United States v. Jackie Clark

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5308
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JACKIE CLARK,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:06-cr-00035-RLV-DCK-14)
Submitted: October 25, 2011 Decided: December 7, 2011
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, LLP,
Charlotte, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jackie Clark (“Clark”) appeals his conviction by jury
and the subsequent life sentences imposed for conspiring to
manufacture and possess with intent to distribute at least 500
grams of a mixture containing methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (2006), and for
persuading a minor to commit a federal drug crime, in violation
of 21 U.S.C. §§ 841 and 861 (2006). We affirm his convictions
but vacate his sentences and remand to the district court for
resentencing.
I. Trial
On appeal, Clark asserts that the district court made
three errors at his trial. First, he contends that Kristen
Pilkenton’s testimony respecting her boyfriend’s purchase of
methamphetamine from Clark should have been excluded because the
consummation of the transaction occurred inside Clark’s tattoo
parlor, where she was not present. A district court’s
evidentiary rulings are reviewed for abuse of discretion.
United States v. Caro, 597 F.3d 608, 633 (4th Cir. 2010). A
trial court’s exercise of such discretion is entitled to
“substantial deference,” United States v. Myers, 589 F.3d 117,
123 (4th Cir. 2009), and will be upheld unless the court “acts
arbitrarily or irrationally, fails to consider judicially
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recognized factors constraining its exercise of discretion,
relies on erroneous factual or legal premises, or commits an
error of law.” United States v. Delfino, 510 F.3d 468, 470 (4th
Cir. 2007). Further, “[a]ny error, defect, irregularity, or
variance that does not affect substantial rights must be
disregarded.” Fed. R. Crim. P. 52(a). Erroneously admitted
evidence is harmless if a reviewing court is able to conclude,
“with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.” United States v.
Johnson, 587 F.3d 625, 637 (4th Cir. 2009) (quoting Kotteakos v.
United States, 328 U.S. 750, 765 (1946)).
Our review of the record convinces us that any error
in the admission of the challenged statement was harmless.
Clark’s contention that the admission of her statement violated
his substantial rights is therefore without merit. Id. at 637.
Second, Clark asserts that the district court should
have excluded the testimony of two Government witnesses, Jerry
Malone and Johnny Watson, for their failure to abide by the
sequestration order when several witnesses began sharing
information in the holding cell, during the trial. A district
court has three options for addressing a violation of a
sequestration order. United States v. Smith, 441 F.3d 254, 263
(4th Cir. 2006). The court can: 1) sanction the witness for
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contempt; 2) ensure that the jury is aware of the violation
through cross-examination by counsel or through instructions by
the court; or 3) exclude all or part of the witness’ testimony.
United States v. Rhynes, 218 F.3d 310, 323 (4th Cir. 2000) (en
banc). While this Court reviews the district court’s choice of
remedy for abuse of discretion, Smith, 441 F.3d at 263,
whichever remedy is ultimately employed must be proportional to
the violation. Rhynes, 218 F.3d at 321. Exclusion of a
witness’ testimony “is so severe that it is generally employed
only when there has been a showing that a party or a party’s
counsel caused the violation.” United States v. Cropp, 127 F.3d
354 (4th Cir. 1997).
Clark recognizes that the district court excluded the
testimony of two other Government witnesses for violating the
sequestration order, but claims that the court should also have
barred Malone and Watson from giving testimony against Clark.
The district court, however, conducted a lengthy voir dire of
each of the Government’s witnesses who were implicated in the
mid-trial holding cell discussions, and concluded that Malone
and Watson, unlike the witnesses whom it ultimately excluded,
did not engage in extensive discussion of their testimony.
Moreover, the district court allowed both Malone and Watson to
be interrogated on cross-examination about the pre-testimony
discussions between witnesses. Given the facts found by the
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district court, we decline to hold that its decision to employ a
lesser remedy than exclusion was an abuse of discretion.
Rhynes, 218 F.3d at 323.
The third source of trial error alleged by Clark
asserts that the prosecution’s closing arguments improperly
mentioned Clark’s co-conspirators, vouched for the Government’s
witnesses, and suggested that defense witnesses were high on
drugs while testifying. Because he did not object to the
closing argument at trial, this Court’s review is for plain
error. United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995);
United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993). To
establish plain error, Clark must show that “(1) an error was
made; (2) the error is plain; and (3) the error affects
substantial rights.” United States v. Massenburg, 564 F.3d 337,
342–43 (4th Cir. 2009). “If all three of these conditions are
met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Carr, 303 F.3d 539, 543
(4th Cir. 2002) (internal quotation marks, citations, and
alterations omitted).
A defendant’s due process rights are violated by the
prosecution’s comments if (1) the prosecution’s remarks were
improper, and if (2) the improper remarks prejudiced the
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defendant’s substantial rights to such a degree that he was
denied a fair trial. United States v. Lighty, 616 F.3d 321, 359
(4th Cir. 2010) ; see also United States v. Wilson, 624 F.3d
640, 656-57 (4th Cir. 2010) (listing factors used to determine
the question of prejudice).
We have thoroughly examined each of Clark’s
contentions and conclude that, even assuming that the
prosecutor’s comments were improper, they did not deprive Clark
of a fair trial, given the relatively isolated nature of the
remarks, the substantial strength of the other evidence in the
case, and the court’s instructions to the jury. Wilson, 624
F.3d at 656-57.
II. Sentence
With respect to his sentence, Clark contends that the
district court erred in determining that his prior North
Carolina convictions were felonies for the purposes of applying
the sentence enhancements in 21 U.S.C. § 841(b)(1)(A). Whether
the district court properly interpreted the term “felony drug
offense” as used in § 841(b)(1)(A) is a question of law that
this Court reviews de novo. United States v. Burgess, 478 F.3d
658, 661 (4th Cir. 2007), aff’d, 553 U.S. 124 (2008); United
States v. Tucker, 473 F.3d 556, 560 (4th Cir. 2007).
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Section 841(b)(1)(A) provides that a defendant shall
be sentenced to a mandatory term of life imprisonment if he
“commits a violation of this subparagraph or of section . . .
861 of this title after two or more prior convictions for a
felony drug offense have become final.” Id. A “felony drug
offense” is
an offense that is punishable by imprisonment for more
than one year under any law of the United States or of
a State or foreign country that prohibits or restricts
conduct relating to narcotic drugs, marihuana,
anabolic steroids, or depressant or stimulant
substances.
21 U.S.C. § 802(44) (2006); Burgess v. United States, 553 U.S.
124, 129 (2008).
Here, the district court predicated Clark’s mandatory
life sentence on the two prior North Carolina drug convictions
noticed in the Government’s 21 U.S.C. § 851 (2006) information.
At the time of Clark’s sentencing, this Court determined whether
a prior conviction was punishable with more than a year’s
imprisonment by considering “the maximum aggravated sentence
that could be imposed for that crime upon a defendant with the
worst possible criminal history.” United States v. Harp, 406
F.3d 242, 246 (4th Cir. 2005). While Clark’s appeal was
pending, however, Harp was overruled by the en banc decision in
United States v. Simmons, 649 F.3d 237, 241 (4th Cir. 2011).
This Court held in Simmons that a prior North Carolina offense
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was punishable for a term exceeding one year only if the
particular defendant before the court had been eligible for such
a sentence under the applicable statutory scheme, taking into
account his criminal history and the nature of his offense. Id.
at 247; see also N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009)
(setting forth North Carolina’s structured sentencing scheme).
Under Simmons, Clark’s two prior North Carolina
convictions are not felonies for purposes of 21 U.S.C. §
841(b)(1)(A) because they were not punishable by more than a
year of incarceration. Both of Clark’s North Carolina
convictions were Class I felonies, and the state court
determined that he had a prior record level of IV. No findings
of aggravation or mitigation were made. Under these
circumstances, the maximum possible sentence that Clark could
have received was ten months. See N.C. Gen. Stat. § 15A-
1340.17(c)-(d). Therefore, we hold that the district court
erred in concluding that Clark was subject to a mandatory life
sentence under § 841(b)(1)(A), and that his case must be
remanded for resentencing.
Accordingly, we affirm Clark’s convictions and vacate
his sentences, remanding the case to the district court for
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resentencing. * We dispense with oral argument because the facts
and legal contentions are adequately presented in the material
before the court and argument will not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
*
Although the fact that this case must be remanded for
resentencing obviates the necessity to rule at this time on
Clark’s claim that he was erroneously deemed a career offender
at sentencing, we note that, for purposes of career offender
status under the Guidelines, a “prior felony conviction” is a
conviction for an offense “punishable” by death or imprisonment
for a term exceeding one year, “regardless of the actual
sentence imposed.” USSG § 4B1.2, cmt. n.1.; see also McNeill v.
United States, 131 S. Ct. 2218, 2224 (2011) (a sentencing court
must consult the maximum term of imprisonment applicable to the
offense at the time of the defendant’s state conviction for that
offense).
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