United States v. Kristopher Hamberg , 182 F. App'x 599 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3716
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the District
* of North Dakota.
Kristopher Kai Hamberg, *
* [UNPUBLISHED]
Defendant - Appellant. *
___________
Submitted: May 15, 2006
Filed: May 19, 2006
___________
Before BYE, HANSEN, and SMITH, Circuit Judges.
___________
PER CURIAM.
Kristopher Kai Hamberg was convicted by a jury of one count of conspiracy to
possess with intent to distribute and conspiracy to distribute controlled substances, 21
U.S.C. §§ 841(a) and 846, and 18 U.S.C. § 2, and two counts of using a firearm during
a drug trafficking crime, 18 U.S.C. §§ 924(c)(1)(A) and 2. On appeal, Hamberg
argues there was insufficient evidence to convict him and the district court1 erred
when it refused to allow evidence showing he had been acquitted in state court of
attempted murder. We affirm.
1
The Honorable Rodney S. Webb, United States District Judge for the District
of North Dakota.
Viewed in the light most favorable to the verdict, United States v.
Calderin-Rodriguez, 244 F.3d 977, 983 (8th Cir. 2001), the evidence reveals the
following. In 2003, Hamberg became involved in drug dealing activities with several
people in the Fargo, North Dakota area. At trial, Veronica Bullbear testified she and
her boyfriend, Jason Burnside, began purchasing methamphetamine from Hamberg
in the summer of 2003. Over time, Burnside fell into arrears and Hamberg would only
sell to Bullbear, who became a distributor and received approximately one pound of
methamphetamine from Hamberg. Bullbear testified that in the fall of 2003, she went
to Hamberg's apartment and he sexually assaulted her, claiming it was in payment for
Burnside's outstanding drug debt. After the assault, Hamberg threw
methamphetamine at her and said she would be working for him. He also gave her a
quarter-pound of marijuana. Following the assault, Hamberg continued to search for
Burnside and finally located him at the apartment of Michelle Mercer. Bullbear
testified she and Burnside had gone to Mercer's apartment after being told they could
obtain methamphetamine. While they were at the apartment with Mercer and
Anthony Francis, Hamberg arrived and struck Burnside twice in the face with a
handgun which discharged during the assault.
Burnside testified he began purchasing methamphetamine from Hamberg in the
summer of 2003, and obtained approximately two to three ounces over time. During
his involvement with Hamberg, Burnside saw him in the possession of two 9-mm
handguns. He testified Hamberg told him the guns were used to force people to do
what he wanted, "[l]ike if he needed to scare somebody to get him his money . . . ."
Burnside further testified that in August 2003, Hamberg was looking for him because
he owed approximately $400 for methamphetamine and Bullbear owed Hamberg for
the quarter-pound of marijuana. In September 2003, Francis convinced the pair to
accompany him to Mercer's apartment under the guise of obtaining methamphetamine.
Once there, Hamberg showed up and assaulted Burnside, striking him in the face with
the butt of a gun. Burnside testified Hamberg pointed the gun at his face and when
he reached up to push it away, it discharged.
-2-
Brent Duursma, another drug-acquaintance of Hamberg's, testified he
distributed approximately three to four ounces of methamphetamine for Hamberg over
a two or three month period in the summer of 2003. Duursma observed Hamberg
carrying a .45-caliber handgun and testified he carried it "in case [Duursma] or any
of [his] friends wanted to try and rob him." Duursma testified he was aware Burnside
owed Hamberg money on a drug debt, and described an incident where Hamberg
tracked Duursma down and pointed a gun at his head, threatening to shoot if he did
not tell Hamberg where to find Burnside. Duursma also testified Hamberg threatened
him over the telephone, telling him he would get worse than Burnside. Finally,
Duursma testified to an occasion when he was at Mercer's apartment and Hamberg
threatened him with a gun causing him to flee the apartment.
Anthony Francis testified he found out Burnside owed Hamberg money and
offered to find Burnside and to help Hamberg collect other drug debts. Francis lured
Burnside to Mercer's apartment and contacted Hamberg who arrived and assaulted
Burnside. Francis testified Hamberg struck Burnside with a handgun and the gun
discharged during the assault. Francis testified Hamberg said "I can't believe I
missed," after the gun discharged.
Damien Walkin testified he became acquainted with Hamberg while in jail with
him in the fall of 2003. He testified Hamberg solicited him to help with an alibi and
later arranged to have Walkin bailed out of jail. Walkin further testified Hamberg
admitted using Francis to lure Burnside to Mercer's apartment and bragged about
"smok[ing] him twice with a pistol." Walkin admitted using methamphetamine with
Hamberg and stated he observed him carrying a handgun.
Michelle Mercer also met Hamberg during the summer of 2003. She obtained
small quantities of methamphetamine from him and assisted with his drug operations.
Mercer saw him carrying a handgun and saw him with as much as three ounces of
-3-
methamphetamine at a time. Mercer's testimony confirmed the incidents involving
Hamberg, Burnside and Duursma that occurred at her apartment.
Finally, the government called Marcel Vasquez, Hamberg's original co-
defendant who entered into a plea agreement with the government. Vasquez testified
he was sent to Fargo by another drug dealer to collect $10,000 from Craig Cardenas
– a local dealer. Cardenas had been supplying Hamberg with drugs, and at a meeting
attended by all three, it was agreed Vasquez would begin supplying Hamberg.
Vasquez testified he supplied Hamberg with approximately thirty ounces of
methamphetamine and observed him possess firearms on various occasions.
Hamberg was charged in state court with attempted murder in connection with
the assault on Burnside. In February 2004, he was tried and acquitted. Thereafter, the
United States indicted him on one count of conspiracy to possess with intent to
distribute and conspiracy to distribute controlled substances, and three counts of using
a firearm during a drug trafficking offense. At trial, the district court advised the
parties they could only refer to the state trial as a "prior proceeding," and were not to
give the jury any further information. During Walkin's testimony, however, he
testified to meeting Hamberg while Hamberg was in jail on attempted murder charges.
Hamberg's attorney did not object, but before cross-examining Walkin requested a
sidebar and expressed concern about the reference to the attempted murder charge:
"I'm thinking I'm interested in having an explanation in fairness of completeness about
what happened in that proceeding . . . ." Hamberg's attorney did not request a curative
instruction, but instead wanted Walkin, on cross-examination, to testify Hamberg was
acquitted in state court. The district court refused the request, explaining it would not
allow the "jury to know about the fact that he has been acquitted or convicted of that
prior charge." Hamberg's attorney took no further action. The jury found Hamberg
guilty on all but one of the firearms counts and he was sentenced to 660 months
imprisonment.
-4-
On appeal, Hamberg argues the evidence was insufficient to sustain the
convictions and the district court erred when it refused to allow evidence of his
acquittal on the state charge of attempted murder.
In attacking the sufficiency of the government's evidence, Hamberg does not
argue the government failed to prove a specific element of the offenses. Rather, he
attacks the witnesses' testimony generally, arguing they were unsavory types who
entered into agreements with the government and had great incentive to lie.
Testimony does not become legally insufficient because the witness stands to
gain by lying; the defendant is entitled to cross-examine such witnesses to expose
their motivations, and it is up to the jury to decide whether the witness is telling the
truth despite incentives to lie. In Hoffa v. United States, 385 U.S. 293 (1966), the
conviction depended upon the testimony of an informer who received both money and
clemency for his cooperation. The Supreme Court held his testimony was not
constitutionally inadmissible because he had a motive to lie: "The established
safeguards of the Anglo-American legal system leave the veracity of a witness to be
tested by cross-examination, and the credibility of his testimony to be determined by
a properly instructed jury." Id. at 311.
Hamberg had every opportunity to cross-examine the witnesses about their
cooperation and dealings with the government, and despite vigorous cross-
examination the jury found them credible. Further, there was nothing to suggest the
testimony was inherently incredible. Therefore, the evidence was sufficient.
Hamberg next argues the district court erred in refusing to allow evidence of his
state-court acquittal on the attempted murder charge.2 Hamberg appears to argue it
2
The government argues defense counsel's failure to object at the time the
testimony was elicited waived any objection to Walkin's testimony. We assume,
without deciding, the issue was preserved.
-5-
was unfairly prejudicial for the jury to discover he was charged with attempted murder
without also knowing he was acquitted. Assuming, without deciding, the district court
should have allowed evidence of Hamberg's acquittal, any error was harmless beyond
a reasonable doubt.
We will not reverse a conviction if an evidentiary error is harmless. United
States v. Byler, 98 F.3d 391, 394 (8th Cir. 1996). An evidentiary error is harmless if
the substantial rights of the defendant were unaffected and the error did not influence
or had only a slight influence on the verdict. United States v. Blue Bird, 372 F.3d
989, 994 (8th Cir. 2004). To determine whether the error was harmless the court
reviews the entire record to determine whether the substantial rights of the defendant
were prejudiced. Id.
It can safely be said in this case the evidence against Hamberg was substantial.
No less than seven witnesses testified they observed Hamberg possess and distribute
drugs or were directly involved with Hamberg in drug dealing operations. Several of
those witnesses testified they saw Hamberg use, carry and possess weapons in
furtherance of his drug trafficking operations. While potentially prejudicial, the
unsolicited reference to the attempted murder charge was harmless when viewed in
the context of the overwhelming evidence of guilt.
The judgment of the district court is affirmed.
______________________________
-6-