Submitted: May 16, 2019
from United States District Court for the Northern District
of Iowa - Dubuque
SMITH, Chief Judge, WOLLMAN and KOBES, Circuit Judges.
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 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
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.
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.
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,  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.
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.
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. However, the
district court additionally found that the dog sniff had not
extended the stop.
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
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.
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.