United States v. Maurice Harrison

In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-1953

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MAURICE HARRISON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 1101—Suzanne B. Conlon, Judge.

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ARGUED FEBRUARY 23, 2005—DECIDED DECEMBER 12, 2005

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Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit

Judges.

WILLIAMS, Circuit Judge. Maurice Harrison was con-

victed by a jury of one count of distributing 50 or more

grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1).

The district judge sentenced Harrison to 151 months’

imprisonment. Harrison contends that the district court

abused its discretion by sustaining various government

objections to the defendant’s testimony at trial. We disagree

and find that the district court properly sustained the

government’s objections, the majority of which were based

on relevance and leading grounds. We reject Harrison’s

argument that the district court erroneously found that he

made materially false statements at trial and obstructed

2 No. 04-1953

justice, because the evidence supports the district court’s

conclusion that he had dealt drugs before. The evidence also

supports the district court’s finding that Harrison lied when

he testified at trial that the government’s informant had

solicited him for drugs prior to the first charged drug sale.

For these same reasons, we also reject Harrison’s argument

that he should have received a two-level downward adjust-

ment for acceptance of responsibility and safety valve relief.

Although we affirm the conviction, we order a limited

remand for further proceedings on Harrison’s sentence

under the procedure established in United States v.

Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005).

I. BACKGROUND

On November 19, 2003, a grand jury in the Northern

District of Illinois returned an indictment against Maurice

Harrison. Count One of the indictment alleged that on July

17, 2002, Harrison distributed 50 or more grams of crack

cocaine in violation of 21 U.S.C. § 841(a)(1). Count Two

alleged that on August 15, 2002, Harrison again distributed

50 or more grams of crack cocaine in violation of the same

statute.

The case was tried before a jury. At trial, Harrison and

the government stipulated to the following facts. First, the

parties agreed that on July 17th and August 15th, 2002, in

the area of 5424 Cornell in Chicago, Harrison distributed

63.4 and 62.3 grams of crack cocaine, respectively, to the

government’s informant, Christopher Lyons. The parties

agreed that Harrison received $1,500 on each occasion. The

parties also stipulated that Harrison knew that the sub-

stance he distributed to Lyons was crack cocaine. The

parties also agreed that Harrison used a cellular telephone

to complete these sales, and phone records were admitted

into evidence showing that the telephone number was

registered in the name of another individual.

No. 04-1953 3

In the government’s case in chief, it called three agents

from the Drug Enforcement Agency (DEA).1 The agents

testified that Lyons identified Harrison to them as a drug

dealer. As a result, the DEA attempted to set up controlled

drug buys using Lyons as the buyer. The agents testified

that on July 17th and August 15th, the DEA conducted

controlled purchases of crack cocaine through Lyons.

According to the agents’ testimony, the first transaction was

set up by a phone call from Lyons to Harrison. The district

court admitted into evidence telephone records showing

calls made from Lyons to Harrison. The district court also

admitted into evidence certain recorded conversations

between Harrison and Lyons to set up the drug transac-

tions. These conversations were played at trial, and the

transcripts of these conversations were also admitted into

evidence. The DEA agents followed Harrison after the July

17th transaction to a Bank One branch, where they ob-

served him depositing money. The DEA agents also testified

that the only time they set up a plan to buy drugs from

Harrison was on July 17th. The phone records admitted

into evidence show that the next phone call between Lyons

and Harrison after the July 17th transaction did not occur

until July 25th, when Harrison called Lyons to set up

another purchase.

Harrison presented an entrapment defense and was

the sole witness to testify on his behalf. Harrison tes-

tified that he made his living as a painter and had never

sold drugs before. Harrison testified that he had known

Lyons since childhood, and that they grew up in the

same neighborhood. According to Harrison’s testimony,

prior to the July 17th transaction, he had several conversa-

tions with Lyons. In the first two conversations, Lyons

asked Harrison for drugs which Lyons said he needed to pay

off a debt, and Harrison said “no.” Harrison testified that he

1

The government’s informant, Christopher Lyons, did not testify.

4 No. 04-1953

had a third and fourth conversation with Lyons, where

Lyons again asked for drugs. Again, according to Harrison,

Lyons stated that he needed these drugs to pay off a street

gang, and once again, according to Harrison, he told Lyons

“no.” Harrison testified that in a fifth conversation Harrison

said that he knew Collins Goodson, a supposed drug dealer

in the neighborhood. Harrison told Lyons that Goodson,

known as “Sonny”, would not sell drugs directly to Lyons

but would sell the drugs to Harrison. With that understand-

ing, according to Harrison, he and Lyons arranged the first

sale on July 17th. According to Harrison, he did not get any

money from the two deals but rather gave the proceeds from

the transactions to Sonny. Harrison also testified that the

$700 he deposited in his Bank One account after the July

17th transaction was cash he received from a painting job

and not from the drug sale. He also recounted that after the

first deal, he spoke with Lyons, who said that the street

gang that he was indebted to liked the drugs he gave them

and wanted more. Harrison testified that he initially

refused to give Lyons more drugs, but decided to do so out

of fear for Lyons’s safety.

In rebuttal, the government called David Irving. Irving

testified that he knew Harrison and had purchased crack

cocaine from him five times, in 63 gram quantities, prior to

2003. Irving said that he stopped talking to Harrison after

they had arranged to buy half a kilogram of cocaine to-

gether and Harrison took the money and never provided the

drugs.

At the conclusion of the trial, the jury acquitted Harrison

of Count One, but convicted him of Count Two. At sentenc-

ing, the district judge imposed a two-level upward ad-

justment for obstruction of justice. In doing so, it deter-

mined that Harrison willfully provided materially false

testimony when he denied having sold drugs prior to the

two controlled purchases. The district court found Harri-

son’s testimony to be false based on the slang that Harrison

No. 04-1953 5

used, and was familiar with, in conducting the drug sales.2

The district court also found that the speed with which

Harrison was able to secure a large amount of crack cocaine

was indicative of prior dealings. Finally, the district court

also found that Harrison willfully provided false testimony

when he testified that he had been solicited repeatedly by

Lyons before engaging in the first charged drug sale. Based

on the district court’s finding that Harrison had obstructed

justice, it refused to grant Harrison a two-level downward

adjustment for acceptance of responsibility, and denied

Harrison’s request for safety valve relief under 18 U.S.C. §

3553(f). The district court then sentenced Harrison to 151

months of imprisonment. Harrison appeals his conviction

and sentence.

II. ANALYSIS

A. The Government’s Objections During Harrison’s

Direct Testimony

We find that the district court did not abuse its discretion

in sustaining the government’s objections during Harrison’s

testimony. In reviewing a district court’s evidentiary

rulings, our review is for an abuse of discretion. United

States v. Hernandez-Rivas, 348 F.3d 595, 599-600 (7th Cir.

2003). We will reverse an error only if it had “a substantial

influence over the jury.” Id. (quoting United States v. Smith,

230 F.3d 300, 307 (7th Cir. 2000).

2

Specifically, the district court found the testimony to be:

willful and materially false based on the quick turn-around

time for setting up the deal [and] the actual language used in

negotiating the sale. The statements by Mr. Harrison during

the conversation certainly weren’t those of a neophyte in the

drug business. It was sophisticated. He knew exactly what he

wanted and how it was to be done.

6 No. 04-1953

Harrison’s main argument is that the government so

disrupted the flow of his direct testimony, through its

objections, as to hinder the presentation of his entrapment

defense before the jury. We find that Harrison’s argument is

without merit. Harrison does not cite any authority for his

claim that the sheer number of objections can so disrupt the

flow of a direct examination of a defendant that it rises to

the level of deprivation of the right to present a defense.

Indeed, no such rule exists. Harrison’s direct examination

consisted of approximately 41 typewritten pages, during

which his counsel asked him roughly 350 questions. The

government objected to approximately 18 of those questions.

Most of the government’s objections were based on rele-

vance and leading grounds, and the district court sustained

the majority of these objections. What Harrison is asking of

us, in essence, is to create some type of quota system by

which the government (or any other party) is limited to a

certain number of objections during the direct examination

of a witness. There is no foundation for such a rule in the

Federal Rules of Evidence or any case law.

B. The District Court’s Finding that Harrison Ob-

structed Justice at Trial

We also find that the district court did not clearly err

in its finding that Harrison obstructed justice at trial. A

district court’s determination that a defendant obstructed

justice is a finding of fact which we review for clear error.

United States v. Hanhardt, 361 F.3d 382, 387 (7th Cir.

2004). The district court may apply an enhancement for

obstruction of justice if the defendant testifies at trial and

commits perjury. U.S.S.G. § 3C1.1, cmt. n. 2 & 4 (2004);

United States v. Griffin, 310 F.3d 1017, 1023 (7th Cir.

2002). Moreover, “separate findings of fact regarding

each element of perjury are not strictly necessary to uphold

an obstruction of justice enhancement” but “[a]s long as the

No. 04-1953 7

trial court determined that the defendant lied to the judge

and jury about matters crucial to the question of defen-

dant’s guilt, that is sufficient.” United States v. Holman,

314 F.3d 837, 846 (7th Cir. 2002).

In this case, the district court made a finding that

Harrison obstructed justice based on two assertions he

made in his testimony: that he had never dealt drugs

before; and that he had been solicited repeatedly by Lyons

before engaging in the first charged drug sale. At sentenc-

ing, the district court found that “The statements by Mr.

Harrison during the [conversations between Harrison

and Lyons] certainly weren’t those of a neophyte in the drug

business. It was sophisticated. He knew exactly what he

wanted and how it was to be done.” The district court

described Harrison as “sophisticated” and unlike a neo-

phyte, which we infer as meaning that based on Harrison’s

knowledge of drug lingo, he had dealt them in the past.3 We

3

In a conversation between Harrison and Lyons on July 17, 2002

at 3:12 pm, the parties said the following:

Harrison: What’s happening?

Lyons: Man huh. I don’t want to talk on the phone like this

but I’m trying to go to 63rd. What what them people gonna

charge me for that car?

Harrison: Um. Which way?

Lyons: 63rd. Good, the real one. Hard.

Harrison: I think the umm the (inaudible) the Cadillac is just

gonna be $15.00.

In another conversation between Harrison and Lyons on July

17th, the parties said:

Harrison: What the fuck (inaudible) yeah I, I done called you

four or five times, it was what

(continued...)

8 No. 04-1953

disagree with the district court’s logic here. Sadly, across

many drug plagued neighborhoods in Chicago

and nationwide, many law-abiding people know drug

slang because drugs are so pervasive in their communities.

Even in communities where drug dealing is not rampant,

many law-abiding citizens are familiar with drug slang

through music and other forms of media. As Harrison notes,

the use of drug slang has become so pervasive that the

White House has a web page defining various lingo for the

benefit of parents and teachers to monitor their youngsters.4

On this web page is the meaning of “Cadillac” and “butter.”

Although we disagree with the district court’s logic that

because Harrison was fluent in drug slang, he must have

dealt drugs in the past, we do not find clearly erroneous the

district court’s conclusion that Harrison obstructed justice.

In particular, it was not clear error for the district court to

find that Harrison lied about dealing drugs before because

he was able to receive such a large quantity of crack cocaine

on “credit” from a drug dealer. While it may be very easy for

anyone to buy user quantities of drugs in neighborhoods

where they are sold, it is another matter to approach a drug

dealer and ask to be fronted two ounces of crack, worth

$1,500, as Harrison did. According to Harrison, he did not

pay his supplier for drugs until after he had delivered them

3

(...continued)

Lyons: What’s this dog? Is it butter man?

Harrison: This bitch just got out of the warmer.

The parties do not disagree that “trying to go 63rd” is drug

slang for a transaction involving 63 grams, “Cadillac” or “car”

refers to cocaine, and “hard” and “butter” mean crack cocaine.

4

The White House, Office of National Drug Control Policy,”Street

Terms: Drugs and the Drug Trade”,

www.whitehousedrugpolicy.gov/streetterms (last visited Aug. 15,

2005).

No. 04-1953 9

to Lyons and was paid by Lyons. Based on all of the evi-

dence presented by the government at trial, including the

rebuttal evidence of David Irving, who claimed that Harri-

son had sold him crack before, it was not clear error for the

district court to conclude that Harrison had previously sold

drugs. Based on the same facts, we also do not find it clear

error for the district court to have made a finding, based on

Harrison’s credibility, that he perjured himself on the stand

by testifying that he had been solicited repeatedly by Lyons

prior to the first drug sale. With the exception of Harrison’s

knowledge of drug slang, we consider all of this evidence

sufficient to describe a “failure to give truthful testimony on

material matters that were designed to substantially affect

the outcome of the case.” United States v. Dunnigan, 507

U.S. 87, 95 (1993).

C. The District Court’s Finding that Harrison Did

Not Qualify for Acceptance of Responsibility

We also find that the district court did not clearly err

by finding that Harrison did not qualify for a downward

adjustment for acceptance of responsibility, pursuant to

U.S.S.G. 3E1.1 (2004). U.S.S.G. 3E1.1 provides for a

reduction in offense level if “the defendant clearly demon-

strates acceptance of responsibility for his offense.” Id. We

review the district court’s finding of whether a defendant

has accepted responsibility for his criminal activity for clear

error. United States v. Taliaferro, 211 F.3d 412, 414 (7th

Cir. 2000).

We have held that section 3E1.1 of the sentencing

guidelines (which is now advisory after Booker) is designed

to reward a defendant who demonstrates contrition through

an honest and full account of his offense conduct. United

States v. Larkin, 171 F.3d 556, 559 n.4 (7th Cir. 1999).

Furthermore, the sentencing court can require that the

10 No. 04-1953

defendant provide a candid and full explanation of

the circumstances surrounding the offense of conviction.

United States v. Hammick, 36 F.3d 594, 600-01 (7th Cir.

1994). We have determined that the district court did

not clearly err by its finding that Harrison lied to the

jury about two issues crucial to the question of his guilt:

first, that he had never dealt drugs before; second, that

he had been solicited repeatedly by Lyons before engag-

ing in the first charged drug sale. As such, it was not

clear error for the district court to determine that Har-

rison did not give a full and honest account of both his

conduct in the offense and the circumstances surround-

ing the offense. Therefore, we find that the district court did

not commit clear error when it found that Harrison did not

qualify for an acceptance of responsibility adjustment.

D. The District Court’s Refusal to Apply the Safety

Valve Adjustment

We also find that the district court did not clearly err

by its refusal to apply the safety valve adjustment in this

case. The safety valve provision of the Guidelines ad-

vises a district court to depart below the statutory man-

datory minimum sentence for certain drug offenses where

the defendant is a first time offender who was not the

organizer or leader of criminal activity and has made a good

faith effort to cooperate with the government. U.S.S.G. §

5C1.2; 18 U.S.C. § 3553(f)(1)-(5). Our review of the district

court’s findings about the factual predicates for the safety

valve is for clear error only. See United States v. Williams,

202 F.3d 959, 964 (7th Cir. 2000). From that standpoint, we

see nothing to criticize the district court’s decision to refuse

Harrison the safety valve adjustment, and no clear error in

the district court’s finding that Harrison lied to the jury

through his testimony. Harrison failed to “truthfully

provide [ ] to the Government all information and evidence

No. 04-1953 11

defendant has concerning the offense.” U.S.S.G. § 5C1.2

(2004).

E. Booker and the District Judge’s Sentencing

Determinations

Harrison also argues that the district court erred in

sentencing him in violation of the Sixth Amendment when

the district court, and not a jury, made its finding that

Harrison had obstructed justice. The Supreme Court’s

decision in United States v. Booker, 125 S. Ct. 738 (2005),

does not preclude a sentencing judge from making factual

findings that have the effect of increasing the Guidelines

sentencing range, but it does render the Guidelines advisory

in order to avoid the constitutional problem that mandatory

application of the Guidelines otherwise would present. See

id. at 750.

Because Harrison did not raise his Sixth Amendment

objection in the district court, we review for plain error.

Enhancement of Harrison’s sentence based on facts not

admitted by the defendant or proven to a jury beyond

reasonable doubt does, under the new Booker regime,

constitute error that is plain. See United States v. Paladino,

401 F.3d 471, 481 (7th Cir. 2005).

The question that we must ask now is whether Harrison’s

substantial rights were affected by the error. See Fed. R.

Crim P. 52(b); United States v. Lee, 399 F.3d 864, 866 (7th

Cir. 2005). We cannot answer that question without

knowing whether the district court would have been

inclined to sentence Harrison more leniently had it known

that the Guidelines were advisory rather than mandatory.

Paladino, 401 F.3d at 482. The district court sentenced

Harrison to the low end of the then-mandatory Guideline

range, so the possibility that the district judge may consider

another sentence for Harrison is entirely logical. Therefore,

we will retain jurisdiction of the appeal and “order a limited

12 No. 04-1953

remand to permit the sentencing judge to determine

whether he would (if required to resentence) reimpose his

original sentence.” Id. at 484. On remand, the district court

should proceed with the procedure we set forth in Paladino.

If the district court determines that it would have imposed

the same sentence, we may know for certain that Harrison

was not prejudiced. Without a showing of prejudice, Harri-

son’s plain error challenge will fail. We will still, however,

review the sentence for reasonableness. Id. If the district

judge determines that with more discretion, the sentence

would have been lower, we will vacate and remand the case

for resentencing having predetermined that such an

illegal sentence that has prejudiced the defendant consti-

tutes a miscarriage of justice. Id.

III. CONCLUSION

For the reasons stated above, we AFFIRM Harrison’s

conviction. While retaining jurisdiction, we order a

limited REMAND of Harrison’s sentence in accordance

with Booker, Paladino, and this opinion. The district court

is directed to return this case to us when the limited

remand has been completed.

No. 04-1953 13

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-12-05