U.S. v. Clark

• Decision Date: 06 January 1993
• Docket Number: No. 91-2345,91-2345
• Citation: 982 F.2d 965
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tyrez CLARK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 965

982 F.2d 965

UNITED STATES of America, Plaintiff-Appellee, v. Tyrez CLARK, Defendant-Appellant.

No. 91-2345.

United States Court of Appeals Sixth Circuit.

Argued Oct. 1, 1992.

Decided Jan. 6, 1993.

Mark V. Courtade, Asst. U.S. Atty. (argued and briefed), Grand Rapids, MI, for plaintiff-appellee.

Lawrence J. Phelan (argued and briefed), Grand Rapids, MI, for defendant-appellant.

Before: RYAN and SUHRHEINRICH, Circuit Judges; and HIGGINBOTHAM, Senior Circuit Judge. ^*

RYAN, Circuit Judge.

Tyrez Clark appeals his conviction and sentence for conspiring to distribute and possessing with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a) and 846; maintaining a drug house, in violation of 21 U.S.C. § 856; and using or carrying a firearm in the commission of a felony, in violation of 18 U.S.C. § 924(c)(1). Clark's appeal raises three issues. The first is whether the district court properly denied Clark's motion to suppress incriminating statements made by Clark in response to a federal agent's "booking questions." The second is whether Clark's trial was rendered fundamentally unfair when the government, during closing arguments, referred to Clark's failure to call a certain witness to his defense. And the third is whether the district court erred when it raised Clark's offense level for obstruction of justice.

Because we find no error in the district court's rulings or judgment, we shall affirm Clark's conviction and sentence.

I.

Clark and a juvenile friend were arrested by state police and federal agents during the execution of a search warrant at an apartment in Benton Harbor, Michigan. The police obtained the search warrant because they had probable cause to believe the apartment was operating as a "crack house." During the search, police discovered Clark and the juvenile sleeping in the apartment. The officers arrested Clark and seized a quantity of crack cocaine and a gun. Clark provided the arresting officers with a false name, false date of birth, and false address.

Clark was taken to the Berrien County jail where he provided booking officers with another false name and address. He revealed his true identity several hours later after police confronted him with the inconsistencies. During the booking process, police discovered $100 in Clark's shoe and a small amount of crack cocaine in his underwear.

State charges against Clark for narcotics and firearm violations were dismissed when the United States Attorney for the Western District of Michigan filed federal charges against him. As a result of the federal charges, two agents from the Bureau of Alcohol Tobacco and Firearms took custody of Clark and transported him to federal court in Grand Rapids, Michigan, for arraignment.

One of the agents, David Milhills, testified that the ATF agents did not immediately warn Clark of his Miranda rights because they did not intend to interrogate him during the drive to Grand Rapids. However, within a few minutes after leaving the county jail, Agent Milhills asked Clark about five minutes worth of personal history information in order to complete a standard booking form. Approximately 15 minutes after the personal history questioning ceased, Clark stated: "It was our gun"; "It was our dope"; "Where is my partner?"; and "You ain't got nothing on me. It wasn't my personal gun. It was just a house gun."

Prior to trial, Clark moved to suppress the statements, but the district court denied the motion on the basis that the statements were made spontaneously and not as a result of police interrogation. At the suppression hearing and at trial, Clark denied making the incriminating statements, and denied all of the criminal conduct charged in the indictment.

During closing arguments at trial, Clark's counsel told the jury that the government did not call the other ATF agent, who was in the car and who should have been able to support Milhills's testimony. Clark's counsel suggested that the reason the government did not call the other agent was because he would not corroborate Milhills's testimony that Clark had made incriminating statements. In rebuttal argument, the Assistant United States Attorney stated:

We're left with the case the government presented. You can't speculate on things. But you can consider this: Remember the defendant had the opportunity to call witnesses if he chose to. If there is proof that he lied, he had the opportunity. Not the responsibility.

Clark's counsel objected, and the district court neither sustained nor overruled the objection and, instead, instructed the jury that the defendant had no obligation and was not expected to call the ATF agent to testify. Clark's counsel made no further objections to the government's closing arguments.

Clark was convicted on all three counts of the indictment. At the sentencing hearing, the district court found, over Clark's objection, that he gave false information to the police regarding his identity and that his trial testimony was "less than truthful." Finding that Clark attempted to obstruct the investigation and the prosecution, the district court applied § 3C1.1 of the Sentencing Guidelines and enhanced the sentencing offense level by two points for obstruction of justice.

II.

A.

Clark first argues that the ATF agents violated his Fifth Amendment right against self-incrimination. He claims that the personal history questioning by Agent Milhills was actually "interrogation," in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was a "mere pretext to get [Clark] to open up and incriminate himself." The government acknowledges that Clark was in custody and that Milhills did not give Clark Miranda warnings prior to or during the trip to Grand Rapids. However, the government argues that the questioning did not amount to interrogation because it was limited to "routine booking questions"; thus, any statements made by Clark other than in response to the routine booking questions were voluntary.

As a general rule, when a defendant is in custody, law officials must give him appropriate Miranda warnings before interrogation begins; otherwise, any statements resulting from the police interrogation will be inadmissible unless the defendant clearly and intelligently waived his rights. Miranda, 384 U.S. 436, 86 S.Ct. 1602. Interrogation is defined as "questioning initiated by law enforcement officials." Id. at 444, 86 S.Ct. at 1612. This definition has been extended to the "functional equivalent" of express questioning and includes, "any words or actions on the part of police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). Custodial interrogation includes "words or actions that, given the officer's knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to 'have ... the force of a question on the accused' ... and therefore be reasonably likely to elicit an incriminating response." Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528 (1990) (citation omitted).

"Routine booking questions," or questions posed to secure the personal history data necessary to complete the booking process, are exempt from Miranda's coverage. Id. This court has adopted the view that: "Ordinarily, ... the routine gathering of biographical data for booking purposes should not constitute interrogation under Miranda." United States v. Avery, 717 F.2d 1020, 1025 (6th Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1683, 80 L.Ed.2d 157 (1984). Thus, absent evidence that a defendant has particular susceptibility to the questioning or that the police used the booking questions to elicit incriminating statements from the defendant, routine biographical questions are not ordinarily considered interrogation. Id. at 1024.

Whether the agents "interrogated" Clark is an issue of fact we review for clear error. United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988). Clark agrees that the questions posed by Agent Milhills sought only routine information for the booking form. He offers no evidence to support his conclusion that Agent Milhills used the questions as "mere pretext" to elicit incriminating information, nor does Clark offer any evidence to establish that he was particularly susceptible to that line of questioning. Moreover, some 15 minutes elapsed between the end of the booking questions and answers, and the incriminating statements Clark claims were inadmissible. Thus, we do not find that the district court clearly erred when it concluded that there was no interrogation. Because Clark was not interrogated, within the meaning of Miranda, during the ride to Grand Rapids, the statements he made that went beyond the scope of Milhills's "booking questions" were voluntary utterances. "Any statement given freely and voluntarily without any compelling influences is, of course, admissible into evidence." Miranda, 384 U.S. at 478, 86 S.Ct. at 1629.

B.

Clark also asserts that the government's rebuttal argument improperly referred to Clark's failure to call the special agent who accompanied Clark and Agent Milhills to Grand Rapids. He claims that it constituted prosecutorial misconduct and denied him a fair trial because it suggested to the jury that Clark had the burden of proving his innocence. The government counters that the argument made in response to Clark's closing was not improper, and even if it was, it did not render Clark's trial fundamentally unfair.

Whether the government's closing argument amounted to prosecutorial misconduct and whether the argument rendered the trial "fundamentally unfair" are mixed questions of law and fact. We review mixed questions de novo. Pullman Standard v. Swint, 456 U.S. 273,...