United States of America v. Steven G. Clark

*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

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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. DeMier indicated 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

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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 post-
arrest 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
1On cross-examination, Agent Poff testified that he had learned that
there was a p eriod 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.
2The 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.

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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 cross-
examination 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

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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 cross-
examined 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 non-
disclosure 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

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No. 03-5431 United States v. Clark 11
3Although 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 d riving 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. SENT ENCING 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

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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 ex-
convict 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

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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 “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.” 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 (the FD-302), which was produced pre-
trial, 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

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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 non-
issue 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
4Defendant has not argued that the government’s nondisclosure of
Agent Poff’s notes am ounted to a violation of Brady v. Mary land, 373
U.S. 83 (1 963 ). Cf. United States v. Aguwa, 123 F.3d 418, 42 2 (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.

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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
optimally allow 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

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No. 03-5431 United States v. Clark 21
5GUIDELINES § 5K 2.13 p rovides:
A sentence below the applicable guideline range may be
warranted if (1) the defendant committed the o ffense while
suffering from a significantly reduced mental capacity; and (2)
the significantly reduced mental capacity contrib uted
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 de part below the applicab le
guideline range if (1) the significantly reduced mental capacity
was caused by the volun tary use of drugs or o ther intoxicants;
(2) the facts and circumsta nces of the defenda nt's offense
indicate a need to protect the public because the offense involved
actual violence or a serious threat of violence; (3) the defenda nt's
criminal history ind icates 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 p rovides:
For purposes of this policy statement –
“Significantly reduced mental capacity” means the d efendant,
although convicted, has a significantly impaired ability to (A)
understand the wrongfulness of the behavior comprising the
offense or to exercise the p ower of reason; or (B) control
behavior that the defendant kno ws 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

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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]o achieve 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
6These 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 C omm ission. 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 § 5G 1.3, 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

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No. 03-5431 United States v. Clark 25
7Mand atory consideration of the § 35 53(a) factors is consistent with
the Background commentary that appears at the end of the Application
Notes to GU ID E LIN E§ 5G 1.3. It states:
Background: In a case in whic h a defendant is subject to an
undischarged sentence of impriso nment, the court gene rally 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, howe ver, is predicated on the court’s consideration of
the factors listed in 18 U.S.C. § 3553(a), including any
app licable guidelines or policy statements issued by the
Sentencing Commission.
GU IDELIN ES § 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.

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