United States v. Danny Harmon ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1502
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ANNY H ARMON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:11-cr-00084-JMS-KPF—Jane E. Magnus-Stinson, Judge.
A RGUED N OVEMBER 26, 2012—D ECIDED JULY 11, 2013
Before R OVNER, W ILLIAMS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. A jury convicted Danny Harmon
of a marijuana conspiracy and related offenses. The
district court sentenced him to 360 months’ imprison-
ment. Harmon appeals his convictions and sentence.
He first contends that a trial continuance violated his
Sixth Amendment right to a speedy trial and that the
disclosure of his prior drug conviction deprived him of a
fair trial. He also argues that the district court erred in
2 No. 12-1502
its fact finding at sentencing. For the following reasons,
we affirm Harmon’s convictions and sentence.
I. B ACKGROUND
On May 10, 2011, a grand jury indicted Harmon with
conspiracy to possess with intent to distribute 100 kilo-
grams or more of marijuana, three counts of attempting
to possess marijuana with intent to distribute, and using
a telephone to facilitate a drug-trafficking crime. Harmon
made his initial appearance on May 13, and was
detained pending trial. The court set the trial for July 18,
2011. On June 30, the government filed its one and only
motion for a continuance of trial. Harmon objected and
the court held an evidentiary hearing on the motion.
Following the hearing, the court granted the motion
and reset the trial to August 22. (Defense counsel had
advised that he had a pre-planned vacation in early
August; this gave counsel a week after that to finalize
trial preparation.) In doing so, the court explained that
the government needed a reasonable opportunity to
investigate potential evidence about Harmon’s alleged
consciousness of guilt, which evidence did not manifest
itself until after his initial appearance and could not
have been obtained before his arrest. Because of the
need to obtain and review 200 to 250 telephone calls
Harmon had made while detained and investigate any
resulting leads, the court found it unreasonable to expect
the government to be prepared for trial on July 18. The
court noted that Harmon did not claim that any actual
prejudice would result from a thirty-day continuance.
No. 12-1502 3
On July 28, Harmon was charged in a superseding
indictment that included the five counts of the original
indictment but increased the quantity of marijuana to
1,000 kilograms or more, and added two additional
counts: one for the attempt to kill a witness with intent
to prevent him from testifying at Harmon’s trial and
one for attempted intimidation of the same witness.
A jury trial began August 22. The trial evidence estab-
lished that from September 2002 until January 2011,
Harmon engaged in marijuana trafficking, averaging 100
to 200 pounds (113.4 kilograms) of marijuana per
month for ten months each year. (There was a lull each
year for the July-August growing season.) Harmon
hired couriers to travel to Tucson, Arizona, where mari-
juana was loaded into their vehicles. The couriers
then returned to New Castle, Indiana, where Harmon
unloaded the marijuana and paid the couriers $75 per
pound. Then Harmon; his son, Aaron Harmon; Kurt
Baker; and Bradford Raines broke down the marijuana
into one-pound packages for distribution. Raines also
stored and distributed some of the marijuana for
Harmon. Raines and three of Harmon’s couriers,
John Meadows, Ricky Griffin, and William Wilkinson,
testified at trial.
Raines had known Harmon for 12 to 15 years. Harmon
had a second home in Florida that Raines had visited
eight to ten times with Harmon, Baker, Aaron Harmon,
and others. Harmon paid for Raines’s flights to Florida.
In late 2001, Harmon paid for Raines and their two
female friends to fly to Arizona for a resort vacation.
4 No. 12-1502
During the trip, they spent time in Mexico, where
Harmon introduced Raines to an individual known as
“Ralph.” Raines later learned that “Ralph” was Harmon’s
main marijuana supplier. In August 2002, Harmon
loaned Raines approximately $125,000 in cash. By that
time, Raines had become involved in the marijuana
business with Harmon. Harmon paid Raines $500 each
time he helped break down the marijuana. Raines
testified that from the time he became involved in 2002
until his arrest in 2011, he broke down marijuana
once or twice per month (with the exception of July
and August). He stated that the loads of marijuana
were at least 100 to 200 pounds.
Meadows testified that he began transporting mari-
juana for Harmon in 2004 or 2005. Meadows believed
that he had transported 100 pounds of marijuana on his
first trip. He would drive to Tucson, Arizona, park his
vehicle, and leave the keys under the floor mat. When
the keys had been moved, he knew that the vehicle
was loaded and ready for the return trip to New Castle.
Meadows’s son-in-law, Griffin, accompanied Meadows
on two trips. The first trip with Griffin involved about
204 pounds of marijuana and the second trip involved
about 100 pounds. Griffin’s testimony about the trips
corroborated Meadows’s account. In February 2008, when
Meadows was transporting 94.6 pounds of marijuana,
he wrecked his vehicle in Oklahoma. Meadows was
hospitalized and arrested, and, as a result, ceased trans-
porting marijuana for Harmon for a while.
Enter William Wilkinson, who transported marijuana
for Harmon from Arizona to New Castle five times be-
No. 12-1502 5
tween March and August 2009. On August 20, 2009,
Wilkinson was arrested in Arizona with approximately
200 pounds of marijuana in his vehicle. He called
Harmon to alert him about the arrest, but later agreed
to cooperate with law enforcement. Thereafter, Meadows
resumed working as a courier for Harmon, making the
trips in the same way as before. Meadows made his
last trip on January 11, 2011, when he was stopped by
law enforcement. He was transporting approximately
103 pounds of marijuana on that final trip.
At the end of the trial, the jury found Harmon guilty
of all counts except for the attempted murder and witness
intimidation counts. Before sentencing, a presentence
report (PSR) was prepared. The PSR concluded that
Harmon had engaged in marijuana trafficking from at
least December 2001 until January 2011 and held him
accountable for 113.4 kilograms of marijuana per month
for a total of 10,206 kilograms. (The calculation allowed
for two months per year for growing-season lapses.)
Harmon did not dispute that the record supported a
determination that he was responsible for 113.4 kilo-
grams per month for ten months each year, but he
objected to the PSR’s commencement of the computation
of the trafficking period in December 2001. He con-
tended that the start date should have been August 2002,
when Raines joined, resulting in 9,639 kilograms of mari-
juana attributable to him.
Harmon’s preferred starting date would have resulted
in a sentencing guidelines base offense level of 34 rather
than 36 as indicted in the PSR. An August 2002 start date
would have had another favorable benefit for Harmon:
6 No. 12-1502
an October 1991 marijuana conviction would not have
counted in the calculation of his criminal-history score,
so his criminal history category would have been I. How-
ever, the district court agreed with the government that
the conspiracy did not begin when Raines became
involved but had begun much earlier, and as a result,
found that Harmon was responsible for more than 10,000
kilograms of marijuana. This increased his base offense
level to 36 and made his October 1991 conviction relevant
for his criminal history, placing him in criminal history
category II. Combined with Harmon’s total offense level
of 42, this yielded a guidelines range of 360 months to
life. The court sentenced Harmon to 360 months’ impris-
onment, at the bottom of the range. Harmon appeals.
II. D ISCUSSION
A. Speedy Trial Right
Harmon first argues that the approximate one-month
trial continuance violated his constitutional right to a
speedy trial. He contends that we review his speedy
trial claim de novo. The government argues that we
review for plain error because Harmon did not assert
his Sixth Amendment speedy trial right in the district
court. The government has the better view. See, e.g., United
States v. Hassebrock, 663 F.3d 906, 915 (7th Cir. 2011), cert.
denied, 132 S. Ct. 2377 (2012); United States v. Gearhart,
576 F.3d 459, 462 (7th Cir. 2009). In any event, whether
our review is de novo or for plain error, Harmon’s
speedy trial claim fails.
No. 12-1502 7
We use a four-factor test to evaluate a constitutional
speedy trial claim: “(1) whether the delay was uncom-
monly long, (2) whether the government or the
defendant is more to blame for the delay, (3) whether
the defendant asserted his right to a speedy trial in
due course and (4) whether the defendant suffered preju-
dice as a result of the delay.” Hassebrock, 663 F.3d at 915(quoting Gearhart, 576 F.3d at 463). “The first factor . . .
is a threshold requirement: ‘without a delay that is pre-
sumptively prejudicial, we need not examine the other
factors.’ ” United States v. Loera, 565 F.3d 406, 412 (7th Cir.
2009) (quoting United States v. White, 443 F.3d 582, 589
(7th Cir. 2006)). “Delay approaching one year is presump-
tively prejudicial.” Id. The delay in this case is not even
close to that: the government sought one thirty-day
continuance, and Harmon’s trial began within three
and one-half months of the date of his indictment. The
delay is so short that Harmon cannot get past the thres-
hold requirement.
But because “we have not set a clear cutoff,” in terms of
the length of delay, Hassebrock, 663 F.3d at 915, we consider
the other factors as well. Although the government re-
quested the continuance, Harmon is responsible, at least
in part, for the delay. The government had obtained
serious information that after Harmon was arrested on
the indictment, he began getting rid of assets subject
to forfeiture and intimidating and perhaps even trying
to eliminate one or more government witnesses.
Such evidence—evidence of Harmon’s consciousness of
guilt—likely would be admissible at trial. See, e.g.,
United States v. Russell, 662 F.3d 831, 850 (7th Cir. 2011)
8 No. 12-1502
(indicating that evidence of consciousness of guilt raises
an inference of actual guilt), cert. denied, 132 S. Ct. 1816(2012); United States v. Mokol, 646 F.3d 479, 483 (7th Cir.
2011) (“a defendant’s attempts to intimidate potential
witnesses are probative of his consciousness of guilt”);
United States v. Hatfield, 685 F. Supp. 2d 320, 327 (E.D.N.Y.
2010) (evidence of defendant’s transfer of assets out of
country probative of consciousness of guilt). The gov-
ernment sought a continuance to investigate these
matters further.
The Supreme Court has explained that “a valid reason,
such as a missing witness, should serve to justify appro-
priate delay.” Barker v. Wingo, 407 U.S. 514, 531 (1972). It
is true that the government had additional reasons for
requesting a continuance—it needed more time to obtain
other evidence, including forensics reports and marijuana
seized in Arizona, Oklahoma, and Kansas, fulfill its
discovery obligations to the defense, and assure the
appearance of out-of-state witnesses at trial. (Though it
appeared that the government was doing some last-
minute scrambling to prepare its case, it was not shown
to be impossible for it to complete those tasks by the
originally scheduled trial date.) Even though the gov-
ernment may be at fault for not getting that evidence
earlier, it cannot be faulted for failing to obtain the evi-
dence of consciousness of guilt sooner—that evidence
did not exist until after Harmon was indicted. The
delay caused by the government’s need to develop the
evidence of Harmon’s consciousness of guilt is akin to a
delay caused by a missing witness. Thus, the approxi-
mate thirty-day delay was reasonable and justified. And
No. 12-1502 9
the blame for the delay seems equally balanced here;
at most this factor tips slightly in Harmon’s favor.
Harmon objected to the continuance, which weighs in
his favor. Thus, we consider whether he suffered any
prejudice as a result of the delay. “We examine
prejudice resulting from a delay in trial in light of the
interests the Sixth Amendment seeks to protect.”
Hassebrock, 663 F.3d at 915 (quoting United States v.
Hills, 618 F.3d 619, 632 (7th Cir. 2010)). The interests are
“(i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired.” Id.(quoting White, 443 F.3d at 591). The Supreme Court
has identified missing or deceased witnesses, loss of
memory of defense witnesses, and loss of other exculpa-
tory evidence as examples of what is meant by impair-
ment to the defense. Doggett v. United States, 505 U.S.
647, 654 (1992); Barker, 407 U.S. at 532.
Harmon has not claimed oppressive pretrial incarcera-
tion. Nor has he alleged that he suffered any anxiety or
concern. And like the defendants in Hassebrock, 663
F.3d at 915, White, 443 F.3d at 591, and United States v.
Salerno, 108 F.3d 730, 738 (7th Cir. 1997), where we
found no Sixth Amendment speedy trial right violation,
Harmon has not shown that his ability to present a
defense was impaired in any way. He has not identified
a missing witness nor alleged that a defense witness
had a loss of memory or that he otherwise was unable
to present exculpatory evidence. Indeed, the defense
called only one witness to testify at trial—Susan Koenker,
Harmon’s accountant.
10 No. 12-1502
Instead, Harmon claims prejudice because the govern-
ment was able to gather more evidence against him.
Specifically, he complains that the shooting the govern-
ment used to charge him with attempted murder and
witness intimidation occurred between the original trial
date and the eventual trial date, the government needed
the additional time to obtain and test marijuana evi-
dence, and it had additional time to interview witnesses
and prepare its case. He also claims that although he
was acquitted of the attempted murder and witness
intimidation counts, his defense “was contaminated by
the stain of” those counts.
“ ‘[P]rejud ice’ is not caused by allowing the Govern-
ment properly to strengthen its case, but rather by delays
intended to hamper defendant’s ability to present his
defense.” Salerno, 108 F.3d at 738 (quoting United States
v. Tedesco, 726 F.2d 1216, 1221 (7th Cir. 1984)); see also
Gearhart, 576 F.3d at 463. “A defendant is not entitled to,
and justice is ill-served by, a trial during which the Gov-
ernment is not able to present relevant evidence.” Tedesco,
726 F.3d at 1222. Evidence of intimidation of a witness
raises an inference of consciousness of guilt which raises
an inference of actual guilt. See, e.g., Russell, 662 F.3d at
850; Mokol, 646 F.3d at 483. Thus, evidence of the at-
tempted murder and witness intimidation counts was
certainly relevant to the other charges against Harmon.
And while the jury did not find that the evidence
proved beyond a reasonable doubt that Harmon was
guilty of these counts, the evidence supporting them was
not insubstantial. Robert Short testified that Harmon
No. 12-1502 11
offered to pay him to “get rid of the fat guy [Meadows]”
and “if there was another guy there . . . the fat guy’s son-in-
law [Griffin], get rid of him, too.” Short stated that
Harmon drew him a map so Short could follow through
on the request, and although the original map was
gone, Short drew one from memory. That map was ad-
mitted into evidence and Short explained the drawing
to the jury, noting that the witness (Meadows) had a
maroon Buick that he parked near his house and that
the key was broken off in the ignition. After Short
testified, Captain Michael Neuner of the Beech Grove
Police Department testified that he, Special Agent Kevin
Steele, and a detective visited Meadows’s residence and
confirmed what Short had said about the ignition of
Meadows’s vehicle being broken. Meadows testified
that during the time he was cooperating with law enforce-
ment, he heard gunfire near his house. He also said that
on July 21, as he was driving near his residence,
someone shot at him twice from a silver car with tinted
windows. The government offered evidence of two
bullet holes in Meadows’s vehicle—one went through
the windshield on the driver’s side and the other went
through the passenger-side door. And Raines testified
that in the time leading up to trial, he was followed
from the Volunteers of America to his work site by some-
one in a grey or silver car. To the extent that the evi-
dence of attempted murder and witness intimidation
impacted the jury’s determination of the other counts, it
is because such evidence was probative of Harmon’s guilt.
Evidence that Harmon was disposing of assets was not
insubstantial either. Agent Steele testified, for example,
12 No. 12-1502
that in recorded phone calls from the jail, Harmon had
said that large sums of currency were concealed inside
the wheels of a child’s ATV and directed others to
retrieve the currency. Agent Steele stated that he went to
see the ATV at Harmon’s aunt’s residence on June 16
and observed that the left rear tire had been deflated and
it appeared from scuff marks on the rim that it had
been removed. Recordings of numerous other phone
calls Harmon made while incarcerated in which he di-
rected others to dispose of his assets were played at
trial. In one such call, he directed an associate to a fire-
place where money was hidden.
The evidence of attempted murder, witness intimida-
tion, and asset dissipation raises an inference of
Harmon’s consciousness of guilt of the offenses of which
he was convicted. The brief trial continuance was
necessary to allow the government to gather this
relevant evidence and present it at trial. Furthermore,
Harmon has not shown prejudice resulting from
pretrial delay. Even giving Harmon the benefit of the
doubt on the threshold requirement, we conclude that
his constitutional right to a speedy trial was not violated.
Therefore, the district court did not err in granting
the government’s motion for a trial continuance.
B. Disclosure of Prior Conviction
Harmon’s second argument—that the district court
abused its discretion in denying his motion for a mistrial
which was based on the disclosure of his prior drug
conviction—fares no better than his first. The govern-
No. 12-1502 13
ment concedes that the testimony was improper but
argues that the error was sufficiently cured by the
court’s instructions to the jury, repeated at the end of
trial, to disregard the testimony. The government also
argues that any error in the admission of the statement
about Harmon’s prior conviction was harmless given
the overwhelming evidence of guilt.
On the third day of trial, the government asked its
witness Short, who had been incarcerated with Harmon
while Harmon was awaiting trial, “Did he [Harmon]
tell you how long he’d been in the marijuana business?”
Short answered, “He got busted—he told me he got
busted back in ‘91 and took it to trial, and got a four-
year sentence. And he’d been, he’d been going full
throttle since then, since he got out.” Harmon objected to
the admission of evidence of his prior conviction and
moved for a mistrial. Out of the jury’s presence, Short
stated that no one from the government had told him
not to mention Harmon’s 1991 conviction, and no one
from the government told him to mention the convic-
tion either.
The district court denied the motion for a mistrial,
concluding that the fact of the prior conviction estab-
lished a time frame, the evidence of the conviction was
not introduced to show propensity, and Short gave
no indication that the conviction was for dealing in mari-
juana. The court also sustained the objection, ordered
the answer stricken, and instructed the jury as follows:
“[A]n objection to the last—the witness’s last answer,
which referenced some prior conduct of Mr. Harmon, was
14 No. 12-1502
made and sustained by the Court, and that answer
is stricken from the record, and you may not consider it.”
At the beginning of the next day of trial, the jury sub-
mitted two questions to the court: “Why did the judge
tell the jury to take out the last portion of Mr. Short’s
testimony?” and “What part of the testimony should we
not consider as far as for this trial?” The government ex-
pressed concern that the jury didn’t understand what
testimony had been stricken. The parties and the court
discussed how to handle the questions, and ultimately
the court advised the jury:
So that we’re clear on the testimony that was
stricken, it was this: Mr. Short gave some testi-
mony regarding a prior conviction and length of
sentence with respect to Mr. Harmon. That testi-
mony is stricken. It is not to be considered by
you in any way in deciding this case.
So that was the only testimony that was stricken,
but it was stricken from the record. It is not
in evidence.
An admonition regarding stricken testimony was re-
iterated in the final jury instructions: “[T]estimony and
exhibits that I struck from the record . . . are not evidence
and must not be considered.”
On appeal, Harmon argues that the jury did not disre-
gard the stricken testimony and that striking the testi-
mony was insufficient to outweigh its prejudicial im-
pact. We review the denial of the motion for a mistrial for
an abuse of discretion. United States v. Vargas, 689 F.3d 867,
No. 12-1502 15
873 (7th Cir.), cert. denied, 133 S. Ct. 804 (2012). This is
“because the trial court ‘is in the best position to deter-
mine the seriousness of the incident in question, par-
ticularly as it relates to what has transpired in the course
of the trial.’ ” Id. (quoting United States v. Clarke,
227 F.3d 874, 881 (7th Cir. 2000)). We “ ‘must affirm
unless we have a strong conviction that the district
court erred,’ and the error committed was not harm-
less.” Id. (quoting Clarke, 227 F.3d at 881). “The ultimate
inquiry then is ‘whether the defendant was deprived of
a fair trial.’ ” Id. (quoting Clarke, 227 F.3d at 881).
Harmon argues that the jury’s questions about the
stricken testimony show that the jury considered the
improper testimony until the following day and thus
was unable to follow the court’s instruction to
disregard the testimony. Though the questions suggest
that the jury may have thought about the stricken testi-
mony between Short’s testimony and the next day, such
consideration is not improper. As the judge instructed,
the stricken testimony was “not to be considered . . . in
any way in deciding this case. . . . . [The testimony] was
stricken from the record. It is not in evidence.”
(emphasis added).
That the jury asked for clarification in light of its uncer-
tainty about what was stricken shows that the jury
was being conscientious and striving to understand and
follow the court’s instructions. The court’s initial ad-
monishment was vague because it referred to “the wit-
ness’s last answer” and ordered “that answer” is
stricken. The “last answer,” however, referred not only
to Harmon’s conviction, but also to his conduct in “going
16 No. 12-1502
full throttle since then.” Thus it is understandable that
the jury would seek clarification as to what part of the
answer was stricken and could not be considered. And
even though the subsequent admonishment emphasized
the improper testimony, indeed, referring to the “prior
conviction,” Harmon’s counsel agreed that was how
the court should answer the jury’s questions. In
addition, the court reiterated in its final instructions
that the jury was not to consider any stricken testimony,
an admonishment applicable to the mention of the
prior conviction, in deciding the case. The emphasis
was not for an improper purpose and did not deprive
Harmon of a fair trial.
“[J]urors are presumed to follow limiting and curative
instructions unless the matter improperly before them is
so powerfully incriminating that they cannot reasonably
be expected to put it out of their minds.” United States
v. Garvey, 693 F.3d 722, 726 (7th Cir. 2012) (quoting
United States v. Smith, 308 F.3d 726, 739 (7th Cir. 2002)).
The fact of Harmon’s prior conviction—for an unstated
offense—was not “so powerfully incriminating.” That
the jury asked for clarification regarding what testi-
mony was stricken is not indicative that they could not
put it out of their minds and follow the court’s instruc-
tions. The district court was in the best position to
evaluate the effect of the statement, and it did so
carefully and properly. Nothing in the record suggests
that once the jury understood what testimony was to
be disregarded, it could not follow the court’s instructions.
Harmon argues that the similarity between the past
conviction and the offense for which he was on trial was
No. 12-1502 17
particularly prejudicial. The prejudice from admission
of evidence of a prior conviction for a similar offense
may be greater than for a dissimilar offense. Cf. United
States v. Toney, 27 F.3d 1245, 1254 (7th Cir. 1994) (“The
danger of admitting evidence of a defendant’s prior
conviction for a similar offense is that the “jury will
regard past convictions of similar crimes as evidence of . . .
a willingness to commit the crime charged.”). But
neither Short nor anyone else mentioned that the
prior conviction was for dealing marijuana. Besides, the
bulk of Short’s testimony went to the attempted
murder and witness intimidation counts of which the
jury acquitted Harmon. The acquittal on these counts
suggests that the jury did not give much weight
to Short’s testimony. So, even if the jury understood
Short’s testimony to have been that Harmon said he
had a prior conviction for dealing marijuana, the jury
may not have believed him.
The testimony that Harmon had a prior conviction
did not deprive Harmon of a fair trial and the district
court did not abuse its discretion in denying his motion
for a mistrial. And even if there was error in the intro-
duction of the fact of Harmon’s prior conviction, the
error was harmless given the overwhelming evidence
of guilt on the counts of conviction. See Vargas, 689 F.3d
at 875-76.
C. Sentencing Challenges
Now we turn to Harmon’s sentencing challenges. He
argues that the district court erred by not making
18 No. 12-1502
specific findings as to the start of the conspiracy and the
quantity of marijuana attributable to him. Yet he also
argues that the court erred in determining that the con-
spiracy began in 1999. Harmon does not dispute that
the average amount of marijuana obtained and dis-
tributed during the course of the conspiracy was 113.4
kilograms (about 250 pounds) per month for ten months
per year. We review the district court’s application of
the Sentencing Guidelines de novo and its findings of
fact for clear error. United States v. Bennett, 708 F.3d 879,
888 (7th Cir. 2013); United States v. Fluker, 698 F.3d 988, 1001
(7th Cir. 2012). Factual findings are overturned “ ‘only
if our review of all the evidence leaves us with the
definite and firm conviction that a mistake has been
made.’ ” Bennett, 708 F.3d at 888 (quoting United States
v. Robertson, 662 F.3d 871, 876 (7th Cir. 2011)).
Harmon claims that the district court erred by first
determining the base offense level and quantity of mari-
juana it wanted to attribute to him and then searching
for supporting facts. In making it findings, the court
explained:
The Court finds that the Government has established
by a preponderance of the evidence that the quantity
of marijuana attributable to the Defendant exceeds
10,000 kilograms such that a base offense level of
36 is appropriate. The Court bases its finding on
the fact that the Defendant acknowledges based
upon a start date of September 2002, that
properly attributable conduct to him puts us at a
figure of 9,639 kilograms. I multiplied 85 times
the 113.4—I am sorry.
No. 12-1502 19
My math for that then comes out to 9,639, mean-
ing in order to get over to in excess of 10,000,
there would need to be an additional 362 kilo-
grams attributable to the Defendant. The Court
agrees with the Government that the evidence
establishes that the conspiracy did not begin when
Mr. Raines was involved, but, instead, predated far
earlier than that time.
And specifically the hard evidence the Court
looks to is the purchase of the home in Florida
in 1999 and the lengthy period of cash flow that
was far in excess of anything, any legitimate busi-
ness could have incurred from that time. So
really, the Court needed to find about four
months to overcome, and the Court finds that
there were probably in excess of years that
support the finding on the base offense level 36.
Sent. Tr. 82-83 (emphases added). The court subsequently
referred to its “finding based on the acquisition of the
Florida home is sort of a hard, fast date that is not
subject to a credibility finding.” Id. at 85.
It is a little troubling that the district court articulated
its process of determining the quantity of attributable
drugs as “get[ting] over to in excess of 10,000,” but a close
review of the record demonstrates that the court was
guided by the evidence rather than a goal of reaching a
certain offense level. In the end, we are convinced that
it was reasonable for the court to conclude that the con-
spiracy did not start from scratch when Raines joined,
but rather, that it ran for years prior to that, and thus
the drug quantity easily exceeded 10,000 kilograms.
20 No. 12-1502
Harmon complains that the district court failed to
make specific findings as to the start of the conspiracy
and the drug quantity in violation of Federal Rule of
Criminal Procedure 32. The rule requires a district court
to rule on disputed facts that will affect sentencing. Fed.
R. Crim P. 32(i)(3)(B). But, as noted, the court found
that the government established that the quantity of
marijuana attributable to Harmon exceeds 10,000 kilo-
grams. The court also found that the start of the
conspiracy predated Raines’s involvement in 2002 by
years; the court referred to 1999, which takes the con-
spiracy back much further than necessary to account
for the court’s finding as to drug quantity. Harmon con-
ceded a relevant conduct start date of September 2002.
The court did not have to find that the conspiracy
started years before then but only “about four months”
earlier to support its finding that Harmon is accountable
for more than 10,000 kilograms of marijuana. (As
noted, Harmon does not dispute the PSR’s estimate of the
amount of marijuana per month during the course of
the conspiracy.) The court’s findings are specific enough
to satisfy Rule 32(i)(3)(B) and adequately explain how
the court arrived at its guidelines calculations. See, e.g.,
United States v. Brown, No. 12-3413, 2013 WL 2150822, at
*5 (7th Cir. May 20, 2013) (noting that Rule 32(i)(3)(B)
imposes a “minimal burden”); United States v. Alviar,
573 F.3d 526, 546 (7th Cir. 2009) (stating that a district
court may use a reasonable estimate of drug quantities
at sentencing); United States v. Phillips, 37 F.3d 1210, 1213
(7th Cir. 1994) (concluding that the district court’s finding
that the conspiracy distributed “certainly more than
five kilograms” was “a sufficiently specific finding”).
No. 12-1502 21
As noted, Harmon maintains that the district court
erred in finding that the conspiracy began in 1999
because there was no admissible evidence at trial or
sentencing to support such a finding. He also challenges
whether the purchase of the Florida home was sufficient
to establish the start of the conspiracy. The government
responds that the district court properly relied on the
contents of the PSR, which stated that Harmon had said
he purchased his Florida home in 1999, as well as
Agent Steele’s testimony that marijuana courier Glen
Johnson reported during an interview in 2000 that he
believed Harmon purchased the home for $460,000. The
government also argues that trial evidence supported
the finding that Harmon was involved in the con-
spiracy before Raines joined in August 2002.
“Evidentiary standards at sentencing are not as
stringent as those at trial.” United States v. Pineda-
Buenaventura, 622 F.3d 761, 766 (7th Cir. 2010). A district
court can determine the amount of drugs attributable
to a defendant by a preponderance of the evidence. Id.The court “ ‘may consider relevant information without
regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has
sufficient indicia of reliability to support its probable
accuracy.’ ” United States v. Grigsby, 692 F.3d 778,
788 (7th Cir. 2012) (quoting U.S.S.G. § 6A1.3(a)). The
Confrontation Clause does not apply at sentencing.
United States v. Isom, 635 F.3d 904, 908 (7th Cir.), cert. denied,
132 S. Ct. 216 (2011).
More specifically, the court “may rely on a PSR con-
taining hearsay, so long as those statements are reliable.”
22 No. 12-1502
United States v. Davis, 682 F.3d 596, 618 (7th Cir. 2012);
see also Isom, 635 F.3d at 908 (“[C]ourts may rely on
presentence reports containing even double-hearsay, i.e.,
statements by coconspirators to investigators, so long
as those statements are reliable.”). “ ‘Indicia of reliabil-
ity’ may come from, inter alia, the provision of facts
and details, corroboration by or consistency with other
evidence, or the opportunity for cross-examination.”
United States v. Smith, 674 F.3d 722, 732 (7th Cir.) (internal
citations omitted), cert. denied, 133 S. Ct. 546 (2012).
Generally, it is the defendant’s burden to show that
the PSR is inaccurate or unreliable. See, e.g., Davis, 682
F.3d at 613. The defendant must do more than merely
deny the facts in the report; instead, he must provide
some evidence calling into question the accuracy or
reliability of the information in the PSR. See, e.g., id.
When a defendant has failed to carry this burden, a
district court may rely entirely on the PSR. United States
v. Artley, 489 F.3d 813, 821 (7th Cir. 2007).
The district court relied on the PSR and evidence pre-
sented at trial and sentencing to make its findings as to
the start of the conspiracy and the quantity of marijuana
attributable to Harmon. See Brown, No. 12-3413, 2013
WL 2150822, at *6 (“The statements the district judge
made after hearing the evidence and prior to imposing
sentence clearly indicated her acceptance of the version
of the facts in the PSR and provided this court with a
sufficient record to engage in effective appellate re-
view.”). Though the district court did not expressly
adopt the PSR’s findings, the court’s reliance on the PSR
No. 12-1502 23
is implicit in its statement that the date of the purchase
of the Florida home was “not subject to a credibility
finding.” The reason that date was not subject to a credi-
bility finding was because Harmon himself had
reported the date to the probation officer. Harmon did
not challenge the accuracy of the PSR’s account of what
he had said. Furthermore, the district court essentially
stated on the record at the sentencing that its findings
would incorporate the trial evidence. (“Defense counsel:
I am sure the Court will incorporate all the evidence
it heard at trial—The court: True.” Sent. Tr. 59.) The
court’s sentencing entry confirms the incorporation of
trial evidence and reveals the court’s reliance on the
sentencing testimony: “Agents Steele and Sills were
called by the Government to testify concerning alleged
relevant conduct, and were cross-examined. The Court
made its guideline determination based on the record
presented at today’s hearing and incorporated the
evidence it heard at trial.” Jan. 20, 2012, Entry at 1.
Harmon argues that the district court erred in finding
that the conspiracy started in 1999. His argument has
two parts. He first challenges the reliability of the double
hearsay on which the court relied—a reference to
Agent Steele’s sentencing testimony regarding Johnson’s
awareness of Harmon’s 1999 Florida home purchase.
The double hearsay, however, is consistent with and
corroborated by other evidence in the record. It is corrobo-
rated by Harmon’s own report to the probation officer
that he purchased the home in 1999. Also, Agent Steele
testified, based on his review of the report of Johnson’s
May 2000 interview, that Johnson was aware of
24 No. 12-1502
Harmon’s purchase of the Florida home. It follows that
Johnson could not have been aware of the home pur-
chase at the time of the interview unless the home
had been purchased earlier. The timing of Johnson’s
statements in the interview is consistent with a home
purchase in 1999.
The second part of Harmon’s argument is that the
Florida home purchase is insufficient to establish that
the charged conspiracy began in 1999. He complains
that the district court made no factual findings tying the
home purchase to the charged conspiracy and argues
that no trial evidence established that the conspiracy
began before 2002. Evidence presented at trial and sen-
tencing, however, established that the charged con-
spiracy began long before Raines joined it in August 2002.
Indeed, the record supports a finding that the charged
conspiracy was well under way by early 2000.
The PSR states that Harmon was convicted in 1991
of possession with intent to deliver more than ten
pounds of marijuana and sentenced to four years’ incar-
ceration and that his sentenced was modified in
August 1992 to time served. This information is sup-
ported by Short’s trial testimony. When Short was
asked if Harmon had told him how long Harmon had
been in the marijuana business, Short testified that
Harmon said he got busted in 1991, got a four-year sen-
tence, and had “been going full throttle since then, since
he got out.” The government subsequently asked
Short whether Harmon had told him when he “became
engaged in the marijuana business charged before the
No. 12-1502 25
Court?” Trial. Tr. vol. III, 536-37. Short responded af-
firmatively and the following exchange occurred:
Question: Did he [Harmon] say that was from
around the early ‘90s?
Answer: Yes, ma’am.
Question: Is that when he said he started going
full throttle and never looked back?
Answer: Yes, ma’am.
Id. at 537. In his reply brief, Harmon notes that Short was
responding to a leading question, and Short originally
testified that Harmon was busted for being in “the mari-
juana business,” without any reference to the charged
conspiracy. See id. at 525.
The government argues that the court’s statement at
sentencing that Harmon “had a long ride, 20 years of
pulling this off,” see Sent. Tr. 105, shows that the court
credited Short’s testimony that Harmon had been
involved in the marijuana business since the early
1990s. But being involved in the marijuana business
generally, and participating in the charged conspiracy
are not necessarily co-extensive. The court also com-
mented that this was “over a decade-long conspiracy.”
Id. at 103. The conspiracy did not have to commence
in 1999 to span more than a decade. The indictment
charges a conspiracy “up to and including May 13, 2011.”
And the PSR indicates that the conspiracy began “[p]rior
to December 2001.” Of course, 1999 was before
December 2001. But little evidence other than Short’s
26 No. 12-1502
trial testimony—in response to a leading question—ties
the charged conspiracy to the 1999 home purchase.
Yet, even if anchoring the start of the conspiracy
to the 1999 home purchase was error, such error
was harmless. As the government has argued, the con-
spiracy did not “suddenly start” in September 2002
around the time that Raines joined. The evidence at
trial supports the notion that it was a mature and
efficient operation by then, and when combined with
the information considered at sentencing, a conclusion
that the conspiracy operated for years prior to Septem-
ber 2002 is well supported. And the district court also
found that the conspiracy began “far earlier than” and
“probably in excess of years” before September 2002.
Harmon argues that being involved in the marijuana
business, without more, is not enough to establish that
the conspiracy stretched back before September 2002.
But there is more. Raines testified at trial that Harmon
introduced him to “Ralph” in December 2001 and Raines
later learned that “Ralph” was Harmon’s “main man,”
which Raines understood meant Harmon’s main
marijuana supplier. Furthermore, Agent Steele testified
at sentencing about Johnson’s statements regarding
Harmon’s marijuana trafficking in February 2000.
Indeed, at sentencing, Harmon’s counsel acknowledged
that the government offered evidence from Johnson
concerning the “activities by Mr. Harmon and marijuana
trafficking in February of 2000 and also some evidence
about a Mr. [Ted] Priest [another one of Harmon’s
couriers] in the year 2000.” Sent. Tr. 60-61. Johnson’s
No. 12-1502 27
statements established that he was transporting
marijuana for Harmon in February 2000. According to
Johnson, he flew out to Tucson, Arizona, and was met
by Ralph Martinez. After leaving Tucson in a motor
home, Johnson was stopped by law enforcement with
160 pounds of marijuana. Harmon bonded Johnson out
of jail and told Johnson that another courier had been
arrested approximately two weeks earlier. Johnson
also related that he had met Martinez in Tucson in 1999.
Such evidence supports a finding that the conspiracy of
conviction went back at least until February 2000.
According to Harmon, however, Johnson’s statements
were not corroborated or reliable. But the statements
were corroborated. At sentencing, Agent Steele testified
that the DEA learned that Ted Priest had been arrested in
Flagstaff, Arizona, with 189 pounds of marijuana on
February 9, 2000. The DEA also contacted the bail bonds-
man in Arizona and learned that the same person
posted bond for Priest and Johnson. According to Steele,
Priest was arrested again in April 2000 in Winslow,
Arizona, with close to 200 pounds of marijuana. Johnson’s
statements about the means of transportation and the
marijuana quantity transported for Harmon were con-
sistent with the trial testimony of Meadows, Griffin, and
Wilkinson regarding their involvement as couriers for
Harmon. This corroboration and consistency with the
trial testimony indicates Johnson’s statements were
reliable, see, e.g., Smith, 674 F.3d at 732; thus, the district
court could rely on them to support its findings, see, e.g.,
Isom, 635 F.3d at 908.
28 No. 12-1502
Harmon also argues that the district court’s assumption
that his Florida home purchase was “in excess” of what
“any legitimate business could have incurred from that
time” is not supported in the record. He claims that he
earned “substantial income” through his stump removal
business and gambling. He also asserts that the Florida
property was encumbered with mortgage liens, thus
indicating that he had financed the purchase. There is
evidence that Harmon’s reported income from his
stump removal business from 2006 to 2009 was approxi-
mately as follows: $119,000; $72,000; $85,000; and $90,000.
Special Agent Eric Sills testified at sentencing, however,
that during 2006 to 2009 Harmon reported making the
following mortgage interest payments: $52,189; $69,588;
$56,721; and $50,569. On top of that, Harmon made
monthly mortgage payments each year in the following
approximate amounts: $5,000; $5,100; $5,100; $6,000.
Thus, in 2006, Harmon’s reported income was merely
$6,811 more than these two expenses. And in 2007 through
2009, his monthly mortgage payments and mortgage
interest payments exceeded his reported income. It just
doesn’t add up.
Moreover, there is plenty of other evidence that
Harmon was living well beyond his legitimate means. The
record established that Harmon incurred credit card
charges for numerous trips to Tucson and Florida, a
number of trips to Hawaii, a few trips to Mexico, a trip
to Singapore, and a trip to Russia. From 2006 through
2010, Harmon made fourteen trips to Arizona and
charged approximately $28,504 for this travel. He paid
not only for his own expenses but often paid for those
No. 12-1502 29
of his companions, including Raines and their girlfriends.
And Raines testified that in August 2002, Harmon
loaned him $125,000 in cash. The record contains no
legitimate explanation as to how Harmon could have
obtained this cash to loan Raines.
In addition, Short testified that Harmon said he had a
$30,000 bedroom suite, a $30,000 chandelier, and “the
best of everything” in his Florida home. The PSR
reflects that after his arrest, Harmon directed friends
and family to remove the furniture and chandelier
“costing tens of thousands of dollars” from his Florida
residence. And when the PSR was prepared, Harmon’s
Florida home was listed for sale for $995,000. The record
supports the conclusion that substantial improvements
had been made to the property—Raines advised Agent
Sills of such improvements, including the addition of
two lion head fountains and a Jacuzzi tub. So, too, Agent
Sills testified at sentencing about several significant
improvements to the New Castle property with which
Harmon was connected, including an in-ground
swimming pool, a volleyball court, and a five-car garage.
This evidence further supports the conclusion that
Harmon was living well beyond his legitimate means.
In sum, the record supports the district court’s finding
of a “lengthy period of cash flow that was far in excess
of” Harmon’s legitimate business income. Harmon’s ex-
cess spending raises the reasonable inference that he
had other, illegal income. And in the context of the case,
the likely source is the marijuana conspiracy.
One last point. Harmon relies on United States v. Macedo,
406 F.3d 778, 788-89 (7th Cir. 2005), and argues that
30 No. 12-1502
the court’s finding based on evidence not before the
jury was impermissible fact-finding in violation of the
Sixth Amendment. His argument is woefully misplaced.
Macedo dealt with drug amounts as they affected the
statutory maximum sentence. Harmon makes no argu-
ment that the district court’s findings at issue in this
case affected the statutory maximum sentence.
Given the district court’s findings, backed up by objec-
tive evidence in the record, we are not left with the
definite and firm conviction that the court made a
mistake in finding Harmon responsible for more than
10,000 kilograms of marijuana. And any error in finding
that the conspiracy began with the 1999 Florida home
purchase was harmless. The conspiracy did not have
to start in 1999 for Harmon to be held responsible for
more than 10,000 kilograms. Although the finding as to
the start of the conspiracy affected Harmon’s criminal
history—his 1991 marijuana conviction counted for two
points and placed him in criminal history category II
rather than I, see U.S.S.G. §§ 4A1.1(b), 4A1.2(e)(2)—it did
not affect his guidelines range. Given Harmon’s total
offense level of 42, his guidelines range was the same—360
months to life—whether he was in criminal history cate-
gory I or II. Because the district court expressly stated
that “the minimum sentence under the guidelines . . . is
appropriate,” we can be assured that any error from
the finding as to the start of the conspiracy was harmless.
See, e.g., United States v. Favara, 615 F.3d 824, 828 (7th
Cir. 2010) (“We have no reason to believe that an error
that did not affect the Guideline range affected the
district court’s sentencing decision as the district court
No. 12-1502 31
stated its intention to impose a sentence within the ap-
plicable Guideline range. Any error was harmless.”).
III. C ONCLUSION
Accordingly, we A FFIRM Harmon’s convictions and
sentence.
7-11-13