United States v. Bennie Overton, 600 F. App'x 303

Overton was charged with carjacking, using a firearm in furtherance of a crime of violence, and being a felon in possession of a firearm after an April 29, 2012 carjacking in which he pointed a gun at Gore and stole Gore's Nissan Maxima.
Gore testified Overton forced him from the car at gunpoint, took his keys and phone, and drove away with Gore’s car; Paschal later learned Gore had been robbed and reported it to the police.
On May 4, 2012 EMS responders found Overton unconscious in Gore’s stolen car and observed a .45 caliber pistol; the pistol was seized, leading to a suppression motion which the district court denied.
Overton pled guilty to felon in possession, went to trial on carjacking and brandishing counts, and was convicted on both remaining counts; he received a within-Guidelines sentence of 199 months, supervised release, a fine, and forfeitures.
On appeal, Overton challenged evidentiary rulings, jury instructions, and sentencing, which the court reviews for plain error where appropriate and affirms the district court’s judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to present a defense.	Overton claims the district court deprived him of defense by excluding a photograph of the BB gun.	Overton argues exclusion limited his ability to counter the Government’s evidence.	No abuse of discretion; stipulation cured potential prejudice and defense was preserved.
Admission of Gore's excited utterance.	Paschal testimony about Gore’s statement was wrongly admitted as an excited utterance.	Statement met the three requirements for an excited utterance and was properly admitted.	District court did not abuse; error, if any, was harmless.
Admission of the .45 pistol into evidence.	Pistol was irrelevant or unduly prejudicial and improperly admitted under FRE 404(b).	Pistol was probative to elements of both offenses and not barred as 404(b) evidence.	Admissible; probative to elements; 404(b) evidence not invoked as improper.
Motion to suppress the pistol.	Overton challenged EMS detention and search as unlawful seizure/standing.	Overton had standing; EMS seizure violated Fourth Amendment.	Overton lacked standing to challenge Gore’s vehicle search; seizure reasonable; suppression denied.
Jury instructions and Alleyne brandishing issue.	Instructions failed to require jury to find brandishing as an element; Alleyne requires it be submitted to the jury.	Brandishing element was properly evidenced; instructional error harmless.	Any Alleyne error was harmless; within-Guidelines verdict sustained; no reversal.

United States v. Blackwell, 459 F.3d 739 (6th Cir. 2006) (abuse of discretion standard for evidentiary rulings; constitutional considerations included)
Crane v. Kentucky, 476 U.S. 683 (1986) (meaningful opportunity to present a complete defense)
United States v. Scheffer, 523 U.S. 303 (1998) (ubiquitous limits on evidence; weighty interest for exclusion)
Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050 (6th Cir. 1983) (excited utterance criteria; continued emotional upset admissibility)
United States v. Davis, 577 F.3d 660 (6th Cir. 2009) (excited utterance requirements; time to contrive not strictly required)
United States v. Arnold, 486 F.3d 177 (6th Cir. 2007) (excited utterance analysis; ongoing nervousness after startling event (en banc))
United States v. McCullough, 150 F. App’x 507 (6th Cir. 2005) (excited utterance applicability; duration after event)
United States v. Hensel, 672 F.2d 578 (6th Cir. 1992) (standing in stolen vehicle context)
Alleyne v. United States, 133 S. Ct. 2151 (2013) (mandatory-minimums element-submission; jury finding required)
United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (plain-error review in sentencing for unpreserved objections)