U.S. v. Harper, No. 77-1181

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore SETH, Chief Judge, and McWILLIAMS and LOGAN; LOGAN
Citation579 F.2d 1235
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Maurice HARPER, Defendant-Appellant.
Docket NumberNo. 77-1181
Decision Date01 August 1978

Page 1235

579 F.2d 1235
UNITED STATES of America, Plaintiff-Appellee,
v.
Maurice HARPER, Defendant-Appellant.
No. 77-1181.
United States Court of Appeals,
Tenth Circuit.
Aug. 1, 1978.

Page 1237

Vernon E. Lewis, Asst. U. S. Atty., Kansas City, Kan. (James P. Buchele, U. S. Atty., and Douglas B. Comer, Asst. U. S. Atty., Topeka, Kan., with him on the brief), for plaintiff-appellee.

David J. Phillips, Asst. Federal Public Defender, Kansas City, Kan. (Leonard D. Munker, Federal Public Defender, Kansas City, Kan., with him on brief), for defendant-appellant.

Before SETH, Chief Judge, and McWILLIAMS and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

This is an appeal from a conviction by a jury upon a charge of aiding and abetting the distribution of heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The trial judge sentenced defendant-appellant Maurice Harper to a 12-year term, with a special parole term of 6 years, the sentence to be served consecutively to a previously imposed sentence under which defendant was incarcerated at the time of the trial.

Harper raises three issues on appeal: 1) the evidence is insufficient to support the verdict; 2) the court committed "plain error" in instructing the jury on the necessary elements of the offense; and 3) the refusal of a government witness to answer certain questions denied Harper his constitutional rights to confront witnesses against him and of due process.

The evidence adduced at trial showed that agents of the Drug Enforcement Administration (DEA) thought defendant Harper was dealing in drugs. They utilized a confidential informant, Richard Freeman, to attempt a controlled buy of heroin. The agents searched Freeman and his car to insure both were free of drugs, gave Freeman $600 and sent him to Harper's clothing store. Freeman waited outside until defendant Harper arrived and then both went inside. DEA agents maintained surveillance of all movements of the confidential informant from that time until many hours later when Freeman brought them the heroin.

Page 1238

While Freeman was inside the store with Harper, one Michael Hayden entered the shop and then a few minutes later left it. Freeman and Harper remained together the rest of the afternoon and evening, except during one period when Freeman dropped Harper off at a barbershop and later picked him up again. During that time they made trips to a bonding company (with Harper's father-in-law), visited the home of Harper's sister three times, drove to an apartment in Kansas City, Missouri, (with Hayden) and visited Trinity Lutheran Hospital.

Relevant to whether the evidence was sufficient to sustain the verdict, the surveillance indicated that Freeman and Harper went to defendant's sister Janice Harper's residence at about 6:30 p. m. Approximately 45 minutes later Hayden arrived at that residence. Ten minutes later Hayden, Freeman and defendant came out, drove to the Kansas City, Missouri, apartment where they stayed for about 20 minutes before they came out together and drove back to the residence of Janice Harper. After another 10 minutes, Hayden left. Then about 8:30 p. m. defendant and Freeman were observed leaving the residence and driving to Trinity Lutheran Hospital. After entering and leaving the hospital they again returned to defendant's sister's residence, where 15 minutes later Hayden showed up and stayed for about 15 minutes before driving away again. Ten minutes after this last departure of Hayden, Freeman came out, drove to the pre-arranged meeting place and handed DEA Agent Dempsey a substance which tested out as containing heroin.

The government's case consisted of the testimony by the surveillance agents about the controlled buy of the drug, proof of the tests on the drug, testimony of Hayden (who pleaded guilty to the charge of selling heroin), and the abbreviated testimony of Freeman. Defendant's evidence consisted of two individuals who were at the Janice Harper residence, one stating that he did not see defendant and Hayden enter any room together but did see Hayden and Freeman come out of a hallway together. The other stated that she sat on a couch with defendant Harper for several hours at the residence, that he never left the room, but she did see Hayden, Freeman and Janice Harper go into a bedroom together.

Hayden's testimony was that Harper introduced him to Freeman, and outside Freeman's presence asked him to find some heroin which Hayden understood was to be for Freeman. Hayden took money from the defendant, part of which was used to buy the heroin which he turned over to defendant Harper. He did not discuss the drug buy with Freeman because he did not know him, and did not talk to people he did not know. The morning of the trial he pleaded guilty to the charge of selling heroin to Freeman, but...

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44 practice notes
  • U.S. v. Williamson, Nos. 93-3389
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 14 Abril 1995
    ...that the transaction occurred within her line of sight and that she counted a sum of money totalling $2,800. In United States v. Harper, 579 F.2d 1235 (10th Cir.), cert. denied, 439 U.S. 968, 99 S.Ct. 459, 58 L.Ed.2d 427 (1978), we rejected a challenge to the sufficiency of the evidence to ......
  • USA v. Mullins, Nos. 09-1031, 09-1091.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 29 Julio 2010
    ...identity of the principal be established. The prosecution only need prove that the offense has been committed.” United States v. Harper, 579 F.2d 1235, 1239 (10th Cir.1978). As the government didn't have to prove who Ms. Edwards aided and abetted, it follows that the jury didn't have to agr......
  • Hopkinson v. Shillinger, No. 86-2571
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 23 Enero 1989
    ...Because the prosecutor quickly terminated the questioning, we see nothing improper with his conduct. Cf. United States v. Harper, 579 F.2d 1235, 1240 (10th Cir.) (prosecutor did not commit misconduct by calling witness who asserted privilege when prosecutor did not know definitely that witn......
  • State v. Bond, No. 20130361.
    • United States
    • Supreme Court of Utah
    • 30 Septiembre 2015
    ...assume[s] that the possibility of being cited for contempt by the Court would force [the witness] to testify,” United States v. Harper,579 F.2d 1235, 1240 (10th Cir.1978). In sum, a prosecutor does not commit misconduct if he has at least “a colorable—albeit ultimately invalid—argument” tha......
  • Request a trial to view additional results
44 cases
  • U.S. v. Williamson, Nos. 93-3389
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 14 Abril 1995
    ...that the transaction occurred within her line of sight and that she counted a sum of money totalling $2,800. In United States v. Harper, 579 F.2d 1235 (10th Cir.), cert. denied, 439 U.S. 968, 99 S.Ct. 459, 58 L.Ed.2d 427 (1978), we rejected a challenge to the sufficiency of the evidence to ......
  • USA v. Mullins, Nos. 09-1031, 09-1091.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 29 Julio 2010
    ...identity of the principal be established. The prosecution only need prove that the offense has been committed.” United States v. Harper, 579 F.2d 1235, 1239 (10th Cir.1978). As the government didn't have to prove who Ms. Edwards aided and abetted, it follows that the jury didn't have to agr......
  • Hopkinson v. Shillinger, No. 86-2571
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 23 Enero 1989
    ...Because the prosecutor quickly terminated the questioning, we see nothing improper with his conduct. Cf. United States v. Harper, 579 F.2d 1235, 1240 (10th Cir.) (prosecutor did not commit misconduct by calling witness who asserted privilege when prosecutor did not know definitely that witn......
  • State v. Bond, No. 20130361.
    • United States
    • Supreme Court of Utah
    • 30 Septiembre 2015
    ...assume[s] that the possibility of being cited for contempt by the Court would force [the witness] to testify,” United States v. Harper,579 F.2d 1235, 1240 (10th Cir.1978). In sum, a prosecutor does not commit misconduct if he has at least “a colorable—albeit ultimately invalid—argument” tha......
  • Request a trial to view additional results

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