UNITED STATES of America, Plaintiff-Appellee, v. Lamarr FLETCHER, Defendant-Appellant.
No. 06-6304.
United States Court of Appeals, Sixth Circuit.
Oct. 1, 2008.
Though DiCarlo‘s assault of Farah satisfies the objective component of the inquiry, viewing the facts in the light most favorable to Farah, White did not possess the requisite subjective knowledge that Farah faced a substantial risk to his safety due to DiCarlo‘s presence on the elevator. Because there is no dispute that White‘s movement sheet had no written instructions that he should keep Farah separate from DiCarlo, White could not have been expected to take additional measures to protect Farah, and no constitutional violation occurred. Therefore, the lower court correctly granted White qualified immunity on Farah‘s claim. By extension, Farah‘s failure to present facts establishing a constitutional violation also makes appropriate the lower court‘s dismissal of Farah‘s claim as to Defendants Wellington, Budd, and Mahoning County.
In short, Farah has not set forth any evidence suggesting that Defendants’ failure to act to protect him from DiCarlo‘s assault rises to the level of “deliberate indifference” required to establish a valid claim for relief pursuant to
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s grant of summary judgment to the Defendants.
JOHN R. GIBSON, Circuit Judge.
Lamarr Fletcher was found guilty by a jury of nine counts of narcotics trafficking under
Wilson County Police Detective John Edwards launched a drug investigation based on information he received from the Mt. Juliet Police Department, which was using a confidential informant. On February 18, 2003, under the surveillance of Edwards and others, the informant conducted a controlled buy at the residence of Don Howard in Wilson County, Tennessee. Howard was not home, but the informant was able to solicit powder cocaine from Howard‘s girlfriend, Rebecca Adcock. Adcock did not have the cocaine requested on hand, so she called “Lamont” Fletcher and asked for an “eighth” of powder cocaine. Shortly thereafter, Howard arrived. Police then observed Fletcher arrive in a white Jeep Cherokee, greet Howard, and follow Howard inside the residence. There was audible recording of Fletcher providing .9 grams of cocaine to the confidential informant.
Police conducted another controlled buy at Howard‘s residence on March 20, 2003, between the same confidential informant and Howard. After the informant arrived, Howard was observed getting into and riding a few hundred yards in a white Jeep Cherokee. When he returned, he sold the informant 2.7 grams of crack cocaine. When the informant turned the cocaine over to police, it was weighed, and they determined that the informant had not received the proper amount of cocaine for the money paid. The informant phoned Fletcher, who told the informant, “I done took him [Howard] four, three or four more grams over there man . . .” Police then followed the informant back to Howard‘s residence, where the informant received .8 more grams of crack cocaine from Howard.
Police then shifted their investigation to Ben Bashaw because the informant was able to purchase drugs directly from Bashaw. Bashaw, who testified for the govern-
Fletcher‘s girlfriend, Jewell Jones, testified pursuant to a court order compelling her testimony in exchange for limited use immunity. She stated that she took two trips to Chicago with Fletcher in 2003 to purchase cocaine from Martinez. She estimated that he purchased 2.5 kilograms of cocaine on the second trip. She also testified that Fletcher sold both crack cocaine, which he cooked at home, and powder cocaine. She also knew that he rented a storage unit where he kept his drugs.
Martinez also testified against Fletcher. He stated that on three occasions between late 2001 and the middle of 2002 he sold Fletcher .25 kilograms, .75 kilograms, and 1 kilogram of cocaine. Martinez also testified that he introduced Fletcher to another man called “Benjamin,” from whom Fletcher purchased a kilogram of cocaine on each of two or three occasions.
Fletcher was arrested on October 21, 2003 when police from several different law enforcement agencies arrived at his residence with an arrest warrant. Fletcher left the residence voluntarily and was taken into custody by a SWAT officer from the Metro Police Department. They seized from his person $1,473 cash and two bags containing 27.6 grams and 3.6 grams of cocaine. Jewell Jones, John Wayne Corder, and Jones‘s small child were inside the residence. Corder was found to be in possession of $3,000 cash at the time of Fletcher‘s arrest. Jones testified that when Fletcher learned police were outside, she observed him give Corder the cash and throw a bag of marijuana into the attic. She also observed Fletcher flush marijuana down the toilet, and she claimed Fletcher told her to carry out three ounces of cocaine, which she hid in a hamper.
After his arrest, Fletcher signed a consent to search form presented to him by Detective Edwards. A search of Fletcher‘s house resulted in the seizure of 84 grams of cocaine from the child‘s bedroom, 29 one ounce bags of marijuana from the attic, an application for a social security card and birth certificate in the name of Ben Martinez, a cellular telephone, and digital scales. The officers saw what appeared to be marijuana residue in the toilet and found a white Jeep Cherokee on the property.
Pursuant to jail procedures, Fletcher‘s phone calls were monitored while he was in custody. Police recorded a conversation between Fletcher and Jones where she suggested that police had missed something, during their search of the attic. Police used this information to obtain a search warrant for Fletcher‘s residence. The warrant issued and was executed on October 24, 2003. Police found no additional drugs, but they seized a lease in Fletcher‘s name for a storage unit in Nashville, Tennessee. Police went to the storage unit, where a drug dog positively alerted for the presence of drugs. After obtaining a state search warrant for the unit, police seized 986.1 grams of cocaine wrapped in individual bags and all stored in a shopping bag from a Chicago store.
I.
Before trial, Fletcher moved for early disclosure of all “Jencks material” and immediate disclosure of all impeachment material that the government possessed for
The only material Fletcher specifically identifies in his brief as having never been disclosed was material from the proffer sessions of government witness Ben Bashaw. The government claims it could not disclose the alleged statement because a report was not made of the proffer session.2 The defendant bears the burden of proving that a “statement” for purposes of the Jencks Act exists and is covered by the Act‘s disclosure requirements. See United States v. Dark, 597 F.2d 1097, 1099 (6th Cir.1979) (holding that “trial court was under no obligation to examine the file in camera, since there was no basis for belief that a Jencks Act ‘statement’ existed other than those already furnished defense counsel“); accord United States v. Grecni, 1991 WL 139703, at *5 (6th Cir.1991) (unpublished) (“A district court need not even conduct an in camera review unless the defendant meets the initial burden of showing that a certain document exists, that the document qualifies as a statement under the Jencks Act, and that the government violated the law by failing to provide the defendant with the document.“) (citing United States v. Allen, 798 F.2d 985, 996 (7th Cir.1986)). Fletcher produced no evidence contradicting the government‘s contention that Bashaw‘s proffer session was not recorded, transcribed or reduced to a writing that Bashaw signed or adopted. A “statement” for Jencks Act includes only (1) a “written statement made” and “signed or otherwise adopted” by the witness, (2) a “substantially verbatim recital of an oral statement . . . by [the] witness . . . recorded [or “transcribed“] contemporaneously with the making of [the] oral statement,” or (3) “a statement, however taken or recorded . . . made by said witness to a grand jury.”
In an attempt to overcome the clear text of the statute, Fletcher claims that the government‘s failure to disclose earlier impeachment material also violated his due process rights under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to all “material exculpatory evidence” possessed by the government, including impeachment evidence of government witnesses. See also
With regard to Bashaw‘s proffer session, the government voluntarily disclosed to Fletcher the fact that Bashaw said that he only made two trips to Chicago with Fletcher, despite the fact that he would testify at trial that he made three trips. Fletcher had the impeachment information well in advance of cross-examination. In fact, he did cross-examine Bashaw about the inconsistency and Bashaw admitted to it. Fletcher cannot show, then, that the government failed to disclose “material exculpatory evidence.” Brady, 373 U.S. at 87, 83 S.Ct. 1194.
II.
Fletcher argues that there was insufficient evidence to support the jury‘s drug quantity findings by proof beyond a reasonable doubt. He relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. We review Apprendi violations for harmless error. Campbell v. United States, 364 F.3d 727, 737 (6th Cir. 2004).
Based solely on the fact of conviction for distributing cocaine or cocaine base, Fletcher was exposed to a maximum sentence of twenty years in prison. See
To the extent that Fletcher‘s argument might be construed as an attack on the district court‘s calculation of his Guidelines’ advisory sentencing range, we conclude any error in the district court‘s drug quantity determination is also harmless. We review a sentencing court‘s drug quantity findings for clear error. United States v. Charles, 138 F.3d 257, 267 (6th Cir.1998). We have some doubt about the accuracy of the district court‘s exact drug quantity finding of 2,539.751 kilograms of marijuana or 12.7 kilograms of cocaine, which was based largely on testimonial evidence. The district court adopted the finding alleged in the presentence report and used the methodology described in that report. The presentence report assigned responsibility to Fletcher for 10.8864 kilograms of cocaine solely based on co-conspirator Bashaw‘s statement to police that he had been “purchasing eight to nine ounces of cocaine, two or three times per month, for the past two years.” But the government offered no proof in support of this statement, which appeared in the record for the first time in the presentence report. It did appear in Agent Hale‘s report of investigation, but we find no place in the record where Hale‘s report was admitted into evidence either at trial or at sentencing. Although Bashaw testified at trial, he did not recite this fact. Neither did Agent Hale when he testified at trial. At sentencing, the government presented no proof. When a defendant objects to a sentencing fact, the “court may not merely summarily adopt the factual findings in the presentence report or simply declare that the facts are supported by a preponderance of the evidence.” United States v. Ross, 502 F.3d 521, 531 (6th Cir.2007) (internal quotation marks omitted), cert. denied, U.S. , 128 S.Ct. 1723, 170 L.Ed.2d 514 (2008). Therefore, the district court erred in finding Fletcher responsible for 10.8864 kilograms of cocaine purely on the basis of statements in the presentence report.
Although we are troubled by the district court‘s sole reliance on the presentence report, which is not evidence, we conclude the error was harmless. The district court‘s drug quantity finding resulted in an offense level of 32, which applies if Fletcher is responsible for at least 5 kilograms but less than 15 kilograms of cocaine.
III.
Fletcher argues that police lacked probable cause to obtain a search warrant to conduct a second search of his residence while he was in custody. He requested a Franks hearing to produce evidence that the warrant was procured through fraud or through reckless disregard for the truth, which the district court denied. Under Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), an evidentiary hearing is required only where counsel raises “allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.” Id. at 171, 98 S.Ct. 2674. To obtain an evidentiary hearing, a defendant must satisfy a two-part test. United States v. Hill, 142 F.3d 305, 310 (6th Cir.1998). First, a “defendant must make a substantial preliminary showing that specified portions of the affiant‘s averments are deliberately or recklessly false.” Id. (internal quotation marks omitted). Second, the challenged statements must be necessary to a finding of probable cause. “If exclusion of the inaccurate statement would leave the affidavit with insufficient content to establish probable cause, then the warrant is invalid.” Id.
“We review the district court‘s denial of a Franks hearing under the same standard as for the denial of a motion to suppress: the district court‘s factual findings are reviewed for clear error and its conclusions of law are reviewed de novo.” United States v. Graham, 275 F.3d 490, 505 (6th Cir.2001). To obtain the warrant, police relied on a recorded telephone conversation between Fletcher, who was in custody at the time, and Jones. During the conversation, Jones alluded to the fact that police missed contraband during the search of Fletcher‘s attic. In particular, she stated, “I know it wasn‘t bothered by them so I‘m just saying I know it‘s there somewhere just you know.” Fletcher argues that since police searched the attic previously, they knew there was no contraband present and deliberately misled the court when they used this conversation as a basis for the warrant. Fletcher‘s conversation with Jones would lead a reasonable person to conclude that police might have missed contraband during their initial search. Fletcher points to no evidence which would show that the police statements in the affidavit for a warrant were deliberately or recklessly false. We also conclude that the conversation between Fletcher and Jones established “a probability or substantial chance” that police missed contraband during the first search and, thus, probable cause existed for issuance of a search warrant. Hill, 142 F.3d at 310 (quoting Illinois v. Gates, 462 U.S. 213, 243-45, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
IV.
Fletcher consented to the first search of his residence. He argues however that his consent was not given intelligently and voluntarily because 1) Detective
We review Fletcher‘s intoxication argument for plain error because it was not specifically raised below. “Plain-error review requires us to determine whether (1) there was an error, (2) the error was obvious or clear, (3) the error affected the defendant‘s substantial rights, and (4) this adverse impact seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Erpenbeck, 532 F.3d 423, 444 (6th Cir.2008) (internal quotation marks omitted). Although Fletcher testified he had been drinking the night before the search, he denied that he was drinking “heavily.” The two police officers who obtained his written consent testified that, even though they smelled alcohol on his breath, he did not seem impaired, was not swaying or unsteady, had no trouble signing the consent form, and appeared to be coherent. Based on the testimony of the officers, then, it is evident that Fletcher gave consent voluntarily; no “obvious or clear” error occurred.
Since Fletcher raised the scope of consent issue in the court below, we review for clear error the district court‘s factual findings and de novo its legal conclusions. Graham, 275 F.3d at 505. Fletcher argues that police exceeded the scope of his consent by allowing Wilson County officers, such as Detective Edwards, to conduct the search of his residence. Fletcher was involved in a civil lawsuit against the Wilson County Sheriff‘s Department, and he argues that officers should have identified themselves as such before obtaining consent to search his home. Fletcher cites no case law in support of his argument. Rather, Fletcher relies upon the fact that he had the right to limit the scope of his consensual search. “The standard for measuring the scope of a suspect‘s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 250-51, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Fletcher signed a consent to search form authorizing the search of his residence. He points to no evidence that he expressed an intent to exclude certain people from the scope of his consent. Neither does he bring to our attention any evidence that the specific officers were aware of his lawsuit against the department. Therefore, there is no evidence that a reasonable officer had any reason to interpret Fletcher‘s consent to search as anything other than general. Consequently, the district court did not err in denying Fletcher‘s motion to suppress.
Fletcher also argues that police did not inform him of his Miranda rights following his arrest and interrogation, and that his post-arrest statements “should be excluded.” This issue basically devolves into a credibility determination. Detectives Edwards and Ezell both testified that Edwards read Fletcher his Miranda rights, but their accounts differ as to who supplied the waiver form. Such a minor inconsistency, not relevant to whether Fletcher was actually read his rights, is insufficient for us to hold that the district court clearly erred in finding that Fletcher was informed of his constitutional rights.
Fletcher argues the district court erred in not granting him a new trial. We will reverse the district court‘s denial of a motion for a new trial only if there was a clear abuse of discretion. United States v. Seago, 930 F.2d 482, 488 (6th Cir.1991). The majority of Fletcher‘s arguments for a new trial relate to the credibility of the witnesses. We give great deference to a fact finder‘s credibility determinations, United States v. Dillard, 438 F.3d 675, 681 (6th Cir.2006), cert. denied, 549 U.S. 925, 127 S.Ct. 291, 166 L.Ed.2d 222, and our review of the record satisfies us that the district court did not err in denying Fletcher‘s motion for a new trial in light of the substantial evidence introduced against him, which included controlled buys, the seizure of large quantities of drugs and drug distribution equipment either in Fletcher‘s possession or under his control, and the testimony of co-conspirators.
VI.
We reserve review of Fletcher‘s ineffective assistance of counsel claims in light of our practice to “generally . . . not review ineffective assistance of counsel claims on direct appeal because the record is insufficiently developed to assess the merits of such claims.” United States v. Davis, 306 F.3d 398, 422 (6th Cir.2002). Finally, we conclude that the arguments raised in Fletcher‘s pro se supplemental brief are without merit.
VI.
For these reasons, the judgment of the district court is AFFIRMED.