United States v. Deon Harris

352 F.3d 362, 2003 U.S. App. LEXIS 25048, 2003 WL 22928447
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 12, 2003
Docket03-1813
StatusPublished
Cited by22 cases

This text of 352 F.3d 362 (United States v. Deon Harris) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Deon Harris, 352 F.3d 362, 2003 U.S. App. LEXIS 25048, 2003 WL 22928447 (8th Cir. 2003).

Opinion

BEAM, Circuit Judge.

A jury convicted Deon • Harris of possessing controlled substances with intent to distribute. On appeal, Harris argues that the district court 1 erred by denying his motions for acquittal and new trial, miscalculating drug quantities, and 'enhancing his sentence for obstruction of justice. We affirm.

I. BACKGROUND

Police officers executed a search warrant on the apartment Harris shared with his girlfriend, Jesse Paschal. When the officers arrived, Harris and Paschal were in the apartment. While searching Harris, the officers found two bags of heroin and over four thousand dollars. The officers also seized heroin from clothes they found on the floor.

The officers also found other drugs and paraphernalia in the apartment. In the kitchen, they found a small drug scale, small tin-foil squares, and Dorman sleeping pills. 2 While searching Paschal, they found several individually wrapped, yellow zip-lock baggies containing crack and one identical baggie containing heroin. The officers found similar baggies elsewhere in the apartment."

A grand jury indicted Harris on three counts for possession with intent to distribute. The first two counts involved the heroin found on Harris and in the pants. The third count involved the crack seized from Paschal’s person.

At trial, Detective Fischer testified about a statement Harris made to him during an interview at the apartment. 3 According to Fischer, Harris told him that the substance the officers found on Harris was cocaine, 4 that Harris traveled to Chicago more than one hundred times to buy crack and cocaine, that he used most of the heroin he obtained, that he sold crack and heroin in the area, and that he cooked powder cocaine into crack before selling it.

The jury also listened to "Fischer’s and another witness’s testimony. Harris admitted that, prior to his arrest, he had been involved with selling drugs, and had been convicted of other drug crimes, including one conviction for possession with intent to distribute. Also, one witness testified that she had previously purchased drugs from Paschal, and that during that transaction, Harris had given the drugs to Paschal.

*365 The jury convicted Harris on all counts. The district court denied Harris’s motions for acquittal and new trial. To calculate drug quantity, the court considered both the seized items and Fischer’s testimony about the trips Harris said he made to Chicago. The district court also found that Harris perjured himself, and accordingly enhanced his sentence two levels for obstruction of justice.

II. DISCUSSION

Harris’s first two issues challenge the government’s evidence. First, he argues the trial court should have granted his motion for acquittal on all counts. Second, he argues the court should have at least granted his motion for new trial on count three.

A court must deny a motion for judgment of acquittal if, after reviewing the evidence in the light most favorable to the government, substantial evidence justifies an inference of guilt, even if contrary evidence exists. United States v. Henson, 939 F.2d 584, 585 (8th Cir.1991). The district court’s ruling is a question of law, which we review de novo. See United States v. Earles, 113 F.3d 796, 802 (8th Cir.1997).

Substantial evidence supported the conviction on all counts. The search uncovered-and the government offered at trial-the following evidence: a drug scale, large amounts of money, individualized packages of crack and heroin, drug quantities indicative of distribution, additional packaging material, and a common heroin-cutting agent. Further, although inadmissible for propensity purposes, defendant’s prior drug-sale involvement and convictions were probative of his intent to distribute. See Fed.R.Evid. 404(b). Finally, two pieces of evidence linked Harris to the drugs Paschal held: first, Harris confused the substances on his person with those found on hers; and second, a witness testified about a previous drug sale, in which the witness saw Harris give drugs to Paschal before the witness bought drugs from Paschal. Because of that evidence and Fischer’s testimony, the district court correctly denied the motion for acquittal.

For many of the same reasons, and for the additional reasons the district court stated, we also affirm the district court’s denial of defendant’s motion for new trial. See 8th Cir. R. 47B.

Harris’s next issue involves the district court’s drug-quantity calculation. Fischer testified that Harris told him that he had made one-hundred trips to Chicago, fifty times buying one-half ounce of crack, and fifty times buying one-half ounce of cocaine. The court multiplied fifty trips times one-half ounce, equaling twenty-five grams of crack and twenty-five grams of cocaine.

Harris challenges the calculation in two ways. First, he argues that the district court did not consider the possibility that Fischer’s testimony was incorrect. And second, he argues that the court determined Fischer’s testimony was credible before hearing all of Harris’s sentencing evidence. We reject both arguments.

We reject the first argument because credibility issues are virtually unassailable on appeal, United States v. Luna, 265 F.3d 649, 652 (8th Cir.2001), and during the sentencing hearing, the district court expressly found that Fischer accurately recounted Harris’s statement: “The Court does accept the testimony of Detective Mark Fischer ... and finds ... his testimony credible as to what information was related by Deon Harris to him about the frequency and the quantities of drugs brought from Chicago.” Sentencing Transcript at 19-20 (emphasis added).

*366 And we reject his second argument because the- district judge evaluated Fischer’s credibility after hearing all of the evidence. Harris complains of the following events. After hearing Fischer’s testimony, but before Harris offered any sentencing evidence, the district judge stated that she accepted Fischer’s testimony. But then the judge said “if you have anything else you want me to consider, I’m happy to consider that.” Sentencing Transcript at 7. Harris’s counsel responded “I intended to call Ms. Paschal as a witness.” The record does not reflect whether the trial judge was notified that Harris planned to present evidence. But the record does show that, when Harris announced he had a witness, the judge allowed the witness, listened to the witness, and then disagreed with the witness. That sequence shows no error.

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Bluebook (online)
352 F.3d 362, 2003 U.S. App. LEXIS 25048, 2003 WL 22928447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-deon-harris-ca8-2003.