U.S. v. Thompson

• Decision Date: 21 July 2008
• Docket Number: No. 07-3475.,07-3475.
• Citation: 533 F.3d 964
• Parties: UNITED STATES of America, Appellee, v. Hugo Barry THOMPSON, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

533 F.3d 964

UNITED STATES of America, Appellee, v. Hugo Barry THOMPSON, Jr., Appellant.

No. 07-3475.

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2008.

Filed: July 21, 2008.

Stephen Robert Welby, argued, St. Loius, MO, for appellant.

Jeannette Suzanne Graviss, AUSA, argued, St. Louis, MO, for appellee.

Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Hugo Barry Thompson, Jr., was convicted by a jury of conspiracy to distribute more than 50 kilograms of marijuana. See 21 U.S.C. §§ 841(a)(1), 846. The district court¹ sentenced Thompson to 96 months imprisonment. Thompson appeals his conviction. We affirm.

I.

On February 19, 2007, the St. Louis County Multi-Jurisdictional Drug Task Force (Task Force) received information about possible drug activity at the Best Western Motel in Kirkwood, Missouri. Based upon this information, Officers with the task force established surveillance of a room at the motel which was rented by Barry Collins. A teal Chevrolet Uplander rented in the name of Michael Johnson (Michael) was parked outside the room. A silver Oldsmobile 98 was parked beside the Uplander. While conducting surveillance, Task Force Detective Quinn Turner looked inside the Uplander and noticed a black covering over what appeared to be numerous bulky objects in the rear of the vehicle. Detective Turner noted that this was similar to the way several large bundles of marijuana were stored in a vehicle in a case he worked in January of 2007, which also involved a vehicle rented to a Michael Johnson.

Approximately 30 minutes after he began surveillance at the motel, Detective Turner observed Thompson, Earl Thomas Marshall, and Collins come outside, look in the windows of the Uplander and then leave in the Oldsmobile. Detective Turner continued surveillance of the motel and the Uplander. He observed the three men return in the Oldsmobile about 30 minutes later and saw them reenter the motel. Shortly after they returned, the three men again left in the Oldsmobile. Detective Turner did not follow the Oldsmobile. Instead, he continued surveillance of the motel and the Uplander. When the Oldsmobile returned to the motel parking lot the second time, only Thompson was inside the vehicle. Thompson parked the Oldsmobile beside the Uplander, and again went inside the motel. When Thompson next exited the motel, he was talking with Valerie Ann Weber. Detective Turner then saw Thompson put a bag inside the Oldsmobile and Weber put a bag inside the Uplander. Thompson and Weber were then joined by Kendra Walton and Jacqueline Johnson (Jacqueline) who also exited the motel. Weber and Walton got in the Uplander and Thompson and Jacqueline got in the Oldsmobile. The two vehicles then exited the lot and started to travel on Highway 44. Prior to the Oldsmobile and the Uplander exiting the motel parking lot, Detective Turner had continuously observed the Uplander and knew that no items had been removed from the vehicle. Task Force investigators then requested that local law enforcement assist them by stopping the vehicles for further investigation.

When the vehicles entered the city of St. Louis, a city police officer who was in a marked patrol car observed the Oldsmobile cross the center line, thus failing to maintain a single lane of traffic in violation of the Missouri traffic laws. The city officer stopped the Oldsmobile for the offense. Task Force Detective Joseph Hollocher, who had assisted Detective Turner in conducting the surveillance at the motel, heard about the stop of the Oldsmobile on the police radio and arrived at the scene of the stop within one minute of the initial traffic stop. When Detective Hollocher arrived, Thompson and Jacqueline were standing at the rear of the Oldsmobile. When Detective Hollocher asked Thompson where he was coming from, Thompson told him that he was in St. Louis for a family reunion and stated that Jacqueline was his cousin.

The Uplander was stopped by other law enforcement personnel, including Detective Turner. While Detective Hollocher was talking with Thompson, he was contacted by Detective Turner who reported to him that the during the stop of the Uplander, a large quantity of marijuana was discovered in the back of that vehicle. At that point, Detective Hollocher placed Thompson and Jacqueline under arrest. Immediately thereafter, Thompson gave Detective Hollocher consent to search the Oldsmobile. Shortly after the search began, Thompson agreed to allow the officers to move the vehicle in order to continue the search at the Drug Enforcement Agency (DEA) office for safety reasons. No items were seized prior to the Oldsmobile being moved. After the Oldsmobile was moved to the DEA office, an empty safe, a bundle of cash and personal items belonging to Jacqueline, Weber, Walton, Collins, and Marshall were found it the trunk of the Oldsmobile. None of the items seized from the Oldsmobile appeared to belong to Thompson.

Thompson, Jacqueline, Walton, and Weber were indicted on March 8, 2007, for conspiracy to distribute more than 50 kilograms of marijuana. See 21 U.S.C. §§ 841(a)(1), 846. Jacqueline, Walton, and Weber later pled guilty to the indictment. Adopting the report and recommendation of the magistrate judge², the district court denied Thompson's motion to suppress evidence and statements against him. Following the denial of his motion to suppress, Thompson proceeded to trial where he was convicted. At Thompson's trial, co-conspirator Rebecca Exley testified that she participated in two trips in 2006 that were part of the conspiracy. She testified that in January of 2007, Thompson loaded marijuana into different vehicles and placed scented dryer sheets inside the bags of marijuana. Exley further testified that although Thompson was not present at the time of her arrest, he participated in the conspiracy which resulted in her arrest³ and the arrest of four other people on January 9, 2007.

In addition to the testimony from Exley, the jury also heard testimony from Jacqueline. Jacqueline testified that on February 12, 2007, Thompson drove himself and another man, known only as "Patrick," in the same teal Uplander rented by Michael from Oklahoma City to Troy, Illinois, where they met Marshall and Jacqueline. Jacqueline testified that Marshall hired her to transport money from Ohio to Arizona and then accompany the marijuana from Arizona to Ohio without requiring her to be in the car with the marijuana. Jacqueline testified that Marshall identified Thompson as his "middleman" who she would see every time she was traveling with money or marijuana. Marshall stored Thompson's phone number in Jacqueline's cellular telephone. After the money was moved from inside safes to the Uplander, Patrick started to drive Thompson, Jacqueline, Marshall, and the money in the Uplander from Troy to St. Louis. At some point, Thompson took over the driving because he told Patrick that he was driving too fast. Thompson drove them to meet Collins, Weber, and Walton at a hotel in St. Louis. Collins, Weber, and Walton had driven the Oldsmobile from Ohio to St. Louis. From there, Jacqueline, Marshall, and Patrick drove the money to Oklahoma City in the Uplander, and Weber, Walton, and Collins rode in the Oldsmobile. Then, Walton, Weber, Jacqueline, Collins, and Marshall drove the money to Phoenix in the Oldsmobile to pick up the marijuana, while Thompson stayed in Oklahoma.

According to Jacqueline, while she was traveling to Phoenix with Walton, Weber, Collins, and Marshall, the Oldsmobile was temporarily traded for a green van which was located in the parking lot of an apartment building in Albuquerque, New Mexico. Jacqueline testified that once the group arrived in Phoenix, Marshall told the women to buy scented dryer sheets for use in packing the marijuana inside the van. The group returned to Albuquerque with the marijuana, where the green van was exchanged for the Oldsmobile which was then used to transport the marijuana to Oklahoma City. When the group arrived in Oklahoma City, Collins and Walton rented three motel rooms and were joined at the motel by Michael, Thompson, and Patrick. Jacqueline said that the marijuana was then moved from the Oldsmobile to the Uplander. Thompson then drove Walton, Jacqueline, and Marshall in the Oldsmobile from Oklahoma City to St. Louis, while Weber and Collins drove the Uplander, which was loaded with the marijuana, from Oklahoma City to St. Louis. Jacqueline reported that when the Oldsmobile and Uplander arrived in St. Louis, Collins rented two rooms at the motel.

Officers testified that it was at this point that the Task Force officers received the information which led to the surveillance at the hotel, the traffic stops of the Oldsmobile and the Uplander, the discovery of large amounts of marijuana and currency, and the arrests of Thompson, Jacqueline, Weber, and Walton. After their arrests, Jacqueline and Walton told the DEA agents about their involvement and the involvement of their co-conspirators in the conspiracy. Exley, Walton, and Jacqueline testified as cooperating witnesses at Thompson's trial.

Following Thompson's conviction, the district court sentenced him to 96 months in prison. Thompson appeals the denial of his motion to suppress and his conviction.

II.

Thompson argues that the district court erred by: (1) denying his motion to suppress physical evidence seized as a result of the traffic stop; (2) denying his motion for judgment of acquittal due to insufficient evidence; and (3) denying his motion for a mistrial following prejudicial statements about his criminal history by government witnesses.

A.

When we consider the denial of a motion to suppress evidence, "we review the district court's factual findings for clear error and its legal conclusions de novo." United States v. Kimhong Thi Le, 474 F.3d 511, 514 (8th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 2891, 167 L.Ed.2d...