U.S. v. Harris

Decision Date11 January 2005
Docket NumberNo. 03-3961.,03-3961.
Citation394 F.3d 543
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Loumard HARRIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Timothy M. Morrison (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Timothy D. Elliott (argued), Kirkland & Ellis, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, KANNE and ROVNER, Circuit Judges.


Loumard Harris was charged with violating 18 U.S.C. § 922(g)(1), which prohibits felons from possessing guns. His first trial ended in a hung jury, but a jury convicted him at a second trial. Between the first and second trials, Harris had a falling-out with his court-appointed attorney and he asked for new counsel. The district court declined his request. The details of the conflict are not for the most part in the record of this direct appeal. Nevertheless Harris appeals his conviction on the grounds that (1) the district court erred in denying his request for new counsel; (2) the denial resulted in ineffective assistance of counsel; and (3) section 922(g)(1) is an unconstitutional exercise of federal power over purely intrastate activities in contravention of the Commerce Clause. Reversals of convictions on direct appeal on the grounds of ineffective assistance of counsel are exceedingly rare in any court, and Judge Easterbrook noted at oral argument that none can be found in this Circuit. Having thoroughly warned the defendant and his lawyer of the steep uphill climb — a vertical climb, really — that they would have to make, they chose to go forward with this direct appeal even though its failure would mean the claims could not be brought later with a fully developed record in a petition for habeas corpus. That consequence now comes to pass as we affirm the judgment of the district court.


Harris continues to contest the government's version of the facts but the discrepancies will not make a difference to the resolution of the appeal. The felon-in-possession charge arose from a traffic altercation between Harris and David Fry, an acquaintance. When the two encountered each other on the road at 10 p.m. on March 30, 2002, they first exchanged heated words and then gunshots were fired. Fry called the police, Harris left the scene and a car chase ensued. Around this time, Officer Scott Childers was driving home from work. He was in uniform and in a marked police car when he heard a report over his radio that shots had been fired and that two vehicles were involved, approaching I-65 from I-70. Officer Childers then saw two vehicles traveling north on I-65 at 70 miles per hour. He fell in behind the gray Oldsmobile driven by Harris and activated his emergency lights and siren. Harris accelerated and then exited the expressway with Officer Childers in close pursuit. Officer Childers lost track of the other car, but stayed with Harris. When Officer Childers was approximately one car length away, he saw Harris throw a gun out the driver's side window of the car as the car approached an intersection. The pistol landed in the grass just off the street and Officer Childers continued his pursuit of Harris. Harris stopped his car a few blocks after exiting the expressway and fled on foot. When Officer Childers caught up to Harris in the backyard of a house, the officer drew his weapon and ordered Harris to the ground. In 10 to 15 seconds, Officers Huff and McElfresh arrived to assist him. Harris admitted to the officers present that he had thrown the gun out of the car window. Childers then drove back to the intersection where he had seen Harris throw the gun and retrieved a semi-automatic pistol.

The gun had been manufactured in California and had been sold to Tamika Jones in March 2001 by a federally licensed firearms dealer. Several hours after Harris pitched the gun from his car window, in the early hours of the morning on March 31, 2002, Jones called the police department and reported the gun stolen, explaining that she noticed it was missing earlier that day. Jones was coincidentally an acquaintance of Harris, having known him for two or three years prior to these events. At the first trial, Jones testified that she did not mention Harris's name to the police when she made the report of a stolen gun that night. At the second trial, she claimed to have reported to police that Harris had been at her home the day she noticed the gun was missing. Nevertheless she testified that she had been out shopping with her mother and a friend that day and returned home to find Harris visiting. Harris then drove Jones's mother and friend to the mother's home. Jones's mother reported that as she left the car, Harris confronted a man she did not know. She later heard gunshots after she entered her home.

The State of Indiana charged Harris with criminal recklessness, resisting law enforcement and possession of a hand-gun without a license. Harris entered a plea agreement to resolve those charges. Subsequently, on November 6, 2002, the federal government charged Harris with violating 18 U.S.C. § 922(g)(1), which criminalizes possession of a firearm by a felon. Harris was arrested on December 3, 2002, and on that same day, Federal Community Defender James McKinley was appointed to represent him. On April 3, 2003, another Federal Community Defender, Kimberly Robinson, also entered an appearance on Harris's behalf. Harris's first trial in early April 2003 ended in a hung jury and the declaration of a mistrial on April 8, 2003. Harris's defense at that trial had been that Fry, not Harris, had tossed the gun out of the car window. The case was set for retrial on June 16.

The record becomes very sketchy at this point but Harris claims that between April 8 and June 16, he sent a number of letters to the district court asking for a new lawyer.1 He claims that McKinley tried to persuade him to enter into a plea agreement and when he refused, the relationship soured. The letters purportedly requesting new counsel are not in the record and Harris speculates that the district court discarded them. This is a curious claim because the district court appears to have retained every other letter Harris sent, including one that he mailed before trial that reached the court after the trial ended.2 R. 49. Of course, because Harris insisted on bringing his claims about McKinley's representation on direct appeal instead of in a collateral proceeding, we have only his word about any of this. He includes a copy of a June 2 letter he claims to have received from McKinley but this letter is not necessarily admissible evidence, and as far as we can tell, it was never evaluated by a trier of fact. In any case, it does not mention Harris's desire to have a new attorney. In the end, the only record evidence we have of Harris's claim that he requested new counsel is a colloquy between Harris and the court on June 16, the date his second trial was to begin. Because it is the only record evidence and because the court's handling of the motion is the main issue on appeal, we repeat the brief colloquy here in its entirety:

Mr. McKinley: Your Honor, Mr. Harris has asked to address the Court.

The Court: All right.

The Defendant: Okay, I got a letter from Mr. McKinley in my case. I have issues to bring up he never brought up. Every time I ask him to do something it's always his best interest. No, sir, this is me. I'm facing 15 to life. This is in my best interest right now. I got the letter there sending over to me that he wasn't going to address issues and issues I knew meant something to my case. My case surrounded these issues. If — they used it for the indictment, for the grand jury, for the magistrate. He's telling me I can't use it. That's violatin' my constitutional right.

The Court: What is that?

The Defendant: The proper (sic) cause, the transcripts from the detention hearing, the grand jury transcripts, it's everything.

The Court: You mean, you want those for yourself, those transcripts?

The Defendant: No, I got them for myself. I was askin' to bring it. He's tellin' me it's irrelevant to the cause right now. One time he told me they don't do proper cause in federal court, then he came back and contradicted and said yes, they do. He's not — he's not — I'm ready to go to trial but not with him.

The Court: You don't get your choice of lawyers, Mr. Harris. And Mr. McKinley is an excellent lawyer. He works in our — in and out this courthouse all the time. I'll deny your motion to remove him as your counsel.

The Defendant: Okay. You can say this because you're sittin' there. This is my life.

The Court: Mr. Harris, if you have a problem — after this case is over — with Mr. McKinley, you can always raise that in your appeal. But we're going to go to trial today.

The Defendant: Sir, I'm sayin' this don't make sense.

The Court: This is the date that was set for trial. You want to raise these issues, you —

The Defendant: I wrote you letters. I sent you stuff over here telling you about these issue. I never got a response back. I wrote him letters —

The Court: I can tell you this. The issues you raised with me were not the kind of issues that would lead me to conclude that your lawyer was not being competent in this case. When he tells you there are things irrelevant, he's probably right.

The Defendant: I came here and look you right in the eye to eye and felt you — I think you're guilty, get you 188 to 235 plea agreement. How would you feel about that situation?

The Court: Part of representation is trying to work out pleas, Mr. Harris.

The Defendant: 188 months, 235 months, that's no plea, that's life.

The Court: Well, you turned it down.

The Defendant: So you're tellin' me you all gonna take me to trial?

The Court: I'm telling you we're going to trial today.

The Defendant: You got witnesses....

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