United States v. Clayton

• Citation: 787 F.3d 929
• Decision Date: 01 June 2015
• Docket Number: No. 14–2887.,14–2887.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Michael CLAYTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

787 F.3d 929

UNITED STATES of America, Plaintiff–Appellee

v.Michael CLAYTON, Defendant–Appellant.

No. 14–2887.

United States Court of Appeals, Eighth Circuit.

Submitted: April 17, 2015.

Filed: June 1, 2015.

Rehearing and Rehearing En Banc Denied July 7, 2015.^*

Bradley Ryan Hansen, AFPD, argued, Sioux City, IA, for Defendant–Appellant.

Forde Fairchild, AUSA, argued, Sioux City, IA, for Plaintiff–Appellee.

Before BYE and SMITH, Circuit Judges, and SCHILTZ,¹ District Judge.

Opinion

SCHILTZ, District Judge.

On the morning of February 7, 2013, a robber stole $11,284 from Citizens State Bank in Fort Dodge, Iowa. A jury convicted Michael Clayton of the robbery and the district court² sentenced Clayton to 129 months' imprisonment. Clayton appeals his conviction and sentence. We affirm.

I. BACKGROUND

The government's case against Clayton rested in large part on the testimony of his accomplice, Christopher Anderson. Anderson and Clayton share a common connection with a third man, Terrell Newman. Anderson and Newman were part of the same drug-trafficking organization and also ran a restaurant together. Clayton is Newman's cousin. Clayton, Anderson, and Newman all live in or near Omaha.

In February 2013, Newman was in jail facing criminal charges. At trial, Anderson testified that Clayton asked Anderson to drive to Fort Dodge, where Clayton was visiting his sister. According to Anderson, Clayton said that he needed Anderson to give him a ride back to Omaha and that he had something that would help Newman.

Anderson drove to Fort Dodge on February 6, arriving sometime around midnight. Anderson's first stop in Fort Dodge was at a gas station, where a security camera captured his image. Anderson then went to Clayton's sister's house, where he and Clayton spent the rest of the night.

The next morning, Clayton directed Anderson to drive to an apartment complex near Citizens State Bank. After Anderson parked in the complex, Clayton got out of the car and made a phone call on Anderson's cell phone. Anderson could not hear what Clayton was saying, but it sounded like an argument. Other evidence established that Anderson's phone was used on the morning of February 7 to make two threatening calls: one to a local school, and one to an individual whose number was listed in the telephone directory just below that of another local school. (Presumably, the purpose of the calls was to create a distraction for local law enforcement.)

After finishing his calls, Clayton tossed the phone back into Anderson's car and walked away, saying that he would return shortly.

As noted, Citizens State Bank was robbed that morning. Witnesses at the bank testified that the robber first approached a customer, said that he had a gun, and demanded that the customer get on the floor. The robber then instructed a teller to fill a bag with cash. The cash that the teller placed in the bag included five “bait bills”—that is, bills that had been photographed and whose serial numbers had been recorded. Witnesses saw the robber leave the bank on foot and walk north in the direction of the apartment complex where Anderson was parked. Witnesses described the robber as a black man of medium build between 5'6? and 5'8? who wore a mask and glasses. Clayton is black and 5'10? tall; Anderson is white.

About five minutes after leaving Anderson's car, Clayton returned, carrying a bag. The two men then drove to Omaha. Along the way, Clayton broke Anderson's phone and tossed it out of the window. Clayton also discarded his shoes in a dumpster and called a friend to ask for new shoes. An analysis of the cell towers to which Clayton's phone connected that day established that the phone traveled from Fort Dodge to Omaha. Anderson's phone similarly traveled from Fort Dodge toward Omaha, but, after connecting to a cell tower about halfway between Fort Dodge and Omaha, the phone stopped being used.

On arriving in Omaha, the men went to the home of Ayeshia McDonald, who was Newman's girlfriend. Clayton emptied the bag, which was full of cash, onto a table. Anderson testified that Clayton gave him $1,000, after which Anderson left. Anderson understood that a large portion of the cash was to be set aside for Newman's legal fees. McDonald, who also testified at trial, corroborated Anderson's testimony that Clayton and Anderson brought money to her house, although she could not remember the exact date. A later search of McDonald's home turned up a roll of cash that contained four of the bait bills that were taken during the bank robbery.

At sentencing, the district court found that the United States Sentencing Guidelines recommended a prison sentence of between 84 and 105 months. The government moved for an upward departure or variance on a number of grounds, including that one of Clayton's previous state convictions—a conviction for third-degree theft—involved violent threats. The presentence investigation report (PSR) described the offense conduct for that conviction as follows:

The Complaint reflects the defendant entered Mr. Money and threatened to shoot the occupants of the building. He also claimed he had a bomb which would explode if anyone attempted to call the police. The clerks allowed him to empty the drawers and he left on foot. The defendant was wearing a pair of sunglasses and a white surgical or dust mask.

PSR ¶ 29.

Clayton did not dispute the fact of the prior conviction, but he objected to the PSR's description of the underlying offense conduct. At Clayton's sentencing hearing, Barbara Gordon, a clerk who was present during the robbery of Mr. Money, testified consistently with the description in the PSR. Gordon described the robber as a black man wearing an asthma

mask and recounted how he threatened to shoot the employees, forced them to get on the floor, and warned them that he had rigged a bomb that would explode if they tried to use the phone.

In addition to Gordon's testimony, the district court admitted several exhibits relating to the Mr. Money robbery, including minutes of testimony from the Iowa criminal proceedings.³ The minutes stated, among other things, that police officers found a white mask along the route that the robber had taken when he fled Mr. Money; that DNA from the mask matched DNA obtained from Clayton; and that witnesses made a photo identification of Clayton.

Clayton argued that, because Gordon did not identify him during her testimony, there was insufficient evidence to establish the identity of the person who had made violent threats while robbing Mr. Money. The district court rejected that argument, holding that the minutes, together with Gordon's testimony, established by a preponderance of the evidence that Clayton had made the threats. The district court then granted the government's motion for an upward variance, citing Clayton's unscored criminal convictions, his threats during the Mr. Money robbery, and the threatening calls he made just before robbing Citizens State Bank.

II. ANALYSIS

A.

Clayton first argues that he is entitled to a new trial because law-enforcement officers improperly coached Anderson and McDonald, thereby tainting their testimony and violating Clayton's right to due process.

Under Fed.R.Crim.P. 33(a), “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Following the lead of the parties and the district court, we review Clayton's claims of improper coaching under the standard applicable to allegations of prosecutorial misconduct.⁴ Under this standard, the defendant must show that the government's conduct was improper and that it “ ‘affected the defendant's substantial rights so as to deprive him of a fair trial.’ ” United States v. Hunter, 770 F.3d 740, 743 (8th Cir.2014) (quoting United States v. New, 491 F.3d 369, 377 (8th Cir.2007) ).

Clayton argues that officers improperly fed Anderson facts about the robbery during a February 25, 2013 interview, after which (according to Clayton) Anderson shaped his statements to conform to those facts. During that interview, Anderson initially denied involvement in the robbery. After the officers told Anderson that they knew that he was in Fort Dodge on the day of the robbery and that he had parked near the bank, Anderson admitted that he had traveled to Fort Dodge to help Clayton commit a crime. Also during the February 25 interview, the officers asked Anderson whether Clayton wore glasses on the day of the robbery. After Anderson stated that he could not remember, the officers showed him a picture of Clayton wearing glasses. In a later interview, Anderson claimed to remember that Clayton had worn glasses.

We agree with the district court that, as a general matter, it is not improper for law-enforcement officers to confront an alleged accomplice with facts and evidence undermining the accomplice's denials in order to persuade the accomplice to cooperate. We do not believe that the officers' conduct with respect to Anderson amounted to improper coaching. Even if it did, though, Clayton cannot show any resulting prejudice. The February 25 interview was recorded and disclosed to Clayton. Clayton used the interview to full effect both in his cross-examination of Anderson and during his closing argument, noting every inconsistency and repeatedly getting Anderson to admit that he had lied. Cf. United States v. Nambo–Barajas, 338 F.3d 956, 962–63 (8th Cir.2003) (no error in denying motion for a new trial where alleged witness coaching was covered during cross-examination). Moreover, as discussed below, crucial details of Anderson's testimony were corroborated by other evidence. Any improper coaching of Anderson did not prejudice Clayton.

Clayton also alleges that officers acted improperly during a September 20, 2013 interview of McDonald. During that interview, officers told McDonald that they were tired of “spoon feeding” her details of the crime; that she needed to get on the “same page” as Anderson; and that she would get more “bang for her buck” (meaning more...