1

The Honorable Rodney S. Webb, United States District Judge for the District

of North Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-3716

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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* [UNPUBLISHED]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. *

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Submitted: May 15, 2006

Filed: May 19, 2006

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Before BYE, HANSEN, and SMITH, Circuit Judges.

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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.
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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.
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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
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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 codefendant 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.
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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. 

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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 crossexamination 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
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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.

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