United States v. Wade Bohmont

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2580 *
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United States of America, *
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Appellee, *
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v. *
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Wade Bohmont, *
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Appellant. *
* Appeals from the United States
________________ * District Court for the
* Western District of Missouri.
No. 09-2592 *
________________ * [UNPUBLISHED]
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United States of America, *
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Appellee, *
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v. *
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Colton D. Inmon, *
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Appellant. *
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Submitted: April 14, 2010
Filed: March 25, 2011
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Before BYE, GIBSON,1 and HANSEN, Circuit Judges.
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PER CURIAM.
Wade Bohmont and Colton Inmon were tried in a joint trial for conspiring to
distribute five grams or more of methamphetamine and for possessing with the intent
to distribute five or more grams of methamphetamine. Bohmont was convicted on
both counts; Inmon was acquitted of the possession count but convicted of the
conspiracy count. They each appeal the district court's2 denial of their motions to
suppress evidence gathered during an unwarranted search of Inmon's hotel room and
the district court's3 denial of their motions for judgment of acquittal on the conspiracy
count based on insufficient evidence. Bohmont also brings separate challenges to his
conviction. We affirm.
I.
Late on the evening of May 17, 2006, Colton Inmon rented room 423 at the
Holiday Inn Express in Springfield, Missouri, for one night. He was the only
registered guest, and he paid the rate consistent with a single guest. A security guard
on duty, Francis Bastean, was at the front desk when Inmon checked in, and he
1
The Honorable John R. Gibson retired from service on this court on January
26, 2011. This opinion is being filed by the remaining judges of the panel pursuant
to 8th Cir. Rule 47E. The judgment is consistent with the views expressed by Judge
Gibson in the judges' conference following oral argument.
2
The Honorable Gary E. Fenner, United States District Judge for the Western
District of Missouri, adopting the Report and Recommendation of United States
Magistrate Judge James C. England.
3
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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observed Inmon leave the hotel and return several times, twice accompanied by other
people. When Inmon returned the third time, he was accompanied by a male, later
identified as Wade Bohmont, and a female named Tasha Cook. Inmon, Bohmont, and
Cook left a short time later, and Bohmont and Cook returned with personal
belongings. Each time Inmon left, he carried a black satchel-like bag.
At approximately 3:15 a.m., an individual asked the front desk for directions
to room 423. After that inquiry, Mr. Bastean become concerned with the amount of
traffic in and out of room 423, and he called the police. Officers Ronald Cole and
John Stuart of the Springfield Police Department responded to the call at 3:45 a.m.
and knocked on the door to room 423. Although they heard voices and sounds from
the television when they first knocked, the room became very quiet and no one
answered the door. The officers returned to the lobby, where Mr. Bastean informed
the officers that Inmon had not yet returned to the hotel. While waiting for Inmon to
return, Officer Cole ran a records check and discovered that Inmon's driver's license
had expired. Inmon drove into the hotel parking lot a short time later, and the officers
arrested him for driving without a valid license. At the time of his arrest, Inmon had
a glass "meth" pipe in his back pocket, and the officers located a pair of brass
knuckles and a knife in the car. The officers asked Inmon if anyone was in his hotel
room, and he responded that he had given Spanky (later determined to be Bohmont's
nickname) a key, but that he had already left. Inmon also claimed that he had left the
hotel only once.
The officers took Inmon inside the hotel lobby and told Mr. Bastean that they
were taking Inmon to jail. Mr. Bastean asked the officers to remove the non-
registered individuals from room 423. The officers, accompanied by Inmon and Mr.
Bastean, returned to room 423, where Mr. Bastean unlocked the door with a key card.
During this time, Inmon repeatedly told the officers that no one was in the room, but
Mr. Bastean was unable to open the door because it had been latched from the inside.
The officers knocked several times, identified themselves, and told the occupants they
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needed to come out because they were no longer allowed inside. No one responded.
Mr. Bastean told the officers to use any force to open the door, and Officer Cole
broke the latch. Inside, the officers found Bohmont, Cook, and a third individual
identified as Timmy Turbyeville, who was attempting to hide under the bed. The
officers arrested the three for trespassing, and they then searched the room. The
officers discovered several bags of methamphetamine inside a fanny pack, a blue
duffel bag, and a black bag. The officers also found unused plastic baggies, a black
palm scale, a .45 caliber handgun, a white powder identified as MSM that is typically
used to cut methamphetamine, and other drug paraphernalia. Inside the blue duffel
bag, the officers found a drug ledger, with references to a motorcycle rally on the
Bohmont family ranch and entries labeled "Tim" and "Colt."
Bohmont, Inmon, and Turbyeville were each charged by indictment with two
counts: count I, conspiring to distribute five grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B)(viii); and count II,
possessing with intent to distribute five or more grams of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). Turbyeville pleaded guilty and
agreed to testify against Bohmont and Inmon in exchange for the Government's
promise to recommend a substantial assistance departure at his sentencing. Bohmont
and Inmon filed a motion to suppress the fruits of the search of the hotel room. That
motion was denied, and the case went to trial. A jury returned guilty verdicts on both
counts against Bohmont and on the conspiracy count against Inmon. Inmon was
acquitted of the possession count. Bohmont and Inmon both appeal.
II.
Bohmont and Inmon both appeal the denial of their motions to suppress
evidence found following the search of the hotel room, as well as the denial of their
motions for judgment of acquittal or for a new trial based on insufficient evidence.
Bohmont raises several separate issues, including a Confrontation Clause challenge
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to the limited cross-examination of a DEA chemist; evidentiary challenges to the
district court's rulings concerning the drug ledger, the chain of custody for the
methamphetamine and the related lab reports, and Bohmont's prior convictions; and
the denial of Bohmont's motion for a new trial based on newly discovered evidence
that a government witness tested positive for methamphetamine during trial.4 We
address each argument in turn.
A. Motion to Suppress
Bohmont and Inmon both challenge the district court's denial of their motions
to suppress the evidence seized following the officers' search of the hotel room,
arguing that the officers violated their Fourth Amendment rights to be free of
unreasonable searches. See U.S. Const. amend. IV ("The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . ."). We review a district court's factual findings
supporting its denial of a motion to suppress for clear error, and we review its legal
conclusion that the Fourth Amendment was not violated de novo. See United States
4
Inmon listed in his brief, page 2, the following two issues for review: 1) the
denial of his motion to suppress and 2) whether there was sufficient evidence to
convict him of conspiracy to distribute methamphetamine, as required by Federal
Rule of Appellate Procedure 28(a)(5). He also included a separate "Statement
Regarding Adoption of Briefs of Other Parties," which reads: "Appellant Inmon
hereby adopts the factual and legal arguments set out in the brief of appellant Wade
Bohmont." We construe that statement as an effort by Inmon pursuant to Federal
Rule of Appellate Procedure 28(i) to adopt the factual and legal arguments made in
Bohmont's brief with respect to the two specific issues listed by Inmon for review,
and we permit it. We will not permit the adoption statement to expand the listing of
the two specific issues set out in Inmon's formal Statement of the Issues to include the
other issues listed by Bohmont in his Statement of Issues. The matter is largely an
academic one; our review of Bohmont's arguments on the issues not listed by Inmon
does not disclose any reason to grant Inmon relief even if they had been listed in
Inmon's statement of issues.
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v. Randolph, 628 F.3d 1022, 1024 (8th Cir. 2011). The Fourth Amendment's
"protection against unreasonable searches and seizures extends to a person's privacy
in temporary dwelling places such as hotel or motel rooms." United States v. Conner,
127 F.3d 663, 666 (8th Cir. 1997). Nonetheless, "in order to claim the protection of
the Fourth Amendment, a defendant must demonstrate that he personally has an
expectation of privacy in the place searched, and that his expectation is reasonable."
Minnesota v. Carter, 525 U.S. 83, 88 (1998). An expectation of privacy in the place
searched is defined as "one that has 'a source outside of the Fourth Amendment, either
by reference to concepts of real or personal property law or to understandings that are
recognized and permitted by society.'" Id. (quoting Rakas v. Illinois, 439 U.S. 128,
143-44 (1978)).
We address Inmon's and Bohmont's Fourth Amendment challenges separately,
as each can rely only on his own expectation of privacy. Inmon rented the room that
the officers searched, giving him a reasonable expectation of privacy in the room.
See Conner, 127 F.3d at 666. However, once he was arrested and the officers told the
hotel security guard they were taking Inmon to jail, the security guard asked the
officers to remove all other guests from Inmon's room, as he considered them to be
trespassers with no legitimate basis for being in the room. The officers took Inmon
to the room with them when they went to evict the other occupants at Mr. Bastean's
request, and Inmon was present when the officers knocked on the door and told the
occupants they had to leave because they were trespassing. Even though Mr. Bastean
did not explicitly tell Inmon that he had been evicted from the hotel, we believe these
facts are sufficient to establish that Inmon had in fact been evicted. Missouri law
allows a hotel to eject a person if the hotel operator "reasonably believes that the
individual is using the premises for an unlawful purpose." Mo. Rev. Stat.
§ 315.075(3). Mr. Bastean called the police because of concerns that the room was
being used to traffic drugs. The officers' discovery of drug paraphernalia on Inmon's
person was sufficient to justify Mr. Bastean's concern that there were illegal drugs in
the room and allow him to eject Inmon when the officers arrested him and told Mr.
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Bastean they were taking Inmon to jail. Under our precedent, once an individual is
lawfully ejected from a hotel, the rental period terminates and "control over the hotel
room revert[s] to the management." United States v. Rambo, 789 F.2d 1289, 1295-96
(8th Cir. 1986) (holding that a hotel occupant who was asked to leave by police
officers acting on behalf of hotel management who complained of defendant's
disorderly behavior was justifiably ejected under state law and no longer had a
reasonable expectation of privacy in the hotel room); see also Young v. Harrison, 284
F.3d 863, 869 (8th Cir. 2002) (holding that defendant "was justifiably evicted from
the hotel because his friends created a disturbance" despite absence of any state
statute addressing evictions from a hotel, such that "the control over the hotel room
reverted to the management and [the defendant] '[could] not assert an expectation of
being free from police intrusion upon his solitude and privacy in a place from which
he has been justifiably expelled'" (quoting Rambo, 789 F.2d at 1296)). Thus, at the
time the officers forcibly entered the hotel room at Mr. Bastean's request, Inmon had
no reasonable expectation of privacy in the hotel room, and the subsequent search of
the room did not violate his Fourth Amendment rights.
Bohmont's expectation of privacy in Inmon's hotel room is even more
attenuated. Bohmont did not rent the room, and the district court determined that he
was not Inmon's overnight guest but rather was nothing "more than [a] 'mere visitor[]
in the room.'" (R&R at 14.) This distinction deprives Bohmont of a protected
privacy interest in the hotel room; although "an overnight guest in a home may claim
the protection of the Fourth Amendment, . . . one who is merely present with the
consent of the householder may not." Carter, 525 U.S. at 90. Having carefully
reviewed the record, we conclude that the district court's determination that Bohmont
was a "mere visitor" is not clearly erroneous. The finding is further supported by
Turbyeville's testimony that he went to the hotel room to purchase automobile rims
from Bohmont, indicating that Bohmont was present in the room for purposes of
carrying out a commercial transaction. As noted by the Supreme Court, individuals
have less of an expectation of privacy in commercial property than in residential
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property. See id. (concluding that a visitor present temporarily for a few hours to
carry out the commercial activity of bagging drugs had no reasonable expectation of
privacy in the home); United States v. Sturgis, 238 F.3d 956, 958-59 (8th Cir.)
(holding that a visitor to a hotel room for purposes of distributing drugs failed to
establish a reasonable expectation of privacy in the room), cert. denied, 534 U.S. 880(2001). The Sturgis court relied on the facts that the defendant did not rent the room,
was not an overnight guest, and was present only to deal drugs—a commercial
activity—to hold that the defendant had no interest in the room protected by the
Fourth Amendment. Sturgis, 238 F.3d at 958-59. Bohmont is in the same position
as the defendant in Sturgis, and we are bound by its holding.5 Bohmont had no
reasonable expectation of privacy in Inmon's room, and therefore his Fourth
Amendment rights were not violated by the officers' search.
B. Sufficiency of the Evidence
Bohmont and Inmon both challenge the sufficiency of the evidence to support
the conspiracy count.6 We review de novo a district court's denial of a motion for
judgment of acquittal based on insufficient evidence, looking at whether the evidence
presented at trial was sufficient to sustain the conviction. United States v. Parker, 587
F.3d 871, 880 (8th Cir. 2009). Our review requires us to view the evidence in the
light most favorable to the government and to give the government the benefit of all
reasonable inferences. Id. "Although we may not again weigh the evidence presented
5
As in Sturgis, we affirm the district court's holding that Bohmont failed to
establish a reasonable expectation of privacy, although we disagree with the district
court's use of "standing" terminology to reach that conclusion. See 238 F.3d at 958
(citing Carter, 525 U.S. at 87-88 as "reaffirm[ing the Court's] earlier rejection of
'standing' nomenclature").
6
Bohmont was also convicted of possessing with the intent to distribute five or
more grams of methamphetamine. He does not challenge the sufficiency of the
evidence supporting the possession charge, and we do not address it.
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at trial, it is our task to determine if there is enough evidence in this record that could
support a guilty verdict." Id. (internal quotations, citations, and marks omitted). "A
verdict will only be overturned if no reasonable jury could have found the defendant
guilty beyond a reasonable doubt." United States v. Bowie, 618 F.3d 802, 812 (8th
Cir. 2010) (internal marks omitted), cert. denied, 131 S. Ct. 954 (2011) and cert.
denied, 2011 WL 307993 (2011).
To establish the existence of a conspiracy, the government has the
burden of proving that there was a conspiracy with an illegal purpose,
that the defendant was aware of the conspiracy, that he knowingly
became a part of it, and that he entered into an agreement with at least
one other person and that the agreement had as its objective a violation
of law. Existence of the agreement can be established through
circumstantial evidence[] and can be inferred through the parties'
actions. Furthermore, a defendant may be convicted for even a minor
role in a conspiracy, so long as the government proves beyond a
reasonable doubt that he or she was a member of the conspiracy.
Parker, 587 F.3d at 880 (internal quotations, citations, and marks omitted).
The indictment charged that, beginning on an unknown date at least as early
as May 17, 2006 to May 18, 2006, Inmon, Bohmont, and Turbyeville conspired to
distribute five grams or more of methamphetamine. Construing the evidence in the
light most favorable to the guilty verdict, the three were arrested in the early morning
hours of May 18, 2006, Bohmont and Turbyeville in a room with over 157 grams of
a mixture containing methamphetamine, nearly 40 grams of which was pure
methamphetamine. The methamphetamine was packaged in separate baggies
consistent with distribution. Also found in the room were a cutting agent often used
to dilute methamphetamine, unused baggies, a scale, a handgun, over $4,000 in
currency, and a measuring spoon covered with a white residue—all indications of
drug distribution. The room was rented by Inmon, who came and went from the room
several times with different visitors, one of whom was Bohmont. When Turbyeville
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arrived at the hotel room, Inmon directed him to the back bedroom where Bohmont
and Cook were with the drugs. The evidence established that Turbyeville had
purchased methamphetamine from Bohmont for at least two years prior to their arrest
and that he often sold some of the methamphetamine he purchased to others to help
pay for his addiction. Turbyeville testified that he had purchased distribution
quantities from Bohmont in the past and that he paid Bohmont $1,000 for
methamphetamine that Bohmont had not been able to supply because he was on the
run from law enforcement. Turbyeville testified that he got methamphetamine from
Bohmont's brothers when he could not contact Bohmont. Although Turbyeville went
to the hotel to look at truck rims Bohmont had brought back from St. Louis for him,
he also hoped to get methamphetamine from Bohmont that night and, as was his
custom in their relationship, would have resold some of it to pay for what he used.
When police knocked on the door, Bohmont threw some of the drugs to Turbyeville
to hide or dispose of, and Turbyeville threw them back in the drawer out of which
Bohmont had taken the drugs. A duffel bag containing mail addressed to Bohmont
also contained a drug ledger with entries for the names "Colt" and "Tim," which the
jury could have determined referred to Colton Inmon and Tim Turbyeville.
There is sufficient evidence from which a jury could conclude that Bohmont
was distributing drugs from the hotel room based on the quantity of drugs present in
the hotel room, the additional distribution items found, Bohmont's access to the drugs
in the drawer, and the presence of the drug ledger that the jury could have found
belonged to Bohmont. See United States v. Vanover, 630 F.3d 1108, 1116-17 (8th
Cir. 2011) (sufficient evidence to support conspiracy charge from quantity of drugs
and items of drug trade found in defendant's home). The evidence is also sufficient
to establish that Bohmont and Turbyeville had an agreement for Turbyeville to
purchase methamphetamine from Bohmont, some of which he resold to others, and
that the agreement began prior to May 17, 2006 and continued to that date. See
United States v. Delpit, 94 F.3d 1134, 1152 (8th Cir. 1996) ("[A] series of drug deals
for resale can prove a conspiracy to distribute."). Given this evidence, a reasonable
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juror could have found Bohmont guilty of conspiring to distribute methamphetamine
on the night he was arrested.
The evidence also supports Inmon's conspiracy conviction. The jury could
have concluded that Inmon knowingly provided the room for the distribution of
methamphetamine from the circumstantial evidence that Inmon rented the room and
had a lot of late night traffic to and from his room; that, upon Turbyeville's arrival to
the room, Inmon directed Turbyeville, an individual he did not know, to the back
bedroom where Bohmont was with the drugs; that Inmon allowed Bohmont, Cook,
and Turbyeville to remain in his room while he was gone; that Bohmont called Inmon
when the police knocked on the door, indicating that Bohmont considered Inmon part
of the conspiracy; and that Inmon repeatedly told the officers and the security guard
that no one was in his room as they returned to evict the nonregistered occupants of
the room after Inmon's arrest, from which a jury could conclude that Inmon knew the
room contained illegal drugs. Although it is not a strong case, there is sufficient
evidence from which a jury could conclude that Inmon knowingly allowed Bohmont
to distribute drugs from his hotel room such that Inmon's conviction for conspiracy
to distribute methamphetamine is supported by substantial evidence. See United
States v. Grimaldo, 214 F.3d 967, 976 (8th Cir. 2000) ("Because the evidence
sustains the conclusion that Escobedo-Romero knowingly allowed his apartment to
be used for the storage and distribution of methamphetamine, substantial evidence
supports his conviction for conspiracy."), cert. denied, 531 U.S. 939 (2001).
C. Bohmont's Separate Challenges
1. Confrontation Clause Challenge
Bohmont argues that the district court violated his constitutional right to
confront the witnesses against him when the court limited his counsel's cross-
examination of government witness Anthony Harris, who was the Drug Enforcement
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Administration (DEA) forensic chemist who originally tested the drugs recovered
from the hotel room. Specifically, Bohmont takes issue with the court's ruling that
precluded defense counsel from inquiring into the specific incidents addressed in
DEA disciplinary letters directed to Harris.
The Confrontation Clause provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him."
U.S. Const. amend. VI. Although the Sixth Amendment guarantee includes an
opportunity for effective cross-examination, see United States v. Dale, 614 F.3d 942,
956 (8th Cir. 2010), petitions for cert. filed, __ U.S.L.W. __ (U.S. Nov. 27, 2010)
(No. 10-7835) and __ U.S.L.W. __ (U.S. Dec. 1, 2010) (No. 10-7815), that right is
not unfettered. "District courts 'retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the issues,
the witness'[s] safety, or interrogation that is repetitive or only marginally relevant.'"
Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). To state a viable
Confrontation Clause challenge to the district court's decision to limit cross-
examination, the defendant must establish "that a reasonable jury might have received
a significantly different impression of a witness's credibility had counsel been
permitted to pursue the proposed line of cross-examination." Id. at 957. We will
grant relief based on a district court's decision to limit cross-examination only if the
district court clearly abused its discretion and the defendant was thereby prejudiced.
See United States v. Love, 329 F.3d 981, 984 (8th Cir. 2003).
On direct examination, the government questioned Mr. Harris about the chain
of custody of the drugs. Mr. Harris testified that he retrieved the drugs from their
secure location; combined, weighed, and tested the drugs; and resealed them. He did
not testify as to whether the drugs tested positive for methamphetamine. Harris also
testified on direct examination that he had received a letter of reprimand and a letter
of inattention to duty, and that he was appealing his pending termination from DEA
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employment. In two separate unsolicited answers, he offered that the alleged errors
were clerical in nature. The Government also elicited from Harris that he was under
close supervision at the time he worked on this case and that he was not notified of
any errors in his work in this case. Another DEA chemist, Robert Krefft, later
retested the drugs and testified at trial about the quantities of the drugs involved,
identifying the drugs as methamphetamine. Harris's supervisor, Camela Dubach,
testified that she closely supervised Harris's work product during the time that he
worked on this particular case based on prior administrative errors. In response to a
question about whether Harris made any errors in this case that required correction,
Ms. Dubach testified, "There could have been some administrative errors." (Trial Tr.
at 315.)
Defense counsel was allowed to cross-examine Harris fully about his conduct
relevant to the exhibits at issue in this case and to inquire into the general process of
logging and handling evidence in the lab. When defense counsel questioned Harris
about the alleged clerical errors he had mentioned during his direct examination,
Harris testified that he had never lost or misidentified a piece of evidence. Defense
counsel sought to inquire into a list of infractions discussed in one of the reprimand
letters Harris received from the DEA, but the district court limited the cross-
examination to the facts of Harris's work on the pending case, noting that it was not
going to let the trial turn into a mini-trial of Mr. Harris. We have carefully reviewed
the testimony, and we conclude that the testimony Bohmont's counsel attempted to
elicit would have been cumulative to the evidence already before the jury. See United
States v. Street, 548 F.3d 618, 627 (8th Cir. 2008). The jury already knew that Mr.
Harris had been terminated from the DEA based on concerns with his performance
as a forensic chemist. Allowing counsel to question Mr. Harris about specific acts
concerning other unrelated cases would not have given the jury "a significantly
different impression of [Mr. Harris's] credibility," Dale, 614 F.3d at 957, such that the
district court did not abuse its discretion in limiting the cross-examination of Mr.
Harris to his work in the case at hand.
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2. Evidentiary Challenges
Bohmont challenges three evidentiary rulings. The first concerns the
admissibiltiy of the drug ledger found in the hotel room. Bohmont claims the ledger
should have been excluded because it was not properly authenticated and because it
was inadmissible hearsay. "We review a district court's evidentiary rulings for abuse
of discretion." United States v. Koch, 625 F.3d 470, 479 (8th Cir. 2010).
The Federal Rules of Evidence require that items admitted at trial be
authenticated with "evidence sufficient to support a finding that the matter in question
is what its proponent claims." Fed. R. Evid. 901(a). The contents and appearance of
an item can be used in conjunction with circumstantial evidence to authenticate an
item. See Fed. R. Evid. 901(b)(4). Officer Cole testified that he found a blue bag in
the hotel room in the lower drawer of the television stand and that, among other
items, the blue bag contained a notebook. Officer Cole described the notebook as
similar to drug ledgers found in other narcotics cases, noting that it contained entries
with the names "Tim" and "Colt." The notebook also contained a reference to a rally
held on the Bohmont family ranch. Officer Cole testified that a black pouch
containing marijuana and a measuring spoon with a white substance were found in
the same blue bag, as well as a birthday party invitation addressed to "Spanky," a
nickname used by Bohmont. The evidence offered was sufficient to establish that the
notebook was related to the charged conspiracy; it was found in a bag with drugs and
a card addressed to Bohmont. Officer Cole did not testify that the notebook belonged
to Bohmont, although there was sufficient circumstantial evidence to allow the jury
to infer that it did. The drug ledger was properly authenticated.
Bohmont also challenges admission of the drug ledger as impermissible
hearsay. The only "statements" admitted from the book were ledger entries for the
names "Tim" and "Colt," a notation that said "Save" "half O," and "Shop," and a non-
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ledger reference to "Bohmont" and "rally." Officer Vienhage testified that "O" often
referred to "ounce" so that the reference to "half O" meant a half ounce. However,
none of these "statements" were offered to prove the truth of the matter asserted, i.e.
that certain quantities of drugs were sold to certain individuals. Rather, "[i]t is the
fact that the statements were written, and not the truth of the statements, which was
relevant." Untied States v. Wilson, 532 F.2d 641, 646 (8th Cir.), cert. denied, 429
U.S. 846 (1976); see also United States v. Charles, 366 Fed. Appx. 532, 543 (5th Cir.)
(unpublished) ("[I]t did not matter if what . . . appeared to be standard entries listing
quantities of drugs and the prices for which they were sold were actually sold or sold
in that actual quantity or for that actual price. Rather, it was the existence of the
entries that had significance, independent of their veracity."), cert. denied, 130 S. Ct.
3488 (2010). The ledger was "admitted to show that the type of activities charged in
the indictment were being carried out in the" hotel room. United States v.
Huguez-Ibarra, 954 F.2d 546, 552 (9th Cir. 1992). Contrary to Bohmont's assertion,
the officer testified that the quantities of drugs found in the room were distribution
amounts; he did not testify that the half ounce referenced in the ledger was a
distribution amount. Admission of the ledger did not violate the hearsay rules.
Bohmont's next evidentiary argument challenges the admissibility of some of
the methamphetamine found in the hotel room and the corresponding lab reports
based on an improper chain of custody. The officers located a black bag containing
five individual baggies of drugs during the search, and the black bag was
inadvertently left in the hotel room following the early morning search. A Holiday
Inn employee found the bag later the same morning, gave it to a housekeeping
employee, who gave it to the manager on duty, who contacted the Springfield police
department, who sent an officer to pick it up. The black bag and the five baggies
were then inventoried and placed in the police department's evidence room and
ultimately made their way to the DEA.
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"Where a physical object is offered as evidence in a criminal prosecution, an
adequate foundation for the admission of that object requires testimony first, that such
object is the same object which was involved in the alleged incident, and that the
condition of that object is substantially unchanged." United States v. Robinson, 617
F.3d 984, 990 (8th Cir. 2010) (internal marks omitted). The district court must satisfy
itself that there is a reasonable probability that the physical evidence has not been
changed or altered. Id. The district court is allowed to presume that the integrity of
physical evidence has been preserved absent a showing of bad faith, ill will, or actual
proof that someone has tampered with the evidence. Id.The Holiday Inn employees who discovered the black bag testified at trial
about the discovery of the bag and what they did with it. Officer Cole, who found the
black bag during the search of the hotel room, testified that he took photographs of
the bag and its contents when it was originally discovered, including five baggies of
a substance that appeared to be methamphetamine, and the photographs were
admitted at trial. The DEA chemists testified about their handling of the drugs when
they tested them. To the extent there may have been a gap in the chain between the
time the officers left the bag in the hotel and they recovered it later that morning from
hotel employees, "gaps in the chain of custody normally go to the weight of the
evidence rather than its admissibility." Melendez-Diaz v. Massachusetts, 129 S. Ct.
2527, 2532 n.1 (2009) (internal marks omitted). Likewise, the concerns Bohmont
raises related to DEA chemist Harris's handling of the drugs go to the weight of the
evidence, not its admissibility. Harris's supervisor testified that he was under close
supervision during the time Harris was involved in this case. Without evidence of
bad faith, ill will, or actual tampering, the district court did not abuse its discretion
in presuming the integrity of the evidence was preserved between the time it was
discovered in the hotel room and it was offered into evidence at trial. See Robinson,
617 F.3d at 990.
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Finally, Bohmont challenges the district court's ruling admitting into evidence
his two prior state convictions for possession of marijuana with intent to distribute
and for possession of ephedrine with intent to manufacture methamphetamine. We
review a district court's decision to admit evidence of a defendant's prior convictions
for an abuse of discretion, United States v. Turner, 583 F.3d 1062, 1065 (8th Cir.
2009), cert. denied, 130 S. Ct. 1928 (2010), and "[w]e will reverse only when such
evidence clearly had no bearing on the case and was introduced solely to prove the
defendant's propensity to commit criminal acts," United States v. Gaddy, 532 F.3d
783, 789 (8th Cir.) (internal marks omitted), cert. denied, 129 S. Ct. 587 (2008). The
district court may not allow evidence of prior convictions "to prove the character of
a person in order to show action in conformity therewith," Fed. R. Evid. 404(b), but
it may allow such evidence "for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident," id.Admission of prior convictions for one of these limited purposes is subject to the
district court's wide discretion to exclude evidence where "its probative value is
substantially outweighed by the danger of unfair prejudice." Fed. R. Evid. 403. See
also United States v. Steele, 550 F.3d 693, 700 (8th Cir. 2008).
Bohmont argues that admission of his prior convictions was unduly prejudicial
because the prior crimes related to a different type of drug and were irrelevant to the
limited 24-hour conspiracy alleged in the current charges. "We have frequently
upheld the admission of prior drug convictions for the purpose of proving intent and
knowledge where the defendant denied the charged drug offense," United States v.
Cole, 537 F.3d 923, 928 (8th Cir.), cert. denied, 129 S. Ct. 751 (2008), as Bohmont
did here. Bohmont was charged with possession with intent to distribute and with
conspiracy to distribute methamphetamine. One of his prior convictions involved
drug distribution, and the other involved intent to manufacture the same type of drug
involved in the current case. Further, the drugs involved in the prior convictions need
not be the same as those involved in the charged offense to be relevant to a
defendant's knowledge and intent to distribute controlled substances. See Gaddy, 532
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F.3d at 789-90 (past conviction for distributing marijuana admissible to show intent
and knowledge in charge for distributing cocaine). The fact that the current charged
conspiracy was of a short duration does not make the prior convictions irrelevant.
The district court did not abuse its discretion in admitting Bohmont's prior
convictions.
3. Newly Discovered Evidence
Bohmont argues that he should be given a new trial based on newly discovered
evidence that Turbyeville, a Government witness, submitted a methamphetamine-
positive urine sample on the day he testified at trial. We review the denial of a
motion for a new trial based on newly discovered evidence under an abuse of
discretion standard. United States v. Grover, 511 F.3d 779, 783 (8th Cir. 2007).
Newly discovered evidence entitles a defendant to a new trial only if he can prove
that (1) the evidence was either unknown or unavailable at the time of trial, (2) the
defendant was diligent in discovering it, (3) the new evidence is material, and (4) the
evidence is likely to result in an acquittal in a new trial. Id.Bohmont asserts that the information about Turbyeville testing positive for
methamphetamine on the day he testified at trial would have been material to
Turbyeville's credibility. However, the jury heard other evidence that Turbyeville
was a methamphetamine addict and went to the hotel looking for methamphetamine.
At most, this new evidence is cumulative impeachment evidence, which does not
support a motion for new trial based on newly discovered evidence. See id. ("The
motion is properly denied if the newly discovered evidence is merely cumulative or
impeaching."). The district court did not abuse its discretion in denying Bohmont's
motion for a new trial.
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III.
For the foregoing reasons, the district court's judgments and Bohmont's and
Inmon's convictions are affirmed.
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