U.S. v. Harrison
| Decision Date | 13 June 1991 |
| Docket Number | Nos. 89-3152,s. 89-3152 |
| Citation | 931 F.2d 65,289 U.S.App.D.C. 220 |
| Parties | UNITED STATES of America v. Keith HARRISON, Appellant. UNITED STATES of America v. Eric M. BLACK, Appellant. UNITED STATES of America v. Felando F. BUTLER, Appellant. through 89-3154. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Criminal Nos. 89-00094-01, 02 and 03).
Stephen C. Leckar (appointed by the court), for appellant Keith Harrison in 89-3152.
Matthew C. Leefer (appointed by the court), for appellant Eric M. Black in 89-3153.
Michael Olshonsky (appointed by the court), for appellant Felando Butler in 89-3154.
Robert Spagnoletti, Asst. U.S. Atty. of the bar of the Southern District of Texas, pro hac vice, by special leave of the court, with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Roy W. McLeese, and Brenda Johnson, Asst. U.S. Attys., were on the brief, for appellee.
Before MIKVA, Chief Judge, and EDWARDS and THOMAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge THOMAS.
At a joint trial, appellants Keith Harrison, Eric Black and Felando Butler were each convicted of one count of possessing and intending to distribute at least five grams of a mixture of cocaine base, see 21 U.S.C. Sec. 841(a)(1), (b)(1)(B)(iii), and one count of using or carrying a firearm during a drug trafficking offense, see 18 U.S.C. Sec. 924(c)(1). Among other contentions, Harrison challenges the district court's refusal to sever his trial from those of his codefendants, Black asserts a violation of his fifth amendment right against self-incrimination, and Butler challenges the sufficiency of evidence underlying his firearms conviction. We affirm each conviction.
On the evening of March 2, 1989, the District of Columbia police stopped a van bearing a temporary license tag identified by the police as stolen. Harrison was driving the van, Black was sitting in the front passenger seat, and Butler was sitting in the rear.
The three men were ordered out of the van and frisked. According to three of the arresting officers, Harrison was carrying an unregistered handgun in a holster clipped to his belt. Harrison also held $595 in cash, including four $100 bills and one $50 bill. In his pants pocket, Black was carrying about 4.5 grams of nearly pure cocaine base, packaged in eighteen individually wrapped plastic bags. Black was also carrying an unregistered handgun in his waistband. Butler was wearing a bulletproof vest underneath his clothing.
The van itself contained several other items of incriminating evidence. In the rear cargo area, behind Butler's seat, the officers found a gym bag containing over 42 grams of diluted cocaine base. Also in the rear, they found a temporary license tag with a different number from the one on the tag displayed outside the van. They also found a weapons magazine, which contained pictures of the guns carried by Harrison and Black. On the back seat, next to where Butler had been sitting, they found a bag containing another weapons magazine and two fully loaded ammunition clips. Inside the glove compartment they found the vehicle's title, issued in March 1988 to a Randolph Stribling and assigned by Stribling to Harrison. Stribling later testified that he had never driven the van and that he had signed it over to Harrison to "get it out of my name."
At trial, the government introduced expert testimony on the significance of this evidence. The government's expert testified that drug dealers commonly use weapons, bulletproof vests, temporary or stolen license tags, and automobiles purchased through others. He testified that drug sales often generate large cash proceeds and that drug dealers do not expose their operations to third parties unnecessarily. In sum, the expert concluded, the evidence indicated a "street-level distribution network, operating on a mobile basis."
In their respective defenses, Harrison and Butler each claimed ignorance of the misdeeds attributed to the others. Both testified that Black and Butler were hitchhikers barely known to Harrison. Harrison testified that the bag of drugs belonged to Black or Butler, and Butler testified that it was already in the van when he and Black entered. Harrison and Butler each denied knowing that Black had been carrying a weapon and drugs.
When Harrison sought to call Black to the stand, Black refused to testify, invoking his fifth amendment privilege against self-incrimination. Harrison and Butler each moved to sever their trials from Black's in order to obtain Black's testimony. The district court denied both motions.
On appeal, Harrison challenges the district court's refusal to sever his trial from those of his codefendants. Under rule 14 of the Federal Rules of Criminal Procedure, a district court "may ... grant a severance" if "it appears that a defendant ... is prejudiced by a joinder of ... defendants." 1 Because of the rule's permissive language, as well as "the Government's strong [administrative] interest in favor of joint trials," United States v. Perry, 731 F.2d 985, 992 (D.C.Cir.1984), we will not lightly disturb a district court's decision to deny severance. See, e.g., United States v. Manner, 887 F.2d 317, 324 (D.C.Cir.1989) (), cert. denied, --- U.S. ----, 110 S.Ct. 879, 107 L.Ed.2d 962 (1990). We do not reverse "merely because a defendant 'might have a better chance of acquittal if tried separately,' " United States v. Wright, 783 F.2d 1091, 1095 (D.C.Cir.1986) (citation omitted), but "only if we determine that the movant did not get a fair trial," United States v. Halliman, 923 F.2d 873, 884 (D.C.Cir.1991).
Harrison challenges the district court's refusal to sever on the ground that it prevented him from introducing exculpatory testimony by Black, who, Harrison asserts, would have testified on his behalf at a separate trial. This particular claim is governed by United States v. Ford, 870 F.2d 729 (D.C.Cir.1989), in which we set out a general standard "to govern the disposition of severance motions based on the asserted need for a co-defendant's testimony." Id. at 731. Under Ford, in order to establish a prima facie case for severance, a movant must show "(1) a bona fide need for the testimony; (2) the substance of the testimony; (3) the exculpatory nature and effect of the testimony; and (4) the likelihood that the co-defendant will testify if the cases are severed." Id. Failure to demonstrate any one of these elements is dispositive. See id. at 732. 2
In Ford, we held further that the substance of the codefendant's testimony must be established with sufficient specificity "to allow the court reasonably to conclude that the testimony would in fact be 'substantially exculpatory.' " Id. (citation omitted). We applied this specificity requirement quite strictly on the facts of Ford itself.
Glenwood Ford and Timothy Green were jointly convicted of selling PCP to undercover police officer Peter Markland. Markland and Green completed the transaction while Ford waited for Green in his nearby automobile. At trial, Ford testified that he was an unwitting accomplice, having merely agreed to give Green a ride because Green was having car trouble on the night in question. Markland testified against Ford; Green did not testify. Ford moved for a severance, informing the district court that at a separate trial, Green would testify that Ford "had nothing to do with the transaction." Id. The district court denied the motion, and Ford appealed.
In affirming Ford's conviction, we held in part that Ford had not identified the substance of Green's testimony with sufficient specificity. Given the context, we might have indulged an inference that Green, in testifying that Ford "had nothing to do with the transaction," would simply corroborate Ford's testimony. Instead, we noted that Green's testimony was "not necessarily exculpatory," because Green might have testified only that Ford was not physically present when the sale was made. See id. (emphasis added). We concluded, therefore, that Ford's showing "d[id] not provide the specific facts necessary for the District Court to determine that [Ford] 'w[ould] be unable to obtain a fair trial without severance.' " Id. (emphasis added and citation omitted).
In this case, Harrison asserts on appeal that "[t]he substance of ... Black's testimony would have been ... that Harrison didn't know that the two hitchhikers he had picked up on a cold night out of a sense of friendship were carrying drugs and weapons." Brief for Appellant Harrison at 16. We have little doubt that such testimony, if offered, would be sufficiently important and sufficiently exculpatory to meet the first and third prongs of the prima facie showing required by Ford. We find the second prong not met, however, because we can discern nothing in the record from which to conclude that Black's testimony would have been what Harrison now asserts. After moving for a severance, Harrison's lawyer failed to inform the court of the likely content of Black's testimony, and Butler's lawyer asserted only that Black's testimony would be "significantly exculpatory" (as to Butler). Tr. 526. We think it clear that such "conclusory statements by counsel" are patently insufficient to meet the exacting specificity requirement of Ford. See 870 F.2d at 732. 3
Harrison concedes that he failed to set forth "the nature of [Black's] testimony ... in great detail"; nonetheless, he argues that "the nature of Black's testimony was sufficiently obvious" under the circumstances. Brief for Appellant Harrison at 17. Harrison thus invites us to infer content from context. As he explains, since "[t]he physical evidence was irrefutable," Harrison's only conceivable defense was "the issue of...
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