*1 statutorily pay- from exempt are terprises taxes.4
ing property state real transfer
III. CONCLUSION reasons, AFFIRM foregoing
For the we judgment dismissing
the district court’s
this suit. America,
UNITED STATES
Plaintiff-Appellee, GARCIA, Lamont Defendant-
Victor
Appellant.
No. 13-1344. Appeals,
United States Court
Sixth Circuit.
Argued: Nov. 2013. July and Filed: 2014.
Decided
Enterprises
question
today
4. Because we hold that the
are
tional
of whether
national
exempt
statutorily
state
local real
from
banks should be considered nontaxable as
taxes,
property transfer
we do not need to
instrumentalities”);
federal
see also Del.
question
they
reach the
whether
are constitu
Pa.,
Cnty.,
(determining
Michigan, Appellant. Sean C. Office, Attorney’s Grand Michigan, for Rapids, Appellee. MOORE, GIBBONS, Before: SUTTON, Judges. Circuit *3 GIBBONS, J., opinion delivered the court, SUTTON, J., joined in which MOORE, J., MOORE, joined in part. and 725-27), (pp. separate J. delivered a opinion concurring judgment. OPINION GIBBONS, JULIA SMITH Circuit Judge. apartment
When officers arrived at an complex investigate reported gunfire, Garcia fled. The pursued Victor officers Garcia, objects and one officer saw fall person from his as he scrambled over a fence. Once the officers had subdued and Garcia, they arrested returned to the fence among and discovered two items other snow-covered debris: a silver nes- revolver cap tled the snow and a baseball perched atop the snow. A federal indict- two-day followed, ment and trial and the jury being convicted Garcia one count of a felon in of a firearm. The subsequently district court sentenced Gar- ninety-six cia to a Guidelines sentence of imprisonment. months of ap- Garcia now peals. He maintains that the evidence was possessed insufficient establish that he revolver, improperly credibility vouched for the of a Govern- during closing arguments, ment witness imposed by and the sentence the district substantively court was unreasonable. We affirm Garcia’s conviction and sentence. I. Clark, ARGUED: Dennis J. Clark Law PLLC, Detroit, Firm Michigan, Appel- Shortly midnight, before woman Hessmiller, lant. Tessa K. Kalamazoo, Michigan, awoke to the sound Office, Attorney’s Rapids, Grand Michigan, gunfire initial shot followed —one for Appellee. ON BRIEF: Dennis J. between two and four more. She immedi- Clark, PLLC, Detroit, Firm ately making Clark Law called and as she was snow, person. In the he discover- gunshots. Garcia’s heard additional call she cap front window and ed a baseball and a silver revolver. through her peered She resting top described of an old “dart off.” She The revolver was saw someone wearing cap boot, a baseball part as both its handle and of its person fur coat with orange, thigh-length in the barrel were buried snow.2 Joseph Boutell the hood. Officer past twenty- around fallen within the snow had dispatched to the partner hours, and his in the four and there were no tracks they pulled as into complex, and apartment other than those of Garcia and the snow three minutes later parking lot about its at the temperature officers. The time was identified as Gar- they saw a man—later twenty-three degrees, but beads of water jacket1 walking wearing a white in- appeared on the revolver. VanderKlok cia— far as the offi- complex. As through at trial that “the was warmer ferred *4 tell, wearing a Garcia was not cers could than the snow because the water had not cap. baseball frozen, obviously temperature and freezing.” According to below Van- [was] in direction of the looked Garcia derKlok, cap the baseball and revolver pace. his quickened vehicle and officers’ objects that only appeared were “the two and exited their vehi- parked The officers recently top to have settled on cle, following Garcia to investi- intent on objects But there were other snow.” As gunfire. in the gate his involvement snow, submerged the area beneath corner, approached building’s Garcia jewel- including plastic jug cigar a and a or The offi- sprint. into a full he stretched ry box. keep but could not pursued cers Garcia had ar- Sergeant Chad YanderKlok pace. spent Three unfired rounds and two cas- scene, however, and he contin-
rived on the cylinder inside the revolver’s ings were a Garcia climbed over pursuit. ued the fingerprints it was seized. No when ground, fell to the and as he fence and No gun casings. found on the or the that “some up, VanderKlok noticed stood performed, and gunshot residue tests were Gar- objects person.” had fallen from his DNA, for although was swabbed a large then continued to run toward cia follow-up tests were conducted. no brush, brush, and as he fell into the pile of Garcia, jumped and caught VanderKlok grand jury A returned an indict- federal arrest, resisted but onto his back. Garcia of charging Garcia with one count ment them, the two caught up Boutell with when firearm, in possession a of a being felon Garcia, take were able to subdue officers 922(g)(1), § and a violation of 18 U.S.C. him in a custody, place squad him into and two-day a trial jury convicted Garcia after police car. An officer drove Garcia probation office’s in November 2012. station, throughout trip and Garcia recom- investigation report presentence “his hat.” expressed concern about a offense level of then mended base Meanwhile, a two-level increase because applied searched the VanderKlok produced That a stolen.3 objects he had seen fall from revolver was area where photographs two of perceived color 2. Garcia submitted testified that 1.Witnesses appendix brief in this revolver as an to his lighting: depended on the It of Garcia’s coat court. bright light ap- appeared but to be white peared when it was not to be a darker color stipulated the re- parties at trial 3. The fur on Garcia’s illuminated. There was no Garcia did not had been stolen but that volver coat. participate in the theft. beyond of 26. Based on a crim- ments of the crime a total offense level reasonable IV, history category report inal ‘very doubt. Id. The defendant “bears a applicable that the Guidelines sen- stated heavy challenges burden’ when he the suf- to 115 months of im- tencing range was 92 ficiency the evidence.” prisonment. (6th Cir.2005) Owens, 426 F.3d (quoting Spearman, sentencing hearing,
At the March 2013 (6th Cir.1999)). canWe concern about expressed the district court evidence, stages independently weigh of artic- neither Garcia’s vacillation between intelligence, on the one ulateness nor make our own assessment of the credi- hand, immaturity and violence on the bility of the witnesses who testified at trial. mind, In court’s other hand. the district Howard, 460. proving incorrigi- himself to be Garcia was A defendant’s conviction under up eighteen ble. He was written times § 922(g)(1) may premised 18 U.S.C. be awaiting trial
while he incarcerated possession either actual or constructive sentencing, example. The district Campbell, firearm. United States v. departure court concluded that neither “Actual nor a was warranted and sen- variance possession requires that a defendant have ninety-six im- tenced Garcia to months of possession immediate or control of the prisonment. timely appealed. firearm, whereas constructive *5 exists when the defendant ‘does
II. not have possession knowingly but instead has the arguments ap- Garcia advances three on power given and intention at a time to peal. He first contends that the evidence exercise dominion and control over ob pos- that was insufficient establish he ” ject, directly either or through others.’ sessed the revolver because there was no Grubbs, Id. (quoting United States v. possession direct evidence of his and the (6th Cir.2007)). “The ele possession circumstantial evidence of is be- possession proven by ment of can be by lied ei photograph showing portions of the revolver were ther direct or buried the snow. circumstantial evidence.” “ argues Garcia next Id. ‘Circumstantial evidence alone is suf ” improperly credibility vouched for the of a ficient to sustain a conviction.’ United third, Government witness. And he chal- Wettstain, States v.
lenges the substantive reasonableness of Cir.2010) (quoting Spearman, 186 F.3d at imposed by the sentence the district court. 746). argument
We take each in turn. prosecution’s against The case Gar cia premised theory on a of actual
A.
rather than
possession.
constructive
The
Garcia maintains that
the evi
posited
United States
that the revolver fell
presented at trial
dence
was insufficient to
person
from Garcia’s
as he clambered over
beyond a
establish
reasonable doubt that
a fence
an effort to avoid apprehension
possessed
he
the revolver. We review de
him.
pursued
the officers who
The
a challenge
sufficiency
novo
to the
acknowledged
Government
the absence of
evidence in a criminal case. proving
possession:
direct evidence
actual
Howard,
Cir.
No one
holding
weapon,
saw Garcia
2010). The evidence must be viewed in
and
acknowledged
VanderKlok
that he
light
prosecution,
most favorable to the
drop
never saw
any
gun.
pros
Garcia
The
we ask whether
rational trier of
fact could have found the contested ele-
ecution instead relied on circumstantial ev-
the silver
specifically
inferences to estab-
resembled
revolver.
and a chain of
idence
sufficiency
of the revolver:
possession
argument
This
conflates
with
lish Garcia’s
approached.
the officers
fled when
necessity.
prosecution’s
case doubt-
arrest. VanderKlok saw ob-
He resisted
stronger
less would have been
had Van-
from the
jects fall from Garcia as he fell
recognized
“objects”
derKlok
one of the
returned to that
fence.
VanderKlok
When
shiny
be a
silver revolver. Yet we have
fallen, he
area to see what had
discovered
that a possession
never held
conviction
sitting
cap and silver revolver
the baseball
cannot be sustained without direct evi-
eighteen
apart.
inches
Those ob-
about
possessed
dence that the defendant
some-
objects,
jects,
only
those
rested on
thing resembling the contraband
freshly-fallen
Despite
snow.
the sub-
possessing.
defendant stands convicted of
droplets of
freezing
temperature,
air
small
Quite
opposite.
possession
Our
cases
revolver’s sur-
water were
on the
visible
single
establish that no
fact or set of facts
no
face. Officers found
contraband
necessary
pos-
is a
condition to establish
no other evidence to
person
Rather,
we must
session
contraband.
The Government’s wit-
explain
flight.
his
evidence,
view all of the
both direct and
jurors,
facts to the
nesses recited these
circumstantial, in
light
most favorable
asked them to infer
prosecution
-and the
prosecution,
any
to the
then ask whether
possessed the revolver while
that Garcia
rational trier of fact could have found be-
the officers.
fleeing
yond a reasonable doubt that
the defen-
found similar circumstantial ev-
We have
Howard,
possessed
dant
the contraband.
a convic-
to be sufficient to sustain
idence
a tree for second why handgun. the officers were reemerged pursuit to ask and discovered Id. 826, “messing Fed.Appx. 63 [him].” with A store owner identified the defendant as (internal (6th Cir.2003) quotation 828 his testi person who robbed store and omitted). One officer testified that marks gun robbery in the fied used the defendant motion with his “ma[de] field. gun similar to the recovered tree.” Id. The officers [the] hand behind Although fingerprints Id. at 775-77. no and discovered a looked behind the tree weapon, were recovered on the the court twenty-three rocks of crack vial filled with concluded that there was sufficient evi cocaine. Id. After the officers arrested pos dence to establish that the defendant per- and found on his the defendant $597 handgun, stating sessed the that the defen son, the admitted that he was a defendant “theory gun already dant’s could dealer, not confess to drug but he did wholly speculative have been there is possession of the crack cocaine. Id. We jury’s contrary does not undermine the evidence, including held that this the in- 776; finding.” Id. at see also United statement, criminating was sufficient to 654, Jefferson, v. 206 Fed.Appx. possession sustain the conviction even (8th Cir.2006) curiam) (“We (per 655-56 though pos- no witness saw the defendant repeatedly have held there is sufficient drugs. Id. at sess vial 831. support evidence to a conviction for felon possession Other circuits have sustained in possession where a was immediate convictions in similar circumstances as ly recovered from the location where the well. The defendant United States v. dropping defendant was observed some Burton fled approached, when officers and thing.” (citing Light, United States v. ground. he tossed two items to the (8th Cir.2005); 995, F.3d United States Cir.1994) at *1 WL Echols, Cir.1998); curiam). (per The officers described the Rankin, shiny object” second item as a “black but (8th Cir.1990))). 1345-46 only described the first item as “some- single These decisions reveal no thing.” Id. Officers searched the area sufficiency hallmark of charging where the defendant had cases thrown the first object actual “something” pis- found a of contraband. No com —the —and clip. tol and loaded Id. The officers then mon through factual thread runs each of cases, searched the area where the defendant presence and neither the nor the shiny object” had thrown the “black any particular absence of fact has been *7 discovered a small film container with dispositive. Accordingly, deemed to sus twelve rocks of crack cocaine inside. Id. tain a possession conviction for actual of conviction, The upheld Seventh Circuit the contraband that allegedly the defendant highlighting pistol clip the were arrest, discarded before his or her the only objects the “notable found the vi- linking witness the defendant to the con cinity” where the “something” had been traband need not be able to describe with thrown. Id. *2. specificity object by the thrown the defen adequate dant if circumstantial evidence pursued fleeing
An officer the defendant links the defendant to the contraband. in United States v. Rucker and saw him question The relevant in these cases is down place something “bend on the theory whether the ground.” sup Government’s is Fed.Appx. 774 Cir.2006). ported by sufficient ultimately appre- The officer circumstantial evi defendant, arrest, hended the who guilt. Although resisted dence of the circumstan- fled out of fear that could infer Garcia a determination support must tial evidence remove unlawfully “need not apprehended that evidence he would be while guilt, of that of hypothesis except every reasonable need not de- possessing the revolver. We Vannerson, 786 v. guilt.” United the evidence would have termine whether Cir.1986). 221, 225 droplets sufficient if the water been surface, or if not visible on the revolver’s presented evidence circumstantial the reasonable supported trial when the officers ap- at Garcia’s Garcia had not fled was one of the the revolver inference that The circumstantial evidence proached. person as he objects that fell from Garcia’s toto, jurors, presented to the examined in gun’s the fence. Portions scaled support to the verdict. See was sufficient snow, in the were buried handle barrel Arnold, 486 F.3d lay top of cylinder revolver’s but the banc) (“[W]e (6th Cir.2007) (en cannot infer that the thus could Jurors snow. jury’s merely decision be- overturn position to rest in that since gun came cause it had to draw reasonable inferences twenty-four hours less than last snowfall guilty.”). defendant] to find [the footprints were no other earlier. There area, that no one else had suggesting The inference of is unreason the last snowfall. visited that area since able, contends, gun because the below-freezing ambient air Despite the snow, buried in the as indicated partially moreover, drop- there were temperature, the United States photographs Although.ration- gun. of water on the lets jury. decline Gar submitted to the We inferences jurors might al draw different photographic weigh cia’s invitation to presence, the water’s one reasonable from anew; jury’s preroga evidence that is the just recently is that the had inference tive, not ours. See United States Jack snowy on the occupy position come to its (6th Cir.2006). son, The reasonableness of that infer- ground. argument trial counsel made that Garcia’s reports further enhanced ence is arguments, and jury during closing fled the gunfire just minutes before Garcia reasons, For jury rejected it.4 similar officers; the revolver’s droplets, the water attempt to shift the reject we Garcia, spent and the two proximity all of the evidence that the court’s focus to together permitted in the revolver rounds jury. present did not United States fired at least jurors to infer that Garcia great emphasis on lack places He the district gunshots. some of those Once evidence, and the and DNA fingerprint determined that evidence of Garcia’s court gunshot failure to conduct Government’s admissible, the officers was flight from confined to analysis. But we are residue moreover, jurors were entitled to draw sufficiency of the evidence weighing the inferences, including inferences reasonable jury; we government presented flight. from the fact of his See guilt, potential magnitude may not consider Oliver, presented. The ab of the evidence not the officers found Because for the argument of evidence is an sence person when no contraband on Garcia’s jury. him, juror they a reasonable arrested *8 photographic evi jurors, who had similarly ar that the in Williamson
4. The defendant them, unlikely, impossible, gued not could make that deter that "it was if dence in front of hallway top pistol a from the at the (citing to throw Id. mination themselves. door, stairs, 409, (6th the closet and into Daniels, around Fed.Appx. Cir. 413 v. 170 closet, only one especially if it made 2006)). So too here. ” Fed.Appx. at 142. We stated ‘thump.’ 483 722 opinion dispute might presented does not ment have a more con- concurring yet that we case,
the correct standard insists not it in fact vincing pre- whether may magnitude consider the of the evi- concurring a sented sufficient one. The presented evaluating not a suffi- dence opinion, though agreeing even our with ciency-of-the-evidence challenge, citing result, strays weighing into a of the evi- Bailey, language from United States 553 dence, an exercise that we do not under- Cir.2009), in a paren- F.3d 946 here, properly jury. take and one for the saying thetical and that the fact that the presented The United States thus suffi- proof included evidence of the absence of possessed cient evidence evidence warrants consideration of the revolver and that the revolver to fell fingerprint lack of or DNA evidence. Yet ground Although as he climbed the fence. Bailey principle, stands for no such required Garcia’s conviction the triers of goes the concurrence’s assertion far be- accept fact to the chain of inferences that yond universally accepted standard for trial, posited the United States at each of evaluating sufficiency-of-the-evidence chal- sup- those inferences is reasonable and teach, lenges. Bailey As and other cases ports Garcia’s conviction. is whether pre- the standard the evidence any sented is insufficient “for rational fact- beyond
finder to conclude B. reasonable proven doubt” the Government has argues prose Garcia next that the 949; element of the case. essential Id. cutor improperly vouched for the credibili Dedman, see also United States v. ty Sergeant of during VanderKlok his clos (6th Cir.2008). F.3d This is in- ing argument. disagree. We deed “horn book law.” See United States Cir.2013) Zepeda, “[p]roseeutors Because have a (“It we, is horn book law that an appel- as duty justice, special merely to seek not — court, late are limited to the record before convict,” Thompson, Connick v. U.S. jury assessing sufficiency when of -, 1350, 1362, 179 131 S.Ct. L.Ed.2d evidence.”). Bailey held that the Gov- (2011) (internal omitted), quotation marks burden, ernment had not met that and the impose the Constitution and the courts language concurring referred trial restraints conduct of Govern opinion merely explication is an illustrative attorneys ment that are sometimes more why of the evidence that was presented analogous onerous than the im restraints was insufficient. posed on the defense. One such restric sure, discussing pre- To be evidence not tion prohibition prosecutorial is the may provide very way sented useful of vouching. attorneys may Government explaining import import or lack of arguments, render disinterested both of presented particular what was in a case. defensive, persuade ju fensive and in Bailey engaged The court in no inappro- merit, rors of the case’s but a But priate analysis. day, at the end of the may jurors’ not taint the deliberations with presented, we look at what was not what attorney’s opinions own and convic not presented or not an at- —whether Francis, tions. See United States v. torney questioned has a witness about the 549-51 specific absence of evidence. What was Allegations improper vouch presented not is not the focus and is not ing are impropriety reviewed both properly considered in application of the this flagrancy. analysis, Under bifurcated ultimate test. To conclude otherwise is an invitation to examine whether the Govern- determine prosecu- we first whether the
723
Francis,
definitively
to
in-
by
prosecution
and
improper.
was
tor’s statement
vouching oc-
“Improper
jury
at 549.
form the
that his office was certain of
170 F.3d
credi-
supports the
prosecutor
a
curs when
of the firearm.” Be-
indicating
personal
a
a witness
bility of
object
prosecu-
not
cause Garcia did
thereby
credibility^]
in the witness’s
belief
during
tor’s statement
the Government’s
prestige
of the office
placing
closing argument,
plain
we review for
er-
Attorney behind that wit-
Jackson,
ror.
States v.
473
See United
Trujillo, 376 F.3d
ness.” United States
(6th Cir.2007).
660,
F.3d
671
(internal
(6th Cir.2004)
quotation
prosecutor’s
find the
remarks to be
We
omitted).
vouching in-
“Improper
marks
unobjectionable.
prosecutor
never
comments or comments
volves either blunt
possessed
that he
suggested
corroborative
special
imply
prosecutor
that the
has
evidence that had been withheld from the
not
in front of the
knowledge of facts
jurors,
“imply any
nor did he otherwise
(internal alterations
jury.” Id. at 607-08
knowledge” of
credi-
special
VanderKlok’s
omitted).
quotation
and
marks
Reid,
bility.
See United States
F.3d
prosecutor
If we conclude that the
not speak
He did
for a witness’s credi
improperly vouched
person,
in the first
nor did he otherwise
prosecu
bility, we then ask whether
veracity
in the
profess
personal
belief
sufficiently
to
flagrant
tor’s remarks
testimony.
VanderKlok’s
See United
of the defendant’s convic
warrant reversal
Henry,
inform our assess
Several factors
tion.
Cir.2008)
of “clear
(prohibiting statements
(1)
including:
whether
flagrancy,
ment of
Krebs,
belief’);
personal
United States v.
tended to mis
prosecutor’s statement
(6th Cir.1986) (not-
1176-77
jurors
unfairly prejudice the
lead the
or
ing
potential
impropriety
phrases
(2)
defendant,
improper
whether
believe,”
“I
suggest,”
“I
“I
and
such as
of one isolated com
vouching consisted
submit”).
spoke
He
instead as an advo-
(3)
remarks,
improper
or a series of
ment
restore, through argument
seeking
cate
to
appears
statement
improper
whether the
assurance,
personal
rather
than his own
inadvertent,
or
to have been deliberate
witness. That is
credibility
of his chief
(4)
strength of the
case
Government’s
prosecutorial function.
permissible
Cf.
Francis, 170 F.3d
against the defendant.
Jackson,
(“[Although
at 672
at 549-50.
it
repeated
improper,
remarks were
closing argument, the Assis-
During his
attempt-
prosecutor
that the
appears
Attorney stated:
tant United States
ineptly,
argue
ing, however
lying
is
about
Sergeant
If
VanderKlok
be-
witnesses were credible
government’s
saw,
just come in
why
he
didn’t he
what
testimony was consistent
cause their
‘Yeah,
you,
drop
I saw him
here and tell
by non-testimonial evidence
corroborated
it a
that make
lot
gun”?
Wouldn’t
reason to lie.
they had no
and because
drop
“I
him
everybody?
saw
easier
each of
may disagree with
While Jackson
that’s not what he
gun.”
Because
contentions,
upon
founded
none was
those
here,
he took an oath
saw. He came
prosecutor person-
that the
implication
truth,
you and he told
tell
or knew of
ally believed the witnesses
night.
happened
truth
what
about
jury that demon-
not before the
evidence
About what he saw.
truthfulness.”).
strated their
im-
argues
that “the
of a
or rehabilitation
The establishment
position to vouch for his
properly used his
im-
may amount
credibility
presented witness’s
key
and other evidence
witness
*10
if
proper vouching
prosecutor
range,
improperly applies
even
the
the Guidelines
using phrases such as “I
refrains from
or otherwise
calculates
the
incorrect
A first-person
and “I submit.”
believe”
sentencing range,
Guidelines
treats
the
necessary
narrative
neither
nor suffi-
is
mandatory,
Guidelines as
fails to consider
impropriety.
cient
But our
to establish
3553(a) factors,
§
the
selects a sentence
improper vouching only
cases have found
facts,
clearly
based on
erroneous
or fails
disputed
put
spot-
remark
the
where
adequately
explain
the chosen sentence.
light
prosecutor’s
prosecutor
on the
Brooks,
—the
United
beliefs,
personal
prestige
her of-
795-96
The substantive
fice,
implement
power
her
to enforce and
component of our
inquiry
reasonableness
plea agreement,
unique
her
knowl-
instead focuses on the actual
im-
sentence
facts,
edge
against
etc. Measured
posed by
court, including
the district
standard,
prosecutor’s
that
statement
any
extent of
variance from the applicable
permis-
at the
of Garcia’s trial was
close
Guidelines sentencing range. See
Gall
prosecutor’s
sible. The
comment—“he
States,
38, 51,
552 U.S.
128 S.Ct.
you
told
the truth about what happened
(2007).
the offense Nor did the district act improperly court look as an The need to at Mr. Garcia law. when it observed that the Garcia was on individual, in he did both terms of what verge being ca- of classified as an armed in of in his life and terms what he did here criminal. The reer court adverted to the all coming point try to this and to balance fifteen-year mandatory minimum sentence factors.”). sentencing of those The court applied quali- that would have had Garcia over Garcia’s trial and was presided had criminal, fied as an armed career the but the nature and circumstances familiar with actually court did not that impose sen- of the sen- transcript of the offense. therefore tence. Garcia has no foundation hearing that the court tencing discloses argue to from which that his sentence was hearing, its trial notes the reviewed before impermissible based on factor. stated, just ultimately court “I and the depart a basis on record to can’t find this This court must afford “due defer guideline range.” the In- vary or outside ence” to the district court’s determination raises chal- procedural sofar as Garcia appropriate length of a defendant’s lenge application to the of the two-level Bolds, sentence. par- because Garcia did not enhancement (6th Cir.2007) (internal quo firearm, in the theft of the ticipate omitted). tation marks find no reason We provide that the enhancement Guidelines the district question to court’s exercise “applies regardless of whether the defen- 3553(a) § when it applied its discretion knew or had to believe that dant reason sentence, calculated factors and Garcia’s stolen,” § 2K2.1 the firearm was U.S.S.G pre thus and Garcia cannot overcome 8(B), appli- and emt. n. we have held sumption that district court’s Guide cation of enhancement is reasonable substantively was reason lines sentence where the did not know even defendant able. stolen, gun that the Cir.2005).
Webb, III. un- give The district court did not also weight history. criminal due reasons, For these affirm. we sure, the court considerable spent To be addressing history time Garcia’s criminal MOORE, KAREN NELSON Circuit proclivity parties and for violence. The concurring in Judge, judgment. length at some discussed Garcia’s behavior judgment I concur of the court. incarcerated, example, and the while However, my I note with the disagreement prior stated that Garcia’s convictions court lack of majority’s refusal consider the terribly serious, all but some “weren’t tying or DNA fingerprint evidence were, pattern very disturbing.” and the is gun recovered the snow. The from But the court considered Garcia’s criminal sufficiency- majority emphasizes that our history permissible purpose for the of de- review of-the-evidence is restricted termining proper light sentence presented trial. The evidence evidence public protec- the need for deterrence and from fingerprints no recovered tion, acknowledged and the court both the gun testing and no DNA was conduct- of Gar- mitigating aggravating effects introduced at direct ex- ed was trial. On history. extensive criminal The tran- cia’s government, a forensics script thoughtful reveals amination discussion omitted), County examiner for the Kalamazoo Sher- marks agree therefore Department finger- testified that no iffs government produced sufficient evi- prints gun, were recovered from the shell guilt. dence of Garcia’s (Trial casings, or bullets. R. 74 Tr. I at I that the agree also district court did 205) 559). (Page ID # The examiner testi- in sentencing not abuse its discretion Gar- fied that conditions were “far from ideal” cia. recovery fingerprints for the due to the however, I agree, prosecu- do not that a gun being found snow and materials telling jury during tor closing argu- of which the and bullets were made. *12 ment that a witness told the truth is #559-61). (Page Id. at 205-07 ID On “unobjectionable.” Maj. atOp. 723. The counsel, by cross-examination the prosecutor suggested that VanderKlok trigger, trigger examiner testified that the telling must have been the truth because if guard, and grip gun of the were swabbed lie, going he was he would have told a DNA, but that the DNA was never Then, prosecutor the better lie.1 stated (Trial 229) tested. R. 75 Tr. II at (Page here, 583). came in he “[VanderKlok] took ID # The examiner testified truth, an oath to tell the you in and he told deciding factors whether to run tests cost, included of a the truth about expectation proba- happened night. what result, (Trial tive (Page time. Id. 231 ID About what he saw.” R. 75 Tr. at 585). # indepen- 338) 692). Garcia did not conduct ID # (Page Together, these fingerprint dent or testing DNA that he is an improper expres- statements constitute attempting to introduce for the first time prosecutor’s personal sion of the belief court; simply asking this he is this about VanderKlok’s credibility. court to testimony consider that both he prosecutor’s theory The that a liar government and the solicited on the inves- would have told a more beneficial lie is not tigative police decisions of the and forensic “ostensibly commonsense conclusion.” finger- examiners. The failure to recover Maj. Op. at 724. The psychology lying prints and the decision not to conduct is not a matter of common sense or com testing jury DNA was in front of the knowledge. Slagle mon v. Bagley, 457 Cf. may so be considered our review of the (6th Cir.2006) (holding that a sufficiency of the evidence. See United prosecutor may properly jury ask the (6th Bailey, 553 F.3d knowledge use common to make the infer Cir.2009) (reversing a conviction due to walking ence that across a floor with floor noting insufficient evidence and that “[o]f noise). produces boards a creaking The particular significance, government prosecutor’s statement that if VanderKlok Bailey’s could not show that fingerprints lying he would have said that he saw this, gun”). were on the Considering drop is nothing more than all other presented evidence at trial “in the speculation. speculative This theory was light prosecu- most favorable to the followed the blunt comment that Van- tion,” I “any conclude that rational trier of you derKlok “told the truth.” This was fact could have found the essential ele- an argument not for a witness’s credibility beyond ments of the crime a reasonable doubt,” Geisen, grounded in the evidence United States v. 612 F.3d introduced at (6th Cir.2010) (internal quotation Reid, trial. United States v. 625 F.3d Cf. stated, Specifically, prosecutor 1. everybody? "[i]f Ser- that make it a lot easier for 'I saw, geant lying drop gun.’ VanderKlok is what about he saw him Because that’s not why (Trial 338) just you, didn’t he come in here and tell (Page what he saw.” R. 75 Tr. at ‘Yeah, 692). drop gun’? I saw him Wouldn’t #ID need not Cir.2010) prosecutor (6th personal that a belief. (holding 977, 985 lying spotlight wit anything special that a to shine suggestion do prosecutor’s persuasively lied more By standing have ness would of the office. prestige by the followed improper when was not jury representative as the front of the testimony was that the witness’s statement government, prose the United States people); other Cristi by four corroborated office, very and the act cutor embodies McKee, 888, 901-02 526 F.3d ni v. “personal expressing prosecutor’s Cir.2008) not “liars” was (calling witnesses in the truthfulness of the witness’s belief “ar constitutionally improper because testimony prestige ... of the plac[es] evidence, jury on the focused the guments Attorney be office of the United States opinion”). personal prosecutor’s not v. Emu that witness.” United States hind jury to ask the Nor did the egbunam, credible conclude that VanderKlok from the evidence or inferences Unmoored cir specific or the on his demeanor based witness, this on the demeanor based testimony. cumstances of his Cf. nothing reflected prosecutor’s remarks Jackson, 660, 672 *13 belief about the personal more than his Cir.2007) re prosecutor’s that a (holding testimony. The veracity of VanderKlok’s that a witness told statements peated remarks, therefore, improper. a express did not improper but truth were credibility Nonetheless, belief the witness’s personal I that it was not conclude jurors prosecutor asked because the to fail to error for the district court plain consistency credibility from infer sponte. statements sua The strike the testimony and the fact that witness against strong, was not so evidence Garcia Instead, lie). on based had no reason to testimony that he saw ob- VanderKlok’s opinion that a prosecutor’s personal jects significant. from fall story, the have told a different liar would However, the that VanderKlok statement conclusion that Van- prosecutor shared his single, a isolated com- told the truth was told the truth. derKlok reminder to the prosecutor’s ment. The prosecu that a majority suggests if what jury they were “to decide vouching improper not tor’s comments are stand was heard on the witness [they] spotlight on “put unless the remarks 316) (Trial true,” (Page at ID R. 75 Tr. personal prosecutor’s —the 670), judge’s instruction # and the district office, beliefs, pow of her her prestige judge it the “sole jury that was implement plea er to enforce witnesses,” id. credibility knowledge of the unique her agreement, 661), the comment’s mitigated ID # (Page facts, Maj. at 724. A remark Op. etc.” mislead. United States potential improper. be so obvious to be need not Cir.1992). (6th Martinez, clearly prose held that This circuit has circumstances, I conclude all the Given belief without express personal can cutor plainly not err court did that the district Hodge “I” making an statement. See sponte prosecutori- failing to strike sua n. 20 Cir. Hurley, 426 F.3d of this case. in the context al statements Krebs, 2005); Cir.1986). Stating that 1166, 1176-77 told the truth —not based
VanderKlok ability to assess jury’s or the
the evidence prose
credibility, simply but based on personal speculation about
cutor’s own expression of improper lie—is an
how liars