United States v. Michael Potter
Opinion
*448
An average "dose" of methamphetamine weighs between one-tenth and one-quarter of a gram. And there are 28.3 grams to an ounce. So Michael Potter confessed to peddling a lot of doses of meth when he told police that he had sold some ten pounds. To make matters worse for Potter, he had been convicted of seven prior drug offenses. His prior statements about his drug sales supported his conviction for a different conspiracy to distribute methamphetamine that used similar methods.
On appeal, Potter challenges his conviction and sentence. As for his conviction, he argues that the police elicited his statements after he invoked his right to an attorney under
Miranda v. Arizona
,
I.
In early 2015, Potter struck a deal with an acquaintance, Tammy Goodson, to make money by selling methamphetamine in east Tennessee. Goodson would introduce Potter to Nathan Hogan, a Georgia meth supplier, and Potter would reciprocate by giving her a certain amount of money and meth for each ounce he bought from Hogan. In the first half of 2015, Potter and Goodson twice drove to Georgia to buy between eight and ten ounces of meth from Hogan (or his runner). After Goodson's arrest, Potter made a third trip during which he bought 20 ounces from Hogan. Upon each return to Tennessee, Potter went about selling the drugs. About this time, for example, Brandin Hyde contacted Potter in search of a new supplier. Potter offered Hyde an eventual price discount to undercut Potter's "competition" if Hyde brought repeat business his way. Yet Potter and Hyde completed just one transaction.
That is because, on June 26, 2015, police arrested Potter on unrelated charges. That night, he told police he did not want to talk. The next day, he changed his mind. After signing a Miranda waiver, he spoke with Agents Jason Roark and Shannon Russell from the Tennessee Second Judicial District Drug Task Force. During this interrogation, Potter admitted that, starting *449 in August 2014, he had bought about ten pounds of methamphetamine from a different Georgia supplier (not Hogan) and sold it in east Tennessee.
Shortly after his arrest, Potter asked his younger brother, Steven Hilliard, to collect debts from people who owed him. Hilliard recouped funds from several people, including $ 4,700 from a person who owed Potter for meth purchases. At Potter's urging, Hilliard also contacted Hogan to give him a heads up that Potter had been arrested. That call provided the spark that eventually led Hilliard to take his brother's place in the distribution scheme. During the second half of 2015, Hilliard traveled to Georgia to buy methamphetamine from Hogan using the money he had collected for Potter. Potter was initially upset upon learning of this arrangement, but the brothers ultimately agreed that Hilliard would reimburse Potter in full and pay Potter a "couple of hundred dollars" for each visit to see Hogan. Hilliard bought a pound or two of meth on each trip.
Potter remained in custody during this time, but renewed his distribution efforts soon after his October 2016 release. He contacted Hogan via Facebook, leading to a four-ounce meth purchase. He later bought eight ounces from Hogan. In February 2017, Hogan had arranged to meet Potter for another exchange, but police arrested Hogan on the day of the deal. Potter still completed the transaction through Hogan's runner. Their transactions ended shortly thereafter. The United States indicted Potter and twenty-four others-including Hogan, Goodson, and Hilliard-for a conspiracy starting on or around January 2015 to distribute fifty grams or more of methamphetamine.
Before trial, Potter moved to suppress his statements to Agents Roark and Russell. At a suppression hearing, he testified that he had asked for a lawyer many times during the interview, but the agents ignored his requests. Russell disputed this account. He explained that Potter mentioned a lawyer and "may have" asked whether he needed one, but never requested an attorney or sought to stop the interrogation. The magistrate judge found Potter not credible, held that his statements about an attorney did not require the police to end their questioning, and recommended that the district court deny Potter's motion. The district court adopted this recommendation.
Potter stood trial. Hogan, Goodson, Hilliard, and Hyde, among others, described his drug distribution. Roark and Russell also detailed Potter's statements to them. The jury convicted Potter of the distribution conspiracy.
II.
Potter raises four objections. He asserts a constitutional, an evidentiary, and a sufficiency challenge to his conspiracy conviction, and a constitutional challenge to his life sentence.
1.
Fifth Amendment Objection
. Potter starts off with the Fifth Amendment, which gives an individual the right not to "be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. In
Miranda v. Arizona
,
We begin with a question about the standard of review. Refusing to credit Potter's testimony that he had requested a lawyer many times, the magistrate judge (whose report the district court adopted) made several factual findings about what Potter told the agents. The judge then held that Potter's statements did not suffice to launch
Edwards
's rule. We, of course, review for clear error the district court's fact findings about Potter's credibility and what he said to the agents.
United States v. Scott
,
We view it as a legal question (or at least a mixed question of law and fact) subject to de novo review. Circuit precedent supports that conclusion.
See
Van Hook v. Anderson
,
On to the merits. The Supreme Court in
Davis
set a high bar to trigger
Edwards
. To compel officers to end questioning, a "suspect must unambiguously request counsel."
Davis
,
Davis
's clear command has doomed several
Edwards
claims in our circuit. Take, for example, the statement "I think I should talk to a lawyer, what do you think?" Was that an unambiguous request for counsel? No.
United States v. Delaney
,
We have, by contrast, found requests for an attorney unambiguous (triggering
Edwards
) when a suspect told the police that he wanted to be left alone "until I can see my attorney,"
Tolliver v. Sheets
,
In which camp do Potter's statements fall? They were just as equivocal as the statements from
Davis
,
Delaney
, or
Ledbetter
. The magistrate judge found as a historical fact that Potter, at most, "may have mentioned an attorney." Russell likewise testified that Potter "mentioned" an attorney and "may have ... asked if he needed one." But Potter "never requested to actually have [an attorney] present" and "never once said that he wanted to stop" the interview to wait for one. Nothing in these credited facts shows that Potter unambiguously requested counsel. The mere mention of an attorney does not cut it.
Davis
,
Potter's responses fall short. He largely (if impliedly) fights the district court's credibility findings without attempting to satisfy the clear-error standard. Potter, for example, suggests that the agents violated Edwards because he "asked numerous questions about an Attorney and what one might recommend" he say (or not say) during this interrogation. That understanding of Potter's statements comes from his own testimony. But the magistrate judge found his "story" not credible because, among other reasons, Potter claimed that he had been lying to the agents and would have said anything to get out of jail.
Potter also points out that, on the night before the interrogation, he told the agents
*452
he did not wish to speak to them. That does not help him either. The agents honored his request, and it was Potter who initiated the exchange with them the next day. Before that interrogation, Potter received
Miranda
warnings and signed a waiver stating that he understood his rights and was "willing to make a statement and answer questions without a lawyer present." As the magistrate judge also found, Potter was "not interested in having an attorney present." He wanted to talk to the agents because "he wanted out of jail" and thought it would help his chances if he did so. All told, the "circumstances surrounding" Potter's statements cement our conclusion because they show that the agents respected the
Miranda
right that
Edwards
's rule seeks to protect and that Potter nevertheless opted to voluntarily speak with them.
See
Abela
,
2.
Evidence Objection
. Potter turns to the Federal Rules of Evidence to take a second swing at the admission of his statements. He argues that the district court should have sustained his relevancy and prejudice objections (under Rules 402 and 403) because his statements discussed
different actors
(not individuals charged in the indictment) and an
earlier time
(beginning in August 2014, before the indictment's January 2015 start date). This claim faces stiff standard-of-review headwinds. We review a district court's decision to admit or exclude evidence for an abuse of discretion, leaving it "undisturbed unless we are left with the definite and firm conviction that the district court committed a clear error of judgment."
United States v. Cleveland
,
Start with the relevance objection. Potter's statements (that he had bought large amounts of meth in Georgia and resold it in Tennessee) had a "tendency to make" it "more ... probable" that he voluntarily joined the indicted conspiracy, which started at roughly the same time and followed roughly the same methods. Fed. R. Evid. 401(a). Indeed, as evidence experts have long recognized, a prior "bad act" satisfies the relevancy test's low bar even when used to show a person's propensity to commit the indicted crime.
See
Old Chief v. United States
,
Turn to the prejudice objection. The district court properly balanced the "probative value" of Potter's statements against any "unfair prejudice." Fed. R. Evid. 403. His statements fare well under the "two factors" that our cases use to measure a prior act's probative value: The conduct that Potter's statements described was both similar to, and close in time with, the indicted conduct.
See
United States v. Asher
,
3.
Sufficiency Objection
. Potter next invokes
*453
Federal Rule of Criminal Procedure 29, arguing that the United States presented insufficient evidence to sustain his conviction. While subject to de novo review on appeal, this claim also must surmount a demanding legal standard: Potter must show that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
United States v. Paige
,
To evaluate the evidence's sufficiency, we must identify the "essential elements" of a conspiracy conviction under
Could a rational jury find these elements met in Potter's case? We think so. Ample evidence showed an agreement. Keep in mind that "[a]n agreement to violate the drug laws need not be express or formal. A tacit or mutual understanding among the parties is sufficient."
United States v. Caver
,
The evidence also could lead a rational jury to find § 846 's other elements-that Potter knowingly and voluntarily participated in (that is, joined) the conspiracy. Indeed, "once the existence [of] a conspiracy is shown, the evidence linking an individual defendant to that conspiracy need only be slight." Caver , 470 F.3d at 233. The jury could again rely on the "repeated purchases" and "large quantity of drugs" to infer Potter's intentional participation.
*454 Id. Not only that, Potter's warning to Hogan that he had been arrested and his speedy reconnection with Hogan upon his release both confirm that he willingly sought to further the conspiracy's distribution goals.
For his part, Potter asserts that this evidence established only a "buyer/seller" relationship between Hogan (seller) and Potter (buyer) and Potter (seller) and Hyde (buyer). True enough, "[a] buyer/seller relationship alone is not enough to establish participation in the conspiracy."
United States v. Gibbs
,
4.
Eighth Amendment Objection
. Potter ends with an attack on his sentence. At the time of his conduct, federal law imposed a mandatory life sentence for defendants who had two prior felony drug convictions.
Potter's initial obstacle is our court's precedent. To determine whether a term of imprisonment for adults violates the Eighth Amendment, the Supreme Court has adopted a " 'narrow proportionality principle' " that requires a defendant to show that the term is grossly disproportionate to the crime.
Ewing v. California
,
If Potter believes that
Miller
has now superseded
Hill
, we have also rejected similar Eighth Amendment challenges to § 841(b)(1) since that decision. To list a few examples:
United States v. Young
,
Potter's next obstacle is our country's continuing traditions. "The propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England."
Graham v. West Virginia
,
The democratic tides are turning, Potter replies, identifying as evidence the First Step Act's amendment reducing to twenty-five years § 841(b)(1) 's mandatory minimum for those with two prior drug convictions. First Step Act of 2018, Pub. L. No. 115-391, § 401(a)(2),
* * *
We affirm Potter's conviction and sentence.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Michael J.W. POTTER, Defendant-Appellant.
- Cited By
- 65 cases
- Status
- Published