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United States v. Clark

United States District Court, District of Columbia

September 18, 2018

UNITED STATES OF AMERICA
v.
FLOYD CLARK, Defendant.

          OPINION AND ORDER

          PAUL L. FRIEDMAN, UNITED STATES DISTRICT JUDGE.

         The matter is before the Court on the motion [Dkt. No. 128] of defendant Floyd Clark to admit hearsay in support of his separate motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The United States opposes the motion. Upon careful consideration of the parties' papers, the relevant legal authorities, the evidentiary hearing on June 20, 2016, and the entire record in this case, the Court will grant Mr. Clark's motion to admit hearsay.[1]

         I. BACKGROUND

         A. Procedural History

         On May 6, 2009, two men carjacked, robbed, and kidnapped Michael Walker at gunpoint in Washington, D.C. On May 18, 2010, a grand jury returned a nine-count indictment charging defendant Floyd Clark in connection with the attack. The indictment included: one count of kidnapping, in violation of 18 U.S.C. § 1201(a)(1); two counts of using, carrying, possessing, or brandishing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); one count of carjacking, in violation of 18 U.S.C. § 2119(2); one count of carjacking while armed, in violation of D.C. Code §§ 22-2803 and 22-4502; two counts of possession of a firearm during the commission of a crime of violence, in violation of D.C. Code § 22-4504(b); one count of armed robbery, in violation of D.C. Code §§ 22-2801 and 22-4502; and one count of unlawful possession of a firearm by an individual under felony indictment, in violation of 18 U.S.C. § 922(n). See Indictment.

         At trial in December 2010, Mr. Walker testified that Mr. Clark was one of the two men who attacked him on May 6, 2009. See Dec. 8, 2010 Trial Tr. at 78-80. He stated that he and Mr. Clark began selling drugs together around August or September 2008. See id. at Tr. 57-61. [2] He explained that on May 6, 2009, Mr. Clark called him to suggest that they meet at a local shopping center to discuss a buyer interested in purchasing narcotics for $30, 000. See id. 65-67, 70. Mr. Walker drove his wife's car to the designated meeting place. See id. at 70-71, 96. Mr. Walker stated that when he arrived, Mr. Clark and another man entered his car. See id. at 74-76. According to Mr. Walker, Mr. Clark pulled a gun from under his shirt and demanded money from Mr. Walker. See id. at 78-83. Mr. Clark and the other assailant then took Mr. Walker's gold chain, watch, money, and wallet. See id. at 81-82. Mr. Walker testified that Mr. Clark and the other assailant drove Mr. Walker to various locations where they thought he had stored large sums of money. See id. at 83-104. Mr. Walker stated that he eventually ran away from Mr. Clark and called the police. See id. at 103-04.

         On December 13, 2010, a jury convicted Mr. Clark on all counts of the indictment. See Verdict Form. The Court subsequently granted the United States' motion to vacate Mr. Clark's conviction on Count Four, one of the two Section 924(c) charges. See Aug. 11, 2011 Sentencing Tr. at 29. On August 11, 2011, the Court imposed an aggregate term of 284 months in prison, followed by five years of supervised release. See Judgment at 1-5. On May 16, 2014, the D.C. Circuit affirmed the convictions, except with respect to the sentence for the remaining Section 924(c) conviction (Count Two), which was remanded to this Court for resentencing. See United States v. Clark, 565 Fed.Appx. 4, 5 (D.C. Cir. 2014). On September 29, 2014, this Court resentenced Mr. Clark to 60 months in prison on the Section 924(c) conviction. See Amended Judgment at 3. Mr. Clark's new aggregate term of imprisonment therefore was 260 months. See id.

         On April 2, 2015, Mr. Clark filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See Section 2255 Mot. at 4. Counsel for Mr. Clark filed a supplement to the pro se Section 2255 motion in August 2015. See Section 2255 Suppl. at 1. As relevant here, Mr. Clark seeks relief under Section 2255 based on newly discovered evidence - namely, an affidavit signed by the victim in this case, Michael Walker, who was the government's key witness at trial. In the affidavit, Mr. Walker recanted his earlier trial testimony identifying Mr. Clark as one of his two attackers. See Section 2255 Mot. Attach. 2.

         In March 2016, the Court granted Mr. Clark's request for an evidentiary hearing on the Section 2255 motion. See March 1, 2016 Minute Order. But prior to the evidentiary hearing, Mr. Clark filed the motion now pending before the Court - a motion to admit Mr. Walker's recanting affidavit under an exception to the rule against hearsay. See Mot. at 1. Mr. Clark argued that if Mr. Walker were to invoke his Fifth Amendment privilege against self-incrimination and refuse to testify at the evidentiary hearing, his affidavit would be admissible as a statement against interest under Rule 804(b)(3) of the Federal Rules of Evidence. See id. at 2-3.

         B. Evidentiary Hearing

         On June 20, 2016, the Court held an evidentiary hearing on the Section 2255 motion and heard oral argument on Mr. Clark's motion to admit hearsay. The first witness at the evidentiary hearing was the victim in this case, Michael Walker. As anticipated, and on the advice of counsel appointed by the Court, Mr. Walker invoked his Fifth Amendment privilege against self-incrimination and refused to answer questions about his purported recantation on the ground that doing so could expose him to criminal liability for perjury. See June 20, 2016 Hr'g Tr. at 10-12, 21-25. The Court held that Mr. Walker properly invoked the privilege and that under Hoffman v. United States, 341 U.S. 479, 486-87 (1951), the privilege would extend to both the substance of the recantation and the circumstances surrounding his decision to sign the affidavit. See June 20, 2016 Hr'g Tr. at 16-18, 25-26. As to whether Mr. Walker would be immune from prosecution, the Court determined that it lacked inherent authority to grant use immunity to Mr. Walker absent a request from the United States. See id. at 32-33; United States v. Perkins, 138 F.3d 421, 424 (D.C. Cir. 1998); United States v. Lugg, 892 F.2d 101, 104 (D.C. Cir. 1989). The Court further determined that only the United States may seek use immunity, which the United States declined to do at the evidentiary hearing. See June 20, 2016 Hr'g Tr. at 28, 32-33; United States v. Moore, 651 F.3d 30, 82 (D.C. Cir. 2011).

         The Court then heard testimony from three witnesses regarding Mr. Walker's statements in 2014 and 2015. Mr. Clark called as his witness Ronetta Johnson, the private investigator who obtained Mr. Walker's affidavit. Ms. Johnson testified that she had been a private investigator in Washington, D.C. for fourteen years. See June 20, 2016 Hr'g Tr. at 36. She explained that one of Mr. Clark's family members had contacted her and stated that Mr. Walker was willing to speak to her about Mr. Clark's case. See id. at 38. In response, Ms. Johnson called Mr. Walker to arrange a time to interview him. See id. She testified that Mr. Walker came to her office for the interview on August 1, 2014. See id. at 38, 43. According to Ms. Johnson, she and Mr. Walker spoke in a conversational manner about the May 2009 attack “and then [she] took the statement after that.” See id. at 39. She said that she drafted an affidavit for Mr. Walker based on their conversation, after which Mr. Walker reviewed the affidavit page by page and made several changes to it before signing each page. See id. at 39-40, 47. She stated that she did not suggest any changes that Mr. Walker should make. See id. Ms. Johnson further testified that, consistent with her standard practice, she had the affidavit notarized that same day by a notary in her office building. See id. at 39, 42. In addition, she gave one of her business cards to Mr. Walker. See id. at 52. Ms. Johnson stated that she did not threaten or coerce Mr. Walker, tell him in advance what to say, or advise him that the statute of limitations for perjury had expired. See id. at 39, 41-42, 52. She testified that Mr. Walker signed the affidavit voluntarily. See id. After the interview, Ms. Johnson mailed Mr. Walker's affidavit to Mr. Clark with a cover letter on her company's letterhead. See id. at 49, 51.

         The United States then called its first witness, Michael Hailey, the supervisor of the Witness Security Section of the U.S. Attorney's Office for the District of Columbia. See June 20, 2016 Hr'g Tr. at 57. Mr. Hailey testified that Mr. Walker called the U.S. Attorney's Office to express concerns about his safety. See id. at 57-58. Mr. Hailey returned Mr. Walker's call on February 25, 2015. See id. at 62. According to Mr. Hailey, Mr. Walker said that a friend of Mr. Clark's had approached Mr. Walker in a barbershop and told him that Mr. Clark's case was “up for appeal” and that Mr. Walker could change his story. See id. at 60. Mr. Walker told Mr. Hailey that four months prior to their February 2015 telephone conversation, a defense investigator came to Mr. Walker's home to take his statement. See id. at 61. Mr. Walker explained that the investigator told him that he could change his testimony without exposing himself to perjury charges because the statute of limitations for perjury had expired. See id. at 62. Mr. Walker also told Mr. Hailey that the investigator “wrote a statement out and then asked him to read it and sign it.” See id. According to Mr. Hailey, Mr. Walker said that he read and signed the affidavit prepared by the investigator “knowing that what he had signed was not the truth.” See id. Mr. Walker further stated that the private investigator was a woman and that she gave her business card to him. See id. at 63.

         The United States called as its second witness Tommy Miller, the lead criminal investigator for the Criminal Investigations and Intelligence Unit of the U.S. Attorney's Office for the District of Columbia. See June 20, 2016 Hr'g Tr. at 73. Mr. Miller testified that on June 15, 2016 - five days before the June 20, 2016 evidentiary hearing - he met with Mr. Walker, Mr. Walker's counsel, and Assistant U.S. Attorney James Sweeney. See id. at 73-74. At that meeting, Mr. Walker stated that the private investigator wrote the affidavit and that he signed it without reading it. See id. at 74. Mr. Walker told Mr. Miller that the affidavit reflected “the investigator's words, not [Mr. Walker's].” See id. at 74-75. Specifically, Mr. Walker said that although the investigator wrote the affidavit in his presence, Mr. Walker himself did not provide any of the information in the statement and “[t]he investigator wrote it on her own.” See id. at 88-89. According to Mr. Miller, Mr. Walker stated that the statements in the ...


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