U.S. v. Hamilton

• Decision Date: 10 January 1983
• Docket Number: 81-5831,Nos. 81-5826,81-5838 and 81-5839,s. 81-5826
• Citation: 689 F.2d 1262
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: 11 Fed. R. Evid. Serv. 1952 UNITED STATES of America, Plaintiff-Appellee, v. Sterling HAMILTON, Scotty Hamilton, Anthony Bryan Salisbury and Earl Wayne Wright, Defendants-Appellants.

Page 1262

689 F.2d 1262

11 Fed. R. Evid. Serv. 1952

UNITED STATES of America, Plaintiff-Appellee, v. Sterling HAMILTON, Scotty Hamilton, Anthony Bryan Salisbury and Earl Wayne Wright, Defendants-Appellants.

Nos. 81-5826, 81-5831, 81-5838 and 81-5839.

United States Court of Appeals, Sixth Circuit.

Argued June 16, 1982.

Decided Sept. 28, 1982.

Certiorari Denied Jan. 10, 1983.

See 103 S.Ct. 753.

William D. Kirkland, Zaluski, Seay & Kirkland, Frankfort, Ky., for defendants-appellants.

Joseph Famularo, U. S. Atty., Thomas Self, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee.

Before LIVELY and KEITH, Circuit Judges, and WEICK, Senior Circuit Judge.

WEICK, Senior Circuit Judge.

In the district court, the four defendants now before us on appeal were convicted by a jury and sentenced for conspiring to engage in the business of dealing in explosives without a federal license in violation of 18 U.S.C. Section 371. Three of the defendants Earl Wright, Anthony Salisbury and Sterling Hamilton, were also convicted and sentenced on the underlying substantive offense, pursuant to 18 U.S.C. Section 842(a)(1), and on various other violations of 18 U.S.C., Chapter 40 (Importation, Manufacture, Distribution and Storage of Explosive Materials). For the reasons set forth herein, we affirm the judgments of conviction.

I.

Taking the view most favorable to the government, Glasser v. U. S., 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941), in considering the sufficiency of the evidence, and the inferences drawn therefrom, the following facts were revealed: In March of 1980, Earl Wayne "Mussie" Wright approached Birchel Reid about making some money by stealing a mining scoop and selling it to Sterling Hamilton, a small coal operator in Kentucky. Reid agreed. Hamilton was told that the equipment was available from a mine that was going out of business and Hamilton indicated he would buy the scoop. Reid and Wright took one of Hamilton's employees to inspect the machine, but that nighttime excursion was abruptly terminated when a watchman fired a shot into the air from behind a locked gate at the site. Consequently, alternate plans were devised and Hamilton agreed to purchase a load of explosives instead. Sixty cases of dynamite and twelve cases of electric blasting caps were stolen from the storage trailers of Elkhorn Explosives, Inc., in Floyd County, Kentucky, and were delivered in Wright's truck, in three loads, to Sterling Hamilton at his home between one a. m. and dawn on the night of March 27, 1980. Hamilton paid the two a total of $1500, $20 a case for the dynamite (worth $25 a case) and $25 a case for the caps (worth $395 a case). So Hamilton paid $1500 for this shipment that was reasonably worth about $6,240. The transaction was all in cash. All of this proves conclusively that Hamilton knew the shipment was stolen. Hamilton also knew he was not purchasing the explosives from a licensed dealer.

In mid-April Wright and Reid visited Hamilton again and he ordered an additional hundred cases of dynamite for $1500, five dollars less a case than the first order. This time the dealing was more straightforward. Hamilton was informed that the "powder", as it is referred to in the trade, might be "hot". He replied, "I don't give a damn if it's so hot it blows up before I get it inside the mines.... You know you are dealing with the Federal." Wright countered, "We know." There was no representation this time that the powder was surplus from a defunct mine.

A few days later, Reid and Wright talked with Anthony Salisbury, who indicated that he wanted to make some fast money. Reid and Wright were willing to accommodate him and eventually Salisbury, at a meeting in an empty trailer he owned, agreed to participate in the heist. In order to maintain a healthier profit margin for themselves, however, the original partners told Salisbury that Hamilton was only offering $1000 for the hundred cases of powders. James E. Turner, Jr., a co-defendant who was eventually acquitted, was also allegedly part of this second scheme. Turner was to receive only $60 for being a "helping hand". The prior theft was not mentioned at first to the new accomplices and Salisbury was not so informed, much to his concern, until the evening of the heist.

On April 27, Wright's girlfriend rented a large truck for the venture with a hundred dollars advanced by Hamilton for that purpose. That night, Reid, Wright, Salisbury and Turner broke into Elkhorn Explosives and made off with 200 cases of dynamite. (Turner, described as "a little guy", turned out to be a helping hand indeed as he handled the majority of the fifty pound cases.) One hundred of the cases were kept in reserve in Salisbury's trailer with the intent that they could be sold later to Hamilton, the other hundred were then delivered to Hamilton, again at his home. No payment was received for this shipment, although Hamilton had promised that he would give the men cash when payday came at his mine.

The reserve cache remained at Salisbury's only three or four days before it was transferred to a nearby hollow, partially because the "heat was coming down pretty heavy" and partially because Salisbury wanted to move into his trailer and the weight of the dynamite had been buckling its floors. The hollow turned out to be an improvident hiding place, however, as the cases were discovered there the very next day, by a man picking "polk berries", and were turned over to the State Police and to the United States Treasury Department, Bureau of Alcohol, Tobacco and Firearms (ATF). Reid's fingerprints were discovered on one of the cases, which led to his arrest on July 18, 1980, and to his three-count, grand jury indictment on July 23, 1980.

After his indictment, Reid and his attorney entered a plea bargain agreement with the United States Attorney, whereby the government agreed to drop two counts and allow Reid to enter a guilty plea for only the charge of improper storage of explosives in exchange for his cooperation in the government's investigation of this case. Reid consented to be "wired" for future conversations with Hamilton, Wright and Salisbury, to provide evidence for the government. On August 9, Reid gave a formal statement to ATF agent Dennis McCallister, who would later have his secretary type it from his notes and memory for Reid's signature. On August 14, Reid talked with Salisbury and Hamilton, as well as with Hamilton's son Scotty, Hamilton's partner in the mine. On August 26, Reid had his conversation with Wright. On that same day Reid also signed his typewritten statement, after making minor corrections on it. (This was the first date that McCallister had a chance to return to Pikeville from his office in Ashland after the statement was typed.) All the conversations with Reid's former partners were taped on a small recorder hidden on Reid's person; he was also fitted with a microphone and assembly that transmitted his conversations to McCallister and other agents in a vehicle nearby. On September 11, 1980, Reid entered his guilty plea.

Although the government gave Reid tips on how best to obtain admissible evidence, he claimed he used largely his own innovation. Regardless, the fishing expedition proved to be more successful than anticipated, for on Reid's initial outing he encountered Scotty Hamilton while expecting only to meet Scotty's father, Sterling Hamilton. Scotty effectively cooperated as he brought up the topic of the explosives himself and in fact ordered sixty cases of dynamite and some blasting caps for a Saturday night delivery, on a cash basis, without any prompting from Reid. Scotty revealed knowledge of the prior dealings and said, regarding the government authorities, "we can't let them know." Before Reid would head for other subjects, Scotty said that he and his father would take almost any kind of mining supplies and added "we'll give you the green when youn's put her over. Might save us a lot of money and that puts money in your guys pocket."

Scotty left the scene as his father entered it. Hamilton, a self-starter much like his son, also brought up business on his own initiative. Reid introduced the matter of money due for the second delivery of powder, but Hamilton contended, amid recountings of the past transactions and events, that Wright and Salisbury had received all the money and that he had even paid Wright an extra hundred dollars "when he was hidin out." Hamilton also volunteered that Wright and Salisbury were to have delivered a two ton electric chain horse the previous Friday. He continued, concerning the more recent transaction, "I don't know whether you was involved in that or whether, but they didn't bring it though now.... So they wanted some money and I said now hoss, just bring it over and I'll give ya cash. Cause we're operatin on cash basis". Hamilton continued, "So if you bring me dynamite, ... when you unload, cash." He stated that the previous loads had all been used, that every "box was burnt and there's no proof, there's no evidence", and that he was willing to buy additional mining supplies of most any sort.

With that productive outing under his belt, Reid visited Salisbury later the same evening. In response to Reid's query about money, Salisbury stated, among other things, that he never received any for his part in the deal and that he felt it was either uncollectable or that Wright had the money and was pulling a fast one. However, Salisbury did say that he would go see Hamilton to try to get some of the money for all his trouble.

After a twelve day respite, Reid approached his remaining target and dangled, before Wright, Hamilton's assertion that Wright receive the money for the second delivery of explosives. Wright denied that and suggested they all confront Hamilton together to collect their money. He even suggested to Reid an alternative means of collection: "I'll grab ahold of the little scrawny ______ and choke him...