Evidence: Relevance of a police officer’s testimony about his training & experience; FRE 401; Whether the testimony was more prejudicial that probative; FRE 403; Sufficiency of the evidence for an attempted witness tampering conviction; United States v Fortner; Whether defendant took a “substantial step” toward witness tampering; United States v Alebbini

[This appeal was from the ED-MI.] The court held that defendant-Wilder’s jailhouse phone calls seeking to have others bribed into claiming his gun was theirs constituted a “substantial step” in committing the crime of witness tampering. While running from the police, Wilder dropped his gun, retrieved it, and ran into a house. The residents consented to a search, where his weapon (which was identified as the one he dropped on the ground while running from police) was found. While in jail, he called someone (A) and asked her to offer the the home’s occupants money to say the gun was theirs. A jury convicted Wilder of FIP and attempted witness tampering. He unsuccessfully moved for a judgment of acquittal on the witness tampering charges. Wilder argued the district court erred by admitting trial testimony about the arresting officer’s (W) training and experience in identifying firearms, which he claimed was irrelevant. The court disagreed, concluding the testimony helped the jury determine the reliability of W’s identification of the gun. The court also rejected Wilder’s argument that the testimony was more prejudicial than probative. After commenting on the district court’s discretion in conducting the Rule 403 balancing test, the court noted that Wilder had not raised this issue in the lower court. Reviewing the issue for plain error, the court held that W’s testimony as to the prevalence of firearms in Flint was not prejudicial where it was given to illustrate his familiarity with guns. Wilder also argued that there was insufficient evidence to convict him of attempted witness tampering. The government had to prove that he intended to commit witness tampering, and that he also “took a ‘substantial step’ toward” doing so. Wilder argued his actions did not constitute a substantial step. But noting that “words alone” can constitute a substantial step, the court held that he took one (multiple ones in fact) “when he coordinated with and instructed” A. He instructed her to go to the house where the gun was found, to bring money, and to bribe the occupants. Wilder maintained that A’s statements constituted hearsay, but the court held that they were admissible to give context to Wilder’s statements. And his statements to A were not “‘mere abstract talk’” where he gave her specific instructions. “There was nothing abstract about these discussions.” Affirmed.