The Hon. John R. Tunheim, United States District Judge for the District o f 1 Minnesota, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-3002EA

_____________ 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, *

___________ Submitted: January 15, 1999 Filed: January 25, 1999

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

___________ RICHARD S. ARNOLD, Circuit Judge. Daniel Harmon, Jr., appe als his conviction on four counts: two counts of use of a c ommunications facility (in this case, a telephone) to commit a drug felony, i n violation of 21 U.S.C. § 843(b), o ne count of possession of methamphetamine with the intention of distributing it, in violation of 21 U.S.C. § 841(a)(1), and one count ofThe Hon. Henry Woods, United States District Judge for the Eastern Distric t 2 of Arkansas. -2- atte mpting 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, plu s an enhance ment of seven months because the crimes were committed while th e defen dant was on release before being sentenced on a previous conviction. See 1 8 U.S.C
. § 3147. The total sentence, 37 months, is to be served after defendant ha s completed his sentence on the previous offense. Mr. Harmon was also given a term of thr ee years on supervised release and instructed to pay a $400.00 special assessmen t ($100.00 on each count). Defendant makes two arguments on app eal. First, he contends that the evidence was i nsufficient to support the jury's verdict. The first two counts are based o n telephone conversations between the defenda nt 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 agreein g to meet her and another woman the next morning, and to bring with hi m methamphetaminefor the three of them to use together. The argument on appea l stres ses 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 effo rts, ultimately successful, to make arrangements to secure something that hi s gir lfriend wanted him to bring the next day. In the context of the previous relation s between the woman and the defendant, the details of which need not be recounted, i t was entirely reasonable for the jury to infer that the conversations were abou t methamphetamine. The girlfriend herself so testified.-3-

As to th e two substantive drug counts, possession with intent to distribute an d attemptto d istribute, the evidence was as follows. On the morning after the calls , Mr. Harmon arrived at his girlfriend's apartment. Officers were waiting for hi m outside. Immediately after spotting them, the defendant ran and jumped in a pool near the apartment. He crouched down in the pool and ch urned the water with his arms. He the n emerged from the pool. A Bic pen and tinfoil were found on his person. Th e 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 defendan t ar rivedat the apartment with methamphetamine, intending to give it to his girlfrien d and t he other woman, and that he jumped in the pool to destroy the evidence when he saw the officers. The defendant's girlfriend i dentified 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 d r ugs 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 ste p towards t he completion of the crime of distribution, and therefore qualifies as a n attempt. Defenda nt's second argument has to do with the fact that the District Court, i n reading the indictment

to the jury panel before jury selection began, inadvertently read a portion of a p aragraph captioned "ENHANCEMENT." The District Court first read the text of th e 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 abov e offenses were committed at a time the defendant had been released pending . . . well, I am not going to read-4- the enhan cement 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 f ull text of the paragraph, if the District Court had read it all, would hav e informed the jury that the government was claiming that Mr. Harmon committed th e four offenses charged while on release before being sentenced in a previous case. The Court realize d almost immediately that there was no need to read this portion of th e indictmentt o the jury, since it concerned only a sentencing factor, rather than a n 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 sto p when it did. Was it error to refuse a mistrial? We think not. Our review of a decision of this kind is for abuse o f discretion, and we defer to the judgment of the able District Ju dge that the incident was not serious enough to justify aborting the trial. The Court ha dprefaced its reading of the indictment with an admonition to the jury that th e indic tment

was not evidence, and that no weight should be given to the matter s contain edin it. Tr. 5. So a cautionary instruction of sorts had already been given

. Counsel for the defen dant did not request a further cautionary instruction, or any relief otherthan th e drastic action of declaring a mistrial. The members of the jury pane l were already aware that a previous trial had been held, because counsel for defendant had her self mentioned this fact, in the course of describing to the Court what issue s might likely arise during voir dire. Tr. 3. There was no abuse of discretion here.
Affirmed.-5-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.