United States v. Clark

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Clark No. 03-5431 ELECTRONIC CITATION: 2004 FED App. 0324P (6th Cir.) File Name: 04a0324p.06 Piper, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X CLAY, Circuit Judge. Defendant Steven Clark appeals his conviction and sentence on two counts of knowingly, Plaintiff-Appellee, - intentionally and without authority distributing cocaine base - - No. 03-5431 (crack), a Schedule II controlled substance, in violation of v. - 21 U.S.C. § 841(a)(1). He argues that the district court erred > when it (1) refused to authorize the expenditure of funds for , a clinical psychologist to assist in the guilt and sentencing STEVEN G. CLARK, - Defendant-Appellant. - phases of his trial; (2) refused to compel the government to produce a copy of notes prepared by an FBI Agent who had N interrogated Defendant after his arrest; (3) refused to grant a Appeal from the United States District Court mistrial for the government’s alleged failure to comply with for the Eastern District of Tennessee at Winchester. FEDERAL RULE OF CRIMINAL PROCEDURE 16 by failing to No. 02-00014—R. Allan Edgar, Chief District Judge. produce the agent’s notes in a timely manner; (4) refused to grant a downward departure in his sentence for his purported Submitted: August 3, 2004 diminished capacity; and (5) ordered Defendant’s sentence to run consecutively to the term of his imprisonment on his state Decided and Filed: September 23, 2004 law offenses. For the reasons that follow, we AFFIRM Defendant’s convictions, but REMAND to the district court Before: CLAY and GILMAN, Circuit Judges; MATIA, for consideration of whether Defendant’s term of Chief District Judge.* imprisonment on his federal conviction should run concurrently or consecutively to his state law convictions. _________________ I. COUNSEL Facts ON BRIEF: M. Keith Davis, AUSTIN, DAVIS & On June 16, 2000, after a confidential informant (“CI”) had MITCHELL, Dunlap, Tennessee, for Appellant. Perry H. been searched for contraband and equipped with a recording device, an undercover agent accompanied the CI to the residence of Tim Knox in Shelbyville, Tennessee. Defendant * Steven Clark sold crack cocaine to the CI in exchange for The Honorable Paul R. Matia, Chief United States District Judge for $200 in pre-recorded funds. The CI relinquished the the Northern District of Ohio, sitting by designation.

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recording device and 0.5 grams of crack cocaine to the agents. from a mental disease or deficit that rendered him mentally Similarly, on October 13, 2000, after a CI had been searched incompetent to understand the judicial proceedings or assist for contraband and equipped with a recording device, an in his defense, whether he was insane at the time of the undercover agent accompanied the CI to McGee’s Trailer offenses charged, whether there were any factors that shed Park, also in Shelbyville. The CI entered a trailer and found light on the voluntariness of any statement against interest Defendant in the living room. Defendant sold crack cocaine given by Defendant, and whether there were mental to the CI in exchange for $100 in pre-recorded funds. The CI conditions that might mitigate Defendant’s culpability related relinquished the recording device and 0.4 grams of crack to trial or sentencing issues. cocaine to the agents. At the time of these drug transactions, Defendant was on probation for state charges of sale of Defendant was evaluated by Dr. Richard DeMier, a clinical cocaine under 0.5 grams, theft over $500, bail jumping, psychologist, over a period of months, culminating in a report simple possession of marijuana, and driving on a revoked generated on August 27, 2002. Dr. DeMier’s report made the license. His state probation terms were subsequently revoked following findings: Defendant grew up with both parents, but on various dates in 2001, and he was ordered to serve a series his father was “very abusive.” His IQ is between 77 and 88, of prison terms expiring in August of 2010. he dropped out of school at age 15, and he has learning disabilities. He has posttraumatic stress disorder (“PTSD”) as On March 13, 2002, the federal grand jury for the Eastern a result of being shot 17 times as an 18 year-old; symptoms District of Tennessee returned a two-count indictment, include intrusive memories, flashbacks, and nightmares. He charging that on or about October 13, 2000 and June 16, also has a history of drug and alcohol abuse. Prior to his 2000, Defendant knowingly, intentionally and without incarceration, he regularly used crack cocaine. authority distributed cocaine base (crack), a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). In addition to the PTSD, Dr. DeMier diagnosed Defendant On March 18, 2002, Defendant was arrested as a result of the as having a psychotic disorder. Defendant was prescribed indictment and, after being retrieved from the Rutherford antipsychotic and anti-anxiety medications, to which his County Jail, was interviewed by FBI Special Agent Richard symptoms responded. Dr. DeMier concluded that “it is most Poff and Agent Tim Lane of the Tennessee 17th Judicial likely that he does not have a genuine psychotic illness at this District Drug Task Force. During that interview, Defendant time,” although he speculated that more psychotic symptoms purportedly admitted to selling crack cocaine in the might appear if Defendant discontinued his antipsychotic Shelbyville, Tennessee area and also identified his drug medication. Thus, Dr. DeMier diagnosed Defendant with suppliers. only PTSD, which would not preclude Defendant’s ability to understand the nature and potential consequences of the On May 13, 2002, Defendant, through court-appointed charges against him or hinder his capacity to assist properly counsel, moved for a psychiatric examination to determine his in his defense. competency to stand trial, his ability to make a voluntary confession and whether there existed any factors that might A separate report from Dr. DeMier indicated that Defendant mitigate his culpability at trial or sentencing. With the denied the allegations in the indictment, to wit, that he had concurrence of the government, the magistrate judge referred sold crack cocaine to a confidential informant on June 16 and Defendant to the U.S. Medical Center for Federal Prisoners, October 13, 2000. Although Defendant acknowledged being requesting opinions regarding whether Defendant suffered a cocaine user, he claimed he was not a seller. He said that No. 03-5431 United States v. Clark 5 6 United States v. Clark No. 03-5431

the police had used high pressure tactics during his not have done demonstrated his mental illness and, by interrogation, that he was told he should “help himself,” and extension, the involuntary nature of his confession. that he was led to believe that if he cooperated, he would receive better treatment. Defendant also told the psychologist At the suppression hearing, Agent Poff testified that that he had requested an attorney at least four times during his Defendant had admitted to the agents that he began selling interrogation, but that they denied his request. crack cocaine to support his own cocaine habit. Defendant also allegedly told them that he was dating a woman in Dr. DeMier concluded that Defendant had no mental illness Shelbyville, Tennessee, and that he would travel to or cognitive deficit that would have hindered his ability to Shelbyville each weekend to sell crack cocaine. Poff stated, give a statement freely and voluntarily to the police. Dr. “He began dating her around February or March of 2000. DeMier further found that Defendant’s PTSD and his possible And he continued to come down to Shelbyville to sell crack auditory hallucinations would not have had any impact on his cocaine through August of 2001 when he was arrested on a ability to consider his actions and make a reasoned decision probation violation.” Poff also stated that he took to cooperate or refuse to cooperate during the police contemporaneous notes of the interview, which he later interview. Dr. DeMier also noted that Defendant’s mental summarized on a Form FD-302. The Form FD-302 stated, health needs could be met in or out of prison and thus should “CLARK advised he sold crack cocaine in Shelbyville from have little impact on his sentence if convicted. March 2000 through August 2001….”1 The FD-302 made no reference to the locations of the two crack cocaine sales After the evaluation, Defendant filed a waiver of his mental charged in the indictment. The court ultimately denied competency hearing under 42 U.S.C. §§ 4241(c) and 4247(d). Defendant’s motion to suppress. Later, Defendant filed a The court determined that Defendant was not currently motion to compel the government to produce copies of any suffering from a mental disease that would render him unable notes taken by law enforcement agents during their to understand the nature and consequences of the proceedings interrogation of Defendant as well as “any other rough notes against him or to properly assist in his defense. made by such agents,”2 but the court denied this motion without explanation. Defendant subsequently filed a motion to suppress the post- arrest statement he had given to Agent Poff and Agent Lane. Defendant argued that his purported admission to the agents that he had been buying and selling crack cocaine in the 1 Shelbyville, Tennessee area from March, 2000 through On cross-examination, Agent Poff testified that he had learned that August, 2001 had not been provided knowingly, voluntarily there was a p eriod of time from December, 2000 through May, 2001, and intelligently because of his untreated mental illness and during which Defendant had been incarcerated and, therefore, could not have been engag ing in drug dealing activity. low intelligence. Defendant’s attorney pointed out that Defendant had been incarcerated in a county jail from 2 The court had issued a discovery and scheduling order on March 21, December 13, 2000 until the beginning of May, 2001, and, 2002. Paragraph B .1 of the order stated that “[u]pon request of the therefore, it was not possible that Defendant had sold all of defendant, the government shall permit the defendant to inspect and the crack cocaine he allegedly had confessed to selling. copy… [t]he substance of any oral statement made by the defendant before According to Defendant, his admission to something he could or after his arrest in response to interrogation by a then known to be government agent which the government intends to offer in evidence at trial.” No. 03-5431 United States v. Clark 7 8 United States v. Clark No. 03-5431

A few weeks before trial, Defendant submitted the report of Trial commenced on December 10, 2002. As to psychologist Dr. David A. Solovey, who had conducted a Defendant’s post-arrest interview, Agent Lane testified that preliminary mental evaluation of Defendant at a cost of $300. he had read Defendant his Miranda rights before Agent Poff According to Dr. Solovey’s report, Defendant was competent, interviewed him, and that Defendant consented to the he understood the charges against him and the possible interview without the presence of an attorney. He also signed penalties he faced, and he could properly assist in his own a waiver of rights. He stated that Agent Poff then explained defense. Although finding that Defendant had PTSD and to Defendant that he had been indicted on two counts of psychosis during the time he allegedly committed the charged distributing cocaine base on the two specific dates charged in offenses, Dr. Solovey stated that “the degrees of these the indictment. disturbances were not at a level to satisfy the criteria necessary to eliminate criminal responsibility.” Dr. Solovey Agent Poff testified that he informed Defendant that he had further indicated, however, that there were “several factors been indicted on federal charges as a result of controlled crack that create questions regarding his statements made during his cocaine purchases at two separate locations in Shelbyville, initial questioning” and that several matters “require[d] one being the residence of Tim Knox, and the other being further evaluation and record review to validate,” including McGee’s Trailer Park. Agent Poff added, “Mr. Clark advised Defendant’s assertion that his interrogation continued despite us that he did sell crack cocaine from those locations.” When his request for an attorney; the potential unreliability of many asked on cross-examination why Defendant’s admission of his statements due to his mental state; and Defendant’s regarding the locations of the drug sales did not appear in the admission to several things he could not have done. Dr. FD-302 interview summary Poff had prepared, Poff stated Solovey concluded that these issues could be relevant to that the information was contained in his rough interview Defendant’s defense, but that he would have to spend another notes upon which he had based the FD-302. He further 12 hours (including 3 hours of court time), at a cost of $1,800, explained that the location of the drug sales did not appear in to provide a complete assessment of Defendant. the FD-302 because it was only a narrative summary “designed to determine how much crack cocaine he was Based on Dr. Solovey’s report, Defendant filed a motion selling and where he was getting the crack cocaine he was requesting expert services from Dr. Solovey in excess of selling.” Also, Poff did not believe Defendant’s admission $1,000, which the court denied. The court noted that both regarding the locations of the drug transactions was worthy of Dr. DeMier (the clinical psychologist from the Bureau of mention in the FD-302 because the CI’s tape recordings Prisons) and Dr. Solovey had found Defendant competent. confirmed that Defendant had sold crack cocaine from the The court found that Defendant had not demonstrated that Dr. two locations. Solovey’s services were necessary to show that his statement to law enforcement had been involuntary. Indeed, the court At that point, Defendant’s counsel broke off his cross- previously had held, in connection with his motion to examination and moved for a mistrial because Agent Poff’s suppress, that his statement had been voluntary. The court rough notes had not been produced before trial, even though further noted that if voluntariness became an issue at trial, the Defendant specifically had requested them. The government jury would be able to decide the issue without an opinion offered to provide Defendant with the notes, but Defendant’s from Dr. Solovey. The court found that his testimony would counsel insisted he should have known about the notes prior not assist the trier of fact in accordance with Daubert v. to trial because the notes could have affected Defendant’s Merrell Dow Pharm. Co., 509 U.S. 517 (1993). decision to go to trial in the first place. The court offered to No. 03-5431 United States v. Clark 9 10 United States v. Clark No. 03-5431

take Defendant’s guilty plea then and there and indicated that The court denied Defendant’s motion, holding that the Defendant could cross-examine Agent Poff on the notes, but evidence of Defendant’s guilt was overwhelming, especially ultimately denied the motion for a mistrial. in light of the testimony of the confidential informant who had purchased crack cocaine from Defendant – testimony that When the trial resumed, Defendant’s counsel cross- was corroborated by audio tapes of the transactions. In examined Agent Poff on the omission of the location addition, Defendant confessed to selling crack, although he information from the FD-302. Agent Poff again explained apparently was not asked if he had sold it on the particular that the FD-302 had failed to mention Defendant’s admission occasions in question. to selling crack cocaine from the locations of the two charged drug sales because the focus of the interview was not the The court rejected any error with regard to the alleged non- specifics of those drug sales, but rather the quantity of the disclosure of Agent Poff’s notes containing Defendant’s crack cocaine involved and the identity of Defendant’s statement about the locations of the crack sales to which he suppliers. had admitted. Although the court conceded that, “as a technical matter,” Agent Poff’s notes should have been A jury found Defendant guilty on both counts of the disclosed pursuant to FED . R. CRIM . P. 16(a)(1)(A), and that indictment on December 11, 2002, and Defendant moved for the court had erred in not compelling the production of those a new trial shortly thereafter. As grounds, Defendant argued notes, the court found that Defendant had suffered no that his convictions were against the great weight of the prejudice. “[M]ost of the essentials” had been disclosed in evidence. Defendant also argued that the court had erred the Form 302 and during the suppression testimony. In any when it permitted Agent Poff to testify regarding a statement event, the reference concerning the transaction taking place at Defendant gave during his interrogation. According to Agent Tim Knox’s trailer was not exculpatory. The court held that Poff’s testimony, Defendant stated that Defendant admitted there was no evidence that had Defendant known that Poff to selling crack cocaine from Tim Knox’s trailer; this fact was would testify about the precise location of either of the crack not included in the narrative summary of the interview Agent sales, the results of his trial would have been any different. Poff had prepared and that was provided to Defendant, but was included in Poff’s rough notes upon which the summary Finally, the court rejected Defendant’s contention that a was based. According to Defendant, he had requested Poff’s new trial was warranted for the court’s failure to authorize rough notes during discovery and was prejudiced by the additional expenditures for Dr. Solovey’s services. The court government’s refusal to turn them over and the court’s denial noted that Dr. Solovey, like Dr. DeMier before him, had of Defendant’s motion to compel their production. Defendant concluded that Defendant was competent to stand trial. further argued that the court erred when it refused to grant his Although Dr. Solovey did identify several factors that could motion authorizing funds to retain a psychologist to determine have impacted the voluntariness of Defendant’s statement to the voluntariness of Defendant’s confession; the court erred Agent Poff, “Dr. Solovey was never called to provide any of when it refused to continue the trial to permit a psychological this information to the jury.” Dr. Solovey wanted more examination of Defendant; and the court erred when it denied money before he would investigate these additional factors. Defendant’s motion for a mistrial after it was determined that Quoting United States v. Gilmore, 282 F.2d 398, 406 (6th Cir. the government had not fully responded to his discovery 2002), the court concluded that Defendant had not requests. demonstrated that “‘(1) such services are necessary to mount a plausible defense, and (2) without such authorization, the No. 03-5431 United States v. Clark 11 12 United States v. Clark No. 03-5431

defendant’s case would be prejudiced.’” The court further Defendant also argued that the district court should not concluded that Dr. Solovey’s testimony would not have impose a prison sentence running consecutively to his state assisted the trier of fact. court prison term, which will not expire until 2010. Defendant argued that his criminal history points (20) already Defendant also moved for authorization to retain an expert, took into account his prior state convictions. Were it not for at a cost in excess of $1,000, to assist him at his sentencing his criminal history, his guidelines range would have been hearing in order to determine the applicability of any between 21 and 27 months, instead of the 46 to 57 month mitigating factors. In response, the court referred to Dr. range stemming from his criminal history and the fact that he DeMier’s report, which had found that “whatever the had committed the offense while on probation. Defendant defendant’s medical status may be, any argument that it argued that a consecutive sentence effectively amounted to a should reduce his culpability is a moral and legal question, “double penalty” for his federal convictions. The court rather than a psychological one.” The court also referred to pointed out that if Defendant were not sentenced the report of Defendant’s expert, Dr. Solovey, which listed consecutively, there would be no incremental increase in his numerous factors that may be relevant to mitigation. The prison term for the federal sentence. court found that it already had enough information regarding Defendant’s mental status to make an informed decision The court denied the motion for downward departure, about his sentence, further noting that mental and emotional holding that Defendant did not have diminished capacity and conditions are not ordinarily relevant in determining whether because his prior criminal record evidenced continued a sentence should be outside the guidelines range. The court disrespect for the law. Citing GUIDELINES § 5G1.3, therefore denied Defendant’s motion. application note 6, the court noted that the sentence for Defendant’s offense “should” be imposed to run Defendant then moved for a downward departure. consecutively to the term imposed for the violation of the Defendant argued that U.S. SENT ENCING GUIDELINES probation. The court sentenced Defendant at the top of the MANUAL (hereafter “GUIDELINES”) § 5K2.3 authorizes a GUIDELINES range – 57 months – to run concurrently on both sentence below the applicable range if the Defendant counts, but consecutively to his state sentence. Defendant committed the offense while suffering from a significantly timely appealed. reduced mental capacity. Defendant cited to his low IQ, his PTSD, latent syphilis, and paranoid schizophrenia. Defendant II. further argued that he was entitled to a downward departure Refusal to Authorize Additional Funds for Psychologist pursuant to GUIDELINES § 5K2.0 because he had an abusive at Trial and Sentencing father, a history of drug and alcohol abuse, a history of mental illness, and because his brother, who also had been arrested Counsel for a defendant who is financially unable to obtain for a similar offense, was placed on a diversion program.3 expert services “necessary for adequate representation may request them in an ex parte application.” 18 U.S.C.A. § 3006A(e)(1). Such a defendant must show that the services 3 are “necessary to mount a plausible defense” and “without Although only age 25 at the time of his indictment, Defendant such authorization, the defendant’s case would be already had a lengthy list of prior convictions and arrests for a variety of prejudiced.” United States v. Gilmore, 282 F.3d 398, 406 state law offenses, including sale of cocaine, theft, bail jumping, possession of marijuana , and d riving on a revoked license. (6th Cir. 2002). We review the decision of the trial court No. 03-5431 United States v. Clark 13 14 United States v. Clark No. 03-5431

denying a request for expert services for abuse of discretion. mental illness or cognitive deficit that would have hindered Id. Defendant argues that the district court erred when it his ability to give a statement freely and voluntarily to the refused to authorize the expenditure of more than $1,000 for police, the court reasonably concluded that Dr. Solovey’s the services of psychologist Dr. David Solovey. For the services were not necessary to establish a plausible defense to reasons set forth below, we hold that the district court did not Defendant’s post-arrest statements, but instead would have abuse its discretion in finding that Dr. Solovey’s services amounted to a psychological “fishing expedition.” United were unnecessary. States v. Alden, 767 F.2d 314, 318 (7th Cir. 1984) (affirming denial of appointment of psychiatrist at trial to support Dr. Solovey’s preliminary examination of Defendant (at a insanity defense; holding that it was appropriate for the court-authorized cost of $300) found that Defendant was district court to rely on initial psychiatric evaluations competent, that he understood the charges against him and the conducted at prison which found the defendants sane and possible penalties he faced, and that he could properly assist competent to stand trial); see also Gilmore, 282 F.2d at 406 in his own defense. Although finding that Defendant suffered (“A district court need not grant a[] defendant’s motion under from PTSD and psychosis during the time he committed the § 3006A on the off chance that the requested services might charged offenses, Dr. Solovey concluded that “the degrees of turn up something.”). these disturbances were not at a level to satisfy the criteria necessary to eliminate criminal responsibility.” Dr. Solovey’s Even assuming that the district court erred, its error was conclusions were virtually identical to those of Dr. DeMier, harmless because of the overwhelming evidence of a clinical psychologist from the Bureau of Prisons, who Defendant’s guilt. See United States v. Neuroth, 809 F.2d similarly had found that Defendant’s mental condition did not 339, 342 (6th Cir. 1987) (“An error, not of constitutional inhibit his ability to understand the nature and potential dimension, is harmless unless it is more probable than not that consequences of the charges against him or hinder his the error materially affected the verdict.”) (citations omitted). capacity to assist properly in his defense. As noted, Defendant was caught on audio tape selling crack cocaine to a confidential informant on the two occasions Dr. Solovey’s preliminary report also hinted that additional charged in the indictment. Although a drug addict and ex- evaluation of Defendant may have yielded relevant convict himself, the confidential informant confirmed information regarding the voluntariness of Defendant’s Defendant’s identity and the nature of the drug transactions at statement to FBI Agent Poff on the day of his arrest. The trial. Thus, even assuming that Defendant’s statement to report referred to “several factors that create questions Agent Poff had been involuntary, we hold that it is not more regarding his statements made during his initial questioning” probable than not that Defendant would have avoided a guilty and that several matters “require[d] further evaluation and verdict. See United States v. Smith, 987 F.2d 888, 892 (2d record review to validate,” including Defendant’s assertion Cir. 1993) (holding that the erroneous denial of a that his interrogation continued despite his request for an psychiatrist’s services to support duress defense was harmless attorney; the potential unreliability of many of his statements error because of the “abundant” evidence of the defendant’s due to his mental state; and Defendant’s admission to several guilt established that the availability of a psychiatric expert things he could not have done. But the “questions” and would not have altered either the verdict or his sentence). unvalidated matters to which Dr. Solovey hinted were little more than speculation. Because the district court already had For similar reasons, we hold that the district court did not the benefit of Dr. DeMier’s conclusion that Defendant had no abuse its discretion when it refused to authorize expenditures No. 03-5431 United States v. Clark 15 16 United States v. Clark No. 03-5431

for Dr. Solovey’s assistance at sentencing. The court had the We review alleged violations of Rule 16 of the FEDERAL benefit of detailed reports from Dr. DeMier and Dr. Solovey. RULES OF CRIMINAL PROCEDURE for abuse of discretion. Dr. DeMier’s report concluded that “whatever the defendant’s United States v. Tarwater, 308 F.3d 494, 515 (6th Cir. 2002). medical status may be, any argument that it should reduce his Assuming, arguendo, that a Rule 16 violation occurred, we culpability is a moral and legal question, rather than a also review said violation for harmless error. FED . R. CRIM . psychological one.” Dr. Solovey’s report reached no medical P. 52(a) (“Any error, defect, irregularity, or variance that does conclusion on this point, merely referring to eighteen “factors not affect substantial rights must be disregarded.”). “An to address the question of mitigation” that “could be error, not of constitutional dimension, is harmless unless it is considered relevant.” Accordingly, we agree with the district more probable than not that the error materially affected the court’s conclusion that it already had enough information verdict.” Neuroth, 809 F.2d at 342. regarding Defendant’s mental status to make an informed decision about his sentence. The government argues that no Rule 16 violation occurred because Rule 16(a)(1)(A) of the FEDERAL RULES OF III. CRIMINAL PROCEDURE requires the government to disclose Denial of Defendant’s Motion to Compel Officer’s only the “substance” of the defendant’s oral statements that “Rough” Notes of Post-Arrest Interview the government intends to use at trial and that it disclosed the substance by producing Agent Poff’s interview summary. Defendant argues that the trial court abused its discretion The government, however, ignores Rule 16(a)(1)(B)(ii), when it refused to compel the pre-trial disclosure of the notes which additionally requires the disclosure of “the portion of taken by Agent Poff during Defendant’s post-arrest interview. any written record containing the substance” of such an oral For the reasons that follow, we disagree. statement. This rule imposes a more specific disclosure obligation than Rule 16(a)(1)(A), and Agent Poff’s notes, by The FEDERAL RULES OF CRIMINAL PROCEDURE require the definition, constitute a portion of a written record containing government, upon the defendant’s request, to produce “the the substance of Defendant’s interview. Accordingly, the portion of any written record containing the substance of any government violated Rule 16 by failing to turn over Agent relevant oral statement made before or after arrest if the Poff’s rough notes upon Defendant’s request. defendant made the statement in response to interrogation by a person the defendant knew was a government agent.” FED . But, as the district court concluded, Defendant suffered no R. CRIM . P. 16(a)(1)(B)(ii). Agent Poff’s so-called “rough prejudice simply from the fact that the notes were produced notes” of Defendant’s interrogation qualify as such a written during trial, as opposed to before trial. As noted, Agent record. They contain, in writing, the substance of Poff’s rough notes reflected Defendant’s statement that the Defendant’s post-arrest oral statement made to Agent Poff crack sales charged in the indictment had occurred at Tim after Poff had told Defendant that he had been indicted on two Knox’s residence and at McGee’s Trailer Park. Although this counts of crack cocaine distribution. Moreover, Defendant statement was not reflected in Agent Poff’s narrative report of requested the production of these notes. The government did Defendant’s interview (the FD-302), which was produced pre- not produce them upon Defendant’s request, and the district trial, this statement was not exculpatory. In fact, it was court specifically denied Defendant’s motion to compel their inculpatory because it directly linked Defendant to the production. Accordingly, Defendant arguably suffered a Rule locations of the drug transactions charged in the indictment. 16 violation that the district court failed to remedy. Because it was inculpatory, the statement’s nondisclosure did No. 03-5431 United States v. Clark 17 18 United States v. Clark No. 03-5431

not materially affect Defendant’s guilty verdict. But even if sales, “perhaps he would have reevaluated his decision to it did, when the issue arose at trial, the trial court compelled forego the timely entry of a guilty plea”) (emphasis added). the disclosure of Agent Poff’s notes and permitted Defendant We therefore find that the government’s Rule 16 violation the opportunity to cross-examine Agent Poff on the notes. was harmless error. Moreover, the independent evidence of Defendant’s presence at the location referenced in Agent Poff’s notes was IV. overwhelming. Defendant has not argued that the mid-trial Denial of Defendant’s Motion for Mistrial disclosure of Agent Poff’s rough notes resulted in a due process violation on the ground that he did not have adequate Rehashing his Rule 16 argument, Defendant argues that the time to prepare his defense. district court should have declared a mistrial because it admitted Agent Poff’s testimony concerning his rough notes, Defendant nevertheless argues that the inculpatory nature which were not produced prior to the commencement of trial, of the statement shows prejudice because he purportedly was in violation of FED . R. CRIM . P. 16.4 We review the denial of not able to make an informed decision to enter a guilty plea a motion for a mistrial for abuse of discretion. United States (and possibly accept a sentence reduction for acceptance of v. Ursery, 109 F.3d 1129, 1133 (6th Cir. 1997). A new trial responsibility rather than proceed to trial). See United States is not required unless “substantial rights” are affected. United v. Hernandez-Muniz, 170 F.3d 1007, 1010 (10th Cir. 1999) States v. Bond, 12 F.3d 540, 554 (6th Cir. 1993) (citing FED . (“Rule 16 is designed to provide the defendant with sufficient R. CRIM . P. 52(a)). We hold that the district court did not information to make an informed decision about a plea, to abuse its discretion. allow the court to rule on admissibility motions before trial, to minimize prejudicial surprise at trial, and to generally Agent Poff’s summary narrative of Defendant’s increase the efficiency of litigation.”) (citing FED . R. CRIM . P. interrogation (the Form FD-302) did not reflect Defendant’s 16 advisory committee’s note to the 1974 amendment). As alleged statement that he had participated in crack sales at the the district court pointed out, however, the “essentials” of two specific locations charged in the indictment. Defendant Defendant’s inculpatory statements to Agent Poff were argues that he was not on notice that Agent Poff might give disclosed prior to trial in the form of the FBI Form FD-302 trial testimony to this effect for two reasons: (1) the report, and Agent Poff had discussed Defendant’s confession government refused to produce his rough notes (and the during a suppression hearing. There is no evidence that had court’s refusal to compel their pre-trial disclosure) and Defendant known that Agent Poff’s rough notes referred to (2) Agent Poff did not refer to this statement at Defendant’s the precise location of either of the crack sales, he would have pre-trial suppression hearing. pled guilty prior to trial and received a lesser sentence. To the contrary, the location of the charged crack sales was a non- issue in the case because there was uncontested audiotape 4 Defendant has not argued that the government’s nondisclosure of evidence, authenticated at trial by a confidential informant Agent Poff’s notes am ounted to a violation of Brady v. Mary land, 373 and law enforcement witnesses, proving that Defendant had U.S. 83 (1 963 ). Cf. United States v. Aguwa, 123 F.3d 418, 42 2 (6th Cir. sold crack cocaine at those locations. Defendant’s argument 1997) (finding that government’s failure to turn over “agents’ raw notes is simply too speculative to justify a new trial. See Def’s Br. of events in question” was not tantamount to a Brady violation because at 27 (arguing that had Defendant known of Agent Poff’s the notes contained no exculpatory information, and, in fact, were highly incriminating and because the content of the notes was “largely reflected notes corroborating his presence at the locations of the drug in [the agents’] trial testimony, which directly implicated the defendant”). No. 03-5431 United States v. Clark 19 20 United States v. Clark No. 03-5431

“Rule 16 does not require federal courts to exclude optimally allow the admission of the probative evidence while evidence not turned over to the discovering party in violation insuring that the opposing party has adequate time to prepare of a discovery order.” United States v. Bartle, 835 F.2d 646, for it.”). 649 (6th Cir. 1987) (emphasis in original). Rule 16 provides, “If a party fails to comply with this rule, the court Even assuming that willful violations of Rule 16 mandate may…prohibit that party from introducing the undisclosed a mistrial, there is no evidence in this case that the evidence[] or…enter any other order that is just under the government willfully violated Rule 16. Although the circumstances.” FED . R. CRIM . P. 16(d)(2) (emphasis added). government failed to respond to Defendant’s discovery Thus, the district court did not necessarily abuse its discretion request for Agent Poff’s notes, thereby necessitating by failing to declare a mistrial due to the government’s failure Defendant’s motion to compel, the district court itself placed to turn over Agent Poff’s rough notes prior to trial. its imprimatur on the government’s purported willful nondisclosure by denying Defendant’s motion. Defendant’s Defendant argues that a mistrial must be granted when there only other evidence of willfulness is his assertion that Agent is evidence that the government willfully withheld the Poff, who is a long-term FBI agent and holds a law degree, information that is the subject of the Rule 16 violation. There improperly excluded Defendant’s statement about the is dicta in some of our cases that arguably supports this locations of the drug transactions from the FD-302. The viewpoint. See United States v. Muhammad, 948 F.2d 1449, evidence at trial showed, however, that Poff did not include 1454-55 (6th Cir. 1991) (“[W]e find that absent a showing of the location information in the narrative because the focus of some impropriety or willfulness by the government, it was the narrative was how much crack cocaine Defendant was within the district court’s discretion to admit” the statement selling and its source. Agent Poff also explained that he the defendant allegedly had made to the testifying police already knew from the tape recordings of the confidential officer.); see also Bartle, 835 F.2d at 649 (holding that the informant that Defendant had sold crack cocaine from the two trial court was not required to exclude evidence withheld in locations covered by the indictment, so there was no violation of Rule 16 because there was “absolutely no particular reason to reference this fact in the FD-302. This evidence that the government engaged in any deceitful evidence shows that the government’s Rule 16 violation was conduct in keeping the” information from the defendant). It not willful. The denial of Defendant’s motion for a mistrial is questionable, however, whether Rule 16 requires a mistrial is therefore affirmed. even in cases of willful non-disclosure. The plain language of Rule 16(d)(2) is discretionary; it carves out no mandatory V. sanctions for willful violations. Accordingly, the general rule Failure to Grant a Downward Departure Per that “the appropriate sanction, if any, for a failure to comply GUIDELINES § 5K2.13 with Rule 16 is left to the ‘sound discretion of the trial court,’” Muhammad, 948 F.2d at 1454-55 (quoting United Defendant requested, but the district court denied, a States v. Glover, 846 F.2d 339, 342 (6th Cir. 1988)), should downward departure pursuant to GUIDELINES § 5K2.13, for apply even to willful violations. Here, the district court dealt with the Rule 16 violation appropriately by compelling disclosure of the notes and affording Defendant an opportunity for cross-examination. See Bartle, 835 F.2d at 650 (“Rule 16(d)(2)… provides for a variety of remedies that No. 03-5431 United States v. Clark 21 22 United States v. Clark No. 03-5431

his purported diminished capacity.5 Defendant argues that the was imposed as a result of an incorrect application of the district court abused its discretion by disregarding the facts sentencing guidelines. 18 U.S.C. § 3742(a). Because that (1) Defendant was not being treated with antipsychotic Defendant does not assert either of these two grounds, the medication at the time of his offenses; (2) Defendant suffers only way his appeal is cognizable is if he can show that the from PTSD and was being treated for paranoid schizophrenia; district court believed it lacked the authority to grant a and (3) Defendant has a low IQ. The district court’s refusal downward departure. As this Court has stated: to grant a downward departure, however, is not reviewable. Generally, a court’s failure to exercise its discretion and A criminal defendant may appeal a sentence in four grant a downward departure is not reviewable. See, e.g., circumstances, only two of which are relevant here: (1) if the United States v. Landers, 39 F.3d 643, 649 (6th sentence was imposed in violation of law or (2) the sentence Cir.1994). An appellate court may only review a denial of a motion for a downward departure if the district court judge “incorrectly believed that [he] lacked any authority 5 to consider defendant’s mitigating circumstances as well G UIDELINES § 5K 2.13 p rovides: as the discretion to deviate from the guidelines.” Id. A sentence below the applicable guideline range may be (citation omitted). warranted if (1) the d efendant committed the o ffense while suffering from a significantly reduced mental capacity; and (2) United States v. Coleman, 188 F.3d 354, 357 (6th Cir. 1999). the significantly reduced mental capa city contrib uted substantially to the commission of the offense. Similarly, if a A court’s failure to grant a downward departure is not departure is warranted under this policy statement, the extent of reviewable even if based on clearly erroneous findings of fact. the departure should reflect the extent to which the reduced See United States v. Watkins, 179 F.3d 489, 501 (6th Cir. mental capacity contributed to the commission of the offense. 1999) (“Even if the finding were clearly erroneous, the district court's failure to depart downward still would not be However, the court may not de part b elow the applicab le guideline range if (1) the sign ificantly red uced mental capacity appealable[,] …as long as the guideline range was properly was caused by the volun tary use of drugs or o ther intoxicants; computed, the district court was not unaware of its discretion (2) the facts and circum sta nces of the defenda nt's offense to depart from the guideline range, and the sentence was not indicate a need to protect the public because the offense involved imposed in violation of law or as a result of an incorrect actual violence or a serious threat of violence; (3) the defenda nt's application of the guidelines….”) (citing 18 U.S.C. § 3742(a); criminal history ind icates a need to incarcerate the defendant to protect the public; or (4) the defendant has been convicted of an United States v. Davis, 919 F.2d 1181, 1187 (6th Cir. 1990)). offense under chapter 71, 109A, 110, or 117, of title 18, United States Code. “The Court reviews de novo the issue of whether the district court was aware of its authority to depart downward.” United The App lication Note p rovides: States v. Smith, 278 F.3d 605, 609 (6th Cir. 2002) (citing Koon v. United States, 518 U.S. 81, 100 (1996); United States For purposes of this policy statement – v. Ebolum, 72 F.3d 35, 37 (6th Cir.1995)). The Court “Significantly reduced mental capa city” means the d efendant, presumes that the district court understood its discretion to although convicted, has a significantly impaired ability to (A) depart, “absent clear evidence in the record to the contrary.” understand the wrongfulness of the behavior comprising the United States v. Crouch, 288 F.3d 907, 910 (6th Cir. 2002) offense or to exercise the p ower of reason; or (B) control (citing United States v. Ford, 184 F.3d 566, 585 (6th behavior that the defendant kno ws is wro ngful. No. 03-5431 United States v. Clark 23 24 United States v. Clark No. 03-5431

Cir.1999)). There is no evidence in this case that the district 18 U.S.C. § 3553(a).6 GUIDELINES § 5G1.3, application note court did not understand its discretion to depart downward. 3. Defendant argues that the district court’s imposition of a Indeed, Defendant does not argue this point, only that the consecutive sentence was erroneous because it did not court failed to exercise its discretion properly. Accordingly, consider any of these factors. we reject Defendant’s appeal of the court’s failure to grant a downward departure. The court relied exclusively on Application Note 6 to GUIDELINE§ 5G1.3, which provides, in part: VI. Consecutive versus Concurrent Sentences under If the defendant was on federal or state probation, parole, GUIDELINES § 5G1.3 or supervised release at the time of the instant offense, and has had such probation, parole, or supervised release Defendant was convicted on both counts of knowingly, revoked, the sentence for the instant offense should be intentionally and without authority distributing cocaine base imposed to run consecutively to the term imposed for the (crack), in violation of 21 U.S.C. § 841(a)(1). At the time of violation of probation, parole, or supervised release in his federal conviction, Defendant was serving an order to provide an incremental penalty for the violation undischarged term of imprisonment stemming from the of probation, parole, or supervised release. revocation of his probation for several violations of state law. GUIDELINES § 5G1.3 provides that a federal sentence “may be GUIDELINE§ 5G1.3, application note 6. Arguably, a imposed to run concurrently, partially concurrently, or straightforward application of Note 6 suggests that consecutively to the prior undischarged term of imprisonment Defendant’s sentence “should” have run consecutively to achieve a reasonable punishment for the instant offense.” because he was on state probation at the time of the federal Defendant argues that the district court abused its discretion offenses, and his state probation subsequently was revoked. when it ordered that Defendant’s 57 month sentence for his The court’s exclusive reliance on Application Note 6 was violations of federal law would run consecutively to the term erroneous, however, because the court failed to weigh any of his state imprisonment, set to expire in 2010. See United other factors – i.e. the factors set forth at 18 U.S.C. § 3553(a) States v. Covert, 117 F.3d 940, 945 (6th Cir. 1997) (providing – relevant to whether the federal sentence for an offense that the district court’s decision to impose a consecutive or concurrent sentence is reviewed for abuse of discretion). We agree. 6 These factors include the nature of the offense and history of the Application Note 3 of GUIDELINES § 5G1.3 states that defendant; the adequacy of the sentence as a deterrent and as a under subsection (c) of that Guideline, the court “may impose punishment that is just, protects the public, and rehabilitates the a sentence concurrently, partially concurrently, or defendant; the sentencing range for the offense; and policy statements of the Sentencing C omm ission. 18 U .S.C. § 3553(a). These factors also consecutively” and that “[t]o achieve a reasonable punishment include the type and length of the prior undischarged sentence; the time and avoid unwarranted disparity,” the court should consider served on the undischarged sentence and the time likely to be served a variety of factors, as well as the factors set forth at before release; the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and any other circumstance relevant to the determination of an appropriate sentence for the instant offense. G UIDELINES § 5G 1.3, application note 3. No. 03-5431 United States v. Clark 25 26 United States v. Clark No. 03-5431

should run concurrently or consecutively to an undischarged The district court did not consider the § 3553(a) factors, at sentence. least not as reflected by the record. The transcript refers only to the court’s concern that a concurrent sentence would The federal statute that governs concurrent versus preclude an incremental penalty for his federal offenses. consecutive sentences clearly states that the district court Accordingly, we vacate the court’s ruling that Defendant’s must consider the § 3553(a) factors in this context. The sentence for his federal offenses are to run consecutively, so statute provides that “if a term of imprisonment is imposed on that the district court can reconsider its ruling in light of a defendant who is already subject to an undischarged term of the factors set forth at 18 U.S.C. § 3553(a) and at GUIDELINES imprisonment, the terms may run concurrently or § 5G1.3, application note 3. Cf. United States v. Becker, No. consecutively.” 18 U.S.C. § 3584(a). The statute then 99-1704, 2000 WL 245508, at *1 (6th Cir. Feb. 22, 2000) instructs that “[t]he court, in determining whether the terms (unpublished; affirming imposition of consecutive sentence; imposed are to be ordered to run concurrently or district court properly had relied on Application Note 6 and consecutively, shall consider, as to each offense for which a had considered the factors listed in § 3553(a)). term of imprisonment is being imposed, the factors set forth in section 3553(a).” Id. § 3584(b) (emphasis added); see also VII. Covert, 117 F.3d at 945 (“A district court has the discretion Conclusion to impose consecutive or concurrent sentences pursuant to § 5G1.3, upon consideration of the factors listed in 18 U.S.C. For all the foregoing reasons, the Court AFFIRMS § 3553(a) and the applicable guidelines and policy statements Defendant’s convictions, but REMANDS to the district court in effect at the time of sentencing.”) (emphasis added; for consideration of whether Defendant’s term of footnote omitted; citing United States v. Coleman, 15 F.3d imprisonment on his federal conviction should run 610, 611-12 (6th Cir.1994)).7 concurrently or consecutively to his state law convictions in light of the factors set forth at 18 U.S.C. § 3553(a) and GUIDELINES § 5G1.3, application note 3. 7 Mand atory consideration of the § 35 53(a) facto rs is consistent with the Background commentary that appears at the end of the Application Notes to G U ID E LIN E § 5G 1.3. It states:

Background: In a case in whic h a defendant is subject to an undischarged sentence of impriso nment, the court gene rally has the authority to impose an imprisonment sentence on the current offense to run concurrently or consecutively to the prior undischarged term. 18 U.S.C. § 3584(a). Exercise of that authority, howe ver, is predicated on the court’s consideration of the factors listed in 18 U.S.C. § 3553(a), including any app licable guidelines or policy statements issued by the Sentencing Commission.

G U ID ELIN ES § 5G1 .3, application note, background (emphasis added ). See Cove rt, 117 F.3d at 945 n.7 (“The background to § 5G1.3(c) makes considering whether to impose a concurrent or consecutive sentence on specific reference to 18 U.S.C. § 3584, which requires that the district a defendant who is already subject to an undischarged term of court consider the factors outlined in 18 U.S.C. § 3553(a), when imprisonment.”).