United States v. Clark

• Decision Date: 28 April 2022
• Docket Number: 20-10672
• Citation: 32 F.4th 1080
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Freddie CLARK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

32 F.4th 1080

UNITED STATES of America, Plaintiff-Appellee,

v.Freddie CLARK, Defendant-Appellant.

No. 20-10672

United States Court of Appeals, Eleventh Circuit.

Filed: April 28, 2022

Lindsay Feinberg, Michelle Lee Schieber, U.S. Attorney Service - Middle District of Georgia, U.S. Attorney's Office, Macon, GA, Sofia Vickery, Javier Alberto Sinha, AT, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Plaintiff-Appellee.

LaRae D. Moore, Page Scrantom Sprouse Tucker & Ford, PC, Columbus, GA, for Defendant-Appellant.

Before Jordan, Jill Pryor, and Tjoflat, Circuit Judges.

Tjoflat, Circuit Judge:

Freddie Clark was convicted of possessing a firearm as a convicted felon, possessing methamphetamine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking crime. As a result, he was sentenced to 360 months’ imprisonment, with five years of supervised release. On appeal, he raises five claims as to why he should either receive a new trial or, alternatively, be resentenced. None of his claims warrant reversal or remand, so we affirm.

I.

It was between 2:00 AM and 3:00 AM in Columbus, Georgia, on March 14, 2018. Corporal William Ragland of the Columbus Police Department noticed that a car was swerving on the road and turned his patrol lights on to conduct a traffic stop. Instead of pulling over to the side of the road, Clark continued driving for about half a mile at a low rate of speed until he finally turned left into a gas station parking lot. Ragland then drew his firearm and commanded Clark to show his hands and exit the vehicle. Clark opened the front door of his car. Ragland ordered Clark to get out of the vehicle. At this point, Ragland saw a semi-automatic pistol on Clark's left side. The barrel of the gun was engraved with the marking "Prescott, AZ." Ragland pulled Clark out of the car and handcuffed him. At this point, several officers were on the scene, and one of these officers discovered a bag of what turned out to be methamphetamine in Clark's front pocket. Upon searching Clark's car, officers found a digital scale, small bags, and another bag of what turned out to be methamphetamine. At the time of this arrest, there was an outstanding Alabama warrant for Clark's arrest. Law enforcement examined the firearm that Clark possessed as well as the drugs recovered from the scene. A lab scientist determined the quantity of methamphetamine contained in the two bags, which he later testified about at trial.

Based on this incident, a grand jury returned a three-count indictment against Clark in December 2018. The charges were as follows: Count 1 was for possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2) ; Count 2 was for possession with intent to distribute five grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B)(viii) ; and Count 3 was for possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A). The Government subsequently filed a superseding indictment based on the Supreme Court's decision in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), alleging that Clark knew he had previously been convicted of a crime punishable by imprisonment for a term exceeding one year.

Before trial, Clark filed a motion to suppress the evidence obtained during the search of Clark's pant pockets and his vehicle upon his arrest. As to the reasonable suspicion or probable cause to stop Clark's car in the first place, Ragland testified that he saw Clark weaving between lanes. Although Ragland was unable to remember at the suppression hearing exactly how Clark was weaving, he nonetheless consistently said that weaving prompted him to stop Clark. Ragland testified that he drew his weapon at the gas station because Clark had failed to stop immediately and because he thought such failure to stop was suspicious. When Clark failed to obey Ragland, both by failing to stop the car immediately and by failing to exit the car upon Ragland's orders (while he also held a gun at his side that Ragland could see), Ragland pulled Clark out of the car. Ragland testified that at this point, Clark was subject to arrest for failing to maintain his lane, reckless conduct, obstruction, and fleeing to elude. The District Court denied the motion to suppress.

Clark proceeded to a jury trial on all three counts, and he did not stipulate that he knew he was a felon for the purposes of trial. Clark's trial was bifurcated. The first phase of the trial pertained to Counts 2 and 3 of the indictment for possession with intent to distribute more than five grams of methamphetamine and possession of a firearm in the furtherance of a drug crime, while the second phase of the trial pertained to Count 1 of the indictment for being a felon in possession of a firearm. During the first phase of the trial, the Government introduced testimony from law enforcement officers and the lab scientist, who served as a forensic drug expert. The Government entered into evidence the two bags found at the scene, which in total contained a little over 85 grams of a substance. The Government's lab scientist testified that both bags contained methamphetamine, and that, accounting for the purity of the substances, the combined total substance was 44 grams of pure methamphetamine.

The District Court spoke with both the Government and Clark's counsel about both of their proposed jury instructions, ultimately getting approval of the final jury instructions by both parties. As to Count 2, the Court charged the jury that it must find beyond a reasonable doubt that Clark was guilty of knowingly possessing methamphetamine and intending to distribute the methamphetamine. The Court further charged that if the jury found the defendant guilty of possessing methamphetamine with the intent to distribute it, it had to "unanimously agree on whether the weight of the methamphetamine the defendant possessed [wa]s [five] grams or more." That part of the jury instruction pertaining to the amount of methamphetamine did not contain the "beyond a reasonable doubt" language. A finding that Clark had possessed more than five grams of methamphetamine would raise the mandatory minimum sentence to five years and the statutory maximum to forty years. 21 U.S.C. § 841(b)(1)(B)(viii). Clark's counsel did not object to the jury instructions as given. The jury found that Clark had possessed methamphetamine with intent to distribute it and had possessed more than five grams of methamphetamine.

As to phase two of the trial, on the felon-in-possession count, the Government called Special Agent Paul Culp and a probation officer to testify. Culp was an expert witness, testifying about the interstate nexus and gun identification. He explained that the gun had been manufactured in Arizona and that it was a firearm. Then, a probation officer testified about an Order of Probation pertaining to Clark from 2017 for the felony of unlawful distribution of a controlled substance, which explained that Clark was not to "possess, receive, or transport firearms." The Order of Probation was admitted into evidence, and it included 42 offenses resulting in arrests, beginning in 1991, when Clark was only 15 years old. The Government also introduced certified copies of seven additional felony convictions, beyond the one for which the Probation Order was issued. Clark's counsel objected to admission of more than one felony conviction under Fed. R. of Evid. 403. The District Court overruled the objection and allowed all this evidence to come in to show Clark's knowledge that he was a felon under Rehaif .

The jury returned a guilty verdict, and Clark did not move for a judgment of acquittal on any ground as to phase two of the trial. Sentencing was then scheduled for February 4, 2020. But, nearly two months after trial and before sentencing, the Government disclosed Brady material that it had been unaware of at the time of trial. Culp had failed to disclose in his Giglio interview that he had been disciplined in 2016 by the Bureau of Alcohol, Tobacco, Firearms and Explosives for mishandling evidence in a case involving an individual who was charged with distributing narcotics and being a felon in possession of a firearm. That case was dismissed prior to trial because of Culp's destruction of the evidence. As a result of his misconduct, one of the United States Attorney's Offices refused to accept future cases from him. In Clark's case, the Government specifically asked Culp if he had been disciplined in the past as part of his Giglio interview. He said no.

This Brady material prompted Clark to file a motion for a new trial under Fed. R. of Crim. P. 33(a). The District Court concluded that revelation of Culp's misconduct would not have changed the outcome of the trial and denied Clark's motion.

The Presentence Report calculated Clark's guideline range of 360 months to life based on a total offense level of 34 and a category VI criminal history category. There was no mandatory minimum as to Count 1, but there was a statutory maximum of ten years. 18 U.S.C. § 924(a)(2). Because the jury found that Clark possessed more than five grams of methamphetamine, the mandatory minimum penalty for Count 2 was five years, and the maximum penalty was 40 years of imprisonment. 21 U.S.C. § 841(b)(1)(B)(viii). The mandatory minimum for Count 3 was five years of imprisonment, consecutive to any other term of imprisonment. Clark objected to the Presentence Report's calculations, but his objections did not impact the guidelines range. The District Court looked at the guidelines range and applied the 18 U.S.C. § 3553(a) factors to impose a 360-month sentence, 120 months for each count running consecutively, with a three-year period of supervised release as to Count 1 and a five-year period of supervised release as to Counts 2 and 3. Clark timely...