U.S. v. Harris

• Decision Date: 08 April 2003
• Docket Number: No. 02-1179.,No. 02-1169.,02-1169.,02-1179.
• Citation: 325 F.3d 865
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Barbara A. HARRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

325 F.3d 865

UNITED STATES of America, Plaintiff-Appellee, v. Barbara A. HARRIS, Defendant-Appellant.

No. 02-1169.

No. 02-1179.

United States Court of Appeals, Seventh Circuit.

Argued January 16, 2003.

Decided April 8, 2003.

Andrew B. Baker, Jr., Daniel L. Bella (argued), Office of U.S. Atty., Hammond, IN, for Plaintiff-Appellee.

Robert A. Handelsman (argued), Chicago, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Barbara A. Harris was indicted on one count of possession with intent to distribute crack cocaine, see 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and one count of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). After a jury convicted Ms. Harris on both counts, she was released for one day to place her affairs in order. She failed to surrender and later was arrested in California. Ms. Harris pleaded guilty to one count of failure to appear. See 18 U.S.C. § 3146(a). The court sentenced Ms. Harris to a term of 151 months' imprisonment, five years' supervised release and imposed a total of $300 in special assessments. Judgment of conviction was entered on January 16, 2002, and Ms. Harris filed a notice of appeal the same day. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

Barbara Harris owned a house at 1127 Michigan Avenue in Fort Wayne, Indiana which became the subject of an investigation by the Allen County Police Department. On August 25, 1999, a search of Ms. Harris' trash uncovered a kilogram cocaine wrapper, a crack cocaine stirring stick and plastic sandwich bags. All of these items contained cocaine residue. The police also recovered a razor blade typically used for cutting crack cocaine. On August 27, 1999, officers obtained a warrant and executed it at 1:30 p.m. After knocking and receiving no response, they breached the doors of the well-secured house. Officer Dave Gladieux testified that, upon entrance, he observed Barbara Harris and her co-defendant Terrance Riley standing just inside the doorway to the master bedroom. Ms. Harris was clad only in panties; Riley was wearing only shorts and no shirt. Neither appeared to have been awakened recently. The officers cuffed each of them. In removing a blanket from the bed to cover Ms. Harris, Officer Gladieux observed $21,840 in United States currency on the bed. The officers found several small children upstairs.

Riley identified himself to the officers as Quatrell Ward; Ms. Harris corroborated that identification by nodding that he was Ward. However, Ms. Harris later admitted he was Terrance Riley. With the aid of a dog trained to detect the presence of drugs, the officers searched the bedroom and discovered a Tupperware container of 87.70 grams of recently cooked crack cocaine under a box fan tilted down, presumably to cool the crack. The bowl was very warm to the touch. Detective Craig Wise testified that the crack had a street value of between $8,000 and $10,000, an amount consistent with distribution. Detectives also discovered a police scanner in the headboard of the bed and a loaded 9mm Ruger pistol on top of the headboard. In the kitchen, officers discovered a digital scale, a stirring stick with cocaine residue, plastic sandwich bags and a microwave capable of cooking crack cocaine. Moreover, there was a second loaded 9mm Ruger in a laundry room adjacent to the kitchen.

When questioned, Ms. Harris denied knowledge of any drugs or guns in the house. She stated that she had worked the night before, had come home, stayed up for a while and made food for her children. The Kendallville, Indiana, Nabisco plant's records show that she did work the 10 p.m. to 6 a.m. shift the night before. Ms. Harris told Detective Brian Gore that she was in the bedroom preparing to go to sleep, when Riley ran into the room and threw the money on the bed after emptying it from his pockets. The parties stipulated that Ms. Harris had a prior felony conviction and that the firearms were not manufactured in Indiana, so they must have "traveled across a state boundary line and thus affected interstate commerce." Tr. 9/21/00 at 151.

Terrance Riley testified on Ms. Harris' behalf. Riley had a five-year-old child by Ms. Harris. He testified that they had a rocky "off-and-on" relationship and that he had hidden from Ms. Harris the fact that he had been dealing cocaine and crack cocaine. He testified that she knew he had served prison time for drug dealing. Riley testified that Ms. Harris did not handle the guns, use drugs or sell drugs. He also admitted that he had given Ms. Harris drug money, but that he had told her the money came from a job painting cars.

Riley explained that the drug paraphernalia found in the trash was his and that he had broken down a kilo of cocaine while Ms. Harris was at work. Riley also gave his explanation of what happened on the day of the arrest. He testified that, because his normal place for preparing drugs was unavailable on this day, he had brought the money, scale, materials and drugs into the house while Ms. Harris was sleeping. He had cooked a batch of crack and had placed it on the floor in the bedroom under a fan. Riley testified that he threw the gun and money into the bedroom when he heard the police knocking. He had awakened Ms. Harris to answer the door because there was an outstanding arrest warrant for him. Riley admitted that he originally had told the police that he had thrown the drugs into the bedroom and that they just happened to land under the fan.

B. District Court Proceedings

On September 22, 2000, a jury convicted Ms. Harris on both counts. The jury also found that the violation of 21 U.S.C. § 841(a)(1) involved more than 50 grams of crack cocaine. R.142. As noted previously, after the jury returned its verdicts, the district court released Ms. Harris for one day in order to permit her to place her affairs in order. She did not report at the appointed time and was later apprehended in California. Upon return to Indiana, she eventually pleaded guilty to a charge of failing to appear.

The district court accepted the recommendation of the pre-sentence report that the base offense level for the drug conviction was 32. See R.206 at 21. Two points were added for the specific offense characteristic of two firearms being seized during the search. See id. at 5. The court added two more points for obstruction of justice for Ms. Harris' failure to appear as ordered. See id. at 5, 9. Finally, the court subtracted four points based on her role as a minimal participant, yielding an offense level of 32. See id. at 12-14. The court reached a criminal history category of III, which yielded a range of 151-188 months, and the court imposed the minimum sentence. See id. at 21. In calculating the criminal history category, the court included three points based on prior convictions for criminal conversion (shoplifting). Ms. Harris argued that the prior offenses were to be excluded under U.S.S.G. § 4A1.2(c) because they were similar to passing an insufficient funds check, an excluded offense. The court rejected that argument. See id. at 20. The court grouped the failure to appear conviction with the drug and firearm conviction pursuant to § 3D1.2(c). See Tr. Sentencing Hr'g 1/16/02 at 15-16.

II DISCUSSION

A.

Ms. Harris first submits that the jury's verdict is against the manifest weight of the evidence. In evaluating this contention, we must determine whether, "`after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Ramirez, 796 F.2d 212, 214 (7th Cir.1986) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)). To secure a conviction for violating 21 U.S.C. § 841(a)(1), the Government must prove: 1) knowing or intentional possession of the drug, 2) possession with intent to distribute and 3) knowledge that the drug was a controlled substance. See United States v. Hunter, 145 F.3d 946, 950 (7th Cir.1998); United States v. Covarrubias, 65 F.3d 1362, 1369 (7th Cir.1995).

Ms. Harris contends that Riley's drug manufacturing occurred without her knowledge while she was asleep. She bases her argument on four points of record evidence: 1) The first officer to enter the home saw Ms. Harris in the doorway of the master bedroom in a state of undress, see Tr. 9/21/00 at 25-26; 2) Another officer, upon entering the bedroom with a sniffing dog, saw a fan tipped down toward a dish on the floor, see id. at 47, 65; 3) Several children were in the home at the time of the officers' entry, see id. at 28, 39-40; and 4) An officer described the day as "pretty hot," id. at 40. Ms. Harris argues that her state of undress and the presence of children in the house substantiate her testimony that she had been in the bedroom when the police knocked and was unaware of what Riley was doing with the drugs in another room. She would not have been in other parts of the house in that state of undress, she argues, when children were present in the home. The testimony that the fan was tipped down toward the cocaine corroborates, in her view, Riley's story that the crack had been placed there before the police arrived. The fact that it was a hot day provides an innocent explanation why the fan was on.

The foregoing arguments are jury arguments. They ask the trier of fact to ascribe a particular significance to the adjudicative facts of record. They do not require that the trier of fact accept such an explanation, and they certainly do not establish that there is no evidence of record from which a jury could determine beyond a reasonable doubt that Ms. Harris, by aiding and abetting the activities of Riley, knowingly possessed the cocaine with the intent to distribute it.

Possession of...