U.S. v. Harrison

• Decision Date: 03 January 1997
• Docket Number: No. 94-3039,94-3039
• Citation: 322 U.S. App. D.C. 280,103 F.3d 986
• Parties: UNITED STATES of America, Appellee v. George HARRISON, a/k/a Gregory Peck Williams, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 986

103 F.3d 986

322 U.S.App.D.C. 280

UNITED STATES of America, Appellee v. George HARRISON, a/k/a Gregory Peck Williams, Appellant.

No. 94-3039.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 18, 1996.

Decided Jan. 3, 1997.

Appeal from the United States District Court for the District of Columbia (No. 92cr00450).

Jonathan S. Zucker, appointed by the court, argued the cause and filed the briefs, Washington, DC, for appellant.

George Harrison, appearing pro se, was on the separate briefs for appellant.

Steven E. Rindner, Assistant U.S. Attorney, Washington, DC, argued the cause, for appellee, with whom Eric H. Holder, Jr., U.S. Attorney, John R. Fisher, and Thomas C. Black, Assistant U.S. Attorneys, were on the brief. Elizabeth H. Danello, Assistant U.S. Attorney, entered an appearance.

Before: WILLIAMS, GINSBURG, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Opinion dissenting in part filed by Circuit Judge RANDOLPH.

GINSBURG, Circuit Judge:

George Harrison was convicted of six drug and weapon charges. On appeal, Harrison raises a number of evidentiary, statutory, and constitutional arguments for reversal. We affirm his conviction on three counts, reverse on three counts, and remand the matter for resentencing.

I. Background

For much of 1991 and 1992 Harrison ran a drug business out of various apartments at 601 Virginia Avenue, S.W., Washington, D.C. Several women who lived at the apartment building helped Harrison by storing drugs and money for him and on occasion dealing for him. In October 1992 Washington police officers, pursuant to a valid warrant, entered and searched Apartment 507 at 601 Virginia Avenue, the home of Dominga Montivero and her daughter Daniela. The police found 45 grams of crack cocaine in 119 ziplock bags under the kitchen sink. Dominga Montivero told the police that the drugs belonged to Harrison and that he would be returning for them. When Harrison arrived fifteen minutes later, carrying a gun in the waistband of his pants, the police arrested him. Earlier (May 1991) a Maryland state trooper had stopped Harrison on suspicion of driving under the influence of alcohol or drugs. A consensual search of Harrison's car had netted two guns and more than 500 grams of cocaine powder.

A grand jury charged Harrison with (1) conspiracy to distribute and to possess with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846; (2) using and carrying a firearm during the drug trafficking offense charged in Count One, in violation of 18 U.S.C. § 924(c)(1); (3) unlawful possession with intent to distribute five grams or more of cocaine base on or about October 20, 1992, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii); (4) using and carrying a firearm during the drug trafficking offense charged in Count Three, in violation of 18 U.S.C. § 924(c)(1); (5) unlawful possession with intent to distribute cocaine base on or about October 20, 1992, within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a); and (6) unlawful possession of a firearm by a fugitive, in violation of 18 U.S.C. § 922(g)(2). After motions hearings and a trial in the district court, the jury convicted Harrison of all six counts.

II. Analysis

Harrison challenges all six convictions. As to three of them he succeeds.

A. Conspiracy

Harrison argues that there was insufficient evidence to convict him of conspiracy because the individuals with whom he is alleged to have conspired agreed to help him only out of fear that he would hurt them if they did not. Rather than the ringleader of a group of drug dealers, Harrison argues, he was a solo entrepreneur who procured help from weak and defenseless women by threatening to shoot them and by "smacking [them] around." Harrison does not pretend that his method of drug dealing makes him any less a villain, only that the absence of an agreement, "the essential element of conspiracy," Iannelli v. United States, 420 U.S. 770, 789, 95 S.Ct. 1284, 1295, 43 L.Ed.2d 616 (1975), requires reversal of count one.

We may admire Harrison's argument for its daring, but it is unsupported by the record. At least one of Harrison's female minions willingly agreed with Harrison to possess and to distribute drugs. Dominga Montivero testified that she agreed to help Harrison with his drug business, that she helped him to distribute drugs, and that he did not force her to do so. Harrison certainly did use violence and the threat of violence to get his way, but his savage propensities do not render involuntary every agreement made with him. One may agree to join up with an individual whom one fears. When such an alliance may be profitable, it is not even improbable.

Harrison's reliance upon the distinction between aiding and abetting and conspiracy that we drew in United States v. Beckham, 968 F.2d 47, 51 (1992), avails him not. In contrast to the facts of Beckham, here the evidence provides more than a "scant basis for inferring that the defendant and another were joint venturers in a criminal enterprise or had any sort of prior agreement." Id. Accordingly, viewing the evidence in the light most favorable to the Government, as we must, United States v. Jenkins, 981 F.2d 1281, 1283 (D.C.Cir.1992), we hold that there was sufficient evidence for the jury to find that Harrison and Dominga Montivero agreed to possess and to distribute cocaine base.

Harrison also challenges the lawfulness of certain of the evidence proving the conspiracy, namely the drugs and guns that the Maryland state trooper seized from his car. Although Harrison does not deny that he consented to the search after the trooper pulled him over, he argues that the trooper lacked probable cause to make the stop in the first place. We review de novo the district court's determination that the trooper had reasonable suspicion to stop Harrison. Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996).

A police officer may not stop and detain an individual unless he is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The trooper testified that he observed Harrison's car "touch the right lane marking, and then touch the left lane marking." From this swerving of the car, the trooper inferred that Harrison may have been driving under the influence of alcohol or drugs. That was a reasonable inference and an adequate basis for the traffic stop.

B. Possession with intent to distribute a controlled substance within 1,000 feet of a school

Harrison launches three separate but ultimately unsuccessful attacks upon his conviction for violating the schoolyard statute. Although Harrison does not challenge the legality of the search of Dominga Montivero's apartment, he does assert that the police violated his rights under the Fourth Amendment to the Constitution of the United States by remaining in the apartment after the search had been completed. If, of course, the police had not remained in the apartment until Harrison arrived, then the link between Harrison and the 45 grams of crack cocaine found in the apartment would be more tenuous.

Harrison did not raise this objection at trial and the district court did not commit plain error by failing to raise it for him. Harrison has no standing to object to the presence of the police in the Montiveros' apartment because he had no privacy interest in that apartment. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969). Harrison did not live there and was not a guest there; he merely stored his drugs in the apartment, and he may not assert a privacy interest upon that basis. See United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2552-53, 65 L.Ed.2d 619 (1980) (possession of seized good no substitute for factual finding that owner of good had legitimate expectation of privacy in area searched).

Harrison also argues that the prosecution relied upon perjured testimony in establishing a connection between him and the drugs sufficient for the jury to infer that he constructively possessed the drugs. In her testimony before the grand jury Daniela Montivero testified that the last time she had seen Harrison with crack cocaine was in June or July 1992. At trial, however, when asked whether she had ever seen drugs stored in a particular canister Montivero testified that on the morning of October 20, 1992 she saw Harrison give her mother a large number of sandwich bags, which her mother placed in the canister. Technically, Montivero's trial testimony is not even inconsistent with her grand jury testimony: Although Montivero later learned, and may at the time have suspected, that the sandwich bags contained crack cocaine, she did not testify that she saw Harrison with drugs on October 20. Moreover, even if the testimony is inconsistent, an inconsistency between the grand jury and trial statements of a witness does not by itself support an inference that the Government knowingly sponsored false testimony. United States v. Hemmer, 729 F.2d 10, 17 (1st Cir.1984).

Harrison's final challenge to the schoolyard count, that there was insufficient evidence that the drugs found in Apartment 507 were within 1,000 feet of a school, has some merit. At trial a police officer testified that the distance between the school and the main entrance of the building at 601 Virginia Avenue was approximately 472 feet. The Government also showed the jury an aerial photograph of the area including the school and the apartment building.

After the trial in this case, we held that in order to convict under the schoolyard statute the Government must show that the distance from a school to the actual location of the drugs, not simply to the outer wall or main entrance of...