NOT RECOMMENDED FOR FULL-TEXT PUBLICATION 

File Name: 15a0043n.06

No. 14-1439

UNITED STATES COURTS OF APPEALS

FOR THE SIXTH CIRCUIT

BEFORE: COLE, Chief Judge; KETHLEDGE, Circuit Judge; and OLIVER, District Judge.*

OLIVER, District Judge. Defendant-Appellant Carl Shaw-Vincent Six (“DefendantAppellant,” “Defendant,” “Appellant,” or “Six”), appeals his conviction in district court for 

being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and denial of his Motion for 

New Trial. For the reasons stated herein, we AFFIRM the judgment of the district court and the 

district court’s denial of his Motion for New Trial.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant was indicted on March 21, 2012, for being a felon in possession of a firearm in 

violation of 18 U.S.C. § 922(g)(1). The Government alleged that Defendant was returning to his 

neighborhood where a shooting had previously occurred when he was arrested and found in 

possession of a nine-millimeter handgun. The Government also alleged that Defendant was 

 

*

The Honorable Solomon Oliver, Jr., Chief Judge, United States District Court for the Northern 

District of Ohio, sitting by designation.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARL SHAW-VINCENT SIX,

Defendant-Appellee.

)

)

)

)

)

)

)

)

)

) 

ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF MICHIGAN

OPINION
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returning to the neighborhood to retaliate against the gang who was responsible for the shooting. 

Defendant maintains that he was not aware there were guns in his van. He asserts that he had 

begun to drive his friend, Frank Natale (“Natale”), to the hospital because he thought Natale had 

been injured during a shooting in front of Defendant’s mother’s house. When he realized that 

Natale had not been shot, he decided to return to his mother’s house. Defendant asserts that all 

the guns in the van belonged to Natale and were never in Defendant’s actual or constructive 

possession. 

The trial began on October 29, 2012, and lasted two days. The Government called three

witnesses: Monica Ann Bullock (“Bullock”), Officer Kevin Smith (“Officer Smith”), and ATF 

Special Agent John Miller (“Agent Miller”). Bullock, the police dispatcher, was used to 

authenticate a recording of a 911 call reporting a shooting just prior to Defendant’s arrest. 

Officer Smith gave testimony describing Defendant’s arrest on the night of the offense. 

He testified that he and his partner were dispatched in response to calls regarding a shooting. He

stated that the callers mentioned an “unknown male white above 5’10” wearing a black hat and 

had [a] gun [sic]” driving a black minivan. He also testified that he pulled in front of the van,

partially blocking it, and asked Defendant if he had a driver’s license. According to Officer 

Smith, Defendant replied “no” as Officer Smith was getting out of the vehicle. Officer Smith

testified that as he approached the van with his gun drawn, he saw someone “shuffling” in the 

back of the van. That person was Natale, a passenger in the van. Officer Smith said that he then 

saw a firearm sticking out of Natale’s pocket. He stated that he grabbed the firearm and gave it 

to his partner after she handcuffed Natale. He also testified that, after Natale was handcuffed, he

opened the driver’s door and ordered Defendant out of the van. According to Officer Smith, that 

is when he saw a nine-millimeter handgun on the driver’s seat. Agent Miller testified that the 
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nine-millimeter gun recovered from the driver’s seat was manufactured in Florida and could not 

have been manufactured in Michigan.

The Defense called three witnesses: Rolando Ortiz (“Ortiz”) and Curtis Vanderlaan 

(“Vanderlaan”), who were both inside of Defendant’s mother’s (“Ms. Six”) house when the 

alleged shooting occurred, and Defendant. Ortiz testified that he came out of the house after he 

heard gunshots. He also testified that he saw Natale with two guns and that Natale ran and 

jumped in the van in which Defendant was sleeping. Vanderlaan gave similar testimony about 

the immediate aftermath of the shooting, indicating he saw Natale with two guns—one “long 

gun” and one “short gun.” Vanderlaan also testified that he saw the arrest through the window of 

Ms. Six’s house. According to Vanderlaan, Officer Smith pulled Defendant out of the driver’s

seat before approaching Natale, who was in the back of the van—not after Natale was 

handcuffed, as Officer Smith testified. 

Defendant testified that he was sleeping in a black minivan in the driveway of his 

mother’s house when he was awakened by gunshots. According to Defendant, Natale jumped in 

the van and told him to “drive, drive, drive, drive.” Defendant testified that he thought Natale 

was shot so he started driving towards the hospital. He further testified that once he realized 

Natale was not shot, he proceeded to drive back to his mother’s house where he was previously

parked. According to Defendant, he was on his way back to the house when Officer Smith and 

his partner pulled in front of his vehicle and shined a bright light on him.

Consistent with Vanderlaan’s testimony, Defendant testified that Officer Smith pulled 

him out of the car almost immediately. According to Defendant, he was already secured in the 

back of one of the squad cars when the officers pulled Natale out of the van. Thereafter, the 

officers searched Natale and the van. Defendant testified that he never had a gun in his 
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possession or knew there were guns in the van. During cross-examination, Defendant testified 

that he did not see any guns that night, but stated: “after I was detained, put in the vehicle, I seen 

one officer like he said pull something and probably put it in his back pocket or out of [Natale]’s 

pocket.” Also on cross-examination, Defendant testified that he saw the police “collect the guns 

and go to the vehicles or to the back of their cruiser and secure them I guess from what they 

say.” (emphasis added).

A jury found Defendant guilty on October 30, 2012. Defendant subsequently replaced 

his counsel and filed a Motion for New Trial on January 24, 2013. Defendant set forth the 

following arguments: (1) ineffective assistance of counsel; (2) prosecutorial misconduct; 

(3) cumulative effect of errors; (4) verdict against the great weight of the evidence; and 

(5) insufficient evidence as a matter of law. Defendant’s ineffective assistance of counsel claim 

was based on his trial counsel’s, Amy Gierhart (“Gierhart”), failure to fully investigate a “res 

gestae” witness, Ms. Six’s neighbor, Harry Irizarry (“Irizarry”). The district court held a hearing 

regarding the Motion on April 23, 2013, at which Irizarry and Gierhart both testified. The 

district court issued a written opinion denying the Motion in its entirety on October 18, 2013. 

Defendant filed the current appeal on April 14, 2014.

II. ANALYSIS

Defendant raises five arguments on appeal. First, Defendant argues that he was denied 

his right to effective assistance of counsel under the Sixth Amendment because his trial counsel 

failed to fully investigate an exculpatory “res gestae” witness. Second, Defendant argues that 

his right to due process, right to remain silent, and right to confrontation under the Fifth, Sixth, 

and Fourteenth Amendments were denied due to prosecutorial misconduct. Third, Defendant 

argues that the cumulative effect of the errors made during his trial produced a setting that was 
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5

fundamentally unfair in violation of the Fifth and Fourteenth Amendments. Fourth, Defendant 

argues that the district court violated his right to due process under the Fifth and Fourteenth 

Amendments by denying Defendant’s Motion for New Trial. Finally, Defendant argues that his 

right to due process under the Fifth and Fourteenth Amendments was violated by his conviction 

upon evidence that was insufficient as a matter of law.

Though unclear, it appears that Defendant-Appellant is both directly appealing his 

conviction and appealing the district court’s denial of his Motion for New Trial on all issues, 

except one, the issue relating to the verdict being against the great weight of the evidence. That 

issue is only being raised in respect to denial of his Motion for New Trial. Defendant-Appellant 

does not appeal his conviction on the ground that the verdict was against the great weight of the 

evidence, as this argument purely appeals the district court’s denial of his Motion for New Trial. 

On direct appeal, this court reviews findings of law and mixed findings of law and fact de novo. 

See United States v. Ball, 771 F.3d 964, 967 (6th Cir. 2014). This court reviews a district court’s 

denial of a motion for new trial for abuse of discretion. United States v. Holder, 657 F.3d 322, 

328 (6th Cir. 2011). Abuse of discretion exists where the district court relied on “clearly 

erroneous findings of fact,” used an erroneous legal standard, or improperly applied the law. Id.

(quoting United States v. Pugh, 405 F.3d 390, 397 (6th Cir. 2005)).

A. Ineffective Assistance of Counsel

The district court denied Defendant’s ineffective assistance of counsel claim, holding that 

Gierhart’s decision to not further investigate Irizarry or call him as a witness was a rational,

strategic decision. The court specifically found that Gierhart called and spoke with Irizarry and 

concluded that Irizarry did not reveal that he knew anything about the issues she felt were critical 

to the case, and that using Irizarry as a witness could possibly allow the introduction into 
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6

evidence of 911 calls implicating Defendant in the earlier shooting. The court also found it 

rational for Gierhart to decide that Irizarry’s close relationship to Defendant and Defendant’s 

mother would have had a substantial effect on his believability. Given these facts, the court finds 

that the district court did not abuse its discretion. 

To prove ineffective assistance of counsel, Defendant must show that “counsel’s conduct 

so undermined the proper functioning of the adversarial process that the trial cannot be relied on 

as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To 

warrant reversal of a conviction, Defendant must satisfy a two-part test. First, Defendant must 

show that counsel was deficient and that “counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. 

Second, Defendant must show that counsel’s deficient representation prejudiced Defendant; 

specifically, that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a 

trial whose result is reliable.” Id. 

In conducting the first part of the analysis, the Supreme Court has stated that the 

appropriate “standard for attorney performance is that of reasonably effective assistance.” Id. 

To show deficient representation, Defendant “must show that counsel’s representation fell below 

an objective standard of reasonableness.” Id. at 688. Defendant must identify the specific acts 

or omissions that allegedly violated the objective standard of reasonableness. Id. at 690. 

Defendant “must overcome the presumption that, under the circumstances, the challenged action 

might be considered sound trial strategy.” Id. at 689 (internal quotation marks omitted).

In an ineffective assistance of counsel claim based on a failure to investigate, “counsel 

has a duty to make reasonable investigations or to make a reasonable decision that makes 

particular investigations unnecessary.” Id. at 691. The reasonableness of counsel’s decisions
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may depend on the defendant’s statements or actions. Id. Where a defendant has given counsel 

reason to believe that further investigation would be futile or harmful, the defendant cannot later 

challenge counsel’s decision not to further investigate. Id. 

Defendant argues that his trial counsel, Gierhart, was ineffective for failing to fully 

investigate Irizarry, an important exculpatory witness who observed Defendant’s arrest. 

Defendant contends that Irizarry could have corroborated Defendant’s and Vanderlaan’s version 

of the arrest—that Defendant was pulled out of the car, arrested, handcuffed, and put inside the 

squad car before the police ever found Natale or searched the van. 

Gierhart asserts that the decision not to further investigate Irizarry was strategic. 

Specifically, Gierhart testified at the evidentiary hearing that she called and spoke with Irizarry,

at which time she asked him an open-ended question to determine what he witnessed. According 

to Gierhart, Irizarry only gave an account of hearing gun shots and seeing an additional dark van 

speeding away afterwards. Irizarry made no mention of seeing Defendant’s arrest or police 

search. Irizarry also told her that he was very close with Defendant’s mother and considered her 

a sister and Defendant a nephew. Gierhart chose not to use Irizarry as a witness because she 

believed that: (1) Irizarry’s potential testimony was irrelevant; (2) his potential testimony 

regarding his observation of another van in the area at the time of the shooting might have 

allowed the Government to introduce the contents of 911 calls implicating Defendant in the 

shooting; and (3) Irizarry’s close relationship with Defendant and Defendant’s mother made 

Irizarry easily impeachable.

Gierhart exercised reasonable judgment in deciding not to further investigate Irizarry or 

call him as a witness. Unlike in Towns v. Smith, 395 F.3d 251 (6th Cir. 2005), where this court 

found counsel’s assistance to be ineffective because defense counsel failed to call or speak to a 
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witness who counsel knew may have had exculpatory information, Gierhart called and spoke

with Irizarry to reasonably determine whether Irizarry would be helpful to Defendant’s case. It 

was based on information obtained during that call that Gierhart decided not to further 

investigate Irizarry or call him as a witness. It is not the court’s duty to second-guess Gierhart’s 

strategic decisions but, instead, to decide whether they were in fact strategic decisions and not 

neglect. Based on the above circumstances and the reasoning provided by Gierhart, the court 

finds Gierhart’s decision to be both strategic and reasonable.

Even if Gierhart’s failure to further investigate Irizarry was unreasonable, it did not 

prejudice Defendant. To show prejudice, Defendant has to show more than the fact that 

Gierhart’s errors had “some conceivable effect on the outcome of the proceeding.” Strickland, 

466 U.S. at 693 (emphasis added). Rather, the Defendant “must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Id. at 694. Based on Irizarry’s testimony at the evidentiary hearing, his

testimony at trial would have been largely redundant of the accounts given by Vanderlaan and 

Defendant. It is also not likely the jury would have found his testimony credible. First, Irizarry 

provided conflicting accounts of Defendant’s arrest, including key details, such as whether the 

police pulled in front or behind of Defendant’s van and whether he actually witnessed the entire 

incident. Further, Irizarry had a close relationship with Defendant that could have been used to 

impeach his credibility as a witness. Therefore, it is not reasonably probable that Irizarry’s 

testimony would have changed the result of Defendant’s trial.

The court finds no clearly erroneous findings of fact, use of erroneous legal standards, or 

improper application of law by the district court, and therefore, no abuse of discretion. Thus, this 
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court denies Appellant’s claim of ineffective assistance of counsel and affirms the district court’s 

denial of Defendant’s Motion for New Trial on this issue.

B. Prosecutorial Misconduct

Defendant argues that prosecutorial misconduct during his trial denied him of his right to 

due process, right to remain silent, and right to confrontation under the Fifth, Sixth, and 

Fourteenth Amendments. Generally, on direct appeal, this court reviews whether prosecutorial 

misconduct requires reversal of a defendant’s conviction de novo. United States v. Tarwater, 

308 F.3d 494, 511 (6th Cir. 2002). However, if the appellant failed to raise its prosecutorial 

misconduct objection at trial, the appellate court reviews the claim for plain error. United States 

v. Barnes, 278 F.3d 644, 646 (6th Cir. 2002). 

Defendant-Appellant makes two prosecutorial misconduct arguments: (1) it was 

prosecutorial misconduct for the Government to comment during closing arguments on 

Defendant’s post-arrest silence; and (2) the Government elicited prejudicial testimony from 

Defendant, Ortiz, and Vanderlaan by asking questions on cross-examination that implied that

Defendant, Ortiz, and Vanderlaan were gang members. Defendant made a prosecutorial 

misconduct objection at trial to the Government’s mention of Defendant’s post-arrest silence. 

However, Defendant raises his latter prosecutorial misconduct argument for the first time on 

appeal. 

1. Comments on Post-Arrest Silence

During closing arguments, counsel for the Government made the following statement:

And you heard the testimony of Mr. Six himself who doesn’t know 

how this firearm ended up on his seat, no idea. And he’s 

immediately pulled out of the van and he doesn’t see Officer Smith 

even grab the gun. And you didn’t hear any testimony from Mr. 

Six that when the gun was found, that he protested that’s not my 

gun, where did you guys find that?
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There is no dispute that Defendant properly raised his prosecutorial-misconduct objection to 

Government’s mention, in closing arguments, of Defendant’s post-arrest silence. In denying 

Defendant’s Motion for New Trial, the district court held that the Government’s remarks were 

not improper because they were used for impeachment purposes to rebut Defendant’s theory of 

the case. The district court also held that, even if the remarks were unreasonable, they were not 

flagrant because Defendant had the opportunity to relay his own version of events in his 

testimony, which prevented any prejudice or jury confusion. This court finds the district court’s 

reasoning for denying Defendant’s Motion well-taken and reaches a similar conclusion in the 

court’s direct appeal analysis of Defendant’s conviction.

A direct appeal for prosecutorial misconduct is reviewed de novo. See United States v. 

Carter, 236 F.3d 777, 783 (6th Cir. 2001). Under de novo review, the court must first determine 

“whether the prosecutor’s conduct and remarks were improper.” Id. If so, the court must next 

determine whether the conduct and remarks were flagrant and warrant reversal. Id. In 

determining flagrancy, the court considers: “(1) whether the conduct and remarks of the 

prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or 

remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally 

made; and (4) whether the evidence against the defendant was strong.” Id. If flagrant, the court 

must reverse. United States v. Stover, 474 F.3d 904, 915 (6th Cir. 2007). If the prosecutor’s 

conduct and remarks were not flagrant, the “[c]ourt will only reverse if ‘[(1)] proof of the 

defendant’s guilt was not overwhelming, [(2)] the defendant objected to the improper remarks,

and [(3)] the court failed to cure the error with an admonishment to the jury.’ ” Id. (quoting 

United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994)) (brackets omitted).
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Defendant argues that the Government’s mention of Defendant’s post-arrest silence was 

an improper violation of the Fifth Amendment that “shifted the burden of proof to the Defendant 

and violated Defendant’s right to confrontation.” (Appellant’s Br. at 11.) The Government 

argues that mention of Defendant’s silence was a proper use of “pre-Miranda silence” to 

impeach Defendant’s credibility as a witness and fairly reply to Defendant’s theory of the case. 

(Appellee’s Br. at 26.) Under the Fifth Amendment, “[n]o person . . . shall be compelled in any 

criminal case to be a witness against himself . . . .” U.S. Const. amend. V. It is well-settled that 

a defendant’s post-arrest, post-Miranda silence cannot be used at trial to substantively imply the 

defendant’s guilt or impeach the defendant’s credibility as a witness. Doyle v. Ohio, 426 U.S. 

610, 611 (1976); Griffin v. California, 380 U.S. 609, 615 (1965). This Circuit has also held that 

it is a violation of the Fifth Amendment to use pre-arrest silence as substantive evidence of guilt. 

Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000). However, a prosecutor may reference a 

defendant’s post-arrest, pre-Miranda silence to impeach that defendant’s credibility on crossexamination. Fletcher v. Weir, 455 U.S. 603, 605–07 (1982). A prosecutor may also reference a 

defendant’s choice to remain silent if it is a fair reply to the defense’s theory of the case or legal 

argument—such as the defense’s assertion that the defendant was not given the opportunity to 

speak on his or her own behalf. Hall v. Vasbinder, 563 F.3d 222, 233 (6th Cir. 2009) (citing 

United States v. Robinson, 485 U.S. 25, 34 (1988); Lockett v. Ohio, 438 U.S. 586, 595 (1978)). 

Such reply is limited to the scope of the defendant’s theory or argument. Id. at 233.

Here, the Government did not mention Defendant’s post-arrest silence during crossexamination and, instead, raised the issue for the first time during closing arguments. The 

Government relies primarily on Seymour v. Walker, 224 F.3d 542, 559–60 (6th Cir. 2000), in 

arguing that it is proper for the prosecutor to mention the defendant’s post-arrest, pre-Miranda
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silence to impeach the defendant’s credibility as a witness, even if done for the first time during 

closing arguments. In Seymour, this court rejected a request for habeas corpus relief based on 

prosecutorial misconduct. The court held that the prosecutor’s mention during closing 

arguments of the defendant’s failure to claim self-defense at the time of the murder was proper as 

an impeachment of defendant’s credibility as a witness, not proof of substantive guilt, and thus 

did not warrant reversal. Seymour, 224 F.3d at 560.

Defendant objects to the following statement made by Government=s counsel during 

closing argument: “And you didn’t hear any testimony from Mr. Six that when the gun was 

found, that he protested that’s not my gun, where did you guys find that?” Defendant maintains 

that this statement could not be used to attack his pre-Miranda silence because he testified that 

he did not see any firearms that night and that he did not see the police seize any firearms from 

his vehicle that night. However, the Government points to the fact that during crossexamination, Six testified, “I seen them collect the guns and go to the vehicle or to the back of 

their cruiser and secure them I guess from what they say.” Defendant counters by arguing that 

his above-mentioned statement was only meant to indicate that he saw that something was being 

recovered by the police and that he only found out after the fact that he had been watching the 

police officers secure the guns. Defendant also suggests that before the Government could 

attempt to impeach his testimony, it would have first had to ask him if he had made any 

comment upon observing the guns being removed from his vehicle.

In light of the fact that Six was adamant in his testimony that he did not know that there 

were guns in his vehicle and that his statement could be construed as an admission that he saw 

the police remove guns from his vehicle, it was not improper for the Government to attempt to 

impeach the Defendant by showing that when he saw the officers recover the guns, he showed no 
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surprise or bewilderment. The statement made by the Government’s counsel regarding 

Defendant’s silence was not made as a comment on substantive evidence but served to challenge 

Defendant’s testimony that he did not know that guns were in his vehicle. In light of Seymour, 

the court finds that such use of Defendant’s pre-Miranda silence was not improper as 

impeachment. Further, as in Seymour, it was not improper for the Government’s counsel to raise 

the issue in closing argument. There is no requirement that the Government’s counsel first ask 

Defendant if he made any comments upon observing the guns being removed from the vehicle 

during cross-examination as a predicate to the Government’s argument in closing.

Thus, this court finds no prosecutorial misconduct based on the Government’s remarks 

during closing arguments, nor any abuse of discretion by the district court in denying 

Defendant’s Motion for New Trial.

2. Implied Gang Affiliation During Cross-Examination

Because Defendant did not make a prosecutorial misconduct objection to the 

Government’s gang-affiliation questioning at trial, the issue is reviewed for plain error. Barnes, 

278 F.3d at 646. To succeed under a plain error review, the appellant must show that (1) an error 

occurred during trial, (2) the error was plain, (3) the error “affected the defendant’s substantial 

rights,” and (4) the error “seriously affected the fairness, integrity or public reputation of the 

judicial proceedings.” Id. The term “ ‘[p]lain’ is synonymous with ‘clear’ or, equivalently, 

‘obvious.’ ” United States v. Olano, 507 U.S. 725, 734 (1993).

Defendant argues that it was plain error for the Government to ask Ortiz, Vanderlaan, and 

Defendant several questions about possible gang involvement, and for the Government to 

attempt to impeach Ortiz’s denial of gang involvement by questioning him about pictures 
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showing Ortiz making hand gestures. Defendant argues that such questioning elicited irrelevant 

and prejudicial testimony. This court finds Defendant’s argument not to be well-taken. 

First, the line of questioning was not irrelevant or improper. The Government’s theory of 

the case was that Defendant and Natale were never headed to the hospital and, instead, were 

seeking retaliation for a gang-related shooting that had just occurred. Establishing gang 

involvement on the parts of the witnesses, including Defendant, was relevant to this theory. 

Further, gang affiliation was also a possible motive for bias on behalf of the witnesses and could 

be used to impeach their credibility.

Second, the photos of Ortiz were never admitted into evidence. Though the Government 

did use them in an attempt to impeach Ortiz on the issue of his gang affiliation, the Government 

also withdrew their request to submit them as evidence or show them to the jury when 

Defendant’s counsel objected on the grounds that there was no expert witness to verify that the 

hand gestures were gang signs. Because the jury did not see the photos, there is no indication 

that they prejudiced the Defendant or had any substantial effect on the proceedings. Since a 

plain-error analysis requires the error to be obvious or clear, this court finds that DefendantAppellant has failed to show plain error. 

The court does not find the Government’s cross-examination on gang affiliation improper 

or prejudicial. Thus, the court finds no prosecutorial misconduct.

C. Cumulative Effect of Errors

Defendant argues that the cumulative effects of ineffective assistance of counsel and the 

Government’s improper conduct created a fundamentally unfair trial setting. The district court 

rejected such argument in denying Defendant’s Motion for New Trial, holding that such analysis 

was inapplicable because there were no errors, as required for there to have been a cumulative 
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effect. This court reaches the same conclusion on direct appeal on the issue and, likewise, finds 

no abuse of discretion by the district court.

To warrant reversal based on a cumulative effect of errors argument, the appellant “must 

show that the combined effect of individually harmless errors was so prejudicial as to render his 

trial fundamentally unfair.” United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004). The 

court will only look at the effect of errors and will not consider the cumulative effect of nonerrors. Id. The cumulative effect of errors analysis is irrelevant where no individual ruling was 

erroneous. United States v. Dietz, 577 F.3d 672, 697 (6th Cir. 2009). Because this court finds 

that none of the district court’s individual rulings were erroneous, the cumulative effect analysis 

is inapplicable here.

D. Denial of Motion for New Trial Based on Great Weight of the Evidence

This court reviews a district court’s denial of a motion for new trial for abuse of 

discretion. United States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988). Defendant argues that 

the district court abused its discretion in denying his Motion for New Trial because “the verdict 

was against the great weight of the evidence.” (Appellant’s Br. at 40.) Specifically, Defendant 

argues that Officer Smith’s testimony was unreliable and contradicted by the testimony of 

Defendant and Vanderlaan. When reviewing a district court’s denial of a motion for a new trial 

based on an argument for insufficient evidence, this court does not reweigh the evidence or 

reassess the credibility of the witnesses, but instead, reviews the district court’s determination

that the evidence did not “preponderate heavily against the verdict.” Ashworth, 836 F.2d at 266

(internal quotation marks omitted). In this Circuit, “[a]n abuse of discretion exists only when the 

reviewing court is firmly convinced that a mistake has been made.” United States v. Salisbury, 

983 F.2d 1369, 1375 (6th Cir. 1993).
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Here, the district court did not abuse its discretion. The district court properly weighed 

the evidence and assessed the credibility of witnesses to ensure that there was no miscarriage of 

justice. The district court assessed the credibility of Officer Smith and determined that his

account of events was sufficient to create a question of fact for the jury to determine. Further, 

the district court considered the weight of testimony by Defendant, Vanderlaan, and Ortiz and 

determined that “it was not overwhelming.” Appellant’s argument in favor of reversal merely 

contests the credibility of the witnesses and the weight that Officer Smith’s testimony should 

have been given. Such is exactly the type of rehashing that this court does not conduct on 

review.

Thus, this court finds that the district court did not abuse its discretion by denying 

Defendant’s Motion for New Trial based on the great weight of the evidence.

E. Insufficient Evidence

This court reviews a motion to reverse a conviction for insufficiency of the evidence de 

novo. United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008). This court must assess the 

evidence “in the light most favorable to the prosecution to determine whether any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. This 

court must also “resolve all issues of credibility in favor of the factfinder’s verdict.” United 

States v. Wade, 318 F.3d 698, 701 (6th Cir. 2003) (quoting United States v. Salgado, 250 F.3d 

438, 446 (6th Cir. 2001)) (internal quotation marks and brackets omitted). Circumstantial 

evidence is given the same weight as direct evidence. United States v. Blakeney, 942 F.2d 1001, 

1010 (6th Cir. 1991). Further, “[c]ircumstantial evidence alone is sufficient to sustain a 

conviction and such evidence need not remove every reasonable hypothesis except that of guilt.” 
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United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010) (quoting United States v. 

Spearman, 186 F.3d 743, 746 (6th Cir. 1999)).

Defendant was convicted for being a felon in possession of a firearm in violation of 18 

U.S.C. § 922(g)(1). Such offense requires showing of the following elements: “(1) the defendant

had a previous felony conviction; (2) the defendant knowingly possessed the firearm specified in 

the indictment; and (3) the firearm traveled in or affected interstate commerce.” Campbell, 549 

F.3d at 374. Defendant conceded that he was a convict. Defendant argues that there was 

insufficient evidence at trial for a reasonable finder of fact to conclude that Defendant knowingly 

possessed the firearm or that the firearm affected interstate commerce. This court rejects both of 

Defendant’s arguments.

First, there was sufficient evidence for the jury to find that Defendant knowingly 

possessed the gun. The “possession” element of 18 U.S.C. § 922(g)(1) is satisfied by either 

actual or constructive possession. United States v. Garcia, 758 F.3d 714, 718 (6th Cir. 2014). 

While actual possession “requires that a defendant have immediate possession or control of the 

firearm,” constructive possession still exists where the defendant does not have immediate 

possession of the firearm but “knowingly has the power and intention at a given time to exercise 

dominion and control over [the firearm], either directly or through others.” Id. (quoting 

Campbell, 549 F.3d at 374) (internal quotation marks omitted). As detailed above, the 

Government provided enough circumstantial evidence for the jury to reasonably find beyond a 

reasonable doubt that Defendant had either actual or constructive possession of the gun. Officer 

Smith testified that he found the gun in the place where Defendant was seated prior to being 

removed from the car. This serves as circumstantial evidence allowing the reasonable inference 

by the jury that Defendant knew the gun was there and likely placed it there himself. Further, the 
No. 14-1439

United States v. Six

18

Government provided evidence that the gun that was found in Defendant’s seat—a ninemillimeter handgun—did not match the type of gun—a .22 caliber handgun—or any of the 

ammunition that was found on Natale—.22 caliber bullets.

Second, the Government also provided sufficient evidence to show that the gun 

Defendant possessed affected interstate commerce. It is well-settled that proof that the firearm 

traveled through interstate commerce is sufficient to support the “affecting interstate commerce” 

element of 18 U.S.C. § 922(g)(1). See Scarborough v. United States, 431 U.S. 563, 575 (1977). 

At trial, Agent Miller testified that the firearm Defendant possessed was manufactured in 

Florida, not Michigan. If that testimony was deemed credible by the jury, it was reasonable for 

the jury to find that the firearm had traveled in interstate commerce, and thus, that element was 

satisfied.

Because this court finds there was sufficient evidence at trial for the jury to find the 

elements of 18 U.S.C. § 922(g)(1) beyond a reasonable doubt, we affirm Defendant’s conviction 

and also find no abuse of discretion by the district court in denying Defendant’s Motion for New 

Trial.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Defendant-Appellant’s judgment of conviction 

and the district court’s denial of Defendant-Appellant’s Motion for New Trial.