UNITED STATES COURT OF APPEALS
FOR THE CIRCUIT OF AMES
Docket No. CR 04-112
______
UNITED STATES
v.
MICHAEL CLARK,
Defendant-Appellant
______
BRIEF OF DEFENDANT-APPELLANT, MICHAEL CLARK
Brian Fletcher
Adam Harber
Nathan Holcomb
Joshua Salzman
S. Christopher Szczerban
Ramin Tohidi
Attorneys for Defendant-Appellant
Michael Clark
44
QUESTIONS PRESENTED
I. Is a defendant’s Sixth Amendment right to counsel violated when the government introduces evidence of his allegedly incriminating statements made to a jailhouse informant, when the informant deliberately elicited the statements, and when the government must have known that the informant was likely to do so?
II. Is a defendant’s Sixth Amendment right to confront the witnesses against him violated when a court refuses to allow him to cross-examine a government informant about the benefit that he expected to gain from cooperation, and when the informant had faced a life sentence without parole and expected to receive a ten-year sentence instead?
TABLE OF CONTENTS
QUESTIONS PRESENTED i
TABLE OF AUTHORITIES iv
STATEMENT OF THE CASE 1
SUMMARY OF ARGUMENT 5
STANDARDS OF REVIEW 8
ARGUMENT 9
I. THE ADMISSION OF CLARK’S STATEMENTS TO BURTON VIOLATED THE SIXTH AMENDMENT BECAUSE A GOVERNMENT AGENT ELICITED THEM IN THE ABSENCE OF COUNSEL. 9
A. Since Burton Deliberately Elicited Clark’s Statements, Their Introduction at Trial Violated the Sixth Amendment if Burton Was a Government Agent. 10
B. Burton Was a Government Agent Because the Government Must Have Known That He Was Likely to Deliberately Elicit Incriminating Statements from Clark. 12
1. The Supreme Court Has Established That the Sixth Amendment Prohibits the Government from Knowingly Exploiting Any Questioning of a Defendant Outside of the Presence of Counsel. 12
2. Circuit Courts Interpreting Supreme Court Precedents Establish That Informants are Government Agents if the Government Must Have Known That They Would Likely Elicit Incriminating Statements from a Defendant. 15
3. The Government Must Have Known That Burton Would Likely Attempt to Elicit Incriminating Statements from Clark. 18
C. This Court Should Decline to Adopt the “Specific Instruction” Test for Agency Applied by the District Court. 21
1. The Specific Instruction Test Is Inconsistent With Supreme Court Precedent. 21
2. Those Circuits That Have Adopted a Specific Instruction Requirement Have Misread Kuhlmannn by Removing Key Language from Its Context. 23
3. A Test for Agency That Requires Explicit Targeting Would Effectively Destroy Sixth Amendment Protections in the Context of Jailhouse Informants. 24
D. Clark’s Conviction Must be Reversed Because the Admission of Burton’s Testimony in Violation of the Sixth Amendment Was Not Harmless Beyond a Reasonable Doubt. 25
II. THE DISTRICT COURT’S LIMITATION OF CROSS-EXAMINATION VIOLATED THE SIXTH AMENDMENT BECAUSE IT DENIED CLARK HIS RIGHT TO CONFRONT BURTON AT TRIAL. 27
A. Clark Has a Sixth Amendment Right to Confront a Government Witness Testifying Against Him Through a Full and Fair Cross-Examination. 28
B. Clark Was Denied the Constitutionally Required Threshold Level of Inquiry Necessary to Satisfy His Right to Confrontation Through Cross-Examination. 30
1. The Minimum Constitutional Inquiry Must Afford the Jury an Adequate Opportunity to Make a Discriminating Appraisal of Both the Nature and Degree of a Witness’s Motives and Bias. 31
2. The Minimal Constitutional Inquiry Under the Sixth Amendment Was Not Satisfied When Clark Was Prohibited from Introducing Evidence Regarding the Magnitude of the Benefit Burton Received for His Testimony. 32
C. Clark’s Sixth Amendment Rights Were Violated When the Trial Court Abused Its Discretion in Limiting Cross-Examination Without a Reasonable Basis. 35
1. No Prejudice Would Have Resulted to the Government Case from Permitting a Complete Cross-Examination of Burton 36
2. The Attempted Cross-Examination Was Uniquely Probative, Not Repetitive as the Government Claimed. 40
D. Clark’s Conviction Must Be Reversed Because the Violation of Clark’s Right to Confrontation Was Not Harmless Beyond a Reasonable Doubt. 41
CONCLUSION 43
TABLE OF AUTHORITIES
CASES
Apprendi v. New Jersey, 530 U.S. 466 (2000) 36
Arizona v. Fulminante, 499 U.S. 279 (1991) 26
Bell v. Cone, 535 U.S. 685 (2002) 39
Bruton v. United States, 391 U.S. 123 (1968) 26
Burr v. Sullivan, 618 F.2d 583 (9th Cir. 1980) 32
Chapman v. California, 386 U.S. 18 (1967) 7, 9, 26, 41
Creel v. Johnson, 162 F.3d 385 (5th Cir. 1998) 15
Davis v. Alaska, 415 U.S. 308 (1974) passim
DeBenedetto v. Hall, 272 F.3d 1 (1st Cir. 2001) 31
Delaware v. Fensterer, 474 U.S. 15 (1985) 29
Delaware v. Van Arsdall, 475 U.S. 673 (1986) passim
Dorsey v. Parke, 872 F.2d 163 (6th Cir. 1989) 9
Douglas v. Alabama, 380 U.S. 415 (1965) 31
Gordon v. United States, 344 U.S. 414 (1953) 31
Greene v. McElroy, 360 U.S. 474 (1959) 30
Hoover v. Maryland, 714 F.2d 301 (4th Cir. 1983) 30, 33, 35, 40
Johnson v. Zerbst, 304 U.S. 458 (1938) 25
Kuhlmann v. Wilson, 477 U.S. 436 (1986) 11, 23, 24
Maine v. Moulton, 474 U.S. 159 (1985) passim
Massiah v. United States, 377 U.S. 201 (1964) passim
Ohio v. Roberts, 488 U.S. 56 (1980) 28
Sullivan v. Louisiana, 508 U.S. 275 (1993) 26
United States v. Abel, 469 U.S. 45 (1984) 29, 36
United States v. Ambers, 85 F.3d 173 (4th Cir. 1996) 34
United States v. Birbal, 113 F.2d 342 (2d Cir. 1997) 18, 21, 22, 23
United States v. Bentley, 726 F.2d 1124 (1984) 27
United States v. Brink, 39 F.3d 419 (3d Cir. 1994) 16, 17, 20
United States v. Chandler, 326 F.3d 210 (3d Cir. 2003) 32, 33, 34, 40
United States v. Cropp, 127 F.3d 354 (4th Cir. 1997) 30, 31, 37, 38
United States v. Dadanian, 818 F.2d 1443 (9th Cir. 1987) 39
United States v. Henry, 447 U.S. 264 (1980) passim
United States v. Hicks, 798 F.2d 446 (11th Cir. 1986) 23
United States v. Houghton, 554 F.2d 1219 (1st Cir. 1977) 35
United States v. Johnson, 4 F.3d 904 (8th Cir. 1993) 8
United States v. Johnson, 338 F.3d 918 (8th Cir. 2003) 21, 22
United States v. LaBare, 191 F.3d 60 (1st Cir. 1999) 18
United States v. Laboy-Delgado, 84 F.3d 22 (1st Cir. 1996) 33
United States v. Lankford, 955 F.2d 1545 (11th Cir. 1992) 36
United States v. Leon-Delfis, 203 F.3d 103 (1st Cir. 2000) 26
United States v. Luciano-Mosquera, 63 F.3d 1142 (1st Cir. 1996) 37
United States v. Malik, 680 F.2d 1162 (7th Cir. 1982) 8, 16
United States v. Mayer, 556 F.2d 245 (5th Cir. 1977) 9
United States v. Nelson, 39 F.3d 705 (7th Cir. 1994) 9, 35
United States v. Oliver, 278 F.3d 1035 (10th Cir. 2001) 9
United States v. Pelaes, 790 F.2d 254 (2d Cir. 1986) 17
United States v. Partin, 493 F.2d 750 (5th Cir. 1974) 32
United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1981) 16, 17
United States v. Surridge, 687 F.2d 250 (8th Cir. 1982) 8
United States v. Taylor, 800 F.2d 1012 (10th Cir. 1986) 10, 15, 17
United States v. Tracey, 675 F.2d 433 (1st Cir. 1982) 30
United States v. Van Scoy, 654 F.2d 257 (3d Cir. 1981) 8, 17
United States v. Watson, 894 F.2d 1345 (D.C. Cir. 1990) 16, 17
United States v. York, 933 F.2d 1343 (7th Cir. 1991) 16, 17, 25
Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999) 16
CONSTITUTIONAL PROVISIONS
U.S. Const., amend. VI 9, 27
STATUTORY PROVISIONS
21 U.S.C. § 841 (2002) 1, 37
21 U.S.C. § 846 (2002) 1, 37
21 U.S.C. § 960(a) (2002)……………………..…………………………………………37
RULES
Fed. R. Crim. P. 12(b)(3)(C) 3
Fed. R. Evid. 401 39
44
STATEMENT OF THE CASE
Michael Clark appeals a verdict of the U.S. District Court for the District of Ames convicting him of conspiracy to distribute or to possess with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841, 846 (2000).
Investigation and Arrest
This case developed from an investigation into suspected drug activity at 53 Dean Road in the City of Ames. After several months of surveillance by the Drug Enforcement Agency (DEA) and the Ames police, a search conducted on February 15, 2004 yielded eight kilograms of cocaine and other paraphernalia associated with the distribution of cocaine. (R.5-6) At the time of the search, police arrested Marissa Vaughn, who rented the house. (Id.) The police subsequently arrested Owen Lyons, who had been seen entering the house to deliver brown paper packages similar to those in which some of the cocaine was found. (R.6-7) Both Vaughn and Lyons pled guilty to the resulting charges. (R.15, n.1)
Based on the results of this investigation, on February 18 a grand jury indicted Michael Clark for conspiracy to distribute or possess with intent to distribute a controlled substance. (R.1-2) The police had observed Clark meeting with both Vaughn and Lyons; Lyons driving a vehicle owned by Clark; and, on two occasions, Vaughn giving Clark what appeared to be large rolls of bills. (R.5-6) However, Clark never visited 53 Dean Road, and nothing found in the search of the house connected him to the property or to the activities conducted there. (R.6) Although the lead agent on the investigation characterized the evidence against Clark as “not strong,” he was arrested on February 19. (R.7) Clark was held in the Lincoln County jail and arraigned on February 27. (R.7)
Alleged Statements to Arthur Burton
After his arraignment, Clark was placed in a two-person cell with Arthur Burton. (R.7) Burton was an informant for the DEA. (R.8) He had been arrested in early 2003 for conspiracy to import cocaine, and because of his history of violent crimes and other factors he faced a life sentence without parole if convicted. (R.8) Seeking to reduce this sentence, Burton entered into a written agreement with the government under which he would provide information on other drug offenders in exchange for a recommendation of leniency. (R.8) The agreement made the recommended reduction dependent on the quality of Burton’s cooperation and required him to provide information about three individuals involved in his conspiracy and “to provide information about drug offenses generally.” (R.8) DEA agent Robert Hill, who also led the investigation into 53 Dean Road, was the contact to whom Burton conveyed this information. (R.8)
In 2003, Burton provided some information on his co-defendants, but Hill found it disappointing and suggested that it was insufficient to justify a substantial reduction in his sentence. (R.8-9) Beginning in early 2004, Burton sought to obtain a greater reduction by acting on his agreement “to provide information about drug offenses generally.” (R.9) He initiated conversations with two other inmates who were held in the Lincoln County jail while awaiting trial on federal drug charges and obtained incriminating statements that he passed along to Hill. (R.9) Hill responded favorably and encouraged Burton to continue to seek out information, telling him “this is more like it,” and “keep doing this and we’ll see where it gets you.” (R.9) After this conversation, when jail authorities placed Clark in the same cell as Burton, Hill was consulted. (R.9) He could have prevented the assignment, but he did not do so. (R.10)
Seeking a further reduction of his own sentence, Burton questioned Clark about the charges against him and discovered that he was awaiting trial on drug charges and that Agent Hill was leading the investigation. (R.10) In March of 2004, Burton and Hill discussed Clark’s case. Although they did not explicitly agree that Burton would provide information on Clark, Hill made Burton aware of the nature of the case against Clark and that the DEA needed more evidence against him. (R.10-11) The district court found that after this meeting, Hill could have anticipated that Burton would question Clark in an effort to incriminate him. (R.12) Still, Hill did nothing to stop Burton from doing so. (R.12) Predictably, after the meeting Burton “redoubled his efforts to draw incriminating information from Clark.” (R.11) In April 2004, Burton told Hill that Clark had admitted funding the drug sales at 53 Dean Road and that he had received a substantial amount of the profits of this operation. (R.11)
Prior to his trial, Clark moved to suppress evidence of these statements under Fed. R. Crim. P. 12(b)(3)(C) on grounds that Burton had been acting as an agent of the government and therefore that his questioning had violated Clark’s Sixth Amendment rights. (R.3) The district court denied the motion. (R.13)
Trial
At Clark’s trial, Agent Hill and Captain Paul Parlon of the City of Ames police testified on the investigation into activity at 53 Dean Road. (R.14-17) Parlon described the results of the search, including the cocaine and drug paraphernalia, and testified that these items were consistent with trafficking in cocaine. (R.16-17) Hill described the surveillance, including Clark’s interactions with Vaughn and Lyons. (R.15) The prosecution also introduced records showing that the truck Lyons drove was registered to Clark and that Lyons had made frequent cell phone calls to Clark. (R.16)
With the exception of Arthur Burton’s testimony, the prosecution did not introduce any evidence directly linking Clark to drug activity or to the house at 53 Dean Road. Hill testified that Clark was never seen at the house and that the pattern of interaction between Clark and Lyons was not indicative of criminal activity. (R.15) However, Burton testified to a number of statements allegedly made by Clark in March and April of 2004, including: (i) “Owen [Lyons] and Marissa [Vaughn] worked for me. I was the money man. I had the contacts. I got the product.” (ii) “There’s no way they can connect me to that house. Owen [Lyons] and Marissa [Vaughn] will never talk. They know if they do they’ll never get out alive.” (iii) That Clark had bragged about the amount of money he made by selling cocaine. (R.17) Burton also testified that he was awaiting sentencing on a conviction for importing cocaine. (R.18)