U.S. v. Hunter

• Decision Date: 09 March 2009
• Docket Number: No. 07-3698.,07-3698.
• Citation: 558 F.3d 495
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher J. HUNTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

558 F.3d 495

UNITED STATES of America, Plaintiff-Appellee, v. Christopher J. HUNTER, Defendant-Appellant.

No. 07-3698.

United States Court of Appeals, Sixth Circuit.

Argued: January 22, 2009.

Decided and Filed: March 9, 2009.

ARGUED: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before: MARTIN and MOORE, Circuit Judges; GWIN, District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Christopher Hunter was convicted of possession of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); conspiracy to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846; possession of a firearm in furtherance of a drug crime, in violation of 18 U.S.C. § 924(c)(1); and for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He now appeals.

Hunter makes eleven assignments of error:¹ (1) that the court constructively amended count three of the indictment in giving jury instructions, or alternatively, that count three fails to state a federal offense; (2) that there was insufficient evidence to convict him of count one; (3) that the government failed to prove possession in counts two, three, and four; (4) that the court abused its discretion in admitting a photo of Hunter holding a gun; (5) that the Government knowingly used false testimony at trial; (6) that the court abused its discretion in failing to instruct the jury on how to convert ounces to grams; (7) that the Government improperly published a summary chart to the jury; (8) that the court committed clear error in finding at sentencing that the conspiracy involved in excess of fifty kilograms of cocaine; (9) that his counsel at sentencing had a conflict of interest; (10) that the district court improperly calculated his criminal history; and (11) that the court abused its discretion in failing to grant a hearing on ineffective assistance of counsel.

We REVERSE Hunter's conviction and sentence for violating 18 U.S.C. § 924(c)(1), but we AFFIRM Hunter's other convictions and sentences. Accordingly, we REMAND for such further proceedings consistent with this opinion as are necessary.

I.

In 1998, Christopher Hunter began selling cocaine in Dayton, Ohio, aided by an acquaintance named Michael "Magoo" Stafford. The pair worked out of Stafford's home, selling about an ounce of cocaine a week, with Hunter acquiring and packaging the cocaine and Stafford delivering it to customers. Hunter's operation expanded in 2000, when he and Stafford rented an apartment on Fair Oaks with another acquaintance, Jimmy Vroom. The trio sold one to two ounces of cocaine a week from this location. Six to eight months later Hunter and Stafford moved to a place on Hudson, where they continued to sell cocaine. In 2002, Hunter and Stafford rejoined Jimmy Vroom at a house on Parkwood Drive. During this time, they were receiving an ounce or two of cocaine a day, and they had begun to process and repackage the cocaine themselves. This involved cutting the cocaine with another substance, putting it in a blender, wrapping the mixture into baggies, and pressing the bagged cocaine to harden it. The hardened cocaine was then broken into "rocks" and sold.

The men changed locations a number of times in the two years that followed, and Hunter brought in acquaintances Ricky Rainwater, Mike Williams, Mark "Big Mark" Williams, Johnny Baker, and Amy Fredricks to aid in distribution. Hunter's operation expanded to three to four ounces of cocaine a day by 2004. Throughout this time, Hunter carried a gun for protection.

Police began investigating Hunter's organization in April 2004, and a confidential informant made a controlled buy from Hunter and Amy Fredricks at Hunter's Linden Avenue apartment on April 30. When asked about selling four to five ounces at a future date, Hunter responded, "no problem." Based upon this, police obtained a warrant to search Hunter's residence on Gunckel Avenue, where they found Hunter, sitting with a gun nearby, Stafford, a man named Eric Hale, as well as a blender, a press, a scale, and crack cocaine in plastic baggies. Hunter was taken into custody but was later released. He then resumed selling cocaine from a place on Watervliet Avenue with his new girlfriend, Amanda Ward, and Hale. In early 2005, Hunter and Ward moved to an apartment on Maple Avenue in Centerville.

On March 23, 2005, Hunter and Ward went to the Microtel Hotel in Riverside. They checked in under Ward's name but paid with Hunter's cash. Hunter brought a large red cooler bag of cocaine into the room, as well as a press, coffee creamer (to cut the cocaine), and his gun. Once inside their room, Hunter began to mix and press cocaine; Ward passed out on the bed. Later in the evening, Hunter left the room to deliver cocaine to Ricky Rainwater in the stairwell outside. In doing so, he forgot his room key and locked himself outside. Ward, still asleep, did not answer her cell phone, so Hunter called Rainwater, who sent a friend to pick Hunter up. He also called Stafford to explain the situation. Around this time, local police received an anonymous tip that drugs were being sold or used in the hotel room Hunter and Ward had rented, and two officers arrived on the scene to investigate. When they knocked on the door, Ward answered. Upon searching the room, the officers discovered the cocaine and the gun. At this time, Ward told officers that her boyfriend, Christopher Hunter, would be back soon and would explain everything. To corroborate her story, Ward showed police a tattoo of his name on her neck and photographs of them together that she kept in her purse. A short while later, Hunter returned to the scene, riding shot-gun in a car driven by a friend. He told officers that he did not know anyone named Amanda Ward, and police then let him go.

A month later, Ward was stopped for a traffic infraction and caught with a bag of cocaine. Police then obtained a search warrant for Ward and Hunter's apartment on Maple Avenue, and searched the apartment later that night. They found Hunter, Stafford, a scale with cocaine residue, creatine (a legal substance sometimes used for cutting cocaine), a white substance believed to be cocaine, and $1,035 in cash. The investigation was then turned over to the ATF, which secured the cooperation of Johnny Baker against Hunter. Through Baker's cooperation, ATF agents recorded a number of telephone conversations with Hunter and the members of his organization, and made several controlled buys from them. Stafford, Rainwater, Big Mark Williams, Jimmy Vroom, and Hunter all participated in the various deliveries. The ATF then obtained a warrant for Hunter's arrest, and arrested him on November 8, 2005. A subsequent search of Hunter's apartment recovered cocaine, notes recording drug transactions, and a letter from Amanda Ward addressed to him.

A grand jury in the Southern District of Ohio indicted Hunter for conspiracy to distribute more than five kilograms of cocaine, possession of cocaine with intent to distribute, possession of a firearm in furtherance of a drug crime, and for being a felon in possession of a firearm. A superceding indictment added a co-defendant, who pleaded guilty. Hunter pleaded not guilty and proceeded to trial, where almost all of his known associates testified against him, including Amanda Ward, Mark Williams, Mike Williams, Johnny Baker, Ricky Rainwater, and Michael Stafford. The jury found Hunter guilty on all four counts. Hunter then filed a motion for judgment of acquittal or for a new trial, which the district court denied. Hunter filed a similar motion pro se about eight months later; the district court denied that motion as well.

Hunter's trial counsel withdrew prior to sentencing, and new counsel was appointed to represent him during sentencing. Hunter's new counsel notified the court of a potential conflict of interest in representing Hunter, and the court held a hearing to address this issue. At that hearing, the court informed Hunter of his rights and allowed Hunter to waive any potential conflict. The district court then sentenced Hunter to 360 months for count one, a concurrent term of 240 months for count two, a concurrent term of 120 months for count four, and a mandatory consecutive term of 60 months for count three for a total of 420 months. Hunter now appeals.

II.

Hunter makes eleven assignments of error: (1) that the court constructively amended count three of the indictment in giving jury instructions, or alternatively, that count three fails to state a federal offense; (2) that there was insufficient evidence to convict him of count one; (3) that the Government failed to prove possession in counts two, three, and four; (4) that the court abused its discretion in admitting a photo of Hunter holding a gun; (5) that the Government knowingly used false testimony during his trial; (6) that the court abused its discretion in failing to instruct the jury on how to convert ounces to grams; (7) that the Government improperly published a summary chart to the jury; (8) that the court committed clear error in finding at sentencing that the conspiracy involved in excess of fifty kilograms of cocaine; (9) that his counsel at sentencing had a conflict of interest; (10) that the district court improperly calculated his criminal history; and (11) that the court abused its discretion in failing to grant a hearing on ineffective assistance of counsel.

1. Sufficiency of the Indictment and Constructive Amendment

Hunter argues that the district court constructively amended the indictment when it instructed the jury on count three, possession of a firearm in furtherance of a drug trafficking offense under 18 U.S.C. § 924(c...