                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0555n.06

                                           No. 10-6174

                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT                                May 30, 2012
                                                                              LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )    ON APPEAL FROM THE UNITED
                                                         )    STATES DISTRICT COURT FOR
v.                                                       )    THE WESTERN DISTRICT OF
                                                         )    TENNESSEE
DERICO WILLIAMSON                                        )
                                                         )
       Defendant-Appellant.                              )




       Before: CLAY and KETHLEDGE, Circuit Judges, DOW, District Judge.*

       DOW, District Judge. A jury convicted DeRico Williamson of possessing a firearm as a

felon in violation of 18 U.S.C. § 922(g). Williamson appeals that conviction, arguing that (1) there

was insufficient evidence to convict him; (2) the district court erred in allowing certain testimony

over his objections; and (3) the prosecutors committed a discovery violation. We affirm.

                                                 I.

       On August 6, 2008, officers with the Memphis Police Department observed Williamson

engage in a hand-to-hand drug transaction with another man. As officers approached the two men,

Williamson fled, ducking into an apartment about ten or fifteen feet away. As he pursued

Williamson, one of the officers, Detective Star Handley, saw that Williamson was holding something

       *
          The Honorable Robert M. Dow Jr., United States District Judge for the Northern District of
Illinois, sitting by designation.
No. 10-6174
United States v. Williamson

in his left hand and clutching his right side. As Williamson entered the apartment, he threw down

two baggies of marijuana with his left hand, ran through the living room, and then continued up a

flight of stairs. Detective Handley slowed down to retrieve the baggies, and then paused as

Williamson was reaching the top of the stairs. At that point, Williamson took a black object from

his right side and threw it, making a loud “thud,” and then hid in a bathroom at the top of the stairs.

Upon searching the upstairs of the apartment, Detective Handley found a loaded black pistol in an

open closet of a child’s bedroom, which was the only room with an open door at the top of the stairs.

Williamson was apprehended in the bathroom and arrested.

       A federal grand jury indicted Williamson on one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g), and one count of possession of marijuana with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1). After the district court dismissed the marijuana

count on the government’s motion, the case proceeded to trial on the felon-in-possession count.

       During discovery, Williamson’s counsel requested from the government copies of any written

statements that Williamson made while in custody. In its discovery letter, the government stated that

it “enclosed a copy of the arrest ticket and affidavit of complaint which reflect any oral statements

made by your client,” and included in its list of physical evidence a “Rights Waiver Form.” The

letter also made clear that Williamson’s counsel could inspect the originals and/or make copies of

the evidence if she desired.

       After Williamson was arrested and read his rights, he completed the Rights Waiver Form that

was standard in the district. Williamson signed the front page of the form, indicating that he waived

his rights and that he wished to answer questions at that time. In his answers recorded on the back

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No. 10-6174
United States v. Williamson

of the form, Williamson denied possessing the pistol, denied having any knowledge about the pistol,

and answered, “yes, by you” in response to the question, “Have you been treated fairly?” In its

discovery package, the government included a copy of the front side of this rights waiver form, but

neglected to copy and provide defense counsel with the back side, which contained Williamson’s

written statement.

        At trial, the government called several officers, including Detective Handley. Detective

Handley testified that during the chase, he saw Williamson throw a black object with his right hand,

and that when it landed, it made “a thum[p]ing sound.” Although Detective Handley admitted that

he could not identify the object that Williamson threw, he stated that the location of the black

pistol—an open closet in a bedroom just to the right of the top of the stairs—was consistent with the

throwing motion that he saw Williamson make. Detective Handley also testified that there were no

obstructions between where Williamson was standing at the top of the stairs and the closet where

he found the pistol. The government also called a fingerprint expert, who testified that she tested

the pistol in question for fingerprints, and that Williamson’s prints were not on it.

        Williamson’s primary witness was his sister, Kanisha Williamson. Kanisha testified that she

used to live at the apartment where Williamson was arrested, and that she was present during the

arrest. According to Kanisha, the pistol in question belonged to her on-again, off-again boyfriend,

Carlos Clear, who had been staying with her at the time of Williamson’s arrest. Kanisha testified

that Detective Handley found the pistol in a plastic storage bin that was filled with Clear’s clothing,

not in the closet on the floor. Kanisha also testified that when the officers arrested her brother, “they

handcuffed him and pulled him by his dreads down the steps.”

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No. 10-6174
United States v. Williamson

        On cross examination, Kanisha made numerous incorrect statements about the number and

location of closets within the bedroom at the top of the stairs. She also testified that she did not tell

anyone—including Williamson’s counsel or the government agents who interviewed her—that the

pistol belonged to Clear until a month before trial, when, at Williamson’s request, she wrote a

statement to that effect and sent it to Williamson in prison. She also admitted that at the time of trial,

Clear was deceased and could not contradict her testimony that the pistol belonged to Clear, and not

her brother.

        The government called two witnesses in rebuttal. The government first asked Officer

Brandon Champagne, the case agent on Williamson’s case, whether, based on his observation of the

scene, it would be possible to throw a gun from the hallway at the top of the stairs to the inside of

the closet where the gun was found. Williamson’s counsel objected to the basis of Officer

Champagne’s knowledge, but the Court overruled the objection, concluding that the testimony was

admissible under Federal Rule of Evidence 701. Officer Champagne then testified that, “In my

opinion . . . a gun could have been very easily tossed into this closet.”

        The government then recalled Detective Handley to rebut Kanisha’s testimony that the

officers had pulled Williamson down the stairs by his hair. To do so, the government sought to show

Detective Handley the back page of the rights waiver form where Williamson indicated that he had

been treated fairly by the police. Williamson’s counsel objected, arguing that the government had

not disclosed this document or informed her of Williamson’s statement prior to Detective Handley’s

rebuttal testimony. Williamson’s counsel admitted that the rights waiver form was the “usual” form,

but argued that during discovery, the government had only produced a copy of the front of the form.

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No. 10-6174
United States v. Williamson

Williamson’s counsel was given an opportunity to read the back of the form, stated that she did not

“necessarily object” to the use of the document itself, but then objected that Williamson’s statement

was not relevant to whether there was a scuffle between Williamson and the arresting officers. The

district court overruled the objection, and allowed the government to use the statement only for the

purpose of asking Detective Handley what Williamson’s answer was when he was asked if he was

treated fairly. Detective Handley replied, “[O]n the rear page, he was asked have you been treated

fairly, and he answered yes and then initialed next to it.” The document was not admitted into

evidence. The jury convicted Williamson of one count of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g).

       Williamson then moved for a new trial, arguing that the government’s failure to turn over the

back page of the rights waiver form violated the rule articulated in Brady v. Maryland, 373 U.S. 83

(1963). The district court denied Williamson’s motion, and sentenced him to 120 months in prison.

This appeal followed.

                                                  II.

                                                  A.

       Williamson first argues that the evidence presented at trial was insufficient to convict him

of being a felon in possession of a firearm. In determining whether the evidence is sufficient to

support a criminal conviction, we consider “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” United States v. Russell, 595 F.3d 633, 644 (6th Cir. 2010)

(internal quotations, citations, and emphasis omitted). Where, as here, the defendant failed to renew

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No. 10-6174
United States v. Williamson

his Rule 29 motion for acquittal at the close of all the evidence, our review is limited to a

determination of whether there was a “manifest miscarriage of justice.” United States v. Childs, 539

F.3d 552, 558 (6th Cir. 2008) (internal quotations and citations omitted). Such a miscarriage of

justice only occurs if “the record is devoid of evidence pointing to guilt.” Id.

       The government presented ample evidence at trial to sustain the jury’s verdict. Detective

Handley testified that he saw Williamson clutching an object to his right side as he ran from the

officers. He then saw Williamson pull a black object from his right side, and throw it, making a

thud. When the officers arrested Williamson, they found a black, loaded pistol in an open closet in

a child’s room, a few feet away from where he had thrown the black object. Detective Handley

testified that the location of the pistol was consistent with the direction that Williamson had thrown

the object, and that there were no obstructions between where Williamson was standing at the top

of the stairwell and the closet where the pistol was found. Finally, Officer Champagne testified that

“a gun could have been very easily tossed into [the] closet” from the top of the stairway.

       Williamson argues that the physical evidence contradicts the officers’ testimony; that it was

unlikely, if not impossible, to throw a pistol from the hallway at the top of the stairs, around the

closet door, and into the closet, especially if it made only one “thump.” The jury, however, “had the

advantage of viewing photographs of the scene, it had the opportunity to assess the scene of the

arrest and make an informed judgment about the Government’s theory of the case.” United States

v. Daniels, 170 F. App’x 409, 413 (6th Cir. 2006) (internal citation omitted). Because a rational trier

of fact could have come to the conclusion that Williamson possessed the pistol that Detective

Handley found in the closet, we conclude that the evidence was sufficient to support his conviction.

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No. 10-6174
United States v. Williamson

See, e.g., United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005) (rejecting the defendant’s

sufficiency challenge where an officer testified that he saw the defendant holding a long black object

that looked like a shotgun, saw the defendant throw the object to the ground as he began running and,

upon searching the scene, another officer found a black rifle in the same area); United States v.

Moore, 208 F.3d 411, 413 (2d Cir. 2000) (finding sufficient evidence of possession where officers

testified that they saw the defendant moments earlier with a large black and silver handgun and, after

a brief chase, found that same gun in a closet a few feet from where they arrested the defendant);

Daniels, 170 F. App’x at 412–13 (concluding that there was sufficient evidence to support a

felon-in-possession conviction where an officer testified that he observed the defendant pull at

something silver with his right hand and throw it to the ground and, shortly thereafter, another officer

found a pistol in that same area). Accordingly, Williamson’s sufficiency argument is without merit.

                                                  B.

        Williamson next argues that the district court should have excluded Officer Champagne’s

testimony because it was improper lay opinion testimony. We review a district court’s evidentiary

rulings for an abuse of discretion, and will reverse “only where the district court’s erroneous

admission of evidence affects a substantial right of the party.” United States v. White, 492 F.3d 380,

398 (6th Cir. 2007) (citing Fed. R. Evid. 103(a)).

        Pursuant to Federal Rule of Evidence 701, a lay witness may provide opinion testimony if

it is (1) rationally based on his or her perception; (2) helpful to clearly understanding his or her

testimony or to determining a fact in issue; and (3) not based on scientific, technical, or other

specialized knowledge that lies within the scope of Federal Rule of Evidence 702. Williamson does

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No. 10-6174
United States v. Williamson

not contest the fact that Officer Champagne’s testimony was helpful to determining whether

Williamson could have thrown the pistol from the stairway to where it was found in the open closet.

Instead, Williamson argues that Officer Champagne’s opinion that “a gun could have been very

easily tossed” from the top of the stairs to the inside of the closet was not rationally based on his

perception and was based on scientific, technical, or other specialized knowledge.

       We disagree. First, Officer Champagne testified that about a week before the trial began, he

went to the apartment where officers arrested Williamson, studied the area around the stairway and

the closet, and took pictures of the scene. His opinion testimony was based on what he rationally

perceived at the apartment. Notably, aside from the use of the phrase “very easily,” Officer

Champagne’s testimony was no different from the testimony of Detective Handley, who stated that

there were no obstacles between the stairway and where he found the pistol in the closet.

       Furthermore, the fact that Officer Champagne used the phrase “very easily” does not take his

lay opinion into the realm of probability and physics, as Williamson argues. Lay testimony is

testimony that “results from a process of reasoning familiar in everday life, whereas an expert’s

testimony results from a process of reasoning which can be mastered only by specialists in the field.”

White, 492 F.3d at 401 (internal citations and quotations omitted). Officer Champagne’s testimony

that it would be easy to throw an object from one place to another “results from a process of

reasoning familiar in everyday life.” Id. It is an observation that anyone could make after studying

the rooms at issue. Officer Champagne’s lay opinion was not technical, nor did it involve any

specialized skill or expertise. He was merely asserting that, based on the layout of the apartment,



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No. 10-6174
United States v. Williamson

which he had personally observed, he believed that it could be done, and done without much effort.

His opinion was proper lay testimony.

        In any event, even if we were to determine that the district court erred in allowing Officer

Champagne to testify as to his opinion, any error did not affect Williamson’s substantial rights. In

addition to Officer Champagne’s testimony, the jury also heard testimony from Detective Handley

that he found the pistol in a location that was consistent with the direction that Williamson had

thrown the black object and that there were no obstructions between where Williamson was standing

at the top of the stairwell and the inside of the closet. That evidence was sufficient for the jury to

conclude that it was possible for Williamson to throw the pistol from the hallway at the top of the

stairs to the inside of the closet. Accordingly, we reject Williamson’s challenge to Officer

Champagne’s testimony.

                                                  C.

        Finally, Williamson challenges the government’s use at trial of the back side of the rights

waiver form at trial. First, Williamson contends that the district court erred when it allowed the

government to introduce Williamson’s statement about how he was treated to rebut Kanisha’s

testimony that officers dragged Williamson down the stairs by his hair. Williamson argues (1) that

how Williamson was treated by arresting officers is not relevant to whether he possessed the firearm,

and (2) that the actual statement that Williamson made, indicating that he was treated fairly by the

processing officer at the police station, does not rebut Kanisha’s testimony that the arresting officers

mistreated her brother.



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No. 10-6174
United States v. Williamson

        Federal Rule of Evidence 401 defines “relevant evidence” as “evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” “Because a timely objection was

made on the basis of relevance, we review the district court’s ruling using the abuse-of-discretion

standard.” United States v. Newsom, 452 F.3d 593, 601 (6th Cir. 2006). An abuse of discretion

exists “when the ruling court is firmly convinced that a mistake has been made.” Morales v. Am.

Honda Motor Co., Inc., 151 F.3d 500, 516 (6th Cir. 1998).

        As an initial matter, we agree with Williamson that how the arresting officers treated him

does not make it more or less probable that he possessed the pistol found at the scene. But once the

defense introduced Kanisha’s testimony that the officers pulled Williamson down the stairs by his

hair, the government was well within its rights to rebut that testimony with the statement that

Williamson made immediately after his arrest. After Kanisha testified as to Williamson’s treatment,

Williamson’s statement was relevant, both to rebut that specific statement and to raise doubts about

Kanisha’s general credibility.

        As to Williamson’s argument that his full statement, “yes, by you,” is not actually

impeaching because the “by you” refers to the officers interrogating him, not to the arresting officers,

Williamson had the opportunity to make his point during cross examination. By that time,

Williamson’s counsel had been given an opportunity to review the back page of the rights waiver

form, and counsel was aware of the full statement that Williamson made at the police station.

Indeed, the record reflects that she sought to clarify who Williamson believed had treated him fairly

when she asked Detective Handley which officer’s name was on the rights waiver form.

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No. 10-6174
United States v. Williamson

       Moreover, even assuming that the district court abused its discretion when it allowed the

testimony at issue, any error was harmless. See Newsom, 452 F.3d at 602. As Williamson admits,

how the arresting officers took him down the stairs after he was arrested, or whether he fought with

the officers, is not relevant to the ultimate issue in the case—whether he possessed the pistol.

Further, if the jurors chose to believe the officers’ testimony over the testimony of Kanisha, it was

likely because they discredited her testimony for other reasons—like the fact that she confused the

layout and number of closets in her child’s bedroom, or the fact that she failed to tell anyone,

including government agents, that the gun belonged to her boyfriend until Williamson asked her to,

and Clear had passed away and thus could not dispute it.

       Nor does the government’s failure to disclose before trial the back page of the rights waiver

form require reversal in this case. Williamson argues that the government’s failure to copy and

disclose the back page of the form was a violation of its obligation under Federal Rule of Criminal

Procedure 16.1 In relevant part, Rule 16 requires that, upon a defendant’s request, the government


       1
         At oral argument, Williamson’s counsel withdrew her argument that the government’s
failure to disclose the back page of the rights waiver form violated Brady v. Maryland, 373 U.S. 83
(1963), and for good reason. To establish a claim under Brady, Williamson must prove that “the
Government suppressed evidence, that such evidence was favorable to the defense, and that the
suppressed evidence was material.” United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007).
The district court properly concluded when ruling on Williamson’s motion for a new trial that
Williamson’s own statement did not constitute Brady material because he knew about the statement.
See Henness v. Bagley, 644 F.3d 308, 325 (6th Cir. 2011) (finding no Brady violation where the
defendant “already knew of his own contact with the police at the time of trial”); United States v.
Edgecombe, 107 F. App’x 532, 541 (6th Cir. 2004) (“The government’s Brady disclosure obligation
does not apply when the defendant knew or should have known the essential facts permitting him
to take advantage of the exculpatory information at issue.”). Even assuming that the government
negligently suppressed evidence that was favorable to Williamson, however, he cannot show that
the suppressed evidence was material. See United States v. Agurs, 427 U.S. 97, 112 n.20 (1976)

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No. 10-6174
United States v. Williamson

disclose to the defendant, and make available for inspection, copying, or photographing: (1) any

relevant written statements made by the defendant if the statement is within the government’s

possession, custody, or control; and the attorney for the government knows—or through due

diligence could know—that the statement exists; and (2) the portion of “any written record

containing the substance of any relevant oral statement made before or after arrest if the defendant

made the statement in response to interrogation by a person the defendant knew was a government

agent.” Fed. R. Crim. P. 16(a)(1)(B)(i)-(ii). Because Williamson did not raise this issue below, we

review it only for plain error. United States v. Faulkenberry, 614 F.3d 573, 590 (6th Cir. 2010); Fed.

R. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even though it was

not brought to the court’s attention.”).

       Here, there is no doubt that the government disclosed that there was a rights waiver form in

evidence in this case, that Williamson’s counsel knew that the typical rights waiver form contained

both a front and back side, and that the government made the entire form available for inspection or

copying. The question is whether, in light of those facts, the government’s negligence in copying

the form itself—and providing incomplete and potentially misleading information in its discovery

letter—is a violation of Rule 16. We need not definitively resolve that question, however, because

any violation of Rule 16 did not affect Williamson’s substantial rights. See United States v.

Carradine, 621 F.3d 575, 579 (6th Cir. 2010) (stating that we may correct an error not raised at trial

only where the appellant demonstrates that the error affected the appellant’s substantial rights, which


(holding that the government’s obligations under Brady do not extend to evidence that affects a
defendant’s ability to prepare for trial).

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No. 10-6174
United States v. Williamson

in the ordinary case means it affected the outcome of the district court proceedings) (internal citation

omitted).

        Williamson argues that if his counsel had the full rights waiver form before trial, the outcome

of the trial would have been altered for two reasons. First, he contends that he would have been able

to rebut the government’s contention that, shortly before trial, he talked his sister into lying on his

behalf about whose gun was in her apartment. With the back side of the rights waiver form

itself—not just his bald assertion—Williamson claims he could have demonstrated that it was his

position all along that he had not possessed the pistol. Second, Williamson argues that if his counsel

had his written statement before trial, she may have prepared differently, and may even have

encouraged him to testify at trial.

        Williamson’s arguments are flawed for a number of reasons, chief among them the fact that

it was Williamson himself who made the statements that were negligently withheld. Further, it was

always Williamson’s position that he had never possessed the pistol found in the apartment—the jury

knew that based on his “not guilty” plea—and all that the back side of the rights waiver form only

corroborates his assertion. Finally, Williamson’s contention that he would have prepared for trial

differently, and may have testified had he known about the back page of the form, is too speculative

to warrant a new trial. See United States v. Clark, 385 F.3d 609, 620 (6th Cir. 2004) (concluding

that the defendant suffered no prejudice from the late disclosure of agent notes because, among other

things, the defendant’s claim that without the notes he could not make an informed decision to enter

a guilty plea was “simply too speculative to justify a new trial”). For these reasons, we conclude that

there is no cause to disturb the verdict against Williamson because any error that may have occurred

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No. 10-6174
United States v. Williamson

in regard to the rights waiver form was harmless and could not have affected Williamson’s

substantial rights.

        The district court’s judgment is affirmed.




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