U.S. v. Harris, Nos. 89-3205

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPER CURIAM
PartiesUNITED STATES of America v. Lamar HARRIS, a/k/a Cheese, Appellant. UNITED STATES of America v. Gary WYCHE, a/k/a Gary Gunter, Drago, Appellant. UNITED STATES of America v. Donald JOHNSON, a/k/a Danny, Appellant. UNITED STATES of America v. Michael PALMER, a/k/a Knot, Tony, James, Appellant. UNITED STATES of America v. Richard A. SMITH, a/k/a Rich, Mo, Richmo, Appellant. to 89-3207, 89-3217 and 89-3218.
Decision Date03 April 1992
Docket NumberNos. 89-3205

Page 246

959 F.2d 246
294 U.S.App.D.C. 300
UNITED STATES of America
v.
Lamar HARRIS, a/k/a Cheese, Appellant.
UNITED STATES of America
v.
Gary WYCHE, a/k/a Gary Gunter, Drago, Appellant.
UNITED STATES of America
v.
Donald JOHNSON, a/k/a Danny, Appellant.
UNITED STATES of America
v.
Michael PALMER, a/k/a Knot, Tony, James, Appellant.
UNITED STATES of America
v.
Richard A. SMITH, a/k/a Rich, Mo, Richmo, Appellant.
Nos. 89-3205 to 89-3207, 89-3217 and 89-3218.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 8, 1991.
Decided Feb. 19, 1992.
As Amended April 3, 1992.

Page 248

[294 U.S.App.D.C. 302] Appeals from the United States District Court for the District of Columbia (Criminal Nos. 89-00036-02, 89-00036-05, 89-00036-06, 89-00036-01 and 89-00036-03).

Daniel Ellenbogen, Washington, D.C., for appellants in 89-3205, 89-3206, 89-3207, 89-3217 and 89-3218.

Mary E. Davis, Washington, D.C., (appointed by the Court), for appellant Richard A. Smith in 89-3218.

Ronald D. Maines, Washington, D.C., (appointed by the Court), for appellant Michael Palmer in 89-3217.

G. Godwin Oyewole, Washington, D.C., (appointed by the Court), for appellant Donald Johnson in 89-3207.

Robert E. Sanders, Washington, D.C., (appointed by the Court), for appellant Gary Wyche in 89-3206.

Dennis M. Hart, Washington, D.C., was on the joint brief, for appellant Lamar Harris in 89-3205.

Ralph J. Caccia, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Judith E. Retchin, Merrick B. Garland and Ann K.H. Simon, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee in all cases.

Page 249

[294 U.S.App.D.C. 303] Before: RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and THOMAS, * Circuit Justice.

Opinion for the Court filed PER CURIAM.

PER CURIAM:

Five defendants convicted on various charges relating to their drug distribution operations appeal their convictions and sentences. They raise a number of challenges to the conduct of the trial, to the jury instructions, and to the sentencing decisions. We reject all procedural challenges but find the objection to the jury instructions on one of the counts to be well-taken and reverse as to that count. We reject all of the sentencing challenges except two by Gary Wyche, who is entitled to resentencing.

I.

The evidence introduced by the government showed that Michael Palmer, Lamar Harris, Richard Smith, Gary Wyche, and Donald Johnson were participants in a large-scale drug distribution business. Their story is a tangled one, but only its basic outline is necessary to comprehend the claims pressed on appeal. Michael Palmer presided over an organization that imported large amounts of cocaine from New York City and distributed the cocaine in northeast Washington, D.C. The other defendants played various supporting roles in the organization. Their conduct gave rise to convictions under 21 U.S.C. § 861 (formerly section 845b) on charges of drug distribution and of using juveniles (persons under the age of 18) for drug distribution. The kingpin, Palmer, was also convicted of running a Continuing Criminal Enterprise (CCE) under 21 U.S.C. § 848 because of the size and scope of the drug distribution operation, which involved many "runners," couriers, lookouts, and other helpers.

The government secured additional convictions grounded in the defendants' use of weapons. Although most of these counts were based on the usual pattern of employing firearms to intimidate the competition and to protect the operation against the police, some counts were based on the defendants' arrangement to swap drugs for guns. An acquaintance of theirs had provided weapons in exchange for drugs on a number of occasions. He subsequently became a government informant, and the next time the defendants asked him to provide guns for drugs, he set up the transaction monitored by federal agents. When Smith and Harris tendered drugs to the informant, he passed to them a gym bag containing ten guns, including a MAC-10, a favorite of drug dealers. The agents pounced as Harris and Smith were leaving the parking lot where the exchange was consummated, carrying the gym bag with them. Smith was arrested immediately, and the bag with the guns was recovered, while Harris was arrested somewhat later. This transaction led to charges based on possession and use of firearms "during and in relation" to a drug distribution offense under 18 U.S.C. § 924(c) and on possession of an automatic weapon without a permit under 26 U.S.C. § 5861(d).

In addition to several counts of drug distribution and several counts of use of firearms in relation to drug distribution offenses, the defendants were convicted of a conspiracy to distribute drugs and of a conspiracy to use firearms during and in relation to their drug trafficking offenses under 21 U.S.C. § 846 and 18 U.S.C. § 371, respectively. The multiple substantive counts on both the drug and gun offenses served as predicate acts for the conspiracies.

The government also introduced evidence of acts of armed violence by which the defendants attempted to protect their "turf" against competitors. Among other acts of violence, they assaulted Anthony Chung, one of their sellers who failed to pay for cocaine that he was given to sell, and held him for several days in an abandoned apartment. These acts did not lead to convictions but were taken into account by the district court at sentencing in the calculation of the offense levels.

Page 250

[294 U.S.App.D.C. 304] II.

All five appellants argue that the indictment was defective on multiplicity grounds in that Count 1, which charged a conspiracy to distribute cocaine and cocaine base (crack) under 21 U.S.C. § 846, and Count 3, which charged a conspiracy to carry and use firearms during and in relation to a drug trafficking offense under 18 U.S.C. §§ 371, 924(c), are substantially identical because there was only one alleged conspiracy. An indictment is multiplicious, and thereby defective, if a single offense is alleged in a number of counts, unfairly increasing a defendant's exposure to criminal sanctions. See United States v. Israelski, 597 F.2d 22, 24 (2d Cir.1979). We reject appellants' claim.

As an initial matter, we note that four of the five appellants received concurrent sentences on Counts 1 and 3; only Johnson received consecutive sentences, so only he could arguably be harmed by the alleged multiplicity. In any event, appellants did not use the term "multiplicity" until they filed their appeal and did not even allude to such an objection prior to a motion they made midway through the trial. Under the Federal Rules of Criminal Procedure, "objections based on defects in the indictment or information" must be raised before trial. FED.R.CRIM.P. 12(b)(2). The government contends that appellants' multiplicity challenge comes too late. The Supreme Court has said that "the necessary effect of the congressional adoption of Rule 12(b)(2) is to provide that a claim once waived pursuant to that Rule may not later be resurrected ... in the absence of the showing of 'cause' which that Rule requires." Davis v. United States, 411 U.S. 233, 242, 93 S.Ct. 1577, 1582-83, 36 L.Ed.2d 216 (1973).

Appellants claim, however, that a multiplicity objection is not included within the defects contemplated by Rule 12(b)(2), because it is a defect in the sentencing, not in the indictment. On that issue we encounter a circuit conflict. The majority of courts of appeals hold that if the multiplicity objection could have been raised based on the indictment, Rule 12(b)(2) applies. See United States v. Griffin, 765 F.2d 677, 680-82 (7th Cir.1985); United States v. Price, 763 F.2d 640, 643 (4th Cir.1985); United States v. Herzog, 644 F.2d 713, 716 (8th Cir.), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981); United States v. Alessi, 638 F.2d 466, 476 (2d Cir.1980); United States v. Sheehy, 541 F.2d 123, 130 (1st Cir.1976). But see United States v. Bradsby, 628 F.2d 901, 905-06 (5th Cir.1980); United States v. Rosenbarger, 536 F.2d 715, 721-22 (6th Cir.1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977). 1

We think the majority has much the better side of this dispute. The purpose of the rule is to compel defendants to object to technical defects in the indictment early enough to allow the district court to focus on their pretrial objections and, of course, to permit the prosecution to accommodate meritorious challenges, and to do so without disrupting an ongoing trial. As the Supreme Court has said:

If [Rule 12(b)(2) ] time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult.

Davis, 411 U.S. at 241, 93 S.Ct. at 1582. A claim of multiplicity, at least in the typical

Page 251

[294 U.S.App.D.C. 305] case where the defect appears on the face of the indictment, falls clearly within the letter and spirit of the rule. 2

Alternatively, even if appellants were permitted to make their challenge now, we conclude that there is no merit to it, as is clear from examination of the leading Supreme Court case on the issue, Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). The Court held in Albernaz that if two specific conspiracy provisions of the criminal code are predicated on two different substantive offenses that...

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125 practice notes
  • US v. Williams-Davis, Crim. No. 91-0559-01
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 27, 1993
    ...relies on Garrett v. United States, 471 U.S. 773, 785-86, 105 S.Ct. 2407, 2414-15, 85 L.Ed.2d 764 (1985), and United States v. Harris, 959 F.2d 246, 253-54 (D.C. Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 362, 121 L.Ed.2d 275 (1992), and cert. denied, ___ U.S. ___, 113 S.Ct. 364, 121 L.Ed......
  • U.S. v. Palmieri, No. 93-5134
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 11, 1994
    ...1248, 1251 (5th Cir.1989) (requiring knowledge that weapon fell within statutory definition of a firearm); cf. United States v. Harris, 959 F.2d 246, 261 (D.C.Cir.) (requiring knowledge that receipt of weapon was proscribed), cert. denied, --- U.S. ----, 113 S.Ct. 362, 121 L.Ed.2d 275 8 See......
  • United States v. Jungers, Nos. 12–1006
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 7, 2013
    ...but the language [of § 1591] is not so limited.” Smith, 508 U.S. at 239, 113 S.Ct. 2050 (quoting [702 F.3d 1075]United States v. Harris, 959 F.2d 246, 262 (D.C.Cir.1992), abrogated inpart by,United States v. Stewart, 246 F.3d 728, 731 (D.C.Cir.2001)) (internal marks omitted) (interpreting 1......
  • U.S. v. Edmonds, No. 93-1890
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 4, 1996
    ...generally has not required the jury to unanimously agree on the identity of the defendant's co-conspirators. See United States v. Harris, 959 F.2d 246, 256 & n. 13 (D.C.Cir.) (stating this proposition and citing cases), cert. denied, 506 U.S. 932, 113 S.Ct. 362, 121 L.Ed.2d 275, and cert. d......
  • Request a trial to view additional results
125 cases
  • US v. Williams-Davis, Crim. No. 91-0559-01
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 27, 1993
    ...relies on Garrett v. United States, 471 U.S. 773, 785-86, 105 S.Ct. 2407, 2414-15, 85 L.Ed.2d 764 (1985), and United States v. Harris, 959 F.2d 246, 253-54 (D.C. Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 362, 121 L.Ed.2d 275 (1992), and cert. denied, ___ U.S. ___, 113 S.Ct. 364, 121 L.Ed......
  • U.S. v. Palmieri, No. 93-5134
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 11, 1994
    ...1248, 1251 (5th Cir.1989) (requiring knowledge that weapon fell within statutory definition of a firearm); cf. United States v. Harris, 959 F.2d 246, 261 (D.C.Cir.) (requiring knowledge that receipt of weapon was proscribed), cert. denied, --- U.S. ----, 113 S.Ct. 362, 121 L.Ed.2d 275 8 See......
  • United States v. Jungers, Nos. 12–1006
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 7, 2013
    ...but the language [of § 1591] is not so limited.” Smith, 508 U.S. at 239, 113 S.Ct. 2050 (quoting [702 F.3d 1075]United States v. Harris, 959 F.2d 246, 262 (D.C.Cir.1992), abrogated inpart by,United States v. Stewart, 246 F.3d 728, 731 (D.C.Cir.2001)) (internal marks omitted) (interpreting 1......
  • U.S. v. Edmonds, No. 93-1890
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 4, 1996
    ...generally has not required the jury to unanimously agree on the identity of the defendant's co-conspirators. See United States v. Harris, 959 F.2d 246, 256 & n. 13 (D.C.Cir.) (stating this proposition and citing cases), cert. denied, 506 U.S. 932, 113 S.Ct. 362, 121 L.Ed.2d 275, and cert. d......
  • Request a trial to view additional results

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