538 F.3d 162 (2nd Cir. 2008), 06-2933, United States v. Hamilton

Docket Nº:06-2933-cr.
Citation:538 F.3d 162
Party Name:UNITED STATES of America, Appellee, v. Horatio HAMILTON, Defendant-Appellant.
Case Date:August 15, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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538 F.3d 162 (2nd Cir. 2008)

UNITED STATES of America, Appellee,


Horatio HAMILTON, Defendant-Appellant.

No. 06-2933-cr.

United States Court of Appeals, Second Circuit.

August 15, 2008

Argued: Sept. 26, 2007.

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Jocelyn E. Strauber, Assistant United States Attorney, Southern District of New York (Jacob W. Buchdahl, Diane Gujarati, Assistant United States Attorneys, of counsel; Michael J. Garcia, United States Attorney, on the brief), New York, NY, for Appellee.

Diarmuid White, White & White (Brendan White, on the brief), New York, NY, for Defendant-Appellant.

Before LEVAL, SOTOMAYOR, and KATZMANN, Circuit Judges.

LEVAL, Circuit Judge:

Defendant Horatio Hamilton appeals from the judgment of the United States District Court for the Southern District of New York (Chin, J.) convicting him, after a jury trial, of conspiracy to distribute, and possess with intent to distribute, more than 1,000 kilograms of marijuana, in violation

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of 21 U.S.C. § 846. Hamilton was sentenced to 25 years' imprisonment, ten years' supervised release, and the forfeiture of $10,000,000 plus any interest in a house associated with the conspiracy. He challenges the conviction on five grounds. He contends that the court erred (1) in denying his motion to suppress evidence seized from a house in which he claimed a privacy interest on the ground that he lacked standing; (2) in receiving hearsay testimony; (3) in receiving expert opinion testimony without establishing the qualifications of the expert; (4) in instructing the jury on accomplice testimony without sufficient explanation of the witness's interest and motive to testify falsely; and (5) in placing the burden of showing withdrawal from a conspiracy on the defendant. While we reject most of the defendant's claims, we agree that the court could not properly deny the suppression motion on the grounds given without conducting a hearing. We remand for further proceedings.


I. The Evidence

The evidence presented at Hamilton's trial, seen in the light most favorable to the government, see Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), showed the following.

a. Hamilton's 1999 Arrest

On October 11, 1999, the Los Angeles Police Department arrested Hamilton and another man at Los Angeles International Airport with 3,640 pounds (about 1,650 kilograms) of marijuana. Hamilton and his partner had brought the drugs to the Continental Airlines cargo facility for shipment to Newark, New Jersey. The marijuana was wrapped in plastic and packed into styrofoam-lined cardboard boxes marked “Apel Electronics." At the time of his arrest, Hamilton was carrying the business card of Steve Garrigan, an employee of Box Brothers in Redondo Beach, California. He was also carrying a key card for the Le Parc Suites Hotel. At the time, Hamilton was using an alias-“Tony Dumars" -and was carrying an Ohio driver's license in that name.

A Continental Airlines employee testified that Hamilton had regularly shipped boxes marked “Apel Electronics" from Los Angeles to Newark for six months to a year preceding his arrest in October 1999. Steve Garrigan, the Box Brothers employee whose card Hamilton had carried, testified that during 1998 and 1999, a group of men with Carribean accents regularly purchased cardboard boxes with styrofoam lining, plastic wrap, packing peanuts, and spray adhesive. In 1998, Garrigan had sold them a large rubber stamp to print the words “Apel Electronics" on the boxes. The men continued to buy boxes from Garrigan until the middle of 2000.

Following his arrest, Hamilton was charged under the name of Tony Dumars for possession of the seized marijuana. On November 3, 1999, he was released on bail. A warrant was issued for his arrest when he failed to appear in court as ordered on March 28, 2000. On April 6, 2000, Hamilton acquired a new driver's license from the State of Florida, this time under the name “Romie Robertson."

b. Hamilton's Drug Trafficking Subsequent to the 1999 Arrest

Denise Pinnock, an accomplice witness, testified that Hamilton continued to engage in drug trafficking after his arrest in October 1999. Pinnock knew Hamilton because Hamilton was a partner in the marijuana business of Pinnock's boyfriend, Duwayne John. Pinnock met Hamilton, whom she knew by the alias Romie, in 1997 or 1998 at the Los Angeles house of a man

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named Ade. Pinnock explained that Hamilton packaged marijuana in Ade's house for shipment to the East Coast.

Pinnock's role in the conspiracy was to operate stash houses in the Bronx where marijuana was stored and distributed in smaller quantities to customers. She explained that the marijuana was shipped from Los Angeles to Newark and then driven in U-Haul vans to various locations in the Bronx. Pinnock testified that she saw Hamilton at one of the Bronx stash houses four or five times after she moved there in 1999. On one occasion, Hamilton was present when a shipment of marijuana came in; on another, he gave Pinnock three pounds of marijuana to sell on her birthday. Once, she saw Hamilton pay Duwayne John's brother Irky $500 in the basement of one of the stash houses after Irky helped unload a shipment.

On at least two occasions subsequent to Hamilton's arrest in October 1999, Pinnock observed Hamilton's involvement in receiving drug proceeds sent back to the West Coast. Pinnock herself delivered the cash to the Le Parc Suites Hotel in Los Angeles three or four times. On one occasion, Pinnock saw Hamilton when he came to Le Parc Suites to meet Duwayne John the morning after Pinnock gave John the money. On another occasion, John called Pinnock to find what room she was staying in, and Pinnock could hear John relaying the information to Hamilton on a separate phone.

c. The Search of the Toquet House

On January 29, 2004, police officers from the City of Burbank in Los Angeles working on a drug interdiction task force came across a suspicious package at the Federal Express sorting facilities in the San Fernando Valley, California. The package was addressed to a “Mandy Cook" 1 at 17338 Toquet Drive (the “Toquet House" ) in Encino, California, a suburb of Los Angeles. The police called the contact number listed for Mandy Cook on the shipping label and reached the Le Parc Suites Hotel, but no person with the name Mandy Cook could be reached.

The officers decided to conduct a controlled delivery of the package. The Toquet House was located on a cul-de-sac in an upscale neighborhood. When the police arrived, they found five men standing in the driveway, one of whom was Hamilton, still using the name Romie Robertson. One of the police officers identified himself and asked the men if they knew who lived in the house. The men stated that they did not live in the house and did not know who did, but one of them told the officers that a “Shane Johnson" owned the house. One of the men 2 provided Shane Johnson's phone number. The police did not find anyone named Mandy Cook, the addressee of the FedEx package at the house.

The officers asked if there was anyone else inside the house, and received a response that someone named “Slick" was inside. The officers noticed that multiple doors to the house were open, including a sliding glass door. They called out to Slick and, upon receiving no response, entered the house. The officers came upon a man lying in bed in one of the bedrooms. He identified himself as “Mark Handsom" but later stated his true name was Raymond

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Foster. Foster consented to have the officers search the house. The search turned up three loaded firearms and approximately nine pounds of marijuana, as well as a pile of empty cardboard boxes, packing materials, ten to fifteen jars of petroleum jelly,3 large plastic tubs that smelled of marijuana, and a photo identification in the name of “Mark Hibbert." The house had four bedrooms and was sparsely furnished, with a bed in three of the four bedrooms, and a couch, pool table, and TV in the living room.

While the police were conducting the search, a second package was delivered by UPS. It was addressed to an “Allison Ramsey" and bore the same addressee's phone number as was listed for Mandy Cook on the FedEx package. The package had been sent from a suburb of Atlanta, Georgia. The men said that they were expecting neither the FedEx nor the UPS package. Detective David Kleinfeld later obtained a search warrant for both packages, and found $36,000 cash in one and $35,000 in the other. The reactions of trained dogs to the smell of the currency was interpreted by the dog handlers as identifying the smell of narcotics.

After the UPS package arrived, two other men approached in a green Hummer, but quickly tried to drive off when they spotted the police in the cul-de-sac. The police stopped the vehicle and identified the driver as Ade Adeoye, the man Pinnock had identified as the owner of the house where she first met Hamilton. The police searched the vehicle but did not find any contraband.

The Toquet House was registered at the time of the search to Shane Johnson, who was Hamilton's girlfriend and the mother of his child.

d. Hamilton's Arrest in 2005

In mid to late 2003, DEA Special Agent Eric Baldus attempted to locate Hamilton by checking Hamilton's criminal history and inquiring among informants. He testified that he received “information" that Hamilton was living with his girlfriend “Shane" on “Toquet Street." Tr. 597. Using a DEA database, Baldus later learned of the January 2004 search of the Toquet House, and discovered that someone named Romie Robertson who fit the description of Hamilton had been detained at the scene. In late 2004, Baldus obtained a...

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