IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF AMES
____________________________________
)
)
)
v.
)
)
MICHAEL CLARK,
)
Defendant.
)
____________________________________)
UNITED STATES OF AMERICA
INDICTMENT
(Conspiracy to Distribute and Possess with Intent
Cocaine)
(21 U.S.C. § 841(a)(1), § 841(b)(1)(a), 846)
The Grand Jury charges:
On diverse dates between November 1, 2003 and February 15, 2004, in the City of Ames,
within the District of Ames
MICHAEL CLARK
the defendant herein, did conspire to distribute or to possess with intent to distribute a controlled
substance, to wit, cocaine, in a quantity greater than five kilograms.
All in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(a), and
846.
A TRUE BILL
______[x]____________
FOREPERSON OF THE GRAND JURY
R.1
_______[x]_____________
Assistant U.S. Attorney
DISTRICT OF AMES
February 18, 2004 at 4:15 p.m.
Returned into the District Court by the Grand Jurors and filed.
R.2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF AMES
____________________________________
)
)
)
v.
)
)
MICHAEL CLARK,
)
Defendant.
)
____________________________________)
UNITED STATES OF AMERICA
Docket No. CR 04-112
DEFENDANT’S MOTION TO SUPPRESS
Now comes the defendant Michael Clark and moves pursuant to Fed. R. Crim. Pro.
12(b)(3)(c) to suppress evidence of statements made by defendant to Arthur Burton during the
months of March and April 2004. As grounds for this motion, defendant states that Arthur
Burton was acting as an agent of the government, and that Burton obtained the statements from
defendant after defendant was indicted and arraigned and the right to counsel had attached, all in
violation of Massiah v. United States, 377 U.S. 201 (1964) and its progeny.
Defendant respectfully requests an evidentiary hearing on this motion.
Wherefore, Defendant requests that this Court allow this motion and suppress all
evidence of the statements in question.
Respectfully submitted,
MICHAEL CLARK
By:
Dated: July 27, 2004
R.3
Amy Webster___________
Amy Webster
Tyler, Polk & Pierce
Three Financial Center
Ames City, Ames
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF AMES
____________________________________
)
)
)
v.
)
)
MICHAEL CLARK,
)
Defendant.
)
____________________________________)
UNITED STATES OF AMERICA
Docket No. CR 04-112
FINDINGS OF FACT, RULINGS OF LAW,
AND ORDER
ON DEFENDANT’S MOTION TO SUPPRESS
Defendant Michael Clark is charged with conspiracy to distribute or to possess
with intent to distribute more than five kilograms of cocaine, an offense that carries a
penalty of between 10 years and life in prison. He has moved to suppress certain
statements that he made following arrest, while he was incarcerated in the Lincoln
County jail awaiting trial. He made these statements to an individual named Arthur
Burton, who is a jailhouse informant. Defendant claims that the statements were
obtained by the government in violation of Massiah v. United States, 377 U.S. 201 (1964)
and its progeny. The Court held an evidentiary hearing on the motion and heard
arguments of counsel. For the reasons stated in this decision, the Court denies
defendant’s motion.
FINDINGS OF FACT
1.
Michael Clark was indicted by a federal grand jury on February 18, 2004
for conspiracy to distribute or to possess with intent to distribute cocaine.
R.4
2.
A warrant for Clark’s arrest was obtained by the government that day and
executed on the following day.
3.
Clark’s indictment came as a result of a several month investigation by the
Drug Enforcement Administration (“DEA”) in conjunction with the City
of Ames police into drug distribution in the Gainesville section of the City
of Ames.
4.
Starting in early November 2003, the authorities conducting this
investigation began to focus their attention on a particular house at 53
Dean Road in Gainesville. They noted that the house was the site of
frequent comings and goings by people at all hours of days and nights.
Most of these visits were short in duration. Police conducting the
surveillance of the house, who are experienced in drug enforcement,
believed that these circumstances were consistent with the house being a
locus for drug distribution.
5.
Investigation determined that the house was leased to one Marissa
Vaughn, a 23-year-old unmarried female with two young children.
Further investigation indicated that Ms. Vaughn was not employed and
had no known source of income, other than public assistance, which
would have been inadequate to cover the cost of the rent on the property.
6.
Police conducting surveillance observed Ms. Vaughn on a number of
occasions meet with defendant Michael Clark at various locations
throughout Gainesville, such as local restaurants or bars. On two
occasions, police observed Ms. Vaughn give defendant what appeared to a
R.5
large roll of bills. Defendant did not give Ms. Vaughn anything in
exchange at that time. Further, police did not see Defendant ever go to the
house at 53 Dean Road.
7.
Police also observed that on several occasions a Ford Explorer that was
registered to defendant, being driven by one Owen Lyons came to the
house at 53 Dean Road, usually in the early hours of the morning. On
those occasions, Mr. Lyons would use a key to enter the rear door of the
house. On those occasions, he was carrying a large rectangular shaped
bundle, wrapped in brown paper. On other occasions, police observed Mr.
Lyons entering the house of Michael Clark in a different section of the
City of Ames. Those visits generally occurred during the daytime or early
evening hours, and Mr. Lyons was not observed entering or leaving with
any items.
8.
On February 15, 2004, police obtained and executed a search warrant for
53 Dean Road. At the time, Ms. Vaughn was there with her two children.
During the search, police found eight kilograms of cocaine. Five
kilograms were found in rectangular bundles, wrapped in brown paper,
similar in appearance to those that Mr. Lyons had been seen carrying into
the house. Other cocaine was found in various stages of processing.
Police found other paraphernalia, consistent with the trafficking in
cocaine. Nothing in the house directly connected Clark with the property.
9.
Ms. Vaughn was placed under arrest, and her children were put into the
custody of the Department of Social Services, where they currently reside.
R.6
Mr. Lyons was subsequently arrested at his home. Both have been
indicted and have charges pending against them.
10.
The DEA investigation into 53 Dean Road was led by Robert Hill, a DEA
agent. Agent Hill testified at the motion to suppress that he believed that
Mr. Clark was the manager of the drug conspiracy, and that Vaughn and
Lyons were his subordinates. Hill conceded, however, that at the time of
the arrest, the evidence establishing Clark’s role in the offense was not
strong. Further, under cross examination, Hill conceded that he was
particularly interested in obtaining a conviction against Clark in this case
because of the quantity of the cocaine involved and because of his
personal concern that the drug operation had placed Ms. Vaughn’s young
children in jeopardy.
11.
After his arrest on February 19, 2004, Clark was brought to the Lincoln
County jail, a county facility that is under contract with the federal
government to hold federal prisoners who are awaiting trial.
12.
Clark appeared before a magistrate on February 20, 2004 for a preliminary
appearance at which time he was ordered detained without bail. A week
later, on February 27, 2004, he was arraigned before this Court. Clark’s
right to counsel under the Sixth Amendment therefore attached before the
subsequent events that give rise to this motion.
13.
Following his arraignment, Clark was placed in a two-person cell at the
Lincoln County jail. He shared the cell with an individual named Arthur
Burton.
R.7
14.
Arthur Burton was an informant for the DEA. Burton has a long history
of violent criminal offenses. In early 2003, he was charged with
participation in a conspiracy to import cocaine. Based on his criminal
record, the quantity of narcotics involved, and other factors, the likely
sentence he faced upon conviction was life imprisonment without parole.
Almost immediately after his arrest, Burton indicated to authorities
through counsel that he was willing to cooperate as an informant in
bringing other offenders to justice.
15.
Agent Hill was the DEA agent responsible for the investigation that led to
Burton’s arrest, and he became Burton’s contact for purposes of Burton
providing cooperation. In July 2003, Burton entered into a written
agreement with the government under which he agreed to provide
cooperation in exchange for the government’s agreement to recommend a
reduction in his sentence, based on the nature and quality of his
cooperation. The agreement provided in pertinent part that Burton was to
provide information regarding three named individuals, all of whom were
involved in the conspiracy for which Burton had been arrested, and “to
provide information about drug offenses generally.” It is not contended by
the government that Mr. Clark was in any way involved in the Burton
conspiracy.
16.
Over the next few months, Burton did provide information about the other
participants in the conspiracy for which he was arrested. However, Agent
Hill deemed this information to be disappointing in quality, and he had so
R.8
informed Burton. As of the end of 2003, Burton, who was still awaiting
sentencing, had reason to believe that he would not receive a substantial
reduction in his sentence as a result of his cooperation.
17.
In an effort to enhance the likelihood of a sentence reduction, Burton on
his own struck up acquaintances with two separate individuals who were
held at the Lincoln County jail awaiting trial on federal drug charges. In
each case, Burton obtained through conversation statements from those
individuals that incriminated them. Burton passed this information on
Agent Hill. Both Burton and Hill testified that, after receiving this
information, Hill said to Burton that “this is more like it” and “keep doing
this and we’ll see where it gets you.”
18.
There was considerable evidence at the motion hearing about how it came
about that Clark was placed in a jail cell with Burton. I find as a fact that
the authorities at the Lincoln County jail knew about Burton’s informant
activities and were concerned because of the various implications for
security that the presence of informants created in a prison environment.
As a result, jail authorities kept Agent Hill posted on Burton’s activities
and cell placement. I find, however, that it was the jail authorities, not
Hill, who decided to place Clark in a cell with Burton. I credit the
testimony of jail authorities that this choice was made because Clark had
no history of violence or known connections with outside gangs, and thus
was deemed not to present a risk of retaliating against or harming Burton
in the event that Burton’s informant activities became known. However, I
R.9
further find that, before making the assignment, jail authorities checked
with Hill, and Hill approved of the assignment. I credit the testimony of
jail authorities that their motivation for checking with Hill was simply to
obtain his agreement that Clark was a safe choice to place in the cell.
However, I further find that Hill could have vetoed or prevented this cell
assignment, had he chosen to do so.
19.
Almost immediately after the cell placement, Burton began efforts to draw
out Clark in an effort to find out more about his case and his
circumstances. Clark was forthcoming, and revealed enough information
to let Burton known that Clark had been the subject of a DEA
investigation headed by Agent Hill. Burton, of course, concealed his own
circumstances as an informant.
20.
I find as fact that in late March 2004, Burton met with Hill for a regular
debriefing session about the information Burton was providing about other
persons. During the course of that session, Burton mentioned that he was
sharing a cell with Clark. Hill said nothing in response. Burton said that
he understood that Hill had been involved in Clark’s case, and asked some
information about the case. I find that Hill provided factual responses to
the questions, recapping the evidence that is described above. I find that
this information would have been sufficient for a sophisticated person like
Burton to realize that there were gaps in the evidence against Clark, and
that further incriminating evidence would be desirable to the DEA. But I
credit Hill’s testimony that he never once asked Burton to provide
R.10
information about Clark, and that Burton did not indicate that he would
provide such information.
21.
Nonetheless, over the next month, Burton redoubled his efforts to draw
incriminating information from Clark. Finally, in two conversations that
occurred in April 2004, Clark made statements that he had bankrolled the
operations at 53 Dean Road by providing the cash used to buy drugs,
which he arranged to have picked up and delivered by Mr. Lyons, and to
be processed and sold by Ms. Vaughn. He stated that he received a
substantial amount of the proceeds of those drug sales over time, and he
paid Mr. Lyons and Ms. Vaughn what he called a “commission,”
amounting to a small cut of the drug proceeds.
22.
During the pre-trial period, pursuant to a request made under Fed. R.
Crim. Pro. 12.1(a)(2) by the defense, the government gave notice that it
intended to use Burton’s testimony about Clark’s jailhouse statements.
The defense subsequently filed this motion to suppress.
RULINGS OF LAW AND DECISION
The Supreme Court long ago held that a defendant’s right to counsel under the
Sixth Amendment is violated when the government elicits incriminating statements from
a defendant in the absence of counsel after the right to counsel has attached. Massiah v.
United States, 377 U.S. 201 (1964). A Massiah violation can occur not only when it is a
government official who conducts the interrogation leading to the statements, but also
when a “government agent,” which can include a so-called jailhouse informant, obtains
the information. The Supreme Court has never defined “government agent” in this
R.11
context, and has noted that Massiah is not violated if the informant acts in a “voluntary”
or “entrepreneurial” way, or the government obtains the information by “luck or
happenstance.” See Kuhlman v. Wilson, 477 U.S. 436, 459 (1986); Maine v. Moulton,
474 U.S. 159, 176 (1985); United States v. Birbal, 113 F.3d 342, 346 (2d Cir.), cert.
denied, 522 U.S. 976 (1997). .
In the absence of a clear definition, courts have wrestled with determining when a
jailhouse informant acts as a government agent. In this case, the defense argues that
Burton was an agent because of the language of his cooperation agreement, in which he
undertook to provide information about drug offenses generally, and because of the
course of dealings that he had with Hill. See United States v. Brink, 39 F.3d 419 (3d Cir.
1994). Although the Ames Circuit Court of Appeals has not provided any guidance in
this area, I rely on cases from other circuits that resolve this difficult question by creating
a “bright line” rule that an informant is an “agent” only when he has been specifically
instructed by the government to question a particular defendant. See, e.g., United States
v. Johnson, 338 F.3d 918 (8th Cir. 2003). This rule has the advantage, at least, of clear
and predictable application.
Here, defendant raises the claim that there was a “tacit” agreement between Hill
and Burton whereby Burton would obtain information incriminating to Clark. I have
found, based on the testimony before me at the suppression hearing, that there was never
an explicit verbal agreement between the two that was specific to Clark. I do find that, at
all relevant times, Burton was highly motivated to provide additional incriminating
evidence about anyone in order to reduce his sentence, and that Hill had given Burton
enough information to realize that Hill would be pleased to receive incriminating
R.12
evidence about Clark. I further find that Hill could certainly have anticipated that Burton
would “freelance” by obtaining information about Clark, and that Hill did nothing to stop
this. But I conclude as a matter of law that this is not enough to trigger the Sixth
Amendment protection afforded by Massiah.
ORDER
For the foregoing reasons, defendant’s motion to suppress is denied.
___________________________
Margaret Fremont
U.S. District Judge
Dated: September 14, 2004
R.13
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF AMES
____________________________________
)
)
)
v.
)
)
MICHAEL CLARK,
)
Defendant.
)
____________________________________)
UNITED STATES OF AMERICA
Docket No. CR 04-112
STIPULATION CONCERNING RECORD ON APPEAL
For purposes of preparing the record on appeal, the parties below stipulate that the
following summarizes the evidence at trial in the above-captioned case, which occurred
in November 2004:
Agent Robert Hill, an agent of the Drug Enforcement Administration (“DEA”),
testified that he, in conjunction with other DEA agents and City of Ames police, began in
November 2003 to conduct investigation of a two-story Colonial house at 53 Dean Road
in the Gainesville section of Ames. He testified that, over the course of a two month long
surveillance of that location, he and other agents observed numerous short visits by
different people occurring at all hours, including late night and early morning hours. The
visits were as short as ten or fifteen minutes. Visits occurred by a large number of
different people, sometimes 10 or 15 in a day. Agent Hill testified, based on his training
and experience as a drug enforcement agent, that this pattern was consistent with a
location used to sell drugs.
R.14
Agent Hill further testified that he observed Marissa Vaughn, who was the lessee
of the house, on a number of occasions meet with defendant Michael Clark at various
locations throughout Gainesville, such as local restaurants or bars. On two occasions, he
observed Ms. Vaughn give defendant what appeared to a large roll of bills. Defendant
did not give Ms. Vaughn anything in exchange at that time.
Agent Hill testified that on several occasions he observed a Ford Explorer driven
by Owen Lyons came to the house at 53 Dean Road, usually in the early hours of the
morning. On those occasions, Mr. Lyons would use a key to enter the rear door of the
house. Lyons was carrying a large rectangular shaped bundle, wrapped in brown paper.
On other occasions, Hill observed Mr. Lyons entering the house of Michael Clark in a
different section of the City of Ames. On other occasions, Hill observed the Ford
Explorer parked in the driveway of Michael Clark’s home.
On cross-examination, Agent Hill testified that he had also conducted surveillance
of Michael Clark over a two-month period, and that he never observed Mr. Clark going to
the house at 53 Dean Road. He further testified that on the occasions that Lyons visited
Clark at his home, the visits occurred during daytime and early evening hours, and lasted
an hour or two. On those occasions, Lyons was not seen carrying anything. Hill
conceded that the pattern of these visits was not in itself indicative of any suspicious or
criminal activity.1
The office manager of Gainesville Realty Trust Co. testified that the trust owned
the house at 53 Dean Road. Since late 2002, the trust had rented the house to Marissa
Vaughn, who identified herself as a 23-year-old with two young children. The rent on
1
The parties note that both Ms. Vaughn and Mr. Lyons have pled guilty to charges and been sentenced in
connection with this case. The jury at Mr. Clark’s trial was not informed of this fact. Neither Ms. Vaughn
nor Mr. Lyons provided testimony against the defendant Michael Clark.
R.15
the house was $1800 a month. Ms. Vaughn paid that rent in a timely fashion each month
by bringing the sum, in cash, to the offices of the realty trust company. The office
manager stated that she had received no complaints and had had no cause for concern
about the tenancy prior to the search and arrest on February 15, 2004.
A Keeper of Records for the state’s Registry of Motor Vehicles produced
certificates of registry showing that the Ford Explorer that police had observed Mr. Lyons
driving on occasions was registered to Michael Clark, at his home address.
A Keeper of Records for Nextel produced records for a cell phone in the name of
Owen Lyons. The records showed frequent phone calls to Michael Clark’s home and cell
phone numbers.
Captain Paul Parlon of the City of Ames police testified that he participated on the
team investigating 53 Dean Road. On February 15, 2004, he obtained a search warrant
for that property, which was executed by a team of five police officers under his
command in the late afternoon of that day. Parlon testified that, when he entered, the
only occupants of the house were Ms. Vaughn and her two children. During the search,
police found eight kilograms of cocaine. Five kilograms were found in rectangular
bundles, wrapped in brown paper, similar in appearance to those that Mr. Lyons had been
seen carrying into the house. Other cocaine was found in various stages of processing,
such as being “decked” or mixed with an additive, or bagged. Police found other
paraphernalia, such as scales, large quantities of plastic bags, and hand scrawled notes
containing first names and numeric quantities. Parlon testified, based on his training and
experience, that the paraphernalia and notes were consistent with the trafficking in
R.16
cocaine. During cross examination, Parlon conceded that nothing in the house directly
connected Clark with the property.
Arthur Burton testified that he in March and April 2004, he had been incarcerated
in the Lincoln County jail awaiting trial on charges of conspiring to import cocaine.
During those months, Michael Clark was his cellmate. On several occasions, the two
men discussed Clark’s pending case. At one point, Clark said, “There’s no way they can
connect me to that house. Owen and Marissa will never talk. They know if they do
they’ll never get out alive.” On another occasion, Clark said, “Owen and Marissa worked
for me. I was the money man. I had the contacts. I got the product. Owen was the
delivery boy, and Marissa worked the line, decking and selling. All I had to do was
collect the money and pay them their commission.” Burton further testified about another
conversation in which Mr. Clark bragged about the amount of money he had made from
the sale of cocaine at 53 Dean Road.
During cross-examination, counsel for defense elicited evidence that Mr. Burton
had been convicted on four prior occasions, for crimes involving narcotics distribution,
larceny, and unlawful possession of firearms.
The following sections of trial transcript are excerpts from the direct and cross
examinations of Mr. Burton on the stand.
R.17
EXCERPT OF THE TRANSCRIPT OF
TRIAL IN UNITED STATES V. CLARK
(Day 3 of trial)
ARTHUR BURTON is on the stand.
[After brief introductory information about the witness’s identity, the following
questions and answers occurred:]
BY ASSISTANT U.S. ATTORNEY:
Q.
Now you stated that in March 2003 you were in jail under arrest. For what
were you arrested?
A.
They charged me with importing cocaine.
Q.
And what is the status of that charge today?
A.
I’ve pled guilty and I’m awaiting sentencing.
Q.
Now, are you testifying here today pursuant to a cooperation agreement?
A.
Yes, I am.
Q.
And, Mr. Burton, tell the jury your understanding of what that cooperation
agreement entails?
A.
I am supposed to tell the truth and the whole truth about anything I know
about illegal operations.
Q.
And, if you fulfill that obligation, what do you expect to receive in return?
A.
The prosecutor in my case will recommend a more lenient sentence for
me. But I know that it’s up to the judge to make the final sentencing
decision….
R.18
[The remainder of the direct examination is summarized in the stipulation
regarding the record reprinted above. During cross examination, the following
excerpt occurred:]
BY DEFENSE COUNSEL:
Q.
Now, Mr. Burton, you said that you are testifying under a cooperation
agreement. That means you’re an informant. Right?
A.
[Witness shrugs.]
Q.
You have to answer for the record. You’re an informant, right?
A.
I am cooperating with the government.
Q.
And you’re doing that because you want to get out of prison quickly.
Right?
A.
I’m doing that because it’s the right thing to do.
Q.
And you expect that it will help you get out of prison quickly, don’t you?
A.
My sentence is up to the judge.
Q.
And you know that before imposing sentence, the judge will ask for the
recommendation of the prosecutor. Right?
A.
Yes.
Q.
And the prosecutor will base that recommendation on how many people
you have helped to incriminate. Right?
A.
I don’t know.
Q.
You don’t know that the prosecutor will measure your cooperation based
on the number of people you have helped to incriminate?
A.
I suppose that’s true.
R.19
Q.
And the more information you provide, the better the recommendation
from the prosecutor will be. Right?
A.
I suppose.
Q.
Now you testify that you are awaiting sentencing now. Do you know what
sentence the prosecutor is going to recommend because of your
cooperation?
A.
I do.
Q.
And what is that sentence?
AUSA:
Objection.
Court:
Sustained. Counsel, we’re not going to get into penalties here.
Q.
All right, Mr. Burton, do you know what sentence you would face if the
prosecution did not recommend a reduction because of your cooperation?
AUSA:
Objection again, Your Honor.
Court:
Sustained. Counsel, I’ve already stated that we’re not going to get into
penalties here.
Defense:
May I be heard at sidebar, Your Honor.
[The following conference was held at sidebar outside the hearing of the
jury.]
Court:
I’ll hear you, Ms. Polk.
Defense:
Thank you, Your Honor. I will make an offer of proof based on discovery
I have received from the government. The facts are that, because of Mr.
Burton’s criminal history, and the quantity of cocaine involved in his case,
which was over five kilograms, and other factors, including his role in the
R.20
offense, the sentence he would receive under the guidelines would be life
in prison without parole. Further, the fact is that because of his
cooperation in this case, and in other cases, the prosecution is intending to
recommend a substantial reduction in that sentence, to no more than 10
years in prison. Mr. Burton knows those facts. And I think the jury
should hear those facts in order to assess Mr. Burton’s motivation to
testify in this case.
AUSA:
Well, I disagree, Your Honor. The jury already knows that Mr. Burton is
testifying under a cooperation agreement. We elicited that, and counsel
has just underlined it. So the jury knows that Mr. Burton has motivation.
The actual numbers involved would be cumulative. But more importantly,
Your Honor, there is significant harm to the government if the numbers
are revealed. Mr. Burton was charged with essentially the same kind of
offense as Mr. Clark. If the jury hears that Mr. Burton was facing life in
prison, that may cause them to be swayed by improper considerations
about what sentence Mr. Clark is facing. And the fact is that Mr. Clark is
not facing life in prison because he does not have a criminal history,
whereas Mr. Burton does, and because there are other sentencing factors
present in Mr. Burton’s case that are not present in Mr. Clark’s case. So
there is a danger of unfairly prejudicing the jury against conviction by
giving them misleading information.
Court:
Ms. Polk, do you have anything else to say?
R.21
Defense:
Yes, Your Honor. There is a constitutional right at stake. The defense has
the right under the Sixth Amendment to expose a witness’s motivations
through cross-examination. The Supreme Court decided that in Davis v.
Alaska. And if the jury does not know the exact nature of the
motivation—which in this case, is extremely substantial given the
numbers involved—then the jury is unable to make that determination.
And the Third Circuit just recently decided to that effect in United States
v. Chandler.
Court:
Is there any decision from the Ames Circuit on this point?
AUSA:
No, Your Honor. And I don’t believe that Chandler is the uniform rule.
The Fourth Circuit reached a different decision in United States v. Cropp.
Court:
Well, then this may be the case for the Ames Circuit to decide. After
hearing argument, I am sustaining the prosecutor’s objection. The defense
will not be permitted to elicit any information about the number of years
that Mr. Burton faced, with or without cooperation. Ms. Polk, you have
made your offer of proof, and preserved your issue for appeal. Please
proceed with another line of questioning.
[There followed the remainder of the cross-examination, as summarized in
the stipulation regarding the record reproduced above.]
R.22
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF AMES
____________________________________
)
)
)
v.
)
)
MICHAEL CLARK,
)
Defendant.
)
____________________________________)
UNITED STATES OF AMERICA
Docket No. CR 04-112
VERDICT FORM
We, the jurors, find, upon a unanimous vote, that the defendant Michael
Clark is
Guilty:
Not Guilty:
___X___
_________
of the crime charged in the indictment.
Signed on 22nd of November 2004.
__________[x]__________
Foreman
R.23
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF AMES
____________________________________
)
)
)
v.
)
)
MICHAEL CLARK,
)
Defendant.
)
____________________________________)
UNITED STATES OF AMERICA
Docket No. CR 04-112
JUDGMENT IN A CRIMINAL CASE
The defendant was found guilty on Count I after trial. The defendant is
adjudicated guilty of the following:
COUNTS & CONVICTION
Title & Section
Nature of Offense
21 U.S.C. §§
841(a)(1),
841(b)(1)(a),
846
Conspiracy to distribute or possess with intent cocaine
IMPRISONMENT
The defendant is hereby committed to the United States Bureau of Prisons to be
imprisoned for a total term of 135 months.
___December 17, 2004____
Date of Imposition of Judgment
___Margaret Fremont
Signature of Judicial Officer
MARGARET FREMONT
United States District Judge
Name & Title of Judicial Officer
R.24
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF AMES
____________________________________
)
)
)
v.
)
)
MICHAEL CLARK,
)
Defendant.
)
____________________________________)
UNITED STATES OF AMERICA
Docket No. CR 04-112
NOTICE OF APPEAL
Defendant hereby gives notices that he is appealing the judgment of conviction
entered on December 17, 2004 in the above-captioned case.
Respectfully submitted,
MICHAEL CLARK
By:
Dated: December 28, 2004
R.25
Amy Webster___________
Amy Webster
Tyler, Polk & Pierce
Three Financial Center
Ames City, Ames
UNITED STATES COURT OF APPEALS
FOR THE CIRCUIT OF AMES
___________________________________
)
United States,
)
)
v.
)
)
Michael Clark,
)
Defendant-Appellant.
)
____________________________________)
PROCEDURAL ORDER
The parties are directed to address the following two issues in their submissions to
this Court:
1.
The claim that the defendant was denied his Sixth Amendment
right by the obtaining of an uncounseled statement by a
government in violation of United States v. Massiah, 377 U.S. 201
(1964);
2.
The claim that the defendant was denied his Sixth Amendment
right to cross-examine under Davis v. Alaska, 415 U.S. 308
(1974).
So ordered this 10th day of January 2005.
Francis Emiliano_
Clerk, Court of Appeals
R.26