United States v. Harris

733 F.2d 994 (2d Cir. 1984)

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Nature of the Case

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Facts

Mahlon Steward was a narcotics dealer with a lengthy criminal record, who agreed to act as an informant. Steward initiated contact with Harris (D). Steward had known Harris (D) for approximately ten years and that he had recently supplied Harris (D). with two and one-half to three kilograms of heroin for roughly $500,000 between the spring of 1980 and January 1981. Steward introduced Harris (D) to special agent John Jackson, who was posing as Steward's 'nephew.' Together they all formulated a drug deal. Eventually, after many months of contacts, the DEA arrested Harris (D) and charged him with conspiracy to distribute heroin and attempting to possess heroin with the intent to distribute. At trial, Harris (D) attempted to establish that he knew Steward was an informant and only played along with him out of fear of what would happen to him if he refused. There was some, albeit not overwhelming, support for this defense, grounded essentially on a theory of duress. Harris (D) proposed at the completion of P's case to call Hernandez, Harris's parole officer from Detroit, as his first defense witness. The proffer was that Harris (D) told Hernandez, at the time it occurred, of an encounter with some people who could cause him trouble and that Harris (D) expressed to Hernandez that the Government and people were after him and trying to set him up. Hernandez indicated that in his notes of his records and that Harris exhibited worries or paranoia over this, and further that Harris (D) was upset. Harris (D) eventually furnished the name of the person he thought was Rudy Steward. As a government employee, Hernandez Kept records and a file with regular notes and recordations, including the information above. The judge excluded this proffer, reasoning that 'it is plainly blatantly hearsay, unreliable and self-serving.' Harris (D) then made an oral offer of proof with respect to similar proposed testimony by Ira Auslander, Harris'(D) Detroit counsel; the district judge ruled 'I would exclude that on the same ground. * * * If I am wrong, I am sure the Second Circuit knows their cases.' P was convicted and appealed.