United States v. Harris

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 22, 2008 Decided February 22, 2008

No. 06-3045

UNITED STATES OF AMERICA,

APPELLEE

v.

DALE ANN HARRIS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00384-01)

Howard B. Katzoff, appointed by the court, argued the

cause and filed the briefs for appellant.

Sarah T. Chasson, Assistant U.S. Attorney, argued the

cause for appellee. With her on the briefs were Jeffrey A.

Taylor, U.S. Attorney, and Roy W. McLeese, III, Wendy L.

Short, and Bryan Seeley, Assistant U.S. Attorneys.

2

Before: TATEL, BROWN and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: Dale Ann Harris argues: (1)

there was insufficient evidence to sustain her conviction for

possession with intent to distribute PCP; (2) the police

violated her Fifth Amendment rights by subjecting her to

custodial interrogation without a Miranda advisement; and

(3) the district court violated her due process rights by asking

compound questions during jury selection. We reject these

challenges and affirm her conviction.

I

Officers from the Metropolitan Police Department

executed a search warrant on Harris’s apartment, where she

lived with her two children. When the police entered, they

handcuffed Harris and the other two women inside. Officer

Robert S. Cephas then directed the handcuffed Harris to a

hallway area, and without informing her of her Miranda

rights, asked, “is there anything in the apartment that I should

know about?” Harris responded there were two guns in the

bedroom and the police recovered the guns. In the

meanwhile, other officers searched the kitchen and seized

jars, vials, tin foil, and spoons, which contained suspect liquid

or vegetable matter or smelled like phencyclidine (“PCP”).

The Drug Enforcement Administration’s forensic lab tested

the seized items and found that one jar and three vials

contained a total of 34 grams of PCP, a large amount

consistent with distribution. A fingerprint specialist also

found Harris’s latent print on one of the vials containing PCP.

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A federal grand jury indicted Harris for: (I) possession of

PCP with intent to distribute; (II) possession with intent to

distribute within 1,000 feet of a school; and (III) possession

of a firearm in relation to drug trafficking. The district court

denied Harris’s motion to suppress her statements about the

guns, holding she was not “in custody.” During the voir dire,

the district court asked potential jurors several compound

questions requiring them to decide for themselves whether

factors like law enforcement employment histories

undermined their objectivity. At the close of the

government’s case-in-chief, the district court granted Harris’s

motion for acquittal on the gun charge. The jury then found

Harris guilty on Counts I and II and the district court

sentenced her to 33 months in prison on Count II.1 Harris

now appeals.

II

Harris argues the government did not present sufficient

evidence to support her conviction because it did not prove

she “possessed” the PCP found in her kitchen. In considering

sufficiency-of-evidence challenges, we view the “evidence in

the light most favorable to the government, and affirm a

guilty verdict where any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir.

2002) (emphasis in original). We conclude the government

presented more than enough evidence to satisfy this

permissive standard.

The government had the burden of proving Harris either

actually or constructively possessed PCP. To demonstrate

constructive possession, it had to show she “had the ability to

1

The district court properly dismissed Count I as a lesser-included

offense. See Rutledge v. United States, 517 U.S. 292, 307 (1996).

4

exercise knowing dominion and control over the [PCP].” See

United States v. Morris, 977 F.2d 617, 619 (D.C. Cir. 1992)

(internal quotation marks omitted). Harris argues that even

though the police found PCP in her kitchen, the government

presented no evidence she exercised “knowing dominion or

control” over this contraband. Yet, “[a] jury is entitled to

infer that a person exercises constructive possession over

items found in his home,” and this inference applies “even

when that person shares the premises with others.” Id. at 620;

see also United States v. Jenkins, 928 F.2d 1175, 1179 (D.C.

Cir. 1991) (“The natural inference is that those who live in a

house know what is going on inside, particularly in the

common areas.”). Thus, “if there was sufficient evidence

from which a juror could infer that [Harris] lived in the

apartment where [s]he was arrested, the jury could infer that

[s]he constructively possessed the drugs.” Morris, 977 F.2d

at 620. In this case, only Harris and her two children were

listed on the apartment’s lease and she does not dispute she

lived there.

Harris argues the government has to present some

evidence of “knowing dominion and control” in joint-

occupancy situations where drugs and related accoutrements

are completely hidden from view. We agree, since a contrary

view could unfairly sweep up unwitting roommates or

housemates and subject them to the harsh criminal

punishments associated with drug crimes. See United States

v. James, 764 F.2d 885, 890 (D.C. Cir. 1985) (quoting United

States v. Bonham, 477 F.2d 1137, 1139 (3d Cir. 1973) (en

banc) (finding evidence insufficient where there was “nothing

except the joint occupancy of the room upon which an

inference of possession could be based”)). But this is not a

hidden contraband case. Harris’s fingerprint was on a vial

with PCP in it and the police found PCP in four containers, at

least two of which were readily visible upon opening the

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freezer or kitchen cabinet. Moreover, the kitchen was littered

with evidence that police experts testified was consistent with

PCP distribution: from jars smelling of PCP to tinfoil

containing a black leafy substance. See Jenkins, 928 F.2d at

1179 (finding sufficient evidence of constructive possession

where there was a computerized scale on the kitchen counter

and cocaine pieces on the cutting board in defendant’s

apartment). Accordingly, there was sufficient evidence that

Harris constructively possessed the PCP.2

III

Harris argues we should vacate her conviction because

Officer Cephas violated her Fifth Amendment rights under

Miranda v. Arizona, 384 U.S. 436 (1966), by placing her in

handcuffs, leading her to the hallway, and immediately asking

her “is there anything in the apartment that I should know

about?” As every television viewer knows, an officer

ordinarily may not interrogate a suspect who is in custody

without informing her of her Miranda rights. See id.

Whether Cephas subjected Harris to custodial interrogation is

a question we do not reach today. Compare United States v.

Bautista, 684 F.2d 1286, 1292 (9th Cir. 1982) (suspect

handcuffed during a Terry stop and then asked questions was

not “in custody” for Miranda purposes), with United States v.

Newton, 369 F.3d 659, 676 (2d Cir. 2004) (“[A] reasonable

2

The government argues it also presented sufficient evidence

that Harris actually possessed PCP. See United States v. Molinaro,

877 F.2d 1341, 1348–49 (7th Cir. 1989) (defendant’s fingerprints

on a bag containing cocaine “certainly suggests” he actually

possessed the bag). We need not reach this argument because our

finding that Harris constructively possessed the PCP is sufficient to

sustain her conviction.

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person finding himself placed in handcuffs by the police

would ordinarily conclude [he was] in custody.”).

Even assuming Cephas violated Harris’s Fifth

Amendment rights, the district court’s admission of Harris’s

answer pinpointing the location of the guns was harmless

beyond a reasonable doubt. “Error is harmless if it appears

‘beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained.’” United States v.

Green, 254 F.3d 167, 170 (D.C. Cir. 2001) (quoting Chapman

v. California, 386 U.S. 18, 24 (1967)); see also Neder v.

United States, 527 U.S. 1, 18 (1999). While the jury could

have drawn some incriminating inference from Harris’s

knowledge about the guns, see United States v. Payne, 805

F.2d 1062, 1065 (D.C. Cir. 1986) (“it has uniformly been

recognized that substantial dealers in narcotics possess

firearms”), here, the link between the drugs and guns was so

attenuated the district court dismissed the charge of

possessing a firearm in connection with drug trafficking.

Tellingly, once the district court dismissed this charge, the

government made only one glancing reference to Harris’s

knowledge of the guns in its closing argument. Instead, it

focused on the strong evidence of Harris’s connection to the

drugs: from Harris being the only adult responsible for the

lease to her fingerprint appearing on the vial containing PCP

to conspicuous evidence of drug dealing in plain view in the

kitchen. In light of this strong evidence and the minor role

the guns played in relation to the drug counts, the government

has shown, beyond a reasonable doubt, that introduction of

Harris’s statement did not contribute to the verdict.

IV

As part of the voir dire, the district court asked

prospective jurors the same compound questions we found

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troubling in United States v. West, 458 F.3d 1 (D.C. Cir.

2006), and United States v. Littlejohn, 489 F.3d 1335 (D.C.

Cir. 2007). As in those cases, the district court explained to

the jurors that, first, the court would ask them to consider

whether they had a characteristic or experience that could bias

their judgment. The jurors were not to raise their hands at

this point. Then, the court would ask if the potentially

prejudicial factor actually rendered them unable to be fair and

impartial. Only if they answered affirmatively to this second

question would they raise their hands and come up to the

bench.

The district court asked several compound questions,

including whether potential jurors were members of crime

prevention groups or had been the victims of violent crimes.

Most relevant for our purposes, the court asked the following

two-part question:

[Are] you personally, a close family member or a

close personal friend presently or previously

employed by any law enforcement agency? Don’t

raise your hand if your answer is yes. … If your

answer is yes. As a result of that experience that

either you have had personally or a close family

member or close friend … do you believe that you,

you personally would be unable to be fair and

impartial to both sides if selected as a juror … ?

None of the jurors raised their hands and the district court

overruled Harris’s objection to this method of questioning.

The district court also asked several one-part questions,

directly asking jurors to raise their hands if they knew any

potential witnesses or believed they could not hold the

government to its burden of proof.

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“[W]hether a juror can render a verdict based solely on

evidence adduced in the courtroom should not be adjudged on

that juror’s own assessment of self-righteousness without

something more.” West, 458 F.3d at 11. Accordingly,

compound questions can violate a defendant’s Sixth

Amendment rights by undermining his ability to have a “full

and fair opportunity to expose bias or prejudice on the part of

the veniremen.” Littlejohn, 489 F.3d at 1342. We vacate a

jury’s verdict in response to a district court’s use of

compound questions only if the district court “abuses its

discretion, and there is substantial prejudice to the accused.”

Id. In West and Littlejohn, this circuit conducted case-

specific analyses for virtually identical compound law-

enforcement questions.

West held the district court did not abuse its discretion in

asking the compound law enforcement question. In that case,

an officer caught the defendant carrying a bag with a gun

inside. West explained there was no abuse of discretion

because officer credibility was not at issue since the

defendant admitted he was carrying the bag and his only

defense was he did not intend to possess the gun. In addition,

the defendant already had the current employment

information for most potential jurors and never asked for past

employers. Finally, some of the traditional one-part questions

the district court asked provided the defendant additional

opportunities to learn about juror prejudice. See 458 F.3d at

7–8. West also held there was no substantial prejudice

because the district court instructed the jury to give no special

weight to the testimony of law enforcement officers, the

defendant made no showing of actual juror prejudice, and the

evidence against the defendant was overwhelming because

the police caught him red-handed. See id. at 8–9.

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Littlejohn presents a strong contrast to West. There, the

police found a gun in a laundry basket in the defendant’s

mother’s home. The police claimed that when they broke into

the house, the defendant darted out of the room containing the

gun; but the officer’s testimony was somewhat inconsistent

and the defendant’s mother claimed the room and laundry

basket belonged to the defendant’s brother. 489 F.3d at

1337–38. Accordingly, this circuit held the district court

abused its discretion in asking the compound law enforcement

question and this was substantially prejudicial to the

defendant. Littlejohn stressed the officer’s credibility was

paramount, since the government’s case turned on whether

the jury believed his account that the defendant was running

out of the room. Moreover, the evidence against the

defendant was extremely thin since the police did not see him

with the gun and the defendant’s mother testified the room

and laundry basket belonged to his brother. In addition, there

was no evidence the defendant received a list of potential

jurors’ current employers, and he asked about past

employment history, including employment history related to

the officers’ employer. Finally, Littlejohn came to this

conclusion despite both the district court’s use of one-part

questions that could have exposed juror prejudice and the

defendant’s failure to show actual juror bias. Id. at 1344–47.

This case is far more like West than Littlejohn on the

overlapping abuse of discretion and substantial prejudice

inquiries. Most importantly, the evidence of Harris’s guilt

was strong and the verdict did not turn on police credibility.

Harris was the lessee of the apartment, the kitchen was

littered with PCP and drug paraphernalia, and her fingerprint

was on a vial containing PCP. Harris argues officer

credibility was at issue because she challenged the way the

police handled the evidence and because the police testified

that items in the kitchen smelled of PCP, even though some of

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them tested negative for the drug. While these factors make

Harris’s case stronger than West, it is still far from a situation

like Littlejohn where “the jury could never have convicted

[defendant] without crediting [the officers’] testimony.”

Littlejohn, 489 F.3d at 1345. After all, Harris never argued

police misconduct somehow placed her fingerprints on the

vial containing PCP, nor could she link anyone else to the

drugs. Furthermore, as in West, Harris had the current

employment information of potential jurors and never

specifically asked for former employer information or

employment history specifically relating to the Metropolitan

Police Department. Finally, as in West (and Littlejohn), the

district court asked one-part questions that helped expose any

potential juror bias and Harris did not show any evidence of

actual juror bias.

In sum, while the district court should not have used

these compound questions, we affirm Harris’s conviction for

much the same reasons as in West.

***

The judgment of conviction is therefore

Affirmed.