427 F. App'x 457
6th Cir.2011Background
- Clemons was convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) and received a within-Guidelines sentence of 188 months after the district court found him to be an armed career criminal.
- Det. Handley testified Clemons tossed a hard-metal object hit the ground near a maroon Ford Contour, and Handley recovered a loaded Lorcin .32-caliber handgun under the car.
- A second firearm, a .38-caliber revolver, was found under the driver’s side front of the Contour, behind the front tire, but not near Clemons.
- Other items recovered included marijuana, powder cocaine, and marijuana bags; no evidence tied the drugs to Clemons, and one individual (Hallom) admitted ownership of the .38 revolver but later claimed it was a fabrication.
- Hallom admitted possession of a pistol in a jail recording and provided a conflicting confession; he later testified the gun belonged to him only to take responsibility.
- The defense presented testimony disputing the gun was thrown by Clemons and alleged police misallocation of gun charges; government rebuttal witnesses testified to the sound and location of the gun and the gun’s recovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence to convict Clemons | Clemons threw a metallic object; Handley recovered a gun; Handley was in close proximity. | No direct evidence tying the Lorcin to Clemons; defense challenged ownership and thrown-object testimony. | Evidence sufficient; rational juror could convict |
| Standard of review given failure to renew Rule 29 motion | Authority to review for manifest miscarriage of justice. | Failure to renew precludes full review; potential miscarriage not shown. | Court applied manifest miscarriage standard; no miscarriage found |
Key Cases Cited
- United States v. Price, 134 F.3d 340 (6th Cir. 1998) (standard for sufficiency review)
- United States v. Beddow, 957 F.2d 1330 (6th Cir. 1992) (limitations on Rule 29 postures and sufficiency review)
- United States v. Glover, 21 F.3d 133 (6th Cir. 1994) (renewal requirement for Rule 29 motion and miscarriage of justice)
- Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685 (6th Cir. 1985) (manifest miscarriage standard in absence of renewal)
- United States v. Roberge, 565 F.3d 1005 (6th Cir. 2009) (review for manifest miscarriage when Rule 29 not renewed)