United States v. Harris

United States Court of Appeals
For the First Circuit

No. 10-2009

UNITED STATES OF AMERICA,

Appellee,

v.

ANTHONY C. HARRIS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Torruella, Boudin and Dyk,*

Circuit Judges.

Kathleen J. Hill, by appointment of the court, with whom Law
Office of Kathleen J. Hill was on brief for appellant.
Anthony C. Harris on brief pro se.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief for appellee.

October 14, 2011

*
Of the Federal Circuit, sitting by designation
 BOUDIN, Circuit Judge. Anthony Harris now appeals from

his conviction on five counts under the Criminal Code for his

participation in an armed robbery of the Hannaford Supermarket

("Hannaford") in Dover, N.H. Because Harris argues inter alia that

the evidence against him was insufficient, we begin with a summary

of evidence at trial taken in the light most favorable to the

government. United States v. Luna, 649 F.3d 91, 96 n.2 (1st Cir.

2011).

On September 23, 2008, Orlando Matos proposed a robbery

of the Hannaford to his brother-in-law, Thomas Peterson, and to

Harris, who was Peterson's friend. All three agreed to a plan to

rob the Hannaford. Matos and Harris were to provide guns

(respectively, a .380 caliber revolver and a stolen .25 caliber

hand gun), Harris was to furnish and drive the get-away car, and

the three men were to divide the proceeds equally.

The next night, the conspirators twice scouted the

Hannaford. During the second trip and about an hour before the

robbery, Harris entered and checked out the store, purchased some

gloves and was caught on its surveillance camera wearing a

distinctive New York Yankees hat. After Harris described the

inside of the store to Matos and Peterson, the conspirators

retrieved the truck they had left in a nearby apartment complex to

use as the get-away car.

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 At 10:47 p.m. Matos and Peterson entered the Hannaford

while Harris waited in the truck. While Matos held employees and

customers at gunpoint and took their money, Peterson took about

$4,700 from the store's cash office. Fleeing to the truck, which

Harris had kept running, Peterson dropped his cell phone. Shortly

thereafter, the three men switched to a car owned by Harris'

girlfriend and drove to a hotel in Massachusetts where they split

the money, receiving about $1,700 each.

Matos and Peterson eventually moved to the Wyndham Hotel

in Andover, Massachusetts. Harris departed for New Hampshire,

expecting to return in a few days. In the meantime, police entered

the hotel room and found money from the robbery, a case belonging

to Harris that the conspirators used to hold the robbery money, the

two guns, Harris' distinctive Yankees hat which Peterson had

borrowed, and stationery on which Matos had written Harris' cell

phone number. When Dover police were notified of this trove, they

set up a voluntary interview with Harris on October 6, 2008 (the

"October 2008 interview").

At the interview, Harris admitted to knowing Peterson, to

owning a multi-colored Yankee hat like that recovered from the

Wyndham, and to buying gloves at the Hannaford on the night of the

robbery. The interview ended when Harris refused the police's

request for a DNA sample. In January 2009, the Dover police

arrested Harris for his participation in the robbery.

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 Harris was indicted on February 4, 2009, on four counts

relating to the robbery, arraigned, and then made the subject of a

superceding indictment; the latter added three counts relating to

the Hannaford robbery and two more (later withdrawn by the

government and so irrelevant here) relating to a separate robbery.1

Harris was arraigned on this new indictment on August 28, 2009. He

was tried in a week-long trial beginning September 1, 2009.

At the trial, Matos testified for the government

confirming Harris' planning and participation in the robbery. The

government also offered the surveillance video and various

telephone records linking Harris to the robbery and to Matos and

Peterson. For example, records showed calls to Peterson's

girlfriend from Harris' phone after the robbery, presumably because

Peterson borrowed the phone, having dropped his own at the scene.

It also showed that Harris called Peterson seven minutes before the

robbery, seemingly to test a warning signal that the former could

use to alert the latter.

The jury convicted Harris on counts 1-4 (the original

robbery counts, use of a firearm and the felon in possession

1
The counts relating to the Hannaford robbery were for
conspiracy to commit robbery, 18 U.S.C. § 1951 (count 1); aiding
and abetting robbery, id. (count 2); use of a firearm during and in
relation to a crime of violence, id. § 924(c)(1)(A) (count 3);
possession of a firearm by a convicted felon, id. § 922(g)(1)
(count 4); possession of a stolen firearm, id. § 922(j) (count 7);
transporting a stolen firearm, id. § 922(i) (count 8); and
transporting a stolen motor vehicle, id. § 2312 (count 9).

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counts) and count 7 (possessing a stolen firearm), acquitting him

on the remaining two (counts 8 and 9). On August 2, 2010, Harris

was sentenced to 264 months. Harris now presents a cornucopia of

challenges to his conviction. We take them in order of their place

in the chronology of the district court proceedings.

Harris' Competency. In February 2009, the district

court, at the request of Harris' first counsel who was

investigating an insanity defense, ordered a psychiatric evaluation

as to whether Harris was competent to stand trial. After the

examination, a forensic psychologist's report was filed concluding

that Harris was competent to stand trial. Harris now argues that

the district court should have held a formal hearing--preferably

prior to his arraignment, where the court also should have required

him to plead personally.

No request for a formal hearing was made in the district

court, and, forfeiture aside, there was no error. Absent unusual

circumstances, a judge is not obliged to hold a formal hearing

after an expert affirms the defendant's competency, unless someone

or some circumstance provides good reason for doing so. United

States v. Lebron, 76 F.3d 29, 32 (1st Cir.), cert. denied, 518 U.S.

1011 (1996). Here, Harris' original defense counsel sought no

hearing and Harris' second defense counsel saw so little basis for

having the examination that he claimed that the examination should

not have stopped the speedy trial clock.

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 As for the judge, when Harris tried to resurrect the

issue of his competency at sentencing, the district judge responded

to Harris: "I observed you throughout the trial. I've observed

you in many pretrial proceedings. . . . You're an intelligent

person who understands your surroundings and exercises judgment.

There's no question you were able to understand the proceedings and

assist your counsel at trial." Cf. United States v. Pryor, 960

F.2d 1, 2 (1st Cir. 1992).

Turning to counsel's entry of the plea at the original

arraignment, it is perhaps "preferable that defendant plead

personally," 1A Wright & Leipold, Federal Practice and Procedure:

Criminal § 161, at 128-29 (4th ed. 2008). But the not guilty plea

at the arraignment represented Harris' continuing position, and

anyway he was ultimately re-indicted and re-arraigned and makes no

complaint about the new arraignment. Nor does Harris even hint at

any prejudice from having counsel answer for him in the original

arraignment.

Speedy Trial Act. Harris (in his supplemental pro se

brief) argues that the district court erred in denying a defense

motion to dismiss under the Speedy Trial Act, 18 U.S.C.

§ 3161(c)(1), based on the delay between his indictment on February

4, 2009 and trial beginning September 1, 2009. The Speedy Trial

Act requires that trial commence within 70 days of the indictment.

Id.

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 The district court excluded for speedy trial purposes the

time (1) between February 4 and April 30, 2009, for Harris'

competency exam, 18 U.S.C. § 3161(h)(1)(A), and (2) between March

20 and July 10, 2009 for two continuances of trial granted for then

co-defendant Peterson, id. § 3161(h)(6) & (7), leaving only 53

countable days between July 10 and September 1 when Harris' trial

began--well within the 70 days required by the Speedy Trial Act,

id. § 3161(c)(1). See United States v. Harris, 2009 WL 2824729,

No. 09-cr-33-JL (D.N.H. Aug. 31, 2009).

Harris says that the competency evaluation should not

have been ordered. But Harris' counsel had sought such a

psychiatric evaluation because his interactions with Harris

indicated to him Harris may have had a medical condition affecting

his understanding. Even though this was in aid of a possible

defense, counsel's request gave the court "reasonable cause to

believe that the defendant may presently be suffering from a mental

disease or defect rendering him mentally incompetent." 18 U.S.C.

§ 4241(a).

Harris also argues that the continuances should not have

been granted, but the grounds presented by co-defendant's

counsel--the need for "reasonable time necessary for effective

preparation," 18 U.S.C. § 3161(h)(7)(B)(iv)--are ones we have

routinely held sufficient to grant continuances and exclude the

time under the Speedy Trial Act. See, e.g., United States v.

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Joost, 133 F.3d 125, 130 (1st Cir.), cert. denied, 523 U.S. 1087

(1998).

Lastly Harris' pro se submission says that had the judge

not excluded more than 30 days for the competency examination, cf.

18 U.S.C. § 4247(b), there would be no Speedy Trial Act violation.

Defense counsel's own continuances, which we have readily

sustained, overlap with much of the competency inquiry; and even if

only 30 days were properly excluded for the latter inquiry, the

trial began within the 70 days allowed for all unexcluded delay.

Harris' counsel in this court makes a different argument,

namely, that Harris was entitled to defer the trial for 30 days

after new counts were added and that the trial judge erred in

accepting a waiver of this asserted right without adequately

assuring that Harris' rights were adequately protected. The trial

judge assumed Harris had a right to such postponement, but see

United States v. Rojas-Contreras, 474 U.S. 231, 236-37 (1985),

severed the new counts for a later trial and then--after Harris and

his counsel conferred--accepted Harris' waiver following a lengthy

colloquy and a signed waiver by Harris.

Harris' counsel makes no serious effort to show that the

waiver colloquy was inadequate but argues primarily that trial

counsel could not adequately prepare for the new counts without

more time. However, the government dismissed before the trial the

two new counts that related to a different robbery, and the only

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new count resulting in a conviction rested on the fact that Harris'

firearm had been stolen. Anyway, as we later explain, what is

effectively an attack on counsel's competence is premature.

Refusal to provide DNA evidence. At trial, a police

witness testified, in response to a question by defense counsel,

that Harris in his pre-arrest voluntary interview had declined to

provide DNA evidence. Harris' brief says that this violated

Harris' Fifth Amendment right not to incriminate himself, Griffin

v. California, 380 U.S. 609 (1965). The brief also argues that a

cautionary jury instruction warning the jury about inferences to be

drawn from the refusal was incomplete, prejudicial, and given too

late.

Ordinarily, a party who elicits evidence would waive any

claim that its admission was error, United States v. Lizardo, 445

F.3d 73, 84 (1st Cir.), cert. denied, 549 U.S. 1007 (2006); United

States v. Vachon, 869 F.2d 653, 658 (1st Cir. 1989). Still, on

direct, the government avoided bringing out Harris' refusal but

later argued that defense counsel by further questions had opened

the door to the issue. When the judge without ruling on this claim

offered defense counsel the alternative of bring out the DNA

refusal; counsel might have thought that he now had no choice.

However, Griffin aimed to protect a constitutional right

not to testify; but the Fifth Amendment does not prevent a

defendant from being compelled to provide blood and fingerprints,

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and to stand in a lineup. E.g., United States v. Hubbell, 530 U.S.

27, 35 (2000); United States v. Wade, 388 U.S. 218, 221-23 (1967).

And unlike Doyle v. Ohio, 426 U.S. 610, 619 (1976), defendant could

not have been misled into silence by Miranda warnings since he was

not under arrest and nothing indicates that Miranda warnings were

given.

Whether a refusal to provide forensic evidence would

permit a rational inference of guilt depends (like flight) on the

circumstances, and evidence of such a refusal might well be

impermissible under some circumstances. Cf. United States v.

Moreno, 233 F.3d 937, 940-41 (7th Cir. 2000). However, Harris'

opening argument had suggested that the government's case was

flawed because of a lack of DNA evidence, and the government was

entitled to respond that Harris had declined to provide it. United

States v. McNatt, 931 F.2d 251, 256-58 (4th Cir. 1991), cert.

denied, 502 U.S. 1035 (1992). Further, the judge cautioned the

jury as to drawing an adverse inference.

As for the instruction, the judge advised the jury,

without objection, as follows:

A person has no legal obligation to
voluntarily provide information or things
requested by investigators. There are many
reasons why such a person might decline to
provide such information or things. You
should not conclude or infer that the
defendant was predisposed to commit criminal
acts because of his alleged refusal to
voluntarily provide such information or
things. You may only consider the evidence

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 presented on this issue within the context of
the particular circumstances of this case.

Harris argues that this did not clearly forbid an

inference of guilt since it referred in the third sentence to a

narrower and more specific inference. It would have been clearer

to mention inference of guilt as well, but that was strongly

suggested by the third sentence. Taking the instruction as a whole

and the evidence against Harris, there is no serious chance that

the alteration proposed--or giving the instruction earlier--would

have altered the outcome and so there was no plain error. United

States v. Olano, 507 U.S. 725, 733-35 (1993).

Sufficiency of the evidence. Harris appeals from the

denial of his motion for judgment of acquittal made at trial. Fed

R. Crim. P. 29. Although our review is de novo, we examine the

evidence in the light most favorable to the verdict and need only

conclude that the evidence would permit a rational fact-finder to

conclude beyond a reasonable doubt that defendant committed the

charged crime. United States v. Troy, 583 F.3d 20, 24 (1st Cir.

2009).

The insufficiency claim here is hopeless. The government

presented Matos, who engineered the robbery, to give a complete

account of the robbery, its planning and aftermath, and Harris'

role. Matos had a motive to curry favor with the government, but

this was brought out on cross-examination and reinforced by an

instruction. The jury, having heard Matos testify and be

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questioned about supposed inconsistencies, chose to credit his

testimony, as it was entitled to do. United States v. Shelton, 490

F.3d 74, 79 (1st Cir.), cert. denied, 552 U.S. 894 (2007).

Much worse for Harris, ample hard evidence corroborated

Harris' involvement. The video and his admission showed him to be

in the store shortly before the robbery, telephone records

confirmed exchanges with Matos and Peterson, Harris' case, hat and

cellphone number were in the Wyndham with the other two robbers,

and calls from Harris' phone were made to Peterson's girlfriend

after Peterson dropped his phone at the robbery.

Further, there was nothing significant to weight on the

other side of the scale. Harris offered little defense beyond

pointing to Matos' motive to lie and to the lack of DNA evidence,

but the former was offset by the corroborative hard evidence and

the latter by Harris' own refusal to provide DNA. On appeal,

Harris does not even explain what reasonable doubt a jury could

have had, given the evidence on the government's side.

Harris' counsel and alleged government wrongdoing. In

his appellate brief, Harris makes two further claims: that Harris'

trial counsel provided inadequate representation and that the

government used false testimony and violated its obligations under

Brady v. Maryland, 373 U.S. 83 (1963). Neither claim was raised in

the district court, and the record provides no adequate basis for

us to consider either of them.

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 The claims against counsel are threefold but only one of

them appears significant. Having to discredit Matos at almost any

cost, defense counsel used in cross-examination an agreed statement

of facts used in Matos' own plea proceedings. The agreed statement

contained statements summarizing what Harris' girlfriend would have

said about the involvement of all three robbers. Given that the

agreed statement was given to the jury, this might well seem to

call for explanation by trial counsel.2

Part of the explanation appears to be that, at the time,

both the government and Harris expected that the girlfriend would

testify, so her prior statement would not necessarily have

mattered. But we cannot know for sure how counsel would justify

his decision on this or either of the other two choices now

criticized on appeal. Thus, here as in most cases the defendant's

remedy is a collateral attack proceedings. United States v. Wyatt,

561 F.3d 49, 52 (1st Cir.), cert. denied 129 S. Ct. 2818 (2009);

United States v. Torres-Rosario, 447 F.3d 61, 64 (1st Cir. 2006).

Further, even if counsel made an error severe enough to

satisfy the Strickland standard, Strickland v. Washington, 466 U.S.

668, 687 (1984), Harris would still have to persuade a habeas court

2
Although other portions of the statement were used by Harris
in cross-examination, the government's brief says that neither
Harris nor the government brought the girlfriend's statements to
the attention of the jury during the trial. Harris filed no reply
brief and we have found no other indication to the contrary. Just
what, if anything, was later read by the jury is unclear.

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that counsel's mistake had likely altered the outcome of the trial.

Given the other evidence against Harris, it might be quite

difficult to show that any references to the girlfriend's

comments--a subject not even adverted to in the government's

closing--likely altered the outcome.

Even less need be said about charges that the government

used false testimony or withheld exculpatory evidence. The

government has provided colorable responses to the several charges,

which are themselves far from self-evident; but there is no

possible way either to test or sustain them on the present record,

none of the charges having been aired in the district court. If

that omission is not fatal, Harris may pursue them on collateral

attack.

We have considered several other claims made by Harris'

counsel and by Harris himself in his pro se brief but none requires

separate discussion. Although the brief filed by Harris' counsel

is energetic and extensive, nothing persuades us that any

prejudicial error was committed or that Harris was wrongly

convicted.

Affirmed.

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