NOT RECOMMENDED FOR PUBLICATION File Name: 25a0219n.06
No. 24-1193
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Apr 25, 2025 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee ON APPEAL FROM THE ) UNITED STATES DISTRICT ) v. COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN ) MARCUS SMITH, ) OPINION Defendant-Appellant ) )
Before: GIBBONS, WHITE, and MURPHY, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Defendant-Appellant Marcus Smith appeals his
conviction of knowingly possessing a firearm and/or ammunition while a felon, in violation of 18
U.S.C. § 922(g)(1), arguing that his trial counsel was ineffective, the jury instructions were
erroneous, and the government did not prove the interstate element of the felon-in-possession
charge beyond a reasonable doubt. We AFFIRM.
I. Background
A. Pre-Trial
In February 2022, a grand jury indicted Smith on one count of being a felon in knowing
possession of a firearm and ammunition on or about October 31, 2018. On March 7, 2023, while
Smith was detained pending trial, government witness Yolanda James told Task Force Officer
Diana Napier that “Smith tried to send a message to her from an old neighbor named Charlene
Lee.” R. 69-4, PID 781. As summarized in Napier’s report, when Napier called Lee, Lee said that
Smith told her that James “needs to tell the attorneys the truth to what really happened.” Id. No. 24-1193, United States v. Smith
Lee also told Napier that “when [James] lived down the street on Evanston, it was always stuff
happening down there,” and that she heard about an argument with Smith “on the [F]ourth of July
when the shots was allegedly fired.” Id. Lee also told Napier that James “told her that [Smith] did
not have a gun and that it’s on him and the attorneys.” Id. The government provided a copy of
Napier’s report and Lee’s contact information to Smith’s counsel before trial.
B. Trial
A felon-in-possession charge has four elements: (1) the defendant’s status as a felon,
(2) his knowledge of that status, and (3) his knowing possession of a firearm and/or ammunition
(4) that traveled in interstate commerce. United States v. Ward, 957 F.3d 691, 696 (6th Cir. 2020);
18 U.S.C. § 922(g)(1). The parties stipulated that Smith had a prior felony conviction, and that he
knew about his conviction.
The relevant trial testimony was as follows. At the time of the events giving rise to this
case, Smith and James were separated but “trying to reconcile [their] relationship.” R. 64, PID
560. While they worked on their relationship, Smith and James lived together at James’s house.
At that time, James’s friend Ronald Johnson was helping James while she received cancer
treatment and regularly picked James and her son up to drop James’s son off at school.
Johnson testified that when he arrived at James’s house the morning of October 31, 2018,
James did not come out to the car immediately. While Johnson was waiting, Smith—whose
presence was unexpected, and whose son Johnson had not been taking to school—came out of the
house and told Johnson he needed to arrive at the house earlier to get Smith’s son to school on
time. After Johnson told Smith to discuss the matter with James, Smith returned to the house,
came back out carrying a “black Glock,” and fired a shot “toward the sky in front of the vehicle.”
Id. at PID 520–21, 526. James then came outside, asked Smith what was wrong with him, and
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began hitting him. After Smith went back inside, James and her son got in the car with Johnson
and left.
Although James’s testimony largely echoed Johnson’s, some details differed. According
to James, Smith was “agitated because Mr. Johnson had [her] vehicle.” Id. at PID 563. After
James got in the car with her son, her grandson, and Smith’s son, Smith was standing next to the
car. At that point, Smith pulled out a gun, aimed it at the windshield, raised it in the air, and “let
off one shot.” Id. at PID 563, 568–70. James then got out of the car, confronted Smith, and told
him to leave.
After dropping the children off at school, James and Johnson reported the incident to the
police. When Detroit Police Sergeant Kevin Jackson came to James’s house to investigate, Smith
was not at the house and Jackson did not recover the gun. However, he did find a gold Winchester
Smith & Wesson .40 caliber shell casing in the driveway near where James said Smith had been
standing.
Shelby Szymoniak, a forensic scientist in the Michigan State Police Firearm and Tool Mark
Unit, testified that either a Glock or a Smith & Wesson could have fired the bullet, though she
could not definitively rule out another type of gun because the database law-enforcement officials
use for such purposes “is not all[-]inclusive.” Id. at PID 603. And on cross-examination, she said
that “a large number of firearms” could have fired the recovered casing. Id. at PID 609.
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Special Agent Jimmie Pharr
testified that the recovered casing would have had to cross state lines to end up in Michigan, as
would any Glock or Smith & Wesson firearm. On cross-examination, he said he only examined
the recovered shell casing and was not asked to examine a firearm.
Smith called no witnesses.
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The jury convicted Smith of the felon-in-possession charge.
C. Post-Trial
During the period for post-trial motions, Smith sent the court two letters complaining about
trial counsel John Brusstar’s representation, including Brusstar’s decision to not subpoena Lee.
The court treated Smith’s letters as a request for new counsel and Brusstar moved to withdraw,
citing a breakdown in the attorney-client relationship. Smith also sent the court another letter
saying that he intended to file a pro se motion claiming ineffective assistance of counsel.
The district court held a hearing, granted Brusstar’s motion to withdraw, and appointed
Smith new counsel. The parties agreed to adjourn Smith’s scheduled sentencing to allow new
counsel time to investigate and possibly prepare a delayed motion for new trial, along with a
sentencing memorandum. Smith’s new counsel then moved for a new trial, arguing that (1) trial
counsel was ineffective, (2) the district court erred when issuing a jury instruction on unanimity,
and (3) the verdict was against the weight of the evidence.
Once the motion was fully briefed, the court held a limited evidentiary hearing on
Brusstar’s decision to not present the testimony of Charlene Lee. Brusstar testified that he was
concerned that Lee’s statement to Napier could raise witness-tampering issues based on Smith’s
contacting Lee, and that if Smith and Lee appeared to be “in cahoots,” it might hurt Smith’s
credibility, thus harming the defense’s overall credibility. R. 104, PID 1194–96. Brusstar was
also concerned that Lee’s statement mentioned an incident on the Fourth of July, potentially
opening the door to events from the summer of 2019 when Smith allegedly tried to stab Johnson—
a concern Brusstar still had after speaking with Lee on the phone.
After accepting the delayed motion for a new trial, the district court denied it on the merits.
It first held that Brusstar did not provide ineffective assistance of counsel by not calling witnesses
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to impeach James and Johnson, or by neither cross-examining the government’s firearms expert
about “ghost guns” that may resemble Glocks nor retaining a firearms expert of his own to testify
about that theory, because those decisions were not unreasonable and did not prejudice Smith. R.
87, PID 1023–35. Second, it held that Smith’s jury-instructions argument failed because “[t]he
jury instructions as a whole accurately reflected the law.” Id. at PID 1035–38. Finally, the district
court held that Smith’s weight-of-the-evidence challenge failed, in part because Szymoniak and
Pharr testified credibly about the interstate-commerce nexus.
After denying the motion for a new trial, the district court sentenced Smith to 84 months
in prison, followed by three years of supervised release, and a $100 special assessment.
II. Discussion
A. Ineffective Assistance of Counsel
On appeal, Smith first argues that Brusstar was ineffective for (1) not calling Jackson and
Detroit Police Officer Monique Swartz to impeach Johnson and James with prior inconsistent
statements, (2) not calling Lee to testify that she often heard gunshots from near James’s house,
and (3) neither cross-examining the government’s witnesses about the possibility of Smith having
possessed a “ghost gun” assembled within Michigan nor retaining an expert of his own to testify
about that theory. Appellant’s Br. at 13–19. We agree with the district court that none of these
choices constitute ineffective assistance of counsel.
1. Standard of Review
“This court typically declines to hear ineffective-assistance claims on direct appeal because
the record is generally inadequate to evaluate such a claim. If the parties have adequately
developed the record, however, the court can elect to hear the issue on direct appeal.” United
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States v. Foreman, 323 F.3d 498, 502 (6th Cir. 2003) (internal quotation marks and citation
omitted). The parties have done so here.
We review ineffective-assistance-of-counsel claims de novo, even in “the atypical context
of an overarching new-trial-motion determination.” United States v. Munoz, 605 F.3d 359, 366
(6th Cir. 2010). And “[w]e review the district court’s underlying factual findings for clear error.”
United States v. Kilpatrick, 798 F.3d 365, 374 (6th Cir. 2015). “Whether to hold an evidentiary
hearing before deciding a motion for a new trial is within the discretion of the trial court.” United
States v. Bass, 460 F.3d 830, 838 (6th Cir. 2006).
2. Analysis
To prevail on an ineffective-assistance claim, a defendant must show two things: deficient
performance and actual prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient
performance means “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Id. And demonstrating actual prejudice requires
showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. When evaluating ineffective-assistance claims,
“a court must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance,” id. at 689, and “take care to avoid ‘second-guessing’ strategic
decisions,” Lundgren v. Mitchell, 440 F.3d 754, 770 (6th Cir. 2006) (quoting Strickland, 466 U.S.
at 689). See also Baze v. Parker, 371 F.3d 310, 320 (6th Cir. 2004) (“[T]he Sixth Amendment
guarantees reasonable competence, not perfect litigation.”).
Smith has not shown that Brusstar’s decision to not call Swartz to impeach Johnson was
beyond the bounds of professional norms. According to Swartz’s police report, Johnson told her
that Smith had fired two shots, and that James was already in the car when Smith fired. But
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Johnson testified at trial that Smith only fired one shot, and that he fired while James was still
inside the house. When Brusstar asked Johnson about those inconsistencies at trial, Johnson stuck
to his trial testimony. And Brusstar again highlighted those inconsistencies in his closing
argument. As the district court concluded, Brusstar “created the inference of an inconsistency
rather than calling Swartz to make it explicit.” R. 87, PID 1024. Such reliance on cross-
examination can be a reasonable way to expose weakness in government witnesses’ testimony.
Cf. Clardy v. Pounds, 126 F.4th 1201, 1209 (6th Cir. 2025) (“Counsel, of course, must make
reasonable professional efforts to expose weaknesses in eyewitness identifications . . . [, but] may
use ‘other means’ such as cross-examination.”). And the court instructed the jurors that they could
draw reasonable inferences based on the evidence presented in the case.
Further, had Brusstar called Swartz, she would have corroborated Johnson’s testimony that
Smith fired a gun in front of James’s house, and that Johnson reported the incident the day it
happened. Determining whether the benefits of eliciting testimony about Johnson’s inconsistent
statements would have outweighed the damage from Swartz’s corroborating Johnson’s testimony
and focusing the jury on the number of shots Smith fired was a question of trial strategy. See
Foreman, 323 F.3d at 504 (holding that it was reasonable trial strategy to not call witnesses who
could have corroborated some of the defendant’s testimony but would have drawn attention to
unfavorable facts and might have made the jury more skeptical of the defendant’s testimony as a
whole); Bass, 460 F.3d at 839 (holding that it was reasonable trial strategy to not impeach
government witnesses’ testimony using prior inconsistent statements when doing so would require
counsel to dwell on a murder in which “there was an indication that [the defendant] had been
involved”).
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The same is true of Brusstar’s decision to not call Jackson to impeach James. Jackson’s
incident report notes that James “stated that [Smith] fired a shot at her from a firearm while she
was inside of a vehicle.” R. 69-5, PID 782. But James testified that Smith fired straight up in the
air, not at her, and stuck to that testimony when Brusstar questioned her about it on cross-
examination. Had Jackson testified, he would have corroborated the most important parts of
James’s testimony—that Smith had a gun and fired it in front of James and Johnson, and that James
reported the incident to the police. Although another attorney might have weighed the tradeoffs
of calling Jackson differently, that is not enough to put Brusstar’s choice outside reasonable
professional norms. Strickland, 466 U.S. at 689 (“There are countless ways to provide effective
assistance in any given case. Even the best criminal defense attorneys would not defend a
particular client in the same way.”).
Smith’s argument about Brusstar’s decision to not have Lee testify is similarly
unpersuasive. On appeal, Smith does not contest the district court’s finding that not calling Lee to
testify about James’s alleged statement that Marcus Smith did not have a gun—which could have
risked opening the door to another violent incident between Smith and Johnson—was reasonable
trial strategy. But Smith contends that not calling Lee to testify that she often heard gunshots
coming from James’s house was ineffective assistance.
Brusstar testified that he decided to not call Lee because he had serious concerns about her
credibility, including possible inferences of witness tampering based on Smith’s contacting Lee,
and worried that those issues might make the jury less likely to believe the defense’s narrative.
Under those circumstances, not calling Lee to testify about having heard gunshots from the area
of James’s house is, once again, reasonable trial strategy. See English v. Romanowski, 602 F.3d
714, 727 (6th Cir. 2010). And Brusstar investigated Lee by speaking with her on the phone before
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trial, thus providing him with information on which to base his decision. See United States v. Six,
600 F. App’x 346, 351 (6th Cir. 2015) (holding that it was a reasonable judgment to not further
investigate a witness or call him to testify because, after a phone call, counsel determined that the
witness was easily impeachable and calling him might allow the government to introduce
damaging evidence).
Smith also has not shown that Brusstar’s decision to not call Lee prejudiced him. Sergeant
Jackson testified that there were frequently gunshots in Detroit around October 30, known as
Devil’s Night. Accordingly, Lee’s testimony about the gunshots around James’s house would
“merely have repeated information that had already been placed before the jury,” White v. Mitchell,
431 F.3d 517, 530 (6th Cir. 2005)—that someone else could have fired the recovered shell casing
in James’s driveway the night before the altercation in this case. Therefore, Smith has not shown
a reasonable probability that calling Lee to testify would have led to a different outcome.
That leaves Smith’s “ghost gun” argument. Because the parties stipulated to Smith’s status
as a felon and his knowledge of that status, the trial focused on whether Smith knowingly possessed
a firearm and ammunition that had traveled in interstate commerce. Brusstar’s defense was that
the evidence did not show that Smith knowingly possessed a gun and ammunition because Johnson
and James should not be believed. More specifically, he argued that Johnson and James made up
an inconsistent and incredible story about Smith several years after the fact because Smith, James,
and Johnson were in a love triangle. R. 64, PID 509 (“[Y]ou will hear different stories from Ronald
Johnson, Yolanda James, about what happened. And why is that? Well, the mix might involve
the love triangle that happened there.”); R. 65, PID 666–67 (“I don’t want these two paramours,
Ronald Johnson and Yolanda James, making up a story four-and-a-half years later[.] . . . [T]here
are so many different stories here, almost makes your head spin.”)
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Smith argues, however, that Brusstar was deficient for not pursuing the defense that
Smith’s firearm had not traveled in interstate commerce—for example, because it might have been
3D-printed or made from a kit in Michigan. But a “ghost gun” defense is inconsistent with arguing
that Smith did not possess and fire a gun in the first place, so it was reasonable to pursue only one
of the two defenses. Cf. Kissner v. Palmer, 826 F.3d 898, 903 (6th Cir. 2016) (order) (“[U]sing
an insanity defense first requires the defendant to admit committing the criminal conduct. . . . [The
petitioner] includes ‘actual innocence’ as a ground for relief in his amended habeas petition;
counsel was not ineffective for failing to raise a defense Kissner himself would argue was factually
wrong.”). And deciding which defense to pursue and how to structure the defense is a matter of
trial strategy. Leonard v. Warden, 846 F.3d 832, 848 (6th Cir. 2017) (“Counsels traditionally enjoy
discretion over deciding which witnesses to call and how to examine them.” (quotation marks and
citation omitted)); Dunn v. Reeves, 594 U.S. 731, 739 (2021) (“[S]trategic decisions—including
whether to hire an expert—are entitled to a strong presumption of reasonableness.” (quotation
marks and citation omitted)).
Further, Pharr’s testimony that the recovered shell casing was made outside Michigan was
undisputed at trial, and all the evidence showed that Smith possessed the gun and bullet
simultaneously.1 As the district court aptly noted, “the possibility that Smith might have purchased
a kit with firearm components and manufactured the gun himself in Michigan does not alter the
fact that the recovered shell casing traveled in interstate commerce.” R. 87, PID 1032. Smith
therefore has not shown a reasonable probability that the outcome of the trial would have been
1 An expert affidavit offered post-trial addressed the interstate nexus element for the firearm, explaining that identifying a gun as a bona fide Glock is “nearly impossible” when someone is holding the gun in their hands, and that many other types of guns, including “ghost guns,” resemble Glocks. R. 83-2, PID 998–1000. However, that affidavit does not address whether the recovered shell casing traveled in interstate commerce.
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different had counsel called an expert witness or cross-examined the government’s witnesses
differently.2
Finally, the district court did not abuse its discretion by limiting the evidentiary hearing on
Smith’s ineffective-assistance arguments to counsel’s decision to not call Lee. It was Smith’s
burden to show the need for an evidentiary hearing on his other arguments. Bass, 460 F.3d at 838.
But Smith produced no evidence other than his untimely expert affidavit to support his argument
that counsel was ineffective for not calling Swartz and Jackson or pursuing the “ghost gun”
defense.
B. Jury Instructions
The district court instructed the jury that the jurors need not “be in unanimous agreement
about whether the defendant knowingly possessed a firearm or ammunition as long as each of
[them] [found] that he was in knowing possession of either a firearm or ammunition.” R. 65, PID
683. Smith’s second argument on appeal is that this instruction was reversible error because
“[t]here was a ‘genuine risk’ that some jurors would conclude that the Defendant was guilty of
possession of a firearm, but others conclude that he was guilty of possession of ammunition,”
Appellant’s Br. at 20 (quoting United States v. Pratt, 704 F. App’x 420, 427 (6th Cir. 2017)), thus
reaching a unanimous verdict based on different jurors believing Smith committed different acts.
But there was no such genuine risk in this case.
2 To support his prejudice argument, Smith cites Coleman v. United States, No. 4:16-CR-46, 2018 WL 1165726 (N.D. Ohio Mar. 6, 2018). But this court reversed that district court decision, holding that, because the government presented evidence that the defendant possessed a loaded gun and the defendant was charged with possessing both a firearm and ammunition, counsel’s failure to challenge expert testimony establishing the interstate nexus of the firearm did not result in prejudice. Coleman v. United States, No. 18-3413, 2018 U.S. App. LEXIS 35812, at *3–4 (6th Cir. Dec. 19, 2018) (“[E]ven if the evidence presented did not show the firearm had traveled in interstate commerce, the same conviction would have resulted[.] . . . [A] finding that Coleman possessed the firearm would necessarily imply that he had possession of the ammunition inside of it.”).
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The parties disagree about the applicable standard of review. Smith urges us to review the
issue de novo, while the government argues for plain-error review because Smith did not renew
his objection to the challenged instruction after the district court instructed the jury. But we need
not resolve this debate because Smith’s claim fails under any standard of review.
“[A] jury in a federal criminal case cannot convict unless it unanimously finds that the
Government has proved each element.” Richardson v. United States, 526 U.S. 813, 817 (1999).
But such unanimity is not always required as to “which of several possible sets of underlying brute
facts make up a particular element, say, which of several possible means the defendant used to
commit an element of the crime.” Id.; see also United States v. Hendrickson, 822 F.3d 812, 822–
23 (6th Cir. 2016).
In the felon-in-possession context, “the particular firearm possessed is not an element of
the crime under § 922(g), but instead the means used to satisfy the element of ‘any firearm.’”
United States v. DeJohn, 368 F.3d 533, 542 (6th Cir. 2004). And we have applied the same rule
to cases in which a defendant was charged with possessing a firearm and ammunition together.
United States v. Cook, 290 F. App’x 874, 884 (6th Cir. 2008) (holding that, where a single count
in the indictment charged the defendant with possessing both a firearm and ammunition, “the
ammunition and weapon charged in the indictment were all located in the same single-room
apartment, and the evidence sufficiently established that [the defendant] had dominion over that
apartment,” the district court did not err by not giving a specific unanimity instruction).
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Still, a court must give a specific unanimity instruction where the facts of the case create
“a genuine risk that the jury is confused or that a conviction may occur as the result of different
jurors concluding that a defendant committed different acts.” United States v. Sims, 975 F.2d
1225, 1241 (6th Cir. 1992) (citation and quotation marks omitted). But there is no such risk here.
As the district court put it, “this case involved a discrete act at a particular time in a particular
location with one gun and one shell casing.” R. 87, PID 1037. Smith could not possibly have
fired a gun in James’s driveway, discharging a shell casing, unless he simultaneously possessed
both a firearm and ammunition, either of which would independently violate § 922(g)(1) if it
traveled in interstate commerce.
Smith resists this conclusion by pointing to some of the Assistant United States Attorney’s
(AUSA) statements during the charge conference and closing arguments, which he claims
demonstrate that there was a genuine risk that different jurors would convict based on different
acts. The AUSA stated during the charge conference that he had “concerns that a jury could say
well, maybe we have questions about the interstate nexus of the firearm, but we don’t have any
issue about the ammunition.” R. 64, PID 635. But the AUSA was explaining why he thought the
jury instruction that the district court ended up giving was necessary, not conceding that different
jurors might convict based on different acts. In the same exchange, the AUSA also said that “the
ammunition and the firearm was essentially the same item,” and “the law is rather clear that the
jury does not have to be unanimous as to what was possessed. Firearms or ammunition or
combination of either one of those.” Id. In other words, because the government’s evidence
showed that Smith possessed a loaded gun on a single occasion, there was no risk that different
jurors would convict based on multiple occasions when Smith possessed either a firearm or
ammunition.
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The AUSA’s comments during closing arguments were not a concession that there was a
genuine risk of different jurors convicting based on multiple acts that occurred on different
occasions, either. Although the AUSA told the jury: “[Y]ou-all don’t have to agree on whether
he possessed a firearm or whether he possessed ammunition. . . . Half of you can think he
possessed ammunition; half of you can think he possessed a firearm,” R. 65, PID 663, either
conclusion would necessarily be based on the same act because Smith possessed a loaded gun on
a single occasion, thus simultaneously possessing a firearm and ammunition. The only potential
prejudice would be if some hypothetical jurors based their guilty verdict on possession of
ammunition and others on possession of the gun, and the latter group were not convinced that the
gun traveled in interstate commerce. But the evidence here would not reasonably support such a
hypothetical jury verdict because of the simultaneous possession of the gun and ammunition.
Accordingly, neither of the exchanges to which Smith points support his argument that there was
a genuine risk of different jurors convicting based on different acts.
C. Sufficiency of the Evidence
That leaves Smith’s argument that the government did not present sufficient evidence to
support the interstate-nexus element of the charge. This argument also does not persuade.
“This Court reviews de novo the sufficiency of the evidence to sustain a conviction.”
United States v. Gunter, 551 F.3d 472, 482 (6th Cir. 2009). “In reviewing the sufficiency of the
evidence, the relevant inquiry is ‘whether, after reviewing 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. Wallace, 597 F.3d 794, 800 (6th Cir. 2010) (quoting
United States v. Budd, 496 F.3d 517, 530 (6th Cir.2007)). When answering that question, the court
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does not “weigh the evidence presented, consider the credibility of witnesses, or substitute [its]
judgment for that of the jury.” Gunter, 551 F.3d at 482 (citation and quotation marks omitted).
And “[a]lthough specificity of grounds is not required . . . , where a Rule 29 motion is made on
specific grounds, all grounds not specified are waived.” United States v. Dandy, 998 F.2d 1344,
1356–57 (6th Cir. 1993).
The government needed to establish four elements to convict Smith. Ward, 957 F.3d at
696. Because the parties stipulated to Smith’s status as a convicted felon and his knowledge of
that status, the government needed to prove at trial only that Smith knowingly possessed a firearm
and/or ammunition that had traveled in interstate commerce. See id. On appeal, Smith focuses on
the interstate commerce element, arguing that, “[w]ithout the recovery of the alleged firearm and
its examination by an expert, it is not possible to determine beyond a reasonable doubt that it has
crossed the Michigan state line.” Appellant’s Br. at 59.
Reviewing the evidence in the light most favorable to the government, a rational jury could
have found that the government proved the two elements in dispute beyond a reasonable doubt.
Johnson and James testified that they saw Smith fire a gun in James’s driveway. Jackson testified
that, when he investigated, he recovered a shell casing in the part of the driveway where Johnson
and James said Smith was standing. Although she did not definitively identify the type of gun that
fired the recovered shell casing, Szymoniak testified it could have been a Glock or a Smith &
Wesson. And Pharr testified that neither type of firearm was manufactured in Michigan. But more
importantly, Smith does not dispute that the government presented enough evidence to support a
conviction for knowingly possessing, as a convicted felon, ammunition that had traveled in
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interstate commerce. Reversal is therefore unwarranted because possessing either a gun or
ammunition is sufficient to sustain Smith’s conviction. Supra Part II.B.2.
* * *
For the reasons set out above, we AFFIRM.
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