310 F.3d 1105 (8th Cir. 2002), 02-1036, U.S. v. Harris

Docket Nº:02-1036.
Citation:310 F.3d 1105
Party Name:UNITED STATES of America, Appellee, v. Jermaine HARRIS, Appellant.
Case Date:October 31, 2002
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1105

310 F.3d 1105 (8th Cir. 2002)

UNITED STATES of America, Appellee,

v.

Jermaine HARRIS, Appellant.

No. 02-1036.

United States Court of Appeals, Eighth Circuit.

October 31, 2002

Submitted: June 11, 2002.Page 1106

[Copyrighted Material Omitted]

Page 1107

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.

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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

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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...

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