United States v. Harris

• Decision Date: 09 August 2021
• Docket Number: No. 19-13692,19-13692
• Citation: 7 F.4th 1276
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Kelvin Lorenzo HARRIS, James Archibald, Defendants - Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

7 F.4th 1276

UNITED STATES of America, Plaintiff - Appellee,

v.Kelvin Lorenzo HARRIS, James Archibald, Defendants - Appellants.

No. 19-13692

United States Court of Appeals, Eleventh Circuit.

August 9, 2021

Lisa A. Hirsch, Anne Ruth Schultz, Lisa Tobin Rubio, U.S. Attorney Service-Southern District of Florida, U.S. Attorney Service-SFL, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, Robert A. Parker, U.S. Attorney General's Office, Washington, DC, for Plaintiff-Appellee.

Roderick Darrell Vereen, Roderick D. Vereen, Esq. PA, Miami, FL, for Defendant-Appellant Kelvin Lorenzo Harris.

Ashley M. Litwin, Seitles & Litwin, PA, Michael Greico, Thomas H. Buscaglia, Attorney At Law, Sabrina Vora-Puglisi, Puglisi Law, Miami, FL, James Archibald, Jesup, GA, for Defendant-Appellant James Archibald.

Before JILL PRYOR, NEWSOM and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

In this reverse sting police corruption case, Miami Police Department officers Kelvin Harris and James Archibald protected "drug couriers" as they delivered containers purportedly filled with cocaine to hotels in Miami, Florida. After a ten-day jury trial, Kelvin Harris¹ and Archibald appeal their convictions for conspiracy to possess with intent to distribute cocaine, attempted possession with intent to distribute cocaine, and possession of a firearm in furtherance of a drug trafficking crime. Kelvin and Archibald argue that the evidence was insufficient to support their convictions; that the prosecutor struck an African American juror because of race, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ; and that the district court erred by not providing the jury with a read-back of Archibald's testimony. Archibald also raises issues concerning his entrapment and duress defenses and says that the prosecutor committed misconduct by shifting the burden of proof to him. Finally, Kelvin claims that the district court erred by not dismissing his indictment because false testimony was knowingly presented to the grand jury. We are unpersuaded and, accordingly, affirm the convictions of each of the defendants.

I.

These are the essential facts adduced at trial. As part of an elaborate effort to root out police corruption in Miami, the Federal Bureau of Investigation ("FBI") created a reverse sting operation, having some of its agents pose as would-be drug dealers. In April 2018, City of Miami Police Officer Catina Anderson became the subject of the ongoing investigation by the Miami Police Department ("MPD") and the FBI. At the end of the inquiry, Anderson agreed to act as a cooperating witness, wear a recording device, and assist the FBI.

Anderson identified MPD Officer Schonton Harris as having corruptly engaged in misconduct, claiming that Harris had taken bribes in exchange for allowing culpable individuals to go free. In May 2018, at the FBI's direction, Anderson approached Schonton about providing protection for the delivery of drug proceeds purportedly belonging to a drug trafficking organization. Anderson explained that her cousin "Jean" needed protection in delivering drug money to a bank and while carrying Percocet

pills in his car. Schonton accepted Anderson's offer and took part in four protection operations from May to July 2018. She was paid about $5,000 for her services.

Later that summer, Anderson told Schonton that the drug trafficking organization was growing and needed to enlist more police help. When asked if she knew other law enforcement officers who'd be willing to participate, Schonton suggested they talk to MPD Officer Kelvin Harris. Kelvin joined the group and, on August 16, 2018, began to participate in further narcotics operations designed by the FBI. He arrived at the end of one of Schonton and Anderson's jobs and served as a lookout while Jean deposited drug proceeds at a local bank. The next day, Anderson -- in one of many recorded conversations received in evidence -- explained to Kelvin that the officers’ role was to provide protection for Jean as he collected and deposited money from the sale of Percocet

pills. Kelvin agreed to participate. Anderson paid Kelvin $1,000 for protecting Jean the day before.

As the sting operation unfolded, on September 6, 2018, Anderson and Schonton met with undercover FBI agent "Moe" for dinner at the Hakkasan restaurant in the Fontainebleau Hotel. Moe, who said he knew Jean, claimed to be a high-level member of an east-coast drug trafficking organization that sold "a lot" of cocaine in Miami. Moe explained that the organization was expanding and that it would move several kilograms of cocaine per car to several locations at the same time, so he needed "an army of people" to provide protection. Moe stressed that he would only work with people he could trust. Schonton agreed to be "in charge" of operations for Moe. She said Officer Kelvin was someone who could be trusted.

The next day, Schonton and Anderson asked Officer Kelvin if he was interested in working for Moe's side of the drug trafficking organization by protecting couriers transporting cocaine, or if he wanted to protect drug money instead. Kelvin agreed to work for Moe, starting with a job planned for September 13.

Schonton and Anderson agreed that Schonton would also approach MPD Officer Archibald because it appeared that he had taken many off-duty jobs and this suggested that he might be in need of some extra money. On September 12, Schonton told Anderson that Officer Archibald was "all in." Although it was too late for Archibald to participate in the job planned for the next day, Schonton told Moe she had found another MPD officer who would provide police protection.

On September 13, Schonton and Officer Kelvin escorted Jean, who seemingly was transporting cocaine from a bus station to a Miami hotel where Anderson was waiting. Later, the three escorted Jean to the highway so he could leave town. The next day Anderson paid Officers Schonton and Kelvin $2,500 each in cash.

On September 17, Schonton reconfirmed that Archibald wanted to participate in the next drug operation. Moe explained that he needed the officers soon for a "big" job. On September 28, Moe told Schonton that drug couriers "Jay" and "Jamaal," also undercover agents, would soon be transporting cocaine and would require protection. Moe described two 20-kilogram cocaine shipments - - purportedly worth about $1.4 million -- going in opposite directions in Miami.

As arranged, the four officers met Jay and Jamaal at a Greyhound bus station in Miami. Each courier's vehicle contained about twenty kilograms. The product had been loaded into the vehicles before the officers arrived. Kelvin and Anderson escorted Jamaal to one hotel; Archibald and Schonton accompanied Jay to another. Kelvin activated his police lights to help Jamaal navigate heavy traffic. After Jay and Jamaal dropped off the suitcases at their respective hotels, they told each group of officers that Moe would pay them later that day.

That night, Officers Kelvin and Archibald met Moe in his car at the Fontainebleau Hotel. Moe paid each of them $2,500 in cash for their help. Moe emphasized the importance of loyalty and told them that they had provided protection for moving some forty kilograms of cocaine earlier that day. Moe also gave the officers an opportunity to withdraw from any further involvement in the operations of his drug trafficking organization. (Moe explained: "And so moving forward, I wanna make sure ya'll are onboard and ya'll are part of the family. If you're not part of the family, or not gonna be onboard with making sure this weight gets moved around and this powder gets moved around, then let me know. Forget you ever met me.") Both said they wanted to continue.

The FBI arranged still another sting operation for October 11, 2018; this time, the officers would pick up a shipment of cocaine at a local marina and deliver it to two separate locations in Miami. The operation was characterized as the "next step," and it meant that these officers, in the words of FBI Agent Andrew Mercurio, were prepared "to run the drug trafficking operation all on their own." Schonton told Anderson, Kelvin, and Archibald to meet at her home. Moe instructed Schonton to pick up the cocaine at the Crandon Marina, but they had to wait for Archibald, who arrived later, which required him to use his police lights to get there faster.

Schonton and Archibald left for the marina in her personal vehicle, followed by Anderson and Kelvin in Anderson's marked police car. Schonton and Archibald arrived first. Schonton met her contact at the marina dock, motioning for Archibald to join them. A man unloaded two coolers from a boat, which he and Archibald placed in Schonton's car. As Schonton and Archibald were leaving, Archibald directed Anderson to their location outside the marina. Archibald and Schonton headed to a Marriott hotel to make the first delivery; Anderson and Kelvin followed.

Upon their arrival, Kelvin helped Schonton and Archibald unload the coolers. He waited in Schonton's car while she and Archibald took the coolers to Jamaal, who was inside the hotel. As Archibald and Schonton watched, Jamaal removed the bricks of what purportedly was cocaine from one cooler and spread them onto the bed in order to count them. Archibald and Schonton left Jamaal's hotel room with the second cooler.

The four MPD officers delivered the second cooler to undercover agent Jay, who was at another Marriott hotel in Miami. Kelvin stayed in Schonton's car while she and Archibald carried the cooler into the hotel. They watched as Jay counted fifteen bricks and placed them onto a bed in a hotel room. At dinner that night, again at the Hakkasan restaurant, Moe paid Schonton, Anderson, and Kelvin each $4,000 in cash and gave Anderson $4,000 for Archibald, who was not at the dinner. Around midnight, Anderson paid Archibald $4,000 for his services at Schonton's house.

Archibald, Kelvin, and Schonton were arrested on October...