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United States v. Clark

United States District Court, District of Columbia

April 22, 2019

FLOYD CLARK, Defendant,


          PAUL L. FRIEDMAN, United States District Judge.

         This 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 same day.[1]


         On May 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).

         In 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.

         Mr. 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.

         Clark 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).[2] 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.

         On 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. at l-2.[3]

         In 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.

         At the 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. at 25-33.

         Following 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.


         A. The Evidence at Trial

         At 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.

         1. Michael Walker's Testimony

         At 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.[4] 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.

         Shortly 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.

         Mr. 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.

         Next, 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.

         Mr. 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, infra.

         Mr. 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.

         Mr. 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` infra.

         As Mr. 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.

         Mr. 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.

         At 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.

         After 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.

         2. Testimony of Lay Witnesses

         Yonata 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.

         Mr. 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 bandages.

         Ms. 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.

         A 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.

         At 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.

         Ms. 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.

         3. Circumstantial Evidence

         Mr. 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 Mr. Walker.

         a. Physical Evidence and Refusal of DNA Sample

         Officer 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.[5] 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.

         Special 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.

         Officer 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.

         At 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.[6] The parties further stipulated that Mr. Clark was told during the hearing that he risked ...

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