U.S. v. Harmon, 89-8094

• Decision Date: 01 November 1990
• Docket Number: No. 89-8094,89-8094
• Citation: 918 F.2d 115
• Parties: 31 Fed. R. Evid. Serv. 1073 UNITED STATES of America, Plaintiff-Appellee, v. William James HARMON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 115

918 F.2d 115

31 Fed. R. Evid. Serv. 1073

UNITED STATES of America, Plaintiff-Appellee, v. William James HARMON, Defendant-Appellant.

No. 89-8094.

United States Court of Appeals, Tenth Circuit.

Nov. 1, 1990.

Peter Robinson, Santa Rosa, Cal., for defendant-appellant.

John R. Green, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., with him on the brief), Cheyenne, Wyo., for plaintiff-appellee.

Before McKAY and SETH, Circuit Judges, and PARKER, District Judge ^*.

SETH, Circuit Judge.

Defendant-appellant, William James Harmon, seeks reversal of his conviction of aiding and abetting Thomas William Thomas in possession of approximately nine pounds of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Defendant contends that the trial court abused its discretion (1) in permitting the prosecutor to call Thomas as a witness, and (2) in admitting evidence of other crimes under Fed.R.Evid. Rule 404(b). We affirm the trial court's conclusion that the testimony of Thomas and the evidence of other crimes was properly admitted.

On July 23, 1988, Officer Dan Dyer was patrolling Interstate 80 in Albany County, Wyoming when he noticed a pickup and camper pulling a long silver trailer. Believing the trailer to be of the type commonly used in a commercial enterprise and noticing the absence of a required trip permit from the port of entry or a sticker from the Public Service Commission, Officer Dyer pulled the driver over for a possible commercial vehicle violation. The driver, Thomas, presented Officer Dyer with his driver's license and indicated that he was told at the port of entry that a trip permit was unnecessary. Along with his California driver's license, Thomas produced a vehicle and trailer registration which showed that defendant Harmon was the owner of both. The officer conducted a search of the trailer and seized approximately nine pounds of cocaine from a sealed box attached to the front of the trailer. Thomas was arrested and indicted for possession with the intent to distribute approximately nine pounds of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(ii).

A suppression hearing was held in January 1989 in the proceedings against Thomas to determine whether the stop was proper and whether Thomas had given Officer Dyer permission to search the trailer. The officer maintained that he requested and was given permission to search the trailer to determine whether Thomas was operating a commercial enterprise. Thomas, on the other hand, maintained that he did not give the officer permission to search the trailer. The court found the officer's testimony to be more credible than Thomas' testimony. It concluded that the stop was proper and that Thomas had consented to the search.

Defendant Harmon's ownership of the truck and trailer was established, and he was indicted in February 1989 after the indictment and suppression hearing in the proceedings against the driver, Thomas. Defendant was not in the truck when Thomas was arrested, but after being charged asserted an expectation of privacy to challenge the search. In this challenge he adopted the arguments of Thomas as to the stop and search, including the testimony of Thomas that no consent was given for the search. This testimony as to consent was contrary to that of the officer who made the search.

Thomas subsequently pled guilty to the charges in the proceedings against him and agreed to cooperate with the government. Defendant Harmon then moved the court for reconsideration of its order denying the motion to suppress. The trial court denied defendant's motion.

In a pre-trial motion, defendant moved to exclude Thomas' testimony because the prosecutor would be in a position of arguing to the jury that Thomas' testimony relating to the search was untruthful, but as it related to defendant's involvement it was truthful. The trial court denied defendant's motion and concluded that it was for the jury to determine Thomas' credibility, his ability to perceive due to his drug usage, and his motives for testifying.

Defendant claims that his due process rights were violated when the trial court allowed the government to call Thomas as a witness and asks that his conviction be reversed. Specifically, defendant asserts that the government introduced false testimony through Thomas and argued inconsistent facts to the jury. We disagree.

On appeal, a trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. United States v. Eufracio-Torres, 890 F.2d 266, 272 (10th Cir.1989). Here, we cannot say that the trial court abused its discretion in admitting the testimony of Thomas.

Defendant cites a number of cases in support of his argument but places primary support on United States v. Levario, 877 F.2d 1483 (10th Cir.1989). In Levario, the government used the testimony of a witness as to travel to California as the truth for one count, but asserted it was false as to another count--that of conspiracy. This court held that it was not possible to advance contradictory inferences from the testimony of one witness as to a single event.

Throughout the case before us the government maintained that Officer Dyer's testimony concerning the consent to search was its theory of the case and not that of Thomas as to the consent to search issue. The government did adopt Thomas' testimony that the defendant was involved in the transportation of cocaine from California to Michigan. The government did not argue that Thomas' testimony was untruthful concerning the search and truthful as to defendant's involvement as defendant would have us believe. On the contrary, a review of the transcript shows that the prosecutor reminded the jury that it was its...