United States v. Harrison

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT
December 11, 2006
Charles R. Fulbruge III
No. 05-51377 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC EUGENE HARRISON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. EP-04-CR-2197-FM
Before GARWOOD, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Eric Harrison (Harrison) was found guilty by the jury of
knowingly and intentionally possessing with intent to distribute
100 kilograms or more of marihuana in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B)(vii). He was subsequently sentenced
to a term of ninety-seven months’ incarceration and five years of
supervised release. Harrison raises several issues on appeal.
Finding no reversible error, we affirm his conviction and
sentence.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I. Factual Background
Harrison was stopped at the Sierra Blanca immigration
checkpoint driving an 18-wheeler tractor–trailer at approximately
1:30 a.m. on September 17, 2004. After initial questioning by
Border Patrol Agent Soto,1 Harrison consented to a search of his
vehicle. Thereafter, using an alien and drug detecting dog,
which alerted to the trailer and to the driver’s side of the
tractor, agents found in the trailer a legitimate commercial load
along with bundles of marihuana in distinguishable cardboard
boxes that did not match the rest of the load. In total, these
boxes contained 1,891 pounds, or 857 kilograms, of marihuana.
Agent Soto then arrested Harrison and read him his Miranda
rights. Harrison signed a written acknowledgment of his rights
at 1:35 a.m., approximately five minutes after the initial stop.
On the acknowledgment form, Harrison indicated he wished to waive
his rights and make a statement.
Agent Soto then placed Harrison in a 10 foot by 15 foot
holding cell to await the arrival of the DEA agent, who would
question Harrison about the drugs found in his trailer.2 Then,
1
Agent Soto testified that Harrison aroused some suspicions
by acting in a nervous manner. He described him as stuttering,
failing to answer questions in a timely manner, failing to look
him in the eye, having shaking hands, and generally acting in a
nervous manner.
2
Harrison was alone in the holding cell. The cell had water
and a restroom and a place to sit, as well as benches on which
Harrison could have slept. He was not handcuffed while in the
2
in the search of Harrison’s tractor, border patrol agents found
$22,000 in cash in a black duffel bag stuffed under the truck’s
bunk bed. Harrison later claimed the cash was his “gas money,”
and that he obtained it legitimately from his wife who received
it from her workers’ compensation case. However, agents also
found in that search a gas receipt dated that same day from a
nearby truck stop totaling $211.58, paid for with a credit card.
DEA Agent Carmen Coutino arrived at the checkpoint at 5:30
a.m., approximately four hours after the initial stop and
discovery of the marihuana. Upon her arrival, Agent Coutino was
debriefed by the border patrol agents, inspected the truck,
photographed Harrison and the marihuana, and fingerprinted
Harrison. Before interviewing Harrison, Agent Coutino advised
Harrison of his rights again, and Harrison signed yet another
waiver of his rights at 7:00 a.m. During the subsequent
interview, Harrison confessed to transporting the marihuana from
El Paso, Texas to Richmond, Illinois in exchange for $60,000
compensation to be received upon delivery. The street value of
the marihuana was $565,000 in El Paso and $1.7 million in
Richmond.
Harrison was indicted on October 13, 2004, for knowingly and
intentionally possessing with intent to distribute 100 kilograms
or more of marihuana in violation of 21 U.S.C. §§ 841(a)(1) and
cell or during his subsequent interview by the DEA agent.
3
841(b)(1)(B)(vii). He has been represented by counsel
continuously since a time prior to October 16, 2004. In November
2004, Harrison moved to suppress the statements he made to law
enforcement officials,3 but the district court denied the
suppression motion after an evidentiary hearing on January 14,
2005. Harrison’s first jury trial began on April 18, 2005, but
ended in mistrial April 21, 2005. Harrison’s second jury trial
began on July 13, 2005, and the jury found him guilty as charged
on July 18, 2005. At the sentencing hearing on October 12, 2005,
Harrison was sentenced to a term of ninety-seven months of
incarceration, five years of supervised release, and a $100
mandatory special assessment.
II. Discussion
Harrison appeals his sentence and conviction, asserting the
following: (1) the district court erred in denying Harrison’s
motions to suppress statements made at the time of his arrest;
(2) the district court erred in admitting evidence of the cash
found in Harrison’s truck; (3) a Brady violation for admitted
evidence wrongfully held from the defense before trial; (4) the
district court erred in denying Harrison’s motion for a
continuance of the sentencing hearing in order for Harrison to
obtain a psychiatric examination, which could have yielded
3
In his January 3, 2005 brief in support of his motion
Harrison also argued that the search of his trailer and tractor
was illegal and the fruits thereof should be suppressed.
4
considerations for a reduced sentence; and (5) the district court
erred in not allowing Harrison a two-point reduction in offense
level based upon his allegedly minor role pursuant to U.S.S.G.
§ 3B1.2.
A. Motion to Suppress
We review a denial of a motion to suppress for clear error
as to factual findings and legal findings de novo. United States
v. Reyes, 349 F.3d 219, 222 (5th Cir. 2003). Harrison first
argues that because his detention and arrest by the Border Patrol
agents were illegal, the statements and evidence obtained as a
result of the detention and arrest were wrongfully admitted into
evidence in violation of the Fourth Amendment and Miranda v.
Arizona, 86 S.Ct. 1602 (1966). Harrison further argues that his
confession is not admissible because it was coerced. We find no
error in the district court’s determinations.
Harrison contends that the border patrol agents had
insufficient evidence to detain and search his truck and trailer
and that the detention and search was an unreasonable search and
seizure under the Fourth Amendment. He claims that he did not
effectively consent and that the justification for the search
given by the agent was insufficient.4 Specifically, Harrison
argues that his suspicious demeanor and behavior as perceived by
4
However, his brief in this court states that at the
secondary inspection area “the Appellant consented to a search of
his vehicle.”
5
the border patrol agent was insufficient cause for the search,
stating in his reply brief that “it appears that no discernable
reason was provided in having Mr. Harrison move his truck to the
secondary inspection point.” However, immigration checkpoint
stops, and referral to the secondary inspection area there, do
not require individualized suspicion, and asking for consent to
search a vehicle does not unreasonably prolong an immigration
checkpoint stop. United States v. Ventura, 447 F.3d 375, 378
(5th Cir. 2006); United States v. Chacon, 330 F.3d 323, 326–27
(5th Cir. 2003). Furthermore, there is no evidence to suggest
clear error in the district court’s finding that Harrison
consented to the border patrol agents’ search of his trailer and
tractor. In addition, the drug and alien detection dog alerted
the agents to the trailer and tractor before the agents searched.
See United States v. Garcia–Garcia, 319 F.3d 726, 730 (5th Cir.
2003) (“Once the dog alerted, the agents had, at a minimum,
sufficient reasonable suspicion to permit them to prolong the
stop to explore further the potential source of the dog’s
alert.”); United States v. Williams, 69 F.3d 27, 28 (5th Cir.
1995) (holding that a canine alert is sufficient to establish
probable cause to search a vehicle for drugs).
Harrison also claims that the district court should have
suppressed his confession because it was involuntarily given due
to a lack of proper waiver of rights, coercion, and psychological
6
pressure. However, this is untenable in light of the evidence on
record and this court’s precedent. To determine whether a
statement is involuntary, this court’s test considers whether the
tactics employed by the officers constitute a Fifth Amendment due
process violation and are “‘so offensive to a civilized system of
justice that they must be condemned.’” United States v.
Bengivenga, 845 F.2d 593, 601 (5th Cir. 1988) (quoting Miller v.
Fenton, 106 S.Ct. 445, 449 (1985)). The district court found, and
the record fully supports, that Harrison knowingly and
voluntarily acknowledged and waived his rights in writing twice
before making the statements he claims should have been
suppressed.
Also, Harrison never raised the issue of his alleged
psychological problems at the suppression hearing and there was
never any indication that Harrison was incapable of understanding
surrounding events. In short, our precedent and previous
opinions support a finding of voluntariness under these facts.5
5
The Supreme Court has held that a defendant’s mental
condition is a factor in determining voluntariness. Colorado v.
Connelly, 107 S.Ct. 515, 520 (1986). However, the Supreme Court
also noted that “a defendant's mental condition, by itself and
apart from its relation to official coercion” will not dispose of
the inquiry into constitutional “voluntariness.” Id. (not
requiring a confessor to be “totally rational and properly
motivated”). See also id. at 518, 520 n.1 (listing cases where
official coercion has been found, all describing events supported
by evidence, and finding a confession admissible where defendant
“was suffering from chronic schizophrenia and was in a psychotic
state at least as of . . . the day before he confessed”); United
States v. Cardenas, 410 F.3d 287, 295 (5th Cir. 2005) (discussing
7
B. Admission of Cash Evidence and Brady Violation
We also find that the district court did not abuse its
discretion in admitting into evidence testimony concerning the
$ 22,000 in cash found in his truck. The record supports a
finding that its introduction was not overly prejudicial or
cumulative, and therefore not in violation of FED. R. EVID. 403
and 404. Indeed, the presence of large sums of money is often
considered relevant as an indication of guilt in drug possession
cases. See United States v. Ortega Reyna, 148 F.3d 540, 544 (5th
Cir. 1998) (listing types of behavior that this court has
previously recognized as circumstantial evidence of guilty
knowledge, including “possession of large amounts of cash”).
In addition, Harrison fails to state a Brady violation claim
as to the introduction of evidence allegedly withheld from the
defense without a prior opportunity for review by the defense.
The evidence at issue, the actual manifest of Harrison’s cargo on
the day of the arrest, was introduced at trial over defense
counsel’s objections and its existence was known to the defense
ever since not later than April 2005. See United States v.
Infante, 404 F.3d 376, 386 (5th Cir. 2005) (“Brady rights are not
denied where the information was fully available to the defendant
factual scenarios whereby coercion or involuntariness was found
or not found); United States v. Ballard, 586 F.2d 1060, 1063 (5th
Cir. 1978) (listing cases where the court found that the
circumstances surrounding the defendant’s confession provided
ample support for a trial court’s ruling of voluntariness).
8
and his reason for not obtaining and presenting such information
was his lack of reasonable diligence.”). Also, there is no
sufficient indication that, even had the manifest been withheld
by the prosecution, it was exculpatory or impeaching. See United
States v. Sipe, 388 F.3d 471, 477 (5th Cir. 2004) (listing
elements of a Brady claim).
C. Denial of Motion for Continuance of Sentencing Hearing
In October 2005 the day before the sentencing hearing was
scheduled (as per the district court’s July 18, 2005 order) to
commence, Harrison moved for a continuance of the hearing in
order to obtain a psychiatric examination, based on information
his counsel apparently received from Harrison's brother and
sister just after the second trial, about three months earlier.
Harrison claims the district court’s denial of his motion denied
him the right to argue for a downward departure based on his
psychological issues, including ADHD, using the sentencing-
determination factors listed in 18 U.S.C. § 3553(a)(1). Harrison
argues he should be given the opportunity to present evidence as
to his psychological condition in order to argue that a
reasonable sentence would be lesser than that imposed. He
contends that a new sentencing hearing should be held since the
district court did not have the opportunity to properly consider
that argument because it denied him the opportunity to obtain
additional evidence to support it.
9
A district court’s denial of a motion to continue a
sentencing hearing is reviewed for abuse of discretion. United
States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999). In order
for there to be an abuse of discretion, the denial must be
arbitrary or unreasonable. United States v. Hughey, 147 F.3d 423,
431 (5th Cir. 1998). Movant must show that the denial of the
continuance resulted in prejudice that is “specific and
compelling” or “serious.” Barnett, 197 F.3d at 144. Also, since
Harrison did not raise his additional objection below that denial
of the continuance was error under United States v. Booker, 125
S.Ct. 738 (2005), because he should have been able to examine
this potential sentencing issue, review of that issue is for
plain error. To establish plain error, there must be clear or
obvious error that affected Harrison’s substantial rights. To
determine whether the plain error affected Harrison’s substantial
rights, Harrison must demonstrate a probability sufficient to
undermine confidence in the outcome. United States v. Dominguez
Benitez, 124 S.Ct. 2333, 2340 (2004).
The district court’s denial of Harrison’s motion for
continuance at the beginning of the sentencing hearing in order
for him to obtain a psychiatric examination was not an abuse of
discretion. Harrison has failed to show that the denial was
arbitrary or unreasonable and that the denial of the continuance
resulted in prejudice that is “specific and compelling” or
10
“serious.” Barnett, 197 F.3d at 144; United States v. Hughey, 147
F.3d 423, 431 (5th Cir. 1998). As the district court expressly
noted in denying the continuance motion, it had observed Harrison
closely through two trials and a suppression hearing, heard him
testify (and questioned him at the suppression hearing) and
“never at any time have I gotten any indication that there are
any issues about his mental competency.” No question of
Harrison’s competency was ever raised in either of the two trials
or in any pretrial hearing. And, finally, he is not
unconditionally due a continuance for which he moved at so late a
date without any reasonable explanation for the last minute
nature of the motion.
Harrison also fails to establish plain error as to his
Booker claim because the PSR contained information on his
personal history, including information as to his mental and
emotional health; as stated above, the judge had ample
opportunity to observe him through trial; and his only argument
that the denial undermined confidence in the proceedings’ outcome
is that he theoretically may have been able to make another
argument for the court to consider in its discretion in
determining his sentence.
D. Sentence Reduction for Minor Participant
Finally, we review for clear error the district court’s
factual finding that the defendant is not a minor participant in
11
a crime for purposes of reviewing the denial of Harrison’s motion
for a downward departure based on U.S.S.G. § 3B1.2, which allows
for a two-level reduction if a defendant is a “minor participant”
in the offense for which he is being sentenced. United States v.
Garcia, 242 F.3d 593, 598 (5th Cir. 2001). The determination of
“minor participation” status is a “sophisticated factual
determination” to be made by the sentencing judge. Id. at 597-98.
Harrison indicates that he should have received the minor role
reduction because (1) other courts have found the adjustment to
be permissible when only one participant is charged in an
indictment, as is his case, though others were involved and (2)
his role was limited to transporting the marihuana. Harrison also
points out that his compensation of $60,000 was minimal compared
to the value of the illegal cargo he was transporting, which was
worth $1.7 million in Chicago and Richmond, Illinois.
Harrison fails to establish clear error under this court’s
precedent. See United States v. Pafahl, 990 F.2d 1456, 1485 (5th
Cir. 1993) (holding that a “‘mule’ or transporter of drugs may
not be entitled to minor or minimal status”). U.S.S.G. § 3B1.2
indicates that it may be permissible to consider a mere drug
transporter a minor participant but it is by no means an
automatic or mandatory determination. Indeed, Harrison’s role
was essential for the drugs to get to Illinois from El Paso. See
United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989).
12
Harrison was not attributed for sentencing purposes with any
amount of marihuana in excess of what he was knowingly
transporting on this occasion.
III. Conclusion
For the foregoing reasons, the defendant’s conviction and
sentence are
AFFIRMED.
13