U.S. v. Harris

• Decision Date: 01 June 2004
• Docket Number: No. 03-5117.,03-5117.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Efrem Zemblish HARRIS, also known as Base, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

369 F.3d 1157

UNITED STATES of America, Plaintiff-Appellee, v. Efrem Zemblish HARRIS, also known as Base, Defendant-Appellant.

No. 03-5117.

United States Court of Appeals, Tenth Circuit.

June 1, 2004.

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Michael G. McGuire, Tulsa, OK, for the defendant-appellant.

Robert T. Raley, Assistant United States Attorney (David E. O'Meilla, United States Attorney, and Kevin Danielson, Assistant United States Attorney, on the brief), Tulsa, OK, for the plaintiff-appellee.

Before SEYMOUR, BRISCOE, and TYMKOVICH, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Efrem Harris was convicted following a jury trial of having engaged in a drug-related conspiracy, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), (b)(1)(D), 843(b), 846 and 856; possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); and traveling in interstate commerce for the purpose of committing unlawful acts, in violation of 18 U.S.C. § 1952. Due to his criminal history, he was sentenced to a mandatory term of life imprisonment on the conspiracy conviction. Harris appeals his conspiracy and possession with intent to distribute convictions, as well as the life sentence on his conspiracy conviction. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

Defendant's dealings with Clay Harrison

In the summer of 1998, defendant (who went by the street name "Base") traveled from his home in Tulsa, Oklahoma, to El Paso, Texas, where he met Clay Harrison, who lived in El Paso and worked for Southwest Airlines (SWA). Defendant gave Harrison a small suitcase and a "brick" of cocaine wrapped in duct tape and instructed Harrison to put the cocaine in the suitcase and place the suitcase inside one of SWA's Tulsa-bound airplanes. Harrison did as instructed and was paid $500 by defendant.

On November 6, 1998, defendant again met Harrison in El Paso and asked Harrison to perform two tasks. First, defendant gave Harrison two bricks of cocaine and a suitcase and asked him to place the cocaine in the suitcase and place the suitcase inside a Tulsa-bound airplane. Second, defendant asked Harrison to transport a load of marijuana from El Paso to Tulsa. Harrison agreed to perform both tasks. Immediately after the meeting, Harrison drove to the El Paso airport, picked up a car that had been rented for him by defendant, and met an elderly woman who gave him a paper bag full of money to pay defendant's source for the marijuana. Harrison then returned to his home, placed the bag of money under the passenger seat of the rental car, parked the rental car in a lot across from his home, and contacted a man named "Chewie," who was to supply the marijuana. Chewie thereafter called Harrison and informed him the rental car was loaded with marijuana and ready to go.

On the following afternoon (November 7, 1998), after placing the cocaine inside a Tulsa-bound airplane and rewrapping the bundles of marijuana at defendant's direction, Harrison and his girlfriend left El Paso in the rental car and headed for Tulsa. At approximately 11:50 p.m., Harrison and his girlfriend were stopped for speeding in Oldham County, Texas. During a consensual search of the rental car, Texas authorities discovered the marijuana and arrested Harrison and his girlfriend. Harrison waived his Miranda rights, informed the Texas authorities of his arrangement with defendant to transport marijuana, and ultimately agreed to cooperate with the Tulsa police in a controlled delivery of the marijuana.

The controlled delivery took place late on the evening of November 8, 1998. Harrison, with an undercover Tulsa police officer posing as his girlfriend, drove the rental car with the marijuana to a Tulsa convenience store where they met and briefly spoke to defendant. Per defendant's instructions, Harrison and the undercover officer followed defendant to an apartment complex in Tulsa and parked beside defendant's vehicle in the parking lot. Harrison got out of the rental car and into defendant's vehicle. Defendant gave Harrison a bag of money and a baggie of cocaine as payment for transporting the marijuana. Defendant was immediately arrested.

Following defendant's arrest, Tulsa police obtained and executed a search warrant for his apartment (located in the complex where his arrest occurred). The police recovered $80,740 in cash and a loaded semiautomatic handgun from defendant's bedroom. The police also recovered travel receipts confirming that defendant had flown to El Paso on November 5, 1998, and returned to Tulsa on the afternoon of November 6, 1998. Additionally, police recovered a personal phone book that contained a listing for Harrison, as well as a listing for an individual named "Chewie" living in El Paso.

Defendant's dealings with Hubert Wilkerson

In the late summer or early fall of 1998, defendant met a convicted felon named Hubert Wilkerson at a Tulsa health club. Defendant agreed to supply Wilkerson with cocaine to sell. Defendant also showed Wilkerson how to "cook" powder cocaine into crack cocaine. Between approximately November 1998 and June 2000 (and notwithstanding his arrest on November 9, 1998), defendant supplied Wilkerson with cocaine on approximately eight occasions. One transaction involved 4.5 ounces of crack cocaine for which Wilkerson paid defendant $2,500. The remaining transactions involved over 100 ounces of powder cocaine for which Wilkerson paid defendant in excess of $60,000. On each occasion, Wilkerson cooked the powder cocaine into crack cocaine and sold the crack cocaine to other individuals.

On June 16, 2000, Wilkerson was arrested by the Tulsa police and a search warrant was executed on Wilkerson's residence that same day. The police recovered a safe in the garage of Wilkerson's residence, under the hood of an older model truck. They discovered ten small baggies of crack cocaine, approximately $9,000 in cash, and a set of scales inside the safe. Following Wilkerson's arrest, defendant paid Wilkerson's bond, hired an attorney to represent Wilkerson, and urged Wilkerson not to provide any inculpatory information to the grand jury investigating defendant.

Defendant's use of Willie Jackson's residence

On June 17, 2000, the Tulsa police executed a search warrant on a residence located at 4418 North Detroit in Tulsa. The residence was occupied by Willie Jackson and allegedly had been used by defendant to conduct various drug transactions, including approximately three of the cocaine transactions with Wilkerson. During the search of that residence, the police recovered a set of digital scales, 247 counterfeit $100 bills, 2 grams of marijuana, 316 grams of crack cocaine, 59 grams of powder cocaine, and a semiautomatic rifle. Jackson testified that, beginning in March 1998, he allowed defendant to use his residence to store drugs, to "cook" crack cocaine, and to conduct drug transactions.

Procedural background

On June 6, 2002, a federal grand jury returned an eight-count indictment against defendant. Count 1 of the indictment charged that between June 1998 and the date of the indictment, defendant conspired with others (a) to possess with intent to distribute and to distribute in excess of 5 kilograms of cocaine and in excess of 50 grams of cocaine base, (b) to possess with intent to distribute and to distribute marijuana, (c) to use telecommunication facilities to commit or facilitate acts constituting a felony violation of 21 U.S.C. § 843(b), and (d) to establish or maintain a location for the purpose of storing and distributing controlled substances, all in violation of 21 U.S.C. § 846. Count 2 of the indictment charged that on or about November 9, 1998, defendant intentionally possessed with intent to distribute approximately 45 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). Count 3 of the indictment charged that on or about June 16, 2000, defendant intentionally distributed in excess of 50 grams of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). Count 4 of the indictment charged that on or about June 17, 2000, defendant intentionally distributed in excess of 50 grams of a mixture of substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). Count 5 of the indictment charged that from in or about 1998 until December, 2000, defendant "open[ed] and maintain[ed] a place located at 4418 N. Detroit" in Tulsa "for the purpose of manufacturing, storing and distributing or using cocaine and cocaine base," in violation of 21 U.S.C. §§ 856 and 2. ROA, Vol. II, Doc. 1 at 14. Count 6 of the indictment charged that on or about November 7, 1998, defendant knowingly and willfully traveled in interstate commerce between the State of Texas and the Northern District of Oklahoma with the intention of engaging in the distribution of controlled substances, in violation of 18 U.S.C. § 1952. Count 7 of the indictment charged that on or about August 14, 1998, defendant knowingly and willfully traveled in interstate commerce between the State of Texas and the Northern District of Oklahoma with the intention of engaging in the distribution of controlled substances, in violation of 18 U.S.C. § 1952. Count 8 of the indictment sought the forfeiture of money, real property, and a vehicle that allegedly were connected with defendant's illegal activities.

The case proceeded to trial on February 3, 2003.¹ At the conclusion of all the evidence, the jury found defendant guilty on Count 1 (conspiracy), Count 2 (possession of marijuana with intent to distribute on November 9, 1998), and Count 6 (traveling in interstate commerce on or about November 7, 1998, for the purpose of committing unlawful acts), and acquitted defendant on Count 7 (traveling in interstate commerce on or about August 14, 1998, for the purpose of...