535 F.3d 408 (6th Cir. 2008), 04-4472, United States v. Fowler

Docket Nº:04-4472, 04-4473.
Citation:535 F.3d 408
Party Name:UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Jason Gregory FOWLER, Defendant-Appellant/Cross-Appellee.
Case Date:August 01, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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535 F.3d 408 (6th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant,


Jason Gregory FOWLER, Defendant-Appellant/Cross-Appellee.

Nos. 04-4472, 04-4473.

United States Court of Appeals, Sixth Circuit.

August 1, 2008

Argued: April 24, 2008.

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James A. Earhart, Louisville, Kentucky, for Appellant.Joseph R. Wilson, Assistant United States Attorney, Toledo, Ohio, for Appellee.


James A. Earhart, Louisville, Kentucky, for Appellant. Joseph R. Wilson, Ava M. Rotell Dustin, Assistant United States Attorneys, Toledo, Ohio, for Appellee.

Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.


ROGERS, Circuit Judge.

This case is part of a consolidated appeal involving thirteen defendants who were members of the Outlaw Motorcycle Club (“OMC" ), an international motorcycle club with chapters across the country and around the world. In 1997, the Federal Bureau of Investigation and state law enforcement agencies began an investigation into the Green region of the OMC, which consists of chapters in Dayton, Ohio; Fort Wayne, Indiana; Louisville, Kentucky; Indianapolis, Indiana; and Oklahoma City, Oklahoma. As a result of the investigation, a grand jury in the Northern District of Ohio returned a 40-count indictment in 2003 charging the defendants with various offenses, including Racketeer Influenced and Corrupt Organizations Act (“RICO" ), drug trafficking, and firearms offenses. The defendants were tried before an anonymous jury.

Defendant Jason Gregory Fowler, a member of the Louisville Chapter of the OMC, was convicted on four counts: (1) a substantive RICO offense, in violation of 18 U.S.C. §§ 1962(c), 1963(a); (2) RICO conspiracy, in violation of 18 U.S.C. § 1962(d); (3) conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846; and (4) conspiracy to use or carry a firearm during the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(o ). The district court thereafter sentenced Fowler to a total of 396 months in prison.

On appeal, Fowler argues that: (1) the evidence obtained from the search of his home was acquired in violation of his Fourth Amendment rights and therefore should have been suppressed; (2) the district court erred by admitting statements that had been elicited in violation of his Fifth and Sixth Amendment rights; (3) he was entitled to a directed verdict on the RICO and RICO conspiracy charges; (4) the district court made reversible evidentiary errors with respect to Rule 404(b) evidence; (5) the district court erroneously failed to instruct the jury as to lesser-included offenses; (6) the district court erroneously calculated the Guidelines range; and (7) the district court erroneously imposed a consecutive sentence of 10 years under 18 U.S.C. § 924(c). The Government argues in its cross-appeal that Fowler's sentence should be vacated and remanded because the district court misapplied the Sentencing Guidelines by departing from the recommended life sentence without adequate justification on the record.

Fowler's arguments with respect to his convictions have no merit, but he correctly argues that the district court erroneously

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sentenced him to a consecutive 10-year sentence under § 924(c). Because of the influence that this error had on Fowler's overall sentence, his sentence must be vacated in its entirety. Therefore, his convictions are affirmed, and his sentence is vacated.


On November 5, 2002, a magistrate judge in the Western District of Kentucky, relying on information provided by a confidential informant, issued a search warrant for Fowler's person and his residence at 9805 Lower River Road, Louisville, Kentucky. Special Agent Richard McMahan of the Bureau of Alcohol, Tobacco and Firearms (“ATF" ) was in charge of executing the warrant. Out of concern for the safety of the officers involved, Agent McMahan decided that it would be best to execute the warrant after Fowler had left the residence. Under Agent McMahan's plan, the authorities were to wait for Fowler and his wife to exit the house and leave the premises in an automobile before executing the warrant. When the Fowlers did so in the middle-to-late afternoon of November 7, 2002, police officers initiated a traffic stop on the Fowlers' vehicle. After the vehicle was stopped, defendant Jason Fowler was taken out of the car, and the officers removed a weapon from him. He was then advised that the officers had a search warrant for his residence, and he was asked if he would like to be present during the execution of the search warrant. When Fowler said that he would like to be present, Agent McMahan informed him that the police officers would transport him back to the house in a squad car. Agent McMahan also told Fowler that he would need to be handcuffed, and Fowler agreed to be transported back to the house in that manner.

Upon returning to the house, Fowler remained in the squad car while the officers conducted their search, which turned up various firearms and a small quantity of methamphetamine. At some point during the search, Fowler was brought into the house so that he could be interviewed by Agent McMahan and his partner. Agent McMahan testified that he informed Fowler of his rights using the standard ATF rights advisement form. Agent McMahan further testified that during the discussion of Fowler's rights, Fowler said, “I don't know if I need an attorney," and “I don't know, do I need an attorney?" Agent McMahan informed Fowler that he would have to make that decision on his own, and Fowler thereafter signed a standard ATF waiver-of-rights form. After waiving his rights, Fowler spoke with the agents about narcotics and firearms. While they were talking, Fowler received a phone call from someone who wanted to schedule a delivery of methamphetamine to him. In cooperation with the authorities, Fowler arranged for the drugs to be delivered to his house later that day. Two individuals eventually arrived to deliver 1,484 grams of methamphetamine, and they were promptly arrested.

At approximately 10:30 or 11:00 that evening, after the officers had finished their search and arrested the methamphetamine couriers, Fowler was transported to a Jefferson County (Kentucky) Police Department station so that he could be further interviewed. During the questioning, Fowler asked about receiving consideration in exchange for his cooperation. In response, the officers called in two Assistant United States Attorneys (“AUSAs" ) to talk to Fowler. Although the AUSAs told Fowler that his cooperation would be taken into account on his forthcoming narcotics and firearms charges, they did not make any promises or guarantees of leniency.

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Agent McMahan continued interviewing Fowler after the AUSAs left. While they were talking, Fowler spontaneously brought up an unsolved murder in Indiana and indicated that he had participated in the crime. Fowler stated that Michael Brown, a more senior OMC member, had asked Fowler to go with him to the home of an individual named Charles Hurst in order to collect a drug debt. When they arrived at the home, Brown held Hurst at gunpoint and instructed Fowler to restrain Hurst in a chair. After Brown ransacked Hurst's home, Fowler was instructed to release Hurst, whereupon Hurst was shot and killed by Brown. After killing Hurst, Brown and Fowler stole some of Hurst's personal property and departed. Upon hearing this confession, Agent McMahan immediately transported Fowler to Indiana, where the two of them met with detectives at the state police post in Sellersburg. Fowler told his story to the Indiana police and assisted them in building a case against Michael Brown. Fowler eventually testified on behalf of the prosecution in Brown's murder trial in Indiana state court. For his part in the killing, Fowler pled guilty to aiding in voluntary manslaughter.

On April 8, 2003, Fowler was named in a 40-count indictment issued in the Northern District of Ohio. As the culmination of a wide-ranging, six-year investigation of the OMC Green region, the indictment charged Fowler and 37 other OMC members with various federal crimes. Many of the allegations against Fowler stemmed from the search and corresponding questioning of Fowler that took place on November 5, 2002. The indictment charged Fowler with four offenses: (1) RICO, in violation of 18 U.S.C. § 1962(c); (2) RICO conspiracy, in violation of 18 U.S.C. § 1962(d); (3) conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846; and (4) conspiracy to use or carry a firearm during the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(o ). The indictment alleged four predicate acts in support of the substantive RICO charge: (1) conspiring to distribute drugs, (2) the murder of Charles Hurst, (3) the robbery of Hurst, and (4) the collection of a debt from Hurst by extortionate means.

Even though he testified against Michael Brown in the Indiana murder case, Fowler refused to testify against his co-defendants in the instant case. As a result, he was unable to reach a plea agreement with the Government. In the absence of a plea agreement, he proceeded to trial and was convicted on all four counts. In a special verdict, the jury also found that Fowler had committed all four RICO predicate acts alleged against him.

At the sentencing hearing, the district court sentenced Fowler to concurrent sentences of 240 months on the RICO and RICO conspiracy offenses. With respect to the drug conspiracy offense, the district court imposed a concurrent sentence of 276 months. Finally, the district court imposed an additional...

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