United States v. Clements, Marvin

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2981
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARVIN D. CLEMENTS, ALSO KNOWN AS MARVIN D. HERRON,
ALSO KNOWN AS MARVIN D. CLEMENTS-HERRON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 CR 9—Lynn Adelman, Judge.
____________
ARGUED FEBRUARY 20, 2008—DECIDED APRIL 14, 2008
____________
Before EASTERBROOK, Chief Judge, BAUER, and WOOD,
Circuit Judges.
BAUER, Circuit Judge. Defendant-Appellant Marvin D.
Clements was convicted of being a felon in possession of
a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2), after Milwaukee police officers discovered him
sitting in a car with a gun. On appeal, Clements argues
(1) that his encounter with the arresting officers cons-
tituted an illegal seizure in violation of his Fourth Amend-
ment rights; and (2) that the district court judge violated
2 No. 07-2981
his due process rights by failing to sua sponte order a
competency hearing during trial. For the following reasons,
we affirm.
I. Background
On November 4, 2005, at approximately 10:40 p.m.,
City of Milwaukee police received an anonymous call
reporting that a suspicious person had been, and was
sitting in a white Oldsmobile with the motor running in
front of the caller’s house for over four hours. Two officers
responded to the call, drove up to the scene, and parked
their squad car approximately fifteen to twenty feet be-
hind the white Oldsmobile at the address the caller pro-
vided. The officers shined a spotlight on the Oldsmobile
and activated their flashing red and blue lights. Clements,
the sole occupant of the Oldsmobile, was sitting in the
driver’s seat.
As the officers approached, Clements turned toward
the driver’s side window and raised a folded four-inch
knife. The officers backed away and ordered Clements to
drop the knife and get out of the car. Clements complied,
but as he got out of the car, a loaded .22 caliber rifle
magazine fell from his lap to the ground. The magazine
contained ten cartridges of .22 caliber long rifle ammuni-
tion.
The officers conducted a pat-down search of Clements
and escorted him to their squad car to ensure their
safety. One of the officers then returned to the white
Oldsmobile to check for any contraband or weapons. The
officers found a .22 caliber long rifle ammunition box
with four spent casings and two loaded cartridges in the
No. 07-2981 3
center console and a .22 caliber long barrel rifle lying
across the rear floorboard of the car.
On January 18, 2006, a grand jury indicted Clements for
illegally possessing a firearm as a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On
January 10, 2007, Clements’s trial attorney, Ann T. Bowe,
filed a motion for competency evaluation, which the
district court granted. On March 27, 2007, the district
court received a forensic report from a licensed clinical
psychologist who concluded that Clements exhibited
behavior consistent with Antisocial Personality Dis-
order, but that he was competent to stand trial. Clements
did not challenge that report, and on March 30, 2007, the
district court found Clements competent to stand trial.
On May 14, 2007, a trial commenced, and on that same
day, the jury returned a guilty verdict. On August 3, 2007,
the district court sentenced Clements to 48 months’ impris-
onment.
During his trial and sentencing hearing, Clements
repeatedly interrupted the lawyers and the judge with
questions and comments. Despite being superfluous and
inarticulate, Clements’s interjections pertained to what
was being discussed at that point in the proceedings or
had to do with issues that he perceived to be unresolved.
At one point during the sentencing hearing, Clements
blamed his life hardships on being born on February 29th,
leap day, but later acknowledged the absurdity of such
a statement and conceded, “I don’t know what the leap
year thing is about here.” Clements then continued to
ramble on in his attempts to gain leniency from the sen-
tencing judge, pointing to factors such as rehabilitation,
his children, the environment in which he grew up, the
evidence presented at trial, and a somewhat distorted
acceptance of the federal prison sentence that awaited him.
4 No. 07-2981
II. Discussion
On appeal, Clements makes two arguments. First, he
argues that the arresting officers’ encounter with him
constituted a seizure under the Fourth Amendment, and
was unsupported by a reasonable suspicion that he
was engaged in any criminal activity. Second, Clements
asserts that the district court judge violated his due process
rights by failing to order a competency hearing sua sponte
in light of his outbursts throughout the proceedings,
and that the error warrants a new trial. We address each
issue in turn.
A. Fourth Amendment Issue
Clements contends that the officers had no reason to
suspect that Clements was engaged in any criminal ac-
tivity in the Oldsmobile, and that they effectively seized
him when they parked behind him, turned on their
lights, and approached the Oldsmobile. It logically fol-
lows that Clements’s position is that the evidence ob-
tained from the encounter, namely the gun, was improp-
erly seized and admitted into evidence. However,
Clements never raised this argument before the district
court.
“Waiver occurs when a criminal defendant intentionally
relinquishes a known right.” United States v. Brodie, 507
F.3d 527, 530 (7th Cir. 2007) (quoting United States v.
Haddad, 462 F.3d 783, 793 (7th Cir. 2006)). “Forfeiture
occurs when a defendant negligently fails to assert a
right in a timely fashion.” Id. While waiver extinguishes
any error and precludes appellate review, forfeiture of a
right warrants plain error review. Id.; see Haddad, 462
F.3d at 793; United States v. Staples, 202 F.3d 992, 995 (7th
No. 07-2981 5
Cir. 2000). A criminal defendant who does not move to
suppress evidence before trial waives the suppression
argument, unless he can show “good cause” for not
challenging the evidence at the district court. See Fed. R.
Crim. P. 12(b) and (e); see also United States v. Hargrove,
508 F.3d 445, 450 (7th Cir. 2007); Brodie, 507 F.3d at 530.
Clements argues that he failed to raise the Fourth
Amendment argument at the district court before trial
because his trial attorney was assigned to the case only
eight days prior to trial. According to Clements, his trial
counsel negligently failed to make any pretrial motions
because of a lack of time to prepare.
This argument is factually incorrect and does not
amount to “good cause” as required by Rule 12(e) for re-
lief from waiver. The record shows that Ann T. Bowe,
Clements’s trial counsel, was appointed on March 8, 2006,
more than fourteen months before trial. Ms. Bowe filed
motions with the district court on Clements’s behalf,
including a motion to determine competency and a motion
for bail review. It can hardly be said that Ms. Bowe had
inadequate time to prepare for trial.
Moreover, Clements certainly knew that the govern-
ment intended to use the evidence obtained from the
police encounter against him at trial; without it there
would have been no case. Even if Ms. Bowe had been
rushed in her trial preparation, she did not request a
continuance or otherwise indicate that she was ill-pre-
pared. It is probable that she did not file any evidentiary
motions because she did not believe any to be appro-
priate or potentially successful. See United States v. Goudy,
792 F.2d 664, 672 (7th Cir. 1986) (holding that counsel’s
failure to file pretrial motions or to visit client in prison
does not indicate a lack of adequate preparation for trial).
6 No. 07-2981
Clements has failed to establish good cause for relief
from waiver.
Even if we considered Clements’s failure to seek sup-
pression of the gun before trial as a forfeiture, and not
waiver, Clements still has not convinced us that the district
court plainly erred in admitting the evidence. The Fourth
Amendment only prevents police from seizing a person
without a reasonable suspicion of criminal activity. See
United States v. Scheets, 188 F.3d 829, 836 (7th Cir. 1999);
Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 473
(7th Cir. 1997); United States v. Rodriguez, 69 F.3d 136, 141
(7th Cir. 1995). A consensual encounter between an officer
and a private citizen does not trigger the Fourth Amend-
ment. See United States v. Hendricks, 319 F.3d 993, 999-
1000 (7th Cir. 2003) (explaining that where a driver
stops his car on his own and no other coercive activity
occurs, the result is a consensual encounter); United States
v. Green, 111 F.3d 515, 520 n.1 (7th Cir. 1997) (same). A
consensual encounter becomes a seizure when a rea-
sonable person in those circumstances would not feel free
to leave. See Brendlin v. California, ___ U.S. ___, 127 S.Ct.
2400, 2405-06 (2007); Hendricks, 319 F.3d at 1000. Circum-
stances that might indicate a seizure include the threaten-
ing presence of several officers, display of their weapons,
physical touching of the private citizen, use of forceful
language or tone of voice (indicating that compliance
with the officers’ request might be compelled), and the
location in which the encounter takes place. United States
v. Mendenhall, 446 U.S. 544, 554 (1980); Scheets, 188 F.3d
at 836-37.
The police encounter in this case was not a seizure for
Fourth Amendment purposes. Clements had voluntarily
stopped his car; he did not stop because of the flashing
No. 07-2981 7
police lights. Likewise, Clements was not seized when the
officers approached his car. The officers approached the
car to investigate why the car had been parked and run-
ning on a public street for four hours, a circumstance
unusual enough to at least merit some investigation. The
officers illuminated their flashing lights to alert the car’s
occupants that they were going to approach the vehicle.
Without identifying themselves appropriately to the
car’s occupants, the officers would have put themselves
at risk in approaching a parked car late at night. Other
than illuminating their flashing lights for identification
and safety purposes, the officers did nothing that could
have made Clements feel that his freedom was re-
strained: they did not draw their weapons, they did not
surround Clements’s car with multiple squad cars or
officers or otherwise prevent him from driving away,
they did not lay a hand on Clements, and they did not use
forceful language or tone of voice until after the officers
felt threatened by Clements’s gesture with the knife. Up to
this point, the circumstances could not have caused a
reasonable person to feel restrained.
The officers’ observation of Clements following the
initial contact quickly gave the officers a reason to seize
Clements. Clements gestured with the knife in the direc-
tion of the officers, which reasonably made the officers
feel threatened. United States v. Evans, 994 F.2d 317, 320
(7th Cir. 1993) (noting that the Fourth Amendment only
precludes unreasonable seizures). The officers appropri-
ately ordered Clements to drop the knife and get out of the
car, during which a rifle magazine fell from his lap, again
providing suspicion of criminal activity. Therefore, the
district court did not err plainly or otherwise by admit-
ting the evidence obtained during this police encounter.
8 No. 07-2981
B. Competency Issue
Clements also argues that the district court erred by not
sua sponte ordering a competency hearing based on
Clements’s trial conduct. Clements acknowledges that
he was found competent six weeks before trial based on
the psychologist’s report. Nevertheless, he asserts that
his disruptive conduct at trial provided reasonable cause
for the district court to believe he was mentally incom-
petent to stand trial.
A court may, on its own motion, order a hearing on the
competency of a defendant “if there is reasonable cause
to believe that the defendant may presently be suffering
from a mental disease or defect rendering him mentally
incompetent to the extent that he is unable to understand
the nature and consequences of the proceedings against
him or to assist properly in his defense.” 18 U.S.C.
§ 4241(a); United States v. Savage, 505 F.3d 754, 758 (7th
Cir. 2007); see Pate v. Robinson, 383 U.S. 375, 385 (1966)
(holding that a judge must provide a competency hearing
on his own motion if the evidence raises a bona fide
doubt as to the defendant’s competence to stand trial). The
district court is in the best position to determine the need
for a competency hearing. Savage, 505 F.3d at 760. We
review the district court’s decision not to order a compe-
tency hearing during trial for abuse of discretion. United
States v. Andrews, 469 F.3d 1113, 1121 (7th Cir. 2006); United
States v. Wilbourn, 336 F.3d 558, 559 (7th Cir. 2003).
Despite his disruptive interjections throughout the trial
and at his sentencing hearing, Clements’s conduct did
not suggest that he did not understand the proceedings
against him or that he was unable to assist with his own
defense. Six weeks prior to trial, a licensed clinical psych-
ologist concluded that Clements appeared to experience
No. 07-2981 9
symptoms of Antisocial Personality Disorder, but was
competent to stand trial. Neither Clements nor the gov-
ernment challenged that report. Clements has not pro-
vided us with a single example of his conduct that would
suggest incompetence; instead, Clements has focused his
argument on the statements made by Clements’s trial
counsel, the prosecutor, and the judge at sentencing,
which do nothing more than acknowledge that Clements
exhibited behavior consistent with Antisocial Personality
Disorder. See Savage, 505 F.3d at 759 (“The mere fact that
a criminal defendant has a personality disorder does
not prevent the defendant from appreciating the proceed-
ings or assisting in his defense.”) (citing United States v.
Teague, 956 F.2d 1427, 1432 (7th Cir. 1992)). Clements’s
attorney did not seek an additional competency evalua-
tion once the trial was underway, nor did any party
suggest that Clements did not understand the pro-
ceedings or was unable to assist counsel with his defense.
See Savage, 505 F.3d at 760 (“Significant weight is given to
counsel’s representations concerning his client’s compe-
tence and counsel’s failure to raise the competency issue.”);
see, e.g., United States v. Ewing, 494 F.3d 607, 623 (7th Cir.
2007).
Furthermore, the trial transcript is devoid of evidence
of “irrational” behavior. While Clements was at times
disruptive, his objections, questions, and suggestions
were generally pertinent to the issues being addressed,
indicating that Clements was fully attentive to the pro-
ceedings and readily offered suggestions and opinions
about the evidence and his defense. Clements also testified
on his own behalf and demonstrated an ability to under-
stand and answer questions logically and coherently.
Clements’s behavior at trial does not suggest incompe-
10 No. 07-2981
tence; it was merely Clements’s attempts to interject
his own view of the issues and generally frustrate the
progress of the trial. See Savage, 505 F.3d at 759. The dis-
trict court’s decision not to order a competency hearing
during trial was correct.
III. Conclusion
For the reasons stated above, we affirm.
USCA-02-C-0072—4-14-08