U.S. v. Hamell
| Decision Date | 18 June 1991 |
| Citation | 931 F.2d 466 |
| Parties | UNITED STATES of America, Appellee, v. Gary HAMELL, a/k/a Gary Hamell-el, Appellant. UNITED STATES of America, Appellee, v. Douglas WILLIAMS, Jr., Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ronald Norwood, St. Louis, Mo., for appellant Hamell.
James Knappenberger, Clayton, Mo., for appellant Williams.
Michael Fagan, Asst. U.S. Atty., St. Louis, Mo., for appellee.
Before LAY, Chief Judge, BRIGHT, Senior Circuit Judge, and Van Sickle, * Senior District Judge.
Gary Hamell and Douglas Williams, Jr., who have been convicted of narcotics offenses following a joint jury trial, appeal their convictions and claim a number of errors were committed at that trial in admission of evidence, jury instructions and trial procedures. After review of the record, we reject the contentions of error and affirm.
A St. Louis County Police Sergeant, Frazier Garner, was patrolling in a marked police car on October 6, 1988. As he approached a restaurant parking lot he observed two cars parked side by side and saw defendant Williams go to the car occupied by defendant Hamell, hand over what the officer thought was a roll of money and receive a clear plastic bag in return. The defendants then noticed the officer and started to leave. Sergeant Garner pulled his car in front of the defendants' cars, forcing them to stop. The officer saw Williams and the female driver of his car, Stephanie Drinker, both bend down in the seat as if hiding something.
Sergeant Garner got out of his car, drew his revolver, and ordered the three of them out of their cars. After they were out he asked them for identification. While Williams was arguing with Garner, Hamell sidled to the rear of one of the cars and Sergeant Garner saw him throw something to the ground. Garner then ordered the three of them to lie down and he recovered two bags which Hamell had thrown behind the car. These bags contained cocaine. He then arrested all three, read them their Miranda rights and frisked them. He recovered $1200 in a roll and two more bags of cocaine from Hamell's front pocket. Police later recovered a packet of cocaine that was stuffed down the front of Drinker's slacks.
The total quantity of cocaine seized was 82 grams. All of this cocaine was 95 percent pure and if cut to 30 percent purity, as is generally done, had a street value of over $20,000.
All three were indicted and tried together. Drinker was convicted of one count of possession of cocaine and was sentenced to two months imprisonment and one year of supervised release. Hamell was convicted of one count of conspiracy to distribute cocaine, one count of distributing cocaine and one count of possession of cocaine with intent to distribute. He received a sentence of 242 months imprisonment and three years supervised release on each count, the sentences to be served concurrently. Williams was convicted of conspiracy to distribute and possession with intent to distribute, and acquitted on a charge of distribution, and received a sentence of 27 months imprisonment and three years supervised release on each count, to be served concurrently.
Prior to the trial defendants moved to suppress certain evidence. The magistrate held a hearing on this motion and recommended that it be denied. The district court adopted the magistrate's recommendation and denied the motion. Defendants Hamell and Williams appeal from the conviction, alleging various errors.
Hamell contends that:
1. The district court erred in that it did not give the report of the magistrate a complete de novo review.
2. The evidence seized at the scene should have been suppressed at the trial in that its seizure was unconstitutional because Officer Garner did not have sufficient cause to make either an investigatory stop or an arrest.
3. The government's actions in destroying potentially exculpatory evidence mandates dismissal of the charges.
4. The trial court should have allowed into evidence certain memos evidencing bias on the part of the police.
5. The trial court should have received in evidence a letter allegedly written by Drinker to her boyfriend in which she recants her grand jury testimony and denies that there was a drug deal.
6. The trial court should have given defendant's requested instruction relative to the proof needed to convict of conspiracy.
Williams contends that:
1. He joins with Hamell in the claim that the Drinker letter should have been received in evidence.
2. He had offered two suggested jury instructions which should have been given.
The statute providing for referral to a magistrate, 28 U.S.C. Sec. 636, requires that before adopting a magistrate's report where there has been objection, the district court must review the matter de novo. This court has recently overturned several district court's adoptions of magistrate's reports for failure by that court to do a de novo review. Nabors v. United States, 929 F.2d 354 (8th Cir.1990); Taylor v. Farrier, 910 F.2d 518 (8th Cir.1990); Branch v. Martin, 886 F.2d 1043 (8th Cir.1989). While some language used in those decisions may suggest that a district judge must affirmatively state that he has read the transcript, a critical reading of those cases shows that there was not a transcript in existence at the time of the adoption by the district court and that the district court in those cases could not have conducted a complete de novo review. Here the transcript of the hearing was available after early June, 1989, and the district court's order adopting those recommendations was filed on November 3, 1989.
To hold that this case must be remanded solely because the district court did not specifically state that it had done a complete de novo review would, in effect, create a presumption that the district judge acted improperly. Such a presumption would clearly be improper and we decline to reach a decision that will result in its creation. Rather, we hold that the rule is that where an objecting party is able to make a prima facie case that there was not a de novo review, the onus shifts to the other party to show that there was a complete review. However, where there is no indication that the review failed to comply with the statute, this court will not presume error. Rather, in the absence of any evidence to the contrary, we presume that the review was done properly and affirm the district court's approval of the magistrate's recommendation.
Hamell argues that when Officer Garner ordered the defendants out of their car he effected their arrest; that this arrest was illegal because it was done without probable cause; and that the resulting seizure of the money and cocaine violated their constitutional rights since it was incidental to an illegal arrest. For these reasons, he contends, this evidence should have been suppressed.
Officer Garner was an experienced and trained police officer with over 20 years of experience at the time of the incident. He observed a transaction that he thought was a drug sale. When he began to investigate further he observed more suspicious activity, i.e.: an attempt to hide something by Williams and Drinker and an obvious desire by all three to flee. He stated that he thought he was seeing a drug deal. Given his training and experience, Sergeant Garner's belief that he had seen a crime committed was reasonable and his subsequent actions were justified and constitutional. The denial of the motion to suppress was correct.
Department of Justice procedures require that cash seized be exchanged for a cashier's check within 60 days of seizure. The money was seized on October 6, 1988 and deposited for a cashier's check on November 18, 1988. When Hamell's counsel, on August 4, 1989, 8 months later, asked the government for the cash so he could have it examined, he was told it was no longer available. He now claims that the roll of money was potentially exculpatory evidence because the absence of Williams fingerprints on it would have been evidence that the money had not changed hands and that there was, therefore, no drug deal.
Also, some notes made by an officer, not Garner, who...
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