U.S. v. BOHMONT Nos. 09-2580, 09-2592
United States of America, Appellee, v. Wade Bohmont, Appellant. United States of America, Appellee, v. Colton D. Inmon, Appellant.
United States Court of Appeals, Eighth Circuit.
Filed: March 25, 2011.
Before BYE, GIBSON, and HANSEN, Circuit Judges.
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's
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 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 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.
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 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.
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.
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.
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."
B. Sufficiency of the Evidence
Bohmont and Inmon both challenge the sufficiency of the evidence to support the conspiracy count.
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 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.
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.
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 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,
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 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.
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."
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.
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 nonledger 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."
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.
"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."
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."
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,
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,"
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.
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.
For the foregoing reasons, the district court's judgments and Bohmont's and Inmon's convictions are affirmed.
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