           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    United States v. Clark                      No. 03-5431
        ELECTRONIC CITATION: 2004 FED App. 0324P (6th Cir.)
                    File Name: 04a0324p.06                                 Piper, ASSISTANT UNITED STATES ATTORNEY,
                                                                           Chattanooga, Tennessee, for Appellee.
UNITED STATES COURT OF APPEALS                                                                 _________________
                  FOR THE SIXTH CIRCUIT                                                            OPINION
                    _________________                                                          _________________

 UNITED STATES OF AMERICA , X                                                CLAY, Circuit Judge. Defendant Steven Clark appeals his
                                                                           conviction and sentence on two counts of knowingly,
              Plaintiff-Appellee, -                                        intentionally and without authority distributing cocaine base
                                    -
                                    -   No. 03-5431                        (crack), a Schedule II controlled substance, in violation of
             v.                     -                                      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
 STEVEN G. CLARK,                   -
          Defendant-Appellant. -                                           phases of his trial; (2) refused to compel the government to
                                                                           produce a copy of notes prepared by an FBI Agent who had
                                   N                                       interrogated Defendant after his arrest; (3) refused to grant a
        Appeal from the United States District Court                       mistrial for the government’s alleged failure to comply with
    for the Eastern District of Tennessee at Winchester.                   FEDERAL RULE OF CRIMINAL PROCEDURE 16 by failing to
   No. 02-00014—R. Allan Edgar, Chief District Judge.                      produce the agent’s notes in a timely manner; (4) refused to
                                                                           grant a downward departure in his sentence for his purported
                   Submitted: August 3, 2004                               diminished capacity; and (5) ordered Defendant’s sentence to
                                                                           run consecutively to the term of his imprisonment on his state
            Decided and Filed: September 23, 2004                          law offenses. For the reasons that follow, we AFFIRM
                                                                           Defendant’s convictions, but REMAND to the district court
  Before: CLAY and GILMAN, Circuit Judges; MATIA,                          for consideration of whether Defendant’s term of
                Chief District Judge.*                                     imprisonment on his federal conviction should run
                                                                           concurrently or consecutively to his state law convictions.
                       _________________
                                                                                                        I.
                            COUNSEL                                                                    Facts
ON BRIEF: M. Keith Davis, AUSTIN, DAVIS &                                    On June 16, 2000, after a confidential informant (“CI”) had
MITCHELL, Dunlap, Tennessee, for Appellant. Perry H.                       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
     The Honorable Paul R. Matia, Chief United States District Judge for   $200 in pre-recorded funds. The CI relinquished the
the Northern District of Ohio, sitting by designation.

                                   1
No. 03-5431                      United States v. Clark     3    4    United States v. Clark                       No. 03-5431

recording device and 0.5 grams of crack cocaine to the agents.   from a mental disease or deficit that rendered him mentally
Similarly, on October 13, 2000, after a CI had been searched     incompetent to understand the judicial proceedings or assist
for contraband and equipped with a recording device, an          in his defense, whether he was insane at the time of the
undercover agent accompanied the CI to McGee’s Trailer           offenses charged, whether there were any factors that shed
Park, also in Shelbyville. The CI entered a trailer and found    light on the voluntariness of any statement against interest
Defendant in the living room. Defendant sold crack cocaine       given by Defendant, and whether there were mental
to the CI in exchange for $100 in pre-recorded funds. The CI     conditions that might mitigate Defendant’s culpability related
relinquished the recording device and 0.4 grams of crack         to trial or sentencing issues.
cocaine to the agents. At the time of these drug transactions,
Defendant was on probation for state charges of sale of             Defendant was evaluated by Dr. Richard DeMier, a clinical
cocaine under 0.5 grams, theft over $500, bail jumping,          psychologist, over a period of months, culminating in a report
simple possession of marijuana, and driving on a revoked         generated on August 27, 2002. Dr. DeMier’s report made the
license. His state probation terms were subsequently revoked     following findings: Defendant grew up with both parents, but
on various dates in 2001, and he was ordered to serve a series   his father was “very abusive.” His IQ is between 77 and 88,
of prison terms expiring in August of 2010.                      he dropped out of school at age 15, and he has learning
                                                                 disabilities. He has posttraumatic stress disorder (“PTSD”) as
  On March 13, 2002, the federal grand jury for the Eastern      a result of being shot 17 times as an 18 year-old; symptoms
District of Tennessee returned a two-count indictment,           include intrusive memories, flashbacks, and nightmares. He
charging that on or about October 13, 2000 and June 16,          also has a history of drug and alcohol abuse. Prior to his
2000, Defendant knowingly, intentionally and without             incarceration, he regularly used crack cocaine.
authority distributed cocaine base (crack), a Schedule II
controlled substance, in violation of 21 U.S.C. § 841(a)(1).        In addition to the PTSD, Dr. DeMier diagnosed Defendant
On March 18, 2002, Defendant was arrested as a result of the     as having a psychotic disorder. Defendant was prescribed
indictment and, after being retrieved from the Rutherford        antipsychotic and anti-anxiety medications, to which his
County Jail, was interviewed by FBI Special Agent Richard        symptoms responded. Dr. DeMier concluded that “it is most
Poff and Agent Tim Lane of the Tennessee 17th Judicial           likely that he does not have a genuine psychotic illness at this
District Drug Task Force. During that interview, Defendant       time,” although he speculated that more psychotic symptoms
purportedly admitted to selling crack cocaine in the             might appear if Defendant discontinued his antipsychotic
Shelbyville, Tennessee area and also identified his drug         medication. Thus, Dr. DeMier diagnosed Defendant with
suppliers.                                                       only PTSD, which would not preclude Defendant’s ability to
                                                                 understand the nature and potential consequences of the
  On May 13, 2002, Defendant, through court-appointed            charges against him or hinder his capacity to assist properly
counsel, moved for a psychiatric examination to determine his    in his defense.
competency to stand trial, his ability to make a voluntary
confession and whether there existed any factors that might        A separate report from Dr. DeMier indicated that Defendant
mitigate his culpability at trial or sentencing. With the        denied the allegations in the indictment, to wit, that he had
concurrence of the government, the magistrate judge referred     sold crack cocaine to a confidential informant on June 16 and
Defendant to the U.S. Medical Center for Federal Prisoners,      October 13, 2000. Although Defendant acknowledged being
requesting opinions regarding whether Defendant suffered         a cocaine user, he claimed he was not a seller. He said that
No. 03-5431                       United States v. Clark      5    6       United States v. Clark                            No. 03-5431

the police had used high pressure tactics during his               not have done demonstrated his mental illness and, by
interrogation, that he was told he should “help himself,” and      extension, the involuntary nature of his confession.
that he was led to believe that if he cooperated, he would
receive better treatment. Defendant also told the psychologist       At the suppression hearing, Agent Poff testified that
that he had requested an attorney at least four times during his   Defendant had admitted to the agents that he began selling
interrogation, but that they denied his request.                   crack cocaine to support his own cocaine habit. Defendant
                                                                   also allegedly told them that he was dating a woman in
  Dr. DeMier concluded that Defendant had no mental illness        Shelbyville, Tennessee, and that he would travel to
or cognitive deficit that would have hindered his ability to       Shelbyville each weekend to sell crack cocaine. Poff stated,
give a statement freely and voluntarily to the police. Dr.         “He began dating her around February or March of 2000.
DeMier further found that Defendant’s PTSD and his possible        And he continued to come down to Shelbyville to sell crack
auditory hallucinations would not have had any impact on his       cocaine through August of 2001 when he was arrested on a
ability to consider his actions and make a reasoned decision       probation violation.”    Poff also stated that he took
to cooperate or refuse to cooperate during the police              contemporaneous notes of the interview, which he later
interview. Dr. DeMier also noted that Defendant’s mental           summarized on a Form FD-302. The Form FD-302 stated,
health needs could be met in or out of prison and thus should      “CLARK advised he sold crack cocaine in Shelbyville from
have little impact on his sentence if convicted.                   March 2000 through August 2001….”1 The FD-302 made no
                                                                   reference to the locations of the two crack cocaine sales
   After the evaluation, Defendant filed a waiver of his mental    charged in the indictment. The court ultimately denied
competency hearing under 42 U.S.C. §§ 4241(c) and 4247(d).         Defendant’s motion to suppress. Later, Defendant filed a
The court determined that Defendant was not currently              motion to compel the government to produce copies of any
suffering from a mental disease that would render him unable       notes taken by law enforcement agents during their
to understand the nature and consequences of the proceedings       interrogation of Defendant as well as “any other rough notes
against him or to properly assist in his defense.                  made by such agents,”2 but the court denied this motion
                                                                   without explanation.
  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
                                                                       1
Shelbyville, Tennessee area from March, 2000 through                     On cross-examination, Agent Poff testified that he had learned that
August, 2001 had not been provided knowingly, voluntarily          there was a p eriod of time from December, 2000 through May, 2001,
and intelligently because of his untreated mental illness and      during which Defendant had been incarcerated and, therefore, could not
                                                                   have been engag ing in drug dealing activity.
low intelligence. Defendant’s attorney pointed out that
Defendant had been incarcerated in a county jail from                  2
                                                                           The court had issued a discovery and scheduling order on March 21,
December 13, 2000 until the beginning of May, 2001, and,           2002. Paragraph B .1 of the order stated that “[u]pon request of the
therefore, it was not possible that Defendant had sold all of      defendant, the government shall permit the defendant to inspect and
the crack cocaine he allegedly had confessed to selling.           copy… [t]he substance of any oral statement made by the defendant before
According to Defendant, his admission to something he could        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.”
No. 03-5431                       United States v. Clark       7    8    United States v. Clark                       No. 03-5431

  A few weeks before trial, Defendant submitted the report of         Trial commenced on December 10, 2002. As to
psychologist Dr. David A. Solovey, who had conducted a              Defendant’s post-arrest interview, Agent Lane testified that
preliminary mental evaluation of Defendant at a cost of $300.       he had read Defendant his Miranda rights before Agent Poff
According to Dr. Solovey’s report, Defendant was competent,         interviewed him, and that Defendant consented to the
he understood the charges against him and the possible              interview without the presence of an attorney. He also signed
penalties he faced, and he could properly assist in his own         a waiver of rights. He stated that Agent Poff then explained
defense. Although finding that Defendant had PTSD and               to Defendant that he had been indicted on two counts of
psychosis during the time he allegedly committed the charged        distributing cocaine base on the two specific dates charged in
offenses, Dr. Solovey stated that “the degrees of these             the indictment.
disturbances were not at a level to satisfy the criteria
necessary to eliminate criminal responsibility.” Dr. Solovey          Agent Poff testified that he informed Defendant that he had
further indicated, however, that there were “several factors        been indicted on federal charges as a result of controlled crack
that create questions regarding his statements made during his      cocaine purchases at two separate locations in Shelbyville,
initial questioning” and that several matters “require[d]           one being the residence of Tim Knox, and the other being
further evaluation and record review to validate,” including        McGee’s Trailer Park. Agent Poff added, “Mr. Clark advised
Defendant’s assertion that his interrogation continued despite      us that he did sell crack cocaine from those locations.” When
his request for an attorney; the potential unreliability of many    asked on cross-examination why Defendant’s admission
of his statements due to his mental state; and Defendant’s          regarding the locations of the drug sales did not appear in the
admission to several things he could not have done. Dr.             FD-302 interview summary Poff had prepared, Poff stated
Solovey concluded that these issues could be relevant to            that the information was contained in his rough interview
Defendant’s defense, but that he would have to spend another        notes upon which he had based the FD-302. He further
12 hours (including 3 hours of court time), at a cost of $1,800,    explained that the location of the drug sales did not appear in
to provide a complete assessment of Defendant.                      the FD-302 because it was only a narrative summary
                                                                    “designed to determine how much crack cocaine he was
  Based on Dr. Solovey’s report, Defendant filed a motion           selling and where he was getting the crack cocaine he was
requesting expert services from Dr. Solovey in excess of            selling.” Also, Poff did not believe Defendant’s admission
$1,000, which the court denied. The court noted that both           regarding the locations of the drug transactions was worthy of
Dr. DeMier (the clinical psychologist from the Bureau of            mention in the FD-302 because the CI’s tape recordings
Prisons) and Dr. Solovey had found Defendant competent.             confirmed that Defendant had sold crack cocaine from the
The court found that Defendant had not demonstrated that Dr.        two locations.
Solovey’s services were necessary to show that his statement
to law enforcement had been involuntary. Indeed, the court            At that point, Defendant’s counsel broke off his cross-
previously had held, in connection with his motion to               examination and moved for a mistrial because Agent Poff’s
suppress, that his statement had been voluntary. The court          rough notes had not been produced before trial, even though
further noted that if voluntariness became an issue at trial, the   Defendant specifically had requested them. The government
jury would be able to decide the issue without an opinion           offered to provide Defendant with the notes, but Defendant’s
from Dr. Solovey. The court found that his testimony would          counsel insisted he should have known about the notes prior
not assist the trier of fact in accordance with Daubert v.          to trial because the notes could have affected Defendant’s
Merrell Dow Pharm. Co., 509 U.S. 517 (1993).                        decision to go to trial in the first place. The court offered to
No. 03-5431                       United States v. Clark      9    10   United States v. Clark                      No. 03-5431

take Defendant’s guilty plea then and there and indicated that       The court denied Defendant’s motion, holding that the
Defendant could cross-examine Agent Poff on the notes, but         evidence of Defendant’s guilt was overwhelming, especially
ultimately denied the motion for a mistrial.                       in light of the testimony of the confidential informant who
                                                                   had purchased crack cocaine from Defendant – testimony that
   When the trial resumed, Defendant’s counsel cross-              was corroborated by audio tapes of the transactions. In
examined Agent Poff on the omission of the location                addition, Defendant confessed to selling crack, although he
information from the FD-302. Agent Poff again explained            apparently was not asked if he had sold it on the particular
that the FD-302 had failed to mention Defendant’s admission        occasions in question.
to selling crack cocaine from the locations of the two charged
drug sales because the focus of the interview was not the             The court rejected any error with regard to the alleged non-
specifics of those drug sales, but rather the quantity of the      disclosure of Agent Poff’s notes containing Defendant’s
crack cocaine involved and the identity of Defendant’s             statement about the locations of the crack sales to which he
suppliers.                                                         had admitted. Although the court conceded that, “as a
                                                                   technical matter,” Agent Poff’s notes should have been
   A jury found Defendant guilty on both counts of the             disclosed pursuant to FED . R. CRIM . P. 16(a)(1)(A), and that
indictment on December 11, 2002, and Defendant moved for           the court had erred in not compelling the production of those
a new trial shortly thereafter. As grounds, Defendant argued       notes, the court found that Defendant had suffered no
that his convictions were against the great weight of the          prejudice. “[M]ost of the essentials” had been disclosed in
evidence. Defendant also argued that the court had erred           the Form 302 and during the suppression testimony. In any
when it permitted Agent Poff to testify regarding a statement      event, the reference concerning the transaction taking place at
Defendant gave during his interrogation. According to Agent        Tim Knox’s trailer was not exculpatory. The court held that
Poff’s testimony, Defendant stated that Defendant admitted         there was no evidence that had Defendant known that Poff
to selling crack cocaine from Tim Knox’s trailer; this fact was    would testify about the precise location of either of the crack
not included in the narrative summary of the interview Agent       sales, the results of his trial would have been any different.
Poff had prepared and that was provided to Defendant, but
was included in Poff’s rough notes upon which the summary            Finally, the court rejected Defendant’s contention that a
was based. According to Defendant, he had requested Poff’s         new trial was warranted for the court’s failure to authorize
rough notes during discovery and was prejudiced by the             additional expenditures for Dr. Solovey’s services. The court
government’s refusal to turn them over and the court’s denial      noted that Dr. Solovey, like Dr. DeMier before him, had
of Defendant’s motion to compel their production. Defendant        concluded that Defendant was competent to stand trial.
further argued that the court erred when it refused to grant his   Although Dr. Solovey did identify several factors that could
motion authorizing funds to retain a psychologist to determine     have impacted the voluntariness of Defendant’s statement to
the voluntariness of Defendant’s confession; the court erred       Agent Poff, “Dr. Solovey was never called to provide any of
when it refused to continue the trial to permit a psychological    this information to the jury.” Dr. Solovey wanted more
examination of Defendant; and the court erred when it denied       money before he would investigate these additional factors.
Defendant’s motion for a mistrial after it was determined that     Quoting United States v. Gilmore, 282 F.2d 398, 406 (6th Cir.
the government had not fully responded to his discovery            2002), the court concluded that Defendant had not
requests.                                                          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     12   United States v. Clark                     No. 03-5431

defendant’s case would be prejudiced.’” The court further                        Defendant also argued that the district court should not
concluded that Dr. Solovey’s testimony would not have                          impose a prison sentence running consecutively to his state
assisted the trier of fact.                                                    court prison term, which will not expire until 2010.
                                                                               Defendant argued that his criminal history points (20) already
   Defendant also moved for authorization to retain an expert,                 took into account his prior state convictions. Were it not for
at a cost in excess of $1,000, to assist him at his sentencing                 his criminal history, his guidelines range would have been
hearing in order to determine the applicability of any                         between 21 and 27 months, instead of the 46 to 57 month
mitigating factors. In response, the court referred to Dr.                     range stemming from his criminal history and the fact that he
DeMier’s report, which had found that “whatever the                            had committed the offense while on probation. Defendant
defendant’s medical status may be, any argument that it                        argued that a consecutive sentence effectively amounted to a
should reduce his culpability is a moral and legal question,                   “double penalty” for his federal convictions. The court
rather than a psychological one.” The court also referred to                   pointed out that if Defendant were not sentenced
the report of Defendant’s expert, Dr. Solovey, which listed                    consecutively, there would be no incremental increase in his
numerous factors that may be relevant to mitigation. The                       prison term for the federal sentence.
court found that it already had enough information regarding
Defendant’s mental status to make an informed decision                           The court denied the motion for downward departure,
about his sentence, further noting that mental and emotional                   holding that Defendant did not have diminished capacity and
conditions are not ordinarily relevant in determining whether                  because his prior criminal record evidenced continued
a sentence should be outside the guidelines range. The court                   disrespect for the law. Citing GUIDELINES § 5G1.3,
therefore denied Defendant’s motion.                                           application note 6, the court noted that the sentence for
                                                                               Defendant’s offense “should” be imposed to run
   Defendant then moved for a downward departure.                              consecutively to the term imposed for the violation of the
Defendant argued that U.S. SENT ENCING GUIDELINES                              probation. The court sentenced Defendant at the top of the
MANUAL (hereafter “GUIDELINES”) § 5K2.3 authorizes a                           GUIDELINES range – 57 months – to run concurrently on both
sentence below the applicable range if the Defendant                           counts, but consecutively to his state sentence. Defendant
committed the offense while suffering from a significantly                     timely appealed.
reduced mental capacity. Defendant cited to his low IQ, his
PTSD, latent syphilis, and paranoid schizophrenia. Defendant                                             II.
further argued that he was entitled to a downward departure                    Refusal to Authorize Additional Funds for Psychologist
pursuant to GUIDELINES § 5K2.0 because he had an abusive                                      at Trial and Sentencing
father, a history of drug and alcohol abuse, a history of mental
illness, and because his brother, who also had been arrested                     Counsel for a defendant who is financially unable to obtain
for a similar offense, was placed on a diversion program.3                     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
    3
                                                                               are “necessary to mount a plausible defense” and “without
      Although only age 25 at the time of his indictment, Defendant            such authorization, the defendant’s case would be
already had a lengthy list of prior convictions and arrests for a variety of   prejudiced.” United States v. Gilmore, 282 F.3d 398, 406
state law offenses, including sale of cocaine, theft, bail jumping,
possession of marijuana , and d riving on a revoked license.
                                                                               (6th Cir. 2002). We review the decision of the trial court
No. 03-5431                       United States v. Clark     13    14    United States v. Clark                       No. 03-5431

denying a request for expert services for abuse of discretion.     mental illness or cognitive deficit that would have hindered
Id. Defendant argues that the district court erred when it         his ability to give a statement freely and voluntarily to the
refused to authorize the expenditure of more than $1,000 for       police, the court reasonably concluded that Dr. Solovey’s
the services of psychologist Dr. David Solovey. For the            services were not necessary to establish a plausible defense to
reasons set forth below, we hold that the district court did not   Defendant’s post-arrest statements, but instead would have
abuse its discretion in finding that Dr. Solovey’s services        amounted to a psychological “fishing expedition.” United
were unnecessary.                                                  States v. Alden, 767 F.2d 314, 318 (7th Cir. 1984) (affirming
                                                                   denial of appointment of psychiatrist at trial to support
   Dr. Solovey’s preliminary examination of Defendant (at a        insanity defense; holding that it was appropriate for the
court-authorized cost of $300) found that Defendant was            district court to rely on initial psychiatric evaluations
competent, that he understood the charges against him and the      conducted at prison which found the defendants sane and
possible penalties he faced, and that he could properly assist     competent to stand trial); see also Gilmore, 282 F.2d at 406
in his own defense. Although finding that Defendant suffered       (“A district court need not grant a[] defendant’s motion under
from PTSD and psychosis during the time he committed the           § 3006A on the off chance that the requested services might
charged offenses, Dr. Solovey concluded that “the degrees of       turn up something.”).
these disturbances were not at a level to satisfy the criteria
necessary to eliminate criminal responsibility.” Dr. Solovey’s        Even assuming that the district court erred, its error was
conclusions were virtually identical to those of Dr. DeMier,       harmless because of the overwhelming evidence of
a clinical psychologist from the Bureau of Prisons, who            Defendant’s guilt. See United States v. Neuroth, 809 F.2d
similarly had found that Defendant’s mental condition did not      339, 342 (6th Cir. 1987) (“An error, not of constitutional
inhibit his ability to understand the nature and potential         dimension, is harmless unless it is more probable than not that
consequences of the charges against him or hinder his              the error materially affected the verdict.”) (citations omitted).
capacity to assist properly in his defense.                        As noted, Defendant was caught on audio tape selling crack
                                                                   cocaine to a confidential informant on the two occasions
   Dr. Solovey’s preliminary report also hinted that additional    charged in the indictment. Although a drug addict and ex-
evaluation of Defendant may have yielded relevant                  convict himself, the confidential informant confirmed
information regarding the voluntariness of Defendant’s             Defendant’s identity and the nature of the drug transactions at
statement to FBI Agent Poff on the day of his arrest. The          trial. Thus, even assuming that Defendant’s statement to
report referred to “several factors that create questions          Agent Poff had been involuntary, we hold that it is not more
regarding his statements made during his initial questioning”      probable than not that Defendant would have avoided a guilty
and that several matters “require[d] further evaluation and        verdict. See United States v. Smith, 987 F.2d 888, 892 (2d
record review to validate,” including Defendant’s assertion        Cir. 1993) (holding that the erroneous denial of a
that his interrogation continued despite his request for an        psychiatrist’s services to support duress defense was harmless
attorney; the potential unreliability of many of his statements    error because of the “abundant” evidence of the defendant’s
due to his mental state; and Defendant’s admission to several      guilt established that the availability of a psychiatric expert
things he could not have done. But the “questions” and             would not have altered either the verdict or his sentence).
unvalidated matters to which Dr. Solovey hinted were little
more than speculation. Because the district court already had        For similar reasons, we hold that the district court did not
the benefit of Dr. DeMier’s conclusion that Defendant had no       abuse its discretion when it refused to authorize expenditures
No. 03-5431                      United States v. Clark     15    16    United States v. Clark                       No. 03-5431

for Dr. Solovey’s assistance at sentencing. The court had the        We review alleged violations of Rule 16 of the FEDERAL
benefit of detailed reports from Dr. DeMier and Dr. Solovey.      RULES OF CRIMINAL PROCEDURE for abuse of discretion.
Dr. DeMier’s report concluded that “whatever the defendant’s      United States v. Tarwater, 308 F.3d 494, 515 (6th Cir. 2002).
medical status may be, any argument that it should reduce his     Assuming, arguendo, that a Rule 16 violation occurred, we
culpability is a moral and legal question, rather than a          also review said violation for harmless error. FED . R. CRIM .
psychological one.” Dr. Solovey’s report reached no medical       P. 52(a) (“Any error, defect, irregularity, or variance that does
conclusion on this point, merely referring to eighteen “factors   not affect substantial rights must be disregarded.”). “An
to address the question of mitigation” that “could be             error, not of constitutional dimension, is harmless unless it is
considered relevant.” Accordingly, we agree with the district     more probable than not that the error materially affected the
court’s conclusion that it already had enough information         verdict.” Neuroth, 809 F.2d at 342.
regarding Defendant’s mental status to make an informed
decision about his sentence.                                        The government argues that no Rule 16 violation occurred
                                                                  because Rule 16(a)(1)(A) of the FEDERAL RULES OF
                         III.                                     CRIMINAL PROCEDURE requires the government to disclose
   Denial of Defendant’s Motion to Compel Officer’s               only the “substance” of the defendant’s oral statements that
       “Rough” Notes of Post-Arrest Interview                     the government intends to use at trial and that it disclosed the
                                                                  substance by producing Agent Poff’s interview summary.
  Defendant argues that the trial court abused its discretion     The government, however, ignores Rule 16(a)(1)(B)(ii),
when it refused to compel the pre-trial disclosure of the notes   which additionally requires the disclosure of “the portion of
taken by Agent Poff during Defendant’s post-arrest interview.     any written record containing the substance” of such an oral
For the reasons that follow, we disagree.                         statement. This rule imposes a more specific disclosure
                                                                  obligation than Rule 16(a)(1)(A), and Agent Poff’s notes, by
  The FEDERAL RULES OF CRIMINAL PROCEDURE require the             definition, constitute a portion of a written record containing
government, upon the defendant’s request, to produce “the         the substance of Defendant’s interview. Accordingly, the
portion of any written record containing the substance of any     government violated Rule 16 by failing to turn over Agent
relevant oral statement made before or after arrest if the        Poff’s rough notes upon Defendant’s request.
defendant made the statement in response to interrogation by
a person the defendant knew was a government agent.” FED .           But, as the district court concluded, Defendant suffered no
R. CRIM . P. 16(a)(1)(B)(ii). Agent Poff’s so-called “rough       prejudice simply from the fact that the notes were produced
notes” of Defendant’s interrogation qualify as such a written     during trial, as opposed to before trial. As noted, Agent
record.     They contain, in writing, the substance of            Poff’s rough notes reflected Defendant’s statement that the
Defendant’s post-arrest oral statement made to Agent Poff         crack sales charged in the indictment had occurred at Tim
after Poff had told Defendant that he had been indicted on two    Knox’s residence and at McGee’s Trailer Park. Although this
counts of crack cocaine distribution. Moreover, Defendant         statement was not reflected in Agent Poff’s narrative report of
requested the production of these notes. The government did       Defendant’s interview (the FD-302), which was produced pre-
not produce them upon Defendant’s request, and the district       trial, this statement was not exculpatory. In fact, it was
court specifically denied Defendant’s motion to compel their      inculpatory because it directly linked Defendant to the
production. Accordingly, Defendant arguably suffered a Rule       locations of the drug transactions charged in the indictment.
16 violation that the district court failed to remedy.            Because it was inculpatory, the statement’s nondisclosure did
No. 03-5431                         United States v. Clark      17    18       United States v. Clark                            No. 03-5431

not materially affect Defendant’s guilty verdict. But even if         sales, “perhaps he would have reevaluated his decision to
it did, when the issue arose at trial, the trial court compelled      forego the timely entry of a guilty plea”) (emphasis added).
the disclosure of Agent Poff’s notes and permitted Defendant          We therefore find that the government’s Rule 16 violation
the opportunity to cross-examine Agent Poff on the notes.             was harmless error.
Moreover, the independent evidence of Defendant’s presence
at the location referenced in Agent Poff’s notes was                                               IV.
overwhelming. Defendant has not argued that the mid-trial                        Denial of Defendant’s Motion for Mistrial
disclosure of Agent Poff’s rough notes resulted in a due
process violation on the ground that he did not have adequate            Rehashing his Rule 16 argument, Defendant argues that the
time to prepare his defense.                                          district court should have declared a mistrial because it
                                                                      admitted Agent Poff’s testimony concerning his rough notes,
   Defendant nevertheless argues that the inculpatory nature          which were not produced prior to the commencement of trial,
of the statement shows prejudice because he purportedly was           in violation of FED . R. CRIM . P. 16.4 We review the denial of
not able to make an informed decision to enter a guilty plea          a motion for a mistrial for abuse of discretion. United States
(and possibly accept a sentence reduction for acceptance of           v. Ursery, 109 F.3d 1129, 1133 (6th Cir. 1997). A new trial
responsibility rather than proceed to trial). See United States       is not required unless “substantial rights” are affected. United
v. Hernandez-Muniz, 170 F.3d 1007, 1010 (10th Cir. 1999)              States v. Bond, 12 F.3d 540, 554 (6th Cir. 1993) (citing FED .
(“Rule 16 is designed to provide the defendant with sufficient        R. CRIM . P. 52(a)). We hold that the district court did not
information to make an informed decision about a plea, to             abuse its discretion.
allow the court to rule on admissibility motions before trial,
to minimize prejudicial surprise at trial, and to generally              Agent Poff’s summary narrative of Defendant’s
increase the efficiency of litigation.”) (citing FED . R. CRIM . P.   interrogation (the Form FD-302) did not reflect Defendant’s
16 advisory committee’s note to the 1974 amendment). As               alleged statement that he had participated in crack sales at the
the district court pointed out, however, the “essentials” of          two specific locations charged in the indictment. Defendant
Defendant’s inculpatory statements to Agent Poff were                 argues that he was not on notice that Agent Poff might give
disclosed prior to trial in the form of the FBI Form FD-302           trial testimony to this effect for two reasons: (1) the
report, and Agent Poff had discussed Defendant’s confession           government refused to produce his rough notes (and the
during a suppression hearing. There is no evidence that had           court’s refusal to compel their pre-trial disclosure) and
Defendant known that Agent Poff’s rough notes referred to             (2) Agent Poff did not refer to this statement at Defendant’s
the precise location of either of the crack sales, he would have      pre-trial suppression hearing.
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                  4
                                                                            Defendant has not argued that the government’s nondisclosure of
evidence, authenticated at trial by a confidential informant          Agent Poff’s notes am ounted to a violation of Brady v. Mary land, 373
and law enforcement witnesses, proving that Defendant had             U.S. 83 (1 963 ). Cf. United States v. Aguwa, 123 F.3d 418, 42 2 (6th Cir.
sold crack cocaine at those locations. Defendant’s argument           1997) (finding that government’s failure to turn over “agents’ raw notes
is simply too speculative to justify a new trial. See Def’s Br.       of events in question” was not tantamount to a Brady violation because
at 27 (arguing that had Defendant known of Agent Poff’s               the notes contained no exculpatory information, and, in fact, were highly
                                                                      incriminating and because the content of the notes was “largely reflected
notes corroborating his presence at the locations of the drug         in [the agents’] trial testimony, which directly implicated the defendant”).
No. 03-5431                       United States v. Clark      19    20   United States v. Clark                     No. 03-5431

   “Rule 16 does not require federal courts to exclude              optimally allow the admission of the probative evidence while
evidence not turned over to the discovering party in violation      insuring that the opposing party has adequate time to prepare
of a discovery order.” United States v. Bartle, 835 F.2d 646,       for it.”).
649 (6th Cir. 1987) (emphasis in original). Rule 16 provides,
“If a party fails to comply with this rule, the court                  Even assuming that willful violations of Rule 16 mandate
may…prohibit that party from introducing the undisclosed            a mistrial, there is no evidence in this case that the
evidence[] or…enter any other order that is just under the          government willfully violated Rule 16. Although the
circumstances.” FED . R. CRIM . P. 16(d)(2) (emphasis added).       government failed to respond to Defendant’s discovery
Thus, the district court did not necessarily abuse its discretion   request for Agent Poff’s notes, thereby necessitating
by failing to declare a mistrial due to the government’s failure    Defendant’s motion to compel, the district court itself placed
to turn over Agent Poff’s rough notes prior to trial.               its imprimatur on the government’s purported willful
                                                                    nondisclosure by denying Defendant’s motion. Defendant’s
   Defendant argues that a mistrial must be granted when there      only other evidence of willfulness is his assertion that Agent
is evidence that the government willfully withheld the              Poff, who is a long-term FBI agent and holds a law degree,
information that is the subject of the Rule 16 violation. There     improperly excluded Defendant’s statement about the
is dicta in some of our cases that arguably supports this           locations of the drug transactions from the FD-302. The
viewpoint. See United States v. Muhammad, 948 F.2d 1449,            evidence at trial showed, however, that Poff did not include
1454-55 (6th Cir. 1991) (“[W]e find that absent a showing of        the location information in the narrative because the focus of
some impropriety or willfulness by the government, it was           the narrative was how much crack cocaine Defendant was
within the district court’s discretion to admit” the statement      selling and its source. Agent Poff also explained that he
the defendant allegedly had made to the testifying police           already knew from the tape recordings of the confidential
officer.); see also Bartle, 835 F.2d at 649 (holding that the       informant that Defendant had sold crack cocaine from the two
trial court was not required to exclude evidence withheld in        locations covered by the indictment, so there was no
violation of Rule 16 because there was “absolutely no               particular reason to reference this fact in the FD-302. This
evidence that the government engaged in any deceitful               evidence shows that the government’s Rule 16 violation was
conduct in keeping the” information from the defendant). It         not willful. The denial of Defendant’s motion for a mistrial
is questionable, however, whether Rule 16 requires a mistrial       is therefore affirmed.
even in cases of willful non-disclosure. The plain language
of Rule 16(d)(2) is discretionary; it carves out no mandatory                                  V.
sanctions for willful violations. Accordingly, the general rule           Failure to Grant a Downward Departure Per
that “the appropriate sanction, if any, for a failure to comply                       GUIDELINES § 5K2.13
with Rule 16 is left to the ‘sound discretion of the trial
court,’” Muhammad, 948 F.2d at 1454-55 (quoting United                Defendant requested, but the district court denied, a
States v. Glover, 846 F.2d 339, 342 (6th Cir. 1988)), should        downward departure pursuant to GUIDELINES § 5K2.13, for
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
No. 03-5431                               United States v. Clark           21   22   United States v. Clark                      No. 03-5431

his purported diminished capacity.5 Defendant argues that the                   was imposed as a result of an incorrect application of the
district court abused its discretion by disregarding the facts                  sentencing guidelines. 18 U.S.C. § 3742(a). Because
that (1) Defendant was not being treated with antipsychotic                     Defendant does not assert either of these two grounds, the
medication at the time of his offenses; (2) Defendant suffers                   only way his appeal is cognizable is if he can show that the
from PTSD and was being treated for paranoid schizophrenia;                     district court believed it lacked the authority to grant a
and (3) Defendant has a low IQ. The district court’s refusal                    downward departure. As this Court has stated:
to grant a downward departure, however, is not reviewable.
                                                                                  Generally, a court’s failure to exercise its discretion and
  A criminal defendant may appeal a sentence in four                              grant a downward departure is not reviewable. See, e.g.,
circumstances, only two of which are relevant here: (1) if the                    United States v. Landers, 39 F.3d 643, 649 (6th
sentence was imposed in violation of law or (2) the sentence                      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
   5                                                                              to consider defendant’s mitigating circumstances as well
       G UIDELINES § 5K 2.13 p rovides:
                                                                                  as the discretion to deviate from the guidelines.” Id.
   A sentence below the applicable guideline range may be                         (citation omitted).
   warranted if (1) the d efendant committed the o ffense while
   suffering from a significantly reduced mental capacity; and (2)              United States v. Coleman, 188 F.3d 354, 357 (6th Cir. 1999).
   the significantly reduced mental capa city contrib uted
   substantially to the commission of the offense. Similarly, if a
                                                                                A court’s failure to grant a downward departure is not
   departure is warranted under this policy statement, the extent of            reviewable even if based on clearly erroneous findings of fact.
   the departure should reflect the extent to which the reduced                 See United States v. Watkins, 179 F.3d 489, 501 (6th Cir.
   mental capacity contributed to the commission of the offense.                1999) (“Even if the finding were clearly erroneous, the
                                                                                district court's failure to depart downward still would not be
   However, the court may not de part b elow the applicab le
   guideline range if (1) the sign ificantly red uced mental capacity
                                                                                appealable[,] …as long as the guideline range was properly
   was caused by the volun tary use of drugs or o ther intoxicants;             computed, the district court was not unaware of its discretion
   (2) the facts and circum sta nces of the defenda nt's offense                to depart from the guideline range, and the sentence was not
   indicate a need to protect the public because the offense involved           imposed in violation of law or as a result of an incorrect
   actual violence or a serious threat of violence; (3) the defenda nt's        application of the guidelines….”) (citing 18 U.S.C. § 3742(a);
   criminal history ind icates a need to incarcerate the defendant to
   protect the public; or (4) the defendant has been convicted of an
                                                                                United States v. Davis, 919 F.2d 1181, 1187 (6th Cir. 1990)).
   offense under chapter 71, 109A, 110, or 117, of title 18, United
   States Code.                                                                   “The Court reviews de novo the issue of whether the district
                                                                                court was aware of its authority to depart downward.” United
   The App lication Note p rovides:                                             States v. Smith, 278 F.3d 605, 609 (6th Cir. 2002) (citing
                                                                                Koon v. United States, 518 U.S. 81, 100 (1996); United States
   For purposes of this policy statement –
                                                                                v. Ebolum, 72 F.3d 35, 37 (6th Cir.1995)). The Court
   “Significantly reduced mental capa city” means the d efendant,               presumes that the district court understood its discretion to
   although convicted, has a significantly impaired ability to (A)              depart, “absent clear evidence in the record to the contrary.”
   understand the wrongfulness of the behavior comprising the                   United States v. Crouch, 288 F.3d 907, 910 (6th Cir. 2002)
   offense or to exercise the p ower of reason; or (B) control                  (citing United States v. Ford, 184 F.3d 566, 585 (6th
   behavior that the defendant kno ws is wro ngful.
No. 03-5431                       United States v. Clark     23    24       United States v. Clark                             No. 03-5431

Cir.1999)). There is no evidence in this case that the district    18 U.S.C. § 3553(a).6 GUIDELINES § 5G1.3, application note
court did not understand its discretion to depart downward.        3. Defendant argues that the district court’s imposition of a
Indeed, Defendant does not argue this point, only that the         consecutive sentence was erroneous because it did not
court failed to exercise its discretion properly. Accordingly,     consider any of these factors.
we reject Defendant’s appeal of the court’s failure to grant a
downward departure.                                                 The court relied exclusively on Application Note 6 to
                                                                   GUIDELINE§ 5G1.3, which provides, in part:
                         VI.
    Consecutive versus Concurrent Sentences under                    If the defendant was on federal or state probation, parole,
                 GUIDELINES § 5G1.3                                  or supervised release at the time of the instant offense,
                                                                     and has had such probation, parole, or supervised release
  Defendant was convicted on both counts of knowingly,               revoked, the sentence for the instant offense should be
intentionally and without authority distributing cocaine base        imposed to run consecutively to the term imposed for the
(crack), in violation of 21 U.S.C. § 841(a)(1). At the time of       violation of probation, parole, or supervised release in
his federal conviction, Defendant was serving an                     order to provide an incremental penalty for the violation
undischarged term of imprisonment stemming from the                  of probation, parole, or supervised release.
revocation of his probation for several violations of state law.
GUIDELINES § 5G1.3 provides that a federal sentence “may be        GUIDELINE§ 5G1.3, application note 6. Arguably, a
imposed to run concurrently, partially concurrently, or            straightforward application of Note 6 suggests that
consecutively to the prior undischarged term of imprisonment       Defendant’s sentence “should” have run consecutively
to achieve a reasonable punishment for the instant offense.”       because he was on state probation at the time of the federal
Defendant argues that the district court abused its discretion     offenses, and his state probation subsequently was revoked.
when it ordered that Defendant’s 57 month sentence for his         The court’s exclusive reliance on Application Note 6 was
violations of federal law would run consecutively to the term      erroneous, however, because the court failed to weigh any
of his state imprisonment, set to expire in 2010. See United       other factors – i.e. the factors set forth at 18 U.S.C. § 3553(a)
States v. Covert, 117 F.3d 940, 945 (6th Cir. 1997) (providing     – relevant to whether the federal sentence for an offense
that the district court’s decision to impose a consecutive or
concurrent sentence is reviewed for abuse of discretion). We
agree.
                                                                        6
                                                                         These factors include the nature of the offense and history of the
  Application Note 3 of GUIDELINES § 5G1.3 states that             defendant; the adequacy of the sentence as a deterrent and as a
under subsection (c) of that Guideline, the court “may impose      punishment that is just, protects the public, and rehabilitates the
a sentence concurrently, partially concurrently, or                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
consecutively” and that “[t]o achieve a reasonable punishment      include the type and length of the prior undischarged sentence; the time
and avoid unwarranted disparity,” the court should consider        served on the undischarged sentence and the time likely to be served
a variety of factors, as well as the factors set forth at          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. G UIDELINES § 5G 1.3, application note 3.
No. 03-5431                             United States v. Clark           25   26    United States v. Clark                          No. 03-5431

should run concurrently or consecutively to an undischarged                     The district court did not consider the § 3553(a) factors, at
sentence.                                                                     least not as reflected by the record. The transcript refers only
                                                                              to the court’s concern that a concurrent sentence would
   The federal statute that governs concurrent versus                         preclude an incremental penalty for his federal offenses.
consecutive sentences clearly states that the district court                  Accordingly, we vacate the court’s ruling that Defendant’s
must consider the § 3553(a) factors in this context. The                      sentence for his federal offenses are to run consecutively, so
statute provides that “if a term of imprisonment is imposed on                that the district court can reconsider its ruling in light of
a defendant who is already subject to an undischarged term of                 the factors set forth at 18 U.S.C. § 3553(a) and at GUIDELINES
imprisonment, the terms may run concurrently or                               § 5G1.3, application note 3. Cf. United States v. Becker, No.
consecutively.” 18 U.S.C. § 3584(a). The statute then                         99-1704, 2000 WL 245508, at *1 (6th Cir. Feb. 22, 2000)
instructs that “[t]he court, in determining whether the terms                 (unpublished; affirming imposition of consecutive sentence;
imposed are to be ordered to run concurrently or                              district court properly had relied on Application Note 6 and
consecutively, shall consider, as to each offense for which a                 had considered the factors listed in § 3553(a)).
term of imprisonment is being imposed, the factors set forth
in section 3553(a).” Id. § 3584(b) (emphasis added); see also                                               VII.
Covert, 117 F.3d at 945 (“A district court has the discretion                                            Conclusion
to impose consecutive or concurrent sentences pursuant to
§ 5G1.3, upon consideration of the factors listed in 18 U.S.C.                   For all the foregoing reasons, the Court AFFIRMS
§ 3553(a) and the applicable guidelines and policy statements                 Defendant’s convictions, but REMANDS to the district court
in effect at the time of sentencing.”) (emphasis added;                       for consideration of whether Defendant’s term of
footnote omitted; citing United States v. Coleman, 15 F.3d                    imprisonment on his federal conviction should run
610, 611-12 (6th Cir.1994)).7                                                 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.
    7
     Mand atory consideration of the § 35 53(a) facto rs is consistent with
the Background commentary that appears at the end of the Application
Notes to G U 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.

G U ID ELIN ES § 5G1 .3, application note, background (emphasis added ).
See Cove rt, 117 F.3d at 945 n.7 (“The background to § 5G1.3(c) makes         considering whether to impose a concurrent or consecutive sentence on
specific reference to 18 U.S.C. § 3584, which requires that the district      a defendant who is already subject to an undischarged term of
court consider the factors outlined in 18 U.S.C. § 3553(a), when              imprisonment.”).
