United States v. Clark , 328 F. App'x 992 ( 2009 )

NOT FOR FULL-TEXT PUBLICATION
FILED
Jun 15, 2009
File Name: 09a0422n.06
LEONARD GREEN, Clerk
NO. 05-6507
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
ON APPEAL FROM THE
v. UNITED STATES DISTRICT
COURT FOR THE EASTERN
THOMAS H. CLARK, DISTRICT OF TENNESSEE
Defendant-Appellant.
___________________________________/
BEFORE: MARTIN, SUHRHEINRICH and GIBBONS, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Thomas Clark, a federal prisoner, appeals his
convictions and sentence for various drug-trafficking offenses. Clark argues that: (1) the district
court erred in denying his motion to suppress evidence seized pursuant to a search warrant; (2) the
district court abused its discretion in disallowing a change of counsel; (3) the government engaged
in prosecutorial misconduct by implying in closing argument that Clark needed to testify; (4) his
sentence was procedurally unreasonable; and (5) the district court erred in enhancing the applicable
sentencing range based on Clark’s prior convictions. For the reasons that follow, we AFFIRM.
I. Background
A. Facts
Government witnesses testified at Clark’s trial and suppression hearing and revealed the
following:
On September 24, 2001, Officer Shane George of the Shelbyville Police Department
purchased 0.4 grams of cocaine base (“crack”) from Clark while working undercover in Shelbyville,
Tennessee. On June 6, 2003, Michael “Butter” Wilson, a confidential informant (“CI”), purchased
crack cocaine from Clark and Katherine “Kat” Haston inside a trailer rented by Reginald Brown on
Lot 3 of King Arthur Trailer Park in Shelbyville, Tennessee.
On June 12, 2003, upon executing a search warrant at the trailer on Lot 3 of King Arthur
Trailer Park, law enforcement agents arrested Clark and four others. The agents also seized two
digital scales; three bags of cocaine from the kitchen table, weighing 19.2 grams, 6 grams, and 1.1
grams; a loaded 9 mm semi-automatic handgun, which was inside a kitchen cabinet; and three grams
of marijuana from Clark’s person. Agent Cordell Malone of the Bureau of Alcohol, Tobacco, and
Firearms testified that the handgun was manufactured in California.
Reginald Brown, who had pleaded guilty to conspiring to distribute crack cocaine, testified
that during the execution of the search warrant, he saw Clark remove a handgun from his waist and
place it in a kitchen cabinet. He also saw Clark with the handgun on more than one occasion before
that day. Brown testified that Clark served as a bodyguard to Katherine “Kat” Haston and that he
saw Clark carrying crack cocaine for Haston on one or two occasions.
Karen Anderson testified that she obtained drugs at the trailer on Lot 3 many times, including
one time when she purchased $20 of crack cocaine directly from Clark. She also testified that she
saw Clark carrying the 9 mm handgun several different times. On the day the search warrant was
executed, Anderson saw Clark carry the gun and drugs into the trailer.
Todd Russell testified that he regularly visited the trailer at Lot 3, owned by Reginald Brown,
to buy or smoke crack. Russell admitted purchasing crack from Clark one time and purchasing crack
from Haston 10 or 15 times. He also admitted seeing Clark with a handgun in his waistband a
-2-
“couple of times,” including one time when Clark was delivering crack cocaine to Michael Wilson.
B. Procedural History
On March 13, 2002, Clark was indicted for distributing cocaine base, based upon the sale to
undercover officer Shane George. He agreed to pretrial diversion on October 4, 2002, but was
subsequently arrested for additional drug offenses, which resulted in a multi-count, multi-defendant
superceding indictment for conspiracy to distribute cocaine.
On May 11, 2004, a federal grand jury returned a second superceding indictment against
Clark and three co-defendants: Katherine “Kat” Haston, Michael “Butter” Wilson, and Reginald
Brown. In Counts 1, 2, and 5, respectively, Clark was charged with conspiracy to distribute and
possess with the intent to distribute five or more grams of crack cocaine, in violation of 21 U.S.C.
§ 846; distribution of crack cocaine, in violation of 21 U.S.C. § 841; and possession with intent to
distribute five or more grams of crack cocaine, also in violation of 21 U.S.C. § 841. In Count 6,
Clark was charged with possession of a firearm in furtherance of drug trafficking crimes, in violation
of 18 U.S.C. § 924. In Count 7, Clark was charged with being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g). Clark was also charged, in Count 10, with marijuana possession,
in violation of 21 U.S.C. § 844. Clark pleaded not guilty to all charges, so his case was set for trial.
On June 18, 2004, Clark filed a motion to suppress evidence seized from the trailer on the
ground that the affidavit supporting the warrant contained false statements in violation of Franks v.
Delaware, 438 U.S. 154 (1978). Following an evidentiary hearing on February 18, 2005, the district
-3-
court denied Clark’s motion to suppress.1
Clark also filed two motions seeking substitute counsel. On July 1, 2004, the district court
dismissed the first motion after Clark conceded that his concerns regarding his counsel’s
representation had been resolved. On March 8, 2005, the district court also dismissed the second
motion after holding a hearing on the motion.
Clark’s trial began on April 12, 2005. Clark presented no evidence. On April 18, 2005,
following his two-day jury trial, Clark was convicted on all charges. On September 19, 2005, Clark
was sentenced to 420 months imprisonment, which consisted of concurrent terms of 360 months for
Counts 1, 2, 5, 7, and 10, followed consecutively by a 60-month term for Count 6.
Clark timely filed a notice of appeal on September 29, 2005.
II. Analysis
A. Clark’s Motion to Suppress
Clark first argues that the district court erred in denying his motion to suppress evidence
seized from the trailer on Lot 3 of King Arthur Trailer Park because the affidavit filed in support of
the search warrant contained false information, in violation of Franks v. Delaware, 438 U.S. 154(1978), without which the warrant would never have issued. “On appellate review of the district
court’s ruling on a Franks challenge, we review de novo the district court’s legal conclusions, and
we review the district court’s findings of fact for clear error. United States v. Keszthelyi, 308 F.3d
557, 566 (6th Cir. 2002). “A factual finding will only be clearly erroneous when, although there may
be evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
1
The district court found that Clark did not make the requisite substantial preliminary
showing to warrant a Franks hearing. The court nonetheless allowed Clark the opportunity to
present proofs on his Franks motion in the evidentiary hearing.
-4-
conviction that a mistake has been committed.” United States v. Navarro-Camacho, 186 F.3d 701,
705 (6th Cir. 1999). We view the evidence “in the light most likely to support the district court’s
decision.” United States v. Braggs, 23 F.3d 1047, 1049 (6th Cir. 1994) (citation omitted).
In Franks, the Supreme Court held that a search warrant must be voided if, after a hearing,
the defendant establishes that (1) “a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant affidavit,” and (2) “with the
affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish
probable cause.” Franks, 438 U.S. at 155-56.
The affidavit at issue was prepared by Timothy Lane, director of the 17th Judicial District
Drug Task Force, and was based upon the following facts: On June 6, 2003, a CI (later identified
as Michael Wilson) made a controlled purchase of 6.9 grams of crack cocaine from Clark and co-
defendant Haston inside the trailer on Lot 3 at King Arthur Trailer Park in Shelbyville, Tennessee.
Wilson relayed all details of the transaction to Agent Timothy Miller. According to Wilson, Clark
removed a bag containing crack from his pocket and gave it to Haston, who weighed out
approximately seven grams on a digital scale. Haston and Wilson exchanged the crack for cash.
Using the information Wilson provided to Agent Miller, Affiant Lane prepared an affidavit
in support of the search warrant. In his affidavit, Affiant Lane averred that Clark and Haston were
distributing crack cocaine from the trailer at Lot 3 in King Arthur Trailer Park and that evidence,
including crack cocaine, digital scales, and marked money, would be found “in possession of said
person(s) or on said premises located in Bedford County, Tennessee.” Affiant Lane provided
detailed information about the June 6, 2003 controlled purchase and a description of the trailer. He
also recounted two prior controlled purchases of crack cocaine from Haston. The first, on May 30,
-5-
2003, occurred at the trailer, and Clark was present outside when the CI arrived to make the
purchase. The second occurred on June 5, 2003, at a Golden Gallon store. Affiant Lane also stated
that the CI told officers that Haston lived in Nashville but regularly came to Shelbyville, usually with
Clark, to sell crack at Lot 3. Affiant Lane stated that James Harden, an admitted crack addict, told
Lane that Haston regularly sold crack out of a trailer in King Arthur Trailer Park in Shelbyville.
On June 9, 2003, based upon Lane’s affidavit, a judge of the general sessions court for
Bedford County, Tennessee granted a search warrant. The warrant was executed on June 12, 2003.
Officers seized three bags of crack cocaine, totaling 26.3 grams, two digital scales from the kitchen
table, a 9 mm semi-automatic pistol and ammunition from a kitchen cupboard, and three grams of
marijuana found on Clark’s person.
On June 18, 2004, Clark moved to suppress the evidence seized from the trailer based upon
three allegedly false statements Affiant Lane made in his affidavit: (1) that Haston, Clark, and drug
evidence were all located at the trailer at the time the affidavit was signed; (2) that the June 6, 2003
controlled buy occurred as Lane had described it; and (3) that Lane’s assertions that the informant
was reliable were false because the informant was paid cash for his help and was dealing drugs
without Lane’s knowledge.
On February 23, 2005, following an evidentiary hearing, the district court entered an order
denying Clark’s motion to suppress. The court found that Clark failed to demonstrate a legitimate
expectation of privacy in the trailer and, thus, lacked standing to challenge the search. Even if Clark
had standing, the district court held the claims of false statements in Lane’s affidavit were meritless
because Clark proffered no evidence indicating that the allegedly false statements were made
knowingly and intentionally, or with reckless disregard for the truth.
-6-
On appeal, Clark challenges language in the affidavit indicating that both he and evidence
of drugs were in the trailer on June 9, 2003. The affidavit states that Clark and Haston “are currently
involved in the distribution of crack cocaine from Lot #3 at the King Arthur Trailer Park” and that
“[evidence of drug sales] is now located and may be found in possession of said person(s) or on said
premises located in Bedford County[,] Tennessee . . . .” Clark argues that Affiant Lane knew that
Clark and Haston were not at the trailer as of the date of the affidavit, i.e., June 9, 2003, so this
statement must be false.
We agree with the district court that Clark lacks standing to bring this claim. The trailer
belonged to Reginald Brown, and Clark had no interest in it. Clark avers that he has occasionally
stayed at the trailer as an overnight guest. As the district court noted, an overnight guest may have
a legitimate expectation of privacy in a residence being searched. Minnesota v. Carter, 525 U.S. 83,
89-90 (1998). However, Clark fails to demonstrate an expectation of privacy in Brown’s trailer. As
Clark himself argues and Affiant Lane testified, Affiant Lane knew that Clark was not an overnight
guest from June 6, 2003–when the controlled purchase was made–to June 12, 2003–when the search
warrant was executed. Clark has presented no evidence demonstrating how often he was an
overnight guest or when his last overnight stay occurred. Therefore, the district court properly found
that Clark lacked standing to challenge the search.
Even if he had standing to bring the claim, Clark’s argument would fail on the merits.
Throughout the affidavit, Affiant Lane chronicled in great detail the transitory nature of Haston and
Clark’s drug distribution scheme. Affiant Lane explained that Haston lives in Nashville and
regularly sets up shop at the trailer in Shelbyville to sell narcotics. The affidavit states that “[t]his
is the residence that Haston and Clark have sold crack cocaine from,” and further references two
-7-
earlier controlled buys of crack cocaine from the trailer. The affidavit also explains that evidence
of the drug scheme “may be found in possession of said person(s) or on said premises,” which does
not support Clark’s interpretation that Affiant Lane was intimating that the drugs and Clark were
necessarily on the premises at the moment Affiant Lane signed the affidavit. Therefore, reading the
sentence Clark complains of in context with the entire evidence in the affidavit, we hold that Affiant
Lane did not make a false statement knowingly and intentionally, or with reckless disregard for the
truth. Accordingly, this argument fails.
B. Clark’s Claim of Prosecutorial Misconduct
Clark next asserts that the prosecutor’s closing remarks about Clark’s failure to testify
constituted flagrant prosecutorial misconduct, denying him the right to a fair proceeding.
Specifically, Clark complains of the following portion of the prosecutor’s closing arguments:
Nonetheless, the defendant has admitted to Count 10, which was simple possession
of the marijuana. He’s never gotten up here and told you. He didn’t tell you that he
was guilty of the second count, which is the distribution of crack cocaine. He didn’t
tell you that he was guilty of even the simple possession of marijuana where it’s
found in his pocket–I don’t know what his excuse for that is.
Whether the Government’s closing argument constitutes prosecutorial misconduct is a mixed
question of fact and law that we review de novo. United States v. Emuegbunam, 268 F.3d 377, 403-
04 (6th Cir. 2001). In our review, we determine first whether the statements were improper. United
States v. Krebs, 788 F.2d 1166, 1177 (6th Cir. 1986). If they appear improper, we decide if they
were flagrant and warrant reversal. United States v. Carroll, 26 F.3d 1380, 1389 (6th Cir. 1994).
To determine flagrancy, we consider: 1) whether the statements tended to mislead the jury or
prejudice the defendant; 2) whether the statements were isolated or among a series of improper
statements; 3) whether the statements were deliberately or accidentally before the jury; and 4) the
-8-
total strength of the evidence against the accused. United States v. Tarwater, 308 F.3d 494, 511 (6th
Cir. 2002).
It was improper for the prosecutor to comment on Clark’s decision not to testify. United
States v. Drake, 885 F.2d 323, 323 (6th Cir. 1989) (citing Griffin v. California, 380 U.S. 609(1965)). However, the improper comments do not breach our threshold for flagrancy. While the
prosecutor’s comments may have been deliberate, they were isolated to this one instance and were
not part of a series of improper statements. See United States v. Galloway, 316 F.3d 624, 633 (6th
Cir. 2003) (improper comment during closing argument was not flagrant, inter alia, because the
comment was isolated to the one instance). The comments also did not mislead the jury because,
upon Clark’s immediate objection, the district court instructed the jury to disregard the prosecutor’s
statements. A jury is presumed to follow the district court’s curative instructions. United States v.
Moreno, 933 F.2d 362, 368 (6th Cir. 1991). Clark’s attorney further repeated several times in his
closing argument that Clark is presumed innocent until proven otherwise and has no obligation to
testify. And the record reveals that evidence of guilt was overwhelming. See Galloway, 316 F.3d
at 633 (holding that the defendant was not entitled to reversal based on prosecutor’s improper remark
during closing argument because, inter alia, the evidence against defendant was overwhelming).
Clark, therefore, is not entitled to relief on this claim.
C. Clark’s Motions for New Counsel
Clark next argues that the district court erred in denying him new counsel after Clark and his
attorney encountered a breakdown in communications. “An indigent defendant has no right to have
a particular attorney represent him and therefore must demonstrate ‘good cause’ to warrant
substitution of counsel.” United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990). We review the
-9-
district court’s decision of whether to replace counsel for abuse of discretion. United States v.
Saldivar-Trujillo, 380 F.3d 274, 277 (6th Cir. 2004). When reviewing the district court’s denial of
a motion for new counsel, we generally consider: (1) the timeliness of the motion, (2) the adequacy
of the court’s inquiry into the matter, (3) the extent of the conflict between the attorney and client
and whether it was so great that it resulted in a total lack of communication preventing an adequate
defense, and (4) the balancing of these factors with the public’s interest in the prompt and efficient
administration of justice. United States v. Mack, 258 F.3d 548, 556 (6th Cir. 2001).
On June 16, 2004, Clark filed a motion for new counsel. On July 1, 2004, at a motion
hearing on an unrelated issue, the district court noted that Clark had sent two letters to the court
expressing dissatisfaction with his attorney regarding several motions Clark wanted to file. The
court inquired of Clark and his attorney if the issues had been resolved, and both answered that they
had been. Accordingly, the district court did not substitute counsel.
On March 11, 2005, after receiving a second letter from Clark seeking a new attorney, the
court held a hearing on the issue. At the hearing, Clark testified that his attorney failed to file
motions for a bill of particulars and to dismiss. Clark’s attorney, Dan Ripper, explained that he had
considered the issues but found no factual basis to file the motions. Clark also stated that he had no
way to contact Ripper and that Ripper did not visit often enough. Ripper explained that he did not
accept collect calls but supplied postage-paid envelopes, four at a time, for Clark to use as needed.
Ripper also reminded Clark of his visits to the prison. After considering the testimony, the district
court concluded that Clark failed to show a valid reason to replace Ripper and ordered his motion
denied.
We are satisfied that the district court did not abuse its discretion in denying Clark’s motion
-10-
to replace counsel. First, the district court responded adequately to Clark’s motions, allowing Clark
to explain why he sought another attorney and giving Ripper the chance to respond. Next, after the
first motion was filed, the parties conceded that they had resolved any miscommunication, which
supports the court’s finding that there was not a “total lack of communication” preventing an
adequate defense. Similarly, at the March 11, 2005 hearing, where Ripper explained that Clark
disagreed with his decision not to file motions for a bill of particulars and to dismiss, despite having
no factual basis for the motions, the district court properly concluded that the miscommunication was
not propagated by a disagreement over Clark’s defense but by Clark’s misunderstanding of the law.
Finally, because Clark’s disagreement with counsel stemmed from his desire to file additional
motions, substituting counsel on that basis would have thwarted the prompt and efficient
administration of justice where substitute counsel would have most likely agreed with present
counsel that Clark’s motions would be fruitless.
D. Clark’s Sentence
Clark next contends that his sentence is procedurally unreasonable because the district court
did not consider, as part of the 18 U.S.C. § 3553(a) factors, Clark’s misguided youth, lack of family
life, mental problems, and his lesser role in the offense. Following United States v. Booker, 543 U.S.
220, 260-62 (2005), we review sentences for reasonableness. In reviewing a sentence for procedural
reasonableness, we must “ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United States,
128 S. Ct. 586, 597 (2007).
-11-
We review only for plain error because Clark failed to object to his sentence after the district
court asked for Bostic objections. See United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004)
(holding that failure to object after the sentencing judge pronounces the sentence and asks for any
objections will result in plain error review). To establish plain error, Clark must show “(1) error, (2)
that was obvious or clear, (3) that affected [Clark’s] substantial rights, and (4) that affected the
fairness, integrity, or public reputation of the judicial proceedings.” United States v. Vonner, 516
F.3d 382, 386 (6th Cir. 2008) (en banc) (internal quotations and citations omitted). We find such
error “[o]nly in exceptional circumstances . . . where the error is so plain that the trial judge was .
. . derelict in countenancing it . . . .” Id. (internal quotation marks and citation omitted).
In United States v. Rita, 127 S. Ct. 2456, 2468 (2007), the Supreme Court explained that a
sentencing court should “set forth enough to satisfy the appellate court that [it] has considered the
parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.”
The sentencing court is not required to explicitly consider each of the § 3553(a) factors or to engage
in “ritualistic incantation,” but the record must “demonstrate[] that the sentencing court addressed
the relevant factors in reaching its conclusion.” United States v. Trejo-Martinez, 481 F.3d 409, 413
(6th Cir. 2007).
Here, we find that the district court properly addressed all of the relevant § 3553(a) factors.
The district court explained that, in reaching the sentence, the court considered Clark’s personal
history as “a very young man” who has “engaged in a lot of criminal conduct in his very short life.”
See 18 U.S.C. § 3553(a)(1). The district court also explained that it considered the need “to protect
the public,” Clark’s “personal characteristics,” the “seriousness of the offense,” “the need to afford
adequate deterrence,” and “the guidelines as well as the mandatory-minimum sentence that results
-12-
from the [conviction for possession of a firearm in furtherance of a drug trafficking offense pursuant
to 18 U.S.C. § 924(c)],” which are all § 3553(a) considerations. See id. § 3553(a)(1)-(2). Indeed,
the district court’s consideration of the § 3553(a) factors is reflected in that court’s decision to
impose the lowest sentence recommended by the Guidelines and to further recommend that Clark
receive substance abuse and mental health treatments. Accordingly, finding no clear error, we must
reject Clark’s claim.
E. Clark’s Sentence Enhancement
Clark’s final argument is that the district court violated his Sixth Amendment right to a jury
trial because it used evidence of prior convictions to enhance the applicable guidelines range without
a jury finding that he had prior convictions. Clark concedes that, under the Supreme Court’s holding
in Almendarez-Torres v. United States, 523 U.S. 224 (1998), a prior conviction may be introduced
at sentencing to enhance statutory punishment without offending a defendant’s Fifth and Sixth
Amendment rights to indictment, trial by jury, and proof beyond a reasonable doubt. 523 U.S. at
239-47. In his brief, however, Clark cites the concurring opinion by Justice Clarence Thomas in
Shepard v. United States, 544 U.S. 13 (2005), in which Justice Thomas stated that a majority of
justices of the Supreme Court are of the opinion that Almendarez-Torres was incorrectly decided.
Shepard, 544 U.S. at 27-28 (Thomas, J., concurring).
Clark submits to this Court that, in light of Shepard, we should require a jury determination
of qualifying prior convictions before enhancing his sentence. However, the Supreme Court has
repeatedly stressed that “if the ‘precedent of this Court has direct application in a case, yet appears
to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the
case which directly controls, leaving to this Court the prerogative of overruling its own decisions.’”
-13-
Tenet v. Doe, 544 U.S. 1, 10-11 (2005) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477, 484 (1989)). Accordingly, we will not take up here what the Supreme Court has asked
us to leave in its hands.
Therefore, under Almendarez-Torres and Sixth Circuit precedent, the district court properly
considered prior convictions during the sentencing proceedings, so this claim fails. See Almendarez-
Torres, 523 U.S. at 239-47; see also United States v. Jones, 453 F.3d 777, 779 (6th Cir. 2006);
United States v. Hill, 440 F.3d 292, 299 n.3 (6th Cir. 2006); United States v. Barnett, 398 F.3d 516,
524-25 (6th Cir. 2005).
III. Conclusion
For the foregoing reasons, we AFFIRM.
-14-