United States District Court, District of Columbia
OPINION AND ORDER
L. FRIEDMAN, UNITED STATES DISTRICT JUDGE.
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
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).
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.  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.
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.
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.
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.
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).
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.
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.
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 ...