United States v. Fletcher

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 08a0587n.06

Filed: October 1, 2008

United States Court of Appeals

FOR THE SIXTH CIRCUIT

___________

No. 06-6304

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the Middle

* District of Tennessee.

Lamarr Fletcher, *

*

Defendant - Appellant. *

___________

Before: MARTIN, GRIFFIN, and GIBSON,* Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Lamarr Fletcher was found guilty by a jury of nine counts of narcotics

trafficking under 21 U.S.C. §§ 841 & 846, including conspiracy to distribute cocaine;

possession with an intent to distribute cocaine, cocaine base, and marijuana; and

distribution of cocaine and cocaine base. The district court sentenced Fletcher to 168

months’ imprisonment. After Fletcher’s third attorney withdrew from the case,

Fletcher represented himself. He had a fourth attorney serving as standby counsel,

through trial and at sentencing, but he has obtained counsel for this appeal. Fletcher’s

*

The Honorable John R. Gibson, United States Circuit Judge for the Eighth

Circuit Court of Appeals, sitting by designation.

counsel raises several arguments, and Fletcher filed a pro se brief raising several more

complaints. We affirm in all respects.

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

government, was a long-time friend of Fletcher. He testified that in 2003 he and

Fletcher drove to Chicago on three occasions to purchase resale quantities of cocaine

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from a man Fletcher met in jail, Ben Martinez. Bashaw estimated that they purchased

.5 kilograms of cocaine on the first trip and between .5 and 1 kilogram of cocaine on

the second trip. He was unsure how much they purchased on the third trip. Bashaw

also testified that Fletcher made additional trips to Chicago without Bashaw to

purchase more narcotics.

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.

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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

its witnesses. The government opposed the motions and the district court denied

them. “We review a district court's rulings on Jencks Act issues for abuse of

discretion.” United States v. DeFranco, 30 F.3d 664, 667 (6th Cir. 1994). Fletcher

admits that the government disclosed nearly all of the Jencks material the week prior

to trial. He complains, however, that the government was obligated to turn it over

sooner. The Jencks Act is clear: it requires production of impeachment material only

after a “witness has testified on direct examination in the trial of the case.” 18 U.S.C.

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§ 3500(a).1 Therefore, any materials disclosed prior to trial exceeded the

government’s obligations under the Act.

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

1

The relevant text of the statute reads, “After a witness called by the United

States has testified on direct examination, the court shall, on motion of the defendant,

order the United States to produce any statement (as hereinafter defined) of the

witness in the possession of the United States which relates to the subject matter as

to which the witness has testified. If the entire contents of any such statement relate

to the subject matter of the testimony of the witness, the court shall order it to be

delivered directly to the defendant for his examination and use.” 18 U.S.C. § 3500(b).

2

The prosecutor subsequently prepared a brief summary of the post-arrest

proffer session with Bashaw and provided it to the defendant, disclosing that

Bashaw’s proffer and his testimony before the grand jury were inconsistent as to the

number of trips he and Fletcher made together to Chicago.

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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.”

18 U.S.C. § 3500(e). Fletcher cannot prove a violation of the Act without showing

that a “statement” existed. Therefore, relief is not warranted.

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 (1963), to all “material

exculpatory evidence” possessed by the government, including impeachment

evidence of government witnesses. See also United States v. Bagley, 473 U.S. 667,

676 (1985) (“Impeachment evidence, however, as well as exculpatory evidence, falls

within the Brady rule.”). The rule in this circuit, however, is clear that “[w]hen Brady

material sought by a defendant is covered by the Jencks Act . . . the terms of that Act

govern the timing of the government's disclosure.” United States v. Davis, 306 F.3d

398, 421 (2002) (quoting United States v. Bencs, 28 F.3d 555, 561 (6th Cir. 1994)).

Moreover, “Brady generally does not apply to delayed disclosure of exculpatory

information, but only to a complete failure to disclose.” Id. (internal quotation marks

omitted). Most of the impeachment material Fletcher requested was disclosed prior

to trial, and pretrial disclosure more than satisfies the requirements of the Jencks Act.

It follows, then, that Fletcher’s rights under Brady were also satisfied.

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

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it. Fletcher cannot show, then, that the government failed to disclose “material

exculpatory evidence.” Brady, 373 U.S. at 87.

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 (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. 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 21

U.S.C. § 841(b)(1)(C) (distribution or possession with an intent to distribute an

indeterminate amount of a schedule I or II substance carries a maximum sentence of

20 years) & 21 U.S.C. § 812(a)(4) (cocaine is a Schedule II substance); accord United

States v. Burns, 298 F.3d 523, 544 (6th Cir. 2002) (“[A] defendant convicted of

conspiring to distribute any quantity of crack cocaine, no matter how low, is subject

to a maximum sentence of 20 years in prison.”); United States v. Serrano-Lopez, 366

F.3d 628, 638 (8th Cir. 2004) (“The statutory maximum for possession with intent to

distribute an indeterminate amount of cocaine is twenty years when neither ‘death

[n]or serious bodily injury results’. . . .”). By finding Fletcher responsible for “5

kilograms or more of a mixture . . . containing cocaine” (Count I), the jury exposed

him to an enhanced statutory maximum sentence of life imprisonment. 21 U.S.C. §

841(b)(1)(A)(ii)(II). But Fletcher was only sentenced to fourteen years, which is well

below the 20 year statutory maximum sentence authorized without the jury’s drug

quantity findings. § 841(b)(1)(C). We have held that “Apprendi is not triggered

where the defendant receives a term of imprisonment within the statutory maximum

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that would have applied even without the enhancing factor (such as the drug

amount).” Burns, 298 F.3d at 544. In Burns, we held that Apprendi was not violated

when the district court failed to require the jury to determine, beyond a reasonable

doubt, the amount of crack cocaine for which the defendants were responsible

because the sentence imposed on each defendant was below the twenty year sentence

authorized by 21 U.S.C. § 841(b)(1)(C). Id. (referring to defendants A. Harden, J.

Harden, and Jordon); accord Serrano-Lopez, 366 F.3d at 638 (holding that “[w]hen

a defendant is sentenced to a term that does not exceed the statutory maximum

allowed for an indeterminate amount of the drug involved, the jury's determination

of drug quantity is practically irrelevant”); see also United States v. Zidell, 323 F.3d

412, 430 (6th Cir. 2003) (stating that drug quantity finding was only an element of

the offense because it increased the applicable statutory maximum sentence).

Consequently, Apprendi is not implicated in this case, and even if Fletcher convinced

us that the proof at trial was insufficient to support the jury’s drug quantity findings,

the error was harmless because those quantity findings did not affect his ultimate

sentence.

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

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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, 128 S. Ct. 1723 (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. U.S.S.G. § 2D1.1(c)(4). Even if we ignore the post-arrest statement by

Bashaw, we conclude there was sufficient evidence, applying the preponderance

standard, to hold Fletcher accountable for at least 5 kilograms of cocaine. Three

witnesses, Martinez, Bashaw, and Jones, testified at trial that they took separate trips

to Chicago with Fletcher to purchase cocaine. Martinez testified that Fletcher

purchased at least 2 kilograms during their three trips; Bashaw’s testimony provides

support for another 2 kilograms; and Jones estimated that Fletcher purchased 2.5

kilograms during their second trip to Chicago. That brings the total amount of

cocaine attributable to Fletcher, based solely on the testimony of these witnesses, to

6.5 kilograms—greater than the 5 kilograms required to support the application of an

offense level of 32. Therefore, Fletcher’s advisory sentencing range was unaffected

by the district court’s error. Moreover, nothing in the record suggests to us the

district court would have imposed a different sentence had Fletcher been responsible

for less than 12.7 kilograms of cocaine. Consequently, we affirm the sentence.

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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 (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.

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

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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, 432 U.S. 213, 243-45 (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 Edwards

did not identify himself as a member of the Wilson County Sheriff’s Department, a

department Fletcher was actively suing in civil court, and 2) Fletcher was intoxicated

when he granted police consent to search. The district court denied the motion to

suppress. “Consent to a search, in order to be voluntary, must be unequivocal,

specific and intelligently given, uncontaminated by any duress or coercion, and is not

lightly to be inferred.” Simmons v. Bomar, 349 F.2d 365, 366 (6th Cir. 1965).

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.

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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 (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.

V.

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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, 127 S. Ct.

291, 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.

VII.

For these reasons, the judgment of the district court is AFFIRMED.

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