United States v. Hamilton

09-2402-cr
U SA v. H amilton
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 21 st day of April, two thousand ten.
PRESENT: GUIDO CALABRESI
ROBERT D. SACK
GERARD E. LYNCH,
Circuit Judges,
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UNITED STATES OF AMERICA,
Appellee,
v. No. 09-2402-cr
DIRIKI HAMILTON, also known as B, also known as
C.O. Black,
Defendant-Appellant.
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APPEARING FOR APPELLANT: BERNARD KLEINMAN (Gregory Cooper, Esq.,
on the brief), New York, New York
APPEARING FOR APPELLEE: JENNIFER G. RODGERS (Natalie Lamarque, on
the brief), for Preet Bharara, United States
Attorney for the Southern District of New York,
New York, New York.
1 Appeal from the United States District Court for the Southern District of New York
2 (Victor Marrero, Judge).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of conviction, entered on June 1, 2009, is AFFIRMED.
1 Defendant Diriki Hamilton appeals from a final judgment, entered after a jury trial in
2 the United States District Court for the Southern District of New York (Marrero, J.),
3 convicting him of one count of conspiracy to distribute firearms without a license in violation
4 of 18 U.S.C. § 371 and one count of distributing firearms without a license in violation of
5 18 U.S.C. § 922(a)(1)(A). Hamilton was sentenced to concurrent terms of 41 months’
6 imprisonment on each count, to be followed by concurrent terms of three years’ supervised
7 release.
8 On appeal, Hamilton argues first, that certain comments in the prosecutor’s opening
9 statement denied him a fair trial, and second, that the prosecutor’s failure to disclose certain
10 documents relevant to the impeachment of a Government witness until midway through
11 cross-examination hampered his defense and violated his rights under Brady v. Maryland,
12 373 U.S. 83 (1963).
13 Hamilton contends that the district court erred by denying his motion for a mistrial on
14 the basis of repeated references to drug dealing in the prosecutor’s opening statement. In its
15 opening, the prosecutor posited that Hamilton believed that the undercover agent to whom
16 he sold guns was a drug dealer. Hamilton immediately moved for a mistrial, arguing that
17 there was no evidentiary basis for the prosecutor’s statement. The district court denied the
18 motion as premature, since the government’s evidence had not yet been presented. During
19 trial, the agent testified that he posed as a Jamaican drug dealer and bought arms twice from
20 Hamilton. At the close of the agent’s testimony, Hamilton renewed his motion for a mistrial,
21 arguing that there was no evidence that the agent ever presented himself as a drug dealer
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1 directly to Hamilton. The district court again rejected the motion, ruling that since the agent
2 had an extensive relationship with one of Hamilton’s co-conspirators, a reasonable juror
3 could infer that Hamilton was aware of the agent’s pose.
4 On appeal, Hamilton argues that since he was charged with dealing weapons rather
5 than drugs, the prosecutor’s opening statement was unduly inflammatory and deprived him
6 of a fair trial. In arguing that his conviction should be set aside on the basis of improper
7 statements by the prosecutor, Hamilton faces a “heavy burden,” and must demonstrate that
8 “the misconduct alleged [was] so severe and significant as to result in the denial of [his] right
9 to a fair trial.” United States v. Locascio, 6 F.3d 924, 945 (2d Cir. 1993). In this case, the
10 prosecutor’s statements cannot be considered misconduct, because they accurately described
11 the evidence that was ultimately presented (without objection) and the implications
12 reasonably drawn from that evidence. Accordingly, the prosecutor’s statements did not
13 deprive Hamilton of a fair trial.
14 Even if the Court were to construe Hamilton’s objection to the prosecutor’s statements
15 as an objection to the admission of the evidence that the agent posed a drug dealer when
16 buying weapons from Hamilton, this argument would be unsuccessful. Hamilton did not
17 object to the witness’ testimony that he posed as a drug dealer when interacting with the
18 suspects. When a defendant fails to object to the introduction of particular evidence, we
19 review the district court’s admission of the evidence for plain error. United States v.
20 Hourihan, 66 F.3d 458, 463 (2d Cir. 1995). “Before an appellate court can correct an error
21 not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial
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1 rights. If all three conditions are met, an appellate court may then exercise its discretion to
2 notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or
3 public reputation of judicial proceedings.” United States v. Thomas, 274 F.3d 655, 667 (2d
4 Cir. 2001) (en banc) (citations, internal quotation marks, and alterations omitted). Given the
5 broad discretion of the trial judge in evaluating the probative value and the potential
6 prejudices of evidence, see United States v. LaFlam, 369 F.3d 153, 155 (2d Cir. 2004), the
7 admission of this evidence cannot meet that standard.
8 Hamilton’s second argument is that two “tactical plans” – documents composed by
9 the undercover agents who bought guns from the defendant – were produced too late in the
10 trial. He claims that this late production violated his rights under Brady v. Maryland, 373
11 U.S. 83 (1963), which obligates the government to disclose favorable evidence to the accused
12 where such evidence is “material” either to guilt or to punishment, and his rights under
13 Giglio v. United States, 405 U.S. 150, 154 (1972), which extends the government’s Brady
14 obligation to material that can be used to impeach government witnesses. The government
15 is obligated to turn over Brady material “no later than the point at which a reasonable
16 probability will exist that the outcome would have been different if an earlier disclosure had
17 been made.” United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001).
18 Hamilton requested the tactical plans on the morning of the second day of trial,
19 immediately before the examination of the government’s first witness. The prosecutor
20 initially claimed that no such plans existed, but almost immediately, after conferring with the
21 witness, the prosecutor corrected the mistake, acknowledged that plans existed and agreed
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1 to produce them. The documents were delivered to Hamilton that afternoon, during the
2 cross-examination of the government’s first witness. The trial was later adjourned early so
3 that the plans could be examined overnight by defendant’s counsel. Hamilton contends that
4 his defense was “hobbled” by the fact that he didn’t receive these tactical plans sooner,
5 despite the fact that the government produced the plans within hours of his request and the
6 witnesses were cross-examined using the tactical plans.
7 “To demonstrate [a violation of his rights under Brady,] a defendant must show that:
8 (1) the Government, either willfully or inadvertently, suppressed evidence; (2) the evidence
9 at issue is favorable to the defendant; and (3) the failure to disclose this evidence resulted in
10 prejudice.” Coppa, 267 F.3d at 140. In this case, defendant has met none of these
11 requirements. The documents were not suppressed, since they were provided during the
12 trial, Hamilton’s counsel was given sufficient time to examine them, and all witnesses to
13 whom the documents were relevant were cross-examined on their contents. Furthermore,
14 Hamilton has provided no coherent explanation of how the tactical plans were favorable to
15 his defense or how he was prejudiced by the Government’s failure to disclose them sooner.
16 Accordingly, there is no reasonable possibility that earlier disclosure of the documents would
17 have altered the jury’s guilty verdict.
18 For the foregoing reasons, the judgment of conviction is AFFIRMED.
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20 FOR THE COURT:
21 CATHERINE O’HAGAN WOLFE, Clerk of Court
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