United States v. Harriman

• Decision Date: 17 August 2020
• Docket Number: No. 19-2679,19-2679
• Citation: 970 F.3d 1048
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Jason HARRIMAN, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

970 F.3d 1048

UNITED STATES of America, Plaintiff - Appellee

v.Jason HARRIMAN, Defendant - Appellant

No. 19-2679

United States Court of Appeals, Eighth Circuit.

Submitted: June 19, 2020

Filed: August 17, 2020

Kyndra Lundquist, Anthony R. Morfitt, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff-Appellee.

Jason Harriman, Federal Correctional Institution, Beaumont, TX, Pro. Se.

Wallace L. Taylor, Cedar Rapids, IA, for Defendant-Appellant.

Before LOKEN and GRASZ, Circuit Judges, and CLARK,¹ District Judge.

CLARK, District Judge.

Jason Harriman spent separate stints in prison for kidnapping and assaulting his ex-wife, D.H. When he later served time for being a felon in possession of a firearm, Harriman told fellow inmates at two different prisons that he wanted to find someone to kill D.H. After one of the inmates contacted law enforcement, Harriman voluntarily called an undercover agent posing as a hitman, and had numerous communications with him about killing D.H. and her boyfriend. A two-hour, in-person meeting between Harriman and the agent culminated in a written murder-for-hire contract that Harriman sent to the agent. A jury convicted Harriman of two counts of murder-for-hire, in violation of 18 U.S.C. § 1958. The district court² sentenced Harriman to 240 months imprisonment and three years supervised release. Harriman appeals, arguing the evidence established his entrapment defense, the district court abused its discretion in denying his motions for new counsel and new trial, and ineffective assistance of counsel. We affirm.

I. Background

In 1995, when he was 21 years old and she was 16 years old, Harriman met D.H. and began a romantic relationship with her. By the end of the year, they were living together. They had a tumultuous relationship; Harriman was jealous and controlling and began physically abusing D.H. In the summer of 1996, D.H. moved back in with her mother. Harriman then came to the house and kidnapped D.H. at knifepoint. He repeatedly hit her, yelled at her, and cursed her. At one point, Harriman again held the knife to her throat and said he was going to contact a friend to hurt her. Eventually they ended up at a hotel, where law enforcement arrested Harriman.

Harriman pleaded guilty to kidnapping and burglary, and the state court sentenced him to prison. While in prison, Harriman and D.H. began talking again and they married in June 2000. After Harriman was released, they began living together again and Harriman resumed his physical abuse of D.H. In 2007, Harriman put his hands around D.H.’s neck and choked her, leaving bruises. He was convicted of simple domestic assault. After this incident, although they continued to have sex on occasion, Harriman and D.H. never fully resumed their relationship, and they divorced in 2009. They have two children together.

In 2011, Harriman was convicted in federal court of two counts of being a felon in possession of a firearm. The court sentenced him to a term of imprisonment, and he began serving his sentence in the federal prison in Terre Haute, Indiana. While there, Harriman often complained to a fellow inmate about D.H. On multiple occasions, Harriman told this inmate that he wanted to find someone to kill D.H. and her then-boyfriend. In one conversation, he referred to his children as "collateral damage."

Harriman and D.H. did not communicate for several years, until 2015 when a court ordered D.H. to allow Harriman to have visitation and phone calls with his children. At some point, the Bureau of Prisons transferred Harriman to the federal prison in Forrest City, Arkansas, and in 2017, while at Forrest City, Harriman and D.H. began to communicate more frequently. They spoke regularly over the phone and corresponded through email. Harriman often talked about getting back together, but in January 2018, D.H. began dating someone else. When Harriman found out, he frequently became angry with D.H., yelled at her, called her names, and threatened her. He accused her of putting him in prison. In frequently threatening her, he referred to "the path" she had chosen, and made statements such as, "This is the path you want us to go, well, let's get walking. Hope you enjoy the walk until the yotrail ends."

In March 2018, in a phone call with his son, Harriman said he wanted "to smash [D.H.] in the f*cking face." On the same call, he told D.H. that when he got out, "I'm going to f*cking kill you, b*tch." On another call, after his son noted that on the last three calls Harriman had threatened to kill D.H., Harriman responded that "it's not a threat." He further stated that, "The only thing I have in my heart now is revenge" and "I'm gonna act on my revenge." In following phone calls, he continued to tell D.H. and his son that he would beat D.H. and her boyfriend, that she was going to get hurt, and that she was "gonna be done." He once asked her how precious her life was.

Throughout his time at Forrest City, Harriman spoke with William Risinger, a fellow inmate who met Harriman in October 2017. They spoke daily and Harriman often talked about his relationship with D.H. He frequently blamed D.H. for his prison sentence and Risinger would overhear Harriman yelling at D.H. on the phone. After these calls, Harriman would visit Risinger and curse D.H. and talk about hurting her, including disfiguring her to make her unattractive and paralyzing her so she could not have sex with anyone. In mid to late February of 2018, Harriman told Risinger, "I wish I knew somebody who would kill the b*tch." Risinger asked if he really wanted her dead, to which Harriman responded "yes." Harriman asked Risinger if he knew anyone and Risinger said he might and would need to make a call.

Risinger called his son and asked him to contact law enforcement. Special Agent Everett Wayland of the Bureau of Alcohol, Tobacco, Firearms and Explosives provided Risinger's son with a phone number to give to Harriman. The phone number belonged to Special Agent Wesley Williamson, an undercover agent with the ATF who posed as a hitman named William Johnson. Harriman first called Agent Williamson on February 28, 2018. From then until May 2018, Harriman called Williamson 13 times and exchanged many emails. In these calls and emails, they spoke in coded language, discussing "business" and "properties" when speaking of the murder of D.H. and her boyfriend, whom Harriman also wanted killed. In one email, Harriman sent Agent Williamson the address he had for D.H., a trailer park in Oelwein, Iowa, and told Agent Williamson that D.H. worked at the Dairy Queen in Oelwein. In another email, with the subject line "property," Harriman stated, "The one I know we will need to completely demolish, but the other we should be able to just hopefully do a little facial remodeling. Let it be known it's under ownership ..."

In late March 2018, Agent Williamson traveled to Oelwein, Iowa, and emailed Harriman to let him know. While in Iowa, Agent Williamson spoke with Harriman on the phone, and told Harriman he had found one spot pretty easy, meaning he had found D.H., but had not found the other spot with which he was less familiar, meaning he had not seen D.H.’s boyfriend. Harriman told Agent Williamson he could follow one spot to the other, meaning he could follow D.H. to find her boyfriend. The next day, Agent Williamson returned to Oelwein and saw D.H. in town. He also went to the address Harriman provided and saw a red minivan that Harriman said belonged to D.H. As he was leaving Oelwein, Agent Williamson spoke to Harriman and told him he had seen one but not the other, meaning he had seen D.H. but not her boyfriend.

During one of their conversations, Agent Williamson asked Harriman if he owned any cars, to which Harriman responded he had three cars stored at a friend's house including a 1969 Dodge Charger. Agent Williamson requested the Charger as a down payment, and Harriman agreed. Harriman then contacted his friend in Traer, Iowa, who was storing the car, and told him that two men would be coming to pick up the car. Harriman told his friend that he was using the car as a down payment on a body shop. In mid-April, ATF agents traveled to Traer and picked up the Charger. Agent Williamson spoke with Harriman about the pickup and Harriman called his friend to verify that the car had been picked up.

Through phone and email, Harriman and Agent Williamson made arrangements for Agent Williamson to visit Harriman in prison. Harriman obtained a visiting form and mailed it to Agent Williamson who filled it out and returned it. Harriman instructed Agent Williamson to put on the form that he had known Harriman for at least five years before incarceration. Agent Williamson did so, putting on the form that he had known Harriman for 20 years. At the beginning of April, Harriman let Agent Williamson know he could visit Harriman. Agent Williamson told Harriman the visit would be to confirm what Harriman wanted and that he would take $25,000 as a down payment, and another $25,000 when the person was killed. In another call, Harriman said he would like to grab both properties (meaning D.H. and her boyfriend), and if they could get both at the same time, it might result in a deal.

On April 21, 2018, Agent Williamson visited Harriman in prison. The visit in the prison visitation room was recorded by video and audio, and lasted nearly two hours. After some small talk, Agent Williamson asked Harriman, "What do you want me to do, man?" Harriman responded, "What you do, you know what I mean?" During the conversation, Harriman referred to "property 1" to which Agent Williamson replied that "property 1" was D.H. When Agent Williamson then referred to "property 2" as the boyfriend, Harriman said he did not know what he was talking about. Agent Williamson told Harriman, "I ain't here to start no business. I mean, if you think I'm here to start a business, I ain't here to start a business." He also...