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United States v. Harry

United States Court of Appeals, Eighth Circuit

July 22, 2019

United States of America Plaintiff - Appellee
Scott Michael Harry Defendant-Appellant

          Submitted: May 16, 2019

          Appeal from United States District Court for the Northern District of Iowa - Dubuque

          Before SMITH, Chief Judge, WOLLMAN and KOBES, Circuit Judges.

          Smith, Chief Judge.

         Scott Michael Harry challenges his conviction for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 851. Harry argues the district court[1] erred in denying his motion to suppress evidence gathered incident to a police search of a truck Harry was driving; admitting evidence of certain prior bad acts against him; and declining to admit similar prior bad acts evidence against Dennis Thul, the truck's passenger. We disagree and affirm the judgment of the district court.[2]

         I. Background

         On the morning of February 10, 2017, Investigator Adam Williams of the Dubuque Drug Task Force received a text message from a confidential informant (CI). The CI informed him that Harry had left Dubuque, Iowa, around 4 a.m. to "pick up." The CI believed Harry would be driving about four hours both to and from the "pick up" and that he believed Harry would return to Dubuque around noon. United States v. Harry, No. 2:17-cr-01017-LTS, 2017 WL 5458002, at *1, (N.D. Iowa, Nov. 14, 2017). The CI further stated that Harry would be riding with Dennis Thul in a newer, single-cab, white pickup truck registered to Thul's father, Dale. At 12:24 p.m., the CI sent a text message to Williams informing him that Harry was about one hour away from Dubuque.

         Officers interpreted "pick up" as meaning "pick up drugs." They researched Dale's vehicle registrations and identified a truck matching the CI's description. They then set up surveillance on the roads leading into Dubuque. While on surveillance, Investigator Williams identified a truck matching the CI's description and called Deputy Daniel Kearney, a K-9 officer also patrolling the highway, to inform him of the sighting.

         Shortly thereafter, Deputy Kearney observed the truck traveling at 75 mph in a 65 mph zone. He initiated a stop at 12:50 p.m. Harry was driving with Thul as a passenger. Deputy Kearney recognized Harry and Thul from previous encounters. Investigator Williams arrived at the scene within moments and approached the vehicle at 12:51 p.m. Investigator Williams and Deputy Kearney then collaborated to process the traffic violation while also searching the truck for drugs. At 12:52 p.m., Deputy Kearney requested that Investigator Williams run Harry's name and address, as Harry presented no driver's license. Less than a minute later, Deputy Kearney deployed a drug-sniffing dog on the truck. Within seconds, [3] the dog detected drugs. At 12:58 p.m., Deputy Kearney advised Harry that he would be issuing him a speeding warning. Then, at 1:03 p.m., Investigator Williams uncovered about a pound and a half of methamphetamine stashed inside a pipe in the truck's bed.

         Investigator Williams advised Harry of his Miranda rights. Harry initially denied knowledge of the drugs but subsequently claimed ownership of them, explaining that he had been paid $5, 000 to transport the drugs and that Thul was just riding along. Officers also viewed messages between Thul and Harry supporting Harry's claim that the drugs belonged to Harry and not Thul.

         Prior to trial, Harry moved to have the search evidence suppressed. Harry initially claimed the officers had not had reasonable suspicion or probable cause to stop the truck. He later amended his suppression motion to argue that the dog sniff had improperly extended the stop. The magistrate judge disagreed, and the district court adopted the magistrate judge's conclusions, finding that the CI's tip had generated reasonable suspicion for a search.[4] However, the district court additionally found that the dog sniff had not extended the stop.[5]

         Though Harry had admitted ownership of the drugs, he subsequently changed his position. He later claimed the drugs actually belonged to Thul. He contended that Thul had promised him a user amount of methamphetamine in exchange for riding along with him. Consistent with his new position, prior to trial, Harry sought permission to introduce certain bad acts evidence against Thul. He also moved to prevent the government from introducing evidence under Federal Rule of Evidence 404(b) showing certain prior bad acts he had committed. The district court granted Harry's motion in part, excluding evidence of a prior conviction for distribution of a controlled substance to a minor but allowing the government to present witnesses who would testify to Harry's prior drug distribution activities. Not surprisingly, the government moved to exclude the evidence of Thul's prior bad acts. The district court granted the government's motion in part, excluding a 2000 judgment for conspiracy to manufacture methamphetamine; a 2003 judgment for operating a motor vehicle while intoxicated; and two 2000 judgments and one 2003 judgment for possession of methamphetamine. However, it allowed Harry to present evidence of 2003 and 2005 citations for possessing drug paraphernalia and a 2006 judgment for possession of methamphetamine.

         At trial, the government offered three witnesses to rebut Harry's claim that he had not possessed the drugs with intent to distribute them. Kyle Chyma and Edgar Hernandez testified to selling Harry distribution quantities of methamphetamine, and Ashley Laufenberg testified to buying a user amount of methamphetamine from Harry.

         A jury found Harry guilty of possession with intent to distribute methamphetamine, and the district court sentenced Harry to 280 months' imprisonment. On appeal, Harry renews his argument that the officers lacked reasonable suspicion to search the truck he was driving and that the officers impermissibly extended the stop with the dog sniff. He also renews his prior bad acts arguments, claiming the district court abused its discretion in admitting Chyma's, Hernandez's, and Laufenberg's testimony and in excluding several of Thul's prior convictions.

         II. Discussion

         A. Fourth ...

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