NOT RECOMMENDED F OR P UBLICATION File Na me: 12a0239n.06 No. 10-6086 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

United States of Am eric a, P laintif f-App ellee,

v. Michael Sm ith, aka Michael Walls, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE U NI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN NESSEE

BEFORE: MERRITT and COOK, Cir cuit Judges; and COX, Distric t Judge. * MERRITT, Circuit Judge. Def endant Michae l Smit h, also known as Michae l Walls, was convicted afte r a jury trial of assaulting a fede ral employ ee while the employ ee was eng ag ed in the perf ormanc e of officia l d u t ies in violation of 18 U.S.C. § 111, and kidnaping a fede ral employ ee while the employ ee was eng ag ed in the perf ormanc e of officia l dut i es in violation of 18 U.S.C. § 1201(a) (5)—a

rising from t he rape and robber y of a postal worke r i n h er mail truck while she was

on her route delivering mail in Memphis, Tenne ssee. On appea l, Smit h claims err or by the district

court in (1) overr

uling his motion to suppress evidenc e; (2) enhanc ing his offe nse level at sentenc ing by six levels purs u an t t o U.S.S.G. § 3A1.2(b) on the g round that the victim was a g overnme nt employ ee and the offe nse was motivated by her g overnme nt status; and (3) denying his motion for

T h e Ho n o rable Sean F. Cox ., United States District Court for the Easter n District o f * Michig an, sitting by

desig nation.No. 10-6086

United States v. Smith

a new trial without g ranting him an evidentiar y hear ing on the composition of his jury venire , which Smit h claims disproportionately excluded Afric an Amer icans.

I. At about 12:30 p.m. on November 10, 2005, C.O., a letter car rier e mploy ed by the United 1 States Postal Service , repor t ed that she had been rape d and robbed while delivering mail in Memphis. She said that a man came up to he r postal truck, stuck his a rm throug h the window and g rabbe d her by the neck. He held “something hard” ag ainst her head and told her he had a g un. He order ed her into th e b ac k of the truck and rape d her. After he exit ed the truck, he immediately

returne d and demande d money . C.O. threw her purse to him a nd he left with the purse. A woman in the neig hborhood had noticed the mail truck stopped for an extended leng th of time and came out to the vehicle. C.O. told her she had been rape d. The neig hbor called the police and C.O. called her husband and he r super

visor. Poli ce an d p o s tal investigators came to the scene . C.O. descr ibed her assailant as a black male betwee n 18 and 23, having a heig ht of 5' 7" to 5' 9" and weig hing about 150 pounds. He wore blue j eans with white s titching, a hooded sweatshirt and white tennis shoes. He kept t h e h ood up on the sweatshirt throughout the attack, kee ping C.O. f rom g etting a

g ood look at his face

. I nvestig ators b ega n sear ching the are a immediately for the man matching the descr iption g iv en t h em by C.O. About two hours afte r the assault, two postal inspectors driving throug h a residential are a saw a y oung man sitti ng on a cur b matchingthe desc ription C.O. ha d g iven them.

The g overnme nt reque sts that the opinion refer to the victim by

her initials. 1 -2-No. 10-6086

United States v. Smith He had an article of denim clothing drape d around his ne ck. As the inspectors approa ched in their vehicle the man fled, droppi n g t h e i t em that had been drape d around his neck. Although they pursued the man, the inspectors did not catc h him. When they returne d a short time later to the spot wher e they first saw him, they found a p ai r o f denim blue jeans. The postal inspectors had also noticed that the man ha d a ver y distinctive haircut — a shor t cut with severa l twists i n the hair. L ater that same day , Memphis police office r Robert Br own arr ived on the scene to take part in the investigation beca

use he knew the neig hborhood well. After he hear d the phy sical descr iption of the suspect, he told the postal inspectors that he believed that the man they wer e looking for was

one of three men: Michae l Walls, Kenny Gross or Kenny ’s y oung er brother, Rick -R i ck

. Officer Br own said that Kenny Gross and Michae l Walls looked simil ar to eac h other and even share d clothes so they could prete nd to be the other one if they g ot into trou b l e. T h e p o s t al inspectors viewed a picture of Kenny Gross on the afte rnoon of November 10 and a photogr aph of Walls either

on the evening of the 10th or the morning of November 11. They believed that either man could be the m an they saw on the curb who ran from th em . I n v es t i gat ors also found out on the evening of November 10 or the morning of November 11 that Michae l Walls was also known as Michae l Smit h. Ba sed on t h e information they had g ather ed, they beg an looking for Kenny Gross or Michae l Walls/ Smit h on the morning of Nove mber 11. They found Ke n n y Gr o s s first. Gross denied being at the location of the assault the day before an d s ai d h e was at his house with his friend Shawn Wil liams from noon to 1 p.m. on November 10. Gross told the inspectors that Walls came to Shawn Wil liams’ house while Gross was there on November 10. He was wea ring a hooded swea

tshirt a nd blue jeans and car

ry ing a second -3-No. 10-6086

United States v. Smith pair of blue jeans. He said he wanted to chang e his clothes; but, beca use Wil liams and Gross wer e leaving , Smit h did not have an opportunity at t h at t i me to chang e. All three men left the house shortly there afte r. Gross a lso told t he ins pector s that late in the af ternoon of N ovember

10, Walls telephoned Shawn Wil liams while Wil liams and Gross we re ri ding around in the car . Gross overhe ard Walls tell Wil liams that the police wer e chasing him a nd that they thought he rape d and robbed the mail lady

. After being interviewe d, Gross g ave a signe d, written statement and he ag ree d to give investigators a DNA sample. During his interview with postal inspectors on the morning of November 11, Kenny Gross ag ree d to call Walls and try to locate him. Gross made the call and told Postal I nspector Valer ie Clay that Walls wa s at the Red Oak Apar tments in front of the home of Br enda Wil liams, the mother of Shawn Wil liams. Clay called Po s t al I n s pector J ack Dietz, who was alre ady at the Red Oak Apar tments try ing to locate Shawn Wil liams. After being briefe d over the phone by Clay , Dietz and another inspector went to Br enda Wil liams’ apar tment a nd found a man in f

ront of her apar

tment. Dietz a sked the man if he was Michae l Walls and the man sa id no. Dietz asked if he knew Kenny Gross or had spoken to him and the man said no. When asked for identification, the man produce d I D wi t h t h e name “Micha el Smit h.” Dietz then called Clay to confirm that this was the man for whom they wer e looking and, when told that it was, the man was arr ested and put in the inspector’ s

car . Di et z t hen went to Br enda Wil liams’ apar tment and said they wer e looking for Michael Walls. Ms . Wil liams responded tha t he was the man sitting in the ca r. W hen tol d that the man in the ca r said that his name was Michae l Smit h, Ms. Wil liams told Dietz that Michae l Walls and -4-No. 10-6086

United States v. Smith Michae l Smit h wer e the same person. Ms. Wil liams told Dietz that Smit h had come to her apar tment the day befor e—Nove mber 10, the da y of the a ttack on C.O.—at a bout 5 p.m. and told he r he was running from the police. Ms. Wil liams said that Smit h chang ed clothes in her apartment an d that the clothes out of which he chang ed wer e still in the apar tment. The inspectors retrie ved the clothes and found among them a pair of blue jeans with white stitching matching the descr iption of the jeans C.O. said her a ssailant wore

. Whil e at Ms. Wil liams’ apar tment, Dietz also spoke with Br andi Norman, Br enda Wil liams’ niece , who said she was at the apar tment when Smit h came by the day befor e . She told Die tz that she also hear d Smit h say he was running from the police; and, in a ddition, Smith told Norman that he was sitti ng on the curb when he saw a dark blue car with tinted windows approa ching

. Be lieving it to be the police, he took off running and dropped the pair of pants he had drape d around his neck. Dietz also sp o k e wi t h Shawn Wil liams while he was at the apar tment, and Shawn Wil liams

corr oborate d the story that Kenny Gross had told the inspectors about his encounte r and phone call with Smi th. Smit h was then transporte d to the postal i n s p ec t i o n service office wher e he was g iven his Miranda rig hts and interviewe d. Smit h also g ave written consent to g iving a DNA sample. Smit h’s DNA matc hed the DN A found in the samples taken fr om C.O. the day of the ra pe. A two-count indictment was returned ag ainst Smit h: Count 1 char g ed him with forc ible assault and infliction of bodily injury on a fede ral employ ee while the employ ee was eng ag ed in the perf ormanc e of officia l duties in violation o f 1 8 U.S .C. § 111; and Count 2 char g ed him with unlawfully seizing, confining and holding for purposes of a sexual assault a fede ral employ ee while -5-No. 10-6086

United States v. Smith the employ ee wa s en gage d in the perf ormanc e of officia l duties in violation of 18 U.S.C. § 1201(a) (5). (R.10) Smit h filed a motion to suppress evidence. (R

. 6 3 ) The dist rict court held a hear ing and denied the motion on October 8, 2008. (R.85) The case was tried to a jury and Smit h testified that the sex was consensua l. The first trial ended in a hung jury

. The case was retrie d and d ef en d an t ra ised the same defe nse of consensua l sex, but he was convicted on both counts. A prese ntence repor

t was prepa

red that calc ulated an offe nse level of 48 and a criminal history cate g ory of I V, resulting in a g uideline rang e of life imprisonment. The defe ndant made numerous objections to the prese ntence repor

t. After a sentencing hear ing, Smi th was sentenced to a prison term of 25 y ear s. This appea l followed. II. Def endant raises three issues on appea l: (1) the district court err ed in denying his motion to suppress becaus e I nspector Dietz did not have probable cause to arr est him; (2) the district court

err ed in adding a six -leve l enhanc ement to his base offe nse level pursuant to U.S.S.G. § 3A1.2 due to the victim’s sta tus a s a g overnme nt employ ee; and (3) the district court err ed in ref using to hold an evide ntiary

hear ing ba sed on the a lleg ed ra cial disparity in the composition of the jury pool. A. Denial of Motion to Su ppress Def endant appea ls the denial of his motion to suppress all evidenc e flowing from his arr est, including statements and DNA evidenc e taken with his consent. Def en d an t co n t en ds that he was under arr est when he was place d in the back of the postal inspector’ s vehicle and that I nspector Dietz lacke d probable cause at that moment to arr est or detain him. We assume that defe ndant was under

arr est when he was handcuf fed and place d in the I nspector’ s vehicle. Pee te v. Metro. Gov’ t of

-6-No. 10-6086

United States v. Smith Nashville & Davidson Cnty. , 486 F.3d 217, 220 (6th Cir. 2007) (A seizure occur s wher e “intentional interfe renc e with a perso n ’s l i b er t y by phy sical forc e or a show of authority

. . . would cause a

rea sonable pe rson consc iously to submit .”). When a district court denies a motion to suppress evidenc e, we revie w the cour t ’s l egal conclusions de novo and its finding s of fac t for clea r err or. United States v. Gunter , 551 F.3d 472, 479 (6th Cir. 2009). A factual finding i s clea rly err oneous if our r eview of the evidenc e leaves us “with t h e d ef

inite and firm conviction that a mistake has been committed.” Id. (quoting United States v. Navarro–Camacho , 186 F.3d 701, 705 (6th Cir. 1999)). W e ac co rd “conside rable defe renc e” to the district court’s cre dibilit y finding s. United States v. McCauley , 548 F.3d 440, 447 (6th Cir. 2008) (quoting United Sta t es v. Cooke , 915 F.2d 250, 252 (6th Cir. 1990)). Whether probable cause exis ts turns on whether the “‘f acts and circ umstances within [t he arr esting office r’s] knowledg e and of which [ he] had reasonably trustworthy information wer e suff

icient to war

rant a prudent’ person to conclude that an individual either had committed or was committing an offe nse.” United States v. Torres–Ramos , 536 F.3d 542, 555 (6th Cir. 2008) (quoting Bec k v. Ohio , 379 U.S. 89, 91 (1964))

. I n order to deter mine whether probable cause exis ted at the t ime of the arrest, we look to the totality of the circ umstances. United States v. Romero , 452 F.3d 610, 616 (6th Cir. 2006) (citations omitted). We ag ree with the district court’s finding that I nspector Dietz possessed probable cause for

an arr est when he handcuf fed defe ndant and put him in the vehicle. Dietz had substantial evidenc e that a rape had been committed the day befor e by a man fitting defe ndant’s descr iption. Dietz was told by investigators that he would find the person suspected of the rape in front of Br enda Wil liams’ -7-No. 10-6086

United States v. Smith apar tment, an d when he arr ived there moments later he encounte red defe ndant outside of Ms. Wil liams’ home. Dietz knew that the suspect had made a statement t o Ke n n y Gr o ss and Shawn Wil liams on the day of the attack t h at h e wa s ru n n i ng from the police beca use he had rape d and robbed the “mail lady ,” a key piece of evidenc e supporting probable cause here

. I t is signific ant that the suspect had made this statement to Gross and Shawn Wil liams only a few hours afte r the attack

at a time that this fac t would have been known to only a fe w p eo p l e beca use no details had been rele ased to the public y et. L aw enfor ceme nt a lso believed from information rec eived from Offic er Br own and Kenny Gross that the suspect, who fit the descr iption of the man now befor e Dietz, r an from postal inspectors the day befor e, dropping

a pair of jeans as he fled. The only confusion was that Dietz thought the per son he wa s looking for was na med “Michael Walls” and this person ha d I D indicating his name was “Micha el Smit h.” Despite this confusion, based on ever y thing known 2

to Dietz from his own investigation and what he h ad b een told by other investigators, Dietz had probable cause to arr est defe ndant at that mome n t

. T h e evidenc e held by law enfor ceme nt was sufficie ntly strong to constitute probable ca u s e. Hence, the defe ndant’s consent to g iving a DNA sample to police wa s not viti ated by an illeg al ar

rest. B. § 3A1.2 Enh ancem ent for Of fi cial Victim

Dietz admitted to being “conf used” when h e s aw the name “Micha el Smit h” on the 2 identification. Motion to Suppress Hea ring Tr. at 138-39, J uly 24, 2008 (R.78). The district c ourt found t h at t h e ev i d en ce was not sufficie nt to support a finding of fac t that, prior to handcuf fing defe ndant and placing him in the vehicle, Dietz had actua lly lear ned that “Micha el Walls” was a name former ly used by defe ndant. Orde r Deny ing Motion to Suppress at 3 n.3 (Oc t. 8, 2008) (R.85). We ag ree with the district court that any confusion over the name does not undermine the conclusion that Dietz had probable cause to arre st defenda nt at that moment. -8-No. 10-6086

United States v. Smith I n defe ndant’s next assig nment of err or, he contends that he should not have rec eived a six

level incre ase in his offe nse level for the “o ff i ci al victim” enhanc ement pursuant to U.S.S.G. § 3A1.2. Section 3A1.2(a ) provides that a defe ndant’s base offe nse level should be incre ased by three

3 levels if the victim was a g overnme nt office r or employ ee and th e offe nse of conviction was motivated by the office r’s status as a g overnme nt employ ee. Section 3A1.2(b) further provides that the defe ndan t ’s b as e o ffense level should be incre ased by six levels rathe r than three levels if the “applica ble C hapter Two guideline is from Chapter Two, Part A (Offense s Ag ainst the P erson) .” I n this c ase, defe ndant’s base offe nse level of 32 was incre ased by six levels beca use the g uideline used, § 2A4.1(a ), entitled “Kidnapping , Abduction, Unlawf ul Restraint,” is from Chapter Two, Part A. Def

endant arg ues that the distr i ct court err ed in enhanc ing his base offe nse level under § 3A1.2(b) beca

use there was no evidenc e that his attack on C.O. was “motivated” by her status as a g overnme nt employ ee. Paradoxically , he assert s that he is less culpable beca use he would have sexually assaulted a

ny woman who ha

ppened to be in the vicinity at that time so there is no ne x us betwee n his conduct an d C

. O. ’s p osition as a postal worke r. Def endant also arg ues that the enhanc ement allows impermissible doubl ec o u n t i ng beca use the statutes under which he was

Section 3A1.2, entitled “Of ficial Vic tim,” provides in rele vant par t: 3 (a ) I f (1 ) the victim was (A) a g overnme nt office r or employ ee; . . . ; and (2 ) t h e offe nse of c onviction was motivated by such status, incre ase by

3 levels. (b) I f subsection(a )(1) and (2) apply , and the applicabl e C h apter Two g uideline is from Chapter

Two, Part A ( Offe nse Ag ainst the Person), incr ease by 6 levels.

-9-No. 10-6086

United States v. Smith convicted alre ady take into acc ount the fac t th at t h e victim was a g overnme nt employ ee. Def endant’ s Br . at 40. The doublecounting issue is without merit, as defe ndant conce des in his brief. Br

. at 39-40 (“The courts

. . . have reje cted double-c ounting arg uments beca use § 3A1.2 ‘re quires a highe r level of culpability , i.e., the defe ndant’s action must have been ‘motivated’ by the v i ct i m ’s officia l status.’”). The offe nse g uideline used in defe ndant’s case , § 2A4.1(a ), does not acc ount for the victim be ing a g overnme nt e mploy ee or officia l, so no doublecounting occur red. United States v. Talley , 164 F.3d 989, 1004 (6th Cir. 1999). B ut, as the g overnme nt conce des, “the provision of § 3A1.2 (a ) and (b) [t hat] preve nts double-c ounting is that the defe ndant was ‘motivated’ by [t he] g overnme ntal status of the victim.” Gov’t B r. at 21 n.3. The issue of whether defe ndant’s attack on C.O. was “mot i v at ed ” b y her status as a g overnme nt employ ee is not so easily dismiss ed. The issue was not fleshed out in the district court, and the discussion a

t th e s e n te ncing hear ing focuse d almost exclusively on the doublecounting issue. Ultimately , the district court overr uled defe ndant’s objection to the six -leve l enhanc ement under § 3A1.2(b), but the rec ord ref lects that its decision was based upon the leg al issue of whether the g uideline allowed fo r i m p er m issible doublecounting , rathe r than the fac tual issue of whether defe ndant’s conduct was motivated by C.O.’s position as a postal worke r. T h e go v ernment has p ro v i d ed some rationalization in its brief on appea l by claiming that the fac t that C.O. was in her p ostal truck with a larg e car g o are a in the back is what motivated defe ndant to att ac k h er . Gover nment’s Br

. at 32. Def

endant arg ues that the g overnme nt ha s not met its burden of proof on this iss ue. -10-No. 10-6086

United States v. Smith Since t he fili ng of t he brie fs in this case, our Court has issued an unpublished opini on that is fac tually simil ar to the instant case . I n United States v. Hopper , 436 F. App’x 414 (6th Cir. 2011),

we aff irmed the application of the enhanc ement under § 3A1.2 afte r Hopper was convicted of arme d robber y that occur

red while a postal worke r wa s delivering mail. Hopper, w hile pointing a g un at the mail car

rier, demande d m o n ey an d took the mail car rier’ s persona l cell phone and wallet containing cash and cre dit ca rds. Hopper arg ued that there was no evidenc e that the robber y was motivated by the mail car rier’ s status as a g overnme nt e mploy ee and that he and a friend wer e just j oy riding and looking for people to rob. The g overnme nt arg ued that Hopper attacke d t h e m ai l

car rier beca use he was probably a more lucr ative victim than those who lived in the neig hborhood and beca use he was more vulnera

ble at that time beca

use he was preoc cupied with delivering t h e mail and had his back to the street as he put the mail in the box es at an apar tment building. We seem to ha ve used an objective rathe r than a subjective intent sta ndard: “the officia l status of the victim need not be the s ole reason or primary motivation for the offe nse. . . . [ T]he fac t that Hopper w as

awa re that [t he victim] was a mail c arr ier may be sufficie nt for finding that Hopper was motivated by [t he victim’s] officia l status.” 436 F. App’x at 429 (citations omitted). The opinion continues: Even assuming that evidenc e of knowledg e of the victim’s officia l status alone is not sufficie nt to draw an infere nce of motivation, the district court also made ref ere nce to the g overnme nt's a

rg ument that [t he victim] was facing the m ailbox and plac ing mail in the compar

tments when Hopper came up behind him. Since [t he victim] was distracted and preoc cupied with his officia l duties, this made him an easy targ et. The district court’s finding that the offe nse was motivated by [t he victim’s] officia l status is supported by

the evidenc e. Id.

-11-No. 10-6086

United States v. Smith The district court in this case did not comment direc tly on the motivation issue at sentenc ing. The Sentencing Commi ssion does not make clea r whether the word “motivated” in the g uideline is intended to establish an objective or subjective standard. But, in this case , any err or in defining and apply ing the enhanc ement was harmless. Even after subtracting the six -leve l enhanc ement added under § 3A1

. 2 (b), defe ndant’s g uideline rang e would have been 360 months to life. The district

court imposed a sentenc e of 25 y ear s—well below the g uideline rang e. See United States v. Lalonde , 509 F.3d 750, 765 ( 6th Cir. 2007) (a se ntencing g uideline ca lculation err or ca n be har mless). C. Racial Disparity in the Com position of the Jury Pool Smit h filed a motion for a new trial claiming that Afric an Americ ans wer e underr epre sented in the jury pool for the Western District of Tenne ssee. The Supreme Court has held that “[t] he Six th Amendment secur es to criminal defe ndants th e rig ht to be tried by an impartial jury draw n from

source s ref

lecting a fair cross section of the community ,” Berghuis v. Smith , 130 S. Ct. 1382, 1387 (2010), but has not held t hat a defe ndant i s entitled to a jury of any particula r ra cial composit ion. T h e fa ct that there wer e “only three Afric an Americ ans jurors initially selec ted in the venire ” i s defe ndant’s only fac tual basis for this claim. I n denying the motion, the district co u rt relied on Duren v. Missouri , 439 U.S. 357, 364 (1979), which holds that a defe ndant as s er t i ng a Six th Amendment violation in the composition of the jury pool must d emonstrate that (1) the g roup alleg ed

to be excluded is a distinctive g roup in the community ; (2) the repr esenta tion of this g roup is not fair and reasonable ; and (3) the underrepr esenta tion was due to a sy stematic ex clusion of the group in the selec tion proce ss. Orde r Deny ing Def endant’ s Motion for a New Trial at 3 (filed Mar. 15, 2010). (R.142) The district court found that defe ndant had not met the standard set forth in Duren beca use -12-No. 10-6086

United States v. Smith he prese nted no evidenc e of “sy stematic exclusion” of Afric an Americ an s. Id

. at 4-5. Duren descr ibed “sy stematic exclusion” to mean exclusion “ in h e r e n t in the particula

r jury -selec tion proce ss utiliz ed.” Duren , 439 U.S

. at 365-66. The proof must be sufficient to support an inferenc e that a particula r proce ss results in underr epre sentation of a dist i n ct i v e gro up. No such infere nce is permissible if a fede ral jury venire ref lects the demog r a

p h ics of an entire multi-county fede ral district but not the demog raphic s of a particula r county in which the crime is committed. Def endant points

to nothing in the selec tion proce ss that allows an infere nce that any underr epre sentation was due to the s y stem itself. Mere ly beca use t he perce ntag e of a dis tinctive g roup selected i n a single venire does not m i rror the perc entag e of the g roup in the entire community cannot be construed as sy stematic exclusion. See United States v. Allen , 160 F.3d 1096, 1103 (6th Cir. 1998) (must show

more than that a particula

r panel was unrepr esenta tive of the community ); Ford v. Seabold , 841 F.2d 677, 685 (6th Cir. 1988). The district court did not abu s e its discretion in denying defe ndant’s motion for a new trial without f irst holding an evidentiar

y hear ing beca

use the defe ndant provided no evidenc e of sy stematic exclusion of Afric an Amer icans fr om the jury venire

. For the fore g oing r easons, we aff irm the conviction and se ntence of the district cour t.

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