United States of America v. James Wilder, Ii

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0262p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES WILDER, II,
Defendant-Appellant.
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No. 22-2129
Appeal from the United States District Court for the Eastern District of Michigan at Flint.
No. 4:21-cr-20671-1—Matthew F. Leitman, District Judge.
Decided and Filed: December 4, 2023
Before: BOGGS, SUHRHEINRICH, and READLER, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Charles A. Grossmann, Flint, Michigan, for Appellant. William J. Vailliencourt,
Jr., UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. James Wilder II was walking along a road on a
rainy night. When a police car approached, an officer noticed a gun at Wilder’s hip. Wilder ran,
clutching his waist. The officer observed Wilder drop the gun and pick it up before running into
a house. A search of the home yielded a gun matching the one the officer had observed, leading
to Wilder’s arrest. While in jail, Wilder called a friend and directed her to pay the residents of
the home to say (falsely) that they owned the gun. A jury ultimately found Wilder guilty of both
possession of a firearm as a felon and attempted witness tampering.
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No. 22-2129 United States v. Wilder Page 2
Wilder challenges the admission of trial testimony regarding the officer’s training and
experience. He also contests the sufficiency of the evidence supporting his attempt conviction.
Finding no prejudicial error in the district court proceedings, we affirm.
I.
While on patrol in Flint, Michigan, Officer Meric Whipple and his partner responded to a
call reporting shots fired. While touring the scene in their police cruiser, Whipple witnessed a
man walking beside the road. Whipple saw what appeared to be a gun tucked into the man’s
waist with a visible extended magazine attached. As the vehicle came to a stop, the man
clutched his waistband and started running. Whipple exited the vehicle and gave chase. During
his pursuit, Whipple saw the man drop the gun and pick it back up before running into a house.
Residents of the home agreed to let the officers search the premises. Inside, the officers
encountered four individuals, including the man who had fled from Whipple, later identified as
James Wilder II. The officers noticed a ceiling attic-access door ajar, broken cobwebs hanging
at its side. In the attic, the officers found a handgun lying in a bed of insulation next to the attic
access. The gun matched the one Whipple had seen Wilder drop while being pursued. The
officers arrested Wilder, who they later discovered was serving a term of federal supervised
release.
From jail, Wilder only made matters worse. During a recorded call to a friend, Wilder
described his encounter with law enforcement: as officers “pulled up,” Wilder “dipped back to
her crib,” and “the motherfucker got hid,” but the officers “found that motherfucker.” Wilder
also asked his friend for the number of a woman named Amy.
Next, Wilder called Amy on a recorded line. He asked her to approach a woman who
lived in the home where the gun was found and “get her on that page, or pay her at least” to
claim the gun was hers, or see if her brother would claim it was his gun. He emphasized that
Amy should “go talk to them” because Wilder “need[ed] them to come to [his] court date.” He
told Amy to “at least give them a couple dollars or something” because he did not want to go
back to prison. During the call, Wilder offered to call the woman himself if Amy could get her
number. Amy responded that she was “pulling up” to the home and asked if she should “get the

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No. 22-2129 United States v. Wilder Page 3
money together tonight” or “try and see if it’s gonna go through or not.” Wilder responded,
“You can. You can do that too.”
For these activities, the government charged Wilder with one count of being a felon in
possession of a firearm, under 18 U.S.C. § 922(g), and two counts of attempted witness
tampering, under 18 U.S.C. § 1512(b). At trial, the United States called Whipple to testify.
Whipple discussed his training and experience, emphasizing the instruction he received on
recognizing when someone might be armed, as well as instruction on identifying types of
firearms. According to Whipple, at the time of trial, he had participated in “200 or 300” stops
where guns were found, about 50 of which involved a fleeing suspect.
Wilder objected to Whipple’s testimony on relevancy grounds. The government
responded that Whipple’s testimony explaining his training and experience better equipped the
jury to evaluate his ability to “observe and respond to the events that night.” The district court
overruled Wilder’s objection.
At the close of the government’s case, Wilder moved for acquittal on the two counts of
witness tampering. In support of his motion, Wilder argued that there was insufficient evidence
that he took a substantial step towards committing witness tampering, a necessary element of the
offense. The district court denied Wilder’s motion. When the trial resumed, Wilder offered no
evidence. At the close of its deliberations, the jury convicted Wilder of all charges. He now
appeals.
II.
A. Wilder begins by challenging the district court’s admission of Whipple’s testimony
regarding his training and experience identifying firearms. To Wilder’s mind, that testimony
was irrelevant to the government’s prosecution. We review his relevancy challenge for an abuse
of discretion, United States v. Johnson, 79 F.4th 684, 698 (6th Cir. 2023), meaning Wilder must
demonstrate that the district court (1) misunderstood the law, (2) relied on clearly erroneous
factual findings, or (3) made a clear error in judgment. United States v. Chavez, 951 F.3d 349,
358 (6th Cir. 2020) (citation omitted).

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No. 22-2129 United States v. Wilder Page 4
In evaluating the merits of Wilder’s challenge, we start from the understanding that
evidence is relevant if “it has any tendency to make a fact more or less probable than it would be
without the evidence” and “the fact is of consequence.” Fed. R. Evid. 401. This amounts to a
“low bar,” United States v. Potter, 927 F.3d 446, 452 (6th Cir. 2019), one the government easily
clears here. Whipple’s training in and experience with identifying weapons was relevant to the
government’s case. In the context of recognizing an individual, we have held that a person’s
familiarity with an individual makes it more likely that the person would properly identify that
individual. See United States v. Crozier, 259 F.3d 503, 511 n.2 (6th Cir. 2001) (“[I]t is material
whether the witness was familiar with the defendant, because the more familiar the person, the
more reliable the identification.”). The same logic applies to identifying firearms. An individual
familiar with what a concealed weapon looks like is better able to identify one than someone
who has no familiarity. And through this testimony, Whipple demonstrated his familiarity with
recognizing guns. In that way, Whipple’s testimony provided the jury information from which it
could gauge the credibility of his identification. See, e.g., United States v. Perry, 438 F.3d 642,
649 (6th Cir. 2006) (“The weight to be given to [identification testimony] is for the jury to
determine.”)
Even if relevant, Wilder responds, the testimony’s probative value is substantially
outweighed by the risk of unfair prejudice, meaning the evidence fails the balancing test from
Federal Rule of Evidence 403, rendering it inadmissible. Here, Wilder faces a pair of obstacles.
One is the settled understanding that a district court is afforded “broad discretion” in conducting
this balancing test. United States v. Asher, 910 F.3d 854, 860 (6th Cir. 2018) (citation omitted).
The other is the fact that Wilder did not raise his Rule 403 challenge in the district court, meaning
we review the issue for plain error. United States v. Warman, 578 F.3d 320, 348 (6th Cir. 2009)
(citation omitted). And plain error requires a showing of “(1) an error, (2) that was obvious or
clear, (3) that affected [his] substantial rights, and (4) that affected the fairness, integrity, or public
reputation of [the] judicial proceedings.” United States v. Johns, 65 F.4th 891, 893 (6th Cir. 2023)
(citation omitted).
We see no plain error in admitting this evidence. Wilder reads Whipple’s testimony as
“imply[ing] that almost everybody on the streets of Flint has an illegal gun,” leading to an

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No. 22-2129 United States v. Wilder Page 5
unduly prejudicial “statistical conclusion” that Wilder must have possessed one as well. But
Whipple’s testimony was about his familiarity with identifying weapons. He was not opining on
the prevalence of illegal guns in Flint. Instead, he simply testified as to his experience to support
his understanding of Wilder’s conduct. Regardless, any marginal risk of unfair prejudice that
Wilder alleges does not substantially outweigh the probative value to the credibility of Whipple’s
observations on the night in question. See Fed. R. Evid. 403.
B. Next, Wilder challenges the sufficiency of the evidence supporting his conviction for
attempted witness tampering, in violation of 18 U.S.C. § 1512(b). To convict Wilder, the
government had to prove (1) that Wilder intended to commit the crime of witness tampering; and
(2) that Wilder took a “substantial step” toward that end. United States v. Fortner, 943 F.3d
1007, 1009–10 (6th Cir. 2019) (citation omitted). Our review is circumscribed. As the jury
found in the government’s favor, we ask “only whether ‘the government’s case was so lacking
that it should not have even been submitted to the jury.’” United States v. Miller, 982 F.3d 412,
440 (6th Cir. 2020) (quoting Musacchio v. United States, 577 U.S. 237, 243 (2016)). In other
words, we must leave the verdict in place if “any rational trier of fact,” when “viewing the
evidence in the light most favorable to the prosecution, . . . could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Fisher, 648 F.3d 442, 450
(6th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
As in the district court, Wilder argues that he did not take a substantial step towards
completing the tampering. To be deemed a “substantial step,” the conduct must go beyond
“preliminary activities” and be “something more than mere preparation.” United States v.
Alebbini, 979 F.3d 537, 546–47 (6th Cir. 2020) (citations omitted). It must “corroborate the
firmness of a defendant’s criminal intent.” Id. at 546. Words alone, however, can be a
substantial step. United States v. LaPointe, 690 F.3d 434, 444 (6th Cir. 2012) (citation omitted).
That is precisely what happened here. Wilder took a substantial step (steps, in fact) toward
witness tampering when he coordinated with and instructed Amy. See id. (coordinating a drug
deal by phone sufficient for attempt); United States v. Burns, 298 F.3d 523, 539 (6th Cir. 2002)
(same). Wilder instructed Amy to go to the home where the gun was found to tell the residents
to claim the gun was theirs. Wilder told Amy multiple times to bring money with her to bribe

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No. 22-2129 United States v. Wilder Page 6
the home’s residents to “come to [his] court date.” And when Amy said she was “pulling up,”
Wilder continued to encourage her to execute the plan. These statements “corroborate[d] the
firmness of [Wilder’s] criminal intent” to tamper with a witness, and they went beyond
“preliminary activities.” Alebbini, 979 F.3d at 546–47 (citations omitted). “A fragment of the
crime,” it is fair to say, “was essentially in progress.” Id. at 547 (cleaned up).
Wilder responds by reminding us that Amy’s statements during her call with Wilder are
hearsay, and thus not substantive evidence. True, but that does not mean we entirely disregard
them. Her statements were admitted to provide context for Wilder’s statements, not for their
truth. See, e.g., United States v. Jacob, 377 F.3d 573, 581 (6th Cir. 2004). And Wilder’s
statements, read in context, reflected “more than mere preparation.” Alebbini, 979 F.3d at 546.
When Wilder heard that Amy was on her way to the home, he continued to instruct her to tamper
with a potential witness, demonstrating the firmness of his criminal intent.
Invoking United States v. Dolt, 27 F.3d 235 (6th Cir. 1994), Wilder characterizes his
conduct as mere solicitation, not attempt. But Dolt examined the contours of a Florida
solicitation offense, asking whether that offense was equivalent to attempt for the purpose of
determining career-offender status. Id. at 237–39 (noting “Florida law controls the definition
and contours” of Florida solicitation). The answer has no bearing on whether Wilder attempted
to tamper with a witness in violation of federal law. Controlling here is the settled federal case
law confirming that Wilder’s conduct was a “substantial step” towards tampering, as it reflected
the “firmness of [his] criminal intent.” Alebbini, 979 F.3d at 546.
Nor were Wilder’s comments to Amy “mere abstract talk,” as he suggests. Wilder
provided Amy with detailed instructions. He told her to go to the home, ask one of the residents
to claim in court that the gun was theirs, and offer money in return. He also volunteered to do
the tampering himself if Amy could get the phone number for the woman who lived in the home.
There was nothing abstract about these discussions. And those statements, contrary to Wilder’s
suggestion, may be used to satisfy both elements of attempt; we do not require separate evidence
for every element. See, e.g., United States v. Wettstain, 618 F.3d 577, 587 (6th Cir. 2010)
(noting that evidence of possessing large quantities of controlled substances can prove both
possession and intent-to-distribute elements).

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No. 22-2129 United States v. Wilder Page 7
Finally, Wilder argues that he did not take a substantial step because he did not pay or
threaten Amy. This argument demands too much. Evidence that Wilder had paid or threatened
Amy to convince her to tamper with a witness on his behalf would certainly have been sufficient
evidence of a substantial step, but it was not necessary. Viewing the evidence as a whole, a
rational trier of fact could find that Wilder took a substantial step towards witness tampering
when he “counsel[ed], command[ed], [or] induce[d]” Amy to do so. 18 U.S.C. §§ 2, 1512(a)(2).
* * * * *
A final housekeeping matter deserves brief mention. Wilder sent a letter to the Court
asking to supplement his brief with three additional pro se issues: (1) that 18 U.S.C. § 922(g)(1)
is unconstitutional; (2) that Wilder’s Fourth Amendment rights were violated; and (3) that his
criminal-history score should be lowered because of an amendment to the Sentencing
Guidelines. Generally, we do not consider pro se claims brought by a defendant represented by
counsel. See, e.g., United States v. Fontana, 869 F.3d 464, 472–73 (6th Cir. 2017) (citing United
States v. Williams, 641 F.3d 758, 770 (6th Cir. 2011)). We see no reason to deviate from that
practice here.
We AFFIRM.

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