United States v. Horton

• Decision Date: 05 May 2014
• Docket Number: 12–3628.,Nos. 12–3627,s. 12–3627
• Citation: 756 F.3d 569
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Carlous S. HORTON, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Christopher M. Holmes, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

756 F.3d 569

UNITED STATES of America, Plaintiff–Appellee

v.Carlous S. HORTON, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Christopher M. Holmes, Defendant–Appellant.

Nos. 12–3627, 12–3628.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 21, 2013.

Filed: March 24, 2014.

Rehearing and Rehearing En Banc Denied May 5, 2014.

Robert A. Ratliff, Ratliff Legal Group, Mobile, AL, argued, for appellant Carlous S. Horton.

F. A White, Jr., Kansas City, MO, argued, for appellant Christopher M. Holmes.

Gary K. Milligan, Asst. U.S. Atty., Springfield, MO, argued (Tammy Dickinson, U.S. Atty., Kansas City, MO, on the brief), for appellee.

Before BENTON, BEAM, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

A jury convicted Carlous S. Horton and Christopher M. Holmes of multiple crimes stemming from their involvement in a cocaine-distributionring. They each received a life sentence and each appealed, raising numerous procedural, evidentiary, and sentencing errors. We reject their arguments and affirm their convictions and sentences.¹

I.

The investigation into Carlous Horton began when Horton was stopped by the Oklahoma Highway Patrol and found to be transporting a pound of cocaine. After the stop, DEA agents contacted Horton with the hope that Horton could assist the Government in its investigation of drug activities in the Springfield–Branson, Missouri area. Horton refused to cooperate, but, because of the stop, the DEA began to take interest in Horton's activities. As time progressed, the DEA continued to gather intelligence on Horton. Eventually, it learned of a potential informant who claimed to have been buying cocaine from Horton.

Using its newly found informant, the DEA arranged several controlled cocaine buys. While monitoring these controlled cocaine purchases, the DEA discovered that Horton had a partner, Christopher Holmes. The DEA's confidential informant arranged purchases from both Horton and Holmes. The DEA used the information from these controlled buys to obtain wiretaps on phone numbers associated with Horton's cocaine activities. Over the next year, the DEA gathered extensive evidence that Horton and Holmes were heavily involved in cocaine distribution. The DEA recorded thousands of drug-related phone calls and text messages. Finally, on March 11, 2011, the DEA executed search warrants on three residences in Southwestern Missouri known to be connected with Horton and Holmes's drug enterprise. In its search of the residences, the DEA recovered large amounts of cocaine and several guns.

Horton and Holmes were charged, along with several other defendants, in a 70–count indictment. Horton was named in 59 of the counts; Holmes was named in 3 counts. Though many of their co-conspirators pled guilty, Horton and Holmes elected to continue to trial. After a six-day trial, a jury found Horton guilty of: (1) conspiracy to distribute 5 kilograms or more of cocaine, to manufacture 280 grams or more of cocaine base, and to distribute 280 grams or more of cocaine base; (2) distribution of cocaine; (3) possession of cocaine with the intent to manufacture; (4) possession of a firearm by a convicted felon; (5) money laundering; and (6) wire fraud. Holmes was found guilty of: (1) conspiracy to distribute 5 kilograms or more of cocaine, to manufacture 280 grams or more of cocaine base, and to distribute 280 grams or more of cocaine base; (2) possession of cocaine with the intent to distribute; and (3) possession of a firearm by a convicted felon.

Because of their prior criminal records, 21 U.S.C. § 841(b)(1)(A) mandated life sentences, and Horton and Holmes were each sentenced to life in prison. Horton and Holmes timely appealed their convictions and sentences. We consider Horton and Holmes's joint arguments ² in Part II, collectively referring to them as the Appellants, and we consider Holmes's separate arguments in Part III.

II.

The Appellants raise four arguments on appeal: (1) the Government violated their Fourth Amendment rights by engaging in extensive pre-arrest surveillance; (2) the Government violated their due process rights by failing to disclose material, exculpatory evidence, in violation of Brady,³ and by engaging in outrageous conduct throughout Horton and Holmes's investigation and prosecution; (3) the district court erred by not holding a Remmer⁴ hearing to investigate a potential juror problem that arose during trial; and (4) the Western District of Missouri's juror selection plan violated their Sixth Amendment rights.⁵

A.

The Appellants argue that evidence used by the Government at trial should have been suppressed because it was obtained in violation of their Fourth Amendment rights. The Appellants argue that the Government should have arrested Horton as soon as it had sufficient evidence to charge him, and the Government's recording of their conversations with the Government's confidential informant violated their Fourth Amendment rights. Finally, they contend that the Government failed to comply with the procedural requirements necessary to obtain a wiretap.

The Appellants failed to raise these arguments at the pretrial suppression hearing and also failed to raise these arguments at trial. Because “[t]hese contentions were not raised in a pretrial motion to suppress evidence,” they are waived, and we need not consider them. United States v. Green, 691 F.3d 960, 963–64 (8th Cir.2012) (“Because ‘waived claims are unreviewable on appeal,’ the waiver provision of Rule 12 precludes appellate review of arguments to suppress evidence that are not raised in a pretrial motion to suppress.” (quoting United States v. Booker, 576 F.3d 506, 511 (8th Cir.2009))); see also United States v. Dunn, 723 F.3d 919, 927 (8th Cir.2013) (holding that the defendant's argument that wiretap evidence should be suppressed was waived because the defendant “did not raise this issue in his pretrial motion to suppress”); United States v. Henderson, 613 F.3d 1177, 1182 (8th Cir.2010) (“By not raising this suppression argument below, [the defendant] waived the claim, rendering it unreviewable on appeal.” (internal quotation marks omitted)). We may “grant relief from the waiver for ‘good cause.’ ” Green, 691 F.3d at 965 (quoting Fed.R.Crim.P. 12(e)). The Appellants, however, have failed to establish a good cause for granting such relief in this case because the Government had no obligation to arrest Horton as soon as it had sufficient evidence to charge him. See United States v. Lovasco, 431 U.S. 783, 791–93, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

B.

The Appellants insist that the Government violated their due process rights by failing to disclose potentially exculpatory evidence and by engaging in outrageous conduct throughout the investigation and prosecution.

1.

The Appellants argue that the Government violated its Brady obligation by failing to disclose material, exculpatory evidence. Because they failed to raise the alleged Brady violations at trial, we review for plain error. United States v. Aleman, 548 F.3d 1158, 1164 (8th Cir.2008). To obtain relief under a plain-error standard of review, the party seeking relief must show that: (1) there was an error; (2) the error is clear or obvious under current law; (3) the error affected the party's substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Poitra, 648 F.3d 884, 887 (8th Cir.2011). First, the Appellants allege that the Government failed to produce the results of palm print and fingerprint comparisons. Second, they allege that the Government failed to provide Horton access to one of his personal computers that contained financial files Horton needed for his defense. Because the record indicates that Horton was indeed given access to his computer,⁶ we need only address the palm prints and fingerprints claim.

Ten months before trial, the Government requested Horton's palm prints and fingerprints so it could determine if Horton's prints matched those found on two canisters that were discovered in one of the drug houses. The district court entered an order compelling Horton to comply with the Government's request, subject to two conditions: (1) the print comparisons were to be completed within 30 days of the order, and (2) the Government was to submit the results to defense counsel. The record, however, fails to indicate whether the palm print and fingerprint analyses ever took place. The Government never introduced the print comparisons at trial, and the Appellants failed to request the comparisons at trial. Now, on appeal, the Appellants speculate that the Government failed to produce the print comparisons because the evidence was exculpatory.

The Appellants' Brady claim fails at step one of our plain-error review. Brady requires the government to disclose evidence that is “both ‘favorable to an accused’ and ‘material either to guilt or punishment.’ ” United States v. Whitehill, 532 F.3d 746, 753 (8th Cir.2008) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). The Appellants note that the Government did not produce the requested print comparisons at trial. According to the Appellants, the Government's decision to exclude the print comparisons at trial must mean that the comparisons were favorable to them. The Appellants' argument, which is solely based on conjecture and speculation, cannot support a Brady violation. As we noted in Aleman, “mere speculation is not sufficient to sustain a Brady claim.” 548 F.3d at 1164 (alterations omitted) (internal quotation marks omitted); see also United States v. Gary, 341 F.3d 829, 833–34 (8th Cir.2003) (holding that defendants speculation on the results of a fingerprint test could not establish Brady claim), overruled on other grounds by Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); United States v. Sumner, 171 F.3d 636, 637 (8th...