United States of America, Plaintiff-Appellee, v. Osmund Clarke, Defendant-Appellant.
No. 99-3602
United States Court of Appeals For the Seventh Circuit
September 14, 2000
Manion, Diane P. Wood, and Evans, Circuit Judges.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 98 CR 121--David F. Hamilton, Judge. Argued April 11, 2000
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
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
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,
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
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
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 agreement, which was in evidence, Gosha had to testify truthfully. It then argued that based on the evidence, he had done so:
Now, I‘m not going to stand up here and tell you that he did not receive a benefit [for his testimony]. He clearly did. But in jury selection you all said that you would look into the agreement that he made and listen to all the evidence. And take a look at the agreement Donell Gosha made. He has to testify truthfully. Review his plea agreement. And I submit to you, based on the evidence that you have heard from him, from Jason Hart, from the police officers in this case, [and from] the physical evidence that Donell Gosha did just that[;] good, bad and indifferent he told how it was[;] he testified truthfully.
To show that Hart testified truthfully, the government gave examples where Gosha corroborated Hart‘s testimony. It then stated “[s]o, clearly he‘s telling the truth about Donell Gosha. Why then has there been any reason to show that he would lie about Osmund Clarke. He has no incentive to lie about Osmund Clarke. That is why you should trust Mr. Jason Hart. He is equally credible with regard to Donell Gosha as he is with Osmund Clarke.” The government then discussed how Gosha‘s testimony corroborated Hart‘s testimony about Clarke. Clarke did not object to these statements. The jury found him guilty of both offenses, and he appeals.
II. Discussion
Clarke contends that the district court committed three errors, and that each independently requires reversal of his conviction: not suppressing the bullets and the hand-held scale that were obtained from the search of Clarke‘s girlfriend‘s house and which were admitted into evidence; not granting a mistrial on the gun possession and drug distribution charges; and allowing the government to “vouch” for the credibility of Gosha and Hart
A. The Motion to Suppress
“Federal Rule of Criminal Procedure 12(b) requires that motions to suppress evidence be raised prior to trial.” United States v. Mancillas, 183 F.3d 682, 703 (7th Cir. 1999). District courts may set deadlines for such motions,
Clarke violated the court‘s pretrial deadline by not filing his motion to suppress until the morning of trial; as a result, he waived any suppression issues for appellate review. See Mancillas, 183 F.3d at 704 (late filing waived issue); accord Moralez, 964 F.2d at 681. But then, for whatever reason, the district court relieved him of his waiver with respect to his motion to suppress the gun. While Clarke had sought to suppress all of the evidence obtained during the search of his girlfriend‘s house, after the government objected to the untimeliness of the motion, Clarke sought only to exclude the gun. He does not argue to us, as he could, that we should excuse his waiver of the suppression issue as to the bullets and the scale because he had cause for filing his motion to suppress late. See Evans, 131 F.3d at 1193 (cause required to excuse waiver). Instead, he attempts to distort the picture by portraying the district court as ignoring the part of his motion pertaining to the bullets and the scale. Because Clarke does not argue that he had cause for filing his motion late as is required to excuse his waiver, he has not only waived appellate review of the issue of suppressing the bullets and the scale, Mancillas, 183 F.3d at 703; Krankel, 164 F.3d at 1051; he has also waived our review of the issue of his waiver under
Thus far, we have been treating Clarke‘s failure to move timely to suppress the items seized at his girlfriend‘s house as a “waiver” of their admissibility consistent with the Fourth Amendment. A “waiver” in the technical sense, however, arises from an intentional relinquishment of a right; a “forfeiture” occurs when a party fails to assert, or to timely assert, a right. See United States v. Johnson, 2000 WL 1060596, at *1 (7th Cir. Aug. 3) (Waiver “is canonically defined as an intentional relinquishment of a right“; forfeiture “is where the right is taken away from its holder as a penalty for failure to assert it in a clear and timely manner.“); United States v. Perry, 2000 WL 1056284, at *2 (7th Cir. Aug. 1) (“Waiver is the intentional relinquishment of a known right. Forfeiture, on the other hand, is the failure to make a timely assertion of a right. ‘Where waiver is accomplished by intent, forfeiture comes about through neglect.‘“) (citations omitted). This distinction is significant because “waived” errors are unreviewable, while forfeited errors are reviewable, but only for plain error. See Perry, 2000 WL 1056284, at *2. Clarke‘s
But Clarke has another problem aside from his
Finally, even if Clarke‘s failure to timely move to suppress (and his later narrowing of that motion to pertain only to the gun) is viewed as a forfeiture rather than a waiver, we would review
B. The Motion for a Mistrial on The Substantive Offenses
“A trial judge has broad discretion in deciding whether, in the context of the entire trial, a defendant‘s motion for a mistrial should be granted.” United States v. Mealy, 851 F.2d 890, 902 (7th Cir. 1988). The reason for conferring this broad discretion on the judge is that he is in the best position to determine the seriousness of the incident in question, particularly as it relates to what has transpired in the course of the trial. Id.; see also United States v. Miller, 199 F.3d 416, 421 (7th Cir. 1999); United States v. Lomeli, 76 F.3d 146, 149 (7th Cir. 1996). As a result, we will reverse a decision denying a mistrial only if the district court has abused its discretion, Miller, 199 F.3d at 421; Lomeli, 76 F.3d at 149, which means that we must affirm unless we have a strong conviction that the district court erred. United States v. Cheska, 202 F.3d 947, 950 (7th Cir. 2000). The ultimate focus of our inquiry is whether the defendant was deprived of a fair trial. United States v. Brack, 188 F.3d 748, 759 (7th Cir. 1999); United States v. Evans, 994 F.2d 317, 324-25 (7th Cir. 1993). In this regard, we have long “upheld a trial court‘s exercise of discretion in issuing a cautionary instruction, rather than declaring a mistrial, to cure any potential prejudice.” Mealy, 851 F.2d at 902; see also Miller, 199 F.3d at 421; Lomeli, 76 F.3d at 149.1
Clarke argues that because the jury heard a significant amount of conspiracy evidence that had little if anything to do with the drug distribution and gun possession charges, the district court should have declared a mistrial on these offenses, too. He argues that while a limiting instruction would normally prevent him
As an initial matter, some of the conspiracy evidence that the jury heard was in fact also relevant to the distribution charge. To be guilty of cocaine distribution, a person not only has to distribute cocaine; he has to knowingly and intentionally distribute cocaine and know that the substance he was distributing was a controlled substance. See
The question then becomes whether the court‘s instruction was so confusing and the task it assigned the jury so difficult that it rendered the instruction ineffective. Jury instructions must be examined as a whole. United States v. Thornton, 197 F.3d 241, 254 (7th Cir. 1999). An instruction is not ineffective “unless there is an ‘overwhelming probability’ that the jury will be unable to follow the court‘s instructions and a strong likelihood that the effect will be ‘devastating’ to the defendant.” United States v. Humphrey, 34 F.3d 551, 556-57 (7th Cir. 1994). Here, the instruction not to consider “evidence relevant to only the conspiracy charge”
Furthermore, the jury was capable of performing this task without the court specifically telling them what that evidence was. Juries are often asked to separate or exclude evidence as pertaining “only” to certain charges or certain defendants without courts spelling out exactly what that evidence is. See United States v. Cusimano, 148 F.3d 824, 829-30 (7th Cir. 1998) (instruction which directed jury to consider evidence “only” for the conspiracy alleged in indictment and not for other conspiracies that the evidence established was not plainly erroneous). In United States v. Canino, 949 F.2d 928, 936-37 (7th Cir. 1991), as in this case, we affirmed the denial of a mistrial in a drug distribution conspiracy as to certain defendants after granting a mistrial for a co-defendant. In rejecting the remaining defendants’ requests for a general mistrial due to the absence of their co-defendant, we noted that the “jury was instructed not to concern itself with the absence of [the co-defendant], and to decide the case against each defendant based on the evidence introduced against the individual defendant.” Id. at 937. In this case, we agree with the district judge that the evidence about Clarke distributing drugs and carrying a gun was discrete from the conspiracy evidence, and that the jurors were capable of excluding evidence that had nothing to do with Clarke possessing a gun or distributing drugs. Their ability to do so is particularly likely given the court‘s guidance that the evidence about these two offenses concerned what occurred on three dates, not at other times. See Cusimano, 148 F.3d at 830 (jury instruction that was allegedly confusing because it told jurors to consider all criminal activity was not plainly
Finally, we disagree with Clarke that no matter what instruction the district court would have given, a mistrial would have been required because the jury could not disregard “the mountain of irrelevant” conspiracy evidence. Juries are presumed to follow instructions. Humphrey, 34 F.3d at 556; United States v. Ferguson, 935 F.2d 1518, 1527 (7th Cir. 1991). Here, the court promptly instructed the jury not to consider Officer Harris‘s car-jacking comment (which did not pertain to Clarke anyway) or evidence of the conspiracy that had nothing to do with the substantive offenses. Clarke has not persuaded us that the normal presumption should not apply here. Although in the three days of trial before a mistrial was declared the jury heard a lot of evidence about the conspiracy, little of it was tied to Clarke. In this “mountain” of evidence, the lone reference to Clarke‘s involvement is contained in less than one-half of one page of the trial transcript. See Humphrey, 34 F.3d at 557 (in considering whether an instruction cured improper testimony and ensured a fair trial, the court should consider the efficacy of the instruction and “the record as a whole“); Ferguson, 935 F.2d at 1527-28 (immediate curative instruction and addressing improper testimony in final instruction adequately addressed “single isolated statement“). Clarke‘s concern that there is a strong likelihood that the jury attributed to him a series of acts is unfounded. If anything, the evidence presented shows he did not commit most of the acts alleged concerning the conspiracy.
On the contrary, Clarke was convicted because the evidence was sufficiently strong that he distributed drugs and carried a handgun while doing so. Gosha and Hart‘s testimony as to Clarke‘s involvement on these transactions was specific and substantial. Although Clarke points out that they are questionable sources, the jury (as we will next see) took this into account. But
C. The Prosecutor‘s Statements During Closing Argument
Lastly, Clarke argues that in discussing the credibility of Gosha and Hart, the prosecutor impermissibly “vouched” for them during closing argument. Because Clarke did not object to the prosecutor‘s statements at that time, we review this claim for plain error. See
“Claims that a prosecutor has tainted a trial with improper remarks are met in this circuit with a two-step inquiry. We first consider the remarks in isolation. If they are improper in the abstract, we then regard them in the context of the entire record and ask whether they denied the defendant a fair trial. Only if the remarks undermined the fairness of the proceedings below will we overturn a conviction.” Id. at 766. As to the first step, “we have grouped two related evils” under “the rubric of ‘vouching.‘” Id. at 767. “It is improper for a prosecutor to express her personal belief in the truthfulness of a witness, and it is improper for a prosecutor to imply that facts not before the jury lend a witness credibility.” Id.
Clarke also complains that the government improperly referred to Gosha‘s obligations under the plea agreement to tell the truth. We have repeatedly upheld the government‘s ability to point out that its witnesses, under their plea agreements, are required to testify truthfully. See Renteria, 106 F.3d at 766-67 (not vouching to argue that witnesses testified truthfully in compliance with their plea agreements so that they would not lose benefits of the agreements); see also Thornton, 197 F.3d at 252 (“The proffer letters and plea agreements merely laid out the terms and conditions of the agreements. Each side could urge competing inferences--as indeed the defendants did--but the jury‘s role as independent fact finder was not undermined.“); United States v. Griffin, 194 F.3d 808, 823 (7th Cir. 1999) (“[T]he prosecutor committed no vouching misconduct by eliciting testimony from [the witness] that the plea agreement required him to tell the truth.“). But Clarke argues that the government here went further and guaranteed that Gosha in fact told the truth by stating that under the plea agreement, Gosha “has to testify truthfully.”
Furthermore, even if the remark about the plea agreement was improper, Clarke does not satisfy the second step in the inquiry: in the context of the entire record, the remark did not deprive him of a fair trial. Renteria, 106 F.3d at 766. To determine the remark‘s effect on the fairness of the trial, we look at five factors: “1) the nature and seriousness of the prosecutorial misconduct; 2) whether the conduct of the defense counsel invited the prosecutor‘s remarks; 3) whether the trial court‘s instructions to the jury were adequate; 4) whether the defense was able to counter the improper arguments through rebuttal; and 5) the weight of the evidence against the defendant.” Cusimano, 148 F.3d at 831-32. Here, the prosecutor‘s comment about the plea agreement was “not egregious.” Id. at 832. Furthermore, Clarke invited this comment by repeatedly attacking Gosha‘s truthfulness due to the fact that he entered into a plea agreement. Id. Because Clarke did not object “at the time, the trial court did not instruct the jury specifically in regard to the prosecutor‘s comments. However, the court did instruct the jury that closing arguments are not evidence . . . .” Id. It stated that:
Closing arguments will be for the purpose of discussing the evidence. Mere assertions alone by any of the lawyers in opening statements or closing arguments do not constitute any evidence whatsoever in this case. You should not consider
the opening or closing statements as proof of any facts. You should only consider them as they might be confirmed or disconfirmed by evidence that you heard during the testimony in the case.
We have already stated that such an instruction can effectively cure prosecutor‘s statements about the truthfulness of witnesses who have signed plea agreements. See United States v. Robbins, 197 F.3d 829, 843 (7th Cir. 1999). Since the government made its statement about Gosha‘s plea agreement in its initial remarks during closing argument, Clarke had the opportunity to rebut this comment, and in fact did so by again challenging Gosha‘s motives due to his plea agreement. Finally, “the weight of the evidence supports” Clarke‘s conviction. Cusimano, 148 F.3d at 832. In light of the above factors, Clarke “cannot persuade us that the prosecutor‘s remarks deprived him of a fair trial.” Id. (assuming government‘s statement that its witnesses “are bound by written plea agreements which require them to tell the truth” was improper, the statement did not deprive the defendant of a fair trial).
III. Conclusion
Under
Furthermore, the district court did not abuse its discretion in denying Clarke‘s motion for a mistrial because the jury instructions ensured that he would receive a fair trial, and together the testimonial and physical evidence was strong that Clarke distributed drugs and carried a gun while doing so. Finally, the government did not vouch for the truthfulness of its star witnesses during closing argument. But however one interprets the prosecutor‘s statements, they did not deprive Clarke of a fair trial.
For the foregoing reasons, the judgment of the district court is AFFIRMED.