US v. Jackie Clark, No. 10-5308 (4th Cir. 2011)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5308 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JACKIE CLARK, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00035-RLV-DCK-14) Submitted: October 25, 2011 Decided: December 7, 2011 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, LLP, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Richard Lee Edwards, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jackie Clark ( Clark ) appeals his conviction by jury and the subsequent life sentences imposed for conspiring to manufacture and possess with intent to distribute at least 500 grams of a mixture containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (2006), and for persuading a minor to commit a federal drug crime, in violation of 21 U.S.C. §§ 841 and 861 (2006). We affirm his convictions but vacate his sentences and remand to the district court for resentencing. I. Trial On appeal, Clark asserts that the district court made three errors Pilkenton s at his trial. testimony First, he contends that Kristen respecting her boyfriend s purchase of methamphetamine from Clark should have been excluded because the consummation of the transaction occurred inside Clark s tattoo parlor, where evidentiary she rulings was are not present. reviewed A for abuse district of court s discretion. United States v. Caro, 597 F.3d 608, 633 (4th Cir. 2010). trial court s exercise of such discretion is entitled A to substantial deference, United States v. Myers, 589 F.3d 117, 123 (4th Cir. 2009), and will be upheld unless the court acts arbitrarily or irrationally, fails 2 to consider judicially recognized factors constraining its exercise of discretion, relies on erroneous factual or legal premises, or commits an error of law. Cir. 2007). variance United States v. Delfino, 510 F.3d 468, 470 (4th Further, [a]ny error, defect, irregularity, or that disregarded. does not affect substantial Fed. R. Crim. P. 52(a). rights must be Erroneously admitted evidence is harmless if a reviewing court is able to conclude, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error. United States v. Johnson, 587 F.3d 625, 637 (4th Cir. 2009) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). Our review of the record convinces us that any error in the admission of the challenged statement was harmless. Clark s contention that the admission of her statement violated his substantial rights is therefore without merit. Id. at 637. Second, Clark asserts that the district court should have excluded the testimony of two Government witnesses, Jerry Malone and Johnny Watson, for their failure to abide by the sequestration order when several witnesses began information in the holding cell, during the trial. court has three options sequestration order. (4th Cir. 2006). for addressing a sharing A district violation of a United States v. Smith, 441 F.3d 254, 263 The court can: 1) sanction the witness for 3 contempt; 2) ensure that the jury is aware of the violation through cross-examination by counsel or through instructions by the court; or 3) exclude all or part of the witness testimony. United States v. Rhynes, 218 F.3d 310, 323 (4th Cir. 2000) (en banc). While this Court reviews the district court s choice of remedy for abuse of discretion, Smith, 441 F.3d at 263, whichever remedy is ultimately employed must be proportional to the violation. Rhynes, 218 F.3d at 321. Exclusion of a witness testimony is so severe that it is generally employed only when there has been a showing that a party or a party s counsel caused the violation. United States v. Cropp, 127 F.3d 354 (4th Cir. 1997). Clark recognizes that the district court excluded the testimony of two other Government witnesses for violating the sequestration order, but claims that the court should also have barred Malone and Watson from giving testimony against Clark. The district court, however, conducted a lengthy voir dire of each of the Government s witnesses who were implicated in the mid-trial holding cell discussions, and concluded that Malone and Watson, unlike the witnesses whom it ultimately excluded, did not engage in extensive discussion of their testimony. Moreover, the district court allowed both Malone and Watson to be interrogated on cross-examination discussions between witnesses. about the pre-testimony Given the facts found by the 4 district court, we decline to hold that its decision to employ a lesser remedy than exclusion was an abuse of discretion. Rhynes, 218 F.3d at 323. The asserts third that the source of trial prosecution s error closing alleged arguments by Clark improperly mentioned Clark s co-conspirators, vouched for the Government s witnesses, and suggested that defense witnesses were high on drugs while testifying. at Because trial, this he did Court s not object review is to for the closing argument plain error. United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995); United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993). To establish plain error, Clark must show that (1) an error was made; (2) the error substantial rights. is plain; and (3) the error affects United States v. Massenburg, 564 F.3d 337, 342 43 (4th Cir. 2009). If all three of these conditions are met, may an appellate court then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, judicial proceedings. (4th Cir. 2002) integrity, or public reputation of United States v. Carr, 303 F.3d 539, 543 (internal quotation marks, citations, and alterations omitted). A defendant s due process rights are violated by the prosecution s improper, and comments if (2) if (1) the the prosecution s improper remarks 5 remarks prejudiced were the defendant s substantial denied a fair trial. rights to such a degree that he was United States v. Lighty, 616 F.3d 321, 359 (4th Cir. 2010) ; see also United States v. Wilson, 624 F.3d 640, 656-57 (4th Cir. 2010) (listing factors used to determine the question of prejudice). We contentions have and thoroughly conclude examined that, even each assuming of Clark s that the prosecutor s comments were improper, they did not deprive Clark of a fair trial, given the relatively isolated nature of the remarks, the substantial strength of the other evidence in the case, and the court s instructions to the jury. Wilson, 624 F.3d at 656-57. II. Sentence With respect to his sentence, Clark contends that the district court erred in determining that his prior North Carolina convictions were felonies for the purposes of applying the sentence enhancements in 21 U.S.C. § 841(b)(1)(A). Whether the district court properly interpreted the term felony drug offense as used in § 841(b)(1)(A) is a question of law that this Court reviews de novo. United States v. Burgess, 478 F.3d 658, 661 (4th Cir. 2007), aff d, 553 U.S. 124 (2008); United States v. Tucker, 473 F.3d 556, 560 (4th Cir. 2007). 6 Section 841(b)(1)(A) provides that a defendant shall be sentenced to a mandatory term of life imprisonment if he commits a violation of this subparagraph or of section . . . 861 of this title after two or more prior convictions for a felony drug offense have become final. Id. A felony drug offense is an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances. 21 U.S.C. § 802(44) (2006); Burgess v. United States, 553 U.S. 124, 129 (2008). Here, the district court predicated Clark s mandatory life sentence on the two prior North Carolina drug convictions noticed in the Government s 21 U.S.C. § 851 (2006) information. At the time of Clark s sentencing, this Court determined whether a prior conviction imprisonment by was punishable considering the with maximum more than aggravated a year s sentence that could be imposed for that crime upon a defendant with the worst possible criminal history. F.3d 242, 246 (4th Cir. 2005). United States v. Harp, 406 While Clark s appeal was pending, however, Harp was overruled by the en banc decision in United States v. Simmons, 649 F.3d 237, 241 (4th Cir. 2011). This Court held in Simmons that a prior North Carolina offense 7 was punishable for a term exceeding one year only if the particular defendant before the court had been eligible for such a sentence under the applicable statutory scheme, taking into account his criminal history and the nature of his offense. Id. at 247; see also N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth North Carolina s structured sentencing scheme). Under convictions Simmons, are not Clark s felonies two for prior purposes North of 21 Carolina U.S.C. § 841(b)(1)(A) because they were not punishable by more than a year of incarceration. convictions were Both Class I of felonies, Clark s and North the state determined that he had a prior record level of IV. of aggravation or mitigation were made. Carolina court No findings Under these circumstances, the maximum possible sentence that Clark could have received was 1340.17(c)-(d). ten months. Therefore, See we N.C. Gen. hold that the Stat. § district 15Acourt erred in concluding that Clark was subject to a mandatory life sentence under § 841(b)(1)(A), and that his case must be remanded for resentencing. Accordingly, we affirm Clark s convictions and vacate his sentences, remanding the case 8 to the district court for resentencing. * We dispense with oral argument because the facts and legal contentions are adequately presented in the material before the court and argument will not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED * Although the fact that this case must be remanded for resentencing obviates the necessity to rule at this time on Clark s claim that he was erroneously deemed a career offender at sentencing, we note that, for purposes of career offender status under the Guidelines, a prior felony conviction is a conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of the actual sentence imposed. USSG § 4B1.2, cmt. n.1.; see also McNeill v. United States, 131 S. Ct. 2218, 2224 (2011) (a sentencing court must consult the maximum term of imprisonment applicable to the offense at the time of the defendant s state conviction for that offense). 9
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
