The Hon. John R. Tunheim, United States District Judge for the District of

1

Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-3002EA

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United States of America, *

*

Appellee, *

* On Appeal from the United

v. * States District Court

* for the Eastern District

* of Arkansas.

Daniel Howard Harmon, Jr., *

*

Appellant, *

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Submitted: January 15, 1999

Filed: January 25, 1999

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Before RICHARD S. ARNOLD and WOLLMAN, Circuit Judges, and TUNHEIM,1

District Judge.

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RICHARD S. ARNOLD, Circuit Judge.

Daniel Harmon, Jr., appeals his conviction on four counts: two counts of use of

a communications facility (in this case, a telephone) to commit a drug felony, in

violation of 21 U.S.C. § 843(b), one count of possession of methamphetamine with the

intention of distributing it, in violation of 21 U.S.C. § 841(a)(1), and one count of
The Hon. Henry Woods, United States District Judge for the Eastern District

2

of Arkansas.

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attempting to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and

846.

The District Court sentenced Mr. Harmon to imprisonment for three years and 2

one month, two and one-half years for the four counts of conviction themselves, plus

an enhancement of seven months because the crimes were committed while the

defendant was on release before being sentenced on a previous conviction. See 18

U.S.C. § 3147. The total sentence, 37 months, is to be served after defendant has

completed his sentence on the previous offense. Mr. Harmon was also given a term of

three years on supervised release and instructed to pay a $400.00 special assessment

($100.00 on each count).

Defendant makes two arguments on appeal. First, he contends that the evidence

was insufficient to support the jury's verdict. The first two counts are based on

telephone conversations between the defendant and his girlfriend. These conversations

were recorded with the girlfriend's consent and were introduced in evidence at the trial.

The girlfriend testified that each conversation had to do with Mr. Harmon's agreeing

to meet her and another woman the next morning, and to bring with him

methamphetamine for the three of them to use together. The argument on appeal

stresses the fact that neither methamphetamine nor any drugs as such were mentioned

by name during the calls. Instead, the conversation referred vaguely to Mr. Harmon's

efforts, ultimately successful, to make arrangements to secure something that his

girlfriend wanted him to bring the next day. In the context of the previous relations

between the woman and the defendant, the details of which need not be recounted, it

was entirely reasonable for the jury to infer that the conversations were about

methamphetamine. The girlfriend herself so testified.
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As to the two substantive drug counts, possession with intent to distribute and

attempt to distribute, the evidence was as follows. On the morning after the calls,

Mr. Harmon arrived at his girlfriend's apartment. Officers were waiting for him

outside. Immediately after spotting them, the defendant ran and jumped in a pool near

the apartment. He crouched down in the pool and churned the water with his arms. He

then emerged from the pool. A Bic pen and tinfoil were found on his person. The

tinfoil contained methamphetamine residue. No other methamphetamine was found.

A chemist testified that methamphetamine dissolves in water. 

It was reasonable for the jury to infer from this evidence that the defendant

arrived at the apartment with methamphetamine, intending to give it to his girlfriend

and the other woman, and that he jumped in the pool to destroy the evidence when he

saw the officers. The defendant's girlfriend identified the pen as a tool used in smoking

methamphetamine. The phone calls the previous night and the defendant's conduct the

following morning amply justify the inference that he agreed on the phone to procure

drugs and that he showed up the next day with the intention of giving them to the two

women. His appearance at the apartment house with the drugs is a concrete step

towards the completion of the crime of distribution, and therefore qualifies as an

attempt.

Defendant's second argument has to do with the fact that the District Court, in

reading the indictment to the jury panel before jury selection began, inadvertently read

a portion of a paragraph captioned "ENHANCEMENT." The District Court first read

the text of the four counts charged. This is a customary procedure, designed to let the

potential jurors know the nature of the case, in order, among other reasons, to enable

them to answer questions about their acquaintance with the parties or the evidence. The

Court then continued as follows:

The above offenses were committed at a time the defendant

had been released pending . . . well, I am not going to read
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the enhancement portion of this. I am just going to read the

counts.

Tr. 7. Counsel for the defendant then moved for a mistrial, which was denied.

The full text of the paragraph, if the District Court had read it all, would have

informed the jury that the government was claiming that Mr. Harmon committed the

four offenses charged while on release before being sentenced in a previous case. The

Court realized almost immediately that there was no need to read this portion of the

indictment to the jury, since it concerned only a sentencing factor, rather than an

element of an offense on which the jury would have to make a finding. In addition, the

Court no doubt appreciated that it might prejudice the defendant for the jury to know

that he had been previously convicted of something. So the Court did well to stop

when it did. Was it error to refuse a mistrial? We think not. Our review of a decision

of this kind is for abuse of discretion, and we defer to the judgment of the able District

Judge that the incident was not serious enough to justify aborting the trial. The Court

had prefaced its reading of the indictment with an admonition to the jury that the

indictment was not evidence, and that no weight should be given to the matters

contained in it. Tr. 5. So a cautionary instruction of sorts had already been given.

Counsel for the defendant did not request a further cautionary instruction, or any relief

other than the drastic action of declaring a mistrial. The members of the jury panel

were already aware that a previous trial had been held, because counsel for defendant

had herself mentioned this fact, in the course of describing to the Court what issues

might likely arise during voir dire. Tr. 3. There was no abuse of discretion here. 

Affirmed.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.