*

The Honorable Paul R. Matia, Chief United States District Judge for

the Northern District of Ohio, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0324P (6th Cir.)

File Name: 04a0324p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN G. CLARK,

Defendant-Appellant.

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No. 03-5431

Appeal from the United States District Court

for the Eastern District of Tennessee at Winchester.

No. 02-00014—R. Allan Edgar, Chief District Judge.

Submitted: August 3, 2004

Decided and Filed: September 23, 2004 

Before: CLAY and GILMAN, Circuit Judges; MATIA,

Chief District Judge.*

_________________

COUNSEL

ON BRIEF: M. Keith Davis, AUSTIN, DAVIS &

MITCHELL, Dunlap, Tennessee, for Appellant. Perry H.

2 United States v. Clark No. 03-5431

Piper, ASSISTANT UNITED STATES ATTORNEY,

Chattanooga, Tennessee, for Appellee.

_________________

OPINION

_________________

CLAY, Circuit Judge. Defendant Steven Clark appeals his

conviction and sentence on two counts of knowingly,

intentionally and without authority distributing cocaine base

(crack), a Schedule II controlled substance, in violation of

21 U.S.C. § 841(a)(1). He argues that the district court erred

when it (1) refused to authorize the expenditure of funds for

a clinical psychologist to assist in the guilt and sentencing

phases of his trial; (2) refused to compel the government to

produce a copy of notes prepared by an FBI Agent who had

interrogated Defendant after his arrest; (3) refused to grant a

mistrial for the government’s alleged failure to comply with

FEDERAL RULE OF CRIMINAL PROCEDURE 16 by failing to

produce the agent’s notes in a timely manner; (4) refused to

grant a downward departure in his sentence for his purported

diminished capacity; and (5) ordered Defendant’s sentence to

run consecutively to the term of his imprisonment on his state

law offenses. For the reasons that follow, we AFFIRM

Defendant’s convictions, but REMAND to the district court

for consideration of whether Defendant’s term of

imprisonment on his federal conviction should run

concurrently or consecutively to his state law convictions.

I.

Facts

On June 16, 2000, after a confidential informant (“CI”) had

been searched for contraband and equipped with a recording

device, an undercover agent accompanied the CI to the

residence of Tim Knox in Shelbyville, Tennessee. Defendant

Steven Clark sold crack cocaine to the CI in exchange for

$200 in pre-recorded funds. The CI relinquished the
No. 03-5431 United States v. Clark 3

recording device and 0.5 grams of crack cocaine to the agents.

Similarly, on October 13, 2000, after a CI had been searched

for contraband and equipped with a recording device, an

undercover agent accompanied the CI to McGee’s Trailer

Park, also in Shelbyville. The CI entered a trailer and found

Defendant in the living room. Defendant sold crack cocaine

to the CI in exchange for $100 in pre-recorded funds. The CI

relinquished the recording device and 0.4 grams of crack

cocaine to the agents. At the time of these drug transactions,

Defendant was on probation for state charges of sale of

cocaine under 0.5 grams, theft over $500, bail jumping,

simple possession of marijuana, and driving on a revoked

license. His state probation terms were subsequently revoked

on various dates in 2001, and he was ordered to serve a series

of prison terms expiring in August of 2010. 

On March 13, 2002, the federal grand jury for the Eastern

District of Tennessee returned a two-count indictment,

charging that on or about October 13, 2000 and June 16,

2000, Defendant knowingly, intentionally and without

authority distributed cocaine base (crack), a Schedule II

controlled substance, in violation of 21 U.S.C. § 841(a)(1).

On March 18, 2002, Defendant was arrested as a result of the

indictment and, after being retrieved from the Rutherford

County Jail, was interviewed by FBI Special Agent Richard

Poff and Agent Tim Lane of the Tennessee 17th Judicial

District Drug Task Force. During that interview, Defendant

purportedly admitted to selling crack cocaine in the

Shelbyville, Tennessee area and also identified his drug

suppliers. 

On May 13, 2002, Defendant, through court-appointed

counsel, moved for a psychiatric examination to determine his

competency to stand trial, his ability to make a voluntary

confession and whether there existed any factors that might

mitigate his culpability at trial or sentencing. With the

concurrence of the government, the magistrate judge referred

Defendant to the U.S. Medical Center for Federal Prisoners,

requesting opinions regarding whether Defendant suffered

4 United States v. Clark No. 03-5431

from a mental disease or deficit that rendered him mentally

incompetent to understand the judicial proceedings or assist

in his defense, whether he was insane at the time of the

offenses charged, whether there were any factors that shed

light on the voluntariness of any statement against interest

given by Defendant, and whether there were mental

conditions that might mitigate Defendant’s culpability related

to trial or sentencing issues. 

Defendant was evaluated by Dr. Richard DeMier, a clinical

psychologist, over a period of months, culminating in a report

generated on August 27, 2002. Dr. DeMier’s report made the

following findings: Defendant grew up with both parents, but

his father was “very abusive.” His IQ is between 77 and 88,

he dropped out of school at age 15, and he has learning

disabilities. He has posttraumatic stress disorder (“PTSD”) as

a result of being shot 17 times as an 18 year-old; symptoms

include intrusive memories, flashbacks, and nightmares. He

also has a history of drug and alcohol abuse. Prior to his

incarceration, he regularly used crack cocaine. 

In addition to the PTSD, Dr. DeMier diagnosed Defendant

as having a psychotic disorder. Defendant was prescribed

antipsychotic and anti-anxiety medications, to which his

symptoms responded. Dr. DeMier concluded that “it is most

likely that he does not have a genuine psychotic illness at this

time,” although he speculated that more psychotic symptoms

might appear if Defendant discontinued his antipsychotic

medication. Thus, Dr. DeMier diagnosed Defendant with

only PTSD, which would not preclude Defendant’s ability to

understand the nature and potential consequences of the

charges against him or hinder his capacity to assist properly

in his defense.

A separate report from Dr. DeMierindicated that Defendant

denied the allegations in the indictment, to wit, that he had

sold crack cocaine to a confidential informant on June 16 and

October 13, 2000. Although Defendant acknowledged being

a cocaine user, he claimed he was not a seller. He said that
No. 03-5431 United States v. Clark 5

the police had used high pressure tactics during his

interrogation, that he was told he should “help himself,” and

that he was led to believe that if he cooperated, he would

receive better treatment. Defendant also told the psychologist

that he had requested an attorney at least four times during his

interrogation, but that they denied his request.

Dr. DeMier concluded that Defendant had no mental illness

or cognitive deficit that would have hindered his ability to

give a statement freely and voluntarily to the police. Dr.

DeMier further found that Defendant’s PTSD and his possible

auditory hallucinations would not have had any impact on his

ability to consider his actions and make a reasoned decision

to cooperate or refuse to cooperate during the police

interview. Dr. DeMier also noted that Defendant’s mental

health needs could be met in or out of prison and thus should

have little impact on his sentence if convicted.

After the evaluation, Defendant filed a waiver of his mental

competency hearing under 42 U.S.C. §§ 4241(c) and 4247(d).

The court determined that Defendant was not currently

suffering from a mental disease that would render him unable

to understand the nature and consequences of the proceedings

against him or to properly assist in his defense. 

Defendant subsequently filed a motion to suppress the postarrest statement he had given to Agent Poff and Agent Lane.

Defendant argued that his purported admission to the agents

that he had been buying and selling crack cocaine in the

Shelbyville, Tennessee area from March, 2000 through

August, 2001 had not been provided knowingly, voluntarily

and intelligently because of his untreated mental illness and

low intelligence. Defendant’s attorney pointed out that

Defendant had been incarcerated in a county jail from

December 13, 2000 until the beginning of May, 2001, and,

therefore, it was not possible that Defendant had sold all of

the crack cocaine he allegedly had confessed to selling.

According to Defendant, his admission to something he could

6 United States v. Clark No. 03-5431

1

On cross-examination, Agent Poff testified that he had learned that

there was a period of time from December, 2000 through May, 2001,

during which Defendant had been incarcerated and, therefore, could not

have been engaging in drug dealing activity.

2

The court had issued a discovery and scheduling order on March 21,

2002. Paragraph B.1 of the order stated that “[u]pon request of the

defendant, the government shall permit the defendant to inspect and

copy...[t]he substance of any oral statement made by the defendant before

or after his arrest in response to interrogation by a then known to be

government agent which the government intends to offer in evidence at

trial.”

not have done demonstrated his mental illness and, by

extension, the involuntary nature of his confession.

At the suppression hearing, Agent Poff testified that

Defendant had admitted to the agents that he began selling

crack cocaine to support his own cocaine habit. Defendant

also allegedly told them that he was dating a woman in

Shelbyville, Tennessee, and that he would travel to

Shelbyville each weekend to sell crack cocaine. Poff stated,

“He began dating her around February or March of 2000.

And he continued to come down to Shelbyville to sell crack

cocaine through August of 2001 when he was arrested on a

probation violation.” Poff also stated that he took

contemporaneous notes of the interview, which he later

summarized on a Form FD-302. The Form FD-302 stated,

“CLARK advised he sold crack cocaine in Shelbyville from

March 2000 through August 2001....”1 The FD-302 made no

reference to the locations of the two crack cocaine sales

charged in the indictment. The court ultimately denied

Defendant’s motion to suppress. Later, Defendant filed a

motion to compel the government to produce copies of any

notes taken by law enforcement agents during their

interrogation of Defendant as well as “any other rough notes

made by such agents,”2 but the court denied this motion

without explanation.
No. 03-5431 United States v. Clark 7

A few weeks before trial, Defendant submitted the report of

psychologist Dr. David A. Solovey, who had conducted a

preliminary mental evaluation of Defendant at a cost of $300.

According to Dr. Solovey’s report, Defendant was competent,

he understood the charges against him and the possible

penalties he faced, and he could properly assist in his own

defense. Although finding that Defendant had PTSD and

psychosis during the time he allegedly committed the charged

offenses, Dr. Solovey stated that “the degrees of these

disturbances were not at a level to satisfy the criteria

necessary to eliminate criminal responsibility.” Dr. Solovey

further indicated, however, that there were “several factors

that create questions regarding his statements made during his

initial questioning” and that several matters “require[d]

further evaluation and record review to validate,” including

Defendant’s assertion that his interrogation continued despite

his request for an attorney; the potential unreliability of many

of his statements due to his mental state; and Defendant’s

admission to several things he could not have done. Dr.

Solovey concluded that these issues could be relevant to

Defendant’s defense, but that he would have to spend another

12 hours (including 3 hours of court time), at a cost of $1,800,

to provide a complete assessment of Defendant. 

Based on Dr. Solovey’s report, Defendant filed a motion

requesting expert services from Dr. Solovey in excess of

$1,000, which the court denied. The court noted that both

Dr. DeMier (the clinical psychologist from the Bureau of

Prisons) and Dr. Solovey had found Defendant competent.

The court found that Defendant had not demonstrated that Dr.

Solovey’s services were necessary to show that his statement

to law enforcement had been involuntary. Indeed, the court

previously had held, in connection with his motion to

suppress, that his statement had been voluntary. The court

further noted that if voluntariness became an issue at trial, the

jury would be able to decide the issue without an opinion

from Dr. Solovey. The court found that his testimony would

not assist the trier of fact in accordance with Daubert v.

Merrell Dow Pharm. Co., 509 U.S. 517 (1993). 

8 United States v. Clark No. 03-5431

Trial commenced on December 10, 2002. As to

Defendant’s post-arrest interview, Agent Lane testified that

he had read Defendant his Miranda rights before Agent Poff

interviewed him, and that Defendant consented to the

interview without the presence of an attorney. He also signed

a waiver of rights. He stated that Agent Poff then explained

to Defendant that he had been indicted on two counts of

distributing cocaine base on the two specific dates charged in

the indictment. 

Agent Poff testified that he informed Defendant that he had

been indicted on federal charges as a result of controlled crack

cocaine purchases at two separate locations in Shelbyville,

one being the residence of Tim Knox, and the other being

McGee’s Trailer Park. Agent Poff added, “Mr. Clark advised

us that he did sell crack cocaine from those locations.” When

asked on cross-examination why Defendant’s admission

regarding the locations of the drug sales did not appear in the

FD-302 interview summary Poff had prepared, Poff stated

that the information was contained in his rough interview

notes upon which he had based the FD-302. He further

explained that the location of the drug sales did not appear in

the FD-302 because it was only a narrative summary

“designed to determine how much crack cocaine he was

selling and where he was getting the crack cocaine he was

selling.” Also, Poff did not believe Defendant’s admission

regarding the locations of the drug transactions was worthy of

mention in the FD-302 because the CI’s tape recordings

confirmed that Defendant had sold crack cocaine from the

two locations. 

At that point, Defendant’s counsel broke off his crossexamination and moved for a mistrial because Agent Poff’s

rough notes had not been produced before trial, even though

Defendant specifically had requested them. The government

offered to provide Defendant with the notes, but Defendant’s

counsel insisted he should have known about the notes prior

to trial because the notes could have affected Defendant’s

decision to go to trial in the first place. The court offered to
No. 03-5431 United States v. Clark 9

take Defendant’s guilty plea then and there and indicated that

Defendant could cross-examine Agent Poff on the notes, but

ultimately denied the motion for a mistrial. 

When the trial resumed, Defendant’s counsel crossexamined Agent Poff on the omission of the location

information from the FD-302. Agent Poff again explained

that the FD-302 had failed to mention Defendant’s admission

to selling crack cocaine from the locations of the two charged

drug sales because the focus of the interview was not the

specifics of those drug sales, but rather the quantity of the

crack cocaine involved and the identity of Defendant’s

suppliers. 

A jury found Defendant guilty on both counts of the

indictment on December 11, 2002, and Defendant moved for

a new trial shortly thereafter. As grounds, Defendant argued

that his convictions were against the great weight of the

evidence. Defendant also argued that the court had erred

when it permitted Agent Poff to testify regarding a statement

Defendant gave during his interrogation. According to Agent

Poff’s testimony, Defendant stated that Defendant admitted

to selling crack cocaine from Tim Knox’s trailer; this fact was

not included in the narrative summary of the interview Agent

Poff had prepared and that was provided to Defendant, but

was included in Poff’s rough notes upon which the summary

was based. According to Defendant, he had requested Poff’s

rough notes during discovery and was prejudiced by the

government’s refusal to turn them over and the court’s denial

of Defendant’s motion to compel their production. Defendant

further argued that the court erred when it refused to grant his

motion authorizing funds to retain a psychologist to determine

the voluntariness of Defendant’s confession; the court erred

when it refused to continue the trial to permit a psychological

examination of Defendant; and the court erred when it denied

Defendant’s motion for a mistrial after it was determined that

the government had not fully responded to his discovery

requests.

10 United States v. Clark No. 03-5431

The court denied Defendant’s motion, holding that the

evidence of Defendant’s guilt was overwhelming, especially

in light of the testimony of the confidential informant who

had purchased crack cocaine from Defendant – testimony that

was corroborated by audio tapes of the transactions. In

addition, Defendant confessed to selling crack, although he

apparently was not asked if he had sold it on the particular

occasions in question.

The court rejected any error with regard to the alleged nondisclosure of Agent Poff’s notes containing Defendant’s

statement about the locations of the crack sales to which he

had admitted. Although the court conceded that, “as a

technical matter,” Agent Poff’s notes should have been

disclosed pursuant to FED. R. CRIM. P. 16(a)(1)(A), and that

the court had erred in not compelling the production of those

notes, the court found that Defendant had suffered no

prejudice. “[M]ost of the essentials” had been disclosed in

the Form 302 and during the suppression testimony. In any

event, the reference concerning the transaction taking place at

Tim Knox’s trailer was not exculpatory. The court held that

there was no evidence that had Defendant known that Poff

would testify about the precise location of either of the crack

sales, the results of his trial would have been any different.

Finally, the court rejected Defendant’s contention that a

new trial was warranted for the court’s failure to authorize

additional expenditures for Dr. Solovey’s services. The court

noted that Dr. Solovey, like Dr. DeMier before him, had

concluded that Defendant was competent to stand trial.

Although Dr. Solovey did identify several factors that could

have impacted the voluntariness of Defendant’s statement to

Agent Poff, “Dr. Solovey was never called to provide any of

this information to the jury.” Dr. Solovey wanted more

money before he would investigate these additional factors.

Quoting United States v. Gilmore, 282 F.2d 398, 406 (6th Cir.

2002), the court concluded that Defendant had not

demonstrated that “‘(1) such services are necessary to mount

a plausible defense, and (2) without such authorization, the
No. 03-5431 United States v. Clark 11

3

Although only age 25 at the time of his indictment, Defendant

already had a lengthy list of prior convictions and arrests for a variety of

state law offenses, including sale of cocaine, theft, bail jumping,

possession of marijuana, and driving on a revoked license. 

defendant’s case would be prejudiced.’” The court further

concluded that Dr. Solovey’s testimony would not have

assisted the trier of fact.

Defendant also moved for authorization to retain an expert,

at a cost in excess of $1,000, to assist him at his sentencing

hearing in order to determine the applicability of any

mitigating factors. In response, the court referred to Dr.

DeMier’s report, which had found that “whatever the

defendant’s medical status may be, any argument that it

should reduce his culpability is a moral and legal question,

rather than a psychological one.” The court also referred to

the report of Defendant’s expert, Dr. Solovey, which listed

numerous factors that may be relevant to mitigation. The

court found that it already had enough information regarding

Defendant’s mental status to make an informed decision

about his sentence, further noting that mental and emotional

conditions are not ordinarily relevant in determining whether

a sentence should be outside the guidelines range. The court

therefore denied Defendant’s motion.

Defendant then moved for a downward departure.

Defendant argued that U.S. SENTENCING GUIDELINES

MANUAL (hereafter “GUIDELINES”) § 5K2.3 authorizes a

sentence below the applicable range if the Defendant

committed the offense while suffering from a significantly

reduced mental capacity. Defendant cited to his low IQ, his

PTSD, latent syphilis, and paranoid schizophrenia. Defendant

further argued that he was entitled to a downward departure

pursuant to GUIDELINES § 5K2.0 because he had an abusive

father, a history of drug and alcohol abuse, a history of mental

illness, and because his brother, who also had been arrested

for a similar offense, was placed on a diversion program.

3

12 United States v. Clark No. 03-5431

Defendant also argued that the district court should not

impose a prison sentence running consecutively to his state

court prison term, which will not expire until 2010.

Defendant argued that his criminal history points (20) already

took into account his prior state convictions. Were it not for

his criminal history, his guidelines range would have been

between 21 and 27 months, instead of the 46 to 57 month

range stemming from his criminal history and the fact that he

had committed the offense while on probation. Defendant

argued that a consecutive sentence effectively amounted to a

“double penalty” for his federal convictions. The court

pointed out that if Defendant were not sentenced

consecutively, there would be no incremental increase in his

prison term for the federal sentence. 

The court denied the motion for downward departure,

holding that Defendant did not have diminished capacity and

because his prior criminal record evidenced continued

disrespect for the law. Citing GUIDELINES § 5G1.3,

application note 6, the court noted that the sentence for

Defendant’s offense “should” be imposed to run

consecutively to the term imposed for the violation of the

probation. The court sentenced Defendant at the top of the

GUIDELINES range – 57 months – to run concurrently on both

counts, but consecutively to his state sentence. Defendant

timely appealed.

II.

Refusal to Authorize Additional Funds for Psychologist

at Trial and Sentencing

Counsel for a defendant who is financially unable to obtain

expert services “necessary for adequate representation may

request them in an ex parte application.” 18 U.S.C.A.

§ 3006A(e)(1). Such a defendant must show that the services

are “necessary to mount a plausible defense” and “without

such authorization, the defendant’s case would be

prejudiced.” United States v. Gilmore, 282 F.3d 398, 406

(6th Cir. 2002). We review the decision of the trial court
No. 03-5431 United States v. Clark 13

denying a request for expert services for abuse of discretion.

Id. Defendant argues that the district court erred when it

refused to authorize the expenditure of more than $1,000 for

the services of psychologist Dr. David Solovey. For the

reasons set forth below, we hold that the district court did not

abuse its discretion in finding that Dr. Solovey’s services

were unnecessary. 

Dr. Solovey’s preliminary examination of Defendant (at a

court-authorized cost of $300) found that Defendant was

competent, that he understood the charges against him and the

possible penalties he faced, and that he could properly assist

in his own defense. Although finding that Defendant suffered

from PTSD and psychosis during the time he committed the

charged offenses, Dr. Solovey concluded that “the degrees of

these disturbances were not at a level to satisfy the criteria

necessary to eliminate criminal responsibility.” Dr.Solovey’s

conclusions were virtually identical to those of Dr. DeMier,

a clinical psychologist from the Bureau of Prisons, who

similarly had found that Defendant’s mental condition did not

inhibit his ability to understand the nature and potential

consequences of the charges against him or hinder his

capacity to assist properly in his defense.

Dr. Solovey’s preliminary report also hinted that additional

evaluation of Defendant may have yielded relevant

information regarding the voluntariness of Defendant’s

statement to FBI Agent Poff on the day of his arrest. The

report referred to “several factors that create questions

regarding his statements made during his initial questioning”

and that several matters “require[d] further evaluation and

record review to validate,” including Defendant’s assertion

that his interrogation continued despite his request for an

attorney; the potential unreliability of many of his statements

due to his mental state; and Defendant’s admission to several

things he could not have done. But the “questions” and

unvalidated matters to which Dr. Solovey hinted were little

more than speculation. Because the district court already had

the benefit of Dr. DeMier’s conclusion that Defendant had no

14 United States v. Clark No. 03-5431

mental illness or cognitive deficit that would have hindered

his ability to give a statement freely and voluntarily to the

police, the court reasonably concluded that Dr. Solovey’s

services were not necessary to establish a plausible defense to

Defendant’s post-arrest statements, but instead would have

amounted to a psychological “fishing expedition.” United

States v. Alden, 767 F.2d 314, 318 (7th Cir. 1984) (affirming

denial of appointment of psychiatrist at trial to support

insanity defense; holding that it was appropriate for the

district court to rely on initial psychiatric evaluations

conducted at prison which found the defendants sane and

competent to stand trial); see also Gilmore, 282 F.2d at 406

(“A district court need not grant a[] defendant’s motion under

§ 3006A on the off chance that the requested services might

turn up something.”).

Even assuming that the district court erred, its error was

harmless because of the overwhelming evidence of

Defendant’s guilt. See United States v. Neuroth, 809 F.2d

339, 342 (6th Cir. 1987) (“An error, not of constitutional

dimension, is harmless unless it is more probable than not that

the error materially affected the verdict.”) (citations omitted).

As noted, Defendant was caught on audio tape selling crack

cocaine to a confidential informant on the two occasions

charged in the indictment. Although a drug addict and exconvict himself, the confidential informant confirmed

Defendant’s identity and the nature of the drug transactions at

trial. Thus, even assuming that Defendant’s statement to

Agent Poff had been involuntary, we hold that it is not more

probable than not that Defendant would have avoided a guilty

verdict. See United States v. Smith, 987 F.2d 888, 892 (2d

Cir. 1993) (holding that the erroneous denial of a

psychiatrist’s services to support duress defense was harmless

error because of the “abundant” evidence of the defendant’s

guilt established that the availability of a psychiatric expert

would not have altered either the verdict or his sentence).

For similar reasons, we hold that the district court did not

abuse its discretion when it refused to authorize expenditures
No. 03-5431 United States v. Clark 15

for Dr. Solovey’s assistance at sentencing. The court had the

benefit of detailed reports from Dr. DeMier and Dr. Solovey.

Dr. DeMier’s report concluded that “whateverthe defendant’s

medical status may be, any argument that it should reduce his

culpability is a moral and legal question, rather than a

psychological one.” Dr. Solovey’s report reached no medical

conclusion on this point, merely referring to eighteen “factors

to address the question of mitigation” that “could be

considered relevant.” Accordingly, we agree with the district

court’s conclusion that it already had enough information

regarding Defendant’s mental status to make an informed

decision about his sentence.

III.

Denial of Defendant’s Motion to Compel Officer’s

“Rough” Notes of Post-Arrest Interview

Defendant argues that the trial court abused its discretion

when it refused to compel the pre-trial disclosure of the notes

taken by Agent Poff during Defendant’s post-arrest interview.

For the reasons that follow, we disagree.

The FEDERAL RULES OF CRIMINAL PROCEDURE require the

government, upon the defendant’s request, to produce “the

portion of any written record containing the substance of any

relevant oral statement made before or after arrest if the

defendant made the statement in response to interrogation by

a person the defendant knew was a government agent.” FED.

R. CRIM. P. 16(a)(1)(B)(ii). Agent Poff’s so-called “rough

notes” of Defendant’s interrogation qualify as such a written

record. They contain, in writing, the substance of

Defendant’s post-arrest oral statement made to Agent Poff

after Poff had told Defendant that he had been indicted on two

counts of crack cocaine distribution. Moreover, Defendant

requested the production of these notes. The government did

not produce them upon Defendant’s request, and the district

court specifically denied Defendant’s motion to compel their

production. Accordingly, Defendant arguably suffered a Rule

16 violation that the district court failed to remedy.

16 United States v. Clark No. 03-5431

We review alleged violations of Rule 16 of the FEDERAL

RULES OF CRIMINAL PROCEDURE for abuse of discretion.

United States v. Tarwater, 308 F.3d 494, 515 (6th Cir. 2002).

Assuming, arguendo, that a Rule 16 violation occurred, we

also review said violation for harmless error. FED. R. CRIM.

P. 52(a) (“Any error, defect, irregularity, or variance that does

not affect substantial rights must be disregarded.”). “An

error, not of constitutional dimension, is harmless unless it is

more probable than not that the error materially affected the

verdict.” Neuroth, 809 F.2d at 342.

The government argues that no Rule 16 violation occurred

because Rule 16(a)(1)(A) of the FEDERAL RULES OF

CRIMINAL PROCEDURE requires the government to disclose

only the “substance” of the defendant’s oral statements that

the government intends to use at trial and that it disclosed the

substance by producing Agent Poff’s interview summary.

The government, however, ignores Rule 16(a)(1)(B)(ii),

which additionally requires the disclosure of “the portion of

any written record containing the substance” of such an oral

statement. This rule imposes a more specific disclosure

obligation than Rule 16(a)(1)(A), and Agent Poff’s notes, by

definition, constitute a portion of a written record containing

the substance of Defendant’s interview. Accordingly, the

government violated Rule 16 by failing to turn over Agent

Poff’s rough notes upon Defendant’s request.

But, as the district court concluded, Defendant suffered no

prejudice simply from the fact that the notes were produced

during trial, as opposed to before trial. As noted, Agent

Poff’s rough notes reflected Defendant’s statement that the

crack sales charged in the indictment had occurred at Tim

Knox’s residence and at McGee’s Trailer Park. Although this

statement was not reflected in Agent Poff’s narrative report of

Defendant’s interview (theFD-302),whichwas produced pretrial, this statement was not exculpatory. In fact, it was

inculpatory because it directly linked Defendant to the

locations of the drug transactions charged in the indictment.

Because it was inculpatory, the statement’s nondisclosure did
No. 03-5431 United States v. Clark 17

not materially affect Defendant’s guilty verdict. But even if

it did, when the issue arose at trial, the trial court compelled

the disclosure of Agent Poff’s notes and permitted Defendant

the opportunity to cross-examine Agent Poff on the notes.

Moreover, the independent evidence of Defendant’s presence

at the location referenced in Agent Poff’s notes was

overwhelming. Defendant has not argued that the mid-trial

disclosure of Agent Poff’s rough notes resulted in a due

process violation on the ground that he did not have adequate

time to prepare his defense.

Defendant nevertheless argues that the inculpatory nature

of the statement shows prejudice because he purportedly was

not able to make an informed decision to enter a guilty plea

(and possibly accept a sentence reduction for acceptance of

responsibility rather than proceed to trial). See United States

v. Hernandez-Muniz, 170 F.3d 1007, 1010 (10th Cir. 1999)

(“Rule 16 is designed to provide the defendant with sufficient

information to make an informed decision about a plea, to

allow the court to rule on admissibility motions before trial,

to minimize prejudicial surprise at trial, and to generally

increase the efficiency of litigation.”) (citing FED.R.CRIM.P.

16 advisory committee’s note to the 1974 amendment). As

the district court pointed out, however, the “essentials” of

Defendant’s inculpatory statements to Agent Poff were

disclosed prior to trial in the form of the FBI Form FD-302

report, and Agent Poff had discussed Defendant’s confession

during a suppression hearing. There is no evidence that had

Defendant known that Agent Poff’s rough notes referred to

the precise location of either of the crack sales, he would have

pled guilty prior to trial and received a lesser sentence. To the

contrary, the location of the charged crack sales was a nonissue in the case because there was uncontested audiotape

evidence, authenticated at trial by a confidential informant

and law enforcement witnesses, proving that Defendant had

sold crack cocaine at those locations. Defendant’s argument

is simply too speculative to justify a new trial. See Def’s Br.

at 27 (arguing that had Defendant known of Agent Poff’s

notes corroborating his presence at the locations of the drug

18 United States v. Clark No. 03-5431

4

Defendant has not argued that the government’s nondisclosure of

Agent Poff’s notes amounted to a violation of Brady v. Mary land, 373

U.S. 83 (1963). Cf. United States v. Aguwa, 123 F.3d 418, 422 (6th Cir.

1997) (finding that government’s failure to turn over “agents’ raw notes

of events in question” was not tantamount to a Brady violation because

the notes contained no exculpatory information, and, in fact, were highly

incriminating and because the content of the notes was “largely reflected

in [the agents’] trial testimony, which directly implicated the defendant”).

sales, “perhaps he would have reevaluated his decision to

forego the timely entry of a guilty plea”) (emphasis added).

We therefore find that the government’s Rule 16 violation

was harmless error.

IV.

Denial of Defendant’s Motion for Mistrial

Rehashing his Rule 16 argument, Defendant argues that the

district court should have declared a mistrial because it

admitted Agent Poff’s testimony concerning his rough notes,

which were not produced prior to the commencement of trial,

in violation of FED.R.CRIM. P. 16.4 We review the denial of

a motion for a mistrial for abuse of discretion. United States

v. Ursery, 109 F.3d 1129, 1133 (6th Cir. 1997). A new trial

is not required unless “substantial rights” are affected. United

States v. Bond, 12 F.3d 540, 554 (6th Cir. 1993) (citing FED.

R. CRIM. P. 52(a)). We hold that the district court did not

abuse its discretion.

Agent Poff’s summary narrative of Defendant’s

interrogation (the Form FD-302) did not reflect Defendant’s

alleged statement that he had participated in crack sales at the

two specific locations charged in the indictment. Defendant

argues that he was not on notice that Agent Poff might give

trial testimony to this effect for two reasons: (1) the

government refused to produce his rough notes (and the

court’s refusal to compel their pre-trial disclosure) and

(2) Agent Poff did not refer to this statement at Defendant’s

pre-trial suppression hearing. 
No. 03-5431 United States v. Clark 19

“Rule 16 does not require federal courts to exclude

evidence not turned over to the discovering party in violation

of a discovery order.” United States v. Bartle, 835 F.2d 646,

649 (6th Cir. 1987) (emphasis in original). Rule 16 provides,

“If a party fails to comply with this rule, the court

may...prohibit that party from introducing the undisclosed

evidence[] or...enter any other order that is just under the

circumstances.” FED.R.CRIM.P. 16(d)(2) (emphasis added).

Thus, the district court did not necessarily abuse its discretion

by failing to declare a mistrial due to the government’s failure

to turn over Agent Poff’s rough notes prior to trial.

Defendant argues that a mistrial must be granted when there

is evidence that the government willfully withheld the

information that is the subject of the Rule 16 violation. There

is dicta in some of our cases that arguably supports this

viewpoint. See United States v. Muhammad, 948 F.2d 1449,

1454-55 (6th Cir. 1991) (“[W]e find that absent a showing of

some impropriety or willfulness by the government, it was

within the district court’s discretion to admit” the statement

the defendant allegedly had made to the testifying police

officer.); see also Bartle, 835 F.2d at 649 (holding that the

trial court was not required to exclude evidence withheld in

violation of Rule 16 because there was “absolutely no

evidence that the government engaged in any deceitful

conduct in keeping the” information from the defendant). It

is questionable, however, whether Rule 16 requires a mistrial

even in cases of willful non-disclosure. The plain language

of Rule 16(d)(2) is discretionary; it carves out no mandatory

sanctions for willful violations. Accordingly, the general rule

that “the appropriate sanction, if any, for a failure to comply

with Rule 16 is left to the ‘sound discretion of the trial

court,’” Muhammad, 948 F.2d at 1454-55 (quoting United

States v. Glover, 846 F.2d 339, 342 (6th Cir. 1988)), should

apply even to willful violations. Here, the district court dealt

with the Rule 16 violation appropriately by compelling

disclosure of the notes and affording Defendant an

opportunity for cross-examination. See Bartle, 835 F.2d at

650 (“Rule 16(d)(2)... provides for a variety of remedies that

20 United States v. Clark No. 03-5431

optimallyallow the admission of the probative evidence while

insuring that the opposing party has adequate time to prepare

for it.”). 

Even assuming that willful violations of Rule 16 mandate

a mistrial, there is no evidence in this case that the

government willfully violated Rule 16. Although the

government failed to respond to Defendant’s discovery

request for Agent Poff’s notes, thereby necessitating

Defendant’s motion to compel, the district court itself placed

its imprimatur on the government’s purported willful

nondisclosure by denying Defendant’s motion. Defendant’s

only other evidence of willfulness is his assertion that Agent

Poff, who is a long-term FBI agent and holds a law degree,

improperly excluded Defendant’s statement about the

locations of the drug transactions from the FD-302. The

evidence at trial showed, however, that Poff did not include

the location information in the narrative because the focus of

the narrative was how much crack cocaine Defendant was

selling and its source. Agent Poff also explained that he

already knew from the tape recordings of the confidential

informant that Defendant had sold crack cocaine from the two

locations covered by the indictment, so there was no

particular reason to reference this fact in the FD-302. This

evidence shows that the government’s Rule 16 violation was

not willful. The denial of Defendant’s motion for a mistrial

is therefore affirmed.

V.

Failure to Grant a Downward Departure Per

GUIDELINES § 5K2.13

Defendant requested, but the district court denied, a

downward departure pursuant to GUIDELINES § 5K2.13, for
No. 03-5431 United States v. Clark 21

5

GUIDELINES § 5K2.13 provides:

A sentence below the applicable guideline range may be

warranted if (1) the defendant committed the offense while

suffering from a significantly reduced mental capacity; and (2)

the significantly reduced mental capacity contributed

substantially to the commission of the offense. Similarly, if a

departure is warranted under this policy statement, the extent of

the departure should reflect the extent to which the reduced

mental capacity contributed to the commission of the offense.

However, the court may not depart below the applicable

guideline range if (1) the significantly reduced mental capacity

was caused by the voluntary use of drugs or other intoxicants;

(2) the facts and circumstances of the defendant's offense

indicate a need to protect the public because the offense involved

actual violence or a serious threat of violence; (3) the defendant's

criminal history indicates a need to incarcerate the defendant to

protect the public; or (4) the defendant has been convicted of an

offense under chapter 71, 109A, 110, or 117, of title 18, United

States Code.

The Application Note provides:

For purposes of this policy statement – 

“Significantly reduced mental capacity” means the defendant,

although convicted, has a significantly impaired ability to (A)

understand the wrongfulness of the behavior comprising the

offense or to exercise the power of reason; or (B) control

behavior that the defendant knows is wrongful.

his purported diminished capacity.

5

 Defendant argues that the

district court abused its discretion by disregarding the facts

that (1) Defendant was not being treated with antipsychotic

medication at the time of his offenses; (2) Defendant suffers

from PTSD and was being treated for paranoid schizophrenia;

and (3) Defendant has a low IQ. The district court’s refusal

to grant a downward departure, however, is not reviewable.

A criminal defendant may appeal a sentence in four

circumstances, only two of which are relevant here: (1) if the

sentence was imposed in violation of law or (2) the sentence

22 United States v. Clark No. 03-5431

was imposed as a result of an incorrect application of the

sentencing guidelines. 18 U.S.C. § 3742(a). Because

Defendant does not assert either of these two grounds, the

only way his appeal is cognizable is if he can show that the

district court believed it lacked the authority to grant a

downward departure. As this Court has stated:

Generally, a court’s failure to exercise its discretion and

grant a downward departure is not reviewable. See, e.g.,

United States v. Landers, 39 F.3d 643, 649 (6th

Cir.1994). An appellate court may only review a denial

of a motion for a downward departure if the district court

judge “incorrectly believed that [he] lacked any authority

to consider defendant’s mitigating circumstances as well

as the discretion to deviate from the guidelines.” Id.

(citation omitted).

United States v. Coleman, 188 F.3d 354, 357 (6th Cir. 1999).

A court’s failure to grant a downward departure is not

reviewable even if based on clearly erroneous findings of fact.

See United States v. Watkins, 179 F.3d 489, 501 (6th Cir.

1999) (“Even if the finding were clearly erroneous, the

district court's failure to depart downward still would not be

appealable[,] ...as long as the guideline range was properly

computed, the district court was not unaware of its discretion

to depart from the guideline range, and the sentence was not

imposed in violation of law or as a result of an incorrect

application of the guidelines....”) (citing 18 U.S.C. § 3742(a);

United States v. Davis, 919 F.2d 1181, 1187 (6th Cir. 1990)).

“The Court reviews de novo the issue of whether the district

court was aware of its authority to depart downward.” United

States v. Smith, 278 F.3d 605, 609 (6th Cir. 2002) (citing

Koon v. United States, 518 U.S. 81, 100 (1996); United States

v. Ebolum, 72 F.3d 35, 37 (6th Cir.1995)). The Court

presumes that the district court understood its discretion to

depart, “absent clear evidence in the record to the contrary.”

United States v. Crouch, 288 F.3d 907, 910 (6th Cir. 2002)

(citing United States v. Ford, 184 F.3d 566, 585 (6th
No. 03-5431 United States v. Clark 23

Cir.1999)). There is no evidence in this case that the district

court did not understand its discretion to depart downward.

Indeed, Defendant does not argue this point, only that the

court failed to exercise its discretion properly. Accordingly,

we reject Defendant’s appeal of the court’s failure to grant a

downward departure.

VI.

Consecutive versus Concurrent Sentences under

GUIDELINES § 5G1.3

Defendant was convicted on both counts of knowingly,

intentionally and without authority distributing cocaine base

(crack), in violation of 21 U.S.C. § 841(a)(1). At the time of

his federal conviction, Defendant was serving an

undischarged term of imprisonment stemming from the

revocation of his probation for several violations of state law.

GUIDELINES § 5G1.3 provides that a federal sentence “may be

imposed to run concurrently, partially concurrently, or

consecutively to the prior undischarged term of imprisonment

to achieve a reasonable punishment for the instant offense.”

Defendant argues that the district court abused its discretion

when it ordered that Defendant’s 57 month sentence for his

violations of federal law would run consecutively to the term

of his state imprisonment, set to expire in 2010. See United

States v. Covert, 117 F.3d 940, 945 (6th Cir. 1997) (providing

that the district court’s decision to impose a consecutive or

concurrent sentence is reviewed for abuse of discretion). We

agree.

Application Note 3 of GUIDELINES § 5G1.3 states that

under subsection (c) of that Guideline, the court “may impose

a sentence concurrently, partially concurrently, or

consecutively” and that “[t]oachieve a reasonable punishment

and avoid unwarranted disparity,” the court should consider

a variety of factors, as well as the factors set forth at

24 United States v. Clark No. 03-5431

6

These factors include the nature of the offense and history of the

defendant; the adequacy of the sentence as a deterrent and as a

punishment that is just, protects the public, and rehabilitates the

defendant; the sentencing range for the offense; and policy statements of

the Sentencing Commission. 18 U.S.C. § 3553(a). These factors also

include the type and length of the prior undischarged sentence; the time

served on the undischarged sentence and the time likely to be served

before release; the fact that the prior undischarged sentence may have

been imposed in state court rather than federal court, or at a different time

before the same or different federal court; and any other circumstance

relevant to the determination of an appropriate sentence for the instant

offense. GUIDELINES § 5G1.3, application note 3. 

18 U.S.C. § 3553(a).6 GUIDELINES § 5G1.3, application note

3. Defendant argues that the district court’s imposition of a

consecutive sentence was erroneous because it did not

consider any of these factors. 

The court relied exclusively on Application Note 6 to

GUIDELINE§ 5G1.3, which provides, in part:

If the defendant was on federal or state probation, parole,

or supervised release at the time of the instant offense,

and has had such probation, parole, or supervised release

revoked, the sentence for the instant offense should be

imposed to run consecutively to the term imposed for the

violation of probation, parole, or supervised release in

order to provide an incremental penalty for the violation

of probation, parole, or supervised release.

GUIDELINE§ 5G1.3, application note 6. Arguably, a

straightforward application of Note 6 suggests that

Defendant’s sentence “should” have run consecutively

because he was on state probation at the time of the federal

offenses, and his state probation subsequently was revoked.

The court’s exclusive reliance on Application Note 6 was

erroneous, however, because the court failed to weigh any

other factors – i.e. the factors set forth at 18 U.S.C. § 3553(a)

– relevant to whether the federal sentence for an offense
No. 03-5431 United States v. Clark 25

7Mandatory consideration of the § 3553(a) factors is consistent with

the Background commentary that appears at the end of the Application

Notes to GUIDELINE§ 5G1.3. It states:

Background: In a case in which a defendant is subject to an

undischarged sentence of imprisonment, the court generally has

the authority to impose an imprisonment sentence on the current

offense to run concurrently or consecutively to the prior

undischarged term. 18 U.S.C. § 3584(a). Exercise of that

authority, however, is predicated on the court’s consideration of

the factors listed in 18 U.S.C. § 3553(a), including any

applicable guidelines or policy statements issued by the

Sentencing Commission.

GUIDELINES § 5G1.3, application note, background (emphasis added).

See Covert, 117 F.3d at 945 n.7 (“The background to § 5G1.3(c) makes

specific reference to 18 U.S.C. § 3584, which requires that the district

court consider the factors outlined in 18 U.S.C. § 3553(a), when

should run concurrently or consecutively to an undischarged

sentence. 

The federal statute that governs concurrent versus

consecutive sentences clearly states that the district court

must consider the § 3553(a) factors in this context. The

statute provides that “if a term of imprisonment is imposed on

a defendant who is already subject to an undischarged term of

imprisonment, the terms may run concurrently or

consecutively.” 18 U.S.C. § 3584(a). The statute then

instructs that “[t]he court, in determining whether the terms

imposed are to be ordered to run concurrently or

consecutively, shall consider, as to each offense for which a

term of imprisonment is being imposed, the factors set forth

in section 3553(a).” Id. § 3584(b) (emphasis added); see also

Covert, 117 F.3d at 945 (“A district court has the discretion

to impose consecutive or concurrent sentences pursuant to

§ 5G1.3, upon consideration of the factors listed in 18 U.S.C.

§ 3553(a) and the applicable guidelines and policy statements

in effect at the time of sentencing.”) (emphasis added;

footnote omitted; citing United States v. Coleman, 15 F.3d

610, 611-12 (6th Cir.1994)).7 

26 United States v. Clark No. 03-5431

considering whether to impose a concurrent or consecutive sentence on

a defendant who is already subject to an undischarged term of

imprisonment.”).

The district court did not consider the § 3553(a) factors, at

least not as reflected by the record. The transcript refers only

to the court’s concern that a concurrent sentence would

preclude an incremental penalty for his federal offenses.

Accordingly, we vacate the court’s ruling that Defendant’s

sentence for his federal offenses are to run consecutively, so

that the district court can reconsider its ruling in light of

the factors set forth at 18 U.S.C. § 3553(a) and at GUIDELINES

§ 5G1.3, application note 3. Cf. United States v. Becker, No.

99-1704, 2000 WL 245508, at *1 (6th Cir. Feb. 22, 2000)

(unpublished; affirming imposition of consecutive sentence;

district court properly had relied on Application Note 6 and

had considered the factors listed in § 3553(a)).

VII.

Conclusion

For all the foregoing reasons, the Court AFFIRMS

Defendant’s convictions, but REMANDS to the district court

for consideration of whether Defendant’s term of

imprisonment on his federal conviction should run

concurrently or consecutively to his state law convictions in

light of the factors set forth at 18 U.S.C. § 3553(a) and

GUIDELINES § 5G1.3, application note 3.