U.S. v. Hamilton

• Decision Date: 08 March 1995
• Docket Number: No. 93-2837,93-2837
• Citation: U.S. v. Hamilton, 48 F.3d 149 (5th Cir. 1995)
• Parties: 41 Fed. R. Evid. Serv. 881 UNITED STATES of America, Plaintiff-Appellee, v. Jon Paul HAMILTON and Allen Lamar McMurrey, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 149

48 F.3d 149

41 Fed. R. Evid. Serv. 881

UNITED STATES of America, Plaintiff-Appellee, v.Jon Paul HAMILTON and Allen Lamar McMurrey, Defendants-Appellants.

No. 93-2837.

United States Court of Appeals Fifth Circuit.

March 8, 1995.

Christopher V. Bacon, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, TX, for Hamilton.

David Cunningham(court-appointed), Houston, TX, for McMurrey.

Abran Martinez, Paula C. Offenhauser, Katherine L. Haden, Asst. U.S. Atty., Gaynell Griffin Jones, U.S. Atty., Houston, TX, for appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, EMILIO M. GARZA and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

The only issue in this criminal appeal is whether the district court committed reversible error in refusing to admit, for impeachment purposes, evidence of certain past criminal proceedings against the star government witness 827 F.Supp. 424.In light of the overwhelming amount of additional impeachment evidence the appellants were able to introduce, we find no basis upon which to reverse appellants' convictions, and we AFFIRM the judgment below.

BACKGROUND

Defendant-appellantsJon Paul Hamilton and Allen Lamar McMurrey were convicted by a jury on July 1, 1993 for burglary of a post office ¹, theft of credit cards and U.S. Treasury checks from the mail ², counterfeiting of U.S. Treasury checks ³ and sale of counterfeited checks ⁴.A co-conspirator, Byron Bernard York, was charged and tried along with the appellants and was convicted on four counts, but he is not a party to this appeal.Hamilton and McMurrey do not challenge the sufficiency of the evidence to support their convictions.Both stipulated or testified at trial that (1)they broke into a Houston post office on September 7, 1992 and stole numerous checks, credit cards and other mail; (2)they used the stolen U.S. Treasury checks to produce counterfeit checks by scanning an original into a personal computer, manipulating the check numbers and printing the false checks on a color printer; (3)they arranged for the sale of 83 stolen credit cards and received the proceeds from the sale; and (4)they printed and planned to sell about $2 million worth of counterfeited Treasury checks.

However, Hamilton and McMurrey claimed as a defense that Calvin Stout, who became a paid government informant and the principal prosecution witness at trial, entrapped them into committing the crimes.Stout, Hamilton and McMurrey met in the spring or summer of 1992 when they were all attending Alcoholics Anonymous meetings in Houston.According to the defendants' testimony, they never would have committed any of the crimes but for Stout's overreaching and constant pressure on them.Both defendants claimed that from the night they met Stout, he repeatedly urged them to join him in various criminal enterprises and that they continually rejected these suggestions.Finally, McMurrey testified, Stout "essentially wore [him] down and won [him] over," and "manipulated me into thinking, well, hell, this will be easy."Hamilton also testified that Stout made the crimes sound "real easy."McMurrey and Hamilton testified that they then joined Stout in his proposed plan to burglarize a Federal Express drop box and a post office, and later participated in the counterfeiting and other crimes.They also testified that Stout made frequent references to his fictional contacts, "Hank" and "Guido," and hinted that "legs would get broken" if the defendants backed out of the deal.Defense counsel emphasized the fact that McMurrey and Hamilton, recovering alcoholics in their early 20s, were especially vulnerable and susceptible to entrapment by the 46-year-old Stout, who was shown to be experienced, manipulative and a practiced liar.A psychiatrist testified that Hamilton, in particular, suffered from depression that impaired his judgment and made him especially vulnerable to being misled.

Stout, on the other hand, testified that McMurrey, Hamilton and York committed the post office burglary on their own without any urging from him, and that in fact the defendants did not tell Stout about the burglary until two days after it took place.After the defendants gave Stout a stolen credit card to use, Stout contacted a federal postal inspector and began cooperating with law enforcement authorities to gather information on McMurrey, Hamilton and York.Recorded conversations between Stout and the defendants were introduced at trial.In these conversations, the defendants arranged for Stout to sell 83 stolen Texaco credit cards, and they received and divided up the proceeds.They also gave Stout a sample counterfeited U.S. Treasury check to show to "Hank," Stout's alleged banker friend, to determine whether it was good enough to cash.They also had conversations with Stout regarding the production methods used to manufacture the counterfeited checks and the quality of the finished checks.The prosecution pointed out that, in the taped conversations, Hamilton and McMurrey did not show any moral reluctance to go through with the crimes, or any sign that they were being coerced.Rather, they discussed going to Europe for six months on the proceeds and made comments like, "Maybe we can all meet up [and] do the Paris thing ... French whore houses," and "It's so exciting ... [i]t seems too good to be true."When Stout suggested that they sell the stolen American Express card they had been using, McMurrey said, "I mean sh-- man, we were thinking about going out tomorrow maybe and buying 1,000 more dollars worth of stuff."Hamilton added, "I think we are going to hold on to that."The defense claimed that Stout came up with and pushed the idea to try to cash some of the business checks that had been stolen from the post office.However, on the tape, Hamilton is the first to suggest this.During a conversation about going to Europe, Hamilton said, "[H]ow much do you think we have in checks just sittin' in there; why can't we cash those?"Stout said, "What do you got?"Hamilton replied, "F---, checks for $50,000."The taped conversations also contain hints that Hamilton and McMurrey were committing crimes on their own even before they became involved with Stout.While the group was in Hamilton and McMurrey's apartment printing the checks, Stout asked whether a particular piece of equipment was the printer.Hamilton replied, "That's the laminator.That's the laminator that I make my fake ID's on, the laminator machine."On the same tape, the men discussed a mutual friend who was aware of some of Hamilton and McMurrey's activities and apparently didn't approve:

McMurrey: I think he got a little upset when we started every night going in breaking into buildings and stealing sh--.

Stout: Well.

McMurrey: I mean cause he thought, you know, we were doing like the sneakers trip.

Stout: The what trip?

Hamilton: Like high tech.

Stout.Oh. Well.

McMurrey: And what it finally boiled down to is we were heaving bricks through windows.

Hamilton: Is that before I knew how to pick locks?

Stout: I still ah, am amazed that you went and made two trips [during the September 7 post office burglary].

Hamilton: We've done like two trips like every place....There's only so much room in the car.

McMurrey, Hamilton and York were arrested on September 23, 1992 while on the way to a bank, along with Stout, to cash four of the counterfeit checks.A warrant search at Hamilton and McMurrey's apartment revealed counterfeit checks totalling $1,900,000, stolen Social Security checks, five computers, a scanner, a high-quality color printer, laminating machines, cutting boards, bolt cutters, walkie-talkies, a videotape on breaking and entering, tools for picking locks, the front cover to a Federal Express drop box, and receipts showing the use of stolen credit cards and redemption of stolen utility bearer coupons.After they were arrested, McMurrey, Hamilton and York gave written statements admitting their participation in the charged crimes, but not mentioning any involvement by Stout in the post office and Federal Express burglaries.Additionally, the statements given after arrest contradicted the entrapment defense raised at trial in several areas, including who originated the idea for the burglaries and the counterfeiting.

DISCUSSION

The defendant-appellants challenge their convictions on the basis that the district court refused to allow them to impeach Stout by questioning him about certain prior criminal proceedings.They claim that impeachment of Stout was especially important because the viability of their entrapment defense boiled down to a credibility choice between their testimony and Stout's testimony.The issue we address, therefore, is whether district court abused its discretion or violated Hamilton and McMurrey's Sixth Amendment right to confront the witness against them by excluding evidence of Stout's (A) pending felony deferred adjudication; (B) prior pardoned felony convictions; or (C) pending misdemeanor charges.

Pending Deferred Adjudication for Felony Theft

In 1992, Stout pleaded guilty in Texas state court to felony theft by check, for which he had been indicted in the fall of 1991.Adjudication of guilt was deferred, and on September 1, 1992, Stout was given a five-year term of probation and was ordered to pay a $500 fine and $1,800 restitution.As of the time of Hamilton and McMurrey's trial in June 1993, Stout was not paying the restitution as ordered.The district court refused to allow the defendants to introduce the court records of the deferred adjudication to impeach Stout, on the basis that when adjudication of guilt is deferred, there is no "conviction" to be admitted.However, the court did allow many of the underlying facts relating to Stout's 1992 theft-by-check prosecution, deferred adjudication and ordered restitution payments to come into evidence: (1) When Stout was asked...