                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0395n.06
                              Filed: July 1, 2008

                                             No. 07-1564

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


KARLA M. SMITH,                                    )
                                                   )
       Defendant-Appellant,                        )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA                           )    EASTERN DISTRICT OF MICHIGAN
                                                   )
       Plaintiff-Appellee.                         )
                                                   )
                                                   )

Before: GUY, SUHRHEINRICH, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Karla M. Smith appeals

her convictions for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1);

possession of a controlled substance with intent to distribute pursuant to 21 U.S.C. § 841(a); and

possession of a firearm in furtherance of a drug-trafficking crime pursuant to 18 U.S.C. § 924(c).

Smith contends that the district court erred in (1) denying her motion for a new trial; (2) finding that

her inculpatory statement to Sergeant Spencer was not discoverable under Federal Rule of Criminal

Procedure 16(a); (3) providing the jury with misleading jury instructions; and (4) denying her motion

for a judgment notwithstanding the verdict pursuant to Federal Rule of Criminal Procedure 29. For

the following reasons, we affirm the decisions of the district court.

                                                   I.


                                                  -1-
       On December 10, 2003, a Detroit Police Narcotics Enforcement Unit executed a search

warrant at 13626 Minock Street (the “residence”) in the City of Detroit. During the trial, four

officers – David Salazar, Darick Bradford, Michael Carson, and Tyrone Spencer – testified to the

events occurring during the raid on the residence.

       Initially, the officers stood on the porch of the residence while the senior officer, Tyrone

Spencer, announced the presence and purpose of the police officers. David Salazar testified that

while the presence and purpose was being announced, he was in front of the other members of his

raid crew on the porch of the residence. At that time, he “observed through the window Defendant

jump up from a couch in the front room and run towards the rear of the location.” Salazar stated that

he informed his fellow officers that Smith was running. Upon hearing that Smith was running, the

other officers forcibly opened the front door.

       Salazar testified that after entering the residence, he found Smith in the bathroom, which was

located about twenty to thirty feet from the front door. Salazar also testified that he brought Smith

to the “front room” of the residence, handing her off to his fellow officers. According to Salazar’s

testimony, he then continued to secure the premises. In doing this, he found an older female, whose

name was later determined to be Valerie Davis, in the first bedroom dressed in a nightgown lying

in bed. Salazar recalls the woman stating that she was “sick and had the flu or something like that.”

       Bradford testified that upon entering the residence he saw a table in front of the couch from

which Smith had run; on the table was “suspected cocaine . . . wrapped into ziplocs.” As Bradford

explained, this method of wrapping indicated that the cocaine was being prepared for distribution.

       Carson testified that he discovered a .357 Magnum revolver with five live rounds on the

couch underneath a shirt. Carson also testified that he informed Spencer of the weapon.


                                                 -2-
         At trial, Spencer testified that he found $309 in Smith’s pants pocket, comprised of eight

twenty-dollar bills, eight ten-dollar bills, eleven five-dollar bills, and fourteen one-dollar bills. In

addition, Spencer testified that while he remained in the front room, Smith, in response to seeing the

recovery of the gun, stated that the “gun was there because she had gotten robbed a couple of days

ago at the house” and that the gun had been provided by her “supplier.” Under cross-examination,

Spencer conceded that he had not included this fact in the Preliminary Complaint Report. None of

the other officers testified that they heard Smith make this statement.

        During the course of the trial, Smith contested the admissibility of this statement. While the

government argued that the statement constituted an excited utterance, Smith argued that the

statement was made in response to interrogation. Prior to Spencer’s testimony, Smith’s counsel

argued the following at a side-bar conference: “If you look at the nature of the statement, that is not

an excited utterance that oh, the seller bought this gun three days ago. This is a conversation she is

having with these officers. This is not an excited utterance. . . . This is interrogation no matter how

the government couches it.”

        On related grounds, Smith also argued that the government should have disclosed this

statement during the course of discovery because the statement was made during an interrogation

and was therefore discoverable under Federal Rule of Criminal Procedure 16(a). As Smith’s counsel

explained: “[I]t’s . . . our position that . . . the statement was inculpatory. It did go – it was made in

response to – it was made to a government agent and I believe that the nature – that the statement

itself was elicited in direct response to governmental questioning.” When the court asked if there

was any evidence that the statement was made in response to questioning, Smith’s counsel answered

as follows:


                                                   -3-
       I believe the nature of the statement itself, Your Honor, suggests that it was made in
       response to a question. I don’t believe that Officer Spencer indicated that Miss Smith
       merely blurted out that – merely blurted out this statement. Apparently he was sitting
       down with her at the time the statement was made. We would have to logically
       assume he was sitting down with her having a conversation with her and this was in
       response to his questions.

However, the district court concluded that because there was no evidence of questioning, the

statement was properly admitted as an excited utterance and was not discoverable under Rule 16(a).

       The jury found Smith guilty on all three counts: felon in possession of a firearm; possession

with intent to distribute a controlled substance; and possession of a firearm in furtherance of a drug

trafficking crime.

       After the verdict, Smith moved for a judgment in favor of the defendant notwithstanding the

verdict, or, in the alternative, a new trial with a request for an evidentiary hearing. This motion was

premised on a number of alleged errors at trial, which included, inter alia: (1) that the government

improperly mentioned Smith’s aliases during its opening statement, and (2) that the statement made

by Smith regarding the discovered weapon should have been disclosed to the defense earlier. The

district court denied this motion but noted that this conclusion was not based upon Spencer’s

testimony. In fact, the district court found Spencer’s testimony regarding Smith’s alleged statement

with respect to her having received the discovered weapon from her supplier “incredible.”

       Smith now appeals the various determinations of the district court.

                                                  II.

       “Rule 33 of the Federal Rules of Criminal Procedure permits a district court, upon a

defendant’s motion, to ‘vacate any judgment and grant a new trial if the interest of justice so

requires.’” United States v. Wheaton, 517 F.3d 350, 360-61 (6th Cir. 2008) (quoting Fed. R. Crim.



                                                 -4-
Pro. 33). “A motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure may

be premised upon the argument that the jury’s verdict was against the manifest weight of the

evidence.” United States v. Hughes, 505 F.3d 578, 592 (6th Cir. 2007). “A district judge, in

considering the weight of the evidence for purposes of adjudicating a motion for new trial, may act

as a thirteenth juror, assessing the credibility of witnesses and the weight of the evidence.” Id. at

593. This court reviews a trial court’s ruling regarding a motion for Rule 33 for “clear and manifest

abuse of discretion.” Id.

        Smith contends that the district court did in fact abuse its discretion by not granting her

motion for a new trial pursuant to Rule 33. In support of this claim, Smith notes that the district

court admitted the testimony of Spencer – testimony that the district court itself found “incredible.”

In addition, Smith notes that the government mentioned her aliases during its opening statement and

that the district court concluded that such mention was improper. Accordingly, Smith argues that

under these circumstances, the district court’s denial of her motion for a new trial constituted an

abuse of its discretion.

        Smith is correct that “[o]nly when proof of an alias is relevant to identifying the defendant

should a court allow its inclusion in the indictment and its subsequent introduction at trial.” United

States v. Wilkerson, 456 F.2d 57, 59 (6th Cir. 1972). Thus, this court has generally disapproved of

the introduction of aliases by the prosecution when the “principal use to which the aliases were put

was to indicate to the jury that people who use aliases are inherently suspect.” Id.; see also United

States v. Williams, 158 F. App’x 651, 654-55 (6th Cir. 2005); United States v. Emuegbunam, 268

F.3d 377, 394 (6th Cir. 2001). Indeed, in the instant case, there appears to have been no such reason

to have introduced the aliases of Smith as they were not necessary to identify the defendant.


                                                 -5-
        However, despite the inclusion of aliases and the “incredible” testimony of Spencer, the

district court found that the government presented “significant and substantial evidence” at trial and

therefore it could not “conclude that a new trial would be in the interest of justice.” Given the

testimony regarding Smith’s proximity to both the weapon in question and the cocaine, the absence

of any other healthy individual in the house, and the currency found on Smith’s person when she was

arrested, the district court’s conclusion that a new trial would not be in the interest of justice cannot

be said to have been a clear and manifest abuse of discretion.

                                                  III.

        We next consider Smith’s claim that Smith’s alleged statement regarding her receipt of the

weapon from her supplier should have been disclosed prior to trial.

        According to Federal Rule of Criminal Procedure 16(a)(1)(A), “[u]pon a defendant’s request,

the government must disclose to the defendant the substance of any relevant oral statement made by

the defendant, before or after arrest, in response to interrogation by a person the defendant knew was

a government agent if the government intends to use the statement at trial.” Thus, statements not

made in response to an interrogation do not fall within the requirements of Rule 16(a). See United

States v. Godinez, 114 F.3d 583, 589 (6th Cir. 1997) (“It is clear that a literal reading of the Rule

[i.e., Rule 16(a)] does not require the government to provide statements made by the defendant that

were not made in response to an interrogation.”); see also United States v. Green, 548 F.2d 1261,

1267 (6th Cir. 1977) (“For purposes of application of the pre-trial discovery provisions of the Federal

Rules of Criminal Procedure, he would have us equate his own spontaneous, unsolicited admissions,

made within hearing of an undercover police officer, to a defendant’s responses to direct questions

posed by a government agent during a criminal investigation.”). This issue therefore hinges on


                                                  -6-
whether Smith’s alleged statement was made in response to interrogation.

       Although the government claims otherwise, a number of courts, including our own, appear

to have imported the standard for determining whether a statement was made in response to an

interrogation from Rhode Island v. Innis, 446 U.S. 291 (1980), although doing so in unpublished

opinions. In Innis, the Supreme Court stated as follows:

       A practice that the police should know is reasonably likely to evoke an incriminating
       response from a suspect thus amounts to interrogation. But, since the police surely
       cannot be held accountable for the unforeseeable results of their words or actions, the
       definition of interrogation can extend only to words or actions on the part of police
       officers that they should have known were reasonably likely to elicit an incriminating
       response.

Innis, 446 U.S. at 301-02 (footnotes omitted and emphasis in original). A number of other circuits

have applied the Innis standard for an interrogation to the Rule 16(a) context. See, e.g., United

States v. Rodrigues, No. 95-10497, 1996 U.S. App. LEXIS 30267, at *9-10 (9th Cir. Nov. 19, 1996)

(concluding that Rule 16(a) did not impose any duty to disclose the relevant evidence and then citing

Innis for the definition of ‘interrogation’); United States v. Otero, No. 90-1839, 1990 U.S. App.

LEXIS 18420, at *3-4 (7th Cir. 1990) (concluding that the statements in question were not made in

response to an interrogation because they were not given under circumstances reasonably likely to

elicit an incriminating response); cf. United States v. Huzzey, No. 97-4607, 1998 U.S. App. LEXIS

14835, at *2-3 (4th Cir. June 30, 1998) (per curiam) (“Rule 16 only requires the Government to

disclose defendants’ statements made in response to interrogation, and it is well settled that routine

booking questions, such as asking a defendant’s name, which are not intended to elicit incriminating

responses do not amount to interrogation.”). Indeed, a Sixth Circuit panel also appears to have

applied Innis in the Rule 16(a) context, concluding, after an introductory discussion of the Innis



                                                 -7-
standard, that “[b]ecause we have concluded that the agent’s statements were not the functional

equivalent of interrogation, we agree that Rule 16 is inapplicable here.” United States v. Ronayne,

Nos. 94-1374; 94-1378, 1995 U.S. App. LEXIS 10085, at *22-23 (6th Cir. 1995) (emphasis added).

       Applying the Innis standard, we find that Smith’s alleged statement was not made in response

to the functional equivalent of an interrogation. According to Spencer, Smith’s statement was made

in response to the mere discovery of the weapon. In fact, according to the testimony at trial, Smith’s

statement was not made in response to any questioning whatsoever. Thus, the conditions under

which Smith allegedly made her statement were far from those “the police should know are

reasonably likely to elicit an incriminating response,” but instead were simply those “normally

attendant to arrest and custody.” See Innis, 446 U.S. at 301.

                                                 IV.

       As part of the jury instructions, the district court, employing the Sixth Circuit Pattern

Criminal Jury Instruction § 2.01(3), informed the jury to

       Also keep in mind that whether anyone else should be prosecuted and convicted for
       this crime is not a proper matter for you to consider. The possible guilt of others is
       no defense to a criminal charge. Your job is to decide if the government has proven
       this defendant guilty. Don’t let the possible guilt of others influence your decision in
       any way.

Smith contends that this instruction confused the jurors, leading them “to believe that they were to

disregard the evidence concerning Valerie Davis.”

       This court reviews “a district court’s choice of jury instructions according to an abuse

discretion standard.” United States v. Beaty, 245 F.3d 617, 621 (6th Cir. 2001). Moreover, “[a] trial

court has broad discretion in drafting jury instructions and does not abuse its discretion unless the

jury charge ‘fails accurately to reflect the law.’” Id. (quoting United States v. Layne, 192 F.3d 556,


                                                 -8-
574 (6th Cir. 1999)). As this court had noted, “We will reverse a judgment based upon an improper

jury instruction ‘only if the instructions, viewed as a whole, were confusing, misleading, or

prejudicial.’” Id. (quoting United States v. Harrod, 168 F.3d 887, 892 (6th Cir. 1999)). Put

differently, “we will reverse a conviction only where the instructions fail to state the law correctly,

or where the instructions are confusing, misleading, or prejudicial.” United States v. Ballentine, No.

98-6035, 1999 U.S. App. LEXIS 30164, at *17-18 (6th Cir. Nov. 17, 1999) (citing United States v.

Milligan, 17 F.3d 177, 182 (6th Cir. 1994)).

       In Ballentine, a panel of this court addressed the application of an identical jury instruction

in a case involving both possession of controlled substances and possession of firearms. 1999 U.S.

App. LEXIS 30164, at *18. Finding the instruction sufficiently clear despite the defendant’s theory

of the case, the court noted that

       [t]he issue to which the district court’s instruction speaks is reasonably clear:
       possession of controlled substances and possession of firearms are not offenses
       which logically require only a single perpetrator, and [the defendant’s girlfriend’s]
       guilt neither logically entails nor even probabilistically indicates Ballentine’s
       innocence. Indeed, ownership and possession are not identical concepts . . . .

Id. at *18. This same reasoning also applies in our own case, as Valerie Davis’s guilt or innocence

is irrelevant to Smith’s own guilt or innocence for the possession of a firearm and possession of a

controlled substance.1


       1
         Like the appellant in Ballentine, Smith points to the Committee Commentary for the “guilt
of others” jury instruction, which states that this “may require modification in cases where the
defendant has raised an alibi defense, or has argued mistaken identification. Where the defendant
claims that someone else committed the crime, it may be confusing to instruct the jurors that they
should not be concerned with anyone else’s guilt.” Sixth Circuit Pattern Criminal Jury Instruction
§ 2.01(3), Committee Commentary. Smith believes her own case is one such case and therefore
argues that the jury instruction was confusing and misled the jury. However, despite this contention,
this court concluded in Ballentine that the “guilt of others” jury instruction was sufficiently clear in
a case where the defendant claimed that someone else was guilty of possession of both firearms and

                                                  -9-
                                                 V.

       Lastly, Smith challenges all three of her convictions as not being supported by sufficient

evidence.

       “The relevant inquiry when reviewing claims of insufficient evidence 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 beyond a reasonable doubt.’” United States v.

Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991) (emphasis in original) (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)). Substantial evidence means “more than a scintilla. It means such

relevant evidence as a reasonable mind might accept to support a conclusion. It is evidence affording

a substantial basis of fact from which the fact in issue can be reasonably inferred.” United States v.

Grubbs, 506 F.3d 434, 439 (6th Cir. 2007) (quoting United States v. Martin, 375 F.2d 956, 957 (6th

Cir. 1967)).

       “Because the issue is one of legal sufficiency, the court neither ‘independently weighs the

evidence, nor judges the credibility of witnesses who testified at trial.’” United States v. Hughes,

505 F.3d 578, 592 (6th Cir. 2007) (quoting United States v. Talley, 164 F.3d 989, 996 (6th Cir.

1999)). When considering the sufficiency of the evidence, “we do not . . . substitute our judgment

for that of the jury.” United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994). Instead, we “must

view all evidence and resolve all reasonable inferences in favor of the government.” Hughes, 505

F.3d at 592. In addition, “it must be remembered that ‘circumstantial evidence alone can sustain a

guilty verdict and . . . [such] evidence need not remove every reasonable hypothesis except that of

guilt.’” Id. (emphasis in original) (quoting United States v. Stone, 748 F.2d 361, 362 (6th Cir.


a controlled substance. Such logic applies equally to our own case.

                                                -10-
1984)).

          An initial application of this standard renders the district court’s finding Spencer’s testimony

incredible irrelevant for the purposes of a sufficiency of the evidence inquiry. Because “determining

the credibility of witnesses is a task for the jury, not this court . . . [and] all reasonable inferences are

to be drawn in the government’s favor,” United States v. Beverly, 369 F.3d 516, 532 (6th Cir. 2004),

this court must assume Spencer’s testimony to be credible when evaluating whether there was

sufficient evidence to find Smith guilty beyond a reasonable doubt.

                                  a. Felon in Possession of a Firearm

          Pursuant to 18 U.S.C. § 922(g)(1), “[i]n order to sustain a conviction for felon in possession

of a firearm, the government must prove: (1) that the defendant had a prior felony conviction; (2) that

the defendant knowingly possessed the firearm, either actually or constructively; and (3) that the

firearm had traveled in interstate commerce.” United States v. Coffee, 434 F.3d 887, 895 (6th Cir.

2006).

          An individual is said to have constructive possession “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.” Id. (quoting United States

v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973)). Moreover, “[c]onstructive possession may be

proved by direct or circumstantial evidence and it is not necessary that such evidence remove every

reasonable hypothesis except that of guilt.” Id. at 895-96. In fact, “[p]roof that ‘the person has

dominion over the premises where the firearm is located’ is sufficient to establish constructive

possession.” Id. at 896 (quoting United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998)).

          The parties both stipulated to the facts that Smith had a prior felony conviction and that the


                                                    -11-
weapon in question – the Ruger .357 Magnum – had traveled in interstate commerce. Thus, all that

remained for the government to prove at trial was constructive possession. Even without Spencer’s

testimony, the testimony at trial – that Smith had been seated near the weapon, that Smith had fled

when the police announced their presence, and the absence of any other healthy individual on the

premises – would seemingly be sufficient circumstantial evidence of constructive possession.

Moreover, Spencer’s testimony that Smith admitted being in possession of the weapon leaves no

doubt that the jury’s guilty verdict for being a felon in possession of a firearm was supported by

sufficient evidence.

                               b. Possession with intent to distribute

       “The elements of a charge of possession with intent to distribute illegal drugs are: (1) the

defendant knowingly, (2) possessed a controlled substance, (3) with intent to distribute.” Coffee,

434 F.3d at 897. Constructive possession is sufficient to satisfy the possession element of a 21

U.S.C. § 841(a) charge. United States v. Draper, 888 F.2d 1100, 1103 (6th Cir. 1989); see also

United States v. Collier, 246 F. App’x 321, 329 (6th Cir. 2007) (citing Draper for the same

proposition).

       At the residence, police found cocaine2 that was “wrapped into ziplocs.” As Bradford

explained, this method of wrapping indicates that the cocaine was being prepared for distribution.

Other evidence included Smith’s proximity to the controlled substance, her flight from the police,

and the lack of another healthy adult on the premises. The evidence was sufficient to support the

jury’s guilty verdict. Moreover, Smith’s reference to her supplier in her statement to Spencer further



       2
        The parties stipulated to the fact that the substance obtained at the residence was in fact a
controlled substance.

                                                -12-
bolsters the jury’s finding Smith guilty of possession of a controlled substance with intent to

distribute.

               c. Possession of a firearm in furtherance of a drug trafficking crime

        “Section 924(c) provides in relevant part: ‘any person who, during and in relation to any

crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of

any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of

violence or drug trafficking crime – (i) be sentenced to a term of imprisonment of not less than 5

years.’” United States v. Mackey, 265 F.3d 457, 460 (6th Cir. 2001) (quoting 18 U.S.C. § 924(c)).

Having already determined that there was sufficient evidence to support the jury’s guilty verdict

against Smith for possession with intent to distribute, the remaining inquiry is whether Smith “use[d]

or carrie[d] a firearm . . . in furtherance of any such [drug trafficking] crime.”

        In Mackey, this court outlined the meaning of 18 U.S.C. § 924(c). According to the court’s

conclusion in Mackey,

        In light of Congress’ intent that “in furtherance of” be a more stringent requirement
        than “during and in relation to,” we emphasize that the possession of a firearm on the
        same premises as a drug transaction would not, without a showing of a connection
        between the two, sustain a § 924(c) conviction. In order for the possession to be in
        furtherance of a drug crime, the firearm must be strategically located so that it is
        quickly and easily available for use.

Mackey, 265 F.3d at 462. In addition, “[o]ther factors that may be relevant to a determination of

whether the weapon was possessed in furtherance of the crime include whether the gun was loaded,

the type of weapon, the legality of its possession, the type of drug activity conducted, and the time

and circumstances under which the firearm was found.” Id.

        The Mackey court then applied its definition of “in furtherance of,” taking into account the



                                                 -13-
various factors outlined above:

       In the instant case, there was an illegally possessed, loaded, short-barreled shotgun
       in the living room of the crack house, easily accessible to the defendant and located
       near the scales and razor blades. Defendant, stopped by police near the gun,
       possessed cocaine and a large sum of cash. From the evidence presented, a
       reasonable jury could infer that the purpose of the firearm was to provide defense or
       deterrence in furtherance of the drug trafficking for which defendant was arrested.

Id. at 462-63. Nearly all the factors present in Mackey are also present in our own case. The weapon

in question was found in close proximity to the controlled substances; there were five live rounds

in the weapon; Smith was seen fleeing from the location of the controlled substances and the weapon

(a location that made the weapon easily accessible during the process of dividing the controlled

substance into ziploc bags); and a significant amount of small bills were found on her person. In

addition, Smith’s statement to Spencer evidences a link between Smith’s activities and the weapon:

the weapon was necessary to protect Smith from being robbed while, apparently, in the process of

distributing controlled substances. Therefore, the jury’s guilty verdict for possession of a firearm

in furtherance of a drug trafficking crime is supported by sufficient evidence.

                                                VI.

       For the foregoing reasons, we affirm the district court’s decisions.




                                               -14-
