United States v. Harris ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5758
LARRY GENE HARRIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-94-202)
Submitted: December 19, 1995
Decided: January 17, 1996
Before MURNAGHAN and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Atlanta,
Georgia, for Appellant. Helen F. Fahey, United States Attorney,
James L. Trump, Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Larry Gene Harris was convicted by a jury of importing more than
a kilogram of heroin into the United States, 21 U.S.C.A. §§ 952(a)
(West Supp. 1995), 960(a)(1) (West 1981), of possessing more than
a kilogram of heroin on an aircraft arriving in the United States, 21
U.S.C. §§ 955, 960(a)(2) (1988), and of possessing heroin with intent
to distribute, 21 U.S.C.A. § 841 (West 1981 & Supp. 1995). He
appeals his convictions.* We affirm.
When Harris arrived at Dulles Airport in Northern Virginia on a
flight from India, one of his suitcases contained only a few saris but
was suspiciously heavy. A drug detection dog alerted to it. An x-ray
examination showed hidden compartments in the sides of both halves
of the suitcase which proved to contain more than four kilograms of
heroin. The bag containing the heroin had a baggage tag which
matched a claim tag in Harris's travel folder and was in sequence with
the claim tags on Harris's other two checked bags. Harris was charged
with importation of more than one kilogram of heroin, possession of
heroin on an aircraft arriving in the United States, and possession of
heroin with intent to distribute. All these events were alleged to have
occurred in Loudoun County, in the Eastern District of Virginia.
During jury selection, one member of the venire, Mr. Blakeslee,
asked whether the defendant would be required to testify. When told
that the defendant would not be required to testify or to explain his
decision if he chose not to testify, Mr. Blakeslee said that would inter-
fere with his objectivity. He was excused. Defense counsel immedi-
ately moved for a mistrial on the ground that Blakeslee's comments
might have biased the entire venire. The district court denied the
motion, but subsequently explained the defendant's right not to testify
_________________________________________________________________
*Harris has withdrawn his challenge to his sentence.
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and asked whether any jurors would be influenced by Blakeslee's
remarks. None said they would be influenced.
During its case in chief, the government failed to establish that
Dulles Airport is in the Eastern District of Virginia, although a gov-
ernment witness testified that the airport is in Loudoun County, Vir-
ginia. Defense counsel moved unsuccessfully for acquittal on the
ground that venue had not been proved.
Harris testified that the suitcase did not belong to him, even though
it had his baggage tag on it. He said he bought a similar suitcase at
a bazaar in India to carry home saris and other souvenirs he pur-
chased. He said he did not see the clerk at the airport in New Delhi
place the baggage tags on his bags. He insisted that his third baggage
tag must have been placed on someone else's suitcase because his
prayer rugs and certain items he purchased were not in the suitcases.
He said that he did not realize that his belongings were missing, even
during the customs inspection.
On appeal, Harris first argues that the dismissed juror's comments
potentially biased all the other jurors and that the district court should
have granted a mistrial on this ground or dismissed the entire venire.
He further states in his reply brief that "it is not inconceivable" that
the juror's comments forced him to testify because he feared a nega-
tive reaction from the jury if he failed to testify.
The decision to dismiss a juror, or the whole venire, is within the
district court's discretion. United States v. Jones, 696 F.2d 479, 492
(7th Cir. 1982), cert. denied, 462 U.S. 1106 (1983). The district court
instructed the remaining members of the venire that Harris had an
absolute right not to testify and that no inference could be drawn from
a defendant's decision not to testify. No jurors stated that they were
affected by the dismissed juror's remarks. We find that the district
court did not abuse its discretion or commit reversible error. See
United States v. Seeright, 978 F.2d 842, 849-50 (4th Cir. 1992) (when
extraneous information introduced into jury deliberations, the district
court did not abuse its discretion in dismissing only the offending
juror and denying a mistrial after inquiry as to effect on other jurors).
Next, we find that venue was adequately proved. In federal crimi-
nal trials, the government has the burden of proving that the defendant
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committed the crime in the district where he is being prosecuted;
venue may be proved by a preponderance of the evidence. United
States v. Burns, 990 F.2d 1426, 1436 (4th Cir.), cert. denied, ___ U.S.
___, 61 U.S.L.W. 3819 (U.S. June 7, 1993) (No. 92-8621). It may be
established by direct or circumstantial evidence. United States v.
Martinez, 901 F.2d 374, 376 (4th Cir. 1990). Harris concedes that the
government proved that the offense occurred within the jurisdiction
of the district court. However, he contends that the government failed
to "establish venue for the date of the alleged crimes," and was thus
relieved of having to prove an essential part of its case. Because it is
abundantly clear that venue was proper in the Eastern District of Vir-
ginia, the district court did not err in finding that venue had been ade-
quately established and denying the motion for acquittal. See United
States v. Hatchett, 31 F.3d 1411, 1424 (7th Cir. 1994) (proof that
crime occurred in location within district was adequate to establish
proper venue).
Last, we find that the evidence was sufficient to uphold the convic-
tion. A conviction must be affirmed if there is substantial evidence,
viewed in the light most favorable to the government, to support a
finding of guilt. Glasser v. United States, 315 U.S. 60, 80 (1942). Cir-
cumstantial and direct evidence are both considered, and the govern-
ment is given the benefit of all reasonable inferences from the facts
proven to the facts sought to be established. United States v. Tresvant,
677 F.2d 1018, 1021 (4th Cir. 1982).
With regard to the charges of knowingly importing and knowingly
possessing more than a kilogram of heroin on an aircraft (Counts 1
and 2), the question for the jury was one of credibility. Harris asked
the jury to believe that the suitcase containing heroin was not his and
that his claim tag had been placed on a nearly identical bag. Yet,
when the bag was opened during the customs inspection, Harris did
not disclaim the bag. The evidence was sufficient to convict unless
the jury chose to believe Harris. The jury's decision not to believe
Harris is not reviewable on appeal. United States v. Saunders, 886
F.2d 56, 60 (4th Cir. 1989).
The critical element of the third count (possession of more than a
kilogram of heroin with intent to distribute) was the intent to distrib-
ute. Intent to distribute can be inferred when the amount of the con-
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trolled substance is larger than would be expected for personal use.
United States v. Fisher, 912 F.2d 728, 730 (4th Cir. 1990), cert.
denied, 500 U.S. 919 (1991). Harris possessed more than four kilo-
grams of heroin, an amount which easily demonstrated the intent to
distribute. Consequently, the evidence was sufficient to support the
jury's verdict on all three counts.
We therefore affirm the conviction and sentence. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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