U.S. v. Hamilton

• Decision Date: 05 November 2009
• Docket Number: No. 07-3273.,07-3273.
• Citation: 587 F.3d 1199
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clive Anthony HAMILTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

587 F.3d 1199

UNITED STATES of America, Plaintiff-Appellee, v. Clive Anthony HAMILTON, Defendant-Appellant.

No. 07-3273.

United States Court of Appeals, Tenth Circuit.

November 5, 2009.

Melanie S. Morgan of Morgan Pilate LLC, Olathe, KS, for Defendant-Appellant.

Anthony W. Mattivi, Assistant United States Attorney (Eric F. Melgren, United States Attorney; James A. Brown, Assistant United States Attorney, on the brief), Topeka, KS, for Plaintiff-Appellee.

Before HARTZ, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HOLMES, Circuit Judge.

HOLMES, Circuit Judge.

Defendant-Appellant Clive Anthony Hamilton appeals his jury conviction and 360-month sentence for conspiracy to distribute marijuana, in violation of 21 U.S.C. § 846. Mr. Hamilton challenges his conviction on several grounds, asserting (1) that there was insufficient evidence to establish venue in Kansas because he was not a member of the drug trafficking conspiracy that had its drugs seized by law enforcement in Kansas, (2) that evidence should have been suppressed because of Miranda violations and because it arose from an arrest without probable cause, and (3) that a witness's reference at trial to Mr. Hamilton's postarrest silence required a mistrial. He also challenges his sentence, arguing that the base offense level was determined using the wrong drug quantity and that the evidence did not support a leadership role enhancement. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we AFFIRM.

I. BACKGROUND

On December 23, 2002, Drug Enforcement Agency ("DEA") agents investigated a suspicious charter flight that was refueling in Salina, Kansas, and found 564 pounds of marijuana. One of the passengers whom they arrested was Troy Barker, who was later identified as a leader of a drug distribution network based in Los Angeles, California, that supplied marijuana to Cleveland, Ohio. Mr. Barker contacted family members to help secure a lawyer.

Early the next day, Mr. Hamilton and Brian Diaz, both half brothers of Mr. Barker, and Sean Gayle, one of Mr. Barker's associates who was familiar with the Cleveland drug operation, chartered a flight from the Van Nuys Airport outside Los Angeles to Cleveland. In Cleveland, they acquired a suitcase that was filled with money from various sources. Then they took their chartered jet back to the Van Nuys Airport.

When they arrived at the airport, they were confronted by four police officers. A vehicle had been reported stolen by Dean Dormer, who later became a codefendant in this case. It was discovered at the airport using global-positioning-system technology and was one of the two vehicles that the men had left parked at the airport during their trip. When the officers called the purported owners of the vehicle, who had reported it stolen, to explain that it had been found, the owners changed their story several times, claiming that it was merely a business dispute and that they only wanted to reclaim the vehicle. Their suspicion raised, the officers decided to wait for the return of the charter jet.

After Mr. Hamilton, Mr. Diaz, and Mr. Gayle deplaned, they walked toward the vehicles. Mr. Hamilton was pulling a large stroller suitcase. He approached the driver's side door of the "stolen" vehicle. One of the officers asked who owned the vehicle, and Mr. Diaz replied that it was his. Mr. Diaz denied that the vehicle was stolen; he said that he had been making payments on the vehicle for quite some time and that he knew the registered owner but had not had contact with him for six months. During this conversation, one of the officers—the supervising police sergeant—noticed Mr. Hamilton walking toward the rear of one of the vehicles as if "trying to avoid the police," so the sergeant drew his firearm and ordered Mr. Hamilton to get back with the others. Aplt.App. at 415. Because the men were behaving nervously and moving their hands to their pockets, the sergeant ordered them to be handcuffed.

The sergeant began questioning Mr. Hamilton and noticed a strong odor of marijuana on his clothing. When asked if he had any marijuana on him, Mr. Hamilton replied that he had smoked some on the jet. The sergeant pressed him further, saying, "I know you have dope on you. Where's your dope?" Aplt.App. at 1568. Mr. Hamilton stated that it was in his shoulder bag, and he said "yes" when asked if the officer could open the bag. The sergeant opened the bag, found a baggie of marijuana, and placed Mr. Hamilton under arrest. After arresting him, the sergeant asked who owned the suitcase, and Mr. Hamilton said it was his and that it contained tapes. At this point, the sergeant read the Miranda warnings to Mr. Hamilton, who asked for a lawyer and refused to speak further. The sergeant opened the suitcase and discovered a large amount of cash, which was later confirmed to be $852,405. The officers also found a firearm on the person of each of the men.

When investigators obtained a copy of the charter flight invoice, they found that it was billed to Individual Records and to Heartless Records, Inc. This fact allowed them to connect the December 23, 2002, seizure in Kansas and the December 24, 2002, seizure in California because Mr. Hamilton was the president of Individual Records and Mr. Barker was the president of Heartless Records. The government ultimately indicted ten individuals in the U.S. District Court for the District of Kansas for conspiracy to distribute more than 1000 kilograms of marijuana between 1994 and 2003, in violation of 21 U.S.C. § 846, with reference to the substantive offenses set out in 21 U.S.C. § 841(a)(1) and (b)(1)(A). In addition to Mr. Hamilton, the government charged Mr. Barker, Mr. Diaz, Mr. Gayle, Faith¹ and Mitchell Hamilton (the half sisters of Mr. Barker and Mr. Diaz, and full sisters of Mr. Hamilton), Clarence Adolphus (an associate of Mr. Barker's who owned a flight chartering company), Mr. Dormer (an associate of Mr. Barker's who owned the "stolen" vehicle), and two other individuals not relevant here. In exchange for concessions from the government, Mr. Diaz and Mitchell Hamilton agreed to testify against Mr. Hamilton, as did Melanie Adauto, an unindicted coconspirator who was the mother of Mr. Hamilton's three children.

Mr. Hamilton was tried jointly with Mr. Dormer, and after a seven-day trial and several days of deliberation, the jury found both men guilty. Using a special verdict form, the jury found that Mr. Hamilton conspired to distribute 1000 kilograms or more of marijuana. At the sentencing hearing, the district court employed a base offense level of thirty-four pursuant to U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 2D1.1(c)(3) for an offense involving at least 3000 kilograms of marijuana.² The district court applied two enhancements: specifically, a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon, and a four-level enhancement under U.S.S.G. § 3B1.1(a) for a leadership role in a criminal activity that involved five or more participants. The adjusted offense level of forty, along with a criminal history category of III, yielded a Guidelines imprisonment range of 360 months to life. The district court sentenced Mr. Hamilton to 360 months' imprisonment and five years of supervised release. Mr. Hamilton timely filed a notice of appeal.

II. DISCUSSION

A. Sufficiency of the Evidence: Venue

Mr. Hamilton's first argument on appeal is that venue for his trial was not proper in Kansas because there was insufficient evidence at trial to support the indictment's charge that he was a member of a conspiracy that acted "in the District of Kansas and elsewhere." Aplt.App. at 2. He argues that this is a fatal variance which requires reversal of his conviction. See, e.g., United States v. Windrix, 405 F.3d 1146, 1154 (10th Cir.2005) (discussing variances and noting that "[e]ven if there was a variance" it would not be "a ground for reversing" convictions, if "it was not substantially prejudicial to Defendants"). He first raised the venue issue in pretrial motions, and pressed this argument at the close of the government's evidence in a Federal Rule of Criminal Procedure 29(a) motion for judgment of acquittal, and renewed it in a Rule 29(c) motion after the verdict. The district court rejected the Rule 29(a) motion in an extensive ruling from the bench and later relied on that ruling in rejecting the Rule 29(c) motion at the sentencing hearing.

We review de novo the district court's denial of the Rule 29 motions.³ See United States v. Vigil, 523 F.3d 1258, 1262 (10th Cir.) ("We review the sufficiency of the evidence to support a jury's verdict and the denial of [defendant's] motion for judgment of acquittal de novo."), cert. denied, ___ U.S. ___, 129 S.Ct. 281, 172 L.Ed.2d 149 (2008). As he frames the issue, Mr. Hamilton's ultimate challenge is to the sufficiency of the evidence to establish venue. Although venue is not a substantive element of a narcotics crime, it must be proved in every criminal case. See, e.g., United States v. Kelly, 535 F.3d 1229, 1233 (10th Cir.2008) ("Although venue is not the focal point in most criminal matters, it is not a mere technicality. It is a constitutional consideration and an element of every crime." (citations and internal quotation marks omitted)), cert. denied, ___ U.S. ___, 129 S.Ct. 1392, 173 L.Ed.2d 642 (2009). The success of Mr. Hamilton's venue challenge, however, depends upon the success of a tandem attack on the sufficiency of the evidence to support his conviction for the charged narcotics conspiracy. Ordinarily, we determine whether a rational jury could find the defendant guilty of the charged conspiracy beyond a reasonable doubt,⁴ viewing both the evidence and reasonable inferences to be drawn from the evidence in the light most favorable to the government. Id. at 1232-33. "In so doing, we do not weigh evidence or credibility; we ask instead only whether the...