U.S.A. v. Clarke, 99-3602

• Decision Date: 14 September 2000
• Docket Number: No. 99-3602,99-3602
• Citation: 227 F.3d 874
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Osmund Clarke, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 874

227 F.3d 874 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Osmund Clarke, Defendant-Appellant.

No. 99-3602

In the United States Court of Appeals For the Seventh Circuit

Argued April 11, 2000

Decided September 14, 2000

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 98 CR 121--David F. Hamilton, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Manion, Diane P. Wood, and Evans, Circuit Judges.

Manion, Circuit Judge.

Osmund Clarke and nine others were indicted for conspiring to distribute drugs. Clarke was also indicted for distributing drugs and carrying a firearm during a drug offense. Clarke and two of his co-defendants went to trial. But after a witness blurted out that one of Clarke's co-defendants had an outstanding arrest warrant for car-jacking, the district court declared a mistrial for all three defendants on the conspiracy charge. The district court, however, allowed the government to proceed with trying Clarke on the drug distribution and weapon possession charges, and Clarke was convicted of both offenses. On appeal Clarke seeks a new trial, claiming that the district court erred in not declaring a mistrial on these two charges, in admitting evidence that was seized during his arrest, and in allowing the government to make allegedly unfairly prejudicial statements during closing argument. Because the district court did not err with respect to any of these issues, we affirm.

I. Background

Clarke was allegedly involved in a far-reaching, multi-tiered drug distribution conspiracy. One alleged member of the conspiracy was Clarke's good friend, Gosha. But Gosha's friendship with Clarke was evidently fleeting, because he turned state's evidence and testified about three occasions when he and Clarke sold cocaine to Hart, an undercover informant. Hart also testified as to Clarke's participation in the three drug sales. Furthermore, both Hart and Gosha testified that Clarke was an "enforcer" on one of these transactions when Gosha and Clarke suspected that Hart was a snitch. They searched Hart but did not find the wire that was hidden in his underwear. Clarke was carrying a 9mm handgun on the occasion where there was a brief (or fortunately for Hart, not a brief) search of Hart.

Based upon Hart's information and controlled purchase, the police went to arrest Clarke at his girlfriend's house. The police found Clarke in the living room within arm's length of a couch. In arresting him, they discovered a handgun stuffed between the sofa cushions and within his reach. The police obtained his girlfriend's written consent to search the premises, and they discovered bullets for the gun, a hand-held scale, and a small amount of marijuana.

Clarke and nine others were charged with one count of conspiracy to possess with intent to distribute and conspiracy to distribute cocaine and cocaine base in excess of 5kg in violation of 21 U.S.C. sec.sec. 841(a)(1) and 846. In addition, Clarke was charged with three counts of distribution of cocaine base in excess of 50 grams in violation of 21 U.S.C. sec. 841(a)(1) and one count of carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. sec. 924(c). Clarke and two of his co-defendants went to trial together on the conspiracy charge; the government also proceeded against Clarke at the same trial on the other two charges.

On the morning of trial, well after the deadline for filing pretrial motions, Clarke filed an emergency motion to suppress everything that was seized at his girlfriend's house. The motion was accompanied by an affidavit from Clarke's girlfriend wherein she stated that her consent to search was given under duress; according to her, the police had held her down on the floor and handcuffed her and told her that if she did not cooperate they would take away her children. The government objected to the motion as untimely. At the hearing, Clarke acknowledged that the motion was untimely, but he argued that if the court was persuaded by it, then "one of the charges" against Clarke could be dismissed. The court asked Clarke if he was specifically referring to the firearm, and Clarke represented to the court that he was. The court again asked Clarke whether the motion at this point was limited to the gun, and Clarke confirmed that it was.

Based upon Clarke's representations, all of the argument on the motion to suppress addressed only the admissibility of the gun. The court heard testimony from both Clarke's girlfriend and the arresting officer. The court found both the arresting officer and Clarke's girlfriend credible, but it denied Clarke's motion to suppress the gun. The court reasoned that regardless of whether the consent was given under duress, it was not needed for the handgun to be properly seized because it was obtained during a lawful search incident to arrest. Because the only issue Clarke presented to the court concerned the handgun, the court did not consider whether the police were allowed to search her house. Later in the trial, the court said that with respect to the motion to dismiss, the issue with the gun was resolved, and that the other issues were not raised. Clarke did not dispute this.

Trial proceeded and the government called a police officer (Brooks) to the stand. During his testimony, he stated that one of Clarke's two co- defendants (Harris) had an outstanding warrant for car-jacking and that this was a violent crime. Harris moved for a mistrial, and after a conference with counsel the district court instructed the jury to disregard the officer's testimony

Ladies and Gentlemen, the answer to the last question that was asked Officer Brooks before the break is stricken from the record. You are ordered to disregard it. Whether Mr. Harris was a suspect in another crime is utterly irrelevant in this case. Any such accusations are entitled to no credibility and no consideration whatsoever. It was highly improper for Officer Brooks to even mention them. It would be even worse if you were to consider such matters in your deliberations. I instruct you that you may not consider such matter at all.

The court allowed the trial to continue and then held a hearing on Harris's motion. During the hearing, Clarke joined in, also requesting a mistrial on the conspiracy charge against him.

The district court granted Harris's motion for a mistrial, concluding that its curative instruction was insufficient to guarantee him a fair trial. Although Officer Brooks's car-jacking comment did not pertain to Clarke, the district court granted him (and the third co-defendant) a mistrial on the conspiracy charge, too. After Clarke was unable to obtain a plea bargain on the substantive counts, he requested that the court declare a mistrial on the gun possession and distribution of cocaine charges as well. While much evidence about the conspiracy had been heard at that point, little of it was tied to Clarke. The district court thought that the evidence about Clarke possessing a gun and distributing drugs was discrete enough from the evidence about the conspiracy that the jury could focus on the evidence pertaining to the gun possession and drug distribution charges. Before the trial continued, however, the district court instructed the jury that the conspiracy charge against Clarke had been removed from their consideration, and that they should not ask why or hold it against him. He also informed them that the only charges that remained were the drug distribution and gun possession charges, and that Clarke was presumed innocent of these charges.

At the jury instructions conference, Clarke asked the court to give a similar admonition to the jury. The court proposed revising an instruction so that it directed the jury not to consider "evidence relevant only to" the conspiracy charge. Clarke advised the court that the revised instruction met his concerns, but the government objected because it would confuse things, relevancy being a legal question. The court overruled the objection and revised the instruction as Clarke had requested. Nevertheless, before the court read the instruction the next day, Clarke objected to it. The court reminded Clarke that the instruction was revised at his request and over the government's objection. It then read the instruction, which stated:

I remind you that the conspiracy charge against the defendant Mr. Clarke as well as the charges against defendants Chris Harris and Jimmy Campbell have been removed from your consideration and are no longer before you for decision. Do not concern yourself with this development and do not speculate about it. The removal of that portion of the case must not influence your consideration of the charges against Mr. Clarke that you must decide.

The fact that we have only one defendant left in this trial should be of no concern to you because whatever your verdict is, if you do reach a verdict, it has to be based solely upon the evidence that was received in this courtroom as it related to the remaining charges against Mr. Clarke. You should not let evidence relevant to only [the conspiracy charge] affect your consideration of the [remaining] charges against Mr. Clarke.

(Emphasis added.) The court also instructed the jury that a separate crime was charged in each count and that each count, as well as the evidence pertaining to it, should be considered separately. Moreover, it instructed the jury that the drug distribution charges were based on what happened on three occasions and that the weapons charge was based on what happened on one occasion.

One last background fact is significant for this appeal. Throughout the trial, Clarke had criticized the credibility of the government's star witnesses, Gosha (who turned state's evidence) and Hart (who was a paid informant). During closing argument, the government pointed out that under his plea...