U.S. v. Harvey

• Decision Date: 17 April 2007
• Docket Number: No. 05-2897.,05-2897.
• Citation: 484 F.3d 453
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry HARVEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

484 F.3d 453

UNITED STATES of America, Plaintiff-Appellee, v. Larry HARVEY, Defendant-Appellant.

No. 05-2897.

United States Court of Appeals, Seventh Circuit.

Argued September 7, 2006.

Decided April 17, 2007.

Rita M. Rumbelow (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Richard H. Parsons, Johanna M. Christiansen (argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before RIPPLE, KANNE, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

After Larry Harvey was caught driving with drugs and a gun in his glove compartment, he wound up facing a federal indictment charging him with violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1)(A). Section 841(a)(1), as relevant to Harvey, prohibits possession of cocaine base with intent to distribute it; section 924(c) prohibits in various ways the use, carrying, or possession of a firearm when there is some nexus to either a crime of violence or a drug trafficking crime. In Harvey's case, the language used in the indictment to charge his § 924(c) "carrying" offense differed slightly from the wording of the statute. Harvey pleaded guilty to both counts of the indictment, but he now claims that the § 924(c) count failed to charge a federal offense. He argues that the poorly-crafted indictment should be dismissed, or, in the alternative, that he should be allowed to withdraw his guilty plea. Harvey also protests that the district court erred by ordering him to submit to drug testing at the direction of the probation officer as a condition of his supervised release. Finding no error, we affirm.

I

Harvey was driving his car in Beloit, Wisconsin, on January 7, 2005, when some police officers pulled him over for a traffic violation. As one officer approached the car, he noticed open beer bottles inside the car and asked the occupants to step out of the vehicle. His suspicions were aroused immediately when the passenger fled on foot. Harvey was wise enough not to do that; instead, he cooperated while the officers conducted a pat-down search, which turned up $2,500 cash in his pants pocket. The officers then arrested Harvey and searched the rest of the car. In the glove box, they found 50.07 grams of crack cocaine, 11.74 grams of powder cocaine, 15.2 grams of marijuana, a digital scale, a loaded .32 caliber KelTec handgun with an obliterated serial number, and a Wisconsin certificate of title to an automobile bearing Harvey's name.

On January 26, 2005, a grand jury returned a two-count indictment, charging Harvey with possession of more than five grams of a mixture or substance containing cocaine base with intent to distribute and with "knowingly and intentionally carr[ying] a firearm . . . in furtherance of a drug trafficking crime. . . ." Harvey pleaded guilty to both counts. He was sentenced to 96 months' imprisonment on the first count, and a consecutive 60 months on the second, which added up to a combined sentence of 156 months, all of which was to be followed by a five-year term of supervised release.

II

Harvey argues that the second count of the indictment fails to charge him with a federal offense. Count 2 accuses Harvey of violating 18 U.S.C. § 924(c)(1), which provides, in relevant part:

[A] ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime . . . be sentenced to a term of imprisonment of not less than 5 years. . . .

18 U.S.C. § 924(c)(1)(A)(I). Harvey claims that § 924(c) defines two distinct offenses: one makes it illegal to use or carry a firearm during and in relation to a crime of violence or drug trafficking crime; and the other makes it a crime to possess a firearm in furtherance of any such crime. The indictment, he continues, does not follow either pattern. Instead, it mixes the "carrying" language of the first part with the "in furtherance of" phrase of the second part. This, Harvey argues, amounts to the creation of an impermissible hybrid § 924(c) offense.

We consider first whether, in light of the fact that Harvey pleaded guilty, we should reach this argument at all. As we pointed out in United States v. Behrman:

[The] contention that all constitutional arguments always may be presented despite promises made in plea agreements (and no matter what the agreement says) is impossible to reconcile with cases such as Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), and Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), which hold that by pleading guilty defendants waive all objections — including constitutional objections — to their convictions. Only arguments that would nullify the plea itself survive. If a voluntary guilty plea may waive a basket full of potential constitutional objections to searches and seizures, confessions, and the validity of the indictment and prosecution (including claims under the double jeopardy clause that logically would preclude any sentence), it is impossible to see why a voluntary plea agreement may not waive constitutional objections to the particular sentence imposed.

235 F.3d 1049, 1052 (7th Cir.2000) (emphasis added). If Harvey were not seeking to withdraw his plea agreement, Bousley implies that the only argument he could present here is one of actual innocence — not mere legal insufficiency. See 523 U.S. at 623-24, 118 S.Ct. 1604. Harvey has asked, however, to withdraw his plea. The government points out that he failed to do so before the district court, and thus that our review is limited to an evaluation of plain error. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Martinez, 289 F.3d 1023, 1029 (7th Cir.2002). We agree with its assessment, and we thus proceed to consider Harvey's argument about the indictment on that basis.

Because Harvey challenges the indictment for the first time on appeal, we will uphold its validity "unless it is so obviously defective as not to charge the offense by any reasonable construction." United States v. Smith, 223 F.3d 554, 571 (7th Cir.2000) (quoting United States v. Vanderberg, 358 F.2d 6, 10 (7th Cir.1966)); see also United States v. Johnson, 805 F.2d 753, 758 (7th Cir.1986) (same). Generally speaking, "tardily challenged indictments should be construed liberally in favor of validity." United States v. Smith, 230 F.3d 300, 306 n. 3 (7th Cir.2000).

Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires that an indictment be "a plain, concise, and definite written statement of the essential facts constituting the offense charged. . . ." FED. R.CRIM.P. 7(c)(1). This court has said that "[a]n indictment is constitutionally sufficient and satisfies FED.R.CRIM.P. 7(c)(1) if it states the elements of the crime charged, informs the defendant of the nature of the charge so she may prepare a defense, and enables the defendant to plead the judgment as a bar against future prosecutions for the same offense." United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir.1997) (citing Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). In order for an indictment adequately to notify the defendant of the nature of the charges against him or her, "we require, at a minimum, that it provide some means of pinning down the specific conduct at issue." Smith, 230 F.3d at 305. While it is normally sufficient for an indictment to track the words of the statute under which the defendant is being charged, this kind of mimicry is not necessary. Instead, "Indictments are reviewed on a practical basis and in their entirety, rather than in a hypertechnical manner." Smith, 230 F.3d at 305 (internal quotations omitted). The question is not "whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards." United States v. Allender, 62 F.3d 909, 914 (1995).

Applying these standards, the indictment in this case, while not perfect, is not so defective as to require reversal. It included enough information to notify Harvey of the statute under which he is being charged and the specific way in which he allegedly violated that law. Whether we construe § 924(c) as creating one offense or two, it remains true that the separate parts of § 924(c) criminalize similar behavior. See United States v. Castillo, 406 F.3d 806, 814 (7th Cir.2005) ("Quite simply, the portion of § 924(c) upon which we focus was intended to `combat the dangerous combination of drugs and guns.'") (quoting Muscarello v. United States, 524 U.S. 125, 132, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998)). The language used in the indictment here alerts Harvey that he is being charged with what the statute as a whole aims to prevent: carrying a firearm that is closely connected to an underlying drug offense.

The Tenth Circuit faced a problem very similar to the one before us in United States v. Avery, 295 F.3d 1158 (10th Cir. 2002). In Avery, the defendant was charged under § 924(c) after drugs and numerous firearms were found in his house. The indictment "employ[ed] the `use or carry' prong's `during and in relation to' language where the terms `in furtherance of' should have been used." Avery, 295 F.3d at 1172. In affirming Avery's § 924(c) convictions, the court emphasized the fact that "the difference between the `in furtherance of' language and the `during and in relation to' language is only slight." Id. at 1174 (certain internal quotations omitted); see also United States v. Mackey, 265 F.3d 457, 461 (6th Cir.2001) (noting that the distinction between the two standards is "somewhat elusive"). The Avery court found that, although the two standards are...