United States District Court, District of Columbia
L. FRIEDMAN, United States District Judge.
matter is before the Court on defendant Floyd Clark's
motion [Dkt. No. 114] to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255, as amended by the
supplement to defendant's motion [Dkt. No. 132]. The
United States opposes the motion. Upon careful consideration
of the parties' papers, the relevant legal authorities,
the evidentiary hearing held on June 20, 2016, the motions
hearing held on January 10, 2019, and the entire record in
this case, the Court will deny Mr. Clark's motion [Dkt.
No. 114] as to the claims of new evidence and ineffective
assistance of counsel, and will hold the motion in abeyance
with respect to the claim concerning the constitutionality of
Mr. Clark's sentence under 18 U.S.C § 924(c), as
presented in Mr. Clark's supplement [Dkt. 132]. A
separate Order giving effect to this opinion will issue this
6, 2009, two men carjacked, robbed, and kidnapped Michael
Walker at gunpoint in Washington, D.C. On May 18, 2010, after
hearing testimony from Mr. Walker, a grand jury returned a
nine-count indictment charging defendant Floyd Clark in
connection with the attack. The indictment included the
following charges: 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).
December of 2010, Mr. Clark was tried on these charges before
a jury in this Court. At trial, Mr. Walker testified that he
and Mr. Clark were in the narcotics business together.
According to Mr. Walker, Mr. Clark and another man abducted
Mr. Walker, robbed him of valuable possessions, and hit him
in the face with a gun. Mr. Clark and the other assailant
demanded $150, 000, physically restrained Mr. Walker, and
took him to various locations in Washington, D.C. and
Maryland in an unsuccessful attempt to procure the money. Mr.
Walker was able to escape and call the police. See Dec. 8,
2010 Trial Tr. at 51-143. Mr. Walker's second assailant
has never been identified.
Walker was the government's chief witness against Mr.
Clark at trial - indeed, he was the only witness to provide
direct evidence identifying Mr. Clark as one of the
perpetrators of the attacks. 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 Section 924(c) counts. See
Amended Judgement; Aug. 11, 2011 Sentencing Tr. at 29. On
August 11, 2011, the Court sentenced Mr.
to an aggregate term of 284 months in prison, including a
mandatory sentence of 84 months on the remaining 924(c)
count, followed by five years of supervised release.
See Judgment at 1-5; Aug. 11, 2011 Sentencing Tr. at
48. On May 16, 2014, the D.C. Circuit affirmed the
convictions, except with respect to the sentence for the
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, the Court
resentenced Mr. Clark to 60 months in prison on the Section
924(c) conviction. See Sept. 29, 2014 Resentencing Tr. at
3-6; Amended Judgment at 3. Mr. Clark's new aggregate
term of imprisonment was 260 months. See Id. Mr.
Clark appealed the resentence but later moved to dismiss his
appeal, which motion the D.C. Circuit granted. See
Notice of Appeal; Order Granting Voluntary Dismissal.
April 2, 2015, Mr. Clark filed the initial pro se motion now
before this Court, a motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. See
Section 2255 Mot. at 1, 4-6 [Dkt. No. 114]. The Court sua
sponte determined that it was in the interest of
justice to appoint counsel for Mr. Clark pursuant to 18
U.S.C. § 3006A. Order Appointing Counsel at 1.
Thereafter, Mr. Clark's counsel replied to the
government's opposition to the Section 2255 motion, see
Section 2255 Second Reply, and also filed a June 2016
supplement to the Section 2255 motion that added a new claim,
see Section 2255. Mot. Supp. at 1-2 [Dkt. No. 132]. As
amended, Mr. Clark's motion asserts four total grounds
for relief, three of which the Court resolves today. First,
Mr. Clark argues that an August 1, 2014 affidavit from Mr.
Walker recanting his trial testimony constitutes newly
discovered evidence that the sentence was imposed in
violation of the Constitution or laws of the United States or
was otherwise subject to collateral attack. See Section 2255
Mot. at 4. Second, Mr. Clark argues that his trial
counsel's failure to object to a sentencing enhancement
for obstruction of justice, or his decision to withdraw that
objection, constituted ineffective assistance of counsel in
violation of the Sixth Amendment to the United States
Constitution. See Sec. 2255 Mot. at 5. Third, Mr. Clark
contends that the decision of his appellate counsel not to
include the sentencing enhancement as a basis for appeal
likewise constituted ineffective assistance of counsel.
See Sec. 2255 Mot. at 6. These three claims were
presented in Mr. Clark's initial pro se motion and are
resolved by today's opinion and order. In the supplement
to his initial motion, Mr. Clark also raises a fourth basis
for relief, which must be deferred to another day: whether
his sentence on Count Two for violating 18 U.S.C. §
924(c) is now unconstitutional following the Supreme
Court's decisions in United States v. Johnson,
135 S.Ct. 2551 (2015), and Sessions v. Dimaya, 584
U.S.___, 138 S.Ct. 1204 (2018). See Section 2255 Mot. Supp.
March of 2016, the Court granted Mr. Clark's request for
an evidentiary hearing on the Section 2255 motion.
See March 1, 2016 Minute Order. Before the
evidentiary hearing, however, Mr. Clark filed a motion to
admit in evidence Mr. Walker's recanting affidavit under
an exception to the rule against hearsay. See
Hearsay Mot. at 1. Mr. Clark argued that, if Mr. Walker
invoked his Fifth Amendment privilege against
self-incrimination and refused to testify at the evidentiary
hearing, Mr. Walker's affidavit should be admitted in
lieu of his testimony as a statement against interest under
Rule 804(b)(3) of the Federal Rules of Evidence. See
Id. at 2-3.
evidentiary hearing on June 20, 2016, Mr. Walker asserted his
Fifth Amendment privilege against self-incrimination and
refused to testify either to the substance of the recanting
affidavit or the circumstances of its creation. The Court
concluded that it lacked the power to grant Mr. Walker
immunity for his testimony, and the government declined to
offer him immunity. See June 20, 2016 Hr'g. Tr.
the evidentiary hearing, and upon consideration of the full
record, the Court granted Mr. Clark's motion to admit Mr.
Walker's recanting affidavit under Rule 804(b)(3) of the
Federal Rules of Evidence. The Court found that the affidavit
amounted to a statement against Mr. Walker's interest and
that the circumstances under which the statement was made
offered evidence of its reliability. See United States v.
Clark, 325 F.Supp.3d 191 (D.D.C. 2018). In so doing, the
Court offered no view on the truth of the statements
contained within the recanting affidavit. That matter lies at
the heart of the Section 2255 motion, which is now ripe for
the Court's decision.
EVIDENCE CLAIM: FACTUAL BACKGROUND
The Evidence at Trial
trial, the government presented four lay witnesses who
observed aspects of the crime: the victim Michael Walker,
Yonata Kalbi, Christel Antoine, and Carmen Isler. The
government also presented testimony from law enforcement
personnel: Detective Elmer Baylor, Jr. of the Metropolitan
Police Department of the District of Columbia
("MPD"), MPD Officers Michael DePrince and Tony
Nwani, and FBI Special Agent Chad Fleming. Malcolm Drewery, a
courtroom deputy clerk at the Superior Court of the District
of Columbia, testified as an expert witness. The government
also presented testimony from two women with whom Mr. Clark
has children: Leslie Warner and Mercedy's [sic] Phillips.
The defense did not offer any witnesses.
Michael Walker's Testimony
trial, Michael Walker testified that he and Mr. Clark began
selling crack cocaine together around August or September of
2008: Mr. Clark served as an intermediary between Mr. Walker
and the street-level dealers, identifying purchasers and
facilitating transactions. See Dec. 8, 2010 Trial Tr. at
57-61. Mr. Walker said that Mr. Clark called him
on May 6, 2009 to suggest that they meet at a shopping center
in Southeast Washington, D.C. to discuss a buyer interested
in purchasing $30, 000 of narcotics, a larger transaction
than those Mr. Clark customarily facilitated for Mr. Walker.
See Id. at 65-67, 70. Mr. Walker drove his
wife's car, a red 2008 Toyota Highlander, to Benco
Shopping Center at East Capitol Street and Benning Road, S.E.
See Id. at 68-71, 96. When Mr. Walker arrived at the
shopping center he received a call from Mr. Clark, who was
using a phone number unfamiliar to Mr. Walker. Mr. Clark
revised the meeting location to Queens Stroll, S.E., a nearby
street formerly known as Drake Place. Id. at 61-62.
Upon arriving there, Mr. Walker saw Mr. Clark standing beside
a black SUV. Mr. Clark entered the front passenger seat of
Mr. Walker's car, and Mr. Walker then received another
call from the unfamiliar phone number. Mr. Clark explained
that it was the prospective buyer of drugs, who had been
waiting in the black SUV.
thereafter, Mr. Walker testified, the prospective buyer
entered the rear seat of Mr. Walker's car. See Dec. 8,
2010 Trial Tr. at 74-76. When Mr. Walker questioned Mr. Clark
about the prospective buyer, Mr. Clark pulled a large chrome
semiautomatic gun from under his shirt and told Mr. Walker,
"you know what time it is." See id- at 78-83. Mr.
Clark ordered Mr. Walker into the rear seat of the Toyota
Highlander, and the prospective buyer drove the car to a
nearby alley. There, Mr. Clark tore Mr. Walker's gold
chain from his neck and took his watch, money, and wallet.
Mr. Clark attempted to place a bag over Mr. Walker's
head, which Mr. Walker specifically identified as a
"Downtown Locker Room Bag." Id. at 82. Mr.
Walker refused to comply. A police officer later testified
that he recovered certain articles consistent with this
account from the 2008 Red Toyota Highlander belonging to Mr.
Walker's wife. See Part II.A.3, infra.
Walker further testified that, after Mr. Clark and the other
man robbed him, the two assailants began demanding
substantial sums of money from Mr. Walker - about $150, 000.
See Dec. 8, 2010 Trial Tr. at 81-83. While Mr. Clark held Mr.
Walker at gunpoint in the rear seat of the Highlander, the
other man drove Mr. Walker's car to various locations
where they suspected Mr. Walker was keeping money.
See Dec. 8, 2010 Trial Tr. at 83-104. Believing that
Mr. Walker must keep money in a safe at his home, the men
first drove to Mr. Walker's house in Southeast
Washington. Upon arriving there, Mr. Walker saw his wife at
the door watching his young nephew play in the yard. See
Id. at 83-84. Mr. Walker attempted to dissuade the
men from entering his home by stating that a police officer
lived next door (he testified at trial that an officer owned
the property but did not live there). When Mr. Clark
continued to threaten entry, Mr. Walker explained that his
safe sat on the back porch, rather than inside the house.
Id. at 85-86. As the three men drove around the
block to another parking lot, Mr. Clark threatened to kill
Mr. Walker's wife if the safe did not contain sufficient
money. Knowing that the safe contained no money, Mr. Walker
"switched up" his story again to claim that he had
money at a nearby bank. Mr. Clark refused to go to the bank
for fear of being caught, saying "I know what you trying
to do." See Id. at 84-86.
Mr. Walker testified, the two assailants drove him to another
parking lot. Mr. Walker attempted to escape from the car, but
Mr. Clark struck him with his gun above the left eye, causing
substantial bleeding. Mr. Walker testified that Mr. Clark
also hit him on the knee, forced him to lie down on the floor
between the back seat and the front seat, and pinned him down
with the seat in a way that prevented any movement.
See Dec. 8, 2010 Trial Tr. at 86-89. In substantial
pain, Mr. Walker told his assailants that he had money stored
in a private unit at a storage facility on Kenilworth Avenue
in Bladensburg, Maryland, and that he would give them $75,
000 of the $125, 000 he had stored there. At trial, Mr.
Walker indicated that this too was a ruse: the facility came
to mind because a family member had a unit at a nearby U-Haul
facility, but Mr. Walker did not have a unit at the storage
facility or otherwise have access to money there. Even so,
Mr. Clark directed the other assailant to drive to the
storage facility. Id. at 89-90.
Walker warned his assailants that entering the facility with
his face covered in blood was likely to arouse suspicion, so
he requested that they "clean [him] up." Dec. 8,
2010 Trial Tr. at 90-91. At this request, Mr. Walker heard
Mr. Clark and the other man discussing a stop at 7-Eleven or
CVS to get bandages and water. The car stopped and at least
one person got out, though Mr. Walker was still pinned to the
floor of the car and could not see directly. Id. at
91-93. Another witness, an employee of a 7-Eleven in the area
of the attack, later offered testimony that also speaks to
this portion of the events. See Part II.A.2,
Walker further testified that, after the stop at 7-Eleven,
the assailants drove him to a storage facility on Kenilworth
Avenue in Bladensburg, Maryland. Mr. Walker's testimony
describes the location variously as a U-Haul or U-Storage
facility. See Dec. 8, 2010 Trial Tr. at 89, 94.
There, the assailants allowed Mr. Walker to sit up in the
back seat of the car. According to Mr. Walker, Mr. Clark
wiped Mr. Walker's face with water to clean off blood,
bandaged his head, and "said he was sorry."
Id. at 95. Mr. Clark gave one of his own shirts to
Mr. Walker because Mr. Walker's shirt was stained with
blood. See Id. After Mr. Clark bandaged his head,
Mr. Walker asked to sit and collect himself for several
minutes because his ankle was hurting after being pinned
down. He testified that, in reality, he was planning to
escape from his assailants on foot. Id. at 95-96.
Mr. Walker was permitted to rest for about ten minutes, after
which Mr. Clark and Mr. Walker exited the car and went into
the office of the storage facility. Id. at 97.
Walker testified that, once inside the office of the storage
facility, he and Mr. Clark encountered a young woman at the
desk. Mr. Walker told her that he wanted access to his
storage unit and identified himself using his real name. Dec
8, 2010 Trial Tr. at 98. When the woman told Mr. Walker that
no unit was rented to someone of his name, Mr. Walker
fabricated an explanation to Mr. Clark: that he had a private
"off-the-books" storage unit, and that only an
employee named Pat could open it. See Id. at 100.
Continuing his attempt to deceive Mr. Clark, Mr. Walker asked
when the next shift would begin, but the woman indicated she
was working the day's final shift and that no one else
would be working that day. As the two men were leaving the
office, Mr. Clark asked the desk attendant if anyone named
"Pat" was actually an employee at the U-Store
facility; Mr. Walker believes the attendant said no.
See Id. at 100. Another witness, the
storage facility desk attendant, later offered testimony
about this portion of the events. See Part II.A.2`
Clark and Mr. Walker exited the office, Mr. Walker ran across
Kenilworth Avenue to an apartment complex called Kenilworth
Towers. He entered the complex's office and asked a
person working there if he could use the phone. Mr. Walker
testified that he called the police but hung up immediately
in order to call his wife and instruct her to lock the doors
of their home, fearing that his assailants would return to
his house. He called 911 again, and shortly thereafter the
police and an ambulance arrived and took Mr. Walker to the
hospital. See Dec. 8, 2010 Trial Tr. at 103-04. A
resident manager at Kenilworth Towers later offered testimony
concerning Mr. Walker's conduct at the apartment complex.
See Part II.A.2, infra.
Walker testified that, when the police first arrived at
Kenilworth Towers Apartments on the day of the attack, he
spoke with Detective Elmer Baylor, Jr. of the Metropolitan
Police Department of the District of Columbia. See Dec. 8,
2010 Trial Tr. at 104, He initially told Detective Baylor
that he had been abducted near "51st and Fitch
Streets." See Id. at 132; see also
Dec. 9, 2010 Trial Tr. at 197; Defense Ex. 4 (stipulating the
placement of a surveillance camera "at 51st
and Fitch Streets, Southeast"). He described his two
assailants but stated that he did not know their identities.
See Dec. 8, 2010 Trial Tr. at 132. Later, Mr. Walker revised
the location of his abduction and told the prosecutor and the
detectives that he did in fact know one of the assailants,
whom he identified as someone named "Floyd." See
Id. at 106. Mr. Walker testified that he eventually
learned "Floyd's" last name through a
Department of Public Works employee who worked at the impound
lot where the Red 2008 Toyota Highlander was impounded after
the attack. See Id. at 107-08, 132-33. Based on the
first and last name given by Mr. Walker, police showed Mr.
Walker a single photo of Floyd Clark. See Id. at
108. Mr. Walker confirmed that the man depicted in the
photograph - the defendant - was one of his two assailants.
trial, Mr. Walker explained that he professed ignorance of
his attacker's identity in his initial report to the
police because he had planned to kill Mr. Clark. He discarded
this plan and decided to identify Mr. Clark to the police
after speaking to his wife. See Dec 8, 2010 Trial
Tr. at 105. Mr. Walker admitted at trial that he had lied to
the police during his initial encounter when he denied
knowing his attacker. See Id. at 139. Shortly
thereafter, however, he testified that "Actually, I
never lied. I don't feel I lied." See id.
he identified Mr. Clark to the police, Mr. Walker testified
before a grand jury. Dec. 8, 2010 Trial Tr. at 125
(discussing Government Exhibit 1). Although Mr. Walker
testified at trial pursuant to an agreement immunizing him
from prosecution for certain crimes, no such agreement was in
place at the time of his grand jury testimony concerning the
crimes. See Id. at 126-31. Following Mr.
Walker's testimony, the grand jury indicted Mr. Clark.
Testimony of Lay Witnesses
Kalbi, Christel Antoine, and Carmen Isler observed Mr. Walker
and another man on May 9, 2010. Although none of them
identified Mr. Clark, their testimony corroborated certain
other aspects of Mr. Walker's description of the attack.
Yonata Kalbi, the store manager of a 7-Eleven, testified that
he was working at the cash register of a 7-Eleven located at
4199 Kenilworth Avenue in Bladensburg, Maryland on May 6,
2009. See Dec. 8, 2010 Trial Tr. at 150-53. Mr. Kalbi
testified that on that day a man came into the store who
appeared to be in a hurry: He came directly to the register
and tried to cut the line. The man bought a box of bandages
and left without his change. See Id. at 154, 156-57,
170. Mr. Kalbi provided video surveillance footage taken
during this interaction to the police a few days later. See
Id. at 161-63. At trial, Mr. Kalbi reviewed the
surveillance footage and still frame images taken from it. He
identified himself and pointed out the man who bought
bandages. See Dec. 8, 2010 Trial Tr. at 159-61 (citing
Gov't Ex. 66). Mr. Kalbi further testified that the man
in the surveillance footage "looks like" the man
who bought bandages on May 6, 2009. See Id. at
163-67 (discussing Gov't Ex. 7). At trial, Mr. Kalbi was
not asked to identify Mr. Clark as the man who bought the
Christel Antoine worked at the Kenilworth Avenue U-Store
facility on May 6, 2009. That day, two men entered her store
who were acting "unusual," in that they did not
come straight to the counter and did not make eye contact
with Ms. Antoine at first. See Dec. 9, 2010 Trial
Tr. at 11. One man was wearing a hat but the other was not.
See Id. at 13. The man without the hat asked her to
access an account for "Michael," which is Mr.
Walker's first name. See Id. at 13, 16.
Ms. Antoine responded that the system did not have a unit
belonging to someone of that name. See Id.
at 14. The man with the hat seemed agitated during the
exchange, and the two men began to leave. See
Id. at 17. The man with the hat returned to ask if
someone named "Pat" worked there, and Ms. Antoine
said no. See Id. at 18. After the man with the hat
left the U-Store, the man without the hat started to run
across the street toward Kenilworth Towers, and a red car
picked up the man with the hat. See Id. at 18-19.
detective showed a photo array to Ms. Antoine and asked her
to identify anyone who looked familiar. See Dec. 9, 2010
Trial Tr. at 19-20. She testified that she "got a better
look" at the man without the hat because he had made eye
contact with her when asking for the storage unit. See
Id. at 20-21. She explained that the two men looked
like brothers. See Id. at 22. She selected one
photograph, No. 6, but could not determine precisely which
one of the men it depicted - she thought it looked like the
man without the hat. See Id. at 22-23. A police
witness later confirmed that the photo array contained a
picture of Mr. Clark, but that the photograph Ms. Antoine
selected was not Mr. Clark's photo. See
Id. at 146. In fact, the individual Ms. Antoine
selected was incarcerated at the time that the two men
visited the U-Store. See Id. at 146-49.
trial, Ms. Antoine identified herself in the video
surveillance footage from the U-Store. See Dec. 9, 2010 Trial
Tr. at 23-26 (citing Gov't Ex. 8). She also pointed out
the man without the hat who asked about a unit belonging to
"Michael," as well as the man with the hat who came
back in to ask if "Pat" worked there. See
Id. at 31-32. She was not asked to identify either
man in the video as Mr. Clark.
Carmen Isler was the resident manager of Kenilworth
Apartments across Kenilworth Avenue from the U-Store. See
Dec. 8, 2010 Trial Tr. at 174-75, 177-78. At trial, she
testified that on May 6, 2009, a man with a bandage on his
forehead walked into the office looking "nervous."
See Id. at 179-80. He was talking about "a car
or something." See Id. at 182. He made a call
to the police, and possibly more calls, using the courtesy
phone. See Id. at 183. The police arrived a short
time later. See id- at 183.
Walker offered the only direct evidence implicating Mr. Clark
as one of the perpetrators of the crimes. The government
argued, however, that additional facts constituted
circumstantial evidence of Mr. Clark's guilt, most
notably Mr. Clark's refusal to comply with two court
orders requiring him to submit to DNA tests and hair samples
and his purported efforts to evade arrest for the attack of
Physical Evidence and Refusal of DNA Sample
Michael DePrince of the Metropolitan Police Department was a
member of the mobile crime scene unit on May 6, 2009. Dec. 9,
2010 Trial Tr. at 104. He processed a red 2008 Toyota
Highlander belonging to Mr. Walker's wife, from which he
recovered a number of items: a plastic bag from Downtown
Locker Room, see Id. at 111 (citing Gov't Ex.
4); a gold-colored metal link, see Id. at 113-14
(citing Gov't Ex. 6); a shirt from the rear drivers'
side of the car that appeared to be stained with dried blood,
see Id. at 103, 106-07 (discussing Gov't Ex. 1);
a car's floor mat, stained with what appeared to be dried
blood, see Id. at 108-09 (discussing Gov't Ex.
2); a box of Band-Aid brand bandages, see Id. at
110-11 (discussing Gov't Ex. 3); and a Deer Park brand
plastic water bottle from the rear seat, see Id. at
112-13. Officer DePrince was not able to recover
any usable fingerprints from the car, Id. at 114,
but he did collect "trace evidence" that could be
tested for DNA, including skin cells, fibers, and hairs, see
Id. at 104.
Agent Chad Fleming of the Federal Bureau of
Investigation's Violent Crime Task Force testified that
his unit was responsible for investigating certain robberies,
kidnappings, and wanted fugitives in Washington, D.C. and for
booking certain arrestees. Beginning in early 2010, arrestees
processed at the FBI's Washington Field Office had their
fingerprints taken and were given a buccal swab (a sample of
the cells from the cheek or mouth) to collect DNA for
forensic analysis. See Dec. 8, 2010 Trial Tr. at 185-87.
Special Agent Fleming helped to process the arrest of Mr.
Clark on April 20, 2010, at which time he took fingerprints
and a buccal swab from Mr. Clark. See Id. at 185-86,
192-94. Mr. Clark agreed to provide the samples, though it
"took a little convincing" from Special Agent
Fleming. Id. at 192.
Tony Nwani of the Metropolitan Police Department worked on
forensics for the MPD mobile crime lab. See Dec. 8, 2010
Trial Tr. at 205. Several months after Mr. Clark's
arrest, Officer Nwani met with Mr. Clark to attempt to
collect further samples. He first attempted to collect DNA
and hair samples from Mr. Clark on September 3, 2010.
See Id. at 207-08. Officer Nwani showed Mr.
Clark an August 30, 2010 order of this Court that authorized
collection of the samples. See Id. at
209-10; see also DNA Order (indicating that the
order was signed on August 30, 2010 and filed on August 31,
2010). The order does not have a seal or long-form signature;
instead, the order issued from "Paul L. Friedman, United
States District Judge," immediately above which appear
the characters "". See Id. at 225-31. Mr.
Clark refused to provide DNA and hair samples, noting that he
had previously given a saliva swab and head hair.
See Id. at 208.
trial, the parties stipulated that a hearing was held on
September 16, 2010. At the hearing, the parties stipulated,
the Court advised Mr. Clark that its August 30, 2010 order
requiring provision of DNA samples was valid but that the
Court would nevertheless re-issue a certified copy of that
order. The parties further stipulated that Mr.
Clark was told during the hearing that he risked ...