United States v. Orlando Mark Wayne Clarke

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10430 ELEVENTH CIRCUIT
OCTOBER 14, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 1:05-cr-00371-JEC-CCH-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ORLANDO MARK WAYNE CLARKE,
lllllllllllllllllllllllllllllllllllllll lDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 14, 2011)
Before TJOFLAT, CARNES, and FAY, Circuit Judges.
PER CURIAM:
Orlando Clarke appeals his convictions for: (1) conspiracy to import at least
five kilograms of cocaine, in violation of 21 U.S.C. §§ 952(a), 960(a)(1),
960(b)(1)(B)(iv), and 963; (2) conspiracy to possess with intent to distribute at
least five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii)(IV) and 846; (3) traveling in interstate commerce with the intent
to distribute cocaine, in violation of 18 U.S.C. § 1952(a)(3); (4) importation of at
least five kilograms of cocaine, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and
960(b)(1)(B)(iv); and (5) attempt to possess with intent to distribute at least five
kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(IV),
and 846.
On appeal, Clarke argues that the government violated the rule of Napue v.
Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 1217 (1959), by failing to correct the
materially false testimony of two of its witnesses, Darrien Meheux and Valerie
Haynes. He also asserts that his trial counsel rendered ineffective assistance by
failing to use telephone records to impeach Meheux’s and Haynes’s testimony that
he had received telephone calls from a drug courier. Finally, Clarke contends that
the district court plainly erred by failing to give a limiting instruction after the
government redacted information from a summary chart that previously had been
displayed to the jury in unredacted form. For the reasons stated below, we affirm.
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I.
At trial, the government presented evidence that Clarke and Meheux had
entered into a conspiracy to import drugs into the United States from Jamaica.
Meheux testified that he and two of his associates, Valerie Haynes and Willie
Stewart, worked as baggage handlers at the Atlanta airport. Clarke had contacts
in Jamaica who would place bags filled with drugs on flights to Atlanta. When the
flights arrived at the Atlanta airport, Meheux, Haynes, and Stewart would unload
the drug-filled bags and take them out of the airport before they could be sent
through customs.
According to Meheux, the conspiracy worked well until August 10, 2000,
when one of the drug couriers, Terry Ann Chung, was caught by law enforcement.
That morning, Clarke informed Meheux that a shipment of drugs would be
arriving on a flight from Jamaica. Meheux and Haynes attempted to retrieve the
drugs, but Clarke had given them the wrong bin number, so they were unable to
find the bag before it was sent to customs. Meheux called Clarke to warn him that
the bag had gone past him. Eventually, Meheux met up with Clarke in the lobby
of the airport. At that point, Meheux testified, Clarke received a telephone call
from Chung, stated that she had cleared customs. Meheux warned Clarke that it
was a trap because there was no way that Chung could have made it through
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customs with such a large amount of drugs in her suitcase. Clarke and Meheux
eventually left the airport. Later that day, they spoke with Clarke’s contact in
Jamaica, who went by the name Richie Rich, to discuss what had gone wrong with
the shipment.
During Meheux’s testimony, the government displayed a summary chart of
all of the calls made to and from Clarke’s and Meheux’s cellular telephones on
August 10, 2000. The chart did not reflect any calls between Chung and Clarke on
the date in question. The chart did indicate that Clarke had placed four calls to a
Jamaican telephone number associated with Richie Rich. Neither the prosecutor
nor Meheux mentioned the fact that Rich’s name was on the chart. When the
government sought to introduce this chart into evidence, Clarke argued that Rich’s
name needed to be redacted because the government had not established a
connection between Rich and that particular telephone number. The government
agreed to redact Rich’s name from the chart. Clarke did not request a limiting
instruction explaining the redaction, and the district court did not give one.
Valerie Haynes corroborated Meheux’s testimony about Clarke’s
involvement in the conspiracy. Haynes recalled that the drug courier tried to call
Clarke several times on the day that the drug shipment was seized, but Clarke did
not answer any those calls. Clarke did not actually say that the courier was the one
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who was calling, but Haynes inferred from Clarke’s statements that it was her.
Haynes explained that there were “a lot of phone conversations going on that
particular day.”
Agent Dennis McMichael was working at the Atlanta airport on August 10,
2000, when customs officials discovered two suitcases filled with cocaine. The
tags on the suitcases indicated that they were the property of Terry Ann Chung.
Agent McMichael eventually located Chung as she was walking around the airport
and took her into custody. Special Agent Gregory Malloy discovered a piece of
paper in Chung’s purse that had a telephone number and the name “Wayne”
written on it. Clarke’s full name is Orlando Mark Wayne Clarke. Clarke’s wife
was the subscriber for that particular telephone number and Clarke was listed as
the contact person on the bill. Antonio Dowd, a customer service agent for Air
Jamaica, testified that Chung had twice asked him to page an individual named
Wayne Clarke.
The jury returned a verdict of guilty with respect to all of the charges
against Clark. Prior to sentencing, Clarke filed a motion to dismiss the indictment
based on prosecutorial misconduct. Clarke argued that Meheux and Haynes had
testified falsely when they stated that Chung had called Clarke on the day of her
arrest because the telephone records in evidence showed that no such calls
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occurred. Clarke argued that the government was required to correct the false
testimony. He also asserted that his trial counsel, Turner, rendered ineffective
assistance by failing to use the telephone records to impeach the testimony of
Meheux and Haynes.
The district court denied Clarke’s motion to dismiss the indictment. The
district court observed that Meheux’s testimony about Chung calling Clarke was
not necessarily false, even if no such calls were reflected in the telephone records.
The district court noted that Chung may have called Clarke on another cellular
telephone that the government had never located. The district court also pointed
out that Chung could have spoken with Clarke’s source in Jamaica, who may have
then contacted Clarke. Another explanation that occurred to the district court was
that Clarke may have lied to Meheux about receiving a telephone call from Chung.
The court explained that Clarke may have been trying to convince Meheux to look
for Chung so that, if the police were watching Chung, Meheux was the one who
would be arrested. Finally, the district court observed that Meheux simply may
have been mistaken, which would not be surprising given that the events had
occurred seven years before Clarke’s trial. The district court also explained that
Haynes’s testimony was not false because Haynes had “greatly qualified her
knowledge of exactly who was calling whom that day.”
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Moreover, even if Meheux’s and Haynes’s testimony was inaccurate, the
district court concluded that their testimony was not material because there was
substantial independent evidence of a connection between Clarke and Chung. The
court noted that Chung tried to page Clarke two different times while she was at
the airport. In addition, the district court pointed out that Chung was carrying a
piece of paper with Clarke’s name and telephone number on it.
The district court also rejected Clarke’s ineffective assistance claim. The
court assumed without deciding that counsel had engaged in deficient performance
by failing to use the telephone records to impeach Meheux’s testimony. With
respect to the prejudice prong, the district court noted that “abundant
circumstantial evidence” showed that Clarke was planning to meet Chung at the
airport. In addition, the district court determined that any impeachment as to the
alleged telephone call would not have changed the jury’s overall assessment of
Meheux’s credibility. Accordingly, the district court concluded that any
impeachment of Meheux’s testimony about the telephone call would not have
changed the outcome of the case. Therefore, the court concluded that Clarke had
failed to establish prejudice.
II.
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A claim of prosecutorial misconduct presents a mixed question of law and
fact that we review de novo. United States v. Noriega, 117 F.3d 1206, 1218 (11th
Cir. 1997). A defendant’s right to due process is violated when a prosecutor fails
to correct the false testimony of a government witness. Napue, 360 U.S. at 269,
79 S.Ct. at 1177. To obtain a reversal on the grounds that the government failed to
correct false testimony, the defendant must establish that: (1) the contested
statements were actually false, (2) the government knew the statements to be false;
and (3) the statements were material. United States v. Bailey, 123 F.3d 1381, 1395
(11th Cir. 1997). To succeed on a Napue claim, the defendant must establish that
the witness committed perjury. Id. at 1395-96. Simply showing a memory lapse,
unintentional error, or oversight by the witness is insufficient. Id. False testimony
is considered material if there is any reasonable likelihood that it could have
affected the judgment of the jury. United States v. Alzate, 47 F.3d 1103, 1110
(11th Cir. 1995).
In this case, Clarke has not shown that the government knew Meheux’s and
Haynes’s testimony to be false. As the district court observed, there are several
alternative explanations for the discrepancy between Meheux’s testimony and the
telephone records. For example, Clarke could have had another cellular telephone
that the government did not know about. Another possibility is that Clarke lied to
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Meheux about Chung’s telephone call. In addition, Meheux could simply have
been mistaken about the details of what happened that day. These explanations
may be speculative, but the point is that the government did not necessarily know
that Meheux was committing perjury when he testified that Chung had called
Clarke.
Nor did the government know that Haynes’s testimony was false. Although
Haynes indicated that Chung had tried to contact Clarke, she explained that she
was simply drawing an assumption from Clarke’s and Meheux’s statements. At
most, the telephone records show that Haynes was mistaken, not that she was
being untruthful. Therefore, Haynes’s testimony cannot form the basis for a
Napue claim. See Bailey, 123 F.3d at 1395-96 (explaining that a memory lapse,
unintentional error, or oversight cannot support a Napue claim).
In addition, the testimony about the telephone calls was not material
because the government introduced other evidence connecting Clarke to Chung.
After she arrived at the airport, Chung twice asked an airline employee to page
Clarke. She also was carrying a piece of paper with Clarke’s middle name,
Wayne, and Clarke’s telephone number written on it. Because there was other
evidence of a link between Clark and Chung, the testimony about the telephone
call likely did not have any significant impact on the jury’s verdict. Also, it is
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doubtful that Meheux’s and Haynes’s testimony about this one detail affected the
jury’s credibility determinations. Because Clarke has not established that the
government knew that Meheux and Haynes had testified falsely, or that the
asserted false testimony was material, his Napue claim fails. See Bailey, 123 F.3d
at 1395.
III.
An ineffective assistance claim presents a mixed question of law and fact
that we review de novo. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.
2002). The defendant must show both that his counsel’s performance was
deficient, and that counsel’s deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674 (1984). To establish deficient performance, a defendant must show that
counsel acted unreasonably in light of prevailing professional norms. Id. at 688,
104 S.Ct. at 2065. To establish prejudice, “[t]he defendant must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694, 104
S.Ct. at 2068. If the defendant cannot satisfy the prejudice prong, we need not
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address the deficient performance prong, and vice versa. Id. at 697, 104 S.Ct. at
2069.
We will not review a claim of ineffective assistance of counsel raised on
direct appeal unless the district court addressed that claim and developed a record
sufficient for our review. Bender, 290 F.3d at 1284. In this case, the district court
considered and rejected Clarke’s ineffective assistance claim after full briefing by
the parties. The district court did not hold an evidentiary hearing, so it is unclear
from the current record whether counsel’s decision not to use the telephone
records in cross-examining Meheux was a reasonable strategic decision or whether
it amounted to deficient performance. There is, however, sufficient evidence in
the record with respect to the prejudice prong of Strickland. Therefore, we can
address the merits of Clarke’s ineffective assistance claim.
Even assuming, as the district court did, that defense counsel provided
deficient performance by not using the telephone records to impeach Meheux and
Haynes, Clarke has not established prejudice. The telephone records were not
particularly important as substantive evidence because, even if Chung did not call
Clarke, other evidence established a link between Clarke and Chung. Chung
paged Clarke twice after she arrived at the airport, and, after Chung was taken into
custody, officers discovered that she was carrying a paper with Clarke’s name and
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telephone number written on it. Any cross-examination concerning the telephone
records would not have cast doubt on the fact that Clarke was planning to meet
with Chung at the airport.
In addition, defense counsel would not have been able to use the telephone
records to impeach the credibility of Meheux or Haynes. As noted above, there
are a number of reasonable explanations for the discrepancy between Meheux’s
testimony about the call and the telephone records. Had defense counsel raised the
issue, Meheux may have responded by offering some of those explanations. In
any event, the telephone call was a relatively small part of Meheux’s testimony,
so, even if counsel could have established that the call did not occur, it is unlikely
that the jury would have rejected the rest of Meheux’s testimony.
Also, the telephone records would not have given the jury a different
impression of Haynes’s credibility because Haynes already acknowledged having
no first-hand knowledge of a conversation between Chung and Clarke and was
only making an assumption that Chung was the person who was trying to call
Clarke. If the call could not have occurred as Haynes described, that would
simply show that her assumption as to that one detail was wrong, not that she was
a dishonest or unreliable witness. Because any impeachment concerning the
alleged telephone calls would not have changed the outcome of the trial, Clarke
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has failed to demonstrate prejudice. See Strickland, 466 U.S. at 694, 104 S. Ct. at
2068. Accordingly, the district court properly denied Clarke’s ineffective
assistance claim.
IV.
Clarke did not request a limiting instruction after Richie Rich’s name was
removed from the chart of telephone calls. Therefore, we are reviewing only for
plain error. United States v. Miranda, 197 F.3d 1357, 1360 n.4 (11th Cir. 1999).
“[B]ecause Federal Rule of Evidence 105, which provides for limiting instructions
in appropriate circumstances, only operates upon request, the failure to give a
limiting instruction is error only when such an instruction is requested.” United
States v. Smith, 459 F.3d 1276, 1297 (11th Cir. 2006) (citation, quotations, and
alteration omitted). In many cases, it may be a good strategy not to request a
limiting instruction because such an instruction could focus the jury’s attention on
potentially damaging evidence. United States v. Barnes, 586 F.2d 1052, 1059 (5th
Cir. 1978).
Here, Clarke did not request a limiting instruction, and the district court was
under no obligation to issue one sua sponte. See Smith, 459 F.3d at 1297.
Moreover, a limiting instruction would simply have drawn the jury’s attention to
the fact that Rich’s name had been on the chart, a fact that the government had not
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emphasized when the unredacted chart was displayed to the jury. See Barnes, 586
F.2d at 1059. We conclude that the district court did not plainly err by failing to
issue a limiting instruction in this case.
Accordingly, we affirm Clarke’s convictions.
AFFIRMED.
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