United States v. Harris , 215 F. App'x 262 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4297
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID M. HARRIS,
Defendant - Appellant.
No. 03-4298
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
DAVID M. HARRIS,
Defendant - Appellee.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CR-01-115-L)
Argued: October 27, 2006 Decided: January 31, 2007
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
ARGUED: Kenneth Wendell Ravenell, SCHULMAN, TREEM, KAMINKOW, GILDEN
& RAVENELL, P.A., Baltimore, Maryland, for Appellant/Cross-
Appellee. Christopher John Romano, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee/Cross-Appellant. ON BRIEF: Thomas M.
DiBiagio, United States Attorney, Jane M. Erisman, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
David M. Harris appeals his convictions and sentences for the
following offenses: conspiracy to possess with the intent to
distribute five kilograms or more of a mixture or substance
containing a detectable amount of cocaine, in violation of 21
U.S.C.A. § 846 (West 1999); possession with the intent to
distribute five hundred grams or more of cocaine, in violation of
21 U.S.C.A. § 841(a) (West 1999); possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C.A. § 924(c) (West 2000); being a felon in possession of a
firearm, in violation of 18 U.S.C.A. § 922(g)(1) (West 2000); and
unlawfully possessing ammunition, in violation of § 922(g)(1).
Harris argues that the district court erred in denying his motion
to suppress evidence obtained from the search of his apartment and
vehicle and in denying him a Franks hearing.1 He raises additional
challenges to a number of the district court’s evidentiary rulings
and to the imposition of an upward departure at sentencing for
obstruction of justice. Also at issue in this appeal are Harris’s
1
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court
recognized a “presumption of validity with respect to the affidavit
supporting [a] search warrant,” id. at 171, and held that a hearing
on a motion to test the sufficiency of the affidavit is required
only if the defendant “makes a substantial preliminary showing that
a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant
affidavit,” and the offending information was essential to the
probable cause determination, id. at 175-56.
3
motion to remand for resentencing in accordance with United States
v. Booker, 543 U.S. 220 (2005), and the Government’s cross appeal
challenging one aspect of Harris’s sentence--the extent of the
upward departure for obstruction of justice. For the reasons that
follow, we affirm Harris’s convictions, but vacate his sentence and
remand for resentencing in accordance with Booker.
I.
A.
It is undisputed that this prosecution arose after Harris and
a companion, Tilisha Wright, were attacked upon returning home to
Baltimore, Maryland from a trip to Houston, Texas. On January 28,
2001, Harris was shot in the side and Wright was abducted and later
shot in the back and left for dead. She was taken to Baltimore’s
Shock Trauma hospital and released later that night.
Wright provided a taped interview with police after the
attack. In the interview, she explained that she and Harris left
the airport, stopped briefly at Harris’s brother’s house, and then
stopped in front of Harris’s apartment building. She stated that
Harris had just gotten out of the Jeep and was standing next to it,
when a man she knew as Niam “walked up to the car, to David
[Harris], and asked David ‘where’s it at?’ And David said, ‘what?’
And as soon as David said ‘what,’ Niam started shooting him.”
(J.A. at 96.) Niam then came around to Wright’s side and told her
4
to get out of the Jeep. She saw another man coming towards
Harris’s door, and another “going through David’s Jeep.” (J.A. at
100-101.)
Wright told police that at that point, she was forced from the
Jeep into another car, and Niam asked her, “Where was the stuff
at?” When she asked what “stuff” he meant, he responded, “Tilisha,
don’t play with me, tell me where it’s at?” (J.A. at 103.) She
stated that the other two men, Jamal and Cuddy, then “came to the
car and they was asking - asking Niam where was the stuff at? And
so Cuddy . . . went back to the Jeep and was still going through
it. And then he came back to the car and he was carrying David’s
phone.” (J.A. at 103-04.) The three men then took her to a vacant
house, where they continued to question her about money and drugs.
B.
Based on Wright’s interview and information gathered at the
scene, Detective Raynard Jones and co-affiant Kerry Snead prepared
an affidavit to secure a warrant for the search of Harris’s
Apartment (719 N. Carrollton Street, Apt. C), Harris’s Jeep, and
the car into which Wright had been forced. The affidavit stated
that “[o]ne of the black males approached the victim David Harris
and stated, ‘where is the money and drugs?’” (J.A. at 168.) It
provided that after being shot, Harris “ran into 719 N. Carrollton
Street and the suspects pursued him, entering only into the
5
apartment building vestibule. The suspects then exited [the
building] and returned to the victim’s 1996 Jeep Cherokee and began
to search the victim’s vehicle.” (J.A. at 168.) The affidavit
also provided that the suspect took Wright to a vacant house and
“threatened her by gunpoint to reveal where David Harris had his
money and drugs.” (J.A. at 169.) The affiants indicated that they
believed the incident was a drug transaction and/or drug-related
robbery and that in their experience, “people who commit the crime
of narcotics distribution, store and keep narcotics, weapons,
firearms, ammunition, bullets and related evidences use [sic]
during narcotic violations at the place where they stay or vehicle
they drive for storage and safekeeping.” (J.A. at 170.)
After the search warrant issued, Baltimore police homicide
detectives searched Harris’s apartment and Jeep. In the apartment,
they found packaging materials, a scale, strainers, spoons, a
cutting agent, and items commonly used to dilute and repackage
controlled substances, as well as paperwork for co-conspirator
Zenobia Penn and airline ticket stubs for Tilisha Wright. In the
Jeep, they found one kilogram of cocaine hidden inside of Harris’s
luggage.
Harris was indicted on March 27, 2001. A Superceding
Indictment, filed on May 16, 2001, and a Second Superceding
Indictment, filed on October 24, 2001, followed. The Second
Superceding Indictment charged Harris with five offenses:
6
conspiracy to possess with the intent to distribute five kilograms
or more of cocaine (Count One); possession with the intent to
distribute five hundred grams or more of cocaine (Count Two);
possessing a firearm in furtherance of a drug trafficking crime
(Count Seven); being a felon in possession of a firearm (Count
Eight); and unlawfully possessing ammunition (Count Nine).
C.
The case proceeded to trial. On September 26, 2001, Harris
filed a Motion to Suppress any evidence seized from his residence
and vehicle. The Motion to Suppress also contained a request for
a Franks hearing. After a hearing, the district court denied the
motion. Trial for Harris and co-conspirators Clarence Walker,
Zenobia Penn, and Allah Burman began on June 6, 2002, but the
district court granted a mistrial on June 12, 2002.
A new trial for Harris and Zenobia Penn began on October 15,
2002. The government called thirty-one witnesses during the
seventeen-day trial. These witnesses included law enforcement
officers, chemists, custodians of records for hotels and airlines,
and a series of cooperating witnesses who played various roles in
the drug trafficking conspiracy. Tilisha Wright testified at
trial, as did Ramona Jones, the girlfriend of Allah Burman, one the
leaders of the conspiracy. The pertinent witnesses for purposes of
7
this appeal are Officer Urica Jenerette, Detective Raynard Jones,
Steven Jones, Ramona Jones, and Agent Matthew McCormack.
Officer Jenerette and Detective Raynard Jones testified
regarding the investigation. During Officer Jenerette’s testimony,
Harris’s counsel renewed the request that the court suppress the
evidence obtained from the search of the apartment and Jeep and
conduct a Franks hearing. Officer Jenerette testified that she
found Harris on the steps of the apartment building after the
shooting. She described him as bent over in pain and reluctant to
speak with her or to give her his name, although he did not appear
to her to be in shock. On cross-examination, Officer Jenerette
indicated that she never asked Harris if he had entered his
apartment, nor did he volunteer any information to that effect, but
an officer on the scene had informed her that Harris had entered
the vestibule area. She also confirmed that there was no blood
trail or other physical evidence to indicate Harris’s presence in
or near the apartment after the shooting. Detective Jones, who
helped prepare the affidavit, stated that Officer Jenerette never
told him that Harris entered the apartment.
Cooperating witness Steven Jones testified that he had known
Harris for twenty years. He described trips he had taken with
Harris to carry money from Baltimore to Houston and stated that he
had supplied Harris with cocaine two months before his first trip
to Houston. Steven Jones testified regarding a letter that Harris
8
wrote to him and another letter that he had written to Harris.
Harris objected to the introduction of portions of both letters
during Steven Jones’s testimony.
Ramona Jones testified that she met Harris in Houston while he
was there to do drug business with her boyfriend, Allah Burman.
She also testified that Burman told her that he had paid one of his
suppliers for the cocaine that was lost when Harris was shot.
Harris objected to this testimony on Fed. R. Evid. 801(d) grounds.2
The district court questioned Ramona Jones outside the presence of
the jury and determined that the two statements should not have
been admitted against Harris. Harris’s attorney requested a
severance or mistrial. The court declined to grant a mistrial, and
instead gave a curative instruction.
Agent Matthew McCormack offered information to the court
regarding an incident that occurred at trial. He stated that while
he was escorting Tilisha Wright to the witness room area, Harris
waived at Wright and took a photograph of her.
2
Fed. R. Evid. 801(d)(2)(E) provides that “a statement by a
coconspirator of a party during the course and in furtherance of
the conspiracy” is not hearsay. It is clear from the context that
Harris’s counsel was asserting that Burman’s statements to Ramona
Jones were inadmissible hearsay because they were not made in the
course of and in furtherance of the conspiracy.
9
D.
On November 15, 2002, the jury reached a verdict, convicting
Harris of all five counts with which he was charged. The jury
found that the conspiracy distributed and/or possessed with intent
to distribute five kilograms or more of cocaine.
The jury verdict form did not, however, specifically call for
the jury to determine the amount of drugs attributable to Harris
individually. Instead, the district court determined the quantity
attributable to Harris at sentencing. After describing the
determination as a “difficult” finding to make, the district court
found that the quantity attributable to Harris was within the five
to fifteen kilogram range, and calculated the base offense level
for the conspiracy count accordingly. (J.A. at 1206-07.) The
district court applied a two-level enhancement for Harris’s role in
the conspiracy offense and a one-level enhancement for obstruction
of justice.
Harris was sentenced according to the then mandatory
Sentencing Guidelines. The district court imposed a sentence of
210 months imprisonment for the conspiracy conviction (Count One),
97 months for possession with intent to distribute (Count Two), 60
months for possessing a firearm in furtherance of a drug
trafficking crime (Count Seven), 41 months for being a felon in
possession of a firearm (Count Eight), and 41 months for unlawfully
possessing ammunition (Count Nine), with the sentences imposed on
10
Counts One, Two, Eight, and Nine to run concurrently among those
Counts, but consecutive to the sixty-month sentence on Count Seven.
Harris timely noted an appeal to this Court. The Government
cross appealed, challenging the district court’s decision to impose
only a one-level enhancement for obstruction of justice at
sentencing, rather than the two levels called for by the
Guidelines. On April 6, 2005, Harris filed a motion to remand the
case for resentencing in accordance with United States v. Booker,
543 U.S. 220 (2005). At oral argument, this court questioned both
counsel regarding the applicability of United States v. Collins,
415 F.3d 304 (4th Cir. 2005), to this appeal. Both parties
subsequently submitted supplemental filings addressing the issue.
We have jurisdiction to hear this appeal pursuant to 18 U.S.C.A. §
3742(a) (West 2000) (providing for appellate jurisdiction over a
“final sentence” entered by the district court) and 28 U.S.C.A. §
1291 (West 2006) (providing for appellate jurisdiction over “final
decisions” of the district court).
II.
Harris raises numerous challenges to his convictions, arguing
that the district court erred in (1) denying his motion to suppress
the search of his residence and vehicle, (2) denying his request
for a Franks hearing, (3)admitting certain statements of Clarence
Walker and Niam King as statements of coconspirators made in
11
furtherance of the conspiracy and admitting “any evidence after
[Harris] was expelled from the conspiracy,” (Appellant’s Br. at
29), (4) denying his motion for a mistrial due to certain testimony
of Ramona Jones, (5) admitting a letter written by Harris to Steven
Jones, (6) admitting a letter written by Steven Jones to Harris,
and (7) admitting evidence that Harris took a photograph of Tilisha
Wright, a government witness, and (8) granting an upward departure
during sentencing for obstruction of justice. We address each of
Harris’s challenges to the evidence introduced at trial before
turning to his motion to remand for resentencing in accordance with
Booker, and then we turn to the issues raised regarding the one-
level enhancement for obstruction of justice.
A.
We first address the admissibility of the evidence obtained
from the search of Harris’s apartment and vehicle. We review the
legal conclusions involved in a district court’s suppression
determination de novo and factual findings underlying the legal
conclusions for clear error. United States v. Seidman, 156 F.3d
542, 547 (4th Cir. 1998). In reviewing the denial of a motion to
suppress, we view the evidence in the light most favorable to the
Government. Id.The Fourth Amendment’s prohibition against unreasonable
searches represents a fundamental right that “is preserved by a
12
requirement that searches be conducted pursuant to a warrant issued
by an independent judicial officer.” United States v. Hodge, 354
F.3d 305, 309 (4th Cir. 2004) (internal quotation marks omitted).
Evidence obtained in violation of the Fourth Amendment may be
subject to suppression under the exclusionary rule, meaning that it
cannot be used in a criminal proceeding against the victim of the
illegal search and seizure. United States v. Perez, 393 F.3d 457,
460 (4th Cir. 2004). Determining whether the exclusionary rule
applies in this case involves a two-step inquiry. We consider (1)
whether a substantial basis existed for a finding of probable cause
to conduct the search, and (2) if probable cause did not exist,
whether the court could nevertheless uphold the warrant under the
“good faith” exception to the exclusionary rule established in
United States v. Leon, 468 U.S. 897 (1984).
1.
We turn initially to the question of whether probable cause
existed to search the apartment and the Jeep. Probable cause only
requires “a fair probability that contraband or evidence of a crime
will be found in a particular place.” Illinois v. Gates, 462 U.S.
213, 238 (1983). “[T]he duty of a reviewing court is simply to
ensure that the magistrate had a substantial basis for . . .
concluding that probable cause existed.” Id. at 238-39 (internal
quotation marks and alteration omitted). To accomplish this task,
we look to the affidavit underlying the warrant, which “must
13
provide the magistrate with a substantial basis for determining the
existence of probable cause.” Id. at 239. The Supreme Court has
cautioned, however, “that after-the-fact scrutiny by courts of the
sufficiency of an affidavit should not take the form of de novo
review.” Id. at 236. Affidavits are to be interpreted in a
commonsense, not hypertechnical, manner, and “[a] magistrate’s
determination of probable cause should be paid great deference by
reviewing courts.” Id. (internal quotation marks omitted).
“In determining whether a search warrant is supported by
probable cause, the crucial element is not whether the target of
the search is suspected of a crime, but whether it is reasonable to
believe that the items to be seized will be found in the place to
be searched.” United States v. Lalor, 996 F.2d 1578, 1582 (4th
Cir. 1993) (citing Zurcher v. Stanford Daily, 436 U.S. 547, 556 &
n.6 (1978)). This court has adopted the rule that “the nexus
between the place to be searched and the items to be seized may be
established by the nature of the item and the normal inferences of
where one would likely keep such evidence.” United States v.
Anderson, 851 F.2d 727, 729 (4th Cir. 1988). In Anderson, the
affidavit indicated that Anderson was trying to sell a particular
gun that had been used in a murder, and we concluded that although
no specific facts established a direct link between the gun and
Anderson’s residence, it was reasonable to believe that he was
probably keeping the gun in his home. Id.14
The Government argues that the search of Harris’s apartment
presents a similar situation. The affidavit indicates that the men
who shot Harris were looking for money and drugs that they believed
to be in his possession, but did not find them. The affiants did
not suggest that being attacked by people demanding drugs and
money, standing alone, establishes probable cause to believe that
the victim was in fact a drug trafficker who actually had the drugs
and money sought. Rather, the affiants stated that based on their
experience and investigation of the scene, they believed that the
shooting had all the earmarks of a drug robbery. They based this
conclusion in part on their observation that the vehicle believed
to be the assailants’ getaway car had a hole in the radiator,
suggesting that the victim had returned fire, and in part on
Harris’s previous convictions for controlled substances and handgun
crimes.3 The affidavit provided that, in the experience of the
investigators, people who have drugs generally keep them in the
place where they stay or the vehicle they drive.
Harris’s primary contention, however, is that the affidavit
provides no information indicating that Apt. C, 719 N. Carrollton
St. (“the apartment”) is the place where he stays. Our precedent
suggests that such evidence is necessary to support a determination
that probable cause exists to search that place. See Lalor, 996
3
The previous convictions would have made it unlawful for
Harris to possess a firearm and ammunition.
15
F.2d at 1582 (“As for the evidence that Lalor resided at 1572
Waverly Way, no staleness problem exists. Information from one
informant and police investigation indicated that Lalor lived at
1572 Waverly Way in December 1989 and January 1990. When stopped
by a police officer on January 6, 1990, three weeks prior to the
search, Lalor gave his address as 1572 Waverly Way. . . .”).
Detective Jones testified at the motions hearing that he learned
Harris lived in the apartment from interviewing Wright and a
resident of the apartment building, Tanya Harris. He did not,
however, indicate that he had presented this information to the
magistrate.
“When reviewing the probable cause supporting a warrant, a
reviewing court must consider only the information presented to the
magistrate who issued the warrant.” United States v. Wilhelm, 80
F.3d 116, 118 (4th Cir. 1996). Because the information presented
to the magistrate did not include a reference to the statements of
the two women indicating that Harris lived in the apartment, it
cannot supply a basis for a probable cause determination. Without
this information, the magistrate could not have made an independent
determination that Harris and his drug activity were connected to
a particular second floor apartment, but would have had to infer
from the affiants’ desire to search the apartment that David Harris
must live there.
16
The only other link the affiants provided between Harris and
the apartment was the bare assertion that Harris possibly entered
the apartment after he was shot. There was no basis supplied for
that assertion, however -- no evidence, for example, of blood
nearby, the door having been open, or witnesses having seen him
enter Apartment C, or even go upstairs. Consequently, the
statement provides no support for a finding of probable cause. See
Wilhelm, 80 F.3d at 120 (concluding that a substantial basis for a
finding of probable cause did not exist where a warrant was based
on an informant’s tip and “the magistrate judge found sufficient
indicia of reliability in the affidavit by simply accepting the
unsupported conclusions of the affidavit”).
We therefore conclude that the affidavit fell short of
establishing probable cause to search the apartment.4 In reaching
this conclusion, we bear in mind that “the right to ‘sanctity of
private dwellings’ has been held to be the right ‘ordinarily
afforded the most stringent Fourth Amendment protection.’”
Wilhelm, 80 F.3d at 121 (quoting United States v. Martinez-Fuerte,
428 U.S. 543, 561 (1976)).
4
The district court summarized Harris’s arguments that
probable cause to search the apartment did not exist, but did not
rule on the issue. The district court turned directly to Harris’s
second argument, that the good faith exception to the suppression
of evidence obtained from a deficient warrant established by the
Supreme Court in United States v. Leon, 468 U.S. 897 (1984), did
not apply.
17
Harris makes the same arguments with respect to the search of
the Jeep. We disagree that the vehicle search was not supported by
probable cause. The affidavit provided that an eyewitness to the
shooting, Wright, told police that Harris had just exited the
driver’s seat of the Jeep when he was shot and that his assailants
demanded drugs and money and then searched through the vehicle.
The affidavit also indicated that the attacker’s car had a bullet
hole in its radiator, suggesting that Harris may have returned
fire, and that Harris had previous convictions for drug and
firearms offenses. These facts make it less likely that the attack
resulted from a case of mistaken identity or represented a random
shooting. In addition, returning fire would have required Harris’s
possession of a loaded gun, which would have been unlawful in light
of his previous felony conviction. We conclude that the magistrate
had a substantial basis for determining that probable cause existed
to search the vehicle.
2.
The Supreme Court recognized a good faith exception to the
suppression of evidence obtained from a deficient warrant in United
States v. Leon, 468 U.S. at 924-25. “[U]nder Leon’s good faith
exception, evidence obtained pursuant to a search warrant issued by
a neutral magistrate does not need to be excluded if the officer’s
reliance on the warrant was objectively reasonable.” Perez, 393
F.3d at 461 (internal quotation marks omitted). The exception
18
applies unless (1) the warrant is based on an affidavit containing
“knowing or reckless falsity,” (2) the magistrate failed to
“perform his neutral and detached function” and merely served as a
“rubber stamp” for the police, (3) the affidavit is so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable, or (4) the warrant is so facially
deficient that no reasonable officer would presume it to be valid.
Leon, 468 U.S. at 914-15, 923. In those four circumstances,
reliance on a warrant is objectively unreasonable.
Harris asserts that this is a case involving a “bare bones”
affidavit, so lacking in indicia of probable cause that reliance on
the warrant is unreasonable. The district court disagreed, finding
that “[t]he police were operating under the reasonable belief that
Mr. Harris lived in Apartment C and that drugs could possibly be
found there.” (J.A. at 1235.) We conclude that the district court
properly denied the motion to suppress on the grounds that the
evidence obtained in the search was covered by the Leon exception
to the exclusionary rule. In this case, the investigating officers
acted in good-faith reliance on the warrant.
In applying for the warrant to search 719 N. Carrollton,
apartment C, in Baltimore, the officers submitted a six-page
affidavit providing information that Harris was involved in drug
trafficking, that he was the target of an attempted robbery on the
street at 719 N. Carrollton, and that his assailants believed he
19
was carrying a large amount of drugs and cash. The officers also
explained the probability that specific items of evidence
connecting Harris to drug trafficking would be located in his
residence. The affidavit connected Harris to the three-story
apartment building at 719 N. Carrollton by discussing the attack on
him in front of the building that began as he drove up in his car,
his flight into the vestibule of the building during the incident,
and the officers’ observation of him sitting (with a severe gunshot
wound) on the steps of the building shortly thereafter. All of
this information connected contraband to Harris’s residence and
Harris to the building. The officers, however, overlooked the need
to state (1) that Harris lived in the 719 N. Carrollton apartment
listed in the affidavit and (2) their grounds for believing he
lived there. See United States v. Procoppio, 88 F.3d 21, 28 (1st
Cir. 1996) (“[I]t is easy to understand how both the officer
applying for the warrant and the magistrate might overlook a lack
of detail on a point often established by the telephone book.”).
The apartment to be searched is prominently identified in the
affidavit, and it is easy to read the affidavit and not realize
that the officers failed to connect the final dots specifically
linking Harris to the apartment. Because the omission was
inadvertent and not readily apparent, the officers could have had
the objectively reasonable belief that their affidavit supplied
probable cause.
20
Harris further contends that there could be no good faith
reliance on the warrant because it contained false statements and
material omissions. He points primarily to the statement that he
“possibly entered the apartment,” (J.A. at 170), after being shot.
This statement does not assert that he did in fact enter the
apartment, but merely raises the possibility that he did, making it
difficult to characterize the statement as affirmatively false.
Moreover, as discussed above, this bare assertion contributes
nothing to the affidavit that would support a finding of probable
cause. Consequently, it is immaterial to the magistrate’s
determination. Harris also argues that the affidavit should have
noted that there was no blood trail to the apartment and that his
keys were found in the street outside the building. He
undisputedly managed to enter the vestibule of the building,
however, without his keys and without trailing blood. While the
fact that his keys were found in the street makes it less likely
that he entered the apartment after he was shot, it does not make
it impossible. More importantly, whether or not Harris entered the
apartment on that day is not dispositive. The primary reason for
searching the apartment was the belief that he was involved in drug
trafficking prior to the day he was shot and that evidence of that
involvement would be found in his home. Furthermore, Harris made
no showing that any of the allegedly false statements or material
omissions were knowingly or recklessly made. We therefore conclude
21
that the officers’ reliance on the warrant was objectively
reasonable, and, as a result, the evidence seized from Harris’s
apartment falls within Leon’s good faith exception to the
exclusionary rule.
B.
Harris argues that the district court should have afforded him
a Franks hearing. We review the district court’s factual
determinations for clear error and its legal conclusions de novo.
United States v.Najjar, 300 F.3d 466, 475 (4th Cir. 2002).
Harris moved for a Franks hearing on the ground that false
information was included in the affidavits supporting the search
warrants. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme
Court recognized a “presumption of validity with respect to the
affidavit supporting [a] search warrant,” id. at 171, and held that
a hearing on a motion to test the sufficiency of the affidavit is
required only if the defendant “makes a substantial preliminary
showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in
the warrant affidavit,” and the offending information was essential
to the probable cause determination, id. at 155-56. See also
United States v. Colkley, 899 F.2d 297, 299-300 (4th Cir. 1990)
(same). The district court found that Harris “failed to show that
these allegedly false statements and omissions were made knowingly
22
and intentionally” and denied the motion for that reason. (J.A. at
1238.) On appeal, Harris again asserts that the affidavit
contained false statements and material omissions, but again offers
no evidence that the allegedly false statements and omissions were
made knowingly and intentionally or with reckless disregard for the
truth. We therefore conclude that the district court did not err
in denying Harris’s motion for a Franks hearing.
C.
Harris objects to the admission at trial of certain statements
made by Clarence Walker and Niam King on the day that Harris was
shot. Decisions regarding the admission or exclusion of evidence
are committed to the sound discretion of the district court and
will not be reversed absent an abuse of that discretion. United
States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995).
The statements to which Harris objects were admitted against
his co-defendant, Zenobia Penn, pursuant to Fed. R. Evid.
801(d)(2)(E), which provides for the admission of statements made
by co-conspirators in furtherance of the conspiracy.5 Before a
5
During a motions hearing, the district court suggested that
“Harris [wa]s ejected from the conspiracy” on January 28, 2001, the
date he was shot, after which point he was “no longer a member of
the conspiracy.” (J.A. at 209.) The court expressed concern about
whether the attack on Harris properly could be described as in
furtherance of the drug trafficking conspiracy, rather than solely
in furtherance of the personal position of certain members. The
court then determined that to the extent the events involved a
23
court can admit such statements over an objection that the
statements do not qualify under the Rule, the court must be
satisfied that the Government has shown, by a preponderance of the
evidence, that the testimony does fall within the definition in
Fed. R. Evid. 801(d)(2)(E). Bourjaily v. United States, 483 U.S.
171, 175 (1987). In this case, there was a great deal of evidence
that a conspiracy existed, and the investigating officers described
the shooting as having the characteristics of a calculated drug
robbery. Harris had an alternative theory -- that he was shot
because he had a sexual relationship with Tilisha Wright, which
made her boyfriend, a leader in the drug trafficking conspiracy,
jealous and angry. Although Harris elicited testimony from Wright
that supports the (retribution-from-a-jealous-lover) theory, it
does not change the fact that there existed much more evidence
pointing to a drug robbery.
The district court gave a limiting instruction making clear
that the challenged statements were not to be admitted against
Harris. Harris, however, claims he was prejudiced despite the
instruction. It is hard to see how the statements challenged -- he
points primarily to the “where’s it at” and “David is dead” remarks
made to Wright -- were so prejudicial that they could not be
overcome. We therefore conclude that the district court did not
conspiracy of which Harris could not be considered a part, he would
be entitled to a limiting instruction or a severance.
24
abuse its discretion in admitting the statements against Harris’s
co-defendant. See United States v. Francisco, 35 F.3d 116, 119
(4th Cir. 1994) (“We generally follow the presumption that the jury
obeyed the limiting instructions of the district court.”).
D.
Harris contends that the district court erred in denying his
motion for mistrial due to certain testimony of Ramona Jones.
Ramona Jones testified that Harris went to Houston to do drug
business with Allah Burman and that Burman paid one of his
suppliers for the drugs that were lost when Harris was shot. The
district court agreed that the evidence should not have come in,
25
and gave a curative instruction,6 rather than granting Harris’s
request for mistrial. Harris argues this was insufficient.
“[D]enial of a defendant’s motion for a mistrial is within the
sound discretion of the district court and will be disturbed only
under the most extraordinary of circumstances.” United States v.
Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997). District courts
evaluate “whether there is a reasonable possibility that the jury’s
verdict was influenced by the material that improperly came before
it” in deciding whether to grant a motion for mistrial. United
6
The district court outlined the evidence it was excluding and
instructed the jury to disregard it. In “deleting” the evidence
from the record, the district court explained that,
Now, what are you to make of these rulings, removing
evidence from the record? And the answer is nothing.
You’re not to draw any conclusions that I’m giving you
any signal or giving you any instruction at all about Ms.
Jones or her testimony or my evaluation of the evidence
in the case.
I told you at the outset that the judge is like a
computer switch, like a gatekeeper. All I do is decide
whether the evidence comes in or is excluded and it’s
entirely up to you as the jury to determine what weight
to give the evidence and what to make of the evidence.
So I’m simply here to say you either look at it or you
can’t.
Sometimes in a trial, because a trial happens like
a live television show, it’s not prerecorded for the
jury, sometimes in a trial evidence will come in that,
upon reflection, should not have come in in the first
place and the only remedy for that is to instruct the
jury to disregard that evidence.
Again, I’m not making any evaluation of the evidence
that was given that I’m now excluding. I’m simply saying
that under the rules that govern a trial, the rules of
evidence, you should not have heard it in the first place
and, therefore, exclude it.
(J.A. at 991-92.)
26
States v. Seeright, 978 F.2d 842, 849 (4th Cir. 1992) (internal
quotation marks omitted). “Before granting a mistrial, the court
should always consider whether the giving of a curative instruction
or some alternative less drastic than a mistrial is appropriate.”
United States v. Martin, 756 F.2d 323, 328 (4th Cir. 1985).
We conclude that this case does not present extraordinary
circumstances that warrant reversing the district court’s decision.
The district court gave a curative instruction to the jury.
Although Harris argues that other than testimony from Steven Jones,
whom he describes as having “severe credibility problems,” Ramona
Jones’s testimony was the most damaging, (Appellant’s Br. at 34.),
Ramona Jones, like Steven Jones, testified pursuant to a plea
agreement. As a result, her credibility was subject to the same
type of attacks levied against Steven Jones. Moreover, the
evidence at trial was not limited to the testimony of cooperating
witnesses. Law enforcement officers, chemists, and custodians of
records for hotels and airlines also testified; non-testimonial
evidence including airline records showing that Harris had paid for
the return flights of other conspirators, a kilogram of cocaine
seized from Harris’s luggage, and a variety of drug paraphernalia
seized from Harris’s apartment was also introduced. Consequently,
we conclude that the district court did not err in denying Harris’s
motion for a mistrial.
27
E.
Harris also challenges the admission of a letter that he wrote
to cooperating witness Steven Jones and a letter that Steven Jones
wrote to him in response. The district court’s admission of
evidence pursuant to Fed. R. Evid. 403 and Fed. R. Evid. 404(b) is
reviewed under an abuse-of-discretion standard and will not be
overturned unless it is arbitrary or irrational. United States v.
Powers, 59 F.3d 1460, 1464 (4th Cir. 1995).
1.
Harris’s letter to Steven Jones stated,
And all that I can say to that is that you are a grown
damn man just like I am and you know the life that you
chose, just like I do. So just because things get a
little uncomfortable and don’t seem to go your way, don’t
mean you supposed to be letting these people put you in
another trick bag by letting you be the fuel to this
bullshit ass fire they got going on. Steve, I been
knowing you a long time and you can never begin to
understand the respect and admiration I have always had
for you. So all I ask, don’t turn your back on the
people that you truly care about.
(J.A. at 721-22.)
The court allowed the letter to come in as evidence of
consciousness of guilt, not as evidence of criminal propensity or
bad character. The court gave the jury a careful limiting
instruction regarding the letter.7
7
The district court explained to the jury that “Harris denies
that he attempted to influence or intimidate . . . Mr. Jones.”
(J.A. at 1059.) The district court then instructed the jury:
[Y]ou may not consider the evidence about these alleged
28
We have previously held that evidence of attempts to influence
a witness is admissible if it is related to the offense charged and
is reliable. United States v. Van Metre, 150 F.3d 339, 352 (4th
Cir. 1998). The letter here is related to the offense charged, and
is signed by Harris. The district court’s limiting instruction
ensured that the jury understood the purpose for which the letter
was admitted and the amount of weight they were permitted to accord
it. We therefore conclude that the decision to admit the letter
was neither arbitrary nor irrational.
2.
Federal Rule of Evidence 106 provides that,
When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the
introduction at that time of any other writing or
recorded statement which ought in fairness to be
considered contemporaneously with it.
Fed. R. Evid. 106. Harris introduced portions of the letter
written by Steven Jones to show that Jones was biased and hostile
. . . attempts to influence as a substitute for proof of
guilt in this case. However, if you find that Mr. Harris
did attempt to intimidate or influence a witness whom he
believed the government was going to call or had called,
you may, but are not required to, infer that the
defendant believed he was guilty of the crime for which
he is here charged.
Whether or not evidence of a defendant’s
intimidation of a witness shows that the defendant
believed that he was guilty of the crime for which he is
now charged and the significance, if any, to be given to
such evidence is for you, the jury, to decide.
(J.A. at 1059.)
29
toward him. Steven Jones identified the letter and was questioned
about portions of it, including the fact that he had signed the
letter “Yours Truly, Self-Preservation.” (J.A. at 768-71.) The
district court found that as a result, the Government could
introduce the rest of the letter to show that Jones had other
reasons for his testimony.
Harris, however, argues that the remaining portions of the
letter should not have been introduced because its probative value
was outweighed by the danger of unfair prejudice. The district
court, however, redacted certain portions it viewed as prejudicial.
(J.A. at 823-24.) Harris claims the statement that, “We both don’t
need to take that rap,” (J.A. at 830), is extremely prejudicial.
He does not, however, contend that it was unfairly prejudicial. We
conclude that the district court did not abuse its discretion in
allowing the jury access to the context in which the questioned
statements were made.
F.
During the Government’s case in chief, Special Agent McCormack
was prepared to testify that Harris took a picture of Wright during
a recess in the trial. He stated that he had been in charge of
escorting Wright to and from the courtroom. During a recess, Agent
McCormack observed Harris gesturing at Wright. Several minutes
later, Harris did a forty-five-degree turn towards her, took a few
30
steps, and took Wright’s photograph with a camera. Harris also
took other pictures at the courthouse; there was a great deal of
activity at the courthouse that day, because the Washington D.C.
area sniper suspects were present as well.8 Agent McCormack
explained that Harris also waived at Wright on another occasion,
but none of the gestures that he saw were clearly threatening. The
district court found the evidence not sufficiently clear cut to be
admissible under Rule 403, but indicated that it was a potential
sentencing issue that the court would revisit if there was a
conviction.
The district court did, however, indicate that it would allow
evidence of the picture-taking to come in during any cross-
examination of Harris. The court found that it was more relevant
on cross-examination than in the Government’s case in chief, in
part because evidence of the letter to Steven Jones, which also
suggested attempts to influence a witness, had since been
introduced. The admissibility ruling was advisory only and
intended to help Harris with his decision whether to take the
8
The snipers, John Muhammad and Lee Malvo, were responsible
for a shooting spree that took place in the suburbs of Washington
D.C. over a period of three weeks in October 2002. The shootings
were “hit-and-run” attacks that “killed men and women at random as
they went about the routine tasks of daily life,” terrifying the
capital region and ultimately claiming the lives of ten people and
injuring three more. Francis X. Clines & Christopher Drew, The
Hunt for a Sniper: The Overview; With Two Held, Police Tie Rifle in
Car to Sniper Killings, N.Y. Times, Oct. 25, 2002, at A1.
31
stand. Harris did not object to the ruling at the time it was
made. Accordingly, we review for plain error. See United States
v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983).
Under the plain error standard of review, to establish our
authority to notice an error not preserved by a timely objection,
a defendant must demonstrate (1) that an error occurred, (2) that
the error was plain, and (3) that it affected his substantial
rights. United States v. Olano, 507 U.S. 725, 733-36 (1993). If
the defendant satisfies these threshold requirements, correction of
the error is within our discretion, which is appropriately
exercised “only when failure to do so would result in a miscarriage
of justice, such as when the defendant is actually innocent or the
error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Promise, 255
F.3d 150, 161 (4th Cir. 2001) (en banc) (quoting Olano, 507 U.S. at
736) (internal quotation marks omitted) (alteration in original)).
Although Harris contends that the challenged evidentiary ruling was
in error, he makes no argument that any error was plain, affected
his substantial rights, and seriously affected the fairness,
integrity, or public reputation of the proceedings. We therefore
conclude that the district court’s decision to allow cross
examination of Harris regarding his photography was not plainly
erroneous.
32
G.
Harris contends that his sentence was imposed in violation of
his Sixth Amendment Right to trial by jury. In Booker, the Supreme
Court held that a district court violates the Sixth Amendment when,
acting pursuant to the mandatory Sentencing Guidelines, it imposes
a sentence greater than the maximum authorized by the facts found
by the jury or admitted by the defendant in a guilty plea. Booker,
543 U.S. at 244. Because Harris did not raise this objection at
sentencing, we review for plain error. See Olano, 507 U.S. at 733-
37. As discussed in subsection F, supra, on plain error review, we
will reverse the district court only if we (1) identify an error,
(2) which is plain, (3) which affects substantial rights, and (4)
which seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.; United States v. Hughes,
401 F.3d 540, 547-49, 555 (4th Cir. 2005).
Harris contends that the district court made three factual
findings related to the conspiracy count (Count One) that increased
his sentence beyond that authorized by the facts found by the jury:
(1) that he occupied an intermediate place in the conspiracy,
warranting a two-level enhancement for his role in the conspiracy,
(2) that the letter to Steven Jones constituted an attempt to
influence a witness not to testify, warranting a one-level increase
for obstruction of justice, and (3) that the quantity of drugs
33
attributable to Harris was within the five to fifteen kilogram
range.
Both sentencing enhancements were based on factual findings by
the district court and were imposed under the pre-Booker mandatory
Guidelines. With regard to Harris’s role in the conspiracy, the
district court stated its view that “[Harris] falls somewhere
between people like Mr. Berman and Mr. Walker on the top of the
scale and the couriers on the bottom of the scale.” (J.A. at
1208.) The district court then explained that “Harris should not
be given a four level upward adjustment under 3B1.1,” but that he
“fits within subsection C, and therefore, I will increase [the
sentence on Count One] by two levels based upon the evidence
presented at trial and the arguments here at the sentencing.”
(J.A. at 1208.) With regard to the obstruction-of-justice
enhancement, the district court found that although neither alleged
act of obstruction of justice -- taking the photograph of Wright
and sending the letter to Steven Jones -- was “clear-cut,” the
letter did “call[] upon the ties of friendship and past intimacy in
an effort to persuade Jones not to testify in a harmful way.”
(J.A. at 1209.) Because judicial fact-finding increased Harris’s
sentence beyond the maximum sentence authorized by the jury verdict
alone, we conclude that the resulting sentence is plainly
erroneous. Although it is possible Harris would receive identical
enhancements on remand, there is nothing in the record to compel
34
that conclusion. Accordingly, we conclude that the exercise of our
discretion to correct the error is warranted. See Hughes, 401 F.3d
at 556.
The calculation of Harris’s base sentence, without the
enhancements, was also the product of judicial fact-finding. In
order to determine the base offense level, the district court was
required to determine the drug quantity attributable to Harris.
The district court determined that “the proper range to place []
Harris in [wa]s Level 32, which is calculated with respect to
between 5 to 15 kilograms of cocaine,” describing the finding as “a
difficult determination to make.” (J.A. at 1206.) Because the
jury did not make an individualized determination of the amount of
drugs attributable to Harris with respect to the conspiracy, this
factual finding increased Harris’s sentence beyond the maximum
authorized by the jury verdict alone.
Under our precedent, “specific threshold drug quantities must
be treated as elements of aggravated drug trafficking offenses,
rather than as mere sentencing factors.” Promise, 255 F.3d at 156.
As a result, specific threshold quantities must be charged in the
indictment and proven to the jury beyond a reasonable doubt. Id.In this case, the district court did not treat the drug quantity as
an element of the offense; it instructed the jury that to convict
on Count One, it must find only two elements beyond a reasonable
doubt (1) that the conspiracy described and charged in Count One
35
existed, and (2) that the defendant “knowingly, willfully, and
voluntarily became a member of the conspiracy,” (J.A. at 1088).
The district court instructed the jury that “[t]he extent of a
defendant’s participation has no bearing on the issuance of a
defendant’s guilt,” (J.A. at 1090), and went on to explain that,
“[i]f you find that the government has proven a defendant guilty of
the conspiracy charged in Count One, that is that the alleged
conspiracy existed and that the defendant knowingly and
intentionally became a member of the conspiracy, then you must
determine beyond a reasonable doubt what type and quantity of
controlled substances are attributable to the defendant,” (J.A. at
1098). The jury verdict form, however, did not call for the jury
to make an individualized determination of the drug quantity
attributable to Harris. Instead, it simply provided for the jury
to make a finding regarding that amount of cocaine attributable to
the entire conspiracy. In explaining the form to the jury, the
district court did not tell the jury to interpret the form as
referring solely to the amount attributable to David Harris, but
simply read the form to the jury.
Because the jury verdict form did not provide for the jury to
make an individualized finding of the drug quantity attributable to
Harris, the maximum penalty authorized by the jury verdict would
ordinarily be the default penalty provision that applies when the
amount of crack cocaine attributable to a defendant is less than 5
36
grams, 21 U.S.C.A. § 841(b)(1)(C). See United States v. Collins,
415 F.3d 304, 314 (4th Cir. 2005). The base offense level for
conspiracy to distribute 5 grams of cocaine was 12. U.S.
Sentencing Guidelines Manual § 2D1.1(c)(14) (2002). In this case,
however, the jury found Harris guilty of possession with intent to
distribute one kilogram of cocaine and of conspiracy to distribute
cocaine, and the evidence that the kilogram of cocaine possessed by
Harris was connected to the conspiracy was overwhelming. We
therefore conclude that calculating a base level using a drug
quantity of up to 1 kilogram (which would provide for a base
offense level of 26) would not affect Harris’s substantial rights.
See Promise, 255 F.3d at 163.9 Because the district court,
however, used the 5-15 kilogram range to assign Harris a base
offense level of 32, and this resulted in a longer sentence than
the maximum that would have been available under the Guidelines
when using a base offense level of 26, the district court sentenced
Harris in violation of his Sixth Amendment rights as articulated in
Booker.10
9
At sentencing, Harris’s attorney stated that, “The jury did
find that he possessed that one kilo in one of the counts, so I am
not going to argue that particular one kilo,” (J.A. at 1133), and
asserted that the amount attributable to Harris was less than two
kilograms –- the one kilogram found in Harris’s luggage and a
quantity of less than half a kilogram possessed by coconspirator
Steven Jones, (J.A. at 1135-36).
10
We note that there is no Apprendi error in this case with
respect to Harris’s underlying conspiracy conviction. See Apprendi
37
H.
In addition to arguing that he should be resentenced in
accordance with Booker and Apprendi, Harris also argues that he
should not have received a sentencing enhancement for obstruction
of justice. The government, in turn, argues that he should have
received a greater enhancement for obstruction of justice than he
did. Because sentencing post-Booker requires the district court
to correctly calculate the Guidelines range as a first step, see
United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006), these
issues are likely to arise again. We therefore address them at
this time to prevent them from resurfacing.
1.
We review the district court’s factual findings for clear
error, but if the issue on review “turns primarily on the legal
interpretation of a guideline term, . . . the standard moves closer
to de novo review.” United States v. Daughtrey, 874 F.2d 213, 217
(4th Cir. 1989).
v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.”). The default penalty
provision in 21 U.S.C.A. § 841(b)(1)(C) provides for a statutory
maximum of 20 years, which increases to 30 years if the defendant
has a prior conviction for a felony drug offense. Harris’s
sentence of 210 months on Count One does not exceed the statutory
maximum.
38
The Government requested the obstruction-of-justice
enhancement due to (1) Harris’s having taken a picture of a
government witness during a recess and (2) the letter Harris wrote
to Steven Jones. Harris offered innocent explanations for both
actions. The district court credited his explanation with regard
to the photograph and did not use the picture-taking as a ground
for the enhancement. Harris also asserted that he wrote the letter
to Steven Jones not to dissuade Jones from testifying, but to urge
him not to lie in order to save himself if he did choose to
testify. The district court rejected that explanation, finding
that although the letter was nonthreatening, it did “call[] upon
the ties of friendship and past intimacy in an effort to persuade
Jones not to testify in a harmful way.” (J.A. at 1209.) The
district court indicated that neither alleged act of obstruction of
justice was clear cut and emphasized that Harris did not write the
letter on his own initiative, but because Jones had instructed his
wife to contact Harris. Still, the portions of the letter urging
Jones not to “be the fuel to this . . . fire” or turn his back on
someone who cares about him may be interpreted as attempting to
convince a witness not to testify in a harmful way. Thus, we
conclude that the district court’s factual finding was not clearly
erroneous.
39
2.
The district court imposed a one-level enhancement for
obstruction of justice, rather than the two level enhancement,
because it found that the letter was nonthreatening, but was
nevertheless an attempt to dissuade a witness from testifying.
(J.A. at 39.) The Government argues that under the Guidelines, the
enhancement is all or nothing, requiring the district court to
impose a two-level enhancement or none at all. Our circuit has not
previously spoken directly to this issue, but the Seventh Circuit
has addressed it and agreed that U.S. Sentencing Guidelines Manual
§ 3C1.1 (2002) provides for two levels and two levels only. See
United States v. Gilleylen, 81 F.3d 70, 72 (7th Cir. 1996) (“In
formulating the guidelines, the Sentencing Commission certainly, if
anything, knows how to departmentalize categories of aggravating
and mitigating circumstances. . . . Had the Sentencing Commission
wanted to permit gradations of obstructions, it certainly could
have done so. It didn't, and we decline to authorize the reduction
as a judicial rule.”). We find the rationale of the Seventh
Circuit persuasive, and therefore conclude that U.S.S.G. § 3C1.1
provides only for a two-level enhancement and does not permit
gradations.
40
III.
In sum, we affirm Harris’s convictions, finding no reversible
error, but vacate his sentence and remand for resentencing in
accordance with Booker.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
41