U.S. v. Harlow
| Decision Date | 26 April 2006 |
| Docket Number | No. 04-8074.,04-8074. |
| Citation | 444 F.3d 1255 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gary Wade HARLOW, II, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
L. Robert Murray, Assistant United States Attorney (Matthew H. Mead, United States Attorney, with him on the brief), Cheyenne, WY, for Plaintiff-Appellee.
John M. Nicholson (Douglas C. McNabb with him on the briefs) of McNabb Associates, P.C., Houston, TX, for Defendant-Appellant.
Before O'BRIEN, ANDERSON and McCONNELL, Circuit Judges.
On November 20, 2003, Gary Wade Harlow, II, and Larry Parker were indicted for conspiracy to possess and distribute more than 500 grams of methamphetamine under 21 U.S.C. § 841(a)(1) and (b)(1)(A). On December 30, 2003, Harlow pled not guilty. Parker subsequently entered into a plea agreement with the government, leaving Harlow as the sole defendant at trial. After a three-day jury trial, the jury returned a guilty verdict on April 7, 2004. On appeal, Harlow alleges the prosecutor impermissibly vouched for the credibility of key witnesses and the district court deprived him of his right to poll the jury. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
This case is the last in a series of trials based upon a methamphetamine distribution conspiracy in Gillette, Wyoming, known as the Wolverine Trenching Conspiracy. Harlow, an employee at Wolverine Trenching, was convicted of conspiracy to distribute more than 500 grams of methamphetamine based primarily on his involvement in a delivery of over one pound of methamphetamine from Gillette, Wyoming, to Buna, Texas. During Harlow's trial, the government called six witnesses to testify against him. Five of these witnesses were co-conspirators who had entered guilty pleas pursuant to agreements with the government: Jessie Janway, Rhett Flint, John Villa, Clinton Tullier and Larry Parker. Three of these witnesses, Janway, Flint and Villa, had already received sentence reductions for their background testimony in prior cases involving the same underlying drug conspiracy. During the examination of these three witnesses, the prosecutor introduced their plea agreements, referring to the agreements' cooperation and truthfulness provisions. In addition, he introduced the government's Rule 35(b) motions recommending sentence reductions for these witnesses based on their prior testimony, and their sentence reduction orders signed by the Honorable Alan B. Johnson, the judge at Harlow's trial. The evidence and testimony were received without objection from Harlow's trial counsel.
The relevant provisions of all three witnesses' plea agreements were identical. So too was the prosecutor's examination of the witnesses when introducing the government's motions for a reduction in sentence and the district court's order granting the motion. The prosecutor's exchange with Janway is typical:
Q. Okay. 7-A, that would be [a] motion to reduce your sentence correct?
A. Yes, sir.
Q. And the very last page, that would be Judge Johnson's order reducing your sentence; correct?
A. Yes, sir.
. . .
Q. So you received — today you've already received the benefit of your plea agreement; correct?
A. Yes, sir.
In the examination of the remaining co-conspirators, Tullier and Parker, the prosecutor again referred to the cooperation and truthfulness provisions when introducing their plea agreements, and discussed the possibility of a sentence reduction upon the government's recommendation without objection from Harlow's counsel.
During closing argument, Harlow's counsel returned to a theme developed in his opening argument and carried throughout his cross-examination of the co-conspirators. He argued that the prosecutor was relying on "snitch testimony, testimony that is essentially . . . purchased by the government in the form of time. . . less prison time." Harlow's counsel characterized the "snitch testimony" as "unreliable" and asserted that a witness and "[h]e only has to put a slight twist on his testimony to get the benefit here." (Appellee App. at 341, 343-44.)
In rebuttal, the prosecutor argued:
You know, the government always — it just doesn't matter. Any case where you call coconspirators to testify against the other coconspirators, we've suddenly hopped in bed with the defendants, the coconspirators, and we've hopped in bed with drug dealers. It's the law, ladies and gentlemen. Congress has a part in that process. [It passes] laws that allow the government to give breaks to cooperating coconspirator drug dealers. Separation of powers. It's all here. Congress allows it to happen. The executive branch, representing the executive, we're involved. We use them as witnesses. But what's really important, and you can have a chance to take a look at this, you've got the orders reducing their sentences signed by the judicial branch, Judge Johnson.
(R. at 271; Appellee App. at 354.)
After closing arguments, the final instructions included the following credibility instruction:
The testimony of an alleged accomplice or coconspirator or someone who said he or she participated with another person in the commission of a crime must be examined and weighed by the jury with greater care than the testimony of a witness who did not participate in the commission of a crime. Larry Parker, Clinton Tullier, John Villa, Jesse Janway, and Rhet Flint may be considered to be such witnesses in this case.
The fact that an alleged accomplice or coconspirator has entered a plea of guilty to the offense is not evidence of the guilt of any other person, including the defendant, Gary Wade Harlow II. The Jury must determine whether the testimony of an accomplice or coconspirator has been affected by self-interest or by any agreement he may have with the United States. . . .
. . .
The testimony of a witness who provides evidence against a defendant for personal advantage, sentence reduction, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. . . .
Immediately after the trial court issued its instruction, Harlow's counsel approached the bench and moved for a mistrial or, in the alternative, a curative instruction. He argued the government's closing argument "suggested that because [the trial court's] signature was on these [sentencing reduction orders] that somehow the [trial judge] was vouching for the credibility of these witnesses." (Appellee App. at 361.) The district court denied the motion for a mistrial but granted the request for a curative instruction. It gave the following instruction to the jury:
There was reference made to me having signed an order approving a plea agreement by and between the parties. I'd explain to you that I review plea agreements and decide whether or not they violate any public policy as part of the duties that the judge has in every case. I don't vouch for the credibility of any of the witnesses who have appeared here before this court. That is your job. That is not my job. And I don't make that decision in a case. You're the ones who see the witnesses testify, consider their testimony and, under the instructions of the Court, are the judges of the facts and the weight and credibility of the witnesses.
(R. at 275; Appellee App. at 362.)
After approximately three hours, the jury rendered its guilty verdict. Prior to entering judgment, the district court stated: "Counsel, if you wish to examine the verdict, you should feel free to do so." (R. at 278.) Harlow's counsel did not respond.
The court proceeded to discuss the case with the jury, stating this trial brought an end to a case that had been pending for a long time and had consumed considerable court resources; The district court then commented on a personal conversation with Special Agent Hamilton (a government witness during the trial) which revealed that over 168 children in Gillette, Wyoming, were implicated in the use of methamphetamine provided by the conspiracy involving Harlow and the terrible impact of methamphetamine on communities. The court also advised the jurors that they had rendered a public service on par with the jurors of several highly publicized cases. At the conclusion of the court's comments, Harlow's counsel finally requested a poll. When asked individually, each juror agreed with the verdict.
On July 1, 2004, Harlow was sentenced to 120 months imprisonment.1 Judgment was entered on July 6, 2004. On July 23, 2004, Harlow filed a notice of appeal through new counsel.
On appeal, Harlow argues: (1) the prosecutor improperly vouched for the credibility of key witnesses and (2) the district court deprived him of his right to a jury poll.
Harlow contends the prosecutor's introduction of witnesses' plea agreements, Rule 35(b) motions and sentence reduction orders,2 coupled with the prosecutor's statement in rebuttal closing argument implying that the judge had signed off on the credibility of these witnesses, constituted impermissible vouching.3
Because Harlow did not object to the admission of this evidence and testimony, we review for plain error. United States v. Magallanez, 408 F.3d 672, 679-80 (10th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 468, 163 L.Ed.2d 356 (2005). "Plain error is fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done." United States v. Henning, 906 F.2d 1392, 1397 (10th Cir.1990) (internal quotation omitted). Before we can correct an error not raised at trial, the defendant must establish: (1) error, (2) that is plain, and (3) that affects substantial rights. Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144...
To continue reading
Request your trial
-
United States v. Sorensen
...harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.” United States v. Harlow, 444 F.3d 1255, 1269 (10th Cir.2006) (quoting United States v. Rosario Fuentez, 231 F.3d 700, 709 (10th Cir.2000) ). If we find multiple errors, we “aggregate......
-
U.S. v. Wardell
...errors has the potential to prejudice a defendant to the same extent as a single reversible error.'") (quoting United States v. Harlow, 444 F.3d 1255, 1269 (10th Cir.2006)). First, Mr. Wardell cannot benefit in this analysis from any errors argued by Mr. Pursley unless Mr. Wardell also has ......
-
U.S. v. Fields
...with cumulative-error review, which similarly mandates relief if sufficient cumulative prejudice is evident. United States v. Harlow, 444 F.3d 1255, 1269 (10th Cir.2006) ("Unless an aggregate harmlessness determination can be made, collective error will mandate reversal, just as surely as w......
-
U.S. v. Wardell
...errors has the potential to prejudice a defendant to the same extent as a single reversible error.'" (quoting United States v. Harlow, 444 F.3d 1255, 1269 (10th Cir.2006)). First, Mr. Wardell cannot benefit in this analysis from any errors argued by Mr. Pursley unless Mr. Wardell also has a......