United States v. Harris

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4297

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DAVID M. HARRIS,

Defendant - Appellant.

No. 03-4298

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

DAVID M. HARRIS,

Defendant - Appellee.

Appeals from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CR-01-115-L)

Argued: October 27, 2006 Decided: January 31, 2007

Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.

ARGUED: Kenneth Wendell Ravenell, SCHULMAN, TREEM, KAMINKOW, GILDEN
& RAVENELL, P.A., Baltimore, Maryland, for Appellant/Cross-
Appellee. Christopher John Romano, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee/Cross-Appellant. ON BRIEF: Thomas M.
DiBiagio, United States Attorney, Jane M. Erisman, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee/Cross-Appellant.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

David M. Harris appeals his convictions and sentences for the

following offenses: conspiracy to possess with the intent to

distribute five kilograms or more of a mixture or substance

containing a detectable amount of cocaine, in violation of 21

U.S.C.A. § 846 (West 1999); possession with the intent to

distribute five hundred grams or more of cocaine, in violation of

21 U.S.C.A. § 841(a) (West 1999); possessing a firearm in

furtherance of a drug trafficking crime, in violation of 18

U.S.C.A. § 924(c) (West 2000); being a felon in possession of a

firearm, in violation of 18 U.S.C.A. § 922(g)(1) (West 2000); and

unlawfully possessing ammunition, in violation of § 922(g)(1).

Harris argues that the district court erred in denying his motion

to suppress evidence obtained from the search of his apartment and

vehicle and in denying him a Franks hearing.1 He raises additional

challenges to a number of the district court’s evidentiary rulings

and to the imposition of an upward departure at sentencing for

obstruction of justice. Also at issue in this appeal are Harris’s

1
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court
recognized a “presumption of validity with respect to the affidavit
supporting [a] search warrant,” id. at 171, and held that a hearing
on a motion to test the sufficiency of the affidavit is required
only if the defendant “makes a substantial preliminary showing that
a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant
affidavit,” and the offending information was essential to the
probable cause determination, id. at 175-56.

3
motion to remand for resentencing in accordance with United States

v. Booker, 543 U.S. 220 (2005), and the Government’s cross appeal

challenging one aspect of Harris’s sentence--the extent of the

upward departure for obstruction of justice. For the reasons that

follow, we affirm Harris’s convictions, but vacate his sentence and

remand for resentencing in accordance with Booker.

I.

A.

It is undisputed that this prosecution arose after Harris and

a companion, Tilisha Wright, were attacked upon returning home to

Baltimore, Maryland from a trip to Houston, Texas. On January 28,

2001, Harris was shot in the side and Wright was abducted and later

shot in the back and left for dead. She was taken to Baltimore’s

Shock Trauma hospital and released later that night.

Wright provided a taped interview with police after the

attack. In the interview, she explained that she and Harris left

the airport, stopped briefly at Harris’s brother’s house, and then

stopped in front of Harris’s apartment building. She stated that

Harris had just gotten out of the Jeep and was standing next to it,

when a man she knew as Niam “walked up to the car, to David

[Harris], and asked David ‘where’s it at?’ And David said, ‘what?’

And as soon as David said ‘what,’ Niam started shooting him.”

(J.A. at 96.) Niam then came around to Wright’s side and told her

4
to get out of the Jeep. She saw another man coming towards

Harris’s door, and another “going through David’s Jeep.” (J.A. at

100-101.)

Wright told police that at that point, she was forced from the

Jeep into another car, and Niam asked her, “Where was the stuff

at?” When she asked what “stuff” he meant, he responded, “Tilisha,

don’t play with me, tell me where it’s at?” (J.A. at 103.) She

stated that the other two men, Jamal and Cuddy, then “came to the

car and they was asking - asking Niam where was the stuff at? And

so Cuddy . . . went back to the Jeep and was still going through

it. And then he came back to the car and he was carrying David’s

phone.” (J.A. at 103-04.) The three men then took her to a vacant

house, where they continued to question her about money and drugs.

B.

Based on Wright’s interview and information gathered at the

scene, Detective Raynard Jones and co-affiant Kerry Snead prepared

an affidavit to secure a warrant for the search of Harris’s

Apartment (719 N. Carrollton Street, Apt. C), Harris’s Jeep, and

the car into which Wright had been forced. The affidavit stated

that “[o]ne of the black males approached the victim David Harris

and stated, ‘where is the money and drugs?’” (J.A. at 168.) It

provided that after being shot, Harris “ran into 719 N. Carrollton

Street and the suspects pursued him, entering only into the

5
apartment building vestibule. The suspects then exited [the

building] and returned to the victim’s 1996 Jeep Cherokee and began

to search the victim’s vehicle.” (J.A. at 168.) The affidavit

also provided that the suspect took Wright to a vacant house and

“threatened her by gunpoint to reveal where David Harris had his

money and drugs.” (J.A. at 169.) The affiants indicated that they

believed the incident was a drug transaction and/or drug-related

robbery and that in their experience, “people who commit the crime

of narcotics distribution, store and keep narcotics, weapons,

firearms, ammunition, bullets and related evidences use [sic]

during narcotic violations at the place where they stay or vehicle

they drive for storage and safekeeping.” (J.A. at 170.)

After the search warrant issued, Baltimore police homicide

detectives searched Harris’s apartment and Jeep. In the apartment,

they found packaging materials, a scale, strainers, spoons, a

cutting agent, and items commonly used to dilute and repackage

controlled substances, as well as paperwork for co-conspirator

Zenobia Penn and airline ticket stubs for Tilisha Wright. In the

Jeep, they found one kilogram of cocaine hidden inside of Harris’s

luggage.

Harris was indicted on March 27, 2001. A Superceding

Indictment, filed on May 16, 2001, and a Second Superceding

Indictment, filed on October 24, 2001, followed. The Second

Superceding Indictment charged Harris with five offenses:

6
conspiracy to possess with the intent to distribute five kilograms

or more of cocaine (Count One); possession with the intent to

distribute five hundred grams or more of cocaine (Count Two);

possessing a firearm in furtherance of a drug trafficking crime

(Count Seven); being a felon in possession of a firearm (Count

Eight); and unlawfully possessing ammunition (Count Nine).

C.

The case proceeded to trial. On September 26, 2001, Harris

filed a Motion to Suppress any evidence seized from his residence

and vehicle. The Motion to Suppress also contained a request for

a Franks hearing. After a hearing, the district court denied the

motion. Trial for Harris and co-conspirators Clarence Walker,

Zenobia Penn, and Allah Burman began on June 6, 2002, but the

district court granted a mistrial on June 12, 2002.

A new trial for Harris and Zenobia Penn began on October 15,

2002. The government called thirty-one witnesses during the

seventeen-day trial. These witnesses included law enforcement

officers, chemists, custodians of records for hotels and airlines,

and a series of cooperating witnesses who played various roles in

the drug trafficking conspiracy. Tilisha Wright testified at

trial, as did Ramona Jones, the girlfriend of Allah Burman, one the

leaders of the conspiracy. The pertinent witnesses for purposes of

7
this appeal are Officer Urica Jenerette, Detective Raynard Jones,

Steven Jones, Ramona Jones, and Agent Matthew McCormack.

Officer Jenerette and Detective Raynard Jones testified

regarding the investigation. During Officer Jenerette’s testimony,

Harris’s counsel renewed the request that the court suppress the

evidence obtained from the search of the apartment and Jeep and

conduct a Franks hearing. Officer Jenerette testified that she

found Harris on the steps of the apartment building after the

shooting. She described him as bent over in pain and reluctant to

speak with her or to give her his name, although he did not appear

to her to be in shock. On cross-examination, Officer Jenerette

indicated that she never asked Harris if he had entered his

apartment, nor did he volunteer any information to that effect, but

an officer on the scene had informed her that Harris had entered

the vestibule area. She also confirmed that there was no blood

trail or other physical evidence to indicate Harris’s presence in

or near the apartment after the shooting. Detective Jones, who

helped prepare the affidavit, stated that Officer Jenerette never

told him that Harris entered the apartment.

Cooperating witness Steven Jones testified that he had known

Harris for twenty years. He described trips he had taken with

Harris to carry money from Baltimore to Houston and stated that he

had supplied Harris with cocaine two months before his first trip

to Houston. Steven Jones testified regarding a letter that Harris

8
wrote to him and another letter that he had written to Harris.

Harris objected to the introduction of portions of both letters

during Steven Jones’s testimony.

Ramona Jones testified that she met Harris in Houston while he

was there to do drug business with her boyfriend, Allah Burman.

She also testified that Burman told her that he had paid one of his

suppliers for the cocaine that was lost when Harris was shot.

Harris objected to this testimony on Fed. R. Evid. 801(d) grounds.2

The district court questioned Ramona Jones outside the presence of

the jury and determined that the two statements should not have

been admitted against Harris. Harris’s attorney requested a

severance or mistrial. The court declined to grant a mistrial, and

instead gave a curative instruction.

Agent Matthew McCormack offered information to the court

regarding an incident that occurred at trial. He stated that while

he was escorting Tilisha Wright to the witness room area, Harris

waived at Wright and took a photograph of her.

2
Fed. R. Evid. 801(d)(2)(E) provides that “a statement by a
coconspirator of a party during the course and in furtherance of
the conspiracy” is not hearsay. It is clear from the context that
Harris’s counsel was asserting that Burman’s statements to Ramona
Jones were inadmissible hearsay because they were not made in the
course of and in furtherance of the conspiracy.

9
 D.

On November 15, 2002, the jury reached a verdict, convicting

Harris of all five counts with which he was charged. The jury

found that the conspiracy distributed and/or possessed with intent

to distribute five kilograms or more of cocaine.

The jury verdict form did not, however, specifically call for

the jury to determine the amount of drugs attributable to Harris

individually. Instead, the district court determined the quantity

attributable to Harris at sentencing. After describing the

determination as a “difficult” finding to make, the district court

found that the quantity attributable to Harris was within the five

to fifteen kilogram range, and calculated the base offense level

for the conspiracy count accordingly. (J.A. at 1206-07.) The

district court applied a two-level enhancement for Harris’s role in

the conspiracy offense and a one-level enhancement for obstruction

of justice.

Harris was sentenced according to the then mandatory

Sentencing Guidelines. The district court imposed a sentence of

210 months imprisonment for the conspiracy conviction (Count One),

97 months for possession with intent to distribute (Count Two), 60

months for possessing a firearm in furtherance of a drug

trafficking crime (Count Seven), 41 months for being a felon in

possession of a firearm (Count Eight), and 41 months for unlawfully

possessing ammunition (Count Nine), with the sentences imposed on

10
Counts One, Two, Eight, and Nine to run concurrently among those

Counts, but consecutive to the sixty-month sentence on Count Seven.

Harris timely noted an appeal to this Court. The Government

cross appealed, challenging the district court’s decision to impose

only a one-level enhancement for obstruction of justice at

sentencing, rather than the two levels called for by the

Guidelines. On April 6, 2005, Harris filed a motion to remand the

case for resentencing in accordance with United States v. Booker,

543 U.S. 220 (2005). At oral argument, this court questioned both

counsel regarding the applicability of United States v. Collins,

415 F.3d 304 (4th Cir. 2005), to this appeal. Both parties

subsequently submitted supplemental filings addressing the issue.

We have jurisdiction to hear this appeal pursuant to 18 U.S.C.A. §

3742(a) (West 2000) (providing for appellate jurisdiction over a

“final sentence” entered by the district court) and 28 U.S.C.A. §

1291 (West 2006) (providing for appellate jurisdiction over “final

decisions” of the district court).

II.

Harris raises numerous challenges to his convictions, arguing

that the district court erred in (1) denying his motion to suppress

the search of his residence and vehicle, (2) denying his request

for a Franks hearing, (3)admitting certain statements of Clarence

Walker and Niam King as statements of coconspirators made in

11
furtherance of the conspiracy and admitting “any evidence after

[Harris] was expelled from the conspiracy,” (Appellant’s Br. at

29), (4) denying his motion for a mistrial due to certain testimony

of Ramona Jones, (5) admitting a letter written by Harris to Steven

Jones, (6) admitting a letter written by Steven Jones to Harris,

and (7) admitting evidence that Harris took a photograph of Tilisha

Wright, a government witness, and (8) granting an upward departure

during sentencing for obstruction of justice. We address each of

Harris’s challenges to the evidence introduced at trial before

turning to his motion to remand for resentencing in accordance with

Booker, and then we turn to the issues raised regarding the one-

level enhancement for obstruction of justice.

A.

We first address the admissibility of the evidence obtained

from the search of Harris’s apartment and vehicle. We review the

legal conclusions involved in a district court’s suppression

determination de novo and factual findings underlying the legal

conclusions for clear error. United States v. Seidman, 156 F.3d

542, 547 (4th Cir. 1998). In reviewing the denial of a motion to

suppress, we view the evidence in the light most favorable to the

Government. Id.

The Fourth Amendment’s prohibition against unreasonable

searches represents a fundamental right that “is preserved by a

12
requirement that searches be conducted pursuant to a warrant issued

by an independent judicial officer.” United States v. Hodge, 354

F.3d 305, 309 (4th Cir. 2004) (internal quotation marks omitted).

Evidence obtained in violation of the Fourth Amendment may be

subject to suppression under the exclusionary rule, meaning that it

cannot be used in a criminal proceeding against the victim of the

illegal search and seizure. United States v. Perez, 393 F.3d 457,

460 (4th Cir. 2004). Determining whether the exclusionary rule

applies in this case involves a two-step inquiry. We consider (1)

whether a substantial basis existed for a finding of probable cause

to conduct the search, and (2) if probable cause did not exist,

whether the court could nevertheless uphold the warrant under the

“good faith” exception to the exclusionary rule established in

United States v. Leon, 468 U.S. 897 (1984).

1.

We turn initially to the question of whether probable cause

existed to search the apartment and the Jeep. Probable cause only

requires “a fair probability that contraband or evidence of a crime

will be found in a particular place.” Illinois v. Gates, 462 U.S.

213, 238 (1983). “[T]he duty of a reviewing court is simply to

ensure that the magistrate had a substantial basis for . . .

concluding that probable cause existed.” Id. at 238-39 (internal

quotation marks and alteration omitted). To accomplish this task,

we look to the affidavit underlying the warrant, which “must

13
provide the magistrate with a substantial basis for determining the

existence of probable cause.” Id. at 239. The Supreme Court has

cautioned, however, “that after-the-fact scrutiny by courts of the

sufficiency of an affidavit should not take the form of de novo

review.” Id. at 236. Affidavits are to be interpreted in a

commonsense, not hypertechnical, manner, and “[a] magistrate’s

determination of probable cause should be paid great deference by

reviewing courts.” Id. (internal quotation marks omitted).

“In determining whether a search warrant is supported by

probable cause, the crucial element is not whether the target of

the search is suspected of a crime, but whether it is reasonable to

believe that the items to be seized will be found in the place to

be searched.” United States v. Lalor, 996 F.2d 1578, 1582 (4th

Cir. 1993) (citing Zurcher v. Stanford Daily, 436 U.S. 547, 556 &

n.6 (1978)). This court has adopted the rule that “the nexus

between the place to be searched and the items to be seized may be

established by the nature of the item and the normal inferences of

where one would likely keep such evidence.” United States v.

Anderson, 851 F.2d 727, 729 (4th Cir. 1988). In Anderson, the

affidavit indicated that Anderson was trying to sell a particular

gun that had been used in a murder, and we concluded that although

no specific facts established a direct link between the gun and

Anderson’s residence, it was reasonable to believe that he was

probably keeping the gun in his home. Id.

14
 The Government argues that the search of Harris’s apartment

presents a similar situation. The affidavit indicates that the men

who shot Harris were looking for money and drugs that they believed

to be in his possession, but did not find them. The affiants did

not suggest that being attacked by people demanding drugs and

money, standing alone, establishes probable cause to believe that

the victim was in fact a drug trafficker who actually had the drugs

and money sought. Rather, the affiants stated that based on their

experience and investigation of the scene, they believed that the

shooting had all the earmarks of a drug robbery. They based this

conclusion in part on their observation that the vehicle believed

to be the assailants’ getaway car had a hole in the radiator,

suggesting that the victim had returned fire, and in part on

Harris’s previous convictions for controlled substances and handgun

crimes.3 The affidavit provided that, in the experience of the

investigators, people who have drugs generally keep them in the

place where they stay or the vehicle they drive.

Harris’s primary contention, however, is that the affidavit

provides no information indicating that Apt. C, 719 N. Carrollton

St. (“the apartment”) is the place where he stays. Our precedent

suggests that such evidence is necessary to support a determination

that probable cause exists to search that place. See Lalor, 996

3
The previous convictions would have made it unlawful for
Harris to possess a firearm and ammunition.

15
F.2d at 1582 (“As for the evidence that Lalor resided at 1572

Waverly Way, no staleness problem exists. Information from one

informant and police investigation indicated that Lalor lived at

1572 Waverly Way in December 1989 and January 1990. When stopped

by a police officer on January 6, 1990, three weeks prior to the

search, Lalor gave his address as 1572 Waverly Way. . . .”).

Detective Jones testified at the motions hearing that he learned

Harris lived in the apartment from interviewing Wright and a

resident of the apartment building, Tanya Harris. He did not,

however, indicate that he had presented this information to the

magistrate.

“When reviewing the probable cause supporting a warrant, a

reviewing court must consider only the information presented to the

magistrate who issued the warrant.” United States v. Wilhelm, 80

F.3d 116, 118 (4th Cir. 1996). Because the information presented

to the magistrate did not include a reference to the statements of

the two women indicating that Harris lived in the apartment, it

cannot supply a basis for a probable cause determination. Without

this information, the magistrate could not have made an independent

determination that Harris and his drug activity were connected to

a particular second floor apartment, but would have had to infer

from the affiants’ desire to search the apartment that David Harris

must live there.

16
 The only other link the affiants provided between Harris and

the apartment was the bare assertion that Harris possibly entered

the apartment after he was shot. There was no basis supplied for

that assertion, however -- no evidence, for example, of blood

nearby, the door having been open, or witnesses having seen him

enter Apartment C, or even go upstairs. Consequently, the

statement provides no support for a finding of probable cause. See

Wilhelm, 80 F.3d at 120 (concluding that a substantial basis for a

finding of probable cause did not exist where a warrant was based

on an informant’s tip and “the magistrate judge found sufficient

indicia of reliability in the affidavit by simply accepting the

unsupported conclusions of the affidavit”).

We therefore conclude that the affidavit fell short of

establishing probable cause to search the apartment.4 In reaching

this conclusion, we bear in mind that “the right to ‘sanctity of

private dwellings’ has been held to be the right ‘ordinarily

afforded the most stringent Fourth Amendment protection.’”

Wilhelm, 80 F.3d at 121 (quoting United States v. Martinez-Fuerte,

428 U.S. 543, 561 (1976)).

4
The district court summarized Harris’s arguments that
probable cause to search the apartment did not exist, but did not
rule on the issue. The district court turned directly to Harris’s
second argument, that the good faith exception to the suppression
of evidence obtained from a deficient warrant established by the
Supreme Court in United States v. Leon, 468 U.S. 897 (1984), did
not apply.

17
 Harris makes the same arguments with respect to the search of

the Jeep. We disagree that the vehicle search was not supported by

probable cause. The affidavit provided that an eyewitness to the

shooting, Wright, told police that Harris had just exited the

driver’s seat of the Jeep when he was shot and that his assailants

demanded drugs and money and then searched through the vehicle.

The affidavit also indicated that the attacker’s car had a bullet

hole in its radiator, suggesting that Harris may have returned

fire, and that Harris had previous convictions for drug and

firearms offenses. These facts make it less likely that the attack

resulted from a case of mistaken identity or represented a random

shooting. In addition, returning fire would have required Harris’s

possession of a loaded gun, which would have been unlawful in light

of his previous felony conviction. We conclude that the magistrate

had a substantial basis for determining that probable cause existed

to search the vehicle.

2.

The Supreme Court recognized a good faith exception to the

suppression of evidence obtained from a deficient warrant in United

States v. Leon, 468 U.S. at 924-25. “[U]nder Leon’s good faith

exception, evidence obtained pursuant to a search warrant issued by

a neutral magistrate does not need to be excluded if the officer’s

reliance on the warrant was objectively reasonable.” Perez, 393

F.3d at 461 (internal quotation marks omitted). The exception

18
applies unless (1) the warrant is based on an affidavit containing

“knowing or reckless falsity,” (2) the magistrate failed to

“perform his neutral and detached function” and merely served as a

“rubber stamp” for the police, (3) the affidavit is so lacking in

indicia of probable cause as to render official belief in its

existence entirely unreasonable, or (4) the warrant is so facially

deficient that no reasonable officer would presume it to be valid.

Leon, 468 U.S. at 914-15, 923. In those four circumstances,

reliance on a warrant is objectively unreasonable.

Harris asserts that this is a case involving a “bare bones”

affidavit, so lacking in indicia of probable cause that reliance on

the warrant is unreasonable. The district court disagreed, finding

that “[t]he police were operating under the reasonable belief that

Mr. Harris lived in Apartment C and that drugs could possibly be

found there.” (J.A. at 1235.) We conclude that the district court

properly denied the motion to suppress on the grounds that the

evidence obtained in the search was covered by the Leon exception

to the exclusionary rule. In this case, the investigating officers

acted in good-faith reliance on the warrant.

In applying for the warrant to search 719 N. Carrollton,

apartment C, in Baltimore, the officers submitted a six-page

affidavit providing information that Harris was involved in drug

trafficking, that he was the target of an attempted robbery on the

street at 719 N. Carrollton, and that his assailants believed he

19
was carrying a large amount of drugs and cash. The officers also

explained the probability that specific items of evidence

connecting Harris to drug trafficking would be located in his

residence. The affidavit connected Harris to the three-story

apartment building at 719 N. Carrollton by discussing the attack on

him in front of the building that began as he drove up in his car,

his flight into the vestibule of the building during the incident,

and the officers’ observation of him sitting (with a severe gunshot

wound) on the steps of the building shortly thereafter. All of

this information connected contraband to Harris’s residence and

Harris to the building. The officers, however, overlooked the need

to state (1) that Harris lived in the 719 N. Carrollton apartment

listed in the affidavit and (2) their grounds for believing he

lived there. See United States v. Procoppio, 88 F.3d 21, 28 (1st

Cir. 1996) (“[I]t is easy to understand how both the officer

applying for the warrant and the magistrate might overlook a lack

of detail on a point often established by the telephone book.”).

The apartment to be searched is prominently identified in the

affidavit, and it is easy to read the affidavit and not realize

that the officers failed to connect the final dots specifically

linking Harris to the apartment. Because the omission was

inadvertent and not readily apparent, the officers could have had

the objectively reasonable belief that their affidavit supplied

probable cause.

20
 Harris further contends that there could be no good faith

reliance on the warrant because it contained false statements and

material omissions. He points primarily to the statement that he

“possibly entered the apartment,” (J.A. at 170), after being shot.

This statement does not assert that he did in fact enter the

apartment, but merely raises the possibility that he did, making it

difficult to characterize the statement as affirmatively false.

Moreover, as discussed above, this bare assertion contributes

nothing to the affidavit that would support a finding of probable

cause. Consequently, it is immaterial to the magistrate’s

determination. Harris also argues that the affidavit should have

noted that there was no blood trail to the apartment and that his

keys were found in the street outside the building. He

undisputedly managed to enter the vestibule of the building,

however, without his keys and without trailing blood. While the

fact that his keys were found in the street makes it less likely

that he entered the apartment after he was shot, it does not make

it impossible. More importantly, whether or not Harris entered the

apartment on that day is not dispositive. The primary reason for

searching the apartment was the belief that he was involved in drug

trafficking prior to the day he was shot and that evidence of that

involvement would be found in his home. Furthermore, Harris made

no showing that any of the allegedly false statements or material

omissions were knowingly or recklessly made. We therefore conclude

21
that the officers’ reliance on the warrant was objectively

reasonable, and, as a result, the evidence seized from Harris’s

apartment falls within Leon’s good faith exception to the

exclusionary rule.

B.

Harris argues that the district court should have afforded him

a Franks hearing. We review the district court’s factual

determinations for clear error and its legal conclusions de novo.

United States v.Najjar, 300 F.3d 466, 475 (4th Cir. 2002).

Harris moved for a Franks hearing on the ground that false

information was included in the affidavits supporting the search

warrants. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme

Court recognized a “presumption of validity with respect to the

affidavit supporting [a] search warrant,” id. at 171, and held that

a hearing on a motion to test the sufficiency of the affidavit is

required only if the defendant “makes a substantial preliminary

showing that a false statement knowingly and intentionally, or with

reckless disregard for the truth, was included by the affiant in

the warrant affidavit,” and the offending information was essential

to the probable cause determination, id. at 155-56. See also

United States v. Colkley, 899 F.2d 297, 299-300 (4th Cir. 1990)

(same). The district court found that Harris “failed to show that

these allegedly false statements and omissions were made knowingly

22
and intentionally” and denied the motion for that reason. (J.A. at

1238.) On appeal, Harris again asserts that the affidavit

contained false statements and material omissions, but again offers

no evidence that the allegedly false statements and omissions were

made knowingly and intentionally or with reckless disregard for the

truth. We therefore conclude that the district court did not err

in denying Harris’s motion for a Franks hearing.

C.

Harris objects to the admission at trial of certain statements

made by Clarence Walker and Niam King on the day that Harris was

shot. Decisions regarding the admission or exclusion of evidence

are committed to the sound discretion of the district court and

will not be reversed absent an abuse of that discretion. United

States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995).

The statements to which Harris objects were admitted against

his co-defendant, Zenobia Penn, pursuant to Fed. R. Evid.

801(d)(2)(E), which provides for the admission of statements made

by co-conspirators in furtherance of the conspiracy.5 Before a

5
During a motions hearing, the district court suggested that
“Harris [wa]s ejected from the conspiracy” on January 28, 2001, the
date he was shot, after which point he was “no longer a member of
the conspiracy.” (J.A. at 209.) The court expressed concern about
whether the attack on Harris properly could be described as in
furtherance of the drug trafficking conspiracy, rather than solely
in furtherance of the personal position of certain members. The
court then determined that to the extent the events involved a

23
court can admit such statements over an objection that the

statements do not qualify under the Rule, the court must be

satisfied that the Government has shown, by a preponderance of the

evidence, that the testimony does fall within the definition in

Fed. R. Evid. 801(d)(2)(E). Bourjaily v. United States, 483 U.S.

171, 175 (1987). In this case, there was a great deal of evidence

that a conspiracy existed, and the investigating officers described

the shooting as having the characteristics of a calculated drug

robbery. Harris had an alternative theory -- that he was shot

because he had a sexual relationship with Tilisha Wright, which

made her boyfriend, a leader in the drug trafficking conspiracy,

jealous and angry. Although Harris elicited testimony from Wright

that supports the (retribution-from-a-jealous-lover) theory, it

does not change the fact that there existed much more evidence

pointing to a drug robbery.

The district court gave a limiting instruction making clear

that the challenged statements were not to be admitted against

Harris. Harris, however, claims he was prejudiced despite the

instruction. It is hard to see how the statements challenged -- he

points primarily to the “where’s it at” and “David is dead” remarks

made to Wright -- were so prejudicial that they could not be

overcome. We therefore conclude that the district court did not

conspiracy of which Harris could not be considered a part, he would
be entitled to a limiting instruction or a severance.

24
abuse its discretion in admitting the statements against Harris’s

co-defendant. See United States v. Francisco, 35 F.3d 116, 119

(4th Cir. 1994) (“We generally follow the presumption that the jury

obeyed the limiting instructions of the district court.”).

D.

Harris contends that the district court erred in denying his

motion for mistrial due to certain testimony of Ramona Jones.

Ramona Jones testified that Harris went to Houston to do drug

business with Allah Burman and that Burman paid one of his

suppliers for the drugs that were lost when Harris was shot. The

district court agreed that the evidence should not have come in,

25
and gave a curative instruction,6 rather than granting Harris’s

request for mistrial. Harris argues this was insufficient.

“[D]enial of a defendant’s motion for a mistrial is within the

sound discretion of the district court and will be disturbed only

under the most extraordinary of circumstances.” United States v.

Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997). District courts

evaluate “whether there is a reasonable possibility that the jury’s

verdict was influenced by the material that improperly came before

it” in deciding whether to grant a motion for mistrial. United

6
The district court outlined the evidence it was excluding and
instructed the jury to disregard it. In “deleting” the evidence
from the record, the district court explained that,
Now, what are you to make of these rulings, removing
evidence from the record? And the answer is nothing.
You’re not to draw any conclusions that I’m giving you
any signal or giving you any instruction at all about Ms.
Jones or her testimony or my evaluation of the evidence
in the case.
I told you at the outset that the judge is like a
computer switch, like a gatekeeper. All I do is decide
whether the evidence comes in or is excluded and it’s
entirely up to you as the jury to determine what weight
to give the evidence and what to make of the evidence.
So I’m simply here to say you either look at it or you
can’t.
Sometimes in a trial, because a trial happens like
a live television show, it’s not prerecorded for the
jury, sometimes in a trial evidence will come in that,
upon reflection, should not have come in in the first
place and the only remedy for that is to instruct the
jury to disregard that evidence.
Again, I’m not making any evaluation of the evidence
that was given that I’m now excluding. I’m simply saying
that under the rules that govern a trial, the rules of
evidence, you should not have heard it in the first place
and, therefore, exclude it.
(J.A. at 991-92.)

26
States v. Seeright, 978 F.2d 842, 849 (4th Cir. 1992) (internal

quotation marks omitted). “Before granting a mistrial, the court

should always consider whether the giving of a curative instruction

or some alternative less drastic than a mistrial is appropriate.”

United States v. Martin, 756 F.2d 323, 328 (4th Cir. 1985).

We conclude that this case does not present extraordinary

circumstances that warrant reversing the district court’s decision.

The district court gave a curative instruction to the jury.

Although Harris argues that other than testimony from Steven Jones,

whom he describes as having “severe credibility problems,” Ramona

Jones’s testimony was the most damaging, (Appellant’s Br. at 34.),

Ramona Jones, like Steven Jones, testified pursuant to a plea

agreement. As a result, her credibility was subject to the same

type of attacks levied against Steven Jones. Moreover, the

evidence at trial was not limited to the testimony of cooperating

witnesses. Law enforcement officers, chemists, and custodians of

records for hotels and airlines also testified; non-testimonial

evidence including airline records showing that Harris had paid for

the return flights of other conspirators, a kilogram of cocaine

seized from Harris’s luggage, and a variety of drug paraphernalia

seized from Harris’s apartment was also introduced. Consequently,

we conclude that the district court did not err in denying Harris’s

motion for a mistrial.

27
 E.

Harris also challenges the admission of a letter that he wrote

to cooperating witness Steven Jones and a letter that Steven Jones

wrote to him in response. The district court’s admission of

evidence pursuant to Fed. R. Evid. 403 and Fed. R. Evid. 404(b) is

reviewed under an abuse-of-discretion standard and will not be

overturned unless it is arbitrary or irrational. United States v.

Powers, 59 F.3d 1460, 1464 (4th Cir. 1995).

1.

Harris’s letter to Steven Jones stated,

And all that I can say to that is that you are a grown
damn man just like I am and you know the life that you
chose, just like I do. So just because things get a
little uncomfortable and don’t seem to go your way, don’t
mean you supposed to be letting these people put you in
another trick bag by letting you be the fuel to this
bullshit ass fire they got going on. Steve, I been
knowing you a long time and you can never begin to
understand the respect and admiration I have always had
for you. So all I ask, don’t turn your back on the
people that you truly care about.

(J.A. at 721-22.)

The court allowed the letter to come in as evidence of

consciousness of guilt, not as evidence of criminal propensity or

bad character. The court gave the jury a careful limiting

instruction regarding the letter.7

7
The district court explained to the jury that “Harris denies
that he attempted to influence or intimidate . . . Mr. Jones.”
(J.A. at 1059.) The district court then instructed the jury:
[Y]ou may not consider the evidence about these alleged

28
 We have previously held that evidence of attempts to influence

a witness is admissible if it is related to the offense charged and

is reliable. United States v. Van Metre, 150 F.3d 339, 352 (4th

Cir. 1998). The letter here is related to the offense charged, and

is signed by Harris. The district court’s limiting instruction

ensured that the jury understood the purpose for which the letter

was admitted and the amount of weight they were permitted to accord

it. We therefore conclude that the decision to admit the letter

was neither arbitrary nor irrational.

2.

Federal Rule of Evidence 106 provides that,

When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the
introduction at that time of any other writing or
recorded statement which ought in fairness to be
considered contemporaneously with it.

Fed. R. Evid. 106. Harris introduced portions of the letter

written by Steven Jones to show that Jones was biased and hostile

. . . attempts to influence as a substitute for proof of
guilt in this case. However, if you find that Mr. Harris
did attempt to intimidate or influence a witness whom he
believed the government was going to call or had called,
you may, but are not required to, infer that the
defendant believed he was guilty of the crime for which
he is here charged.
Whether or not evidence of a defendant’s
intimidation of a witness shows that the defendant
believed that he was guilty of the crime for which he is
now charged and the significance, if any, to be given to
such evidence is for you, the jury, to decide.
(J.A. at 1059.)

29
toward him. Steven Jones identified the letter and was questioned

about portions of it, including the fact that he had signed the

letter “Yours Truly, Self-Preservation.” (J.A. at 768-71.) The

district court found that as a result, the Government could

introduce the rest of the letter to show that Jones had other

reasons for his testimony.

Harris, however, argues that the remaining portions of the

letter should not have been introduced because its probative value

was outweighed by the danger of unfair prejudice. The district

court, however, redacted certain portions it viewed as prejudicial.

(J.A. at 823-24.) Harris claims the statement that, “We both don’t

need to take that rap,” (J.A. at 830), is extremely prejudicial.

He does not, however, contend that it was unfairly prejudicial. We

conclude that the district court did not abuse its discretion in

allowing the jury access to the context in which the questioned

statements were made.

F.

During the Government’s case in chief, Special Agent McCormack

was prepared to testify that Harris took a picture of Wright during

a recess in the trial. He stated that he had been in charge of

escorting Wright to and from the courtroom. During a recess, Agent

McCormack observed Harris gesturing at Wright. Several minutes

later, Harris did a forty-five-degree turn towards her, took a few

30
steps, and took Wright’s photograph with a camera. Harris also

took other pictures at the courthouse; there was a great deal of

activity at the courthouse that day, because the Washington D.C.

area sniper suspects were present as well.8 Agent McCormack

explained that Harris also waived at Wright on another occasion,

but none of the gestures that he saw were clearly threatening. The

district court found the evidence not sufficiently clear cut to be

admissible under Rule 403, but indicated that it was a potential

sentencing issue that the court would revisit if there was a

conviction.

The district court did, however, indicate that it would allow

evidence of the picture-taking to come in during any cross-

examination of Harris. The court found that it was more relevant

on cross-examination than in the Government’s case in chief, in

part because evidence of the letter to Steven Jones, which also

suggested attempts to influence a witness, had since been

introduced. The admissibility ruling was advisory only and

intended to help Harris with his decision whether to take the

8
The snipers, John Muhammad and Lee Malvo, were responsible
for a shooting spree that took place in the suburbs of Washington
D.C. over a period of three weeks in October 2002. The shootings
were “hit-and-run” attacks that “killed men and women at random as
they went about the routine tasks of daily life,” terrifying the
capital region and ultimately claiming the lives of ten people and
injuring three more. Francis X. Clines & Christopher Drew, The
Hunt for a Sniper: The Overview; With Two Held, Police Tie Rifle in
Car to Sniper Killings, N.Y. Times, Oct. 25, 2002, at A1.

31
stand. Harris did not object to the ruling at the time it was

made. Accordingly, we review for plain error. See United States

v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983).

Under the plain error standard of review, to establish our

authority to notice an error not preserved by a timely objection,

a defendant must demonstrate (1) that an error occurred, (2) that

the error was plain, and (3) that it affected his substantial

rights. United States v. Olano, 507 U.S. 725, 733-36 (1993). If

the defendant satisfies these threshold requirements, correction of

the error is within our discretion, which is appropriately

exercised “only when failure to do so would result in a miscarriage

of justice, such as when the defendant is actually innocent or the

error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” United States v. Promise, 255

F.3d 150, 161 (4th Cir. 2001) (en banc) (quoting Olano, 507 U.S. at

736) (internal quotation marks omitted) (alteration in original)).

Although Harris contends that the challenged evidentiary ruling was

in error, he makes no argument that any error was plain, affected

his substantial rights, and seriously affected the fairness,

integrity, or public reputation of the proceedings. We therefore

conclude that the district court’s decision to allow cross

examination of Harris regarding his photography was not plainly

erroneous.

32
 G.

Harris contends that his sentence was imposed in violation of

his Sixth Amendment Right to trial by jury. In Booker, the Supreme

Court held that a district court violates the Sixth Amendment when,

acting pursuant to the mandatory Sentencing Guidelines, it imposes

a sentence greater than the maximum authorized by the facts found

by the jury or admitted by the defendant in a guilty plea. Booker,

543 U.S. at 244. Because Harris did not raise this objection at

sentencing, we review for plain error. See Olano, 507 U.S. at 733-

37. As discussed in subsection F, supra, on plain error review, we

will reverse the district court only if we (1) identify an error,

(2) which is plain, (3) which affects substantial rights, and (4)

which seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id.; United States v. Hughes,

401 F.3d 540, 547-49, 555 (4th Cir. 2005).

Harris contends that the district court made three factual

findings related to the conspiracy count (Count One) that increased

his sentence beyond that authorized by the facts found by the jury:

(1) that he occupied an intermediate place in the conspiracy,

warranting a two-level enhancement for his role in the conspiracy,

(2) that the letter to Steven Jones constituted an attempt to

influence a witness not to testify, warranting a one-level increase

for obstruction of justice, and (3) that the quantity of drugs

33
attributable to Harris was within the five to fifteen kilogram

range.

Both sentencing enhancements were based on factual findings by

the district court and were imposed under the pre-Booker mandatory

Guidelines. With regard to Harris’s role in the conspiracy, the

district court stated its view that “[Harris] falls somewhere

between people like Mr. Berman and Mr. Walker on the top of the

scale and the couriers on the bottom of the scale.” (J.A. at

1208.) The district court then explained that “Harris should not

be given a four level upward adjustment under 3B1.1,” but that he

“fits within subsection C, and therefore, I will increase [the

sentence on Count One] by two levels based upon the evidence

presented at trial and the arguments here at the sentencing.”

(J.A. at 1208.) With regard to the obstruction-of-justice

enhancement, the district court found that although neither alleged

act of obstruction of justice -- taking the photograph of Wright

and sending the letter to Steven Jones -- was “clear-cut,” the

letter did “call[] upon the ties of friendship and past intimacy in

an effort to persuade Jones not to testify in a harmful way.”

(J.A. at 1209.) Because judicial fact-finding increased Harris’s

sentence beyond the maximum sentence authorized by the jury verdict

alone, we conclude that the resulting sentence is plainly

erroneous. Although it is possible Harris would receive identical

enhancements on remand, there is nothing in the record to compel

34
that conclusion. Accordingly, we conclude that the exercise of our

discretion to correct the error is warranted. See Hughes, 401 F.3d

at 556.

The calculation of Harris’s base sentence, without the

enhancements, was also the product of judicial fact-finding. In

order to determine the base offense level, the district court was

required to determine the drug quantity attributable to Harris.

The district court determined that “the proper range to place []

Harris in [wa]s Level 32, which is calculated with respect to

between 5 to 15 kilograms of cocaine,” describing the finding as “a

difficult determination to make.” (J.A. at 1206.) Because the

jury did not make an individualized determination of the amount of

drugs attributable to Harris with respect to the conspiracy, this

factual finding increased Harris’s sentence beyond the maximum

authorized by the jury verdict alone.

Under our precedent, “specific threshold drug quantities must

be treated as elements of aggravated drug trafficking offenses,

rather than as mere sentencing factors.” Promise, 255 F.3d at 156.

As a result, specific threshold quantities must be charged in the

indictment and proven to the jury beyond a reasonable doubt. Id.

In this case, the district court did not treat the drug quantity as

an element of the offense; it instructed the jury that to convict

on Count One, it must find only two elements beyond a reasonable

doubt (1) that the conspiracy described and charged in Count One

35
existed, and (2) that the defendant “knowingly, willfully, and

voluntarily became a member of the conspiracy,” (J.A. at 1088).

The district court instructed the jury that “[t]he extent of a

defendant’s participation has no bearing on the issuance of a

defendant’s guilt,” (J.A. at 1090), and went on to explain that,

“[i]f you find that the government has proven a defendant guilty of

the conspiracy charged in Count One, that is that the alleged

conspiracy existed and that the defendant knowingly and

intentionally became a member of the conspiracy, then you must

determine beyond a reasonable doubt what type and quantity of

controlled substances are attributable to the defendant,” (J.A. at

1098). The jury verdict form, however, did not call for the jury

to make an individualized determination of the drug quantity

attributable to Harris. Instead, it simply provided for the jury

to make a finding regarding that amount of cocaine attributable to

the entire conspiracy. In explaining the form to the jury, the

district court did not tell the jury to interpret the form as

referring solely to the amount attributable to David Harris, but

simply read the form to the jury.

Because the jury verdict form did not provide for the jury to

make an individualized finding of the drug quantity attributable to

Harris, the maximum penalty authorized by the jury verdict would

ordinarily be the default penalty provision that applies when the

amount of crack cocaine attributable to a defendant is less than 5

36
grams, 21 U.S.C.A. § 841(b)(1)(C). See United States v. Collins,

415 F.3d 304, 314 (4th Cir. 2005). The base offense level for

conspiracy to distribute 5 grams of cocaine was 12. U.S.

Sentencing Guidelines Manual § 2D1.1(c)(14) (2002). In this case,

however, the jury found Harris guilty of possession with intent to

distribute one kilogram of cocaine and of conspiracy to distribute

cocaine, and the evidence that the kilogram of cocaine possessed by

Harris was connected to the conspiracy was overwhelming. We

therefore conclude that calculating a base level using a drug

quantity of up to 1 kilogram (which would provide for a base

offense level of 26) would not affect Harris’s substantial rights.

See Promise, 255 F.3d at 163.9 Because the district court,

however, used the 5-15 kilogram range to assign Harris a base

offense level of 32, and this resulted in a longer sentence than

the maximum that would have been available under the Guidelines

when using a base offense level of 26, the district court sentenced

Harris in violation of his Sixth Amendment rights as articulated in

Booker.10

9
At sentencing, Harris’s attorney stated that, “The jury did
find that he possessed that one kilo in one of the counts, so I am
not going to argue that particular one kilo,” (J.A. at 1133), and
asserted that the amount attributable to Harris was less than two
kilograms –- the one kilogram found in Harris’s luggage and a
quantity of less than half a kilogram possessed by coconspirator
Steven Jones, (J.A. at 1135-36).
10
We note that there is no Apprendi error in this case with
respect to Harris’s underlying conspiracy conviction. See Apprendi

37
 H.

In addition to arguing that he should be resentenced in

accordance with Booker and Apprendi, Harris also argues that he

should not have received a sentencing enhancement for obstruction

of justice. The government, in turn, argues that he should have

received a greater enhancement for obstruction of justice than he

did. Because sentencing post-Booker requires the district court

to correctly calculate the Guidelines range as a first step, see

United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006), these

issues are likely to arise again. We therefore address them at

this time to prevent them from resurfacing.

1.

We review the district court’s factual findings for clear

error, but if the issue on review “turns primarily on the legal

interpretation of a guideline term, . . . the standard moves closer

to de novo review.” United States v. Daughtrey, 874 F.2d 213, 217

(4th Cir. 1989).

v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.”). The default penalty
provision in 21 U.S.C.A. § 841(b)(1)(C) provides for a statutory
maximum of 20 years, which increases to 30 years if the defendant
has a prior conviction for a felony drug offense. Harris’s
sentence of 210 months on Count One does not exceed the statutory
maximum.

38
 The Government requested the obstruction-of-justice

enhancement due to (1) Harris’s having taken a picture of a

government witness during a recess and (2) the letter Harris wrote

to Steven Jones. Harris offered innocent explanations for both

actions. The district court credited his explanation with regard

to the photograph and did not use the picture-taking as a ground

for the enhancement. Harris also asserted that he wrote the letter

to Steven Jones not to dissuade Jones from testifying, but to urge

him not to lie in order to save himself if he did choose to

testify. The district court rejected that explanation, finding

that although the letter was nonthreatening, it did “call[] upon

the ties of friendship and past intimacy in an effort to persuade

Jones not to testify in a harmful way.” (J.A. at 1209.) The

district court indicated that neither alleged act of obstruction of

justice was clear cut and emphasized that Harris did not write the

letter on his own initiative, but because Jones had instructed his

wife to contact Harris. Still, the portions of the letter urging

Jones not to “be the fuel to this . . . fire” or turn his back on

someone who cares about him may be interpreted as attempting to

convince a witness not to testify in a harmful way. Thus, we

conclude that the district court’s factual finding was not clearly

erroneous.

39
 2.

The district court imposed a one-level enhancement for

obstruction of justice, rather than the two level enhancement,

because it found that the letter was nonthreatening, but was

nevertheless an attempt to dissuade a witness from testifying.

(J.A. at 39.) The Government argues that under the Guidelines, the

enhancement is all or nothing, requiring the district court to

impose a two-level enhancement or none at all. Our circuit has not

previously spoken directly to this issue, but the Seventh Circuit

has addressed it and agreed that U.S. Sentencing Guidelines Manual

§ 3C1.1 (2002) provides for two levels and two levels only. See

United States v. Gilleylen, 81 F.3d 70, 72 (7th Cir. 1996) (“In

formulating the guidelines, the Sentencing Commission certainly, if

anything, knows how to departmentalize categories of aggravating

and mitigating circumstances. . . . Had the Sentencing Commission

wanted to permit gradations of obstructions, it certainly could

have done so. It didn't, and we decline to authorize the reduction

as a judicial rule.”). We find the rationale of the Seventh

Circuit persuasive, and therefore conclude that U.S.S.G. § 3C1.1

provides only for a two-level enhancement and does not permit

gradations.

40
 III.

In sum, we affirm Harris’s convictions, finding no reversible

error, but vacate his sentence and remand for resentencing in

accordance with Booker.

AFFIRMED IN PART;
VACATED AND REMANDED IN PART

41