U.S. v. Harmon, 98-2458

• Decision Date: 18 June 1999
• Docket Number: 98-2728,No. 98-2458,98-3133,98-3089,98-2458
• Citation: 194 F.3d 890
• Parties: (8th Cir. 1999) United States of America, Appellee, v. Daniel Harmon, Jr., and Roger C. Walls, Appellants. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 890

194 F.3d 890 (8th Cir. 1999)

United States of America, Appellee, v. Daniel Harmon, Jr., and Roger C. Walls, Appellants.

No. 98-2458, 98-2728, 98-3089, 98-3133

United States Court of AppealsFOR THE EIGHTH CIRCUIT

Submitted: June 18, 1999

Filed: October 15, 1999

Appeal from the United States District Court for the Eastern District of Arkansas, Western Division

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and KYLE, District Judge.¹

KYLE, District Judge.

On July 11, 1997, a jury convicted Daniel Harmon, Jr., ("Harmon") of racketeering, three counts of conspiracy to extort property, and conspiracy to possess with intent to distribute marijuana. On January 13, 1998, a different jury ² convicted Roger Walls ("Walls") of conspiracy to extort property. On appeal, Harmon and Walls challenge the sufficiency of the evidence used to convict them and the testimony of certain government witnesses. Harmon independently appeals the trial court's ³ denial of his motion for mistrial. Finally, Walls and the United States appeal certain sentencing decisions. We affirm.

I. Background and Sufficiency of the Evidence

At all times relevant to the instant case, Harmon was the Prosecutor for the Seventh Judicial District of Arkansas. As prosecuting attorney, Harmon oversaw the Seventh Judicial District Drug Task Force, of which Walls was the director. The convictions challenged in this appeal relate to two separate sets of criminal activity:(1) several conspiracies in which Harmon and other individuals, including Walls, extorted money from individuals in violation of 18 U.S.C. 1951(a) ("the Hobbs Act"); and (2) a conspiracy among Harmon and others to possess with the intent to distribute marijuana, in violation of 21 U.S.C. 846 and 841(a)(1). Based on these conspiracies, Harmon was also convicted of racketeering acts in violation of 18 U.S.C. 1962.

Harmon and Walls have challenged the sufficiency of the evidence on each of their convictions. "'In reviewing the sufficiency of the evidence to support a guilty verdict, we look at the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict.'" United States v. Davis, 154 F.3d 772, 786 (8th Cir. 1998) (quoting United States v. Plenty Arrows, 946 F.2d 62, 64 (8th Cir. 1991)), cert. denied, 119 S. Ct. 1072, 1078, 1090 (1999). "We will reverse only if 'no reasonable jury could have found the defendant guilty beyond a reasonable doubt.'" United States v. Escobar, 50 F.3d 1414, 1419 (8th Cir. 1995) (quoting United States v. Frayer, 9 F.3d 1367, 1371 (8th Cir. 1993)).

A. The Conspiracies to Extort Property

The government charged that Harmon, along with Walls and other individuals, conspired to extort money from individuals by promising not to prosecute them in exchange for payments of money. The jury found that Harmon engaged in a conspiracy to extort money from Freddie McCaslin ("McCaslin") and LaJean O'Brien ("O'Brien"), and a conspiracy to extort money from Patrick and Tina Davis. The jury also found that Harmon and Walls conspired to extort money from Ernest Varnado ("Varnado"). In order to prove the existence of a conspiracy, "the government must prove beyond a reasonable doubt that there was an agreement to achieve some illegal purpose, that the defendant knew of the agreement, and that the defendant knowingly became a part of the conspiracy." United States v. Ivey, 915 F.2d 380, 384 (8th Cir. 1990). The existence of an agreement may be proved by either direct or circumstantial evidence. See id. To establish an offense under the Hobbs Act, the government must prove beyond a reasonable doubt that: (1) the defendant induced someone to part with property, (2) the defendant acted knowingly and willfully by means of extortion, and (3) the extortionate transaction delayed interrupted, or adversely affected interstate commerce. See United States v. Stephens, 964 F.2d 424, 429 (5th Cir. 1992); 8th Cir. Model Criminal Jury Instructions 6.18.1951 (1996 ed.). Extortion is defined in 18 U.S.C. 1951 as "the obtaining of personal property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, under color of official right." 18 U.S.C. 1951(b)(2).

1. McCaslin/O'Brien Conspiracy

Count 4 alleged a conspiracy between Harmon and Bill Murphy ("Murphy"), an Arkansas criminal defense attorney, to extort money from McCaslin and O'Brien. McCaslin and O'Brien worked together selling drugs and used Murphy as their attorney when they or other members of their operation were arrested. On December 24, 1993, O'Brien was arrested in Benton, Arkansas. Murphy posted O'Brien's bail bond and told her that she would have to pay a substantial fine. The following Monday, O'Brien, Murphy, Harmon and Walls met in Harmon's office. O'Brien testified that Harmon told her that the case would cost $60,000, which included her fine of $40,000, McCaslin's fine of $10,000 from a previous case, and Murphy's attorney's fees in the amount of $10,000. Harmon asked her how long she needed to come up with the money, to which Murphy responded that it would take ten days.

O'Brien testified that the only way she could obtain the money was to sell drugs. After ten days she had made $16,000. O'Brien informed Murphy that she did not have all the money needed to pay her fine. Murphy told O'Brien to bring whatever money she had and the title to her car and meet again with Murphy, Walls and Harmon in Harmon's office. At the meeting she paid $8000 to the three men and gave them the title to her car. She was allowed to keep the remaining $8000 in order to purchase a pawned diamond ring, which she traded in Los Angeles for two pounds of methamphetamine. O'Brien transported the methamphetamine back to Arkansas and sold it for approximately $70,000. She used this money to pay $60,000 to Murphy. O'Brien paid a total of $68,000 as a result of her December 24, 1993 arrest.

O'Brien also testified that at her plea and arraignment hearing, Murphy told her to stay downstairs because he did not want the judge to see her face. O'Brien stayed downstairs while Murphy entered a plea of not guilty. O'Brien had no further court appearances in connection with her December 24, 1993 arrest. O'Brien's case file indicates that the charges against her were dropped.

O'Brien was subsequently subpoenaed to appear in Hot Springs, Arkansas for a hearing related to Murphy. O'Brien testified that Harmon spoke to her outside of the courtroom and told her that when she got on the witness stand, her state case would be taken care of if she "did right" by Murphy. O'Brien responded that she thought that the money she had paid had taken care of the case. Harmon replied, "Well you just really need to do right by Murphy."

McCaslin also testified in Harmon's trial. McCaslin testified that he met with Murphy after O'Brien was arrested and that Murphy had told him that "Danny" (Harmon) wanted $30,000 for O'Brien's charge, $10,000 to prevent revocation of.6 McCaslin's probation, and $10,000 for Murphy's work in handling the deal. McCaslin testified that O'Brien made one payment to Harmon and they both made several payments to Murphy. Finally, FBI financial analyst John Messer testified that the records of the Seventh Judicial District Drug Task Force reflected payments by O'Brien and McCaslin in the amount of $25,000.

Upon careful review of the record, we are satisfied that the evidence, viewed in the light most favorable to the government, was sufficient to support the jury's verdict. The testimony of O'Brien and McCaslin provided evidence upon which a jury could find that Harmon entered into a conspiracy with Murphy to extort money from O'Brien and McCaslin. Specifically, O'Brien and McCaslin's testimony about their meetings with Harmon and Murphy, coupled with the fact that O'Brien was not prosecuted after her arrest, constitutes evidence from which a jury could find beyond a reasonable doubt that Harmon used his position as a prosecutor to obtain money in exchange for not prosecuting O'Brien. Furthermore, the discrepancy between the $68,000 payments testified to by O'Brien and the $25,000 credited to the Drug Task Force account provides additional evidence to support Harmon's conviction under count 4 of the indictment.

2. Varnado Conspiracy

Count 7 alleged a conspiracy between Harmon and Walls to extort money from Earnest Varnado ("Varnado"). Varnado, a Texas resident, was arrested on Interstate 30 in Saline County, Arkansas on December 16, 1992, by officers of the Seventh Judicial District Drug Task Force for possession of a controlled substance. Before being released on bond, Varnado had a conversation with Harmon about his case. Varnado testified that Harmon told him that he needed to pay Harmon some money and pledge the deeds to two houses as surety for the remainder of the money. One of the deeds was for a house owned by Joselyn McCain ("McCain"), Varnado's girlfriend. The total amount to be paid was $110,000.

Following Varnado's release from jail, Harmon, Varnado, and McCain had several phone conversations regarding arrangements for Varnado's payments. The first such payment occurred in Arkadelphia, Arkansas. McCain was present at the meeting and testified that Harmon told her that she could have the deeds back when the balance of the money Varnado owed was paid.

On May 5, 1993, Harmon and Walls drove to Fort Worth, Texas, to pick up Charles McConnel ("McConnel"), a prisoner awaiting extradition to Arkansas. Before picking up McConnel, Harmon and Walls went to Varnado's home to arrest him. Walls encountered Varnado in his bedroom and told Varnado that he was under arrest. Walls started to get his handcuffs when Harmon told Walls that he did not have to handcuff Varnado because Varnado was "too old to run." Walls then showed Varnado his gun, stating, "We've got the guns." No arrest warrant was served on Varnado. Prior...