                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 19a0421n.06

                                           No. 17-2514


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                 Aug 13, 2019
 UNITED STATES OF AMERICA,                               )                   DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellee,                              )
                                                         )
                                                                 ON APPEAL FROM THE
 v.                                                      )
                                                                 UNITED STATES DISTRICT
                                                         )
                                                                 COURT FOR THE EASTERN
 JAMES WIGGINS,                                          )
                                                                 DISTRICT OF MICHIGAN
                                                         )
        Defendant-Appellant.                             )
                                                         )



BEFORE:        BATCHELDER, SUTTON, and WHITE, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. James Wiggins was tried by a jury on

charges of aiding and abetting carjacking in violation of 18 U.S.C. § 2119(1) and use of a firearm

during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). The jury found

Wiggins guilty of the carjacking offense but not guilty of using a firearm, and the court sentenced

him to 151 months in prison—a downward variance from the Sentencing Guidelines range of 168–

210 months. On appeal, Wiggins argues that the district court violated his right to a fair trial by

admitting Rule 404(b) evidence and then denying his motion for a mistrial; that the evidence is not

sufficient to support the verdict and the district court erred in denying his Rule 29 motion for

judgment of acquittal and his Rule 33 motion for a new trial; that he is entitled to a new trial due

to ineffective assistance of counsel; and that his sentence is procedurally and substantively
No. 17-2514, United States v. Wiggins


unreasonable. We decline to address on direct appeal the ineffective-assistance-of-counsel claim,

and we AFFIRM the judgment of the district court.

                                                   I.

       Between three and five o’clock in the morning on September 12, 2016, James Wiggins and

his friend Tyree Darrell went out looking for cash. Reginald Carr was sitting in his vehicle waiting

for a methadone treatment clinic to open when Wiggins and Darrell approached him. Carr testified

that the two men asked to buy a cigarette, and when he told them he did not have one, the shorter

of the men came around to his driver’s side. Carr, feeling threatened, got out of the car and

brandished a Ruger .22 automatic, whereupon Wiggins and Darrell walked away. Carr then

walked over to Katherine Strickland, a patient who also was waiting in her car for the clinic to

open, and asked her to honk her horn if she saw the men coming back. Carr returned to his vehicle,

and a few minutes later Wiggins and Darrell returned. Carr testified that the shorter of the two

men came around to the passenger’s side and started shooting. Carr was shot three times as he

bolted from the vehicle, leaving behind his cell phone. The man shot at him one more time as he

ran away. Strickland did not see the shooting (she was bent over in her car to avoid the bullets)

but estimated that she heard seven to ten shots.

       Wiggins and Darrell then fled in Carr’s vehicle and soon abandoned it. Six days after the

carjacking, the police tracked Carr’s cell phone to a car in Detroit and established surveillance on

the car. After observing the car run a red light, the police pulled it over and found Wiggins in the

backseat. When Wiggins exited the car, an officer saw a cell phone stuffed between the seats near

where Wiggins had been sitting. Wiggins said the phone was his; police later verified that the

phone was the one that had been in Carr’s vehicle during the carjacking.




                                                   -2-
No. 17-2514, United States v. Wiggins


        On October 5, 2016, Wiggins entered a plea of not guilty to both counts of the indictment.

At the final pretrial conference, counsel for Wiggins inquired about the court’s policy on Jencks

Act materials. The court acknowledged that the law does not require that those materials be turned

over “until . . . the individual testifies,” but nevertheless stated that the government should give all

Jencks Act prior statements and witness materials to counsel for Appellant on or before May 8,

2017—two days before the scheduled start of the trial. However, the trial was later postponed to

August 8, 2017, and the deadline for the Jencks Act materials was apparently not adjusted. Shortly

prior to trial, Wiggins’s attorney filed a motion in limine that sought to exclude, among other

things, any reference to (1) Wiggins’s long criminal record of stealing cars and (2) criminal history

of any sort. The court granted the motion in part, ruling that the government was prohibited from

referencing “the defendant’s prior criminal history” and was also barred from making “any

reference to being in the system before.”

        During the trial, the prosecutor had the following exchange with Darrell, which Wiggins

claims violated the court’s order on the motion in limine:

                Prosecutor:     And have you stolen cars with Mr. Wiggins on a
                                prior occasion?
                Darrell:        Yes.
                Prosecutor:     Have any of them involved carjackings?
                Darrell:        No.
                Prosecutor:     Have any of them involved firearms?
                Darrell:        No.

Counsel for Wiggins did not object. However, immediately after these questions were asked, the

jury took a break, and Wiggins’s trial counsel contacted the court’s chambers indicating that he

wanted to make a motion for a mistrial. The court did not take up the motion before the trial

resumed, and Wiggins’s counsel therefore had to cross-examine Darrell without a ruling. Seeking

to use Darrell’s testimony to Wiggins’s benefit by attacking Darrell’s credibility, Wiggins’s

                                                  -3-
No. 17-2514, United States v. Wiggins


counsel asked whether, during previous interviews, Darrell had mentioned to law enforcement

anything about the prior auto thefts; Darrell stated he had not. Following cross-examination,

Wiggins’s counsel raised with the court the issue of the motion in limine, stating that the

information that Darrell and Wiggins had stolen cars before “is not in the discovery anyplace,”

and had it been, he “would have [included] it in [his] motion in limine.” Wiggins’s counsel called

the information a “[t]otal surprise to me” and “very prejudicial.” The district court said that it

understood Wiggins’s counsel’s position but that it didn’t “want to come to a conclusion right

now” because it wanted “to think about this overnight.”

       The next morning the court asked the prosecutor why she had asked Darrell about prior car

thefts, and the prosecutor responded that it was “an inadvertent error,” that she “did not have a

reason under the rule” and “was not trying to show anything.” The judge eventually concluded

that—Wiggins’s counsel having made no contemporaneous objection to the questions—“I have

to . . . review under . . . plain error,” and based on that standard, “I’m convinced there’s no grounds

for a mistrial.” The judge also acknowledged that “the evidence was clearly prejudicial to Mr.

Wiggins” but that “it had some probative value in terms of showing the knowledge of the witness

Darrell and . . . his participation and a plan.” The trial then continued.

       At the conclusion of the government’s evidence, Wiggins’s counsel made an oral motion

seeking judgment of acquittal under Federal Rule of Criminal Procedure 29. He argued both that

“the evidence on the element of interstate manufacture of this particular vehicle is lacking” and

that “there’s no evidence at all with regard to identification of Mr. Wiggins.” The trial court denied

the motion, finding there was “prima facie evidence” as to both arguments sufficient to allow the

jury to make the necessary factual findings. Wiggins then declined to put on any evidence in his

defense.



                                                 -4-
No. 17-2514, United States v. Wiggins


       The jury returned a verdict of guilty on Count I of the indictment, aiding and abetting

carjacking, and not guilty on Count II, use of a firearm in relation to a crime of violence. Wiggins’s

counsel then filed a motion seeking judgment of acquittal or, in the alternative, a new trial. The

district court denied the motion.

       At the sentencing hearing the court noted Wiggins’s sentencing memorandum and the

request for a downward variance. The applicable guideline range was 168–210 months but was

limited by the statutory maximum to 180 months. The district court sentenced Wiggins to

151 months’ incarceration. This appeal followed.

                                                 II.

                                                 A.

       We begin with Wiggins’s argument that he is entitled to a mistrial because the substance

of some of the prosecutor’s questions of Darrell violated the order in limine as well as the Jencks

Act. A mistrial is mandatory only “upon a showing of manifest necessity,” a showing Wiggins

has not made here; otherwise, it is discretionary. Clemmons v. Sowders, 34 F.3d 352, 354–55 (6th

Cir. 1994) (quotation omitted). In determining whether a mistrial is warranted, the guiding

principle is fairness to the defendant. United States v. Atisha, 804 F.2d 920, 926–27 (6th Cir.

1986). Where, as here, the defendant argues the district court should have granted a mistrial due

to improper testimony, we ordinarily follow a two-step process. First, we “consider whether the

challenged testimony was in fact improper.” United States v. Howard, 621 F.3d 433, 458 (6th Cir.

2010). Second, “if we conclude that the testimony was improper, then we must determine whether

the challenged testimony ‘was so clearly improper and prejudicial to the defendants that the harm

could not be erased by any instruction which the court might give.’” Id. at 459 (quoting United

States v. Smith, 601 F.3d 530, 538 (6th Cir. 2010)).



                                                 -5-
No. 17-2514, United States v. Wiggins


         Counsel for Wiggins did not immediately object to the prosecutor’s questions about Darrell

and Wiggins’s prior car thefts, and the objection, when it was raised by motion for a mistrial, was

not timely. For an objection to be timely under Federal Rule of Evidence 103, it “must be made

as soon as the ground of it is known, or reasonably should have been known to the objector.”

United States v. Meserve, 271 F.3d 314, 324 (1st Cir. 2001) (quotation omitted).1 We therefore

review for plain error the district court’s determination that the prosecutor’s questions did not elicit

testimony so prejudicial to Wiggins as to require a mistrial. “To establish plain error, a claimant

must show: (1) error, (2) that is plain, (3) that affects the defendant’s substantial rights, and (4) that

‘seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings.’” United

States v. Brown, 332 F.3d 363, 370 (6th Cir. 2003) (quoting United States v. Cotton, 535 U.S. 625,

631 (2002)).

         The motion in limine. The relevant portion of the order granting in part the motion in limine

prohibited the introduction of evidence relating to Wiggins’s criminal history. At oral argument,

the government argued that the phrase “criminal history” includes only actions resulting in a

conviction, and because the prosecutor did not ask Darrell about prior convictions, there was no

violation of the court’s order in limine. The government pointed to several places in the record

where the district court indicated its agreement with this interpretation. See RE 77 at 1228 (“I don’t

think there should be a mistrial because [the prosecutor’s questioning] is not—this was not the

subject of a prior defense motion or a court ruling.”); id. at 1231 (“[M]y overall sense is that there’s

not a mistrial, not a grounds for a mistrial based on the violation of [a] prior court order.”).




1
 Other circuits have stated the rule even more narrowly. See, e.g., United States v. Carson, 52 F.3d 1173, 1187 (2d
Cir. 1995) (“Rule 103 is designed to bring objections to the attention of the court and the opposing party at the earliest
possible time so as to alert [the court] to the proper course of action and enable opposing counsel to take proper
corrective measure.”) (quotation omitted); United States. v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983) (“Timeliness
of objection under [Rule 103] requires that it be made at the time the evidence is offered.”) (quotation omitted).

                                                           -6-
No. 17-2514, United States v. Wiggins


On appeal, Wiggins’s attorney also acknowledged the difference between convictions and criminal

activities where the defendant is never caught. Court Audio Recording at ~22:30. (“[T]he

distinction [between having a criminal record and stealing cars without a conviction] is a valid

one. . . . I do understand that distinction.”). In response to a statement from the bench that, “[I]t’s

hard to say the motion in limine was violated,” Wiggins’s counsel responded, “Yes, your Honor.”

Id. at ~ 25:40.

        We need not decide this issue here, however, because regardless of whether “criminal

history” captures criminal conduct that does not lead to a conviction, the court did not plainly err

in concluding that the prosecutor’s questioning did not warrant a mistrial. Under the plain error

standard, Wiggins must show that his substantial rights were affected by the alleged violation of

the order in limine. The standard for determining whether a defendant’s substantial rights have

been affected is “whether the error affected the outcome of the district court proceedings.” United

States v. Newsom, 452 F.3d 593, 604 (6th Cir. 2006) (quotation omitted). We conclude that it did

not. The stolen-car information was a minor part of Darrell’s testimony and an even smaller part

of the evidence against Wiggins that the government presented in its case in chief. Any unfair

prejudice to Wiggins was minimized by Darrell’s testimony that he and Wiggins had not car-

jacked or used firearms in their earlier car-theft activities. And Wiggins’s counsel was able to

attack Darrell’s credibility by eliciting on cross-examination Darrell’s admission that he had never

disclosed these prior car thefts to law enforcement. The questions from the prosecutor and the

responses they elicited did not affect Wiggins’s substantial rights, nor do they meet Howard’s

second step.

        Jencks Act violation. During the trial the judge recognized that the prosecutor might have

committed a Jencks Act violation by failing to disclose to Wiggins that Darrell had told the



                                                 -7-
No. 17-2514, United States v. Wiggins


government that he and Wiggins had committed prior car thefts. On appeal, Wiggins does not

specifically argue the Jencks Act by name, although he does say that the government “knew about

the evidence [of the prior thefts] yet did not disclose [the evidence] at the time the Motion in

Limine was filed,” and that the prosecutor “did not provide counsel for Appellant with the required

pretrial disclosures containing the information as directed by the Court.” Because he did not

develop his Jencks Act claim, Wiggins forfeited it. See United States v. Sandridge, 385 F.3d 1032,

1035 (6th Cir. 2004) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.”). In any event, these cursory arguments are not

sufficient to make out a Jencks Act violation. All that the Jencks Act requires is that Wiggins had

the supposedly withheld information in time for cross-examination. In United States v. Presser,

we stated:

               The clear and consistent rule of this circuit is that the intent of
               Congress expressed in the Act must be adhered to and, thus, the
               government may not be compelled to disclose Jencks Act material
               before trial. Accordingly . . . any “statement” in the government’s
               possession related to the subject matter of a government witness’s
               testimony shall not “be the subject of subpoena, discovery, or
               inspection until said witness has testified on direct examination in
               the trial of the case.” 18 U.S.C. § 3500(a).

844 F.2d 1275, 1283 (6th Cir. 1988) (citations and footnote omitted). See also United States v.

Carter, 621 F.2d 238, 240 (6th Cir. 1980) (“[T]he United States is generally under no duty to

provide the statement of a government witness until that witness has testified on direct examination

in the case.”). The government complied with the Presser rule in this case because Wiggins’s

counsel had the information regarding the prior car thefts in time to use it on cross-examination.

To the extent that Wiggins purports to appeal the denial of his motion for mistrial on grounds of a

violation of the Jencks Act, he can satisfy neither of Howard’s two steps.




                                                -8-
No. 17-2514, United States v. Wiggins


       The district court neither abused its discretion nor committed plain error in denying the

motion for mistrial.

                                                 B.

       Wiggins next contends that the evidence was insufficient to support the verdict and argues

that the district court improperly denied his motions based on Federal Rules of Criminal Procedure

29 and 33. First, he claims there was insufficient evidence to prove that he aided and abetted the

carjacking. Second, he claims that the evidence was not sufficient to prove the interstate commerce

element of the carjacking offense—namely, that Carr’s vehicle had traveled in interstate

commerce.

       We review de novo the district court’s decision to deny a Rule 29 motion for judgment of

acquittal. United States v. Gibson, 896 F.2d 206, 209 (6th Cir. 1990). “The standard is whether

the government . . . introduced evidence sufficient for any rational trier of fact to convict, viewing

the evidence and all reasonable inferences in the light most favorable to the government.” Id. We

review for abuse of discretion the decision to deny a Rule 33 motion for a new trial. United States

v. Carson, 560 F.3d 566, 585 (6th Cir. 2009). Wiggins’s Rule 33 motion and supporting

memorandum claimed, with virtually no developed argument, that the verdict was against the

manifest weight of the evidence and that substantial legal error had occurred in the trial. We may

grant a Rule 33 motion when the jury’s verdict was against the manifest weight of the evidence or

the interests of justice require it. United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010). And

we have held that the “interests of justice” standard is met where substantial legal error has

occurred in the course of the trial. Id.

       Aiding and abetting the carjacking. To be guilty of the offense of carjacking, one must

(1) “with the intent to cause death or serious bodily harm,” (2) “take[] a motor vehicle that has



                                                 -9-
No. 17-2514, United States v. Wiggins


been transported, shipped, or received in interstate or foreign commerce from the person or

presence of another,” (3) “by force and violence or by intimidation.” 18 U.S.C. § 2119. And one

who aids and abets the offense is punishable as a principal. See 18 U.S.C. § 2(a). Wiggins cites a

litany of reasons that the evidence was insufficient for the jury to link him to the carjacking:

“[n]either the victim nor the witness were able to provide an in-court identification of Appellant”;

“[t]he victim was unable to identify Appellant from a photo line-up”; and although Carr stated he

was shot by the shorter of the two assailants, both Darrell and Wiggins are approximately the same

height. But in fact, the government presented the testimony of Darrell, who testified to the specific

details of the event, including Wiggins’s carrying and use of the gun in the course of stealing the

car. Wiggins complains that Darrell’s testimony is not credible, but attacks on witness credibility

are not sufficient to overturn a jury verdict. See United States v. Adamo, 742 F.2d 927, 934–35

(6th Cir. 1984). Evidence is only insufficient when “the government’s case lacks evidence in

support of one or more elements of the offense charged.” Id. at 935. But Darrell’s testimony

provided evidence for each of the three elements of the carjacking offense under 18 U.S.C. § 2119,

except for the connection of the car to interstate commerce.

       The vehicle’s travel in interstate commerce. The interstate commerce element was satisfied

by the testimony of the GM employee that the car—a 2007 Chevy Trailblazer, which Wiggins

carjacked in Michigan—had been manufactured in Ohio. The GM representative made this

determination based on the vehicle identification number (VIN) provided to him. The FBI agent,

in turn, testified that he determined the VIN of the carjacked vehicle through research based on

Carr’s personalized Michigan license plate.       Wiggins argues that this testimony “does not

constitute proof beyond a reasonable doubt of a nexus between the plate and the VIN sufficient to

establish the interstate commerce element of the carjacking charge.” This sufficiency of the



                                                -10-
No. 17-2514, United States v. Wiggins


evidence claim fails for the reasons explained above. The government presented evidence on this

issue and the jury chose to believe the government’s witnesses. We will not substitute our

judgment for that of the jury. Wiggins mentions as part of his sufficiency argument that the FBI

agent’s testimony was hearsay. But Wiggins wholly fails to develop this argument. “[A]n issue

is deemed forfeited on appeal if it is merely mentioned and not developed.” Vance v. Wade,

546 F.3d 774, 781 (6th Cir. 2008) (quotation omitted). Accordingly, we will not address it here.

       We find no error in the denial of the Rule 29 and Rule 33 motions.

                                                 C.

       Wiggins conceded that his claim that he received ineffective assistance of counsel would

not ordinarily be entertained on direct review but should be pursued through collateral review

under 28 U.S.C. § 2255. Wiggins, however, argues that he qualifies for an exception “where trial

counsel’s ineffectiveness is so apparent from the record that additional fact-finding is unnecessary,

or where there are obvious deficiencies in representation.” The ineffectiveness he claims here is

not so apparent. We therefore decline to review this claim, but note that Wiggins may raise it in a

motion filed under 28 U.S.C. § 2255.

                                                 D.

       Finally, Wiggins claims that his sentence is procedurally and substantively unreasonable.

We review both types of reasonableness “under the deferential abuse-of-discretion standard.”

United States v. Lanning, 633 F.3d 469, 473 (6th Cir. 2011).

       Procedural unreasonableness. “Procedural reasonableness requires that a district court

‘must properly calculate the guidelines range, treat the guidelines as advisory, consider the

§ 3553(a) factors and adequately explain the chosen sentence—including an explanation for any

variance from the guidelines range.’” United States v. Presley, 547 F.3d 625, 629 (6th Cir. 2008)



                                                -11-
No. 17-2514, United States v. Wiggins


(quoting United States v. Grossman, 513 F.3d 592, 595 (6th Cir. 2008)). Wiggins’s claim is that

he “filed a lengthy sentencing memorandum with the trial court in which he requested the court to

consider whether Appellant’s race played a factor in the end result of his sentence being

disproportionately long to that of Caucasian men convicted of the same crime.” Because the

“district judge in the case did not make even a cursory mention of the Appellant’s racial disparity

argument in sentencing Appellant to 151 months,” Wiggins argues, his sentence is procedurally

unreasonable. But Wiggins’s “lengthy sentencing memorandum [filed] with the trial court,”

contains only this regarding racial disparity:

                This writer confesses to having no concrete idea of how the court
                should go about ensuring that Mr. Wiggins’s sentence is devoid of
                the type of racial bias described in the monograph.[2] To the extent
                that such bias occurs because courts are unaware of it, however, Mr.
                Wiggins wished to bring it to the court’s attention for whatever value
                it may be. Perhaps the probation department has information as to
                how, if at all, the statistic is being addressed by the courts. . . . For
                the reasons presented above, Mr. Wiggins submits that a sentence
                substantially below the guideline range determined by the probation
                department would address federal sentencing objectives.

Wiggins’s submission of a “monograph” on racial disparity “for whatever value it may be” hardly

establishes grounds for a procedural-unreasonableness claim because the district court decided not

to mention it during sentencing. All that Presley requires is that the district court properly calculate

the guidelines and adequately explain its decision. 547 F.3d at 629. And the district court did that,

saying that it “received [Wiggins’s counsel’s] comprehensive sentence memo,” and “did read [the]

brief,” and that it was “happy to engage the issue of whether or not [Wiggins] should get a lower

sentence than 168 to 180 months [as suggested in the Presentence Investigation Report].” This

indicates that the district court did not ignore Wiggins’s submission and in fact was willing to


2
 This monograph was a product of the U. S. Sentencing Commission, entitled “Demographic Differences in Federal
Sentencing Practices: An Update of the Booker Report’s Multivariate Regression Analysis,” and was appended to
Wiggins’s sentencing memorandum in the trial court.

                                                    -12-
No. 17-2514, United States v. Wiggins


consider his request for a lower sentence than recommended by the guidelines. The court discussed

the § 3553(a) factors, including the history and characteristics of the defendant, the need for the

sentence to reflect the seriousness of the offense, and the need to adequately deter criminal

conduct. The court’s willingness to consider Wiggins’s request and its careful consideration of

the § 3553(a) factors meet Presley’s procedural reasonableness requirements.

       Substantive unreasonableness. Substantive reasonableness requires that a district court

refrain from choosing a sentence arbitrarily, grounding the sentence on impermissible factors or

unreasonably weighing a pertinent factor. Lanning, 633 F.3d at 474. Wiggins’s primary argument

is that the sentence he received and the sentence his co-defendant Darrell received are

disproportionately different. Wiggins states that “[a]chieving proportionality in the sentences of

both defendants in a case, even accounting for criminal history and other differences, is a goal of

sentencing,” as recognized in § 3553(a)(6). But Wiggins misstates the law. Section 3553(a)(6)

“concerns national disparities within a class of similar defendants, not disparities between one

defendant and another.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). Furthermore,

the district court showed no arbitrariness in its sentencing that would suggest substantive

unreasonableness. It considered but rejected the argument of proportionality between Wiggins

and Darrell, noting that, unlike Darrell, “Mr. Wiggins has not exhibited remorse. Mr. Wiggins has

not accepted responsibility.” Furthermore, as described above, it carefully walked through the

§ 3553(a) factors. Wiggins provides no support for his claim of substantive unreasonableness.

                                                III.

       For the foregoing reasons, we decline to entertain the claim of ineffective assistance of trial

counsel, and we AFFIRM the judgment of the district court.




                                                -13-
