                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0167n.06

                                          No. 13-1321                                FILED
                                                                               Feb 28, 2014
                                                                           DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.
                                                      ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
MARVIN HUDGINS,
                                                      EASTERN DISTRICT OF MICHIGAN
       Defendant-Appellant.




BEFORE:        BATCHELDER, Chief Judge; SILER and CLAY, Circuit Judges.

       CLAY, Circuit Judge. Defendant Marvin Hudgins appeals his conviction following a

jury trial of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(e). Defendant argues that the government presented insufficient evidence that he possessed

the firearm; and that the procedure by which the jury announced its verdict was improper. For

the reasons set forth below, we AFFIRM the conviction of Defendant as a felon in possession of

a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).


                                        BACKGROUND

A.     Procedural History

       On October 10, 2012, Marvin Hudgins (“Defendant”) was charged with being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Defendant was

convicted following a two-day jury trial held on October 15 and 16, 2012. On March 12, 2013,
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Defendant was sentenced to the mandatory minimum prison term of 180 months. A timely

notice of appeal was filed on March 15, 2013.

B.     Factual Background

       Defendant left a Detroit motorcycle club on May 1, 2012 in the car of James Gibson

(“Gibson”), another club patron. Defendant was riding in Gibson’s car because he was being

given a ride home following some car trouble. As they left the club together, Gibson noticed that

Defendant had a laptop with him, but did not see a gun.

       Shortly after leaving the club, Detroit police officer William Zeolla (“Officer Zeolla”)

stopped Gibson’s car because it had a cracked windshield. As Officer Zeolla approached the car,

he noticed that Defendant was sitting in the front passenger seat and was extending his left arm

and hand from the front passenger seat to the rear floorboard behind the driver’s seat. Officer

Zeolla told Defendant and Gibson to show their hands. Gibson put his hands on the steering

wheel. But Defendant kept moving his left hand behind the driver’s seat near the floor.

       When Officer Zeolla got closer to the driver’s side door, he saw a gun on the floor of the

car, just behind the driver’s seat. Officer Zeolla stated that Defendant still had his hand “down

by the weapon” and “very close” to it. Officer Zeolla believed that Defendant was either trying

to conceal the gun or trying to arm himself and yelled at Defendant—“two or three times”— to

put his hands up. Officer Zeolla radioed for help and Officer Jason Neville arrived.

       Officer Neville retrieved the gun—“fully visible from outside the car”—from the floor

board directly behind the driver’s seat. There were no fingerprints found on the gun and it was

not tested for DNA. Gibson also testified that he did not own a gun.




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                                          DISCUSSION

                                       Standard of Review

        Typically, when the sufficiency of the evidence is challenged on appeal, the standard of

review is 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. United States v.

Castano, 543 F.3d 826, 837 (6th Cir. 2008) (quoting United States v. Newsom, 452 F.3d 593, 608

(6th Cir. 2006)). However, this standard only applies if a defendant has properly preserved the

issue of the sufficiency of the evidence for appeal under Fed. R. Crim. P. 29. United States v.

Frazier, 595 F.3d 304, 306 (6th Cir. 2010).

       A Rule 29 motion is properly preserved for appeal when a defendant makes a “motion for

acquittal at the end of the prosecution’s case-in-chief and at the close of evidence. Failure to

make the required motions constitutes a waiver of the objections to the sufficiency of the

evidence.” United States v. Chance, 306 F.3d 356, 368–69 (6th Cir. 2002). In this case,

Defendant admits that there was no Rule 29 motion argued in district court. Because no Rule 29

motion was made or argued at the district court, this Court reviews Defendant’s sufficiency of

the evidence challenge under a “manifest miscarriage of justice” standard. United States v.

Carnes, 309 F.3d 950, 956 (6th Cir. 2002). Under this standard, “we only reverse a conviction if

the record is devoid of evidence pointing to guilt.” Id.

I.     Defendant’s argument regarding manifest miscarriage of justice

       After reviewing the record, we find that it was not devoid of evidence pointing to

Defendant’s guilt. In order to sustain a conviction under 18 U.S.C. § 922(g)(1), the government

had to prove beyond a reasonable doubt that: (1) Defendant had a qualifying prior felony

conviction; (2) Defendant knowingly “possessed” the firearm; and (3) the firearm traveled in

interstate commerce. See United States v. Caraway, 411 F.3d 679, 682 (6th Cir. 2005); United
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States v. Schreane, 331 F.3d 548, 560 (6th Cir. 2003).        Defendant stipulated at trial, and

concedes here, that he had a qualifying prior felony conviction and that the firearm he is accused

of possessing traveled in interstate commerce. Consequently, the only contested issue is whether

Defendant “possessed” the firearm.

       Possession may be either actual or constructive. United States v. Moreno, 933 F.2d 362,

373 (6th Cir. 1991). “Actual possession exists when a tangible object is in the immediate

possession or control of the party. Constructive possession exists when a person does not have

actual possession but instead knowingly has the power and the intention at a given time to

exercise dominion and control over an object, either directly or through others.” United States v.

Craven, 478 F.2d 1329, 1333 (6th Cir. 1973).

       Defendant contends that the record is devoid of evidence that he possessed the firearm

and that his conviction was a manifest miscarriage of justice. However, the record does not

support this contention. First, the gun was “very close” to Defendant’s left hand, which was

extended from the front right passenger seat all the way to the rear floor board behind the

driver’s seat. Second, Defendant kept his hand by the gun despite Officer Zeolla’s repeated

commands to show his hands. Third, Officer Zeolla testified that, based on his experience, he

believed Defendant was either hiding the gun or arming himself with it. Fourth, the gun was in

James Gibson’s car—but Gibson testified that he does not own guns and had never seen the gun

before. Also, Gibson testified that he was the only person with access to his car and there was no

gun in the car until he gave Defendant a ride. In addition, the jury had the benefit of the in-car

police video, which recorded Officer Zeolla’s approach and repeated commands to Defendant—

including Officer Zeolla’s emphatic language when he saw a gun.




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       Defendant makes several arguments against the evidence pointing to his knowing

possession if the gun: (1) he argues that he’s a big guy in a small car and had to stretch his arms

out; (2) he was moving his hands on the floor next to the gun since he was putting his laptop on

the back seat; and (3) he didn’t obey police commands to show his hands because he didn’t hear

them. These attempts by Defendant to explain away the government’s evidence demonstrate that

the record was not devoid of incriminating evidence and his conviction did not constitute a

manifest miscarriage of justice.

II.    Jury Verdict Procedure

       After closing arguments, the district court instructed the jury that “[i]n order to return a

verdict in this case it is necessary that 12 out of 12 jurors agree. In other words, your verdict

must be unanimous.” Later that day, the jury sent a note saying they had reached a verdict,

which the foreperson confirmed when they were brought back into court. Defendant argues that

because of a mistake made by the clerk in reading the verdict, it is “unclear” whether all jurors

agreed to the guilty verdict when they were polled.

       After the jury was brought into the courtroom to announce its verdict, the following

occurred:

               THE COURT CLERK: United States of America versus Marvin Hudgins. We,

               the jury, after due deliberation, unanimously find as follows. Count One, felon in

               possession of a firearm, the jury finds not guilty. Or, I’m sorry. The jury finds

               guilty. Foreperson. Date, October 16th, 2012.

               THE COURT: Is that the verdict of this jury? THE JURY: Yes, it is.

               THE COURT: Does anybody want the jury polled?

               MR. VILLARUEL: The defense would like the jury polled, your Honor.

               THE COURT: Okay. Juror number one, is that your verdict? JUROR: Guilty.


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               THE COURT: Jury number two, is that your verdict? JUROR: Yes.

               THE COURT CLERK: Juror number three? JUROR: Yes.

               THE COURT CLERK: Juror number four? JUROR: Yes.

               THE COURT CLERK: Juror number five? JUROR: Yes.

               THE COURT CLERK: Juror number six? JUROR: Yes.

               THE COURT CLERK: Juror number seven? JUROR: Yes.

               THE COURT CLERK: Juror number eight? JUROR: Yes.

               THE COURT CLERK: Juror number nine? JUROR: Yes.

               THE COURT CLERK: Juror number ten? JUROR: Yes.

               THE COURT CLERK: Juror number eleven? JUROR: Yes.

               THE COURT CLERK: Juror number twelve? JUROR: Yes.

               THE COURT: Ladies and gentlemen, thank you for your attention to this matter.

               This jury is discharged . . .”

       After the polling was complete, Defendant made no objections. When the district court

asked “is there anything further either counsel wishes to place on the record,” Defendant said no.

Only on appeal does Defendant claim that the jury’s guilty verdict was ambiguous or not

unanimous.

       Defendant claims that the court clerk’s announcement of the erroneous “not guilty”

verdict made it “unclear” whether jurors 2–12 actually agreed to the “guilty” verdict stated by

juror 1 when they were polled or the “not guilty” verdict initially stated by the court clerk.

Defendant argues that the district court did little to clarify the matter by simply asking the jurors,

“Is that the verdict of this jury[.]” However, the record does not support Defendant’s argument.

       This Court reviews for plain error when there is a challenge on appeal to the validity of a

jury verdict, when a jury is polled and the defendant does not object to the result of the polling.

United States v. August, 984 F.2d 705, 711 (6th Cir. 1992), citing United States v. Love, 597 F.2d

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81, 84 (6th Cir. 1979). Plain error occurs when there is an “(1) error (2) that was obvious or

clear; (3) that affected Defendant’s substantial rights; and (4) that affected the fairness, integrity,

or public reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386

(6th Cir. 2008) (internal quotation marks and citations omitted).

        To establish plain error, Defendant must first show there was an error. United States v.

Marcus, 560 U.S. 258, 262–63 (2010). “The ‘plain error’ doctrine is to be used sparingly, only

in exceptional circumstances and solely to avoid a miscarriage of justice.” United States v.

Carney, 387 F.3d 436, 453 (6th Cir. 2004) (internal quotation marks and citations omitted). A

slip of the tongue by the court clerk is not plain error. The verdict was clear enough to

Defendant in the courtroom that when the verdict was actually read and the jury polled, he made

no objections and did not ask for further clarification. In addition, no one else in the courtroom

found the clerk’s announcement confusing: not the government, the foreperson, or the district

judge, who asked the foreperson if that was his verdict.

        Furthermore, the court clerk did not announce an “either or” verdict.            He instantly

corrected his reading of the statement that “the jury finds not guilty” by apologizing for his

misreading by stating “I’m sorry,” and by reading in the verdict: “The jury finds guilty.” Any

ambiguity about the verdict was clarified by the jury poll, which began with juror number one,

who responded to the district court’s inquiry by stating, “guilty.” Every single juror after that

agreed that “guilty” was his or her verdict. Because Defendant has not identified any error, he is

not entitled to a new trial.


                                          CONCLUSION

        For the foregoing reasons, we AFFIRM the conviction of Defendant as a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).


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