United States v. James Harris ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4175
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES HARRIS, a/k/a James Davon Harris,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:11-cr-00187-WDQ-1)
Argued: October 31, 2013 Decided: January 15, 2014
Before WILKINSON, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Wilkinson and Judge Duncan joined.
ARGUED: Steven Hale Levin, LEVIN & CURLETT LLC, Baltimore,
Maryland, for Appellant. Michael Clayton Hanlon, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DIAZ, Circuit Judge:
A jury convicted James Harris of conspiracy to distribute
cocaine and possession with intent to distribute cocaine. He
was sentenced to 210 months’ imprisonment. On appeal, Harris
argues that the district court erred in denying his motion to
dismiss the indictment on the basis of unconstitutional delay,
and in granting the government’s motion in limine to limit
cross-examination of the police officers involved in his arrest.
He also challenges the substantive reasonableness of his
sentence. For the reasons that follow, we affirm.
I.
“On appeal from a criminal conviction, we view the evidence
in the light most favorable to the government.” United States
v. Smith, 701 F.3d 1002, 1004 (4th Cir. 2012).
A.
On September 17, 2008, while on undercover assignment for
the Baltimore Police Department, Officer Trabian Smith was
walking down West Fairmount Avenue in Baltimore when he was
approached by a man later identified as Gordon Gingles. Gingles
asked Smith what he was looking for, and Smith replied with a
street term for crack cocaine. Gingles then directed Smith to
Harris, who was standing nearby. Smith approached Harris, and
Harris asked Smith what he needed. After Smith replied “two,”
2
Harris directed Markita Cook, who was sitting on the steps of
the adjacent house, to “get him two.” J.A. 374. Cook went into
the house, and Harris told Smith to wait around the corner.
Shortly thereafter, Cook approached Smith and handed him
two black-top vials that were later determined to contain crack
cocaine. In exchange, Smith gave Cook two ten-dollar bills.
Smith then left the area and contacted an arrest team. The
arrest team, which included Detectives Angela Choi and Jared
Fried, subsequently arrested Harris and Cook. Choi and Fried,
along with other officers, later returned to the house armed
with a search warrant, where they found a woman named Ashley
Sparrow. The officers briefly detained Sparrow, but ultimately
released her. Inside the house, officers found black-top vials
(identical to the ones Cook provided to Smith), ziplock bags,
and a gun.
B.
Maryland prosecutors charged Harris in state court with
narcotics and firearms offenses. After Harris’s case had been
pending for approximately seven months, prosecutors placed it on
the so-called “stet” docket, allowing it to remain dormant
indefinitely. Around the same time, Harris was found to have
violated the conditions of his probation from an earlier
conviction, and his probation term was extended for an
additional year. On March 1, 2010, near the end of Harris’s
3
extended probation term, state prosecutors reactivated the
dormant charges. But after several subsequent postponements,
the case was dismissed.
Around the time the state charges were dismissed, state
prosecutors referred Harris’s case to the federal Bureau of
Alcohol, Tobacco, Firearms, and Explosives (the “ATF”). 1 The ATF
reviewed the case and filed a criminal complaint against Harris
on February 1, 2011. A grand jury indicted Harris on March 31,
2011, for possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1). On May 10, the grand jury
returned a superseding indictment, adding a charge for
conspiracy to distribute cocaine, in violation of 21 U.S.C.
§ 846.
C.
While awaiting trial, Harris moved to dismiss the
indictment. He argued that the 29-month delay between his
September 17, 2008, arrest and the initiation of federal charges
violated both his Fifth Amendment due process right and his
Sixth Amendment speedy trial right. Harris also subpoenaed
1
In a hearing before the district court, counsel for the
government stated that he was not sure exactly when state
prosecutors referred the case to the ATF, but that it was not
until after the state case “had suffered some kind of fatal
problem.” J.A. 69. In any event, counsel stated that he “[did
not] think it was as early as March 2010.” Id.
4
disciplinary records for the Baltimore police officers involved
in his arrest, seeking information regarding prior allegations
of misconduct made against them. Harris intended to use these
allegations as impeachment evidence on cross-examination of the
officers at trial. The government filed a motion in limine to
prevent Harris from questioning the officers about the records.
The district court denied Harris’s motion to dismiss and
granted the government’s motion in limine. The court concluded
that Harris’s Fifth Amendment right had not been violated, as he
failed to demonstrate that he was prejudiced by pre-indictment
delay, and there was no indication that the delay was due to an
impermissible reason. The court also explained that Harris’s
Sixth Amendment right was not implicated until the initiation of
federal charges, and that the brief period of delay between the
return of the federal indictment and the beginning of Harris’s
trial did not violate the Sixth Amendment.
With respect to the government’s motion in limine, the
district court determined that only a minority of the complaints
detailed in the disciplinary records had been sustained upon
investigation. And because none of the sustained complaints
involved misconduct related to untruthfulness, they were not
admissible under Federal Rule of Evidence 608(b). Although some
of the unsustained accusations in the records might have related
to untruthfulness, the court did not consider them probative of
5
the officers’ credibility, and it expressed concern that
admitting them would “sidetrack[]” the trial with a “mini-trial”
on their veracity. United States v. Harris, No. WDQ-11-0187,
2011 WL 2413771, at *6 (D. Md. June 8, 2011) (internal quotation
marks omitted).
A jury convicted Harris on both counts. At sentencing, the
district court determined that Harris was a career offender
under U.S. Sentencing Guidelines § 4B1.1, based on his prior
state convictions for robbery and attempted murder. This
enhancement increased Harris’s offense level from 12 to 32.
Combined with a criminal history category of VI, it resulted in
an advisory Guidelines range of 210 to 262 months’ imprisonment.
Harris requested a downward variance, noting that his prior
convictions occurred when he was a juvenile and that he had been
abused as a child. Rejecting Harris’s request, the district
court sentenced him to 210 months’ imprisonment, at the low end
of the Guidelines range.
Harris timely noted this appeal.
II.
A.
We first consider Harris’s argument that the district court
erred in denying his motion to dismiss the indictment due to
violations of his Fifth and Sixth Amendment rights. On appeal
6
from a motion to dismiss an indictment, we review the district
court’s factual findings for clear error and its legal
conclusions de novo. United States v. Brehm, 691 F.3d 547, 550
(4th Cir. 2012).
1.
The Fifth Amendment’s Due Process Clause requires dismissal
of an indictment if delay prior to the indictment “caused
substantial prejudice to [the defendant’s] rights to a fair
trial” and “was an intentional device to gain tactical advantage
over the accused.” United States v. Marion, 404 U.S. 307, 324
(1971). To prevail on a due process claim based on pre-
indictment delay, a defendant must first demonstrate that the
delay resulted in “actual prejudice.” United States v.
Automated Med. Labs., Inc., 770 F.2d 399, 403 (4th Cir. 1985).
If this requirement is met, we then “balance[] the prejudice to
the defendant with the Government's justification for the
delay,” to determine whether the government's action “violate[d]
fundamental conceptions of justice or the community's sense of
fair play and decency.” Id. at 404 (internal quotation marks
omitted).
To demonstrate prejudice, Harris argues that two witnesses
he would have called at trial--Ashley Sparrow and an individual
known as “Ray”--were unavailable as a result of pre-indictment
delay. We have previously recognized that the unavailability of
7
a witness may be a source of prejudice, but have explained that
succeeding on such a claim requires the defendant to carry a
heavy burden. See Jones v. Angelone, 94 F.3d 900, 907-08 (4th
Cir. 1996). The defendant must “identify the witness he would
have called; demonstrate, with specificity, the expected content
of that witness’[s] testimony; establish to the court’s
satisfaction that he has made serious attempts to locate the
witness; and, finally, show that the information the witness
would have provided was not available from other sources.” Id.
at 908. At bottom, the defendant must demonstrate, beyond mere
speculation, that “he was meaningfully impaired in his ability
to defend against the . . . charges to such an extent that the
disposition of the criminal proceeding was likely affected.”
Id. at 907.
According to Harris, Sparrow “gave a statement to defense
investigators indicating that [Harris] was not present when the
undercover officer bought two vials of drugs at her house.”
Appellant’s Br. at 15. Harris thus claims that her testimony
“would have corroborated the defense alibi offered at trial.”
Id.
Even if we accept this characterization of Sparrow’s
expected testimony, her absence does not establish prejudice for
purposes of Harris’s Fifth Amendment claim. Harris has not
provided any explanation as to why Sparrow is unavailable, and
8
Harris’s counsel’s statements before the district court indicate
that he is simply unable to locate her. But given that an
investigator for Harris’s counsel previously interviewed
Sparrow, it does not appear that Harris lost track of Sparrow
until sometime after he was indicted. Accordingly, any pre-
indictment delay did not “cause[]” Sparrow’s unavailability.
See Marion, 404 U.S. at 324.
As for “Ray,” who apparently died prior to Harris’s federal
indictment, Harris fails to make the showing required by Jones.
According to Harris, Ray was inside the house with Sparrow at
the time the Baltimore police officers conducted the search.
Importantly, however, Harris does not explain how Ray's
testimony would have aided his defense, and Harris does not even
know Ray’s real name. Before the district court, Harris’s
counsel could only speculate as to what information Ray could
provide. Because Harris has not “demonstrate[ed], with
specificity, the expected content of [Ray’s] testimony,” Jones,
94 F.3d at 908, Ray’s unavailability does not constitute
prejudice. Having failed to demonstrate prejudice, Harris has
not established a violation of the Fifth Amendment.
2.
Nor did any delay in this case violate Harris’s Sixth
Amendment right. The Sixth Amendment provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right to a
9
speedy and public trial.” The Sixth Amendment right to a speedy
trial “does not apply to . . . pre-indictment delay,” as it
“does not attach until the defendant has been indicted or
arrested.” Jones, 94 F.3d at 906 n.6. In assessing whether the
defendant’s speedy trial right was violated, we consider four
factors articulated by the Supreme Court in Barker v. Wingo: (1)
the “length of the delay”; (2) “the reason for the delay”; (3)
“the defendant's assertion of his right”; and (4) the “prejudice
to the defendant.” 407 U.S. 514, 530 (1972).
With respect to the “length of delay,” only an arrest or
indictment on federal charges starts the speedy trial clock.
See United States v. MacDonald, 456 U.S. 1, 10 n.11 (1982); see
also United States v. Garner, 32 F.3d 1305, 1309 (8th Cir.
1994) (“The arrest on state charges does not engage the speedy
trial protection for a subsequent federal charge.”). Harris
concedes that this rule is “well established.” Appellant’s Br.
at 10. But, emphasizing the 29-month period between his arrest
on state charges and his federal indictment, he urges us “to
apply a more expansive definition of ‘federal charges’ to
include time spent in prison on state charges that were
ultimately dropped and re-crafted as federal charges.” Id.
In support of this admittedly “novel argument,” id., Harris
cites United States v. Woolfolk, in which we suggested that
speedy trial protections “can be triggered by something other
10
than actual federal custody and federal arrest, i.e., any
restraint resulting from federal action.” 399 F.3d 590, 596
(4th Cir. 2005) (internal quotation marks omitted). Unlike in
Woolfolk, however, Harris does not suggest that the federal
government knew--or even should have known--that he was being
held on state charges prior to his case being referred to
federal authorities. Nor has Harris produced any evidence of an
improper motive on behalf of state or federal officials.
Woolfolk is therefore inapposite, and, consistent with
MacDonald, we conclude that Harris’s speedy trial right did not
attach until the initiation of federal charges.
The ATF filed a criminal complaint against Harris on
February 1, 2011. Because Harris’s trial began on June 6, 2011,
the relevant period of delay is at most four months. We have
previously explained that the first Barker factor--length of
delay--“acts as a threshold requirement.” United States v.
Grimmond, 137 F.3d 823, 827 (4th Cir. 1998); see also Barker,
407 U.S. at 530 (describing the first factor as a “triggering
mechanism”). “If the delay is not uncommonly long, the inquiry
ends there.” Grimmond, 137 F.3d at 827. Because we do not
consider a four-month delay between the filing of charges and
the initiation of trial uncommonly long--indeed, it falls well
short of the one-year period that courts generally deem
“presumptively prejudicial,” Doggett v. United States, 505 U.S.
11
647, 652 n.1 (1992)--we need not consider the remaining Barker
factors. See Barker, 407 U.S. at 530 (“Until there is some
delay which is presumptively prejudicial, there is no necessity
for inquiry into the other factors that go into the balance.”).
Given the brevity of the delay in this case, we conclude that
Harris’s right to a speedy trial was not violated.
B.
Next, Harris argues that the district court erred in
granting the government’s motion in limine to preclude him from
cross-examining the Baltimore police officers involved in his
arrest about their disciplinary records. We review the district
court's evidentiary rulings for abuse of discretion. United
States v. Hornsby, 666 F.3d 296, 307 (4th Cir. 2012).
In arguing that the allegations of “brutality, false
arrest, and excessive force” contained in the records should
have been a permissible subject for cross-examination, Harris
relies on Federal Rule of Evidence 608(b). Appellant’s Br. at
16. That Rule permits the introduction of “specific instances
of conduct” on cross-examination only if such evidence is
“probative” of a witness’s “character for truthfulness or
untruthfulness.” Fed. R. Evid. 608(b). In considering whether
the disciplinary records meet this criterion, we are mindful
that “the trial court has wide discretion to decide whether (and
to what extent)” cross-examination about specific instances of
12
conduct “is proper and relevant.” United States v. Smith, 451
F.3d 209, 223 (4th Cir. 2006).
Harris’s brief identifies five allegations contained in the
disciplinary records that he contends should have been
permissible fodder for cross-examination: 2 (1) that Officer
Smith, who conducted the drug buy, once “punched an arrestee in
the mouth and knocked out his tooth”; (2) that Officer Smith
made a “false arrest” by telling an arrestee that he would not
have been arrested had he not been with another suspect; (3)
that Detective Fried, one of the officers who arrested Harris,
“beat[] up a prisoner”; (4) that Detective Fried “plant[ed]
evidence on a suspect”; and (5) that Detective Choi, the other
officer who arrested Harris, once made a “false arrest” without
probable cause. Appellant’s Br. at 16-17.
Of course, not every instance of officer misconduct is
“probative” of an officer’s “character for truthfulness or
untruthfulness.” See Fed. R. Evid. 608(b). Rather, the Rule
authorizes inquiry only into instances of misconduct akin to
“perjury, fraud, swindling, forgery, bribery, and
embezzlement[.]” United States v. Leake, 642 F.2d 715, 718 (4th
Cir. 1981). And other courts have rejected the notion that more
2
The disciplinary records themselves are not in the record
on appeal. Thus, we rely on the district court’s description of
them, which Harris has not disputed.
13
general police misconduct, such as excessive force, falls within
the Rule’s scope. See, e.g., United States v. Alston, 626 F.3d
397, 404 (8th Cir. 2010) (affirming the district court’s
exclusion of findings that an officer “engaged only in
ridiculing or taunting a prisoner” due, in part, to the danger
of prejudice from introducing “sanctions completely unrelated to
the witness’[s] character for truthfulness”); United States v.
Seymour, 472 F.3d 969, 970 (7th Cir. 2007) (stating that an
officer’s use of excessive force “was not probative of his
truthfulness”); United States v. Adams, Nos. 99-1563, 99-1596,
2000 WL 777970, at *2 (2d Cir. Jun. 15, 2000) (affirming the
district court’s exclusion of excessive force allegations
against an officer because they “were not sufficiently probative
of . . . truthfulness”). Thus, with respect to the allegations
in the disciplinary records involving only brutality or
excessive force, we agree with the district court that they were
simply not admissible under Rule 608(b).
As for the allegations involving what Harris characterizes
as “false arrest[s]” and “planted evidence,” Appellant’s Br. at
16-17, the district court correctly observed that the records
include only “mere accusations,” rather than findings, of
“misconduct based on untruthfulness.” Harris, 2011 WL 2413771,
at *6. Mere accusations of prior misconduct inherently have
little probative value. They are, after all, “both unproven and
14
unconnected to th[e] [instant] case.” United States v. Custis,
988 F.2d 1355, 1359 (4th Cir. 1993). As such, they naturally
pose a risk of misleading the jury, given “the danger . . . that
a jury will infer more from the previous investigation than is
fairly inferable.” Alston, 626 F.3d at 404.
While allowing the government to respond to the accusations
or to introduce contextual evidence might curb this danger,
these accommodations would likely result in further confusion of
the issues or “the kind of mini-trial on a peripherally related
matter that [Rule 608(b)] is designed to prevent.” See id.; see
also Custis, 988 F.2d at 1360 & n.1 (noting the danger that a
trial might be “sidetracked by a mini-trial” on the veracity of
unproven allegations against police officers). Exclusion of
accusations of prior misconduct thus lies within the district
court’s “wide latitude . . . to impose reasonable limits on
. . . cross examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues . . . or
interrogation that is . . . only marginally relevant.” Delaware
v. Van Arsdall, 475 U.S. 673, 679 (1986).
Here, the district court reasonably concluded that the
accusations in the disciplinary records, while perhaps
potentially relating to the officers’ character for
untruthfulness, had little probative value and posed a risk of
“sidetrack[ing]” the trial. Harris, 2011 WL 2413771, at *6. We
15
therefore hold that the district court did not abuse its
discretion in excluding them from the scope of permissible
cross-examination.
C.
Finally, Harris challenges the substantive reasonableness
of his sentence. In reviewing a sentence for substantive
reasonableness, we “examine[] the totality of the circumstances
to see whether the sentencing court abused its discretion in
concluding that the sentence it chose satisfied the standards
set forth in [18 U.S.C.] § 3553(a).” United States v. Mendoza-
Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). Where, as here, the
sentence is within the properly calculated Guidelines range, we
apply a presumption of substantive reasonableness. See United
States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).
In arguing that his sentence was not substantively
reasonable, Harris identifies three mitigating factors that he
contends justified a reduced sentence. First, he argues that
application of the career-offender enhancement was “overly
punitive” because it added 189 months to his Guidelines range
based on convictions for crimes he committed as a juvenile.
Appellant’s Br. at 20-21. Second, he points to his lack of
family support, noting that “his father was terribly abusive and
brutally beat him as a child,” and that his brother “was
murdered at a young age.” Id. at 20. Lastly, Harris notes that
16
“the sale of $20.00 of cocaine is much less significant than the
crimes of major dealers selling large quantities of drugs,” and
argues that he “was not a big player in a significant drug
conspiracy.” Id. at 21.
We have thoroughly reviewed the record and conclude that
Harris’s sentence is substantively reasonable. The district
court heard and addressed each of Harris’s mitigation arguments,
and clearly explained its reasoning for imposing a within-
Guidelines sentence of 210 months. With reference to the
relevant § 3553(a) factors, the district court noted the serious
harm that drug crimes inflict on the community, the violent
nature of Harris’s prior convictions, 3 and his multiple probation
violations. Based on these considerations, and given the
presumption of reasonableness that attaches to a within-
Guidelines sentence, we find no abuse of discretion in the
district court’s imposition of a sentence at the low end of the
Guidelines range. 4
3
According to the district court, the facts underlying
Harris’s robbery conviction were that he “punched one victim in
the face and shot another in the arm and fired several more
shots at the victims as he fled.” J.A. 2010. The attempted
murder conviction rested on Harris having “shot a victim in a
leg, left arm, stomach, chest, and chin, as th[e] victim begged
for his life.” Id.
4
In a Rule 28(j) letter filed shortly before argument,
Harris noted that, contrary to the district court’s expectation,
a state court eventually sentenced him to seven years of “back-
(Continued)
17
III.
For the reasons above, we affirm the district court’s
judgment.
AFFIRMED
up” prison time due to his state probation violation. According
to Harris, this additional prison time further supports his
argument that his federal sentence was substantively
unreasonable. We disagree. Although the district court did
express skepticism that Maryland would require Harris to serve
additional prison time for the probation violation, the court
did not indicate that the sentence it imposed depended on that
assumption. To the contrary, the court explicitly referred to
the possibility of state back-up time when providing its
rationale for applying the career-offender enhancement, noting
that any such time was a result of Harris’s “serious” prior
conviction. J.A. 1006. We do not believe this additional time,
attributable to the state conviction, renders Harris’s federal
sentence unreasonable.
18