United States v. Maurice Harrison , 431 F.3d 1007 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1953
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAURICE HARRISON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 1101—Suzanne B. Conlon, Judge.
____________
ARGUED FEBRUARY 23, 2005—DECIDED DECEMBER 12, 2005
____________
Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. Maurice Harrison was con-
victed by a jury of one count of distributing 50 or more
grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
The district judge sentenced Harrison to 151 months’
imprisonment. Harrison contends that the district court
abused its discretion by sustaining various government
objections to the defendant’s testimony at trial. We disagree
and find that the district court properly sustained the
government’s objections, the majority of which were based
on relevance and leading grounds. We reject Harrison’s
argument that the district court erroneously found that he
made materially false statements at trial and obstructed
2 No. 04-1953
justice, because the evidence supports the district court’s
conclusion that he had dealt drugs before. The evidence also
supports the district court’s finding that Harrison lied when
he testified at trial that the government’s informant had
solicited him for drugs prior to the first charged drug sale.
For these same reasons, we also reject Harrison’s argument
that he should have received a two-level downward adjust-
ment for acceptance of responsibility and safety valve relief.
Although we affirm the conviction, we order a limited
remand for further proceedings on Harrison’s sentence
under the procedure established in United States v.
Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005).
I. BACKGROUND
On November 19, 2003, a grand jury in the Northern
District of Illinois returned an indictment against Maurice
Harrison. Count One of the indictment alleged that on July
17, 2002, Harrison distributed 50 or more grams of crack
cocaine in violation of 21 U.S.C. § 841(a)(1). Count Two
alleged that on August 15, 2002, Harrison again distributed
50 or more grams of crack cocaine in violation of the same
statute.
The case was tried before a jury. At trial, Harrison and
the government stipulated to the following facts. First, the
parties agreed that on July 17th and August 15th, 2002, in
the area of 5424 Cornell in Chicago, Harrison distributed
63.4 and 62.3 grams of crack cocaine, respectively, to the
government’s informant, Christopher Lyons. The parties
agreed that Harrison received $1,500 on each occasion. The
parties also stipulated that Harrison knew that the sub-
stance he distributed to Lyons was crack cocaine. The
parties also agreed that Harrison used a cellular telephone
to complete these sales, and phone records were admitted
into evidence showing that the telephone number was
registered in the name of another individual.
No. 04-1953 3
In the government’s case in chief, it called three agents
from the Drug Enforcement Agency (DEA).1 The agents
testified that Lyons identified Harrison to them as a drug
dealer. As a result, the DEA attempted to set up controlled
drug buys using Lyons as the buyer. The agents testified
that on July 17th and August 15th, the DEA conducted
controlled purchases of crack cocaine through Lyons.
According to the agents’ testimony, the first transaction was
set up by a phone call from Lyons to Harrison. The district
court admitted into evidence telephone records showing
calls made from Lyons to Harrison. The district court also
admitted into evidence certain recorded conversations
between Harrison and Lyons to set up the drug transac-
tions. These conversations were played at trial, and the
transcripts of these conversations were also admitted into
evidence. The DEA agents followed Harrison after the July
17th transaction to a Bank One branch, where they ob-
served him depositing money. The DEA agents also testified
that the only time they set up a plan to buy drugs from
Harrison was on July 17th. The phone records admitted
into evidence show that the next phone call between Lyons
and Harrison after the July 17th transaction did not occur
until July 25th, when Harrison called Lyons to set up
another purchase.
Harrison presented an entrapment defense and was
the sole witness to testify on his behalf. Harrison tes-
tified that he made his living as a painter and had never
sold drugs before. Harrison testified that he had known
Lyons since childhood, and that they grew up in the
same neighborhood. According to Harrison’s testimony,
prior to the July 17th transaction, he had several conversa-
tions with Lyons. In the first two conversations, Lyons
asked Harrison for drugs which Lyons said he needed to pay
off a debt, and Harrison said “no.” Harrison testified that he
1
The government’s informant, Christopher Lyons, did not testify.
4 No. 04-1953
had a third and fourth conversation with Lyons, where
Lyons again asked for drugs. Again, according to Harrison,
Lyons stated that he needed these drugs to pay off a street
gang, and once again, according to Harrison, he told Lyons
“no.” Harrison testified that in a fifth conversation Harrison
said that he knew Collins Goodson, a supposed drug dealer
in the neighborhood. Harrison told Lyons that Goodson,
known as “Sonny”, would not sell drugs directly to Lyons
but would sell the drugs to Harrison. With that understand-
ing, according to Harrison, he and Lyons arranged the first
sale on July 17th. According to Harrison, he did not get any
money from the two deals but rather gave the proceeds from
the transactions to Sonny. Harrison also testified that the
$700 he deposited in his Bank One account after the July
17th transaction was cash he received from a painting job
and not from the drug sale. He also recounted that after the
first deal, he spoke with Lyons, who said that the street
gang that he was indebted to liked the drugs he gave them
and wanted more. Harrison testified that he initially
refused to give Lyons more drugs, but decided to do so out
of fear for Lyons’s safety.
In rebuttal, the government called David Irving. Irving
testified that he knew Harrison and had purchased crack
cocaine from him five times, in 63 gram quantities, prior to
2003. Irving said that he stopped talking to Harrison after
they had arranged to buy half a kilogram of cocaine to-
gether and Harrison took the money and never provided the
drugs.
At the conclusion of the trial, the jury acquitted Harrison
of Count One, but convicted him of Count Two. At sentenc-
ing, the district judge imposed a two-level upward ad-
justment for obstruction of justice. In doing so, it deter-
mined that Harrison willfully provided materially false
testimony when he denied having sold drugs prior to the
two controlled purchases. The district court found Harri-
son’s testimony to be false based on the slang that Harrison
No. 04-1953 5
used, and was familiar with, in conducting the drug sales.2
The district court also found that the speed with which
Harrison was able to secure a large amount of crack cocaine
was indicative of prior dealings. Finally, the district court
also found that Harrison willfully provided false testimony
when he testified that he had been solicited repeatedly by
Lyons before engaging in the first charged drug sale. Based
on the district court’s finding that Harrison had obstructed
justice, it refused to grant Harrison a two-level downward
adjustment for acceptance of responsibility, and denied
Harrison’s request for safety valve relief under 18 U.S.C. §
3553(f). The district court then sentenced Harrison to 151
months of imprisonment. Harrison appeals his conviction
and sentence.
II. ANALYSIS
A. The Government’s Objections During Harrison’s
Direct Testimony
We find that the district court did not abuse its discretion
in sustaining the government’s objections during Harrison’s
testimony. In reviewing a district court’s evidentiary
rulings, our review is for an abuse of discretion. United
States v. Hernandez-Rivas, 348 F.3d 595, 599-600 (7th Cir.
2003). We will reverse an error only if it had “a substantial
influence over the jury.” Id. (quoting United States v. Smith,
230 F.3d 300, 307 (7th Cir. 2000).
2
Specifically, the district court found the testimony to be:
willful and materially false based on the quick turn-around
time for setting up the deal [and] the actual language used in
negotiating the sale. The statements by Mr. Harrison during
the conversation certainly weren’t those of a neophyte in the
drug business. It was sophisticated. He knew exactly what he
wanted and how it was to be done.
6 No. 04-1953
Harrison’s main argument is that the government so
disrupted the flow of his direct testimony, through its
objections, as to hinder the presentation of his entrapment
defense before the jury. We find that Harrison’s argument is
without merit. Harrison does not cite any authority for his
claim that the sheer number of objections can so disrupt the
flow of a direct examination of a defendant that it rises to
the level of deprivation of the right to present a defense.
Indeed, no such rule exists. Harrison’s direct examination
consisted of approximately 41 typewritten pages, during
which his counsel asked him roughly 350 questions. The
government objected to approximately 18 of those questions.
Most of the government’s objections were based on rele-
vance and leading grounds, and the district court sustained
the majority of these objections. What Harrison is asking of
us, in essence, is to create some type of quota system by
which the government (or any other party) is limited to a
certain number of objections during the direct examination
of a witness. There is no foundation for such a rule in the
Federal Rules of Evidence or any case law.
B. The District Court’s Finding that Harrison Ob-
structed Justice at Trial
We also find that the district court did not clearly err
in its finding that Harrison obstructed justice at trial. A
district court’s determination that a defendant obstructed
justice is a finding of fact which we review for clear error.
United States v. Hanhardt, 361 F.3d 382, 387 (7th Cir.
2004). The district court may apply an enhancement for
obstruction of justice if the defendant testifies at trial and
commits perjury. U.S.S.G. § 3C1.1, cmt. n. 2 & 4 (2004);
United States v. Griffin, 310 F.3d 1017, 1023 (7th Cir.
2002). Moreover, “separate findings of fact regarding
each element of perjury are not strictly necessary to uphold
an obstruction of justice enhancement” but “[a]s long as the
No. 04-1953 7
trial court determined that the defendant lied to the judge
and jury about matters crucial to the question of defen-
dant’s guilt, that is sufficient.” United States v. Holman,
314 F.3d 837, 846 (7th Cir. 2002).
In this case, the district court made a finding that
Harrison obstructed justice based on two assertions he
made in his testimony: that he had never dealt drugs
before; and that he had been solicited repeatedly by Lyons
before engaging in the first charged drug sale. At sentenc-
ing, the district court found that “The statements by Mr.
Harrison during the [conversations between Harrison
and Lyons] certainly weren’t those of a neophyte in the drug
business. It was sophisticated. He knew exactly what he
wanted and how it was to be done.” The district court
described Harrison as “sophisticated” and unlike a neo-
phyte, which we infer as meaning that based on Harrison’s
knowledge of drug lingo, he had dealt them in the past.3 We
3
In a conversation between Harrison and Lyons on July 17, 2002
at 3:12 pm, the parties said the following:
Harrison: What’s happening?
Lyons: Man huh. I don’t want to talk on the phone like this
but I’m trying to go to 63rd. What what them people gonna
charge me for that car?
Harrison: Um. Which way?
Lyons: 63rd. Good, the real one. Hard.
Harrison: I think the umm the (inaudible) the Cadillac is just
gonna be $15.00.
In another conversation between Harrison and Lyons on July
17th, the parties said:
Harrison: What the fuck (inaudible) yeah I, I done called you
four or five times, it was what
(continued...)
8 No. 04-1953
disagree with the district court’s logic here. Sadly, across
many drug plagued neighborhoods in Chicago
and nationwide, many law-abiding people know drug
slang because drugs are so pervasive in their communities.
Even in communities where drug dealing is not rampant,
many law-abiding citizens are familiar with drug slang
through music and other forms of media. As Harrison notes,
the use of drug slang has become so pervasive that the
White House has a web page defining various lingo for the
benefit of parents and teachers to monitor their youngsters.4
On this web page is the meaning of “Cadillac” and “butter.”
Although we disagree with the district court’s logic that
because Harrison was fluent in drug slang, he must have
dealt drugs in the past, we do not find clearly erroneous the
district court’s conclusion that Harrison obstructed justice.
In particular, it was not clear error for the district court to
find that Harrison lied about dealing drugs before because
he was able to receive such a large quantity of crack cocaine
on “credit” from a drug dealer. While it may be very easy for
anyone to buy user quantities of drugs in neighborhoods
where they are sold, it is another matter to approach a drug
dealer and ask to be fronted two ounces of crack, worth
$1,500, as Harrison did. According to Harrison, he did not
pay his supplier for drugs until after he had delivered them
3
(...continued)
Lyons: What’s this dog? Is it butter man?
Harrison: This bitch just got out of the warmer.
The parties do not disagree that “trying to go 63rd” is drug
slang for a transaction involving 63 grams, “Cadillac” or “car”
refers to cocaine, and “hard” and “butter” mean crack cocaine.
4
The White House, Office of National Drug Control Policy,”Street
Terms: Drugs and the Drug Trade”,
www.whitehousedrugpolicy.gov/streetterms (last visited Aug. 15,
2005).
No. 04-1953 9
to Lyons and was paid by Lyons. Based on all of the evi-
dence presented by the government at trial, including the
rebuttal evidence of David Irving, who claimed that Harri-
son had sold him crack before, it was not clear error for the
district court to conclude that Harrison had previously sold
drugs. Based on the same facts, we also do not find it clear
error for the district court to have made a finding, based on
Harrison’s credibility, that he perjured himself on the stand
by testifying that he had been solicited repeatedly by Lyons
prior to the first drug sale. With the exception of Harrison’s
knowledge of drug slang, we consider all of this evidence
sufficient to describe a “failure to give truthful testimony on
material matters that were designed to substantially affect
the outcome of the case.” United States v. Dunnigan, 507
U.S. 87, 95 (1993).
C. The District Court’s Finding that Harrison Did
Not Qualify for Acceptance of Responsibility
We also find that the district court did not clearly err
by finding that Harrison did not qualify for a downward
adjustment for acceptance of responsibility, pursuant to
U.S.S.G. 3E1.1 (2004). U.S.S.G. 3E1.1 provides for a
reduction in offense level if “the defendant clearly demon-
strates acceptance of responsibility for his offense.” Id. We
review the district court’s finding of whether a defendant
has accepted responsibility for his criminal activity for clear
error. United States v. Taliaferro, 211 F.3d 412, 414 (7th
Cir. 2000).
We have held that section 3E1.1 of the sentencing
guidelines (which is now advisory after Booker) is designed
to reward a defendant who demonstrates contrition through
an honest and full account of his offense conduct. United
States v. Larkin, 171 F.3d 556, 559 n.4 (7th Cir. 1999).
Furthermore, the sentencing court can require that the
10 No. 04-1953
defendant provide a candid and full explanation of
the circumstances surrounding the offense of conviction.
United States v. Hammick, 36 F.3d 594, 600-01 (7th Cir.
1994). We have determined that the district court did
not clearly err by its finding that Harrison lied to the
jury about two issues crucial to the question of his guilt:
first, that he had never dealt drugs before; second, that
he had been solicited repeatedly by Lyons before engag-
ing in the first charged drug sale. As such, it was not
clear error for the district court to determine that Har-
rison did not give a full and honest account of both his
conduct in the offense and the circumstances surround-
ing the offense. Therefore, we find that the district court did
not commit clear error when it found that Harrison did not
qualify for an acceptance of responsibility adjustment.
D. The District Court’s Refusal to Apply the Safety
Valve Adjustment
We also find that the district court did not clearly err
by its refusal to apply the safety valve adjustment in this
case. The safety valve provision of the Guidelines ad-
vises a district court to depart below the statutory man-
datory minimum sentence for certain drug offenses where
the defendant is a first time offender who was not the
organizer or leader of criminal activity and has made a good
faith effort to cooperate with the government. U.S.S.G. §
5C1.2; 18 U.S.C. § 3553(f)(1)-(5). Our review of the district
court’s findings about the factual predicates for the safety
valve is for clear error only. See United States v. Williams,
202 F.3d 959, 964 (7th Cir. 2000). From that standpoint, we
see nothing to criticize the district court’s decision to refuse
Harrison the safety valve adjustment, and no clear error in
the district court’s finding that Harrison lied to the jury
through his testimony. Harrison failed to “truthfully
provide [ ] to the Government all information and evidence
No. 04-1953 11
defendant has concerning the offense.” U.S.S.G. § 5C1.2
(2004).
E. Booker and the District Judge’s Sentencing
Determinations
Harrison also argues that the district court erred in
sentencing him in violation of the Sixth Amendment when
the district court, and not a jury, made its finding that
Harrison had obstructed justice. The Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005),
does not preclude a sentencing judge from making factual
findings that have the effect of increasing the Guidelines
sentencing range, but it does render the Guidelines advisory
in order to avoid the constitutional problem that mandatory
application of the Guidelines otherwise would present. See
id. at 750.
Because Harrison did not raise his Sixth Amendment
objection in the district court, we review for plain error.
Enhancement of Harrison’s sentence based on facts not
admitted by the defendant or proven to a jury beyond
reasonable doubt does, under the new Booker regime,
constitute error that is plain. See United States v. Paladino,
401 F.3d 471, 481 (7th Cir. 2005).
The question that we must ask now is whether Harrison’s
substantial rights were affected by the error. See Fed. R.
Crim P. 52(b); United States v. Lee, 399 F.3d 864, 866 (7th
Cir. 2005). We cannot answer that question without
knowing whether the district court would have been
inclined to sentence Harrison more leniently had it known
that the Guidelines were advisory rather than mandatory.
Paladino, 401 F.3d at 482. The district court sentenced
Harrison to the low end of the then-mandatory Guideline
range, so the possibility that the district judge may consider
another sentence for Harrison is entirely logical. Therefore,
we will retain jurisdiction of the appeal and “order a limited
12 No. 04-1953
remand to permit the sentencing judge to determine
whether he would (if required to resentence) reimpose his
original sentence.” Id. at 484. On remand, the district court
should proceed with the procedure we set forth in Paladino.
If the district court determines that it would have imposed
the same sentence, we may know for certain that Harrison
was not prejudiced. Without a showing of prejudice, Harri-
son’s plain error challenge will fail. We will still, however,
review the sentence for reasonableness. Id. If the district
judge determines that with more discretion, the sentence
would have been lower, we will vacate and remand the case
for resentencing having predetermined that such an
illegal sentence that has prejudiced the defendant consti-
tutes a miscarriage of justice. Id.III. CONCLUSION
For the reasons stated above, we AFFIRM Harrison’s
conviction. While retaining jurisdiction, we order a
limited REMAND of Harrison’s sentence in accordance
with Booker, Paladino, and this opinion. The district court
is directed to return this case to us when the limited
remand has been completed.
No. 04-1953 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-12-05