In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2254
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
K ENNETH C LARK ,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09 CR 10067—Joe Billy McDade, Judge.
A RGUED A PRIL 14, 2011—D ECIDED S EPTEMBER 15, 2011
Before E ASTERBROOK, Chief Judge, and R OVNER and
S YKES, Circuit Judges.
R OVNER, Circuit Judge. Kenneth Clark was convicted
after a jury trial of possessing crack cocaine with intent
to distribute, 21 U.S.C. § 841(a)(1). On appeal he argues
that evidence related to the drugs found in his truck
should have been suppressed and that he should have
been permitted more latitude in cross-examining the
government informant who exposed him as her sup-
2 No. 10-2254
plier. But the police had probable cause when they
searched Clark’s truck and found the drugs after he
pulled into the informant’s driveway to make a
scheduled delivery. And because Clark had ample op-
portunity to expose the informant’s motives and biases
on the stand, the district court did not abuse its discre-
tion by forbidding him to inquire into salacious details
about her personal life. We affirm the district court’s
judgment.
I.
Things fell apart for Clark when one of his customers
turned on him. Mary McCormick was a dealer who had
been buying crack and powder cocaine from Clark for
about five months before she was arrested by police in
Peoria, Illinois; a search of her house turned up almost
25 grams of crack, as well as scales, plastic baggies, and
$1,400 in cash. The police offered to be lenient with
McCormick if she would help them snare her supplier,
and she quickly agreed. She said his name was Kenneth
(she could not remember his last name) and described
him as a black man with short hair who was in his 40s,
stood about 5 feet 9 inches, and weighed around 260
pounds. He would drive down from Chicago to make
deliveries a few times each month, she explained,
always in the same red pickup truck. His route was
consistent too: He would arrive in Peoria on westbound
Interstate 74, exit at Knoxville Avenue, drive north
about four miles, turn west on Northmoor Road, and
then make a quick right to arrive at McCormick’s house
on Jayar Drive.
No. 10-2254 3
In fact, McCormick told the police, she was expecting
her supplier to make a delivery that very week. As
officers listened in, McCormick phoned Clark to arrange
the details. Clark agreed to drive down to Peoria two
days later with 10 ounces of cocaine. Sometime during
this interlude McCormick learned Clark’s last name
and passed that information on to the officers. She also
guessed that the red truck he was driving might be
a Dodge Ram.
On the day of the delivery, McCormick kept in close
contact with the police. In the early afternoon she called
to say that she had just spoken with Clark. He had left
Chicago and was traveling southbound on Interstate 55,
she reported, in the same red pickup truck that he
always drove. And he had confirmed that he planned to
take his usual approach into Peoria. At 3:00 p.m. she
phoned the police again to relay that Clark had just
exited Interstate 55 and now was headed west on
Interstate 74. About this same time, an officer who was
stationed where the two highways meet, a little over
30 miles east of Peoria, caught a glimpse of a red pickup
truck on westbound Interstate 74. With Clark’s journey
unfolding exactly as expected, the police back in Peoria
started to prepare for his arrival: a canine unit was put
on standby, ready to proceed to McCormick’s house as
soon as Clark showed up with the cocaine. Then, around
4:00 p.m., McCormick called the police a final time to
tell them that Clark had made it to Peoria. He was
running an errand at a Walgreens on Knoxville Avenue,
she explained, but would be at her house shortly.
Minutes later, an officer conducting surveillance at the
4 No. 10-2254
intersection of Knoxville Avenue and Northmoor Road
spotted a red pickup truck turn west in the direction of
Jayar Drive. Additional officers were lying in wait at
McCormick’s house; within a few seconds they saw a
red Ford pickup pull into McCormick’s driveway, driven
by a man who matched her description of her supplier.
The police approached the truck with guns drawn.
After the driver identified himself as Kenneth Clark, the
officers ordered him to step out of his vehicle. They
conducted a quick pat-down search, put him in hand-
cuffs, and placed him in the back seat of a squad car.
Meanwhile, the canine unit had been summoned to the
scene. No one seems to have a firm grasp on how long
it took for the drug-sniffing dog to arrive; estimates
range from 15 to 30 minutes. In any event, there is no
suggestion that the police dallied. And once the canine
unit got to McCormick’s house, the pace quickened. On
its first lap round the truck, the dog alerted at the
driver’s door; then, when officers let the dog inside the
vehicle, the canine alerted again at the dashboard near
the steering column. The police removed the dashboard
panel to discover, squirreled away inside, a plastic bag
containing 10 ounces of cocaine, just as Clark had prom-
ised. About 4 ounces of the total was crack.
After Clark was charged with violating section 841(a),
he moved to suppress the cocaine found in his truck.
The only argument he made in his written submission
was that, when he arrived at McCormick’s house, the
Peoria police did not have probable cause either to
detain him or to search his truck. The district court
No. 10-2254 5
ruled otherwise, however, and at trial the drugs were,
to no one’s surprise, the centerpiece of the government’s
case.
But the government also presented testimony from
McCormick, who told the jury about her history with
Clark and how she had helped the police reel him in.
Before trial, the district court had denied Clark’s re-
quest to impeach McCormick with questions about her
tumultuous history with a Carolyn Parker. Apparently
the two had been lovers. But the relationship turned
sour, to the point where Parker had obtained an order
of protection from a state court. And as the parties
buckled down to prepare for trial, McCormick was
arrested for violating that order of protection; allegedly
she had been placing salacious notes, accompanied by
sex toys, on Parker’s car. Clark’s lawyer wanted to
bring all this to the jury’s attention. He proffered that
one of the notes, which he had obtained from the police,
included a frank discussion of the pair’s predilection
for using cocaine during sex, an admission, the lawyer
insisted, that contradicted McCormick’s grand-jury
testimony that she did not use drugs at all. Plus,
the lawyer urged, the arrest would call into ques-
tion whether McCormick had breached her cooperation
agreement with the government. And, finally, the lawyer
offered that McCormick allegedly had told one of her
friends that, if Parker had her arrested for violating the
order of protection, she was going to lie to the police
so that Parker would get hauled off to jail too. “What
I’m interested in bringing out,” the lawyer promised
the district court, “has nothing specifically to do with
6 No. 10-2254
[McCormick’s] sexual preferences or . . . the facts of the
allegations.”
To the government, though, this was all just a blatant
attempt to inflame the jury. The district court likewise
thought that information concerning McCormick’s
trouble with Parker would be irrelevant and “extremely
prejudicial” and, accordingly, refused to let Clark ask
any questions about the discord between the two. Never-
theless, the court did permit Clark’s lawyer to question
McCormick about her drug use and the terms of her
deal with the government. And, indeed, during cross-
examination the lawyer extracted an acknowledgment
from McCormick that she was cooperating with the
government only because she had been offered a term
of probation for committing a drug offense that would
otherwise expose her to as much as 30 years’ imprison-
ment and that she had failed to tell her government
handlers all that she knew about the Peoria drug scene,
even though her cooperation agreement required her to
be completely forthcoming. McCormick also conceded
that, notwithstanding her grand-jury testimony, she
and Parker had used cocaine during sex.
II.
Clark has hired a new lawyer to represent him on
appeal and renews his argument that the drugs found in
his pickup ought to have been suppressed. He insists
that McCormick’s information did not give the Peoria
police probable cause to believe he was delivering
drugs when he pulled his truck into her driveway. In
No. 10-2254 7
his view, then, the police lacked the requisite legal basis
on which to arrest him 1 or to search the interior of his
truck. The gist of his argument is that McCormick could
not have been considered a reliable source because she
had never before worked with the police and in fact had
some details wrong. For example, she said that he
would be driving a red Dodge truck, although actually
he drove a red Ford truck, plus she said that he weighed
about 260 pounds, when really he weighed only 200
pounds. And what is more, he continues, the police did
not bother to corroborate some important pieces of
her account.
Picking holes in McCormick’s story and attacking the
officers’ willingness to take her at her word might get
Clark somewhere if McCormick was just an anonymous
tipster or a peripheral player. See Alabama v. White, 496
U.S. 325, 329 (1990); United States v. Harris, 464 F.3d 733,
740 (7th Cir. 2006); United States v. Peck, 317 F.3d
754, 756 (7th Cir. 2003); United States v. Koerth, 312 F.3d 862,
866-68 (7th Cir. 2002). But McCormick was no ordinary
informant; she bought large quantities of drugs directly
1
We shall assume, without deciding, that by approaching
Clark with guns drawn, patting him down, and placing him
in handcuffs, the police effectuated a de facto arrest rather
than a mere investigatory detention under Terry v. Ohio, 392
U.S. 1 (1968). But see, e.g., United States v. Bullock, 632 F.3d 1004,
1016-17 (7th Cir. 2011) (holding that handcuffing defendant,
placing him in squad car, and transporting him to residence
where search was taking place did not transform investiga-
tive detention into arrest).
8 No. 10-2254
from Clark on multiple occasions. Specific information
from a person who has turned on her partner in crime
and told the police about their malfeasance (thus im-
plicating herself as well as her partner) goes a long
way toward establishing probable cause. United States
v. Harris, 403 U.S. 573, 583 (1971); United States v.
Washburn, 383 F.3d 638, 642 (7th Cir. 2004); United States
v. Brown, 366 F.3d 456, 459 (7th Cir. 2004); United States
v. Rosario, 234 F.3d 347, 351 (7th Cir. 2000). In fact, some
of our sister circuits have held that even an uncorroborated
account is sufficient to establish probable cause under
these circumstances. See United States v. Patterson, 150
F.3d 382, 386 (4th Cir. 1998); Craig v. Singletary, 127 F.3d
1030, 1045-46 (11th Cir. 1997) (en banc); United States v.
Chin, 981 F.2d 1275, 1278 (D.C. Cir. 1992) (R. Bader
Ginsburg, J.); United States v. Gaviria, 805 F.2d 1108, 1115
(2d Cir. 1986).
We need not dwell on this possibility, however,
because the Peoria police did corroborate the most sig-
nificant detail of McCormick’s story. They listened in
on her phone call with Clark and heard her place an
order for a significant amount of cocaine to be delivered
to her home by Clark himself in two days’ time; two
days later, Clark showed up on her doorstep just as
he had promised. When Clark pulled his pickup into
McCormick’s driveway, the police had probable cause
to believe that he was fulfilling his end of that bargain;
in other words, they had probable cause to believe that
he was dropping off the order of cocaine. See Illinois v.
Gates, 462 U.S. 213, 244-45 (1983); United States v.
Cruz-Rea, 626 F.3d 929, 939-40 (7th Cir. 2010); United
No. 10-2254 9
States v. Banks, 405 F.3d 559, 570 (7th Cir. 2005); United
States v. Oliva, 385 F.3d 1111, 1114-15 (7th Cir. 2004);
United States v. Walker, 237 F.3d 845, 850 (7th Cir.
2001); United States v. Brack, 188 F.3d 748, 756 (7th Cir.
1999); United States v. Navarro, 90 F.3d 1245, 1253-54
(7th Cir. 1996). We do not agree with, and are given
no support for, Clark’s contention that probable cause
evaporated simply because McCormick’s story contained
two negligible errors. The fact that McCormick mistook
the brand of Clark’s red pickup truck is immaterial
given her otherwise impeccable sketch of the vehicle;
likewise, the fact that she added pounds to his frame
is a minor and, under the circumstances, an understand-
able inaccuracy that does not come close to poisoning
a description that was in all other respects spot-on.
Clark makes additional arguments about the search of
his truck. His contentions about the drug-sniffing dog
are irrelevant, however, in light of our conclusion that
even before the dog was summoned McCormick’s infor-
mation already had given police probable cause to
believe that Clark was transporting cocaine in the vehi-
cle. The police thus had a sufficient basis on which
to search his truck without a warrant. United States v.
Ross, 456 U.S. 798, 809 (1982); see also Arizona v. Gant,
556 U.S. 332, 129 S. Ct. 1710, 1719, 1723-24 (2009) (search
of automobile incident to arrest). As for Clark’s
insistence that police were not permitted to take apart
his dashboard during this search, this argument is
waived because Clark never presented it to the district
court and even now does not suggest that he possessed
“good cause” to excuse his failure to present the conten-
10 No. 10-2254
tion before the deadline for filing pretrial motions. F ED. R.
C RIM . P. 12(e); United States v. Figueroa, 622 F.3d 739,
742 (7th Cir. 2010); United States v. Acox, 595 F.3d 729, 731-
32 (7th Cir. 2010); United States v. Kirkland, 567 F.3d 316,
320 (7th Cir. 2009). And no wonder; the argument goes
nowhere. If the police have probable cause to search a
vehicle for drugs, they may look anywhere drugs could
be stashed. Ross, 456 U.S. at 820-21; United States v.
Goncalves, 642 F.3d 245, 249-50 (1st Cir. 2011); United
States v. Franklin, 547 F.3d 726, 735 (7th Cir. 2008); United
States v. Olivera-Mendez, 484 F.3d 505, 512 (8th Cir. 2007).
They may also allow a dog into the vehicle to sniff for
the presence of narcotics. United States v. Sukiz-Grado, 22
F.3d 1006, 1009 (10th Cir. 1994). Here, once the dog entered
the truck and alerted to the dashboard, the police had
ample grounds to remove the dashboard as part of their
search. See, e.g., United States v. Vasquez, 635 F.3d 889, 894
(7th Cir. 2011) (positive dog alerts to passenger side of
dashboard supported search which discovered hidden
compartment in that area of dashboard), petition for cert.
filed, 80 U.S.L.W. 3098 (U.S. Aug. 8, 2011) (No. 11-199);
United States v. Zucco, 71 F.3d 188, 191-92 (5th Cir.
1995) (positive dog alert to wall of recreational vehicle
supported removal of wall panel, behind which cocaine
was discovered).
We turn next to the question of whether the district
court erred by limiting Clark’s cross-examination of
McCormick at trial. McCormick was the government’s
“key” witness, Clark points out, and her testimony was
mostly uncorroborated. Thus, he insists, he should have
been permitted to ask her questions about her recent
arrest for violating the order of protection that Parker,
No. 10-2254 11
her ex-girlfriend, had obtained against her. He needed
to explore this arrest before the jury, Clark says,
because the incident would have impeached Mc-
Cormick’s credibility and exposed her motive to lie on
the stand. In particular, Clark insists that he should have
been permitted to ask McCormick whether the govern-
ment was willing to give her a break when she was ar-
rested for violating the order of protection—and what
she might have offered the government in exchange
for that leniency. He also contends that he should
have been permitted to ask McCormick whether she
had threatened to lie to the police to get Parker in
trouble, which he says would have revealed to the
jury that McCormick had no qualms about leveling
false accusations against an innocent person.
As an initial matter, we disagree that McCormick’s
testimony was as indispensable to the government’s case
against Clark as he makes it out to be. What doomed
Clark was the 10 ounces of cocaine found inside his
truck, not McCormick’s testimony about how and why
the drugs got there. It is hard to imagine any jury ac-
quitting Clark of possession with intent to distribute
no matter how many peripheral lies McCormick might
have told. The bottom line is that she called Clark, with
police listening in, and asked him to deliver 10 ounces
of cocaine, and he did exactly that. What else did the
jury need to know?
In any event, we do not believe that Clark’s constitu-
tional rights were violated by the district court’s limita-
tion on cross-examination. It is true that the oppor-
tunity to impeach a witness’s credibility and expose her
12 No. 10-2254
motive to lie is at the core of the right guaranteed to
criminal defendants by the Sixth Amendment’s Con-
frontation Clause. Davis v. Alaska, 415 U.S. 308, 315-16
(1974); United States v. Mokol, 646 F.3d 479, 485 (7th Cir.
2011); United States v. Beck, 625 F.3d 410, 417 (7th Cir. 2010),
cert. denied, 131 S. Ct. 2923 (2011); United States v. Martin,
618 F.3d 705, 727-28 (7th Cir. 2010). But the Confrontation
Clause does not give a defendant a boundless right to
impugn the credibility of a witness; the district court still
enjoys “wide latitude . . . to impose reasonable limits on
such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repeti-
tive or only marginally relevant.” Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986). If the defendant already has
had a chance to impeach the witness’s credibility and
establish that she has a motive to lie, then any constitu-
tional concerns vanish and we review the district court’s
decision to limit additional inquiries only for abuse of
discretion. FED. R. E VID. 608(b); United States v. Recendiz,
557 F.3d 511, 530 (7th Cir. 2009); United States v.
Smith, 308 F.3d 726, 738 (7th Cir. 2002); United States
v. Saunders, 166 F.3d 907, 918-19 (7th Cir. 1999).
Because the jury in this case heard plenty about
McCormick’s motives and biases, more than enough to
make a critical assessment of her credibility, we conclude
that the district court did not abuse its discretion by
forbidding Clark’s lawyer to bring up McCormick’s
recent tiff with Parker. See Kentucky v. Stincer, 482 U.S.
730, 739 (1987); United States v. Linzy, 604 F.3d 319, 323-24
(7th Cir. 2010); United States v. McLee, 436 F.3d 751, 761-62
No. 10-2254 13
(7th Cir. 2006); United States v. Nelson, 39 F.3d 705, 708
(7th Cir. 1994). This line of questioning was highly in-
flammatory yet only barely relevant. Clark insists that
pressing McCormick about this incident was necessary
to expose not only her motive to embellish her accusa-
tions against Clark in exchange for leniency but also
her penchant for lying to the police when it suited her
interest. But Clark’s lawyer ably alerted the jury to both
of those concerns. Indeed, the lawyer aggressively chal-
lenged McCormick on the witness stand, peppering
her with questions about her lengthy criminal history
and the generous deal she had made with the govern-
ment in exchange for her testimony. The lawyer got
McCormick to concede that she had not been entirely
honest with the government, notwithstanding the fact
that her cooperation agreement required her to divulge
all she knew about the Peoria drug scene. What is
more, the lawyer even had the opportunity to quiz
McCormick about her sexual escapades with her ex-
girlfriend and to juxtapose Parker’s “topical” use of
cocaine during their romantic encounters with Mc-
Cormick’s grand-jury testimony that she never had used
illegal drugs. In short, Clark’s lawyer got his point
across. To permit him to hammer home that point by
asking whether McCormick had violated an order of
protection when she left intimate letters and sex toys
on Parker’s windshield not only would have been re-
dundant but, worse, would have reduced the pro-
ceedings to a sideshow. The Constitution does not
require courts to allow this sort of meaningless spectacle.
14 No. 10-2254
III.
We have said all there is to say about the merits
of Clark’s appeal, but one glaring issue remains to be
addressed: the conduct of Clark’s appellate lawyer,
Michael Finn. At the last minute he refused to show up
for oral argument and, despite numerous opportunities,
has failed to offer any explanation—or even drop a hint—
as to why he abandoned Clark at that critical moment.
See In re Riggs, 240 F.3d 668, 671 (7th Cir. 2001) (“Abandon-
ment of one’s (imprisoned) client in a criminal case is
one of the most serious offenses a lawyer can com-
mit . . . .”); United States v. Adeniji, 179 F.3d 1028, 1029-30
(7th Cir. 1999); In re Mix, 901 F.2d 1431, 1432 (7th Cir.
1990). On the morning he was scheduled to argue
this appeal, Finn telephoned our Clerk’s Office and an-
nounced that he would not be appearing in court
after all. And that is all he said. We told the Clerk’s Office
to instruct Finn that his presence was required, but
Finn neglected to answer his phone and declined to
return voice messages left by court staff. We then issued
a written order directing Finn to show cause why he
should not be disciplined for skipping oral argument,
and still he failed to explain himself. In fact, in his
response he concedes that he was capable of partici-
pating in oral argument and that he “should have” done
so. (It is worth noting too that Finn’s office is cater-
corner from the courthouse in downtown Chicago; only
a couple hundred feet separate his door from our door.)
Nevertheless, Finn has proposed that, in lieu of punish-
ment, we ought to allot him a chance to “correct” his
No. 10-2254 15
bad behavior, although he has left it to us to figure out
just how the damage could be undone.
Missing oral argument, however, was not Finn’s only
misstep. In our order to show cause, we also directed
him to explain his noncompliance with Circuit Rule 30(a),
which commands lawyers to submit, in an appendix
accompanying the main brief, a copy of “the judgment
or order under review and any opinion, memorandum
of decision, findings of fact and conclusions of law, or
oral statement of reasons delivered by the trial court or
administrative agency upon the rendering of that judg-
ment, decree, or order.” The appendix Finn submitted
lacked a transcript of the district court’s ruling on
his client’s motion to suppress; all that Finn included
was a copy of the docket sheet. “We cannot imagine
counsel might believe that we could review a denial of
a motion to suppress without having an inkling of the
district court’s findings of fact or conclusions of law.”
United States v. Stribling, 94 F.3d 321, 325 (7th Cir. 1996).
Worse still, Finn had falsely certified that he did abide
by Rule 30’s requirements. See United States v. Patridge,
507 F.3d 1092, 1096 (7th Cir. 2007) (“This court reg-
ularly fines lawyers who violate Circuit Rule 30 yet
falsely certify compliance . . . .”); United States v. Rogers,
270 F.3d 1076, 1084-85 (7th Cir. 2001); In re Galvan, 92
F.3d 582, 584-85 (7th Cir. 1996). The rule is unambiguous,
and Finn does not contend otherwise. He chalks up
his noncompliance to his limited experience practicing
before this court, but his unfamiliarity with our rules is
all the more reason why he should have given them
careful study before preparing his main brief. Nothing
16 No. 10-2254
suggests that Finn did; surely no one who had read
the rule could have thought that a docket sheet was
sufficient.
We conclude that Finn has acted unprofessionally
and that a public censure is in order. See Redwood v. Dobson,
476 F.3d 462, 470 (7th Cir. 2007) (citing In re Charges of
Judicial Misconduct, 404 F.3d 688, 695-96 & n.3 (2d Cir.
2005)) (explaining that censure is a more “opprobrious”
sanction than a reprimand or an admonishment). We
also fine Finn $1000, payable to the Clerk within 14 days.
To leave a client unrepresented on the morning of oral
argument is nothing short of appalling; that Finn seems
to have tossed Clark to the wind just because he did
not feel like showing up in court is simply astonishing.
And Finn’s thoughtless approach to preparing his main
brief likewise is inexcusable. Other clients, present or
potential, ought to be aware. And because we have
no desire to inflict upon anyone a lawyer with such
a cavalier approach to the duties owed his clients, we
will refrain for 24 months from appointing Finn to any
appeals under the Criminal Justice Act. At that point,
Finn may apply to be reinstated to the roll of eligible
lawyers. Finally, we direct the clerk of this court to
send a copy of this opinion to the Attorney Registration
& Disciplinary Commission of the Supreme Court of
Illinois to determine whether additional sanctions are
appropriate.
The judgment is affirmed, sanctions are imposed,
and directions are issued.
9-15-11