United States v. Jackson , 454 F. App'x 435 ( 2011 )


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  •                                Not Recommended for Publication                      FILED
    File Name: 11a0886n.06
    Dec 29, 2011
    Nos. 07-1191 and 07-1310              LEONARD GREEN, Clerk
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                             )
    )
    Plaintiff-Appellee,                            )
    )
    v.                                                    )    ON APPEAL FROM THE UNITED
    )    STATES DISTRICT COURT FOR
    JAMES JACKSON,                                        )    THE EASTERN DISTRICT OF
    )    MICHIGAN
    Defendant-Appellant.                           )
    )
    )
    )
    UNITED STATES OF AMERICA,                             )
    )
    Plaintiff-Appellee,                            )
    )
    v.                                                    )
    )
    MICHAEL ANTHONY CLARK,                                )
    )
    Defendant-Appellant.                           )
    Before: BATCHELDER, Chief Judge; SILER and COLE, Circuit Judges.
    SILER, Circuit Judge. Defendants Michael Clark and James Sigmund Jackson appeal
    separately from criminal convictions in the same case. We affirm the district court on all but two
    issues. As to Clark’s double-jeopardy and procedural-unreasonableness-in -sentencing challenges,
    we agree with Clark, vacate his sentence, and remand for resentencing. We also vacate Jackson’s
    sentence and remand for resentencing.
    I.
    The indictment named both defendants, plus other co-defendants who elected to plead guilty
    rather than go to trial, in multiple counts. Clark faced two counts of conspiracy to possess with
    intent to distribute and to distribute controlled substances (Count One for marijuana, Count Two for
    cocaine); a continuing criminal enterprise count (Count Four); seven counts of unlawful use of
    communication facilities to conspire to possess with intent to distribute controlled substances
    (Counts Five, Six, Seven, Nine, Eleven, Thirteen, and Thirty Three); one count of conspiracy to
    launder monetary instruments (Count Thirty Five); one count of laundering monetary instruments
    (Count Thirty Six); two counts of felon in possession of a firearm (Counts Forty One and Forty
    Two); and two criminal forfeiture counts (Counts Forty Three and Forty Four). Jackson faced one
    count of conspiracy to possess with intent to distribute marijuana (Count One) and two counts of
    unlawful use of communication facilities to conspire to possess with intent to distribute controlled
    substances (Counts Nine and Ten).
    The jury found Clark guilty of Counts One, Two, Four, Five, Seven, Eleven, Thirteen, Thirty
    Three, Forty One, and Forty Two of the indictment, but acquitted him on the other counts. The
    district court sentenced Clark to the following terms of imprisonment, all to run concurrently: 480
    months on Count One, 600 months on Counts Two and Four, 48 months on each of Counts Five,
    Seven, Eleven, Thirteen, and Thirty Three; and 120 months on Counts Forty One and Forty Two.
    The jury found Jackson guilty on Count One of the indictment and acquitted him on Counts
    Nine and Ten. The district court sentenced Jackson to 180 months of imprisonment.
    -2-
    II.
    A.
    First, Clark contends that the district court erred in denying his motion to suppress evidence
    obtained from a Title III wiretap, where the motion alleged that the wiretap affidavit failed to
    demonstrate probable cause and necessity under 18 U.S.C. § 2518.
    When reviewing a district court’s ruling on a motion to suppress a wiretap, we consider
    factual determinations under the clearly erroneous standard. United States v. Gray, 
    521 F.3d 514
    ,
    524 (6th Cir. 2008) (citing United States v. Rice, 
    478 F.3d 704
    , 709 (6th Cir. 2007)). Questions of
    law receive de novo review. 
    Id. The district
    court properly denied Clark’s motions to suppress, finding both probable cause
    and necessity. Under 18 U.S.C. § 2518, a judge may properly enter an ex parte order approving a
    wiretap
    if the judge determines on the basis of facts submitted by the applicant that--
    (a) there is probable cause for belief that an individual is committing, has
    committed, or is about to commit a particular offense enumerated in section
    2516 of this chapter;
    (b) there is probable cause for belief that particular communications
    concerning that offense will be obtained through such interception;
    (c) normal investigative procedures have been tried and have failed or
    reasonably appear to be unlikely to succeed if tried or to be too dangerous .
    ...
    18 U.S.C. § 2518(3); see United States v. Poulsen, No. 08-4218, 09-3658, 
    2011 WL 3715115
    , at *6
    (6th Cir. Aug. 25, 2011) (slip copy) (outlining requirements).
    -3-
    First, the district court appropriately denied the motions to suppress because the applications
    established probable cause. A reviewing court assesses the application “on the totality of the
    circumstances and in a reasonable and common sense manner.” United States v. Alfano, 
    838 F.2d 158
    , 162 (6th Cir. 1988) (noting that “[t]he basic standards for a wiretap are similar to those for a
    search warrant”) (citing Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983)). In an application involving an
    informant, the totality of the circumstances analysis includes “‘the veracity and basis of knowledge
    of persons supplying hearsay information,’” United States v. Williams, 
    224 F.3d 530
    , 532 (6th Cir.
    2000) (quoting 
    Gates, 462 U.S. at 238
    ) (internal quotations omitted), and the issuing judge must be
    “reasonably assured that the informant was credible and the information reliable.” 
    Id. A reviewing
    court affords “great deference” to the issuing judge’s determination of the circumstances at the time
    of issuance. 
    Alfano, 838 F.2d at 162
    .
    The district court properly found probable cause based on the initial wiretap application, as
    well as the twelve related or supplemental wiretap applications. Because the twelve subsequent
    applications rely on similar grounds to the first application, Clark focuses his challenge on that first
    application, contending that the issuing judge improperly credited information from informants and
    valued bare conclusory allegations with no requisite factual support.
    Contrary to Clark’s contentions, the first application properly relied on information from
    informants. Each of the informants had been cooperating for a year or more. The agent’s affidavit
    details investigatory history with each informant not just in the introductory sections for the
    informants, but also throughout the remainder of the affidavit. Crediting the information where
    appropriate, while considering the limitations of each informant, the district court properly found that
    the informants provided sufficiently reliable information toward establishing probable cause.
    -4-
    Clark also objects that the application provided no source of information for facts asserted
    and drew conclusions irreconcilable with the facts included within the four corners, but these
    contentions, likewise, lack merit. As to the source of information, the agent expressly states that he
    personally participated in the investigation and also included “information provided by DEA and FBI
    Agents and local police officers in Michigan and elsewhere.” The affidavit recounts specific
    surveillance operations, interviews, and monitored telephone conversations from the ongoing
    investigation. Where the application needs to show probable cause, not establish guilt, the source
    information provided stands as appropriate and sufficient.
    Likewise, Clark’s argument concerning conclusions drawn in the agent’s affidavit merits no
    relief. While the agent provided the specific investigative background noted above, the agent also
    described his own training and experience and asserted those to provide him with additional basis
    for drawing conclusions. Of course, such training and experience do not afford an officer carte
    blanche to speculate in any investigation, but instead, the training and experience fold into the
    overall evaluation of probable cause, as weighed by the issuing judge.
    The district court also properly denied the motion to suppress because the application met
    the necessity requirement. To demonstrate necessity, an application for the wiretap authorization
    must include “a full and complete statement as to whether or not other investigative procedures have
    been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too
    dangerous.” United States v. Rice, 
    478 F.3d 704
    , 709-10 (6th Cir. 2007) (internal quotation omitted).
    The applicant’s burden “is not a heavy one.” 
    Id. To meet
    the requirement, “investigators [must]
    give serious consideration to the non-wiretap techniques prior to applying for wiretap authority . .
    . .” United States v. Lambert, 
    771 F.2d 83
    , 91 (6th Cir. 1985). The purpose is “to ensure that a
    -5-
    wiretap ‘is not resorted to in situations where traditional investigative techniques would suffice to
    expose the crime.’” 
    Alfano, 838 F.2d at 163
    (quoting United States v. Kahn, 
    415 U.S. 143
    , 153 n.12
    (1974)). However, applicants need not “‘prove that every other conceivable method has been tried
    and failed.’” Poulsen, 
    2011 WL 3715115
    , at *6 (quoting 
    Alfano, 838 F.2d at 163
    ).
    Here, the agent provided a thorough description of his consideration of other investigative
    techniques, including reporting limited successes where efforts to pursue those techniques had been
    attempted. The applying Assistant United States Attorney also affirmed that other investigative
    techniques had been attempted or would be unlikely to find success.
    As to necessity, Clark also contends that each renewal or related application results in an
    increasing burden for the Government to show necessity, but this argument, even if correct, results
    in no relief for Clark here. Each application submitted, on its own merits, makes a sufficient
    showing of necessity, based on the original agent’s affidavit and additional context about
    development of the investigation. Clark attempts to restrict the evaluation solely to the section
    addressing alternate means of investigation, arguing that language not to be updated appropriately,
    but the proper analysis considers each application in its entirety, not just a single section of the
    application. Here, each application provides a discussion of prior applications and an update on the
    status of the overall investigation, as relative to that particular application, and these sections no
    doubt assisted the issuing judge in evaluating necessity each time. The district court properly denied
    the motions to suppress evidence from the wiretaps.
    B.
    Clark also argues that the district court erred in denying his motion to suppress evidence
    seized from his residence and vehicles, where the motion asserted that the search warrant affidavit
    -6-
    failed properly to establish probable cause and officers could not have relied on the warrant in good
    faith.
    Reviewing the district court’s ruling on a motion to suppress evidence from a search, we
    evaluate factual determinations under the clearly erroneous standard and conclusions of law under
    the de novo standard. United States v. Gillman, No. 09-6109, 
    2011 WL 3288417
    , at *1 (6th Cir.
    Aug. 2, 2011) (slip copy) (citing United States v. Gross, 
    550 F.3d 578
    , 582 (6th Cir. 2008)).
    The affidavit has some basic flaws. Assuming without deciding that it lacks probable cause,
    nevertheless the good-faith exception to the exclusionary rule applies here. Under United States v.
    Leon, 
    468 U.S. 897
    (1984), the exclusionary rule does not bar evidence seized in reasonable,
    good-faith reliance on a search warrant subsequently determined to be invalid. 
    Id. at 922-23;
    United
    States v. Leake, 
    998 F.2d 1359
    , 1366 (6th Cir. 1993). A reviewing court, therefore, must determine
    whether the supporting affidavit was “‘so lacking in indicia of probable cause as to render official
    belief in its existence entirely unreasonable.’” 
    Leon, 468 U.S. at 923
    (quoting Brown v. Illinois, 
    422 U.S. 590
    , 611 (1975) (Powell, J., concurring)). In four situations, the good-faith exception does not
    apply: (1) where the affiant provided false information to the issuing judge and knew or should have
    known about the falsity; (2) “where the issuing magistrate wholly abandoned his judicial role”; (3)
    where the supporting affidavit is devoid of “indicia of probable cause”; and (4) where the warrant
    is “so facially deficient” that the “executing officers cannot reasonably presume it to be valid.” 
    Id. Clark argues
    that the first and third Leon exceptions should apply in this matter, but neither
    carries the day. No evidence suggests that the affiant provided false information, so while the
    criminal history, as presented, appears unrelated and wholly tangential, the lack of falsity takes this
    case outside of the first exception. As to the third exception, the affidavit has some factual
    -7-
    development -- the wiretap conversation excerpt and surveillance of duffel bags, for instance -- and
    that development means the affidavit should not be regarded, as Clark would contend, as “bare
    bones.” What brings the search under Leon amounts to the inferences that can be drawn to establish
    identity and nexus. The affidavit noted a wiretap authorization that had been issued for a telephone
    number associated with Clark and reported conversations as involving him, and in this circumstance,
    a reasonable officer could in good faith have believed the identity of Clark to be established by
    inference. That is, an officer could credibly have assumed that the implied success of the wiretap
    authorization demonstrated identity. Moreover, such an officer could have believed in good faith
    that the reported surveillance at Clark’s residence and involving his vehicles showed a sufficient
    nexus, based on prior investigative activity. The prior action and factual development provide
    minimally sufficient indicia of probable cause to bring the search to a safe haven under the Leon
    exception.
    C.
    Clark next contends that the district court abused its discretion by denying his motion for a
    mistrial. When reviewing denial of a motion for mistrial based on alleged prosecutorial misconduct,
    we apply the abuse of discretion standard. United States v. Hopper, No. 09-6234, 
    2011 WL 2119132
    , at *12 (6th Cir. May 31, 2011) (slip copy) (citing United States v. Wettstain, 
    618 F.3d 577
    ,
    588 (6th Cir. 2010)). We follow a two-step analysis and determine (1) whether the prosecutor’s
    remarks were improper; and, if so, (2) whether those remarks were flagrant. United States v.
    Beasley, 
    583 F.3d 384
    , 392-93 (6th Cir. 2009). The court reverses for improper non-flagrant
    prosecutorial misconduct only where (1) the proof against the defendant was not overwhelming; (2)
    -8-
    defense counsel objected to the conduct; and (3) the district court failed to give a curative instruction.
    United States v. Brown, 
    66 F.3d 124
    , 127 (6th Cir. 1995).
    The district court appropriately denied the motion for mistrial, where the prosecutor solicited
    improper testimony at least once, but not flagrantly in the context of the entire trial, and strong
    evidence demonstrated Clark’s guilt. At the end of the first day of trial, Clark stipulated to a prior
    felony conviction for the felon-in-possession counts, per Old Chief v. United States, 
    519 U.S. 172
    (1997). Two days later, the prosecutor elicited improper testimony from a case agent concerning the
    specific crime:
    Q. Does he have a felony conviction?
    A. Yes, ma’am.
    Q. For what?
    A. Armed robbery.
    THE COURT: Just a moment. I thought there was a stipulation on this.
    MS. GIBBS: I thought there was an agreement that the evidence would come in.
    MR. STEINGOLD: May we approach?
    THE COURT: I don’t think we need to. I understood, and correct me if I’m wrong,
    I understood that the defense for Mr. Clark was going to stipulate that there was, in
    fact, a felony conviction on his record. Is that correct, Mr. Steingold?
    MR. STEINGOLD: That is correct.
    THE COURT: Then that ends the inquiry.
    At the time Clark entered his stipulation, the district court granted a motion to exclude mention of
    prior convictions related to Clark and Jackson.
    -9-
    The second incident, while still potentially problematic, does not implicate the same
    concerns. On the first day of trial, the district court ruled that, as to reputation evidence, he would
    have to hear “specific questions” and “specific objections” and thus could not make an in limine
    ruling in advance regarding all potential reputation testimony. A couple of weeks later, during the
    redirect examination of Kevin Youngblood, the prosecutor sought to delve into Clark’s reputation
    for violence, and after an initial objection, the district court permitted the questioning to proceed.
    However, after the prosecutor asked about specific instances, Clark objected, and the district court
    upheld the objection. Later, the prosecutor asked Youngblood whether he had a contract on Clark’s
    life. Youngblood responded that Clark had contracts on him and two other men, and Clark
    immediately objected. Counsel engaged in an extended argument that appeared to confuse the
    posture at that time, the district court’s prior rulings on reputation evidence and 404(b) evidence, and
    a prior Rule 609 stipulation between Jackson and the United States. The district court ultimately
    sorted out the confusion and upheld the objection. As part of the rationale, the district court
    indicated that the jury, which had been out for lunch for over an hour, would not remember the
    question or answer. On that basis, the district court declined to give a curative instruction. However,
    it permitted Clark an opportunity to propose an instruction to be given later. By written motion
    incorporating all instances of alleged prosecutorial misconduct, Clark ultimately moved for mistrial,
    but the district court denied the motion, finding, as relevant to the second instance, that the instance
    did not rise to the level of prosecutorial misconduct.
    Importantly, the incidents, even if both improper, were not flagrant. To assess flagrancy, the
    court examines (1) whether the statements tended to mislead the jury and prejudice the defendant;
    (2) whether the statements were isolated or extensive; (3) whether the statements were deliberately
    - 10 -
    placed before the jury; and (4) the overall strength of the evidence against the defendant. United
    States v. Gonzalez, 
    512 F.3d 285
    , 292 (6th Cir. 2008). The incidents, two out of a multiple-week,
    many-witness trial, were isolated, not extensive.
    Regarding the first incident -- the one definitely and obviously improper -- the district court
    emphasized that the jury had already heard that Clark had a prior robbery conviction because that
    allegation appeared in the indictment, which had been read to the jury. Clark now contends the
    district court’s rationale to be erroneous because the district court also instructed the jury that the
    indictment should not be considered as evidence, and juries are presumed to follow instructions. Of
    course, this same logic defeats Clark’s current argument because, after all proof had been taken, the
    district court gave the jury an instruction that Clark had stipulated to a prior felony and any
    information about that felony otherwise does not relate to the instant matter:
    The parties have stipulated, as I indicated, and agreed that Michael Clark had a prior
    felony conviction. This evidence is admitted only for the purpose of establishing that
    element of the charged offense which requires proof of a prior felony conviction. It
    is not to be considered as evidence that Michael Clark has a propensity to commit
    crimes or for any other purpose.
    That instruction, presumed to be followed, removed prejudice.
    Clark argued the prosecutor’s efforts to be deliberate, but the solicitation of improper
    testimony here was more careless and inattentive than deliberate, though nonetheless serious.
    A key factor, the evidence against Clark stands as quite strong. For example, multiple
    witnesses, including co-defendants, testified that Clark supervised and participated in a multi-person
    drug network that brought marijuana and cocaine into Detroit using tractor-trailers, distributed the
    drugs, and collected money. The wiretaps turned up conversations specifically documenting Clark’s
    activities with and in this organization. Officers intercepted one shipment of over 1000 pounds of
    - 11 -
    marijuana and overheard Clark, in an intercepted call just after the interception, lamenting that “all
    [his] weed” had been in the truck.
    We find no basis for reversal. The prosecutor’s careless and inattentive solicitation of
    improper testimony does not rise to the level of flagrancy, and in light of the strong evidence against
    Clark, reversal is not appropriate. The district court properly denied the motion for mistrial based
    on alleged prosecutorial misconduct.
    D.
    Clark asserts that, as to his continuing-criminal-enterprise (CCE) conviction, the evidence
    failed sufficiently to establish supervision of five or more criminally involved persons.
    We review de novo the sufficiency of the evidence to sustain a conviction. United States v.
    Lawson, 
    535 F.3d 434
    , 443 (6th Cir. 2008) (citing United States v. Gibson, 
    896 F.2d 206
    , 209 (6th
    Cir. 1990)). Here, sufficient evidence supported Clark’s CCE conviction. The following elements
    constitute the offense of CCE under 21 U.S.C. § 848:
    (1) that the defendant committed a felony violation of federal narcotics laws [21
    U.S.C. §§ 801 et. seq.];
    (2) that the violation was part of a continuing series of three or more drug offenses
    committed by the defendant;
    (3) that the defendant committed the series of offenses in concert with five or more
    persons;
    (4) that the defendant acted as an organizer, supervisor, or manager with regard to
    these five or more persons; and
    (5) that the defendant obtained substantial income and resources from this series of
    violations.
    - 12 -
    United States v. Avery, 
    128 F.3d 966
    , 973 (6th Cir. 1997). Clark challenges only whether sufficient
    evidence existed as to the fourth element: organization, management, or supervision (“supervision”)
    of five or more criminal participants. Specifically, he alleges that the evidence demonstrated
    supervision of only three participants: Charles Gadson, Cornell Lewis, and James Jackson.
    Contrary to Clark’s protests, the evidence sufficiently established organization, management,
    or supervision of five or more participants. Clark characterizes participants other than Gadson,
    Lewis, and Jackson to be simply buyers or sellers, distant sources of supply, or innocent dupes, all
    with no real indicia of control by Clark. In finding a defendant guilty of CCE,
    the jury need not unanimously agree on the identities of the five particular persons,
    nor need the five persons be named in the indictment or bill of particulars. A person
    can be found to be under the defendant’s organization or supervision because she
    knew about the drug operation, took orders directly from the defendant and helped
    in the drug business. A broker or courier under the defendant’s supervision, someone
    who stores drugs for the defendant, or one who collects or launders drug proceeds is
    also within the ambit of the statute.
    
    Avery, 128 F.3d at 973
    (internal citations omitted). Standing alone, a purchase of drugs from an
    alleged organizer does not establish the supervisor relationship. United States v. Ward, 
    37 F.3d 243
    ,
    247 (6th Cir. 1994). Likewise, simply fronting drugs does not demonstrate a supervisor relationship.
    
    Id. at 248.
    Innocent participants also do not count in the supervisor calculus. 
    Id. A rational
    trier of fact could have found, beyond a reasonable doubt, that Clark supervised
    five or more persons. Melvin Reed, Cornell Lewis, and Kevin Youngblood all testified that Clark
    supervised at least five participants in the drug organization. According to Reed’s testimony, he
    collected money for Clark, and he sold whichever type of drug, cocaine or marijuana, that Clark and
    Lewis specified. Clark concedes Lewis’s role, and consistent with that concession, Lewis testified
    that he sold drugs, including cocaine and marijuana, for Clark. Youngblood also testified that he
    - 13 -
    sold cocaine and marijuana for Clark and that people from Clark’s car washes would help load
    marijuana from Clark’s van into Youngblood’s vehicle. Witnesses further testified about the
    involvement of an additional party, Gerald Allen, who delivered drugs and collected money for
    Clark.
    E.
    Next, Clark argues that entry of judgment against him for both CCE and underlying drug
    conspiracy charges (Counts One and Two) violated the protection against double jeopardy. We
    agree.
    Here, the CCE count (Count Four) of the indictment expressly incorporated the drug
    conspiracies charged in Counts One and Two. The parties agree that the district court erred and that
    the drug conspiracy convictions should be vacated where this court upholds the CCE conviction.
    In this circumstance, the drug conspiracy convictions merged into the CCE conviction, and the
    conspiracy convictions must be vacated. United States v. Avery, 
    128 F.3d 966
    , 972 (6th Cir. 1997)
    (citing United States v. Schuster, 
    769 F.2d 337
    , 345 (6th Cir. 1985)). The district court’s sentencing
    in violation of double jeopardy constitutes plain error, and we vacate Clark’s drug conspiracy
    convictions (Counts One and Two).
    F.
    Clark contends that his felon-in-possession convictions violate the Ex Post Facto Clause by
    wrongfully applying a 1992 Michigan firearms-possession restriction for felons against him. We
    review de novo a district court’s denial of a motion to dismiss an indictment on legal grounds.
    United States v. Penney, 
    576 F.3d 297
    , 303 (6th Cir. 2009) (citing United States v. Crayton, 
    357 F.3d 560
    , 564 (6th Cir. 2004)).
    - 14 -
    Clark’s felon-in-possession convictions do not violate the Ex Post Facto Clause. Under that
    clause, “[n]o Bill of Attainder or ex post facto Law shall be passed.” U.S. Const. art. I, § 9, cl. 3.
    The ex post facto prohibition ensures “‘that legislative Acts give fair warning of their effect and
    permit individuals to rely on their meaning until explicitly changed.’” United States v. Reese, 
    71 F.3d 582
    , 585 (6th Cir. 1995) (quoting Weaver v. Graham, 
    450 U.S. 24
    , 28-29 (1981)). An ex post
    facto violation includes two elements: “(1) the law must apply to events occurring before its
    enactment, and (2) it must disadvantage the offender affected by it.” 
    Id. (citing Miller
    v. Florida,
    
    482 U.S. 423
    , 430 (1987)).
    Here, Clark’s felon-in-possession convictions relied on a 1992 firearms-possession restriction
    applying to Clark because of a 1984 armed robbery conviction. However, any person “who has been
    convicted in any court, of a crime punishable by imprisonment for a term exceeding one year . . .
    [may not] ship or transport in interstate or foreign commerce, or possess in or affecting commerce,
    any firearm or ammunition; or [] receive any firearm or ammunition which has been shipped or
    transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1). Nevertheless, where a felon’s
    right to possess firearms has been restored, the underlying conviction may not serve as a basis for
    section 922(g) conviction. 18 U.S.C. § 921(a)(20).
    When Clark was convicted in 1984, the firearms-possession restriction in effect, Michigan
    Compiled Laws § 28.422, required that he may not possess a pistol until eight years after release
    from incarceration. M.C.L. § 28.422(1) (West 1972). After eight years, a felon who met all
    qualifications could have applied to possess a pistol. 
    Id. However, in
    1992, the Michigan legislature
    passed Michigan Compiled Laws § 750.224f to provide a comprehensive statute addressing felons
    and firearms-possession rights. M.C.L. § 750.224f (West 2004). With this background, Clark
    - 15 -
    contends that the new comprehensive restriction should not be applied retroactively to his 1984
    felony conviction, where he had been released from prison prior to the 1992 enactment and would
    have been eligible to apply to possess a pistol after the eight years.
    As the district court correctly found, Clark’s felon-in-possession convictions do not implicate
    ex post facto concerns. People v. Tice, 
    558 N.W.2d 245
    (Mich. Ct. App. 1996), upon which the
    district court properly relied, provides analysis exactly on point. In Tice, a defendant challenged his
    state-law felon-in-possession conviction, arguing that, because the 1992 firearms-possession
    restriction had not been in effect when he had been convicted of the underlying felony, the
    conviction raised ex post facto concerns under both the United States and Michigan constitutions.
    
    Id. at 246.
    The Michigan Court of Appeals found that the felon-in-possession conviction punished
    “possession of a firearm at a time after enactment of the statute,” rather than retroactively expanding
    punishment for a prior felony. 
    Id. at 246-47.
    The same logic applies in this matter: Clark’s felon-in-
    possession convictions punish his possession of firearms in 2005, after the Michigan legislature’s
    enactment of the 1992 firearms-possession restriction. The two convictions do not punish Clark
    further for the underlying armed robbery felony.
    Clark also argues that the 1992 restriction unconstitutionally broadens the class of firearms
    from “pistol,” in the prior enactment, to a more general category. Notably, Count Forty One
    expressly relies on possession of pistols, so even if meritorious, this challenge would only apply to
    Count Forty Two, which concerned a rifle. Here again, Clark attempts to construct his felon-in-
    possession convictions retroactively, as tied to the underlying 1984 felony, but as Tice explained,
    such convictions concern possession of firearms in violation of the legislature’s operative enactment
    - 16 -
    instead. For these reasons, we affirm the district court’s denial of Clark’s motion to dismiss the
    indictment.
    G.
    Clark asserts that the district court imposed a procedurally and substantively unreasonable
    sentence. Because the parties agree that the district court sentenced both Clark and Jackson in a
    procedurally unreasonable manner by failing to discuss the 18 U.S.C. § 3553(a) factors in the
    hearing, we vacate the sentences, and remand for further proceedings. We need not address the
    substantive reasonableness contention. This way, the district court will first hear and consider
    arguments by defendants at resentencing.
    H.
    Clark also argues that his sentence violates due process. However, Clark waived this issue.
    It is “well-established” that “‘issues adverted to in a perfunctory manner, unaccompanied by some
    effort at developed argumentation, are deemed waived.’” Dillery v. City of Sandusky, 
    398 F.3d 562
    ,
    569 (6th Cir. 2005) (quoting United States v. Layne, 
    192 F.3d 556
    , 566 (6th Cir. 1999)) (quoting
    McPherson v. Kelsey, 
    125 F.3d 989
    , 995-96 (6th Cir. 1997)). Here, as part of an argument section
    focused on the substantive and procedural reasonableness of Clark’s sentence, he names the due
    process issue and cites the applicable standard of review, but never makes any argument or spends
    any time developing the issue. He offers one sentence articulating a due-process right part of the
    way through his sentencing reasonableness argument, but never any focused or meaningful
    discussion of the due process contention. Accordingly, Clark waived the due process challenge.
    - 17 -
    I.
    Jackson argues that the district court abused its discretion by denying his request under
    Federal Rule of Evidence 804 to introduce allegedly exculpatory excerpts from a co-defendant’s
    proffer statement into evidence.
    The court reviews a district court’s evidentiary rulings for abuse of discretion. United States
    v. Gibson, 
    409 F.3d 325
    , 337 (6th Cir. 2005). Jackson has not shown that the district court abused
    its discretion by denying his effort to admit statements from the voluntary proffer interview of a co-
    defendant. Federal Rule of Evidence 804(b)(3) permits the hearsay statements of an unavailable
    declarant to be admitted when the statements, “from the perspective of the average, reasonable
    person,” stand adverse to the declarant’s penal interest and corroborating circumstances “truly
    establish the trustworthiness of the statement.” Fed R. Evid. 804(b)(3); United States v. Johnson,
    
    581 F.3d 320
    , 326-27 (6th Cir. 2009) (citing United States v. Tocco, 
    200 F.3d 401
    , 414 (6th Cir.
    2000)). The district court determined that the co-defendant offered the statements under a Kastigar
    agreement, which precluded direct use of the statements against the co-defendant by authorities, and
    that because the co-defendant sought to gain favor with authorities, the statements lacked
    trustworthiness.
    First, Jackson has not shown that the district court abused its discretion in determining that
    the co-defendant’s voluntary proffer statements, under a Kastigar agreement that provided direct-use
    immunity, but not derivative-use immunity, had not been made against interest. Under the Fifth
    Amendment, a witness who is compelled to testify must be granted “[i]mmunity from the use of
    [that] testimony, as well as evidence derived directly and indirectly therefrom.” Kastigar v. United
    States, 
    406 U.S. 441
    , 453 (1972). When a defendant voluntarily provides information to the
    - 18 -
    government, however, the Fifth Amendment is not implicated, and the government may negotiate
    a lesser degree of immunity. See, e.g., United States v. Harper, 
    643 F.3d 135
    , 140 n.1 (5th Cir.
    2011); United States v. Mendizabal, 214 F. App’x 496, 501 (6th Cir. 2006) (addressing an agreement
    that offered only “pocket immunity”).
    As a preliminary matter, Jackson attempts to wrench inartful responses by the prosecutor out
    of context to argue -- for the first time -- that no immunity agreement, as part of the Kastigar
    agreement, existed between the co-defendant and prosecutor. However, the full motion argument
    exchange before the district court leaves no doubt that both parties acknowledged the co-defendant’s
    Kastigar proffer could not be used directly against him in a criminal prosecution. Jackson correctly
    notes that the Kastigar agreement has not been entered into the record, but given that both sides
    previously agreed that one had been entered and even discussed the terms, Jackson’s current attempt
    to contend the agreement afforded no form of immunity stands, at best, as ill-advised.
    The district court reviewed the filings by the parties, heard argument, made sure to identify
    and consider the specific proffer interview at issue and its circumstances, and reached a reasoned
    decision. Notably, the materials submitted with Jackson’s motion in limine seeking admission of
    proffer statements are Drug Enforcement Agency (DEA) summaries of the co-defendant’s
    statements, not the statements themselves. The language of the motion, and accompanying
    presentation at oral argument, suggests an effort to introduce particular statements, but the proffer
    interview transcript does not appear in the record. To the extent Jackson moved simply to introduce
    the DEA summaries, terming them somehow as the co-defendant’s statements, those instead reflect
    double hearsay: the co-defendant’s original interview statements and the DEA agent’s summaries
    - 19 -
    of those statements as the two levels of hearsay. Jackson discussed no other basis for admitting the
    first level of hearsay.
    The parties agree -- the prosecutor definitively, and Jackson as an alternative argument to his
    contention that no agreement existed -- that the operative Kastigar agreement provided direct-use
    immunity, but not derivative-use immunity, for truthful statements. Where a defendant derives
    benefit from truthful statements, specifically avoidance of direct criminal prosecution, those
    statements rather obviously operate in his interest, rather than against his interest. The district court
    based its decision on this basic logic, finding that “[p]rovided Bennally told the truth, his statements
    could not be used against him, and thus could not be used to subject him to criminal liability.” To
    the extent Jackson sought to admit the DEA summaries under Rule 804(b)(3), those would obviously
    not qualify because, as to the first level of hearsay, the declarant (the DEA agent) had no interest at
    stake in summarizing the co-defendant’s interview statements.
    Regarding the second level of hearsay -- the interview statements themselves -- we cannot
    find, on these facts, that the district court abused its discretion in not finding possible derivative-use
    prosecution to be sufficient. “[W]hether a statement is self-inculpatory or not can only be
    determined by viewing it in context.” Williamson v. United States, 
    512 U.S. 594
    , 603 (1994).
    Statements must be evaluated on their own: “[t]he district court may not just assume . . . that a
    statement is self-inculpatory because it is part of a fuller confession, and this is especially true when
    the statement implicates someone else.” 
    Id. at 601.
    The declarant must appreciate the statement’s
    self-inculpatory character when offering the statement. Chambers v. Mississippi, 
    410 U.S. 284
    , 299
    (1973). Here, without the specific statements at issue available, no evidence suggests the co-
    defendant would have known with any certainty that he would be inculpating himself and subjecting
    - 20 -
    himself to prosecution. He offered the proffer as part of seeking a plea agreement with the
    prosecution, and all parties agree that, under the operative Kastigar letter, the co-defendant knew that
    his statements could not be used directly in any prosecution against him, as long as he told the truth.
    Jackson’s challenge is meritless.
    As to the trustworthiness of the proffer statement -- the second basis for the district court’s
    finding that the co-defendant’s statement would be inadmissible -- Jackson has not shown that the
    district court abused its discretion. The trustworthiness analysis concerns “not . . . ‘whether other
    evidence in the case corroborates what the statement asserts, but rather on whether there are
    corroborating circumstances which clearly indicate the trustworthiness of the statement itself.’”
    
    Johnson, 581 F.3d at 327
    (quoting United States v. Franklin, 
    415 F.3d 537
    , 547 (6th Cir. 2005)).
    The district court ultimately concluded that, because the co-defendant sought to curry favor with the
    prosecutor and enter a plea agreement, the statements lacked trustworthiness. Jackson suggests that
    the co-defendant’s incentive to tell the truth and lack of a relationship with Jackson and other
    corroborating evidence in the record together mean that the district court should have admitted the
    statements at issue. However, those factors would not control in all circumstances, and Jackson has
    not submitted the statements at issue.
    J.
    Jackson asserts that the district court plainly erred by admitting Exhibit 90, an exhibit that
    he contends to be a summary exhibit. The court reviews a district court’s evidentiary rulings for
    abuse of discretion. 
    Gibson, 409 F.3d at 337
    . However, if defense counsel failed to object at trial,
    the court reviews for plain error. United States v. Lopez-Medina, 
    461 F.3d 724
    , 746 (6th Cir. 2006).
    - 21 -
    The plain-error standard of review applies. Prior to trial, Jackson moved in limine to exclude
    frequency reports under Federal Rule of Evidence 1006 because the Government had not provided
    the underlying data. However, at that time, only five purported frequency exhibits stood at issue,
    and Exhibit 90 was not one of those. The district court denied the motion, subject to cross-
    examination. Later, when the United States offered Exhibit 90 into evidence, Jackson made no
    contemporaneous objection or reference to his prior motion in limine concerning frequency reports.
    Testimony by the witness had just explicitly differentiated Exhibit 90 from frequency reports, so the
    district court had no way of knowing Jackson perceived a problem. Where Jackson did not bring
    his concern to the district court’s attention, that court accordingly never had an opportunity to assess
    the contentions. Jackson now asserts that his original motion in limine, denied before trial, preserved
    the issue.
    Here, the district court did not plainly err in admitting Exhibit 90. Despite Jackson’s protests,
    Exhibit 90 does not constitute summary evidence. That exhibit -- a forty-four-page call database --
    instead provides raw data, reported by the agents compiling the various reports. As the testifying
    agent explained, “[t]he call database will list date, time, duration, and the number dialed, subscriber
    name for each day that the request is made.” Had the United States sought to introduce a summary
    of the call database, then the government would potentially have been required to produce the
    database for Jackson.
    K.
    Finally, Jackson argues that insufficient evidence supported his conspiracy conviction.
    Because Jackson failed to move for judgment of acquittal pursuant to Federal Rule of
    Criminal Procedure 29, we only look for “manifest miscarriage of justice” because the “record is
    - 22 -
    devoid of evidence pointing to guilt.” United States v. Smith, 239 F. App’x 157, 159 (6th Cir. 2007)
    (quoting United States v. Abdullah, 
    162 F.3d 897
    , 903 (6th Cir. 1998) (internal quotation marks
    omitted)).
    No manifest miscarriage of justice occurred when the jury found Jackson guilty of conspiracy
    to possess marijuana with the intent to distribute. To prove participation in a drug conspiracy in
    violation of 21 U.S.C. § 846, the government must establish “(1) an agreement to violate drug laws,
    (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.” United
    States v. Welch, 
    97 F.3d 142
    , 148 (6th Cir. 1996) (citing United States v. Sanchez, 
    928 F.2d 1450
    ,
    1457 (6th Cir. 1991)).
    Jackson represented Clark in meeting marijuana deliveries, providing payment, and taking
    possession of the deliveries. Officers observed Jackson’s attempted participation when Jackson met
    a truck carrying more than 1000 pounds of marijuana and directed the truck to a second location
    before fleeing when he perceived law enforcement surveillance. Numerous calls took place between
    Jackson and Clark before and after that attempted delivery. This evidence demonstrates that no
    manifest miscarriage of justice occurred when the jury found Jackson guilty.
    III.
    The convictions on all counts excepts Counts One and Two for Clark are AFFIRMED for
    Clark and Jackson. Counts One and Two are VACATED against Clark only. The remainder of the
    convictions for Clark and Jackson are REMANDED to the district court for resentencing.
    - 23 -
    

Document Info

Docket Number: 07-1191

Citation Numbers: 454 F. App'x 435

Filed Date: 12/29/2011

Precedential Status: Non-Precedential

Modified Date: 1/12/2023

Authorities (40)

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