NOT RECOMMENDED FOR PUBLICATION
File Name: 24a0068n.06
No. 22-2031
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Feb 20, 2024
KELLY L. STEPHENS, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
DWIGHT DESHAUN PERRY, )
)
OPINION
Defendant-Appellant. )
)
)
Before: SUTTON, Chief Judge; CLAY and BLOOMEKATZ, Circuit Judges.
CLAY, Circuit Judge. After a three-day trial, a jury convicted Defendant Dwight Perry
of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On appeal, Perry
raises multiple challenges to evidentiary rulings made by the district court during trial. He also
challenges the district court’s denial of his motion to suppress evidence gathered from a stop and
search of a car that led to the arrest for the instant offense. For the reasons stated below, we
AFFIRM Perry’s conviction.
I. BACKGROUND
A. Factual Background
Members of the Detroit Gang Intelligence Unit (“GIU”) within the Detroit Police
Department frequently monitor social media accounts for evidence of criminal or gang-related
activity. On February 17, 2020, Corporal Kenneth Valrie, a member of the GIU, saw a live video
showing Perry, and his co-Defendant, Creshaun McGee, handling an “AK-style” or “AR-style
No. 22-2031, United States v. Perry
pistol” in a vehicle driven by McGee. Trial Trans., R. 153, Page ID #2326–27. This video, posted
from an account with the name “Humble Trapper,” was a Facebook Live video, meaning
Defendants were recording themselves on a cell phone and posting it in real time to Facebook. Id.
at Page ID #2325.
After seeing the video go live, Valrie alerted other officers in the GIU, who watched the
video with him. Two other officers, Officers Bermudez and Hopp, recognized Perry and McGee
in the Facebook Live video, and Bermudez told the gathered officers that he knew Perry was a
convicted felon. The GIU officers also recognized certain landmarks outside of the car’s windows,
which indicated to them where the vehicle was traveling. Additionally, officers inferred that the
vehicle was a Chevrolet-branded car by an insignia on the steering wheel, and that it was an SUV
because the video showed a third row of seats in the car.
Bermudez and Hopp left the GIU office to look for the Defendants based on the identifying
information from the video. Eventually, undercover officers reported that they had seen two
individuals matching McGee’s and Perry’s descriptions in a white Chevrolet SUV, and that the
driver of the SUV committed a traffic violation. After receiving the location of the vehicle,
Bermudez and Hopp followed the Chevrolet SUV and eventually pulled it over.
Two women were now in the vehicle with McGee and Perry, and one of the women told
the officers that there was a gun in the car. Hopp saw a gun bag in the third-row seat of the car,
which, when opened, contained an AK-style handgun that appeared to be the same gun as the one
shown in the Facebook Live video. The officers arrested McGee and Perry for being felons in
possession of a firearm.
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B. Procedural History
On August 5, 2020, a grand jury indictment charged Perry and McGee each with one count
of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
1. Motion to Suppress
Before trial, McGee filed a motion to suppress the evidence gathered during the traffic
stop, arguing that the stop of the car and the search of the bag in which the gun was found violated
the Fourth Amendment. Perry joined this motion. After briefing by both sides and a two-day
evidentiary hearing, the district court denied the motion to suppress in full. It found that the
officers had legal authority to stop the car under two theories. First, it concluded that the officers
had a reasonable suspicion that Perry had committed a felony based on the Facebook Live video,
Bermudez’s knowledge of Perry’s felon status, and the undercover officers’ confirmation that two
of the people in the white Chevrolet SUV matched the description of Perry and McGee from the
Facebook Live video. Second, it concluded that the officers had probable cause to believe that
McGee had committed a traffic violation based on the undercover officers’ report.
The district court then concluded that the warrantless search of the car and the gun bag was
lawful pursuant to four independent theories. First, it concluded that the search constituted a valid
protective search because the officers reasonably believed that Defendants were dangerous and
could have gained control of the gun before they were arrested. Second, the court concluded that
the search was valid pursuant to the automobile exception to the warrant requirement because the
officers had probable cause to believe that the gun depicted in the Facebook Live video was in the
car. Third, the district court found that the search was a valid search incident to arrest, as both
Defendants were unsecured and within reach of the gun at the time of the search. Fourth, and
finally, the district court found that the search was valid because the gun would have been
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inevitably discovered because the car was impounded after the stop and subjected to an inventory
search.
2. Jury Trial
At trial, both parties stipulated that the gun recovered from the car was an operative firearm
within the meaning of 18 U.S.C. §§ 921(a)(3) and 922(g). The parties also stipulated that Perry
knew that he had a prior felony conviction and that the gun recovered traveled in and affected
interstate commerce. Thus, the sole element at issue in the trial was whether Perry possessed the
firearm. Defendants primarily attempted to introduce reasonable doubt as to whether the gun from
the Facebook Live video was the same as the gun recovered from the car.
The government called five witnesses. First, Valrie testified how he discovered the
Facebook Live video, and the government introduced the video into evidence through his
testimony. Then, Officers Bermudez, Hopp, and Humes, all members of the GIU who stopped the
car driven by McGee and recovered the firearm, testified to how they watched the Facebook Live
video, and how they eventually apprehended the Defendants. The government introduced the gun
recovered from the car into evidence, and Hopp testified to the similarities between this gun and
the gun in the Facebook Live video. Finally, the government called Agent Joshua McClean, the
Alcohol, Tobacco, Firearms, and Explosives (“ATF”) agent who had verified that the gun
recovered from the car was operable. He too testified extensively to the similarities between the
gun recovered from the car and the gun depicted in the Facebook Live video. During jury
deliberations, the jurors asked to see and were provided with the gun recovered from the car.
The jury found both Defendants guilty of being felons in possession of a firearm. The
district court sentenced Perry to 64 months’ incarceration, and Perry timely appealed.
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II. DISCUSSION
On appeal, Perry raises multiple challenges to various portions of testimony admitted at
trial. Specifically, he challenges the admission of testimony that implied he was affiliated with a
gang known as Chedda Av. He also argues that testimony about his prior encounter with the police
violated Rule 404(b) of the Federal Rules of Evidence, and that the cumulative effect of all asserted
errors denied him a fair trial. Perry also challenges the district court’s denial of his motion to
suppress evidence—namely, the firearm at issue—from the search of the car.
A. Gang-Affiliation Testimony
Perry concedes that he did not challenge the admission of gang-affiliation testimony in the
district court. When a defendant fails to object to the admission of testimony in the district court,
we review the claim on appeal for plain error. See United States v. Collins, 799 F.3d 554, 588 (6th
Cir. 2015); United States v. Willoughby, 742 F.3d 229, 236 (6th Cir. 2014). To establish that
admitted testimony constituted plain error, the defendant must show “(1) there is an error; (2) the
error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the
appellant’s substantial rights, which in the ordinary case means it affected the outcome of the
district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” United States v. Marcus, 560 U.S. 258, 262 (2010) (alteration
in original) (internal quotation marks omitted) (quoting Puckett v. United States, 556 U.S. 129,
135 (2009)). Plain error review makes this Court’s “review . . . doubly deferential: we must
determine, in essence, that the district court obviously abused its discretion” when admitting the
challenged testimony. Willoughby, 742 F.3d at 238.
Perry contends that the district court plainly erred by admitting two portions of testimony
and a statement made by the government in its closing argument, which he claims improperly
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No. 22-2031, United States v. Perry
conveyed Perry’s affiliation with the Chedda Av gang. First, he challenges multiple statements
made by Corporal Valrie, the original officer who discovered the Facebook Live video. When
describing how he discovered the Facebook Live video, he stated that he “had seen and had intel
of” the “individual . . . controlling” the “Humble Trapper” Facebook page “being involved with a
violent gang called Chedda Av.” Trial Trans., R. 153, Page ID #2325–26. He also testified that
he invited other officers to watch the video because Perry and McGee were known to be gang
associates or members. He further confirmed that Perry was in the GIU’s gang database, which
tells the GIU “whether a person is either a known gang member or an associate of a gang.” Id. at
Page ID #2329.
Perry also challenges statements made by Valrie describing the Facebook Live video and
the still photos taken from the video. The video and photos were primarily introduced through
Valrie’s testimony, so his explanatory testimony was given just after the jury had seen the video
or photos themselves. The video depicted McGee wearing a face mask that said, “RIP Gutta,” and
Valrie told the jury that Gutta was a member of the Chedda Av gang who had been killed. Id. at
Page ID #2332–33. Valrie also told the jury that the video showed Perry “shout[ing] out the gang
Chedda Av and sa[ying], ‘gang-gang.’” Id. at Page ID #2340. He further testified that a hand
gesture made by Perry in the video was a “gang sign[] for Chedda Av.” Id.
Second, Perry challenges testimony from Officer Humes, a member of the GIU who
participated in the stop of the Chevrolet SUV. Specifically, when describing his position in the
GIU, Humes testified that he focused on crimes “relating to gang activity . . . .” Trial Trans., R.
154, Page ID #2488. Lastly, Perry claims that the government’s closing argument reinforced
testimony that Perry had prior police involvement, stating that Perry and McGee were apprehended
in “an area where prior police contact with Mr. Perry occurred.” Trial Trans., R. 155, Page ID
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No. 22-2031, United States v. Perry
#2573. In closing arguments, the government also reiterated that officers had testified at trial that
they knew Perry and McGee. The government did not reference Perry’s gang affiliation in its
closing arguments, so we will instead address these statements when discussing Perry’s challenges
to the admission of prior police contact evidence.
Perry argues that the admission of this testimony constituted plain error in four ways.
Specifically, he claims that the described testimony was irrelevant, that it was substantially more
prejudicial than probative, that its admission violated Rule 404(b) of the Federal Rules of
Evidence, and that the testimony lacked foundation. We will consider all four arguments in turn.
1. Relevance
Perry first argues that the district court plainly erred by admitting this gang-affiliation
testimony because it was irrelevant to the charged conduct of being a felon in possession of a
firearm. Evidence is relevant if “it has any tendency to make a fact” that “is of consequence in
determining the action . . . more or less probable than it would be without the evidence.” Fed. R.
Evid. 401. The standard is “extremely liberal,” as relevant evidence merely needs to “advance the
ball.” Dortch v. Fowler, 588 F.3d 396, 400–01 (6th Cir. 2009).
All of the challenged testimony is relevant background evidence. Background evidence
typically “is a prelude to the charged offense, is directly probative of the charged offense, arises
from the same events as the charged offense, forms an integral part of a witness’s testimony, or
completes the story of the charged offense.” United States v. Hardy, 228 F.3d 745, 748 (6th Cir.
2000). Even more specifically, law enforcement officers “are permitted to testify regarding how
they became involved in a case, what allegations they were investigating, who the suspects were,
and similar background information.” United States v. Young, 847 F.3d 328, 351 (6th Cir. 2017)
(citing United States v. Kilpatrick, 798 F.3d 365, 381 (6th Cir. 2015)); see also United States v.
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Gibbs, 506 F.3d 479, 484 (6th Cir. 2007) (concluding that law enforcement officers’ testimony
was relevant to describe how they came to investigate the defendant).
Much of the challenged testimony describes how and why law enforcement viewed the
Facebook Live page and investigated Perry in the first place. For example, Valrie’s statements
describing that the person who controlled the “Humble Trapper” page was involved with Chedda
Av, that he called other officers over to watch the video because it depicted gang members with a
gun, and that Perry was in the GIU’s gang database were all relevant to describing the officer’s
initial investigation. Furthermore, Humes’ description of what crimes the GIU investigated was
relevant to explaining his and other officers’ roles in the GIU.
Valrie’s statements describing the Facebook Live video were also relevant as background
evidence that “complete[d] the story of the charged offense.” Hardy, 228 F.3d at 748. As we have
acknowledged, “[t]he purpose of background evidence is to put the charges in the appropriate
context. It would be exceedingly difficult for witnesses to relay a story without referencing . . .
contemporaneous acts that are incidental but necessary to telling a cogent story.” United States v.
Gibbs, 797 F.3d 416, 424 (6th Cir. 2015). Background evidence may also be admitted because
witnesses who are restricted to testifying in a “sanitized” manner may lose credibility with the
jury. Id. (citation omitted); see also Old Chief v. United States, 519 U.S. 172, 188–89 (1997);
United States v. Peete, 781 F. App’x 427, 433 (6th Cir. 2019).
Valrie’s testimony describing the Facebook Live video is relevant context for arguably the
most probative piece of evidence offered by the government—the Facebook Live video. It
provides context for Perry’s own statements and hand gesture, as well as McGee’s choice of
clothing after the jury watched the video for itself. Cf. United States v. Payne-Owens, 845 F.3d
868, 872 (8th Cir. 2017) (“[T]he generic and fleeting testimony by the government’s witness about
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No. 22-2031, United States v. Perry
the [gang], the significance of the hand gesture, and defining the slang words used in the Facebook
messages contributed to the narrative of the charged crime. The district court correctly
characterized this evidence as intrinsic because it helped ‘provide a total picture.’”). Notably,
Perry has not challenged the video’s admission on appeal, but only the testimony describing it.
Because all of Perry’s challenged testimony was relevant background information describing the
basis for the investigation or Perry’s own statements made during the commission of the offense,
it easily surpasses the low bar of relevancy, and the district court did not plainly err in admitting
it.
2. Probative Value and Prejudicial Effect
Relevant evidence may nevertheless be excluded if “its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. “Unfair prejudice does not
mean the damage to a defendant’s case that results from the legitimate probative force of the
evidence; rather it refers to evidence which tends to suggest [a] decision on an improper basis.”
United States v. Newsom, 452 F.3d 593, 603 (6th Cir. 2006) (quoting United States v. Bonds, 12
F.3d 540, 567 (6th Cir. 1993)) (alteration in original). When evaluating a challenge under Rule
403, our review “is limited in that we must look at the evidence in ‘the light most favorable to its
proponent, maximizing its probative value and minimizing its prejudicial effect.’” Id. (quoting
Bonds, 12 F.3d at 567).
As we concluded above, the challenged testimony provided probative background
information about the investigation and about Perry’s statements in the video. In weighing this
probative value against potential prejudice, we have cautioned that gang-affiliation evidence can
have a prejudicial effect because “most jurors are likely to look unfavorably upon a defendant’s
membership in a street gang.” United States v. Sherrill, 972 F.3d 752, 765 (6th Cir. 2020) (quoting
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United States v. Tolbert, 8 F. App’x 372, 378 (6th Cir. 2001)). Even still, in this case, Perry has
failed to show that the district court plainly erred in admitting the challenged gang-affiliation
testimony.
First, because much of the challenged testimony enhanced the witnesses’ credibility with
the jury, and because “defendants are not entitled to a ‘sanitized’ recounting of the facts,” the
district court did not plainly err in admitting it. Gibbs, 797 F.3d at 424 (citation omitted). To be
sure, the government could have limited its references to gang affiliation when describing why the
officers watched the Facebook Live video and targeted Perry for their investigation. But
“prosecutors are not restricted to proving only discrete elements of a crime in such a way that they
would be unable to offer the jury a natural narrative of events.” Id. (citation omitted). And
background evidence is admissible to allow the witness to provide this full narrative for the jury.
See Old Chief, 519 U.S. at 188–89; Peete, 781 F. App’x at 433. Thus, even if the government
could have presented this background evidence without as many explicit references to Perry’s gang
affiliation, it was not required to do so, and any error in admitting it was not “clear or obvious.”
Marcus, 560 U.S. at 262 (quoting Puckett, 556 U.S. at 135).
For similar reasons, Perry has failed to show that the district court plainly erred in admitting
Valrie’s testimony describing the Facebook Live video. Recall that the jury heard this testimony
just after it watched the Facebook Live video itself. Restricting Valrie’s testimony to a sanitized
account of the video that did not mention the gang references in the video itself could call Valrie’s
credibility into question. See Peete, 781 F. App’x at 433. Without fully describing the video
exactly as the jury saw it, “the effect may [have] be[en] like saying, ‘never mind what’s behind
the door,’ and jurors may well [have] wonder[ed] what they [were] being kept from knowing.”
Old Chief, 519 U.S. at 189. Because a full description of the video’s contents likely maintained
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Valrie’s credibility before the jury, the prejudicial effect of his testimony did not substantially
outweigh its probative value.
Second, because Perry does not challenge the multiple other references to his gang
affiliation made in the trial, the jury would have had knowledge of his gang-affiliation even absent
the challenged testimony. For example, Perry challenges Humes’ statement that the GIU
investigates crimes “relating to gang activity.” Trial Trans., R. 154, Page ID #2488. But Perry
does not challenge other law enforcement officers’ testimony that they were members of the
GIU—the Gang Intelligence Unit—or descriptions of the GIU’s role in investigating “violent
gangs.” Trial Trans., R. 153, Page ID #2323. And, again, Perry does not challenge the admission
of the Facebook Live video itself, which depicted him making gestures and comments affiliating
him with the Chedda Av gang. Furthermore, the government made no reference to Perry’s gang
affiliation during its closing arguments, minimizing any prejudicial effect that the gang-related
testimony could have had on jury deliberations. Cf. Newsom, 452 F.3d at 602. Accordingly, any
prejudice stemming from this additional background information did not substantially outweigh
the testimony’s probative value, given what else was before the jury, and the district court did not
plainly err by admitting this testimony.
Third, and most importantly, Perry has not shown that any of the challenged testimony
affected the outcome of his trial as he is required to do when we review for plain error. See Marcus,
560 U.S. at 262. The government put forward extensive evidence to support Perry’s conviction of
being a felon in possession of a firearm. The central issue at trial was whether the gun depicted in
the Facebook Live video was the same gun as the one recovered from the Chevrolet SUV. The
government showed the jury the Facebook Live video, which depicted the gun in Perry’s
possession. After officers saw the video, it took only a few hours for them to find Perry and McGee
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No. 22-2031, United States v. Perry
in what appeared to be the same car as the video with the firearm in their possession. The jury
also observed the gun at trial, and even requested to examine it during deliberations. And ATF
Agent McLean and Officer Hopp testified extensively as to the similarities between the gun
depicted in the Facebook Live video and the gun recovered from the car. Given the strong evidence
in support of Perry’s conviction, Perry has not shown that the gang-related testimony admitted at
trial, even if in error, “affected the outcome of the district court proceedings.” Marcus, 560 U.S.
at 262 (quoting Puckett, 556 U.S. at 135).
3. Rule 404(b)
Perry also argues that the challenged testimony related to his gang membership violated
Rule 404(b) of the Federal Rules of Evidence. Rule 404(b)(1) provides that “[e]vidence of any
other crime, wrong, or act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character.” Although Rule 404(b)(2)
contemplates permitted uses for this testimony, Rule 404(b)(3) requires that the government
provide notice to the defense of any evidence that the government seeks to admit for these
permitted purposes. In this case, Perry argues that the challenged testimony constituted
impermissible character evidence, and that, even if there were a permitted purpose, no notice was
given to the defense that the government would be using this evidence.
However, background evidence does not implicate Rule 404(b). See Hardy, 228 F.3d at
748. For the reasons discussed above, the district court properly admitted the challenged testimony
as background evidence as it either described how law enforcement officers came to investigate
Perry or provides context for Perry’s own statements and actions taken during the commission of
the instant offense. Because the testimony did not implicate Rule 404(b), the lack of notice did
not require exclusion of the testimony. See United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir.
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1995) (“Rule 404(b) is not implicated when the other crimes or wrongs evidence is part of a
continuing pattern of illegal activity. When that circumstance applies, the government has no duty
to disclose the other crimes or wrongs evidence.”). Accordingly, the district court did not plainly
err by admitting this testimony because it did not violate Rule 404(b) to do so.
4. Foundation
Finally, Perry contends that the law enforcement officers failed to establish the proper
foundational knowledge to testify that Perry was affiliated with a gang. Rule 602 of the Federal
Rules of Evidence requires a witness to have personal knowledge of the matters about which he or
she testifies. The required showing to satisfy Rule 602 is “low,” and this Court has stated that
“[t]estimony should not be excluded for lack of personal knowledge unless no reasonable juror
could believe that the witness had the ability and opportunity to perceive the event that he testifies
about.” United States v. Franklin, 415 F.3d 537, 549 (6th Cir. 2005) (quoting United States v.
Hickey, 917 F.2d 901, 904 (6th Cir. 1990)).
On appeal, Perry does not specify which officers’ testimony he challenges as lacking
foundation, but only Valrie’s testimony explicitly identified him as a member of a gang. However,
Valrie’s testimony contained specific facts establishing his personal knowledge of Perry’s gang
affiliation. He identified himself as an officer in the Detroit Gang Intelligence Unit, and stated
that Perry was in the GIU’s gang intelligence database, which tells officers “whether a person is
either a known gang member or an associate of a gang.” Trial Trans., R. 153, Page ID #2329; see
United States v. Martinez, 832 F. App’x 432, 434–35 (6th Cir. 2020) (concluding that a prison
investigator could testify to his personal knowledge of gangs in the prison). Furthermore, to the
extent that Perry challenges Valrie’s testimony describing Perry’s statements and hand gestures
related to Chedda Av in the Facebook Live video, these too did not lack foundation, as Valrie
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watched the video himself and testified that he knew what the hand gesture meant. Cf. United
States v. Lucas, No. 19-6390, 2021 WL 4099241, at *18 (6th Cir. Sept. 9, 2021) (“[The witness’]
testimony as to facts about the gang’s history and symbology remain[s] inadmissible except to the
extent that he personally observed them.”). Thus, the district court did not commit plain error by
admitting this testimony.
B. Prior Police Encounter Testimony
Contrary to the gang-affiliation testimony, Perry claims that he preserved his challenge to
contested testimony describing his prior police contacts. However, his trial counsel only objected
to the relevance of this testimony, and, on appeal, he argues only that the testimony constituted
impermissible character evidence, in violation of Fed. R. Evid. 404(b) and that its prejudicial effect
substantially outweighed its probative value, in violation of Fed. R. Evid. 403. Because he did not
object on these bases in the district court, we also review the admission of this testimony for plain
error. See United States v. Ramer, 883 F.3d 659, 679 (6th Cir. 2018).
Perry contends that the district court impermissibly admitted testimony from Officer
Bermudez, the officer who identified Perry to other officers as a felon, about Bermudez’s prior
encounter with Perry. Specifically, when describing how he recognized Perry from the Facebook
Live video, Bermudez stated that he recognized Perry “[f]rom a previous encounter back in 2019
. . . .” Trial Trans., R. 153, Page ID #2380. When asked to describe this previous encounter,
Bermudez stated that “[i]t was a street investigation, impeding vehicular traffic.” Id. Bermudez
also testified that he received Perry’s name from this investigation.
The government argues that this testimony did not violate Rule 404(b) because Perry’s
prior police contact was not a “wrong[] or other act” as defined by the Rule. The encounter could
qualify as a prior “wrong[]” under Rule 404(b). This rule does not require admission of a prior
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crime, but “applies to the admission of evidence of ‘any conduct of the defendant which may bear
adversely on the jury’s judgment of his character.’” United States v. Jobson, 102 F.3d 214, 219
n.4 (6th Cir. 1996) (quoting United States v. Cooper, 577 F.2d 1079, 1087–88 (6th Cir. 1978)).
Although Bermudez did not specify whether he arrested Perry during this prior incident, and
although impeding traffic is not a serious crime, a jury may have made a negative inference about
Perry’s character because he had prior contact with law enforcement that led to Perry giving his
name in connection with an investigation.
Nevertheless, even if the testimony could fall under Rule 404(b)’s definition of a “wrong[]
or other act,” it does not fall into Rule 404(b)’s general prohibition on the admission of evidence
because it too constituted proper background evidence. See Hardy, 228 F.3d at 748. Bermudez
knew Perry from a prior encounter, and was able to identify him on the Facebook Live video.
Valrie had also previously testified that Bermudez knew Perry was a felon, providing further
context for why the officers sought out Perry and McGee. See United States v. Thomas, 223 F.
App’x 447, 455 (6th Cir. 2007) (finding an officer’s prior encounters with defendant admissible
as background evidence when the encounters explained how the officer recognized the defendant
in surveillance video and why law enforcement focused their investigation on the defendant).
Finally, Perry argues that, even if the testimony was properly admitted, its prejudicial effect
substantially outweighed its probative value, violating Rule 403. As the government correctly
argues, the prejudicial effect of this testimony was extremely limited. To show how he could
identify Perry, Bermudez testified that he had previously investigated Perry for the minor civil
infraction of impeding traffic and that he had run Perry’s name in the course of this investigation.
See Mich. Comp. Laws § 257.676b. Further, Perry has not shown that any mention of his prior
civil infraction “affected the outcome of the district court proceedings,” particularly given his
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stipulation to a prior felony. Marcus, 560 U.S. at 262 (quoting Puckett, 556 U.S. at 135). And,
because the testimony itself was not substantially more prejudicial than probative, the
government’s reference to the testimony during its closing argument did not otherwise prejudice
Perry. Because the testimony did not violate Rules 403 or 404(b), the district court did not plainly
err in admitting testimony relating to Perry’s prior police contact.
C. Cumulative Error
Finally, Perry argues that the cumulative effect of the errors charged above requires
reversal. To prevail on this claim, Perry must show that the cumulative effect of any errors made
by the district court “produce[d] a trial setting that [was] fundamentally unfair” and amounted to
a “deprivation of due process.” United States v. Blackwell, 459 F.3d 739, 770 (6th Cir. 2006)
(quoting Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983)). But because the district court did
not plainly err in admitting any of the challenged testimony, the cumulative error doctrine does
not merit reversal. See United States v. Sypher, 684 F.3d 622, 628 (6th Cir. 2012) (“Where, as
here, no individual ruling has been shown to be erroneous, there is no ‘error’ to consider, and the
cumulative error doctrine does not warrant reversal.” (quoting United States v. Deitz, 577 F.3d
672, 697 (6th Cir. 2009))).
Even if the district court did plainly err on any of the above charges, the cumulative effect
of them did not deprive Perry of due process. As stated, the challenged references to Perry’s gang-
affiliation were brief, not emphasized by the government in its closing arguments, and their
exclusion would not have eliminated all gang-related evidence from the trial. The challenged
testimony about Perry’s prior police encounter only referenced his investigation for a civil
infraction, and the jury was already aware that Perry had a prior felony conviction. Most
importantly, as discussed above, the government put forward exhaustive evidence of Perry’s
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possession of an operable firearm. Accordingly, even if Perry had shown that the district court
plainly erred in admitting some of the challenged testimony, the cumulative effect of the errors did
not render Perry’s trial fundamentally unfair.
D. Motion to Suppress
Separate from his evidentiary arguments, Perry also challenges the district court’s denial
of his motion to suppress evidence gathered from the stop and search of the Chevrolet SUV. On
this charge of error, Perry’s appellate briefing presents a fundamental problem: the district court
denied the motion to suppress for multiple independent reasons, and Perry only challenges some
of these reasons on appeal. Recall that the district court upheld the stop of the car based on a
finding that the officers had a reasonable suspicion to believe that Perry committed a felony, and
probable cause to believe that McGee committed a traffic violation. On appeal, Perry only contests
the latter conclusion. And, in upholding the warrantless search of the car, the district court found
that (1) it was a valid protective search; (2) the search complied with the automobile exception to
the warrant requirement; (3) it was a valid search incident to arrest; and (4) the firearm would have
been inevitably discovered. On appeal, Perry fails to challenge the district court’s first independent
conclusion—that the warrantless search of the car was a valid protective search. Thus, even if we
were to agree with Perry on some of his arguments, no ruling from this Court could reverse the
denial of his motion to suppress because the district court’s unchallenged reasons for denying the
motion would still stand.
This Court has repeatedly held that a litigant’s failure to address every independent ground
on which the district court rests its decision renders the judgment unreviewable. See Stewart v.
IHT Ins. Agency Grp., LLC, 990 F.3d 455, 456 (6th Cir. 2021) (“When a district court provides
two alternative grounds for its decision, the losing party must challenge each ground on appeal to
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No. 22-2031, United States v. Perry
change the outcome.”); Hardrick v. City of Detroit, 876 F.3d 238, 244 (6th Cir. 2017) (“Appellate
courts ‘review[] judgments, not opinions.’”) (alteration in original) (citation omitted). Without
challenging each independent basis for the district court’s holding, litigants abandon challenging
arguments that independently sustain the judgment’s validity. Stewart, 990 F. 3d at 457. This
means that any relief we grant cannot change the ultimate outcome. Id. For example, we have
specifically found that an appellant who did not challenge every independent ground for a denial
of a motion to suppress could not prevail on his appeal. See United States v. Fox, 363 F. App’x
375, 377 (6th Cir. 2010) (“Since the district court’s ruling on the good faith exception sufficed to
justify its denial of Fox’s motion to suppress, Fox’s failure to appeal that aspect of the court’s
decision means the denial of the motion still stands.”). Similarly, by failing to challenge every
independent basis for the district court’s denial of his motion to suppress, Perry’s challenge on
appeal cannot succeed.
III. CONCLUSION
For the reasons stated above, we AFFIRM Perry’s conviction.
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