United States v. Harrison

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-4684
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UNITED STATES OF AMERICA
v.
DANNY HARRISON,
a/k/a Danny White,
Appellant
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On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Criminal Action No. 04-cr-00768-1)
District Judge: Honorable John R. Padova
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Submitted Under Third Circuit LAR 34.1(a)
June 18, 2012
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Before: AMBRO, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: June 29, 2012)
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OPINION
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AMBRO, Circuit Judge
On June 29, 2007, following a nine-day jury trial, Appellant Danny Harrison, a/k/a
“Danny White,” was found guilty of: two counts of distribution of five or more grams of
cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1) (Counts I and II); one count
of possession of 50 grams or more of crack with intent to distribute in violation of 21
U.S.C. § 841(a)(1) (Count III); one count of possession of 50 grams or more of crack
within 1,000 feet of a school, with intent to distribute, in violation of 21 U.S.C. § 860(Count IV); one count of possession of cocaine with intent to distribute in violation of 21
U.S.C. § 841(a)(1) (Count V); one count of possession of cocaine within 1,000 feet of a
school, with intent to distribute, in violation of 21 U.S.C. § 860 (Count VI); one count of
possession of marijuana in violation of 21 U.S.C. § 844(a) (Count VII); and one count of
witness tampering in violation of 18 U.S.C. § 1512(b)(1) (Count VIII). Harrison was
sentenced to 156 months’ imprisonment. He now appeals both his conviction and his
sentence. We affirm.
I.
Because we write solely for the parties, we recite only briefly the facts. In April
2004, a confidential informant named Jermaine Rippy informed Philadelphia police that
Harrison was a significant drug dealer. Under the supervision of the police, Rippy
conducted two separate controlled buys of crack cocaine from Harrison. After the second
purchase, Rippy told police he was concerned for his safety; officers then obtained an
arrest warrant for Harrison based on the two illegal drug sales.
Harrison was arrested at his home in August 2004. While in Harrison’s house, the
arresting officers observed evidence of drug trafficking activities in plain view and
obtained a search warrant for the residence. The subsequent search uncovered over
170 grams of cocaine, 88 grams of crack, 12 grams of marijuana, a digital scale, packets
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typically used to package drugs, nearly $100,000 in cash, and numerous pieces of
identification and other documents related to Harrison.
Following his indictment, Harrison apparently learned, or at least suspected, that
Rippy had been the confidential informant. In December 2005, Harrison and two
associates, Reggie Hammond and Andre Abney (at least one of whom was armed), went
to Rippy’s house, accused Rippy of being the informant, and threatened to kill him and
his family. Harrison ordered Rippy into a car, wherein Harrison’s tone changed;
Harrison proposed that Rippy could save himself, and make some money, if he would say
that the drugs in Harrison’s house belonged to him. Held essentially at gunpoint by the
three men, Rippy agreed.
Harrison and Rippy then met with Harrison’s attorney to discuss Rippy’s proposed
testimony. Rippy signed a written statement in which he falsely accepted responsibility
for the drugs and money found in Harrison’s house, and stated that Harrison did not know
that the drugs were in the house. Harrison’s attorney then provided the statement to the
United States Attorney’s Office.
Federal authorities subsequently realized that Rippy had been the confidential
informant for the Philadelphia police, learned from Rippy of Harrison’s threats, relocated
Rippy’s family for their protection, and added witness tampering to Harrison’s charges.
In connection with the witness tampering charge, the Government moved to disqualify
Harrison’s attorney, Dennis Cogan. After contesting the motion for a time, Cogan
ultimately withdrew from the case and Stephen Patrizio was brought in as new counsel
for Harrison.
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At trial, the Government presented the testimony of Rippy and the various law
enforcement officers, as well as an expert on narcotics trafficking. Harrison’s principal
defense was that Rippy’s written statement was truthful. Harrison testified in his own
defense that he let Rippy stay at his house and that the drugs, cash, and other items found
during the police search belonged to Rippy. Harrison claimed that he did not see the
drugs and drug paraphernalia that were in plain view in his home, and did not know that a
digital scale was used to weigh drugs. He also testified that he was not familiar with all
of the items in his own house. Harrison also called his mother and sister as witnesses,
who each identified photographs of Harrison’s house that they had taken a few days after
the police search showing bunk beds in a back bedroom and various items of clothing.
The photos were offered ostensibly to support Harrison’s claim that Rippy lived with
him. In contrast, police officers testified that there were no beds in the house other than
in Harrison’s bedroom, nor was there any clothing in the back bedroom.
Hammond, Harrison’s brother-in-law, testified that he and Harrison never
threatened Rippy. On both direct and cross-examination, Hammond admitted that he had
been convicted of murder. All of these defense witnesses admitted attending a meeting
with Patrizio at his office prior to trial to discuss the testimony that would be covered at
trial. Cogan was present at this meeting.
During his closing argument, defense counsel vigorously attacked the integrity of
the prosecution and the law enforcement personnel who testified at trial. For example,
defense counsel stated, among other things, that:
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• “the Government has lost its moral compass with respect to this
prosecution”;
• “there was not just a failure to investigate, but there were police failures
and inappropriateness at every step of this investigation;” and
• the case against Harrison was a “trash case,” and the prosecutor had been
“misleading” and engaged in “misdirection.”
In its rebuttal argument, the Government responded to defense counsel’s
comments about his integrity and the integrity of the testifying law enforcement
personnel. The prosecutor stressed that there was no support for the defense’s theory that
the officers were lying or had distorted the evidence, explaining that the minor
inconsistencies in the police testimony and paperwork had “the ring of truth.” The
prosecutor then compared this to the testimony of the defense’s witnesses: “That is in
stark contrast to what you know happened on the [d]efense side. By their own admission,
all the [d]efense witnesses had a meeting at Mr. Patrizio’s office.” After the Court
overruled a defense objection to this statement, the prosecutor continued:
What do you think happened at that meeting? And what’s
their story that they have to get straight? Their story that they
have to get straight is this never happened. . . . And
remember, ladies and gentlemen, where we start. This
defendant is charged with witness tampering. He’s charged
with trying to impact the integrity of this trial. It started with
that [Rippy’s] statement and it continued through this trial.
You think for one moment he’s going to hesitate to get up and
lie? Now Mr. Patrizio didn’t say it, but I’ll say it, he lied, he
lied. . . . He lied when he got up there and he said he doesn’t
approve of drugs. He lied when he said it was children and
blah, blah. This man sold crack at his niece’s birthday party
for God sakes. If you think for a moment that he wasn’t up
there coached exactly how to put things, and what to say, of
course he was ladies and gentlemen.
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Defense counsel again objected; this objection was overruled by the Court.
Harrison was convicted of all charged offenses. His offenses involved a total of
171.83 grams of cocaine, 113.45 grams of crack, and 12.3 grams of marijuana, which
triggered a base offense level of 32. He was subject to a one-level adjustment because
some of his activity occurred in a school zone, and a two-level adjustment for obstruction
of justice, for a total offense level of 35. Harrison was in criminal category I, and his
Guidelines range was 168 to 210 months. Harrison also was subject to a 10-year
mandatory minimum sentence for possession of more than 50 grams of crack with intent
to distribute (Count IV). Harrison did not object to the Guidelines calculation or the
description of the offense conduct in the presentence report. On December 21, 2007, the
Court, as noted, sentenced Harrison to 156 months’ imprisonment.
II.
Harrison raises two issues on appeal. He first argues that the prosecutor engaged
in misconduct by contending in his closing argument that Harrison had “lied” during his
testimony and defense counsel had coached Harrison’s testimony. Harrison also asserts
that the 156-month sentence imposed by the District Court was procedurally and
substantively unreasonable in light of the disparity in penalties for crack and cocaine
offenses.
III.
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The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291.
Harrison did not contemporaneously object to the prosecutor’s statements that he
had lied during his testimony. We thus review this for plain error. United States v.
Brennan, 326 F.3d 176, 182 (3d Cir. 2003). Harrison did contemporaneously object to
the prosecutor’s comment that defense counsel had coached his testimony, an objection
which was overruled. We review the District Court’s ruling for abuse of discretion.
United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001). If a prosecutor committed
misconduct, that conduct is reviewed under the harmless error standard. United States v.
Helbling, 209 F.3d 226, 241 (3d Cir. 2000).
We review sentences for both procedural and substantive reasonableness under an
abuse of discretion standard. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009)
(en banc). The burden of demonstrating unreasonableness is on the party challenging the
sentence. Id.IV.
Harrison first asserts that the prosecutor engaged in misconduct by arguing on
rebuttal that Harrison had “lied” during his testimony and that he had been “coached” by
his defense attorney. We reject this assertion.
A prosecutor “may state his views of what the evidence shows and the inferences
and conclusions that the evidence supports.” United States v. Zehrbach, 47 F.3d 1252,
1265 n.11 (3d Cir. 1995) (en banc). “The prosecutor is entitled to considerable latitude in
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summation to argue the evidence and any reasonable inferences that can be drawn from
that evidence.” United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991).
Here, the comment that Harrison “lied” during his testimony was supported by,
and certainly could be reasonably inferred from, the trial evidence. The prosecutor’s
statement also was made in the context of rebutting defense counsel’s charge that
Government witnesses had lied at trial, and was done to contrast Rippy’s and the
prosecution witnesses’ testimony, which was supported by the evidence, with Harrison’s
testimony, which was not. In this context, we discern no error. See Fahy v. Horn, 516
F.3d 169, 204 (3d Cir. 2008); United States v. Gross, 961 F.2d 1097, 1107 (3d Cir. 1992).
Indeed, as the District of Columbia Circuit Court of Appeals aptly stated, “[w]hen a ‘lie’
is an accurate description of the conduct at issue, we will not reverse a conviction
because the prosecutor did not use a more delicate term.” United States v. Gartmon, 146
F.3d 1015, 1024 (D.C. Cir. 1998); see also United States v. Molina, 934 F.2d 1440, 1445
(9th Cir. 1991) (“In a case that essentially reduces to which of two conflicting stories is
true, it may be reasonable to infer, and hence to argue, that one of the two sides is
lying.”). Likewise, the prosecutor’s remark that defense counsel “coached” Harrison’s
testimony was not improper, as it was based on a reasonable inference drawn from the
evidence—namely the meeting at Patrizio’s office— produced at trial. See Geders v.
United States, 425 U.S. 80, 89-90 (1976); Molina, 934 F.2d at 1445.
Further, even if they were improper, these comments were harmless because they
did not “so infect[ ] the trial with unfairness as to make the resulting conviction a denial
of due process[.]” Marshall v. Hendricks, 307 F.3d 36, 64 (3d Cir. 2002) (internal
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quotation marks and citation omitted). Moreover, evidence of Harrison’s guilt was, at the
least, substantial. Indeed, one could argue it was overwhelming.
Harrison next contends that the sentence of 156 months’ imprisonment is
unreasonable because the District Court did not grant an even larger downward variance
from the undisputed Guidelines range of 168 to 210 months due to the crack/powder
cocaine penalty disparity. We are not persuaded by this contention.
While it is true that the Fair Sentencing Act of 2010 modified the statutory
penalties for crack offenses by reducing the crack-to-powder cocaine sentencing ratio
from 100:1 to approximately 18:1, see United States v. Dixon, 648 F.3d 195, 196-97 (3d
Cir. 2011), the Act does not apply retroactively where, as here, both the offense and the
sentencing occurred before its enactment. United States v. Reevey, 631 F.3d 110, 114-15
(3d Cir. 2010). At the time of his sentencing in 2007, there existed a 120-month
mandatory minimum sentence applicable to Harrison’s drug offenses. Harrison in fact
was sentenced to the minimum time possible under the old statutory scheme. The fact
that the Sentencing Guidelines have changed since then is of no moment, and the
subsequent reduction in crack-to-powder cocaine sentencing ratio does not by itself
demonstrate that Harrison’s sentence was procedurally flawed or substantively
unreasonable. As Harrison presents no complaint as to the consecutive 36-month
sentence tacked on as a result of the witness tampering conviction, we find no error with
his 156-month sentence.
Consequently, we affirm Harrison’s conviction and sentence.
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