US v. Harri

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Michael Boudin, Appellate Judge and Timothy Belcher Dyk, Appellate Judge. Published. [10-2009]

Case: 10-2009

Document: 00116276126

Page: 1

Date Filed: 10/14/2011

Entry ID: 5587824

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

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BOUDIN, Circuit Judge.

Date Filed: 10/14/2011

Entry ID: 5587824

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.
rob

the

Hannaford.

Matos

and

All three agreed to a plan to
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
Hannaford.

next

night,

the

conspirators

twice

scouted

the

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

distinctive New York Yankees hat.
inside of

the

store

to

camera

wearing

a

After Harris described the

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.
government

also

offered

the

surveillance

video

and

The

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.
court,

at

the

request

of

In February 2009, the district
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.

psychiatric

But

evaluation

Harris'

because

counsel

his

had

sought

interactions

with

such

a

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.

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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.

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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

impermissible under some circumstances.

refusal

might

well

be

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.
R. Crim. P. 29.

Fed

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
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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.
in

the

store

The video and his admission showed him to be

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,
mattered.

so

her

prior

statement

would

not

necessarily

have

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

difficult

to

evidence

show

that

against
any

Harris,

references

it
to

might
the

be

quite

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.
is

energetic

prejudicial

and

error

Although the brief filed by Harris' counsel
extensive,

was

nothing

committed

convicted.
Affirmed.

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or

persuades
that

Harris

us

that

was

any

wrongly