further, gang affiliation was also a possible motive for bias on behalf of the witnesses and could
be used to impeach their credibility.
Second, the photos of Ortiz were never admitted into evidence. Though the Government
did use them in an attempt to impeach Ortiz on the issue of his gang affiliation, the Government
also withdrew their request to submit them as evidence or show them to the jury when
Defendant’s counsel objected on the grounds that there was no expert witness to verify that the
hand gestures were gang signs. Because the jury did not see the photos, there is no indication
that they prejudiced the Defendant or had any substantial effect on the proceedings. Since a
plain-error analysis requires the error to be obvious or clear, this court finds that Defendant-
Appellant has failed to show plain error.
The court does not find the Government’s cross-examination on gang affiliation improper
or prejudicial. Thus, the court finds no prosecutorial misconduct.
C. Cumulative Effect of Errors
Defendant argues that the cumulative effects of ineffective assistance of counsel and the
Government’s improper conduct created a fundamentally unfair trial setting. The district court
rejected such argument in denying Defendant’s Motion for New Trial, holding that such analysis
was inapplicable because there were no errors, as required for there to have been a cumulative
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effect. This court reaches the same conclusion on direct appeal on the issue and, likewise, finds
no abuse of discretion by the district court.
To warrant reversal based on a cumulative effect of errors argument, the appellant “must
show that the combined effect of individually harmless errors was so prejudicial as to render his
trial fundamentally unfair.” United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004). The
court will only look at the effect of errors and will not consider the cumulative effect of non-
errors. Id. The cumulative effect of errors analysis is irrelevant where no individual ruling was
erroneous. United States v. Dietz, 577 F.3d 672, 697 (6th Cir. 2009). Because this court finds
that none of the district court’s individual rulings were erroneous, the cumulative effect analysis
is inapplicable here.
D. Denial of Motion for New Trial Based on Great Weight of the Evidence
This court reviews a district court’s denial of a motion for new trial for abuse of
discretion. United States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988). Defendant argues that
the district court abused its discretion in denying his Motion for New Trial because “the verdict
was against the great weight of the evidence.” (Appellant’s Br. at 40.) Specifically, Defendant
argues that Officer Smith’s testimony was unreliable and contradicted by the testimony of
Defendant and Vanderlaan. When reviewing a district court’s denial of a motion for a new trial
based on an argument for insufficient evidence, this court does not reweigh the evidence or
reassess the credibility of the witnesses, but instead, reviews the district court’s determination
that the evidence did not “preponderate heavily against the verdict.” Ashworth, 836 F.2d at 266
(internal quotation marks omitted). In this Circuit, “[a]n abuse of discretion exists only when the
reviewing court is firmly convinced that a mistake has been made.” United States v. Salisbury,
983 F.2d 1369, 1375 (6th Cir. 1993).
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Here, the district court did not abuse its discretion. The district court properly weighed
the evidence and assessed the credibility of witnesses to ensure that there was no miscarriage of
justice. The district court assessed the credibility of Officer Smith and determined that his
account of events was sufficient to create a question of fact for the jury to determine. Further,
the district court considered the weight of testimony by Defendant, Vanderlaan, and Ortiz and
determined that “it was not overwhelming.” Appellant’s argument in favor of reversal merely
contests the credibility of the witnesses and the weight that Officer Smith’s testimony should
have been given. Such is exactly the type of rehashing that this court does not conduct on
review.
Thus, this court finds that the district court did not abuse its discretion by denying
Defendant’s Motion for New Trial based on the great weight of the evidence.
E. Insufficient Evidence
This court reviews a motion to reverse a conviction for insufficiency of the evidence de
novo. United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008). This court must assess the
evidence “in the light most favorable to the prosecution to determine whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. This
court must also “resolve all issues of credibility in favor of the factfinder’s verdict.” United
States v. Wade, 318 F.3d 698, 701 (6th Cir. 2003) (quoting United States v. Salgado, 250 F.3d
438, 446 (6th Cir. 2001)) (internal quotation marks and brackets omitted). Circumstantial
evidence is given the same weight as direct evidence. United States v. Blakeney, 942 F.2d 1001,
1010 (6th Cir. 1991). Further, “[c]ircumstantial evidence alone is sufficient to sustain a
conviction and such evidence need not remove every reasonable hypothesis except that of guilt.”
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United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010) (quoting United States v.
Spearman, 186 F.3d 743, 746 (6th Cir. 1999)).
Defendant was convicted for being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). Such offense requires showing of the following elements: “(1) the defendant
had a previous felony conviction; (2) the defendant knowingly possessed the firearm specified in
the indictment; and (3) the firearm traveled in or affected interstate commerce.” Campbell, 549
F.3d at 374. Defendant conceded that he was a convict. Defendant argues that there was
insufficient evidence at trial for a reasonable finder of fact to conclude that Defendant knowingly
possessed the firearm or that the firearm affected interstate commerce. This court rejects both of
Defendant’s arguments.
First, there was sufficient evidence for the jury to find that Defendant knowingly
possessed the gun. The “possession” element of 18 U.S.C. § 922(g)(1) is satisfied by either
actual or constructive possession. United States v. Garcia, 758 F.3d 714, 718 (6th Cir. 2014).
While actual possession “requires that a defendant have immediate possession or control of the
firearm,” constructive possession still exists where the defendant does not have immediate
possession of the firearm but “knowingly has the power and intention at a given time to exercise
dominion and control over [the firearm], either directly or through others.” Id. (quoting
Campbell, 549 F.3d at 374) (internal quotation marks omitted). As detailed above, the
Government provided enough circumstantial evidence for the jury to reasonably find beyond a
reasonable doubt that Defendant had either actual or constructive possession of the gun. Officer
Smith testified that he found the gun in the place where Defendant was seated prior to being
removed from the car. This serves as circumstantial evidence allowing the reasonable inference
by the jury that Defendant knew the gun was there and likely placed it there himself. Further, the
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No. 14-1439
United States v. Six
Government provided evidence that the gun that was found in Defendant’s seat—a nine-
millimeter handgun—did not match the type of gun—a .22 caliber handgun—or any of the
ammunition that was found on Natale—.22 caliber bullets.
Second, the Government also provided sufficient evidence to show that the gun
Defendant possessed affected interstate commerce. It is well-settled that proof that the firearm
traveled through interstate commerce is sufficient to support the “affecting interstate commerce”
element of 18 U.S.C. § 922(g)(1). See Scarborough v. United States, 431 U.S. 563, 575 (1977).
At trial, Agent Miller testified that the firearm Defendant possessed was manufactured in
Florida, not Michigan. If that testimony was deemed credible by the jury, it was reasonable for
the jury to find that the firearm had traveled in interstate commerce, and thus, that element was
satisfied.
Because this court finds there was sufficient evidence at trial for the jury to find the
elements of 18 U.S.C. § 922(g)(1) beyond a reasonable doubt, we affirm Defendant’s conviction
and also find no abuse of discretion by the district court in denying Defendant’s Motion for New
Trial.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Defendant-Appellant’s judgment of conviction
and the district court’s denial of Defendant-Appellant’s Motion for New Trial.
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