United States v. Deon Harris ( 2003 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-1813
    ___________
    United States of America,               *
    *
    Appellee,                  * Appeal from the United States
    * District Court for the Northern
    v.                                * District of Iowa.
    *
    Deon Harris,                            *
    *
    Appellant.                 *
    ___________
    Submitted: October 22, 2003
    Filed: December 12, 2003
    ___________
    Before RILEY, BEAM, and SMITH, Circuit Judges.
    ___________
    BEAM, Circuit Judge.
    A jury convicted Deon Harris of possessing controlled substances with intent
    to distribute. On appeal, Harris argues that the district court1 erred by denying his
    motions for acquittal and new trial, miscalculating drug quantities, and enhancing his
    sentence for obstruction of justice. We affirm.
    1
    The Honorable Linda R. Reade, United States District Judge for the Northern
    District of Iowa.
    I.    BACKGROUND
    Police officers executed a search warrant on the apartment Harris shared with
    his girlfriend, Jesse Paschal. When the officers arrived, Harris and Paschal were in
    the apartment. While searching Harris, the officers found two bags of heroin and
    over four thousand dollars. The officers also seized heroin from clothes they found
    on the floor.
    The officers also found other drugs and paraphernalia in the apartment. In the
    kitchen, they found a small drug scale, small tin-foil squares, and Dorman sleeping
    pills.2 While searching Paschal, they found several individually wrapped, yellow zip-
    lock baggies containing crack and one identical baggie containing heroin. The
    officers found similar baggies elsewhere in the apartment.
    A grand jury indicted Harris on three counts for possession with intent to
    distribute. The first two counts involved the heroin found on Harris and in the pants.
    The third count involved the crack seized from Paschal's person.
    At trial, Detective Fischer testified about a statement Harris made to him
    during an interview at the apartment.3 According to Fischer, Harris told him that the
    substance the officers found on Harris was cocaine,4 that Harris traveled to Chicago
    more than one hundred times to buy crack and cocaine, that he used most of the
    heroin he obtained, that he sold crack and heroin in the area, and that he cooked
    powder cocaine into crack before selling it.
    2
    Trial testimony revealed that Dorman is a common cutting agent for heroin.
    3
    Harris waived his Miranda rights before Fischer interviewed him.
    4
    As noted above, the substance the officers found on Harris was heroin. The
    district court found that this mistake created a reasonable inference that Harris knew
    cocaine was present in the apartment.
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    The jury also listened to Fischer's and another witness's testimony. Harris
    admitted that, prior to his arrest, he had been involved with selling drugs, and had
    been convicted of other drug crimes, including one conviction for possession with
    intent to distribute. Also, one witness testified that she had previously purchased
    drugs from Paschal, and that during that transaction, Harris had given the drugs to
    Paschal.
    The jury convicted Harris on all counts. The district court denied Harris's
    motions for acquittal and new trial. To calculate drug quantity, the court considered
    both the seized items and Fischer's testimony about the trips Harris said he made to
    Chicago. The district court also found that Harris perjured himself, and accordingly
    enhanced his sentence two levels for obstruction of justice.
    II.   DISCUSSION
    Harris's first two issues challenge the government's evidence. First, he argues
    the trial court should have granted his motion for acquittal on all counts. Second, he
    argues the court should have at least granted his motion for new trial on count three.
    A court must deny a motion for judgment of acquittal if, after reviewing the
    evidence in the light most favorable to the government, substantial evidence justifies
    an inference of guilt, even if contrary evidence exists. United States v. Henson, 
    939 F.2d 584
    , 585 (8th Cir. 1991). The district court's ruling is a question of law, which
    we review de novo. See United States v. Earles, 
    113 F.3d 796
    , 802 (8th Cir. 1997).
    Substantial evidence supported the conviction on all counts. The search
    uncovered–and the government offered at trial–the following evidence: a drug scale,
    large amounts of money, individualized packages of crack and heroin, drug quantities
    indicative of distribution, additional packaging material, and a common heroin-
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    cutting agent. Further, although inadmissible for propensity purposes, defendant's
    prior drug-sale involvement and convictions were probative of his intent to distribute.
    See Fed. R. Evid. 404(b). Finally, two pieces of evidence linked Harris to the drugs
    Paschal held: first, Harris confused the substances on his person with those found on
    hers; and second, a witness testified about a previous drug sale, in which the witness
    saw Harris give drugs to Paschal before the witness bought drugs from Paschal.
    Because of that evidence and Fischer's testimony, the district court correctly denied
    the motion for acquittal.
    For many of the same reasons, and for the additional reasons the district court
    stated, we also affirm the district court's denial of defendant's motion for new trial.
    See 8th Cir. R. 47B.
    Harris's next issue involves the district court's drug-quantity calculation.
    Fischer testified that Harris told him that he had made one-hundred trips to Chicago,
    fifty times buying one-half ounce of crack, and fifty times buying one-half ounce of
    cocaine. The court multiplied fifty trips times one-half ounce, equaling twenty-five
    grams of crack and twenty-five grams of cocaine.
    Harris challenges the calculation in two ways. First, he argues that the district
    court did not consider the possibility that Fischer's testimony was incorrect. And
    second, he argues that the court determined Fischer's testimony was credible before
    hearing all of Harris's sentencing evidence. We reject both arguments.
    We reject the first argument because credibility issues are virtually unassailable
    on appeal, United States v. Luna, 
    265 F.3d 649
    , 652 (8th Cir. 2001), and during the
    sentencing hearing, the district court expressly found that Fischer accurately
    recounted Harris's statement: "The Court does accept the testimony of Detective Mark
    Fischer . . . and finds . . . his testimony credible as to what information was related
    -4-
    by Deon Harris to him about the frequency and the quantities of drugs brought from
    Chicago." Sentencing Transcript at 19-20 (emphasis added).
    And we reject his second argument because the district judge evaluated
    Fischer's credibility after hearing all of the evidence. Harris complains of the
    following events. After hearing Fischer's testimony, but before Harris offered any
    sentencing evidence, the district judge stated that she accepted Fischer's testimony.
    But then the judge said "if you have anything else you want me to consider, I'm happy
    to consider that." Sentencing Transcript at 7. Harris's counsel responded "I intended
    to call Ms. Paschal as a witness." The record does not reflect whether the trial judge
    was notified that Harris planned to present evidence. But the record does show that,
    when Harris announced he had a witness, the judge allowed the witness, listened to
    the witness, and then disagreed with the witness. That sequence shows no error.
    Finally, Harris argues that the district court erred when it enhanced his sentence
    for obstruction of justice. Specifically, he argues there were insufficient facts "to
    allow the district court to make a clear finding of perjury, and the court did not make
    those findings on the record." Appellant's Brief at 14.
    If a defendant willfully obstructs or impedes the administration of justice
    during a prosecution, the district court can enhance his sentence by two levels. U.S.
    Sentencing Guidelines Manual § 3C1.1. Perjury at trial constitutes obstruction of
    justice. United States v. Molina, 
    172 F.3d 1048
    , 1058 (8th Cir. 1999); USSG §
    3C1.1, comment. (n.4(b)). Whether the defendant committed perjury is a factual
    finding, which we review for clear error. 
    Molina, 172 F.3d at 1058
    .
    A defendant has a right to testify, but not to commit perjury. To ensure that the
    fear of enhancement does not impermissibly burden the right to testify, a district court
    must make a specific finding that the defendant committed perjury. See United States
    v. Dunnigan, 
    507 U.S. 87
    , 96-97 (1993). Stated differently, sentencing policy
    -5-
    supports rewarding cooperation and deterring obstruction, but it would tread too far
    onto the right to testify if courts enhanced the sentences of all testifying-but-guilty
    defendants. So the district court must make a specific perjury finding, and when
    making that finding, must view the defendant's testimony in the light most favorable
    to the defendant. See United States v. Cabbell, 
    35 F.3d 1255
    , 1261 (8th Cir. 1994).
    Given those standards, our review has two steps: first, did the district court
    specifically find the defendant committed perjury; and second, does the record
    support that finding?
    The district court's finding was adequate. During sentencing, the court stated
    "The Court makes the specific finding that Deon Harris committed perjury by
    knowingly and intentionally testifying falsely as to material matters during the trial
    of this case." Sentencing Transcript at 22-23. The court then detailed the testimony
    it concluded was false.
    Further, the record supports the perjury finding. A witness commits perjury if
    she intentionally testifies falsely about a material matter. United States v. Kessler,
    
    321 F.3d 699
    , 703 (8th Cir. 2003). A jury's guilty verdict, alone, will not support a
    perjury finding against a testifying defendant. 
    Id. But the
    record will support a
    perjury finding when the defendant's testimony conflicts with other
    evidence–including other witness testimony–and when the district court finds that the
    defendant lied during his testimony. See 
    id. Here, Harris
    testified and contradicted much of Fischer's testimony. Harris
    denied saying that the substance in his pocket was cocaine, denied ever selling drugs
    in the area, denied having any money seized from his person, denied knowing that
    Paschal had any drugs on her person, and denied both making the one-hundred trips
    to Chicago and telling Fischer that he made those trips. Harris's testimony conflicted
    with Fischer's. This conflict presented a credibility issue for the trial court. The court
    could have concluded that one witness was mistaken or had a faulty memory. But the
    -6-
    record also supported its conclusion that one of the witnesses–Harris–was lying.
    From this record, there is no clear error.
    We encourage district courts to continue trying to achieve the proper balance
    between sentencing policy and the right to testify. While policy supports enhancing
    sentences for obstructing justice, we caution against upsetting the balance by
    routinely finding obstruction when a defendant loses a swearing battle with one
    government witness.
    III.   CONCLUSION
    We affirm.
    ______________________________
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