U.S. v. Harrison

Citation220 U.S. App. D.C. 124,679 F.2d 942
Decision Date01 June 1982
Docket NumberNos. 80-2431,81-2175,s. 80-2431
Parties, 10 Fed. R. Evid. Serv. 1137 UNITED STATES of America v. Benjamin F. HARRISON, Appellant. (Two cases)
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (Criminal No. 80-00309).

William J. Garber, Washington, D. C., for appellant.

Frederick D. Baron, Asst. U. S. Atty., Washington, D. C., with whom Stanley S. Harris, U. S. Atty., John A. Terry, Michael W. Farrell and James F. Rutherford, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before MacKINNON and MIKVA, Circuit Judges, and WILSON COWEN, * Senior Judge, United States Court of Claims.

Opinion for the Court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

Appellant Benjamin F. Harrison was indicted for possession of a controlled substance with intent to distribute (21 U.S.C. § 841(a)), and for possession of a narcotic drug (33 D.C.Code § 402). A jury found him guilty on the first count. The D.C. charge was subsequently dismissed. Harrison's appeal contends that certain of the evidence admitted against him should have been suppressed and that he was improperly denied a new trial on "new evidence" discovered a year after his conviction. We find no merit in either of these claims and affirm the conviction.

I

At 11:00 p. m. one Friday night in November, 1979, appellant's wife, Carolyn Harrison, was ordered at gunpoint to admit two men into the home she shared with appellant at 1407 Rittenhouse St., N.W., Washington, D.C. The gunmen, who claimed to be looking for money and drugs, tied Mrs. Harrison to a chair and then ransacked the house. Mrs. Harrison remained tied up until approximately 6:00 a. m., when she managed to telephone her brother, who came to the house and cut her loose. (Tr. II 26-28, 43, 52-54, 69). Mrs. Harrison did not see the burglars again, but a few days after the burglary she received a package (which appellant subsequently opened) returning the amount of money taken by them from the house. (Tr. II 55-57, 61-62).

For over a year prior to the burglary, Mrs. Harrison had on numerous occasions noticed her husband bringing marijuana into their house. (Tr. A 6-7). During that period, she had frequently seen him weighing marijuana on his scales, making telephone calls about the sale of marijuana, distributing marijuana in the basement to people who came to the house, and counting large amounts of money. At appellant's request, she had even helped him on one occasion package some marijuana, and in another instance had counted more than $2,000 for him. (Tr. I 32-35, 86).

Several weeks after the November burglary, out of concern for her own safety and dismay over her husband's continued drug dealings, she phoned the District of Columbia Metropolitan Police Department to seek advice. She was referred to Detective Allen R. Penberg, who set out a number of possible courses of action she might pursue. (Tr. A 5-6, 39). For the moment, she decided to do nothing in the hopes things would improve.

Over the next few months, Mrs. Harrison did nothing more vis-a-vis her husband's marijuana activities than to call Detective Penberg periodically (there were four or five calls altogether), to keep him apprised of her husband's continued drug sales. On May 28, 1980, however, in a storage area used by both her and appellant under the basement stairwell, she found two large unsealed boxes containing seventeen packages of marijuana. The boxes had not been there the previous evening. (Tr. A 10, 12, 28).

The next evening, at about 8:00 p. m., she phoned Detective Penberg and asked him to come to her house to remove the marijuana. (Tr. A 12, 19, 36-38). At approximately 8:30 p. m., Detective Penberg, accompanied by Detective Dwight A. Rawls, arrived at the Harrison residence. Mrs. Harrison invited the detectives into the house and expressed her desire that they remove the marijuana from the house as soon as possible. She also told them that appellant had warned her not to call the police in the past. She felt some urgency about removing the marijuana because she was unsure when appellant might return to remove it. (Tr. A 13, 19-20, 47, 53-56).

Following a discussion with the detectives as to how she might protect herself from appellant once the marijuana had been removed, Mrs. Harrison led the detectives to the basement and showed them two cardboard boxes containing marijuana. (Tr. A 20, 47). She knew that she was not required to show them the boxes and could have insisted on a search warrant. (Tr. A 20-21). At Mrs. Harrison's request, the detectives removed the boxes, together with some scales, additional small packages of marijuana, strainers, plastic bags, cigarette papers, sifters, measuring cups, and a ledger sheet containing entries of numbers alongside various names found in some nearby boxes also in the basement. (Tr. A 49-50; Tr. II 44-47, 64).

Mrs. Harrison accompanied the detectives to police headquarters where they prepared a fictitious search warrant that she could show to appellant "for protection." No affidavit was prepared in connection with the fictitious warrant. (Tr. A 21-22, 51). The detectives told Mrs. Harrison that the warrant was invalid. (Tr. A 23). Mrs. Harrison was also given a fictitious citation release form instructing her to appear in court, so that it would appear to appellant that she had been arrested even though she had not. (Tr. A 50).

At headquarters, the detectives took the packages of marijuana from the boxes to examine and weigh them. (Tr. A 24). Detective Penberg, who was accepted as an expert on narcotics, stated that all the paraphernalia seized from appellant's basement could be used in packaging marijuana for distribution. He estimated the "street value" of the marijuana seized as between $7,000 and approximately $13,000, depending upon the units in which it would have been sold. (Tr. II 172-174, 183-184).

II

Following his indictment for violating 21 U.S.C. § 841(a) and 33 D.C.Code § 402, appellant moved to have all the evidence Appellant then made a timely motion for a judgment of acquittal notwithstanding the verdict, or, in the alternative, for a new trial. The motion for new trial claimed support from evidence brought to appellant's attention shortly after trial. It involved two potential witnesses, Thomas Whitney and Linville Miller, who had been subpoenaed by the prosecution on the advice of Mrs. Harrison as possible witnesses to the fact that appellant ran a drug sales operation in the basement of the Harrison home. However, when Whitney and Miller were interviewed by the prosecutor they denied ever purchasing marijuana from appellant, seeing anyone make such a purchase from appellant, or knowing anyone who had done so. The prosecution then excused them as witnesses. Appellant's counsel was not informed of their interrogation.

seized in the Harrison basement suppressed on the grounds that Detectives Penberg and Rawls did not have a search warrant to enter his house and that Mrs. Harrison did not have the authority to release the boxes of marijuana into police custody. The motion was denied and the case proceeded to trial. A jury found appellant guilty of possession of a controlled substance with intent to distribute. The lesser D.C. charge was subsequently dropped.

The court denied without a hearing appellant's motion for j. n. o. v. and for a new trial and sentenced appellant to eighteen months' imprisonment with a two year special parole term. Execution of all but two months of the sentence was suspended in favor of probation for three years with the condition that appellant pay a $5,000 fine.

On July 7, 1981, appellant gained access to documents from the Department of the Treasury that set out interviews conducted by a Secret Service agent with Mrs. Harrison and Detective Penberg about appellant's possible drug dealings with Treasury employees during appellant's employment with the Secret Service from November 4, 1974, to March 27, 1976. The report had not been provided to appellant before trial. Claiming that the report was integral to his case because it disclosed alleged discrepancies in Mrs. Harrison's testimony, appellant moved on September 21, 1981, for a new trial. The motion was denied without a hearing on October 19. This consolidated appeal from the denial of the initial motion for j. n. o. v. or for new trial and the October 19, 1981 new trial motion followed.

III

Appellant contests his conviction on a number of grounds. He argues: (1) that his Fourth Amendment rights were violated by the alleged unauthorized search of his basement and the seizure of the marijuana; (2) that the introduction of evidence that burglars had ransacked his house looking for drugs was plain error insofar as it was hearsay, and was irrelevant to the case; (3) that the testimony concerning his past drug dealing was inadmissible as being prejudicial and similarly irrelevant; (4) that he was deprived of due process by the fact that the prosecution did not disclose to appellant's counsel the interviews with Whitney and Miller; (5) that he was entitled to a new trial once the evidence regarding the Secret Service interviews had come to his attention because that evidence could have been used to his advantage; (6) that Mrs. Harrison's testimony regarding her calls to Detective Penberg was inadmissible because it was given in response to questions by the prosecution calling for hearsay answers; and (7) that the "ledger" sheet was inadmissible and irrelevant because it set out past poker winnings, not money secured through drug dealings as alleged. We find all of these arguments to be without merit.

A. Seizure of the Evidence

It is "well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is...

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