UNITED STATES OF AMERICA v. FREDDIE CLARK
No. 20-10672
United States Court of Appeals for the Eleventh Circuit
April 28, 2022
[PUBLISH]
Appeal from the United States District Court for the Middle District of Georgia
D.C. Docket No. 4:18-cr-00046-CDL-MSH-1
Before JORDAN, JILL PRYOR, and TJOFLAT, Circuit Judges.
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
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
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.
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
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
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.
II.
Clark appealed on five grounds. First, he argues that the District Court abused its discretion in failing to grant his motion for a new trial based on the Government‘s disclosure of the Brady material after trial. Second, he argues that the District Court erred in denying his motion to suppress the evidence seized as a result of the traffic stop and subsequent arrest. Third, Clark contends that the District Court plainly erred in violation of the Sixth Amendment when it failed to specifically instruct the jury to apply the beyond-a-reasonable-doubt standard to the question of the weight of the methamphetamine. Fourth, Clark claims that the District Court abused its discretion in admitting evidence of all eight of Clark‘s prior felony convictions. And, finally, Clark argues that the cumulative effect of errors in the District
III.
Clark‘s first contention is that the District Court abused its discretion in denying his motion for a new trial based on the Government‘s post-trial disclosure of Brady material about Culp‘s internal discipline for prematurely destroying evidence. See United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002) (applying abuse-of-discretion standard to motion for new trial based on Brady material). Specifically, Clark explains that he would have impeached Culp on the interstate nexus of the firearm and that “[h]e would have forgone a bifurcated trial in order to lodge a more aggressive attack on the credibility of all of the law enforcement officers involved in the case,” had he known about Culp‘s misconduct prior to trial. To make out a Brady claim on impeaching evidence that was inadvertently suppressed by the Government as occurred in this case, a defendant “must show that, had the evidence been revealed to the defense, there is a reasonable probability that the outcome of the proceeding would have been different.” United States v. Fernandez, 136 F.3d 1434, 1438 (11th Cir. 1998) (citing United States v. Newton, 44 F.3d 913, 918 (11th Cir. 1994)). Our inquiry is whether the defendant received a fair trial with a “verdict worthy of confidence,” even without the disclosure of the Brady material. Kyles v. Whitley, 514 U.S. 419, 434 (1995). We conclude that, in this case, Clark did receive such a verdict.
Culp‘s role was to act as an expert witness to establish the interstate nexus for the firearm in phase two of the trial—the portion of the trial dedicated to Count 1 for
While Special Agent Culp‘s misconduct in handling evidence in a previous case was egregious enough for him to be barred from bringing cases in at least one United States Attorney‘s Office, it is not clear that the failure to disclose his prior mishandling of evidence would serve to render this trial unfair. Even if there would have been impeachment value for his prior discipline, there is not a reasonable probability that it would have affected the jury‘s conclusion that the firearm was manufactured in Arizona, where the marking on the barrel clearly displayed “Prescott, AZ.” See United States v. Stahlman, 934 F.3d 1199, 1229 (11th Cir. 2019) (explaining that an agent‘s prior discipline would not have changed the overall outcome of the trial where the evidence was undisputed and overwhelming).
As to Clark‘s second argument that he would have forgone a bifurcated trial and attacked the credibility of all the Government‘s witnesses had he known about Culp‘s past misconduct, we are unpersuaded. Culp had nothing to do with the evidence
IV.
Clark‘s second claim is that the District Court erred in denying Clark‘s motion to suppress the evidence seized as a result of the traffic stop and subsequent arrest. See United States v. Plasencia, 886 F.3d 1336, 1342 (11th Cir. 2018) (explaining that in the context of a motion to suppress we review a district court‘s factual findings for clear error and its application of law de novo). The main thrust of Clark‘s argument is that there was no reasonable suspicion or probable cause for Ragland to make a traffic stop in the first place and then no probable cause to search Clark and the car.
As to the probable cause to stop the car in the first place,1 Ragland said in his body cam footage that night and during his
testimony that he turned on his patrol lights to stop Clark because he noticed a car weaving in and out of lanes, which is a violation of Georgia law. See
The problem with Clark‘s argument is that he seeks to impermissibly heighten the probable cause standard to require officers to have perfect memory as to why they stopped an individual. We decline his implied invitation to raise the standard for probable cause.
“A traffic stop is a seizure within the meaning of the Fourth Amendment.” United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). And an officer may stop a car “when there is probable cause to
Turning to Clark‘s case, we do not think the District Court clearly erred in the factfinding here based on Ragland‘s credible testimony that Clark was weaving between lanes. And the fact of Clark weaving in violation of Georgia law, as found by the District Court, created probable cause that Clark had committed a Georgia traffic infraction. So, with that, we hold that there was probable cause to stop the car in the first place.
Next, we turn to Clark‘s contention that Ragland lacked probable cause to arrest Clark and conduct a search incident to arrest. The gas station where Clark ultimately pulled over was about half a mile from the spot where Ragland first activated his patrol lights. Once at the gas station, Clark did not immediately comply with Ragland‘s command to get out of the car. Clark has a benign explanation for these two instances of seemingly failing to comply with an officer‘s orders—an explanation the District Court did not buy. First, Clark says that it was early in the morning, between 2:00 AM and 3:00 AM, and he was driving to a well-lit, more populated spot before stopping his car. He also says that he had a plate of food in his lap when Ragland ordered him to get out of the car. And, because the initial stop would have only been for a traffic violation, Clark‘s theory is that there was no probable cause for arrest here and that he was due only a citation.
Clark‘s attempt at an innocent explanation for his behavior is unavailing. To determine whether his arrest comported with the Fourth Amendment, the question is not whether there is an innocent explanation for Clark‘s behavior, but rather whether there was probable cause—that is, whether based on the “facts and circumstances within the officer‘s knowledge, . . . a prudent person [would] believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Wilkerson v. Seymour, 736 F.3d 974, 978 (11th Cir. 2013) (internal citation and quotation marks omitted). Under Georgia law, failure to maintain a lane is an arrestable offense. See Lopez v. State, 286 Ga. App. 873, 875 (Ga. Ct. App. 2007). So, on that ground alone, Ragland had authority to arrest Clark.2 See Draper v. Reynolds, 369 F.3d 1270, 1276 (11th Cir. 2004) (explaining that an officer was justified in arresting suspect for Georgia traffic violation); see also Atwater v. City of Lago Vista, 532 U.S. 318, 351–55 (2001) (explaining that both
short, because the District Court did not clearly err in finding that Clark was weaving in violation of Georgia traffic laws, we hold that there was probable cause to stop and arrest Clark.
V.
Next, Clark argues that the District Court failed to specifically instruct the jury to apply the beyond-a-reasonable-doubt standard to the special verdict question of weight. Clark did not raise this objection below, so we review it for plain error. United States v. Felts, 579 F.3d 1341, 1343 (11th Cir. 2009).
Count 2 charged Clark with possessing methamphetamine with intent to distribute it. The District Court instructed the jury as follows:
The defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt: one, that the defendant knowingly possessed methamphetamine; and, two, that the defendant intended to distribute methamphetamine . . . . The defendant is charged with possessing and intending to distribute at least 5 grams of methamphetamine. But you may find the defendant guilty of the crime of possession of methamphetamine with intent to distribute it even if the amount of the controlled substance for which he should be held responsible is less than 5 grams. So if you find the defendant guilty of possession of methamphetamine with intent to distribute it, you must also unanimously agree on whether the weight of methamphetamine the defendant possessed is 5 grams or more and specify that amount on the verdict form.
If the jury found that the weight was above five grams, that finding would raise the mandatory minimum for the possession with intent to distribute to five years and the statutory maximum to forty years.
In this case, the District Court did not properly charge the jury that the weight had to be proven beyond a reasonable doubt. By separating weight out from the other two elements of the offense, the District Court distanced weight from the beyond-a-reasonable-doubt language in such a way that the jury may have assumed that weight did not need to be
When initially asked whether he had any objections to the proposed charge document, Clark‘s counsel responded that he did and put forth one objection to Charge 11, unrelated to this appeal, that the District Court sustained. When asked whether Clark‘s counsel had any other objections, counsel responded, “Other than Charge 11, Your Honor, I didn‘t have any objection.” The District Court specifically explained its planned jury instructions as follows: “What I‘m thinking is changing [the instructions] to read, ‘You must unanimously agree on whether the weight of the methamphetamine the defendant possessed is 5 grams or more and specify that finding on the verdict form.’ I mean, that‘s more accurate [than requiring the jury to come up with a particular weight].” Then, the District Court asked Clark‘s counsel, “Do you see any problem with that, Mr. Simpkins?” To which, Clark‘s counsel, Mr. Simpkins, responded, “I do not, Your Honor.” DE 89, p. 22.
Unfortunately for Clark, his counsel‘s responses serve as textbook examples of invited error, and thus we cannot continue in the plain error analysis. See United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005) (explaining that when a party affirmatively accepts a jury instruction, any resulting error is invited). We cannot reverse the jury‘s verdict on this ground.4
VI.
Clark‘s fourth argument is that the District Court abused its discretion when it admitted evidence of all eight of Clark‘s prior felony convictions, including a probation order that surveyed his lengthy arrest record, in phase two of his trial—the part of the trial dedicated to the felon-in-possession count under
Our starting point—on which both Clark and the Government must and do agree—is that under the reasoning of Rehaif the Government now must prove that
Clark decided not to stipulate to his status as a convicted felon. So, the Government had to prove at trial that Clark knew he was a felon at the time he was possessing a firearm. To do so, the Government admitted into evidence records indicating eight prior felony convictions, which included multiple drug counts and a probation order listing 42 prior offenses resulting in arrests, going all the way back to when Clark was only 15 years old in 1991. Clark now argues on appeal that the District Court abused its discretion because, he says, allowing all this evidence is a violation of Fed. R. Evid. 403. Rule 403 explains that a “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice . . . or needlessly presenting cumulative evidence.” Clark suggests that evidence of one prior felony conviction should have been allowed and only evidence of one prior felony conviction. We disagree. Sometimes, as Clark did in this case, a defendant will challenge a prior felony conviction. So, we cannot establish a rule that says, “Government, one and only one.” Furthermore, Clark did not stipulate to his felon status. Cf. Old Chief v. United States, 519 U.S. 172, 191–92 (1997) (holding that the district court had abused its discretion in admitting the record of conviction when the defendant in that case offered to stipulate to a prior felony conviction). So far as we can tell, no other circuit has addressed how many prior felony convictions are acceptable for the Government to admit after Rehaif. The answer likely depends on the circumstances of each case. As a general matter, though, we think it imprudent to hamstring the Government in the case where a defendant refuses to stipulate to felony status. See, e.g., United States v. Timpani, 665 F.2d 1, 6 (1st Cir. 1981) (Breyer, J.).
We do note that the arrest records included in the Probation Order were entirely irrelevant to the knowledge of being a felon, but Clark did not object at trial to the introduction of the arrest records as part of the Probation Order. Nor was it particularly relevant what the basis of the prior felony convictions was. But, again, Clark did not request redaction or ask for a limiting instruction below.
Because he did not specifically object to the admission of arrest records as part of the Probation Order at trial, request redaction of any of the records, or seek a limiting instruction below, we review all of Clark‘s claims on these grounds for plain error. See
error was plain
VII.
Finally, Clark argues that even if no one error warranted reversal, the cumulative effect of the errors in his trial should lead us to reverse and remand. See United States v. Capers, 708 F.3d 1286, 1299 (11th Cir. 2013). Because the only errors we can identify in this case are an invited error with respect to the jury instruction and potential (harmless) error with respect to the handling of the records of conviction, we cannot say that Clark experienced the type of cumulative error required to reverse a jury trial verdict. For the above reasons, we affirm.
AFFIRMED.