United States v. Andre Harris
740 F.3d 956
| 5th Cir. | 2014Background
- Arthur and Andre Harris were convicted by a jury (2012) of drug- and firearm-related offenses arising from incidents in Sept. 2008, June 2010, and Feb. 2011, plus recorded jailhouse calls between the brothers.
- Feb. 2011 arrest at Andre’s apartment produced 11.2 g of crack divided into 60 baggies, firearms, ammo, a scale, $2,473 in cash, and other paraphernalia; Arthur and Andre were present and arrested.
- Earlier events: Sept. 2008 search of a friend’s room produced ammunition and drug paraphernalia; June 2010 entry at the brothers’ mother’s home produced crack in a toilet, firearms, and cash found on Arthur.
- The government introduced recordings/transcripts of multiple recorded phone calls in which Arthur and Andre discussed drugs, guns, and money; Agent Pecora offered interpretation of those calls at trial.
- District court calculated drug-quantity attributable to defendants at >=28 grams (U.S.S.G. §2D1.1 comment authority), applied a §3B1.1 leader/organizer enhancement (plus §2D1.1(14)(B) for a minor), and imposed sentences: Arthur 481 months (includes mandatory consecutive 30 years for §924(c) convictions), Andre 181 months.
- On appeal the Fifth Circuit affirmed convictions and sentences in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy (drugs and firearms) | Arthur/Andre: no proof of agreement between them | Govt: circumstantial evidence, presence together, recovered contraband, recorded calls show tacit agreement | Affirmed — evidence sufficient; conspiracies may be inferred from circumstances (Ornelas–Rodriguez principle) |
| Sufficiency of possession convictions (Feb. 2011) | Arthur: no physical link to contraband; Andre: if conspiracy reversed, co-conspirator statements inadmissible so possessions fail | Govt: constructive possession and independent evidence support convictions | Affirmed — constructive possession and co-conspirator liability/supporting evidence suffice |
| §924(c) jury instruction (possession "in furtherance") | Arthur/Andre: instruction permitted conviction without finding that defendant’s possession furthered the drug crime / removed intent element | Govt: used Fifth Circuit pattern instruction that mirrors statutory language and precedent | Affirmed — instruction correct and follows pattern jury instruction (Dean, Ceballos–Torres, Montes) |
| Failure to instruct jury to disregard juvenile conduct (Arthur’s conduct at 17) | Arthur: jury improperly considered pre-18 conduct in evaluating guilt for continuing offense | Govt: no required limiting instruction; post-18 evidence sufficient | No plain error — question unsettled at trial; sufficient post-18 evidence supports verdict (Tolliver distinguished) |
| Drug-quantity at sentencing (>=28g) | Arthur: should be limited to the 15.7 g actually seized | Govt: court may approximate quantity when seized amount understates scale, supported by cash and calls | Affirmed — finding not clearly erroneous; district court reasonably applied U.S.S.G. §2D1.1 comment permissive approximation |
| §3B1.1 leader/organizer enhancement for supervising a minor (TH) | Arthur: insufficient evidence he supervised TH | Govt: phone calls and police testimony (including mother’s statement) support enhancement | Affirmed — factual finding not clearly erroneous given permissible view of record |
| Admission and scope of ATF agent’s (Pecora) interpretive testimony on calls | Arthur/Andre: agent went beyond permissible code-interpretation and invaded jury province | Govt: testimony admissible under Rule 701 and prior circuit decisions | Affirmed — bulk admission not plainly erroneous (law unsettled); any error in objected-to portion harmless |
| Fourth Amendment claim re: entry/search of Andre’s apartment | Andre: entry/search unlawful; trial counsel failed to move to suppress (cause) | Govt: claim is waived/unpreserved on appeal; Chavez–Valencia bars raising suppression for first time on appeal absent exceptional cause | Unreviewable — claim procedurally barred by Chavez–Valencia; insufficient record to show ineffective assistance excusing waiver |
Key Cases Cited
- United States v. Shum, 496 F.3d 390 (5th Cir. 2007) (standard for sufficiency review)
- United States v. Ornelas–Rodriguez, 12 F.3d 1339 (5th Cir. 1994) (conspiratorial agreement may be inferred from circumstantial evidence)
- Dean v. United States, 556 U.S. 568 (2009) (interpretation of §924(c) language)
- United States v. Ceballos–Torres, 218 F.3d 409 (5th Cir. 2000) (possession that furthers drug trafficking violates §924(c))
- United States v. Montes, 602 F.3d 381 (5th Cir. 2010) (upholding Fifth Circuit §924(c) pattern instruction)
- United States v. Tolliver, 61 F.3d 1189 (5th Cir. 1995) (discussion of whether jury must be instructed to disregard pre-eighteen conduct in continuing-offense cases)
- Henderson v. United States, 133 S. Ct. 1121 (2013) (plain-error rule and unsettled legal questions)
- Gall v. United States, 552 U.S. 38 (2007) (standards for review of sentencing reasonableness)
- United States v. Robins, 978 F.2d 881 (5th Cir. 1992) (approving approximation of drug quantity when seized amount understates scale)
- United States v. Chavez–Valencia, 116 F.3d 127 (5th Cir. 1997) (failure to raise suppression at trial forecloses raising it on appeal)