U.S. v. Harris, 02-1036.

• Decision Date: 31 October 2002
• Docket Number: No. 02-1036.,02-1036.
• Parties: UNITED STATES of America, Appellee, v. Jermaine HARRIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

310 F.3d 1105

UNITED STATES of America, Appellee, v. Jermaine HARRIS, Appellant.

No. 02-1036.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2002.

Filed: October 31, 2002.

COPYRIGHT MATERIAL OMITTED

Clemens Erdahl, argued, Iowa City, Iowa, for appellant.

Robert L. Teig, argued, Asst. U.S. Attorney, Cedar Rapids, IA (Patrick J. Reinert, Asst. U.S. Attorney, Cedar Rapids, IA, on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD, HEANEY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Jermaine Harris was indicted after a search of his home revealed a weapon, ammunition, and drugs. He pled guilty to the weapons charges and was convicted by a jury of distribution and possession of cocaine base and of conspiracy to distribute and possess with intent to distribute more than fifty grams of a mix containing cocaine base. Harris appeals and argues that the district court¹ erred in its evidentiary rulings and instructions to the jury, that the government presented perjured testimony, that the evidence at trial was insufficient for conviction, that the court erred by enhancing his sentence for possession of a firearm, and that his trial counsel was ineffective. We affirm.

I.

After Harris sold some crack cocaine to an informant who was fitted with a recording device, police executed a search warrant at the house in which he lived. In his upstairs bedroom they found a police scanner, $1190 in cash, drug notes and small plastic bags, an unregistered short barreled.410 gauge shotgun, and a box of .45 caliber ammunition and a loaded magazine. In a bathroom down the hall they found 0.86 grams of crack hidden in the toilet bowl. Harris was the only person in the upstairs area at the time of the search.

Harris was indicted for distribution of cocaine base, 21 U.S.C. § 841(a)(1), (b)(1)(C); possession with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1), (b)(1)(C); conspiracy to distribute and possess with intent to distribute a cocaine base mixture weighing fifty grams or more, 21 U.S.C. § 841(a)(1), (b)(1)(A), 846; possession of an unregistered short barreled shotgun, 26 U.S.C. §§ 5841, 5861(d), 5871; and possession of a firearm by a felon. 18 U.S.C. § 922(g)(2).

His attorney hoped to succeed in excluding evidence related to the shotgun and ammunition at any jury trial and recommended that Harris plead guilty to the weapons charges. Harris subsequently pled guilty to possession of an unregistered short barreled shotgun and to felon in possession of a firearm, and he acknowledged at the plea hearing that he had possessed the shotgun and the forty one rounds of .45 caliber ammunition found in his room.

At trial the government presented a number of witnesses who testified that they had been involved with Harris in drug distribution. Most of them had been convicted of drug related crimes and had reached plea agreements with the government. Robert Watkins testified that he sold Harris a total of seven ounces of crack on three occasions. Watkins also testified that he had reserved a special pager code for customers who purchased significant amounts and that Harris was among them and had mentioned that he had an additional supplier in Iowa City. The notes found in Harris' bedroom contained Watkins' phone number and one of his nicknames ("The Brain").

Wallace Maxwell and Robert Lewis, who both sold drugs with Watkins, corroborated his testimony that Harris had purchased crack from him. They testified that Harris had another cocaine source in the Davenport area whom Lewis identified as "Atticus" and whose name and phone number were contained in the notes found in Harris' bedroom. Maxwell testified that he once traveled with Harris to Davenport, where Harris purchased at least 1½ ounces of crack from Atticus. Harris' former girlfriend, Juanita Heald Perkins, testified that she had also accompanied him to Davenport to buy crack and confirmed that he knew Atticus. Maxwell testified that Harris once showed him three handguns when he visited his bedroom. Maxwell said that he saw .45 caliber,.32 caliber, and .25 caliber guns in Harris' bedroom and that Harris referred to the .45 caliber as "my baby" and refused to let him touch it. Maxwell later acquired the .32 caliber pistol from Harris.

Several other witnesses, including the government informant, testified that they had also purchased crack from Harris on a number of occasions. Shaune Hull testified that he bought crack for resale from Harris on six or seven occasions in early 1997, with at least one transaction occurring in Harris' bedroom. The drugs were frequently packaged in plastic bags. Hull was arrested with the phone number to Harris' house on a piece of paper in his pocket. An audiotape of the informant's transaction was introduced, and during the transaction the informant called the seller "Jermaine" several times.

Harris called a number of witnesses, including family members, fellow employees, and a former girlfriend. They testified that they had never seen him with drugs or guns and did not believe that he sold controlled substances. Several testified that it was not his handwriting on the notes found in his bedroom and that the room was frequently used by other family members. Several denied that the seller's voice on the audiotape was his. Harris' sister testified that she sold crack and frequently used her brother's bedroom to package it and that the only gun she had seen him with was the shotgun, which she claimed was only a decorative antique.

The case was submitted to the jury with a special interrogatory. The jury was instructed to answer this question in the event it found Harris guilty of conspiracy:

What quantity of a mixture or substance containing crack cocaine do you find that Jermaine Harris knowingly combined, conspired, confederated and agreed with other persons to distribute and/or possess with intent to distribute?

(emphasis in original). The form supplied with the interrogatory provided the jury with three options: less than five grams, more than five but less than fifty grams, and fifty or more grams. The jury found Harris guilty of distribution of crack cocaine as well as conspiracy to distribute and possess with intent to distribute and then found that Harris had conspired to distribute fifty or more grams. On the third count, possession with intent to distribute, the jury found Harris guilty of the lesser included offense of possession of crack cocaine.

Harris moved for judgment of acquittal and for a new trial, arguing insufficient evidence and errors in instructing the jury and in admitting evidence of the shotgun and the ammunition. After this motion was denied, Harris obtained new counsel and sought to amend his original motion for new trial, filed a second new trial motion, and moved in arrest of judgment. He also sought to withdraw his guilty plea to the two weapons charges. He renewed his earlier arguments and in addition claimed that the government had made knowing use of perjured testimony at trial and that he had received ineffective assistance of counsel in respect to his decision to plead guilty. After the court held an evidentiary hearing on the claims of perjured testimony and ineffective assistance, it denied all the post trial motions.

At sentencing the court found Harris accountable for more than 150 but less than 500 grams of crack and calculated his base offense level at 34.² See United States Sentencing Commission, Guidelines Manual, § 2D1.1(c)(1) (Nov.2001). It then imposed a two level increase for possession of a firearm. See § 2D1.1(b)(1), for an adjusted offense level of 36. This, combined with a high criminal history category of V based on Harris' prior record, resulted in a sentencing range of 292 to 365 months. The court sentenced Harris to 292 months on the conspiracy charge, at the lowest point of his guidelines range. He also received concurrent sentences of 240 months for distribution of cocaine base, 120 months for felon in possession, 240 months for possession of a short barreled shotgun,³ and 12 months for possession of cocaine base.

II.

On his appeal Harris raises a number of arguments in respect to the district court's rulings at trial and on the post trial motions.

First, he argues that evidence regarding weapons should not have been admitted. This evidence included the shotgun and ammunition found during the search of his bedroom, as well as testimony by Wallace Maxwell that he had seen Harris with three handguns. Harris argues that the weapons evidence was inadmissible under Fed.R.Evid. 404(b) as other crimes evidence which was substantially more prejudicial than probative. Weapons have been recognized to be a tool frequently used to safeguard and facilitate drug transactions, United States v. Matra, 841 F.2d 837, 842 (8th Cir.1988), however, and the evidence has sufficient probative value in this case to overcome any prejudicial effect. Moreover, evidence which merely indicates the "full context of the charged crime" is not governed by Rule 404(b). United States v. Carroll, 207 F.3d 465, 468 (8th Cir.2000). The district court did not abuse its discretion in admitting this evidence. See United States v. Withorn, 204 F.3d 790, 794 (8th Cir.2000) (standard of review).

Harris challenges the court's use of a special jury interrogatory on the quantity of drugs involved in the conspiracy. He contends that the jury should rather have been instructed that drug quantity is an additional element of the offense of conspiracy under 21 U.S.C. § 841(a)(1), (b)(1)(A), 846, requiring proof of involvement with more than fifty grams of a mix containing cocaine base. He relies on the holding in Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), that "any fact (other than a previous conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt."...