    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.

19
20                                        FOR THE COURT:
21                                        CATHERINE O’HAGAN WOLFE, Clerk of Court
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