U.S. v. Hamilton
| Decision Date | 02 July 2003 |
| Docket Number | Docket No. 02-1322.,Docket No. 02-1315(L). |
| Citation | 334 F.3d 170 |
| Parties | UNITED STATES of America, Appellee, v. Michael HAMILTON and Nicola Messere, also known as Supercop, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Elizabeth S. Riker, Assistant United States Attorney, Syracuse, New York (Glenn T. Suddaby, United States Attorney for the Northern District of New York, Gregory A. West, John Katko, Assistant United States Attorneys, Syracuse, New York, on the brief), for Appellee.
Joseph Tacopina, New York, New York (Joseph A. Bondy, New York, New York, on the brief), for Defendant-Appellant Hamilton.
Paul DerOhannesian II, Albany, New York (DerOhannesian & DerOhannesian, Albany, New York, Joseph A. Bondy, New York, New York, on the brief), for Defendant-Appellant Messere.
Before: KEARSE, STRAUB, and RAGGI, Circuit Judges.
Defendants Michael Hamilton and Nicola Messere, former officers in the Schenectady, New York Police Department, appeal from judgments entered in the United States District Court for the Northern District of New York following a jury trial before David N. Hurd, Judge, convicting them of narcotics-related offenses. Hamilton was convicted on one count of aiding and abetting the maintenance of a residence for the purposes of distributing and using controlled substances, in violation of 21 U.S.C. §§ 856(a)(1) and (b) and 18 U.S.C. § 2, and one count of using a cellular telephone to facilitate such maintenance, in violation of 21 U.S.C. §§ 843(b) and (d)(1); he was sentenced principally to 54 months' imprisonment, to be followed by a three-year term of supervised release. Messere was convicted on one count of distributing and possessing with intent to distribute cocaine base (crack), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); he was sentenced principally to 27 months' imprisonment, to be followed by a three-year term of supervised release. On appeal, defendants contend primarily that the evidence was insufficient to support their convictions. Alternatively, they contend that the district court should have granted them a new trial on various grounds, including prejudicial spillover of evidence introduced in support of a count on which they were acquitted, alleged errors in the admission of evidence, and the government's alleged subornation of perjury and nondisclosure of exculpatory evidence. Hamilton also challenges his sentence. Finding no merit in any of defendants' contentions, we affirm.
The present prosecution arose out of a 1999 federal investigation of several Schenectady Police Department ("SPD") officers who were suspected of providing crack cocaine dealers and addicts with drugs, immunity, and protection in exchange for information about other drug dealers. Hamilton and Messere were named in a five-count superseding indictment (the "indictment") that charged both defendants with racketeering, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. (Count One); charged Messere with distributing and possessing with intent to distribute crack on or about July 19, 1998, in violation of 21 U.S.C. § 841(a)(1) (Count Two); and charged that Hamilton, on or about March 8, 2000, aided and abetted the maintenance of a residence for purposes of using and distributing crack, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (Count Three), attempted to intimidate a witness with intent to obstruct a United States Drug Enforcement Administration ("DEA") investigation, in violation of 18 U.S.C. § 1512(b)(3) (Count Four), and used a cellular telephone to facilitate maintenance of a crack house, in violation of 21 U.S.C. § 843(b) (Count Five).
The jury ultimately returned verdicts of guilty only on Counts Two, Three, and Five. The government's principal trial witnesses with respect to those counts included SPD Officer Thomas Gabriele; former SPD Officer Michael Siler; and Darla Wharry, a crack user who had pleaded guilty to operating a crack house. The government also introduced a tape recording of certain conversations to which Wharry was a party and records of telephone calls made to Wharry's residence from Hamilton's cell phone. Taken in the light most favorable to the government, the evidence pertinent to the counts on which defendants were convicted showed the following.
A. Messere's Distribution of Crack on July 19, 1998
The government's principal witness on the charge that Messere had distributed and possessed crack with intent to distribute was Siler. Siler was an SPD officer who had been suspended in 1999 as a result of the federal investigation and had been dismissed in 2001 after he pleaded guilty to violating RICO by conducting the affairs of SPD through a pattern of racketeering activity. That activity included identifying drug dealers who had narcotics in their possession, taking the narcotics without arresting the dealers, and giving the drugs to various informants rather than reporting or delivering the contraband to SPD.
During his tenure in SPD, Siler had participated in seizures of substances that he believed to be crack cocaine, and laboratory tests had proved him correct. Based on that experience, Siler was able to recognize crack by its appearance. He was also familiar with the manner in which crack was packaged for sale to users.
Siler testified that at noon on July 19, 1998, he began a four-hour patrol shift, partnered with Messere. During that shift, at the intersection of State Street and Swan Street, Siler and Messere saw one of Messere's informants, Tina Martinez, who was a prostitute and crack addict. Siler testified that Messere motioned Martinez toward the car and said something Siler could not hear. When Martinez walked toward the car, Messere "threw some bumps out the window, some pieces of crack cocaine that he had and drove off." (Trial Transcript ("Tr.") 3325.) "[B]umps" were "small pieces of an off-white rock-type substance [that] appeared to be crack cocaine," packaged "in small baggie corners, tied off," in the manner in which, in Siler's experience, crack was sold. (Id.)
The government also called Martinez as a witness. She testified in part as follows:
Q. Do you recall sitting on State Street one day and seeing Officer Messere?
A. It was in the summertime.... I was sitting on the steps and Nick came up on the sidewalk in the police car. He came out of nowheres, and he would drive up and ask me who got it good. You know, where is the good crack at, and I told him I don't know. I don't know, you know, and he threw me a bump and told me to get off the streets, and he just drove away....
....
Q. You say he threw something out the window, would you describe what he threw out the window?
A. A bump. A bag of crack, you know.
Q. What did you do with this bag of the substance then?
A. I picked it up and went home and smoked and came right back out.
....
Q. Had you ever smoked crack cocaine before that?
A. Yes.
Q. And you smoked this substance that he threw out the window?
Q. What was it?
A. Rock. That is what we call it. It was crack, it was drugs, my god it was drugs. We got high. It was drugs.
(Tr. 3022-24.)
Martinez could not recall in what year this incident had occurred. Before the grand jury, she had testified that it occurred in 1996 or 1997; at trial she could not even recall that testimony.
The government's evidence to support Counts Three and Five against Hamilton was provided principally by Wharry and Gabriele. Wharry was one of Messere's informants who both sold and used crack. In March 2000, she lived in an apartment at 1213 First Avenue with Roger Little (aka "Hodgy") and allowed others to use and sell crack there.
Wharry testified that Hamilton was well aware of her use of her residence as a crack house, in part because she would call Hamilton and inform him that drug dealers were there. She described one occasion on which she had called Hamilton to her prior residence on Eighth Avenue to tell him drug dealers were there. On that occasion, Hamilton responded that he was coming and instructed her to make sure the dealers did not flush anything down the toilet. When Hamilton arrived, he arrested the drug dealers. When he left, he told Wharry there were "cigarettes" upstairs (Tr. 986); Wharry then found crack cocaine upstairs in a cigarette box. This was consistent with her previous experiences with Hamilton. And she thereafter continued to provide Hamilton with information and to call him when drug dealers were in her home; Hamilton continued to come and take the dealers away; and he always left crack behind for Wharry. (See Tr. 984-88.)
In late 1999, Wharry moved her residence, and her operation of a crack house, from Eighth Avenue to 1213 First Avenue. Her relationship with Hamilton continued:
Q. Did Mike Hamilton know that there was a crack house being operated at 1213 First Avenue during the time that you lived there?
A. Yes.
Q. How did he know that?
A. It was obvious. There was so many drugs coming in and out of my house. I would always call him when the drug dealers were coming up there, and he would come up and bust them.
Q. Had he ever been in there and seen drugs without arresting people?
A. Yes.
(Tr. 999.) Wharry testified that she "receive[d]... protection from Mike Hamilton as [she was] running this crack house" (Tr. 1000); that she was able to find out about police activity and police raids from Siler and Hamilton (Tr. 995); and that she "never got arrested" (Tr. 999).
The government also called as a witness Antoinette Zwicker who testified that from the fall of 1999 and into 2000, she went to 1213 First Avenue to use drugs "pretty much every day." (Tr. 867.) Zwicker testified that she went there
[b]ecause that was where I...
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