87 F.4th 816
6th Cir.2023Background
- Police Officer Meric Whipple, responding to a shots-fired call in Flint, observed Wilder walking with what appeared to be a gun tucked into his waistband; Wilder ran when officers stopped, dropped the gun, picked it up, and fled into a house.
- Officers searched the home with consent, found a matching handgun in the attic, and arrested Wilder, who was on federal supervised release.
- From jail, Wilder made recorded calls instructing a woman (via a third party, Amy) to pay or persuade the home’s residents to claim the gun as theirs so they would appear at his court date.
- The government charged Wilder with being a felon in possession of a firearm (18 U.S.C. § 922(g)) and two counts of attempted witness tampering (18 U.S.C. § 1512(b)).
- At trial Whipple testified about his training/experience in recognizing firearms; Wilder objected to that testimony and later moved for acquittal on the tampering counts for insufficiency of evidence.
- The district court admitted Whipple’s testimony, denied Wilder’s motion for acquittal, the jury convicted on all counts, and Wilder appealed challenging admission of the training testimony and the sufficiency of the tampering evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of officer’s training/experience testimony (relevance) | Training/experience helps the jury assess credibility of officer’s identification of the gun | Testimony was irrelevant and not probative of events that night | Testimony was relevant under Rule 401; familiarity with firearms makes identification more reliable, so admission not an abuse of discretion |
| Unfair prejudice under Rule 403 / plain-error review | Probative value of experience testimony outweighs any prejudice | Testimony implied widespread gun prevalence and was unduly prejudicial; no direct Rule 403 motion below | No plain error: district court has broad Rule 403 discretion; any marginal prejudice did not substantially outweigh probative value |
| Sufficiency of evidence for attempted witness tampering (substantial step) | Wilder’s recorded instructions to Amy, urging her to go, pay residents, and secure their court attendance showed intent and took substantial steps | Wilder contended his statements were mere solicitation/abstract talk and insufficient as a substantial step | Sufficient evidence: Wilder’s coordinated, specific instructions and encouragement when Amy said she was ‘‘pulling up’’ constituted a substantial step corroborating his intent; convictions affirmed |
| Consideration of pro se supplemental claims | N/A (Wilder sought to raise three pro se claims) | Wilder urged supplemental constitutional and sentencing claims | Court declined to consider pro se claims because Wilder was represented by counsel, following circuit practice |
Key Cases Cited
- United States v. Potter, 927 F.3d 446 (6th Cir. 2019) (relevance requires only a low bar)
- United States v. Crozier, 259 F.3d 503 (6th Cir. 2001) (familiarity increases identification reliability)
- United States v. Perry, 438 F.3d 642 (6th Cir. 2006) (weight of identification testimony is for the jury)
- United States v. Asher, 910 F.3d 854 (6th Cir. 2018) (district courts have broad discretion under Rule 403)
- United States v. Warman, 578 F.3d 320 (6th Cir. 2009) (plain-error standard where Rule 403 not raised below)
- United States v. Fortner, 943 F.3d 1007 (6th Cir. 2019) (elements of attempt: intent and substantial step)
- United States v. Alebbini, 979 F.3d 537 (6th Cir. 2020) (substantial-step must corroborate firmness of intent)
- United States v. LaPointe, 690 F.3d 434 (6th Cir. 2012) (words alone can constitute a substantial step)
- United States v. Burns, 298 F.3d 523 (6th Cir. 2002) (coordinating criminal conduct by phone can satisfy attempt)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency review: whether any rational trier of fact could find guilt beyond a reasonable doubt)