In short, given the totality of the circumstances, it would have been unreasonable for Officer Dykstra not to suspect that Defendant was continuing to violate his parole terms by possessing and using drugs. Likewise, Defendant's reliance on United States v. Caraes, 309 F.3d 950 (6th Cir. 2002), is misplaced. In Carnes, police and parole officers seized audio tapes during a search immediately following a parolee's arrest.
Included in the four count indictment was one count of being a felon in possession of a firearm and two counts of possession with the intent to distribute 50 grams or more of cocaine base. Being a felon in possession of a firearm is a serious offense. See United States v. Carries, 309 F.3d 950, 957 (6th Cir. 2002) (holding that possession of a firearm by a felon is a serious offense under 18 U.S.C. § 3162(a)(2)). Moreover, felony drug charges are generally treated as serious offenses.
Some panel decisions have focused on whether the first crime was completed or had a definable endpoint before the beginning of the second crime. See United States v. Carnes, 309 F.3d 950, 955–56 (6th Cir.2002); Thomas, 211 F.3d at 321;Murphy, 107 F.3d at 1210. Multiple panels have noted the inconsistency of our opinions.
See Doc. #274 at 4. In support of this argument, plaintiff primarily relies upon the Sixth Circuit case of United States v. Carnes, 309 F.3d 950, 963 (6th Cir. 2002). See Doc. #274 at 4-9.
Where, as here, a defendant attempts to challenge on appeal the sufficiency of the evidence at trial without having first sought acquittal under Fed. R. Crim P. 29(a) at both the close of the government's case in chief and the close of all the evidence, the sufficiency of the evidence is reviewed under the "manifest miscarriage of justice" standard. United States v. Kuehne, 547 F.3d 667, 697 (6th Cir. 2008) (citing United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002)). Under that standard, a reviewing court may reverse a conviction only "if the record is devoid of evidence pointing to guilt."
Jones did not renew his motion for acquittal at the conclusion of his case, so we review his claim under a "manifest miscarriage of justice" standard. United States v. Kuehne , 547 F.3d 667, 697 (6th Cir. 2008) (quoting United States v. Carnes , 309 F.3d 950, 956 (6th Cir. 2002) ). We may reverse Jones's conviction only if "the record is devoid of evidence pointing to guilt."
We have consistently upheld convictions for witness tampering in the absence of directly threatening language. See United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002); United States v. Carson, 796 Fed.Appx. 238, 251 (6th Cir. 2019). The key inquiry is whether the evidence could have been interpreted as "threatening in nature or intent."
Lloyd, 10 F.3d at 1215. Mr. Cousins's brief incorrectly states that we review the district court's refusal to sever under Rule 8 for abuse of discretion, citing United States v. Carnes, 309 F.3d 950 (6th Cir. 2002) and United States v. Hang Le-Thy Tran, 433 F.3d 472 (6th Cir. 2006). (To its credit, the government cites the correct standard in its brief.)
Where there has been a waiver, we are limited in reviewing the sufficiency of evidence to determining whether there has been a "manifest miscarriage of justice." Id. (quoting United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002)). "Under this standard, 'we only reverse a conviction if the record is devoid of evidence pointing to guilt.'"
An analysis of these factors leads us to conclude that Tinklenberg's case should be dismissed with prejudice. To be sure, the first two factors point to dismissal without prejudice. This Court has previously held that one of Tinklenberg's offenses, being a felon in possession of a firearm, is a serious offense favoring dismissal without prejudice. United States v. Carnes, 309 F.3d 950, 957 (6th Cir. 2002). There is no evidence that the delay was due to any bad faith on the part of the government, and the defendant's trial began just three days after the seventy day Speedy Trial period expired.