United States v. Clayton

• Decision Date: 03 May 2022
• Docket Number: 21-CR-70
• Parties: UNITED STATES OF AMERICA Plaintiff, v. DWIGHT CLAYTON, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

UNITED STATES OF AMERICA Plaintiff, v. DWIGHT CLAYTON, et al., Defendants.

No. 21-CR-70

United States District Court, E.D. Wisconsin

May 3, 2022

DECISION AND ORDER

LYNN ADELMAN DISTRICT JUDGE

The government obtained an indictment charging Dwight Clayton Jeffrey Coleman, and Kevin Mathis with drug trafficking firearm, and money laundering offenses. Clayton and Coleman filed a number of pre-trial motions. Specifically, Coleman moved to suppress statements based on a Miranda violation (R. 28); the results of an unlawful stop (R. 29) the results of an unlawful arrest (R. 30); the results of an unlawful auto search (R. 31); and the results of an unlawful residence/garage search (R. 32). Coleman also moved to strike or suspend this district's jury plan. (R. 33.) Clayton moved to suppress evidence based on an unlawful arrest (R 41); an unlawful traffic stop and vehicle search (R. 42); a deficient warrant (R. 43); and a Miranda violation (R. 44). Clayton also moved to join Coleman's jury plan challenge. (R. 45.) Mathis filed no motions, and the filing period has now closed.

The magistrate judge handling pre-trial proceedings addressed the Clayton and Coleman motions in three separate recommendations. Both sides have objected to various aspects of the magistrate judge's analysis. The district court reviews de novo recommendations on motions to suppress or dismiss. See Fed. R. Crim. P. 59(b). I address the recommendations in the order they issued.

I.

Clayton moved to suppress statements he made in response to custodial questioning during a traffic stop on January 27, 2021. (R. 44 at 1.) He indicated that following the stop he was removed from his vehicle and detained in a squad car while deputies searched his vehicle. (R. 44 at 1-2.) After the deputies located a bag of cash, they questioned Clayton about the money, without providing Miranda warnings, in response to which he made statements. (R. 44 at 2.)

Coleman moved to suppress custodial statements he made at the HIDTA offices on March 16, 2021, following his arrest earlier that day. (R. 28 at 1.) At no point following his arrest and prior to questioning did law enforcement advise Coleman of his Miranda rights. (R. 28 at 1-2.) Coleman also moved to suppress all physical evidence, observations, and other products of a sequence of unlawful seizures and searches following his March 16 arrest. (R 32 at 1.) Specifically, he argued that law enforcement officers unlawfully seized a garage door opener; they then used the device to open the garage door at an apartment building in Greendale, Wisconsin, observing a motorcycle they determined belonged to Coleman; and, finally, they used the information learned in the garage search to obtain a search warrant for an apartment in the Greendale building, seizing during the subsequent search jewelry and watches that allegedly belonged to Coleman. (R. 32 at 1-3.)

In response, the government essentially conceded these motions. Specifically, the government agreed that Clayton was not advised of his Miranda rights prior to custodial questioning during the traffic stop on January 27, 2021. “Therefore, the government will not use or attempt to introduce any of the oral statements or non-verbal assertions made by Dwight Clayton during his traffic stop by the Milwaukee County Sheriff's Department on January 27, 2021 in the government's case in chief at any subsequent trial.” (R. 49 at 1.) Similarly, with respect to Coleman's motion to suppress statements, the government agreed that Coleman was not advised of his Miranda rights prior to custodial questioning after his arrest on March 16, 2021. “Therefore, the government will not use or attempt to introduce any of the oral statements or non-verbal assertions made by Jeffrey Coleman during his processing at the Milwaukee HIDTA office in Milwaukee on March 16, 2021 in the government's case in chief at any subsequent trial.” (R. 51 at 1.) The government also agreed that “irregularities occurred during the preparation of the state search warrant for the Greendale apartment. Therefore, the government will not use or attempt to introduce any evidence seized during the search of that property in the government's case in chief at any subsequent trial.” (R. 52 at 1.)

Based on the government's concessions, the magistrate judge recommended that these three motions be dismissed as moot. (R. 54 at 3-4.) Clayton has not objected. Coleman has objected, arguing that the court should hold the motions in abeyance or grant them as unopposed. Otherwise, he worries the defense will have to renew the motions if the government acts inconsistently with its concessions. “Further, as to the search of the Greendale apartment, the Government's concession does not match the scope of Coleman's motion. [T]he Government should expand its concession to any observations by officers made at the apartment, including things seen and overheard. Without that expansion, the motion seeks relief that the government's concession does not afford.” (R. 57 at 2.)

The government has not responded to Coleman's objection. It is thus unclear whether the government intends to introduce other observations made at the Greendale apartment building. I will accordingly hold that motion (R. 32) in abeyance and inquire about the issue at the May 4, 2022, status hearing. I will find Clayton and Coleman's Miranda motions (R. 44, 28) moot, on the understanding that the government will act consistently with its concessions.

II.

Coleman moved to dismiss the indictment without prejudice and suspend operation of this district's jury plan for assembling a master jury wheel, a qualified panel, and pools for grand juries and petit juries. (R. 33 at 1.) Clayton moved to join and adopt the motion (R. 45), which the magistrate judge allowed (R. 58 at 10).

Coleman argued that the plan systematically excludes non-white minorities by relying on lists of actual voters, rather than registered voters; by including an opt-out provision for single parents; and by requiring extra steps for prospective jurors without reliable internet access. (R. 33 at 2-3.) According to the district's 2019 report, racial and ethnic minorities represented only 9.44% of the qualified panel for the Milwaukee Division, while census data indicate minorities comprise 21.8% of the voting age population. (R. 33 at 4.) Coleman relied on an expert opinion obtained in a previous case suggesting the Milwaukee division's underrepresentation of minorities was 7.3% to 8.4% and non-Hispanic whites were over-represented by about 5.6%. (R. 33 at 6; R. 33-1 at 2-3.) He requested a hearing to present evidence based on updated figures. (R. 33 at 8.)

The magistrate judge denied the request for a hearing and recommended the motion be denied for failure to establish a prima facie case under Duren v. Missouri, 439 U.S. 357 (1979), which holds that:

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Id. at 364.^[1] The magistrate judge first noted that courts have rejected the notion that all nonwhite populations may be lumped together (as Coleman had done) or that all non-whites are a “distinctive group.” (R. 58 at 6, collecting cases.) Second, the magistrate judge noted that, under Seventh Circuit precedent, a discrepancy of less than 10% is not enough to demonstrate unfair or unreasonable representation. (R. 58 at 7, citing United States v. Phillips, 239 F.3d 829, 842 (7th Cir. 2001).) The judge further noted that Coleman's figures failed to account for factors that may render voting age persons ineligible for jury service, such as lack of citizenship, lack of English proficiency, or having been convicted of a felony and not having rights restored. (R. 58 at 8, citing 28 U.S.C. § 1865(b).) Finally, the magistrate judge noted that, to the extent Coleman argued the plan's decision to use actual voters resulted in systemic exclusion, the Jury Selection and Service Act explicitly authorizes the use of lists of actual voters. (R. 58 at 9, citing 28 U.S.C. § 1863(b)(2).)

Coleman objects and requests a hearing, arguing that the magistrate judge conflated the standard for gaining the chance to offer evidence with the prima facie showing required once that evidence is offered. (R. 62 at 5.) He notes that since the filing of his motion new census data has been released, and if the court grants a hearing the parties' experts can use those more current figures. (R. 62 at 7.) He presents a supplemental affidavit from Prof. Kenneth Mayer asserting that whites are now over-represented by more than 12%. (R. 62 at 8; R. 63 at 2-3 ¶ 4.)

Turning to the magistrate judge's analysis, Coleman concedes that courts have rejected the notion that all racial or ethnic minorities can be lumped together as a distinctive group. (R 62 at 9.) However, he contends that courts have treated the issue as a purely legal question, overlooking sociological studies documenting many shared experiences and commonalities across racial and ethnic minority groups. (R. 62 at 10-11; see R. 64 at 2-8, affidavit of Joe R. Feagin, Ph.D.) “The immediate question is whether, on balance, the constitutional interest of a fair cross-section of the community and equal access to jury service means that the shared interests of minority groups collectively outweigh their differences or distinctions in this context.” (R. 62 at 14.) Coleman...