Appeal from the United States District Court for the District of Kansas (D.C. No. 02-CR-40157-03-JAR).
The opinion of the court was delivered by: Holmes, Circuit Judge.
Before HARTZ, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and 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 post-arrest 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.
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 co-defendant 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, Faith*fn1 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.*fn2 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.
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 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.*fn3 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, 129 S.Ct. 281 (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, 129 S.Ct. 1392 (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,*fn4 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 government's evidence, credited as true, suffices to establish the elements of the crime." United States v. Hutchinson, 573 F.3d 1011, 1033 (10th Cir. 2009), petition for cert. filed, __ U.S.L.W. __ (U.S. Oct. 22, 2009) (No. 09-7201).
"The essence of a drug distribution conspiracy is an agreement between two or more persons to traffic in controlled substances." United States v. Horn, 946 F.2d 738, 740 (10th Cir. 1991). To prove such a conspiracy the government must show that (1) two or more persons agreed to violate the drug laws; (2) the defendant knew the essential objectives of the conspiracy; (3) the defendant knowingly and voluntarily participated in the conspiracy; and (4) the conspirators were interdependent. See, e.g., United States v. Wright, 506 F.3d 1293, 1297-98 (10th Cir. 2007). "A defendant's participation in a conspiracy is proven by evidence tending to show that the defendant shared a common purpose or design with his alleged coconspirators." United States v. Slater, 971 F.2d 626, 630 (10th Cir. 1992) (per curiam). "But we have recognized that '[b]ecause a criminal conspiracy by its very nature is usually shrouded in a further conspiracy of silence, the common plan or purpose must often be, and may legitimately be, proved by circumstantial evidence.'" Hutchinson, 573 F.3d at 1035 (alteration in original) (quoting United States v. Robertson, 45 F.3d 1423, 1442 (10th Cir. 1995)).
"We are mindful to guard against the mass application of guilt when conspiracy charges are involved because guilt is always dependent on personal and individual conduct, not on mere association or unknowing involvement." Horn, 946 F.2d at 741. "[A]s we have repeatedly emphasized in our decisions in this area, we cannot sustain a conspiracy conviction if the evidence does no more than create a suspicion of guilt or amounts to a conviction resulting from piling inference on top of inference." United States v. Hernandez, 509 F.3d 1290, 1295 (10th Cir. 2007) (internal quotation marks omitted). "[O]ne [does not] become a member of a conspiracy merely by associating with conspirators known to be involved in crime." Slater, 971 F.2d at 630. However, "[t]he connection of the defendant to the conspiracy need only be slight, if there is sufficient evidence to establish that connection beyond a reasonable doubt." United States v. Tranakos, 911 F.2d 1422, 1430 (10th Cir. 1990) (internal quotation marks omitted). "Even a single overt act by the defendant can be sufficient to connect him to the conspiracy if that act leads to a reasonable inference of intent to participate in an unlawful agreement or criminal enterprise." United States v. Pack, 773 F.2d 261, 266 (10th Cir. 1985).
Mr. Hamilton predicates his venue argument on an alleged failure of proof as to the charged drug conspiracy, focusing on the fourth element-that is, interdependence. According to Mr. Hamilton, the government's alleged failure of proof concerning the interdependence element results in a variance and that variance was impermissibly prejudicial because its effect was to negate the evidentiary foundation for the court's venue as to him. Mr. Hamilton concedes that venue for the charged drug conspiracy is proper in any jurisdiction where an overt act in furtherance of a conspiracy was committed by any of the conspirators, even if the defendant-conspirator has never been to that jurisdiction. See United States v. Miller, 111 F.3d 747, 753 n.8 (10th Cir. 1997) ("In a drug conspiracy case, venue for a defendant lies either in the jurisdiction in which the conspiratorial agreement was formed or in any jurisdiction in which an overt act in furtherance of the conspiracy was committed by any of the conspirators." (internal quotation marks omitted)); see also United States v. Magleby, 420 F.3d 1136, 1145 (10th Cir. 2005) (noting that "venue is proper wherever acts in furtherance of the conspiracy occur, regardless of whether an overt act must be proved" as a requisite element of the conspiracy offense); United States v. Andrus, 775 F.2d 825, 846 (7th Cir. 1985) (rejecting argument that "because proof of an overt act is unnecessary to this [narcotics] conspiracy conviction, venue cannot be based upon the occurrence of overt acts within the district" (citation omitted)).
Generally speaking, a defendant who joins an ongoing conspiracy may be held accountable-for purposes of determining the scope of liability for the conspiracy charge itself-with the acts or statements of coconspirators that occurred prior to his entry into the conspiracy, if those acts or statements were in furtherance of the conspiracy.*fn5 See United States v. Coleman, 7 F.3d 1500, 1503 (10th Cir. 1993) ("It is fundamental that a party may join an ongoing conspiracy during its progress and become criminally liable for all acts done in furtherance of the scheme." (internal quotation marks omitted)); United States v. Blackthorne, 378 F.3d 449, 454 (5th Cir. 2004) ("[O]ne who joins an ongoing conspiracy is deemed to have adopted the prior acts and declarations of conspirators, made after the formation and in furtherance of the conspiracy." (internal quotation marks omitted)); United States v. David, 940 F.2d 722, 735 (1st Cir. 1991) ("When, as here, a miscreant opts to join an ongoing conspiracy, the law holds him accountable for the earlier acts of his coconspirators in furtherance of the conspiracy.").
We discern no reason why this principle does not apply to the prior overt acts of coconspirators that establish the basis for venue and so hold. See United States v. Davis, 666 F.2d 195, 200 (Former 5th Cir. 1982) (rejecting defendant's argument that "she was improperly tried in Georgia because the government did not prove that she joined the conspiracy before [her coconspirator and an undercover agent] arrived in Florida," stating that "[s]ince the prior actions of coconspirators in furtherance of the conspiracy are attributable to one who later joins the conspiracy," that conduct of a coconspirator involving the Georgia trial district, although predating her entry into the conspiracy, was "attributable" to her).
Mr. Hamilton does not dispute that Mr. Barker committed an overt act in furtherance of the charged conspiracy in Kansas. In essence, however, Mr. Hamilton's position is that the evidence at trial was insufficient to establish that his actions were interdependent with Mr. Barker's conspiracy. Consequently, reasons Mr. Hamilton, the evidence was insufficient to prove that he was a member of Mr. Barker's conspiracy. Thus, according to Mr. Hamilton, Mr. Barker's presence in Kansas is irrelevant to whether Mr. Hamilton could be properly tried in Kansas for the charged conspiracy. Specifically, Mr. Hamilton argues that he was not a member of the single, multiyear conspiracy charged in the indictment, asserting that trial evidence showed he entered "a separate conspiracy . . . formed for the narrow purpose of collecting drug debts owed to Barker by individuals in Cleveland" and that "[b]ecause there were two separate conspiracies, Hamilton is not responsible for Barker[']s possession of marijuana in Kansas." Aplt. Br. at 32. Consequently, according to Mr. Hamilton, the trial evidence varied from the charged crime and impermissibly prejudiced him by effectively rendering the trial court an impermissible venue. However, we agree with the district court that Mr. Hamilton's conduct was interdependent with the conduct of members of Mr. Barker's drug conspiracy. Under the circumstances here, we therefore conclude that Mr. Hamilton entered Mr. Barker's conspiracy, that there was no variance from the indictment, and that venue was proper in Kansas.
When a defendant challenges the government's assertion of a single conspiracy, "a focal point of the analysis is whether the alleged coconspirators' conduct exhibited interdependence." United States v. Edwards, 69 F.3d 419, 432 (10th Cir. 1995). It requires "proof that the conspirators intended to act together for their shared mutual benefit within the scope of the conspiracy charged." United States v. Heckard, 238 F.3d 1222, 1231 (10th Cir. 2001) (alterations and internal quotation marks omitted). The requirement is satisfied "if the alleged coconspirators were united in a common unlawful goal or purpose and if a defendant's activities facilitated the endeavors of another alleged coconspirator or facilitated the venture as a whole." United States v. Ailsworth, 138 F.3d 843, 851 (10th Cir. 1998) (citation and internal quotation marks omitted) (emphasis added); see Hutchinson, 573 F.3d at 1036.
Mr. Hamilton argues that his "one-time agreement to assist in a one-time collection of money" does not constitute "rejoin[ing] the pre-existing conspiracy for the common purpose of distributing marijuana." Aplt. Br. at 28. Most significantly, he asserts that interdependence is disproved by evidence that he left Mr. Barker's conspiracy between 1995 and 1997, and also by his failure to profit from his role in the alleged conspiracy. For purposes of this appeal, we accept Mr. Hamilton's position that the evidence shows that he left Mr. Barker's organization in the mid-1990s and established a separate marijuana distribution organization. However, we conclude that there was sufficient evidence for a rational jury to conclude that Mr. Hamilton rejoined Mr. Barker's drug organization no later than December 23, 2002, when he agreed to travel to Cleveland to collect on Mr. Barker's drug debts, and in fact did so on the following day. More specifically, a rational jury could find that Mr. Hamilton's conduct relating to the Cleveland trip was interdependent with the activities of Mr. Barker's drug organization.
Trial testimony established that after family members learned of Mr. Barker's December 23 arrest in Kansas, Mr. Diaz and Mr. Gayle booked tickets on a commercial flight to Cleveland. Mr. Diaz testified that he feared Mr. Adolphus might have "set . . . up" Mr. Barker to be arrested, and his intent for the trip was to collect the drug money before Mr. Adolphus "could get his hand on it" so that the money could be used for Mr. Barker's bail and legal representation. Aplt. App. at 1871-72. Ms. Adauto testified that Faith Hamilton called Mr. Hamilton and asked him to go as well because she was afraid for Mr. Diaz's safety. Ms. Adauto tried to dissuade Mr. Hamilton from going. Although she noted that the collection of drug debts had not ordinarily been dangerous, she suspected that Mr. Barker's arrest might make it more difficult for anyone to get Mr. Barker's debtors to honor their obligations. Even though the relationship of Mr. Barker and Mr. Hamilton was strained, Mr. Hamilton nonetheless insisted on participating in the collection trip because "he couldn't live if something happened to his brother and he wasn't there." Id. at 1190.
We cannot conclude that this trip constituted a separate conspiracy unrelated to Mr. Barker's ongoing drug distribution organization. Initially, even if we assume arguendo that Mr. Hamilton's characterization of the Cleveland trip as a "one-time" incident is correct-although the trip apparently involved multiple acts of collection on drug debts-that fact is immaterial to the question of whether Mr. Hamilton acted interdependently with Mr. Barker's drug organization. See Pack, 773 F.2d at 266. We must assess the nature and objectives of Mr. Hamilton's conduct in that one-time incident. As noted below, we conclude that Mr. Hamilton's conduct associated with the Cleveland trip was calculated to, and in fact did (albeit not to the fullest extent), meaningfully contribute to the success of Mr. Barker's drug operation; consequently, Mr. Hamilton's conduct functioned interdependently with the operation. Cf. United States v. Evans, 970 F.2d 663, 673 (10th Cir. 1992) ...