                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0739n.06
                           Filed: December 4, 2008

                                           No. 07-6165

                           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
Hershel O. McCaleb                               )    EASTERN DISTRICT OF TENNESSEE
                                                 )
       Defendant-Appellant.                      )



       Before: NORRIS, ROGERS, and KETHLEDGE, Circuit Judges.


       ROGERS, Circuit Judge. Hershal McCaleb appeals his conviction of being a felon in

possession of a firearm and a felon in possession of ammunition. McCaleb seeks reversal of his

conviction on the ground that the evidence presented at trial was insufficient to support the jury’s

verdict. No reversal is warranted, because the prosecution’s direct, circumstantial, and forensic

evidence was adequate to support the verdict. McCaleb also seeks a new trial because the district

court allowed the prosecution to introduce evidence of his unrelated drug-dealing activities and

because the district court allowed the prosecution to introduce a videotape not previously produced

to the defense. Neither decision was an abuse of the district court’s discretion. McCaleb was

therefore properly convicted.


                                                 I.
No. 07-6165
United States v. McCaleb

       On October 17, 2006, officer Mike Riddle of the Knoxville Police Department was patrolling

near the Austin Homes housing project. Shortly after noon, Officer Riddle heard numerous gunshots

coming from inside the housing complex. He immediately proceeded to the scene.


       Eyewitnesses to the shooting, including the victim Akeem McDowell and his twelve-year-old

cousin Thomas Boatwright, testified that McCaleb and McDowell were involved in a brief physical

altercation shortly before the shooting. McDowell testified that McCaleb left the scene of the

altercation, walked to his mother’s home, and reemerged shortly thereafter. Several minutes later,

McDowell heard shots, looked up, and realized McCaleb was shooting at him. McDowell testified

that he saw a shot hit the ground in front of him and heard shots whizzing by him. He later found

a bullet hole in his pants, which were introduced at trial. Boatwright also testified that he saw

McCaleb shoot at McDowell.


       When Officer Riddle arrived on the scene of the shooting, he saw a black male wearing a

blue ball cap, blue sweat pants, and a shirt that was either dark blue or black. As soon as the man

saw Officer Riddle in his marked police car, the man fled the scene. Officer Riddle pursued the

suspect in his car, notifying the dispatcher of his pursuit. At one point, Officer Riddle lost sight of

the suspect, but continued to the group of buildings between which the suspect had fled. When

Officer Riddle turned into the parking lot, he saw the back door of apartment 322 swing shut.

Officer Riddle checked hiding places in the immediate vicinity and determined that if the suspect

had continued to flee he would either be in Officer Riddle’s line of sight or would encounter other

officers who were now closing in on the area. Officer Riddle then approached the back door of

                                                 -2-
No. 07-6165
United States v. McCaleb

apartment 322. While securing the back door, he could not see the front door. Several other officers

arrived shortly thereafter, at which point Officer Riddle knocked loudly on the back door and

announced his presence.


       The officers found four people in the apartment—the occupant of the apartment Marland

Cates, Cates’s cousin, Cates’s six-year-old child, and McCaleb. Both Cates and his cousin were over

six feet tall and weighed over 300 pounds. McCaleb, by contrast, is 5’10” and weighs 185 pounds.

Only McCaleb resembled the suspect whom Officer Riddle pursued into the apartment. Cates

testified that shortly after the shooting and just before the officers gained admittance to the

apartment, he heard the back door slam and then the door of one of the upstairs bedrooms slam. He

thought it was his twelve-year-old son, whom Cates had called to come inside when he heard the

shots. Cates testified that he did not know McCaleb was in his home.


       When the officers first encountered McCaleb, he was standing at the top of the staircase

wearing only boxers. Upon searching the apartment, the officers found a weapon in the upstairs

closet and a pair of wet, crumpled blue sweat pants lying as if quickly discarded in a nearby

bedroom. It was a rainy day, so the clothes of the fleeing suspect would have been damp. During

the ensuing encounter, McCaleb told the officers that he had been in the apartment all night with his

girlfriend. He testified at trial, however, that he came to Austin Homes right around the time of the

shooting to visit his mother and to attend a Bible study.




                                                -3-
No. 07-6165
United States v. McCaleb

       The color of McCaleb’s pants turned out to be an important issue at trial. Officer Riddle

testified that, during the course of the arrest, McCaleb asked to put his pants back on and identified

them as being the blue ones. McCaleb, on the other hand, attempted to establish that he wore gray

pants while another person, never found by the police, wore blue pants.           McCaleb gave the

following explanation of how he came to be in Cates’s apartment uninvited and how the true culprit

allegedly evaded capture. McCaleb testified that when he arrived at the Austin Homes complex, he

encountered a man named “Meet to Meet” fleeing from the police. Meet to Meet was dressed

according to Officer Riddle’s description of the suspect, while McCaleb was not. Because McCaleb

was banned from Austin Homes and subject to arrest if found there, he fled with Meet to Meet into

Cates’s home. McCaleb said he stayed near the back door and briefly lost sight of Meet to Meet.

Shortly thereafter, Meet to Meet left through the front door, while McCaleb remained in the

apartment. A few moments later, the police arrived. The defense’s case relied on McCaleb’s

testimony that he wore gray sweat pants on the day of the arrest, and on an intake form from the

county jail that listed gray sweat pants among McCaleb’s belongings. The district judge allowed the

prosecution, in its rebuttal case, to introduce a police videotape showing McCaleb wearing blue

sweat pants while being placed in the police car.


       A crime lab unit recovered a .380 Cobra semi-automatic pistol and a magazine fully loaded

with FC ammunition from the upstairs closet of Cates’s apartment. In addition, the unit recovered

five spent FC .380 shell casings from the shooting site. Forensic testing on the weapon and spent




                                                -4-
No. 07-6165
United States v. McCaleb

casings led the state’s firearms identification specialist to determine with 100 percent certainty that

the bullets found at the shooting scene were fired from the gun recovered from Cates’s apartment.


        McCaleb was indicted for one count of being a felon in possession of a firearm and one count

of being a felon in possession of ammunition. He stipulated to the previous felony and interstate

commerce elements of the charges. During the prosecution’s case-in-chief, the young boy who

identified McCaleb as the gunman testified that McCaleb was a local drug dealer. McDowell, the

victim of the shooting, also testified that he had observed McCaleb approaching cars and conducting

transactions. A jury found McCaleb guilty of both the firearm and the ammunition charges. He now

appeals, claiming the evidence was insufficient to allow a reasonable juror to find him guilty, that

the district court improperly admitted evidence of his previous drug-dealing activity, and that the

district court improperly admitted the police videotape used in the prosecution’s rebuttal case. None

of these contentions has merit.


                                                   II.


                                                   A.


        When viewed in the light most favorable to the prosecution and resolving all issues of

credibility in favor of the jury’s verdict, the evidence presented at trial was sufficient to support the

verdict. The prosecution presented evidence that placed McCaleb in the street of the Austin Homes

housing project discharging a gun, placed him in Cates’s apartment near a Cobra .380 semiautomatic



                                                  -5-
No. 07-6165
United States v. McCaleb

pistol shortly thereafter, and linked the Cobra pistol to the shooting. The deferential standard of

review applied to jury verdicts does not require more.


         The standard of review on appeal for determining the sufficiency of the 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.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); see also United States v. Childs, 539 F.3d 552, 558 (6th Cir.

2008). The prosecution presented sufficient evidence that McCaleb fired shots at McDowell before

seeking refuge in Cates’s apartment, and that the gun recovered from Cates’s apartment was the

same gun that was used in the shooting. McCaleb contends that, when the defendant is not found

with the gun in hand and the prosecution relies on evidence that the defendant possessed the firearm

in question at a time prior to arrest, the prosecution must present some evidence describing the

firearm previously seen in the defendant’s possession that would link it to the firearm eventually

recovered. While such evidence may help the prosecution’s case, the absence of such evidence is

not fatal to a jury’s verdict. Rather, this circuit has explained that “circumstantial evidence alone

can sustain a guilty verdict and that to do so, circumstantial evidence need not remove every

reasonable hypothesis except that of guilt.” United States v. Stone, 748 F.2d 361, 362 (6th Cir.

1984).


         Arguments that center on the prosecution’s use of direct versus circumstantial evidence or

that pit one witness’s testimony against another’s misconstrue the standard of review. McCaleb

asserts that various prosecution testimony was either self-serving to the witness, uncorroborated, or

                                                 -6-
No. 07-6165
United States v. McCaleb

contradicted by defense testimony. However, this appellate court does not “weigh the evidence

presented [at trial], consider the credibility of witnesses, or substitute [its] judgment for that of the

jury” when determining whether sufficient evidence supports the verdict. United States v. M/G

Transport Services, Inc., 173 F.3d 584, 588-89 (6th Cir. 1999). Instead, the appellate court “draw[s]

all available inferences and resolve[s] all issues of credibility in favor of the jury’s verdict.” United

States v. Paulette, 457 F.3d 601, 606 (6th Cir. 2006) (citing United States v. Maliszewski, 161 F.3d

992, 1006 (6th Cir.1998)). Where the prosecution’s evidence is not “facially insubstantial or

incredible,” this court does not judge the credibility of the witnesses or the weight of the evidence.

United States v. Welch, 97 F.3d 142, 151, 148 (6th Cir. 1996).


                                                   B.


        The district court’s decision to admit evidence of McCaleb’s other bad acts under Federal

Rule of Evidence 404(b) was not an abuse of discretion. Mack v. United States, 258 F.3d 548, 553

(6th Cir. 2001) (standard of review). The district court’s decision to admit evidence of drug dealing

in this case met each of the three requirements for admitting evidence of prior bad acts. “First, the

trial court must make a preliminary determination as to whether sufficient evidence exists that the

prior act occurred. Second, the district court must make a determination as to whether the ‘other act’

is admissible for a proper purpose under Rule 404(b). Third, the district court must determine

whether the ‘other acts’ evidence is more prejudicial than probative under Rule 403.” Id. (citing

United States v. Gessa, 971 F.2d 1257, 1261-62 (6th Cir.1992)).



                                                  -7-
No. 07-6165
United States v. McCaleb

       First, although the court did not make an explicit finding that the prior bad acts occurred, the

evidence in the record supports the court’s implicit determination to that effect. The district judge

treated the evidence as true in his discussion with the parties, and, given McCaleb’s criminal

background and two witnesses’ testimony either that he dealt drugs or engaged in behavior consistent

with dealing drugs, the judge’s implicit determination that McCaleb engaged in street-level drug

dealing was justified.


       Second, the district court properly determined that the evidence was introduced for a

legitimate purpose. The government sought to introduce the evidence in order to show motive to

possess a firearm, to refute McCaleb’s claim that someone else possessed the gun found in Cates’s

apartment, and to explain why eyewitnesses to the shooting were familiar with McCaleb and could

therefore readily identify him. As the district court noted, this court held in United States v.

Frederick, 406 F.3d 754, 761 (6th Cir. 2005), that “evidence of drug dealing is admissible to show

a motive to possess firearms illegally.” It is true that Frederick, unlike the instant case, involved a

charge of possession of a firearm in furtherance of a drug trafficking crime, and the other acts

introduced there were inextricably related to the prosecution’s theory of the case. Nonetheless, so

long as the evidence is introduced for a proper purpose, Rule 404(b) does not limit its use to crimes

of the same sort or crimes committed at the same time as the other acts to be introduced. The

evidence of McCaleb’s prior drug-dealing activity, although not admissible to prove bad character,

was admissible as proof of motive to possess a gun, as well as for the other purposes the prosecution




                                                 -8-
No. 07-6165
United States v. McCaleb

mentioned. The district court did not abuse its discretion in finding that the evidence was introduced

for those proper purposes rather than to prove bad character.


       Third, the district court did not abuse its discretion in determining that background evidence

of drug dealing was highly probative of the crime charged and that the balance under Rule 403

should be struck in favor of admission. In making such a determination, “we must look at the

evidence in the light most favorable to its proponent, maximizing its probative value and minimizing

its prejudicial effect.” United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993) (internal citations

and quotations omitted). When viewed in the light most favorable to the prosecution, the value of

showing McCaleb’s occupation as a drug dealer in order to show motive to possess a gun was

considerable. The district court focused on Rule 403’s requirement that prejudice must substantially

outweigh probative value before otherwise admissible evidence should be excluded. The district

court’s determination that the danger of unfair prejudice did not substantially outweigh the

evidence’s probative value was not an abuse of discretion.


       Where the district court admits evidence under Rule 404(b), the court must provide a limiting

instruction to the jury if such an instruction is requested. United States v. Fraser, 448 F.3d 833, 839

(6th Cir. 2006). The record is this case does not indicate that McCaleb requested a limiting

instruction, and McCaleb does not raise this issue on appeal.




                                                 -9-
No. 07-6165
United States v. McCaleb

                                                   C.


        The district court did not abuse its discretion when it admitted a previously undisclosed video

showing McCaleb wearing dark sweat pants at the time of his arrest. United States v. Phillip, 948

F.2d 241, 250 (6th Cir. 1991) (standard of review).


        The district court properly ruled that the videotape was not discoverable under Federal Rule

of Criminal Procedure 16(a)(1)(E) as an item material to preparing the defense. As the district court

reasoned under the Supreme Court’s holding in United States v. Armstrong, 517 U.S. 456, 462-63

(1996), the evidence was not material to the defense because the evidence supported, rather than

contradicted, the Government’s case. McCaleb attempted to refute the Government’s case by

introducing evidence that he wore light-colored clothing on the day of the arrest, and the

Government was probably aware prior to trial that McCaleb would pursue such a strategy. In

admitting the evidence as part of the Government’s rebuttal case, the district court gave weight to

the fact that the videotape merely confirmed what various other pieces of Government evidence

already established and to the fact that the Government did not introduce the videotape as part of its

case-in-chief. The district court is entitled to engage in such reasoning, and to exercise its discretion

accordingly. The district court did not abuse its discretion when it determined that the videotape was

not material to preparing a defense and therefore was not discoverable under Rule 16(a)(1)(E).


        Neither did the district court abuse its discretion when it ruled that the videotape was

admissible even though it might have been discoverable under Rule 16(a)(1)(B)(i) as a relevant


                                                 - 10 -
No. 07-6165
United States v. McCaleb

recorded statement by the defendant. On the videotape, McCaleb can be heard saying, “My wallet.

He got my I.D. Give her my wallet. Tell Alisha to get my I.D. Get my I.D., my wallet, my phone,

and my money.” The district court, assuming that this statement might have been relevant and

discoverable, fashioned a remedy that would allow the government to present the evidence but would

prevent the jury from hearing the objectionable statement. The district court admitted the videotape

on the condition that the Government mute the sound.


       Even if there was a violation of Rule 16(a)(1)(B)(i), exclusion was not necessarily required.

In exercising its discretion to fashion remedies for Rule 16 violations, district courts are encouraged

not to use the sanction of exclusion where a less drastic remedy will suffice. United States v.

Maples, 60 F.3d 244, 246-47 (6th Cir. 1995). A district court should consider “(1) the reasons for

the government’s delay in producing the materials, including whether it acted intentionally or in bad

faith; (2) the degree of prejudice, if any, to the defendant; and (3) whether the prejudice to the

defendant can be cured with a less severe course of action, such as granting a continuance or a

recess.” Maples, 60 F.3d at 247. In this case, there is no evidence of bad faith, it is not clear that

the delay in learning of this “statement” caused any prejudice to the defendant, and the defense

declined an offered continuance. Moreover, the remedy of muting the sound effectively excluded

the objectionable aspect of the videotape. Rather than abusing its discretion by admitting the

videotape evidence with the sound muted, the district court properly executed its duty to fashion an

appropriate remedy that avoided unnecessary exclusion of relevant evidence.




                                                - 11 -
No. 07-6165
United States v. McCaleb

       Finally, cumulative error analysis is not relevant to this case, because McCaleb has not shown

that any individual ruling was error. Under cumulative error analysis, “a defendant must show that

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

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

accumulated, however, must indeed be errors, not simply rulings adverse to the defendant’s position.

See id. Neither the admission of other bad acts evidence nor the admission of the videotape of

McCaleb’s arrest was error. There are, therefore, no unfair effects to accumulate.


                                                III.


       For the foregoing reasons, McCaleb’s conviction is affirmed.




                                               - 12 -
