Venue, Suppression, Sentencing Claims Rejected
U.S. v. Hamilton, 2009 WL 3647929 (11/5/09) (Published) - The 10th finds the evidence sufficient to establish venue in Kansas, which, in turn, depended on establishing the interdependence between the defendant's acts and those of a co-conspirator. The defendant was responsible for overt acts committed before he joined the conspiracy. Mr. Barker had been arrested when he was found with hundreds of pounds of marijuana in Kansas. The defendant agreed to travel to Cleveland to try to collect on Mr. Barker's drug debts to help defray Mr. Barker's bail and legal costs.. This was meant to further Mr. Barker's drug operation, was not a separate conspiracy and was interdependent with Mr. Barker's acts, even if the defendant's participation was a one-time incident, did not directly pertain to drug distribution and the defendant did not profit financially [the defendant felt morally obligated to help out his half-brother].
Really bad suppression waiver news. Under Fed. R. Crim. P. 12(e), if a defendant does not make a particular argument in favor of suppression, the defendant cannot succeed with that argument on appeal because that argument is waived. It cannot even be reviewed for plain error, absent good cause for failing to raise the argument below. The defendant made no effort to show good cause. The defendant's Terry argument below did not preserve an argument that the detention escalated to an arrest requiring probable cause. His contention below that he did not consent to a search did not preserve an argument that his consent was involuntary.
An officer's one-time mention of the defendant's invoking of his right to silence was error but harmless beyond a reasonable doubt, given that it was isolated and the court gave a good curative instruction. The d. ct. correctly included the defendant's drug distribution prior to his joining the conspiracy as relevant conduct. Although his acts were not part of the conspiracy, they were part of the same course of conduct as his offense of conviction. It was the same type of criminal activity. And the evidence supported a leadership enhancement under ยง 3B1.1(a). The evidence suggested the defendant took over running the trip to Cleveland.
Really bad suppression waiver news. Under Fed. R. Crim. P. 12(e), if a defendant does not make a particular argument in favor of suppression, the defendant cannot succeed with that argument on appeal because that argument is waived. It cannot even be reviewed for plain error, absent good cause for failing to raise the argument below. The defendant made no effort to show good cause. The defendant's Terry argument below did not preserve an argument that the detention escalated to an arrest requiring probable cause. His contention below that he did not consent to a search did not preserve an argument that his consent was involuntary.
An officer's one-time mention of the defendant's invoking of his right to silence was error but harmless beyond a reasonable doubt, given that it was isolated and the court gave a good curative instruction. The d. ct. correctly included the defendant's drug distribution prior to his joining the conspiracy as relevant conduct. Although his acts were not part of the conspiracy, they were part of the same course of conduct as his offense of conviction. It was the same type of criminal activity. And the evidence supported a leadership enhancement under ยง 3B1.1(a). The evidence suggested the defendant took over running the trip to Cleveland.
posted by Anonymous at 1:16 PM
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