United States v. Danny Harmon
2013 U.S. App. LEXIS 14026
7th Cir.2013Background
- Danny Harmon was indicted (May 2011) for marijuana conspiracy (100 kg+), related possession and phone-facilitation counts; detained pretrial and trial initially set for July 18, 2011.
- Government sought a 30-day continuance (granted) to investigate post-indictment evidence of consciousness of guilt (recorded jail calls, asset dissipation, witness intimidation) and to obtain forensic testing and witnesses; trial was reset to August 22, 2011.
- A superseding indictment (July 28) increased the marijuana quantity to 1,000 kg+ and added attempted murder and witness intimidation counts based on conduct occurring after the original trial date; Harmon was acquitted on those added counts but convicted on the other counts.
- At sentencing the PSR attributed ~113.4 kg/month for ten months/year from December 2001–January 2011 (total >10,000 kg); Harmon contested the start date (argued August/September 2002) which would have reduced attributable quantity and affected criminal-history points.
- The district court found by a preponderance that the conspiracy began earlier (referenced a 1999 Florida-home purchase and other corroborating evidence), held Harmon responsible for >10,000 kg, treated a 1991 conviction as relevant to criminal history, and sentenced Harmon to 360 months (bottom of Guidelines range).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Speedy trial: 30-day continuance | Harmon: one-month continuance violated Sixth Amendment speedy-trial right; trial delay prejudiced defense | Government: continuance justified to investigate new evidence (consciousness of guilt); Harmon did not show prejudice; review for plain error | Court: No violation — delay not presumptively prejudicial; continuance justified by newly discovered evidence and Harmon showed no prejudice |
| Disclosure of prior conviction / mistrial request | Harmon: witness’s unsolicited reference to a 1991 conviction was highly prejudicial and warranted mistrial | Government: concession that testimony was improper; trial court struck statement and gave curative instructions; evidence of guilt overwhelming | Court: No abuse of discretion denying mistrial; jury presumed to follow curative instruction and error (if any) was harmless |
| Sentencing: drug-quantity and conspiracy start-date findings | Harmon: district court failed to make specific Rule 32 findings and improperly attributed early start (1999) unsupported by admissible evidence | Government: court may rely on PSR, hearsay, and sentencing evidence by preponderance; corroboration supports earlier start and >10,000 kg attribution | Court: Findings met Rule 32 minimal requirements; preponderance standard satisfied; attribution >10,000 kg upheld; any error in pinning 1999 start harmless |
| Sixth Amendment / Macedo challenge to judicial factfinding at sentencing | Harmon: reliance on facts not proved to jury violated right where findings increased sentencing exposure | Government: Macedo limited to facts increasing statutory maximum; here findings affected Guidelines only, not statutory maximum | Court: Macedo inapplicable; sentencing factfinding permissible (preponderance standard) and did not affect statutory maximum; claim rejected |
Key Cases Cited
- Barker v. Wingo, 407 U.S. 514 (speedy trial balancing test)
- Doggett v. United States, 505 U.S. 647 (examples of prejudice from delay)
- United States v. Hassebrock, 663 F.3d 906 (7th Cir.) (speedy-trial analysis and waiver/plain-error review)
- United States v. Russell, 662 F.3d 831 (7th Cir.) (consciousness-of-guilt evidence probative of actual guilt)
- United States v. Davis, 682 F.3d 596 (7th Cir.) (courts may rely on reliable PSR hearsay at sentencing)
- United States v. Macedo, 406 F.3d 778 (7th Cir.) (limits on judicial factfinding when facts increase statutory maximum)