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United States v. Harrington

United States District Court, E.D. Michigan, Northern Division

December 2, 2016



          THOMAS L. LUDINGTON United States District Judge.

         On September 23, 2015, Defendant Daniel Jason Harrington was indicted with three counts of distribution of methamphetamine and one count of criminal forfeiture. ECF No. 1. On December 9, 2015, a superseding indictment was issued charging Harrington with ten counts related to distribution of methamphetamine and a count of criminal forfeiture. ECF No. 22. On April 14, 2016, a third superseding indictment was filed, again charging Harrington with eleven counts. ECF No. 53. On July 12, 2016, Harrington filed a motion for appointment of new counsel. ECF No. 82. That motion was granted, after a hearing, on September 6, 2016. ECF No. 92. Attorney Russell J. Perry was appointed on September 13, 2016. ECF No. 93. On October 28, Defendant Harrington filed a motion to suppress evidence of a gun and ammunition, a motion to sever counts, and a motion for disclosure of confidential informants. ECF Nos. 97, 98, 99. On November 1, 2016, Defendant Morfin filed a motion for joinder in Defendant Harrington's motion. On November 14, 2016, the Court ordered the Government to respond to Defendant Harrington's motions. For the reasons stated below, the motions will be denied.


         First, Harrington argues that evidence of a gun and ammunition which law enforcement officers seized from his home should be suppressed. He explains that, when his home was searched, a handgun and box of ammunition was discovered among a codefendant's belongings. Harrington notes that he is charged with various drug-related crimes, but no crimes related to possession or use of a gun. He argues that the evidence of the firearm and ammunition is thus “immaterial and prejudicial beyond any possible probative value.” ECF No. 97 at 3. In support, Harrington cites Federal Rule of Evidence 403, which provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.


         Harrington further argues that the evidence is especially prejudicial because he is charged with possessing methamphetamine with intent to distribute in a place where a person under the age of 18 lived.

         In response, the Government argues that the firearm and ammunition challenged here is relevant because firearms are recognized tools of the drug trade. The Government cites several cases in support of the proposition that evidence of weapons is relevant to proving intent or a conspiracy to distribute drugs.

         District courts have very broad discretion in analyzing evidence under Rule 403. United States v. Newsom, 452 F.3d 593, 603 (6th Cir. 2006). A Rule 403 violation occurs if admitting the evidence would “result in ‘unfair prejudice' in that ‘the evidence [would] suggest a decision on an impermissible basis.'” United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993) (quoting United States v. Schrock, 855 F.2d 327, 333 (6th Cir.1988)). “Unfair prejudice does not mean the damage to a defendant's case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest [a] decision on an improper basis.” Newsom, 452 F.3d at 603 (quoting Bonds, 12 F.3d at 567).

         Despite Harrington's arguments, the gun is potentially relevant to the crimes with which he is charged. In drug conspiracy cases, courts frequently admit guns as evidence of a defendant's “intent to promote and protect the narcotics conspiracy.” See United States v. Marino, 658 F.2d 1120, 1123 (6th Cir. 1981) (collecting cases). See also United States v. Watz, 162 F.3d 1162 (6th Cir. 1998) (same). In Marino, the Sixth Circuit affirmed the admission of evidence regarding firearms found in the defendant's suitcase, even though the defendant had not been charged with any gun-related crimes. Id. at 1124. Rule 403 allows exclusion of prejudicial evidence, but only if the evidence's “probative value is substantially outweighed” by the danger of unfair prejudice. (emphasis added). Harrington has not demonstrated that the risk of prejudice substantially outweighs the evidence's relevance. Harrington argues that the gun was the property of a codefendant. That may be true, but that argument is one to be made at trial. The gun was found in Harrington's home, and thus it is not unreasonable to conclude that the gun was Harrington's, or at least that the gun was meant to protect the Defendants collectively in their alleged drug distribution conspiracy. Harrington also argues that the evidence is especially prejudicial because the Government is alleging that Harrington distributed methamphetamine out of a residence where minors lived. But guns are not so inherently prejudicial as to be inadmissible, when relevant to the crimes charged, any time children are alleged to have been nearby. Further, and to the extent that admission of the evidence would prejudice Harrington, a limiting instruction to the jury at trial will adequately protect Harrington. See Marino, 658 F.2d at 1124 (holding that a limiting instruction adequately protected the defendant from any unfair prejudice).


         Next, Harrington argues that Count 10 of the third superseding indictment should be severed from the other counts. Count 10 charges Harrington with knowingly possessing methamphetamine with an intent to distribute on a premises where a person under the age of 18 was present and resided. Harrington argues that Count 10 is the only count which requires proof that an individual under the age of 18 was present and asserts that Count 10 is logically and factually distinct from the remaining counts.

         In opposition to Harrington's motion to sever, the Government argues that Count 1, the conspiracy count, contains “ways and means” allegations, including allegations that Harrington and others conducted their operations out of a home where minors were present. The Government also asserts that Counts 8 and 9 charge Harrington with possessing methamphetamine with the intent to distribute, like Count 10. Thus, the Government argues that Count 10 has elements which are common to other counts.

         Pursuant to Federal Rule of Criminal Procedure 8(a), a defendant may be charged in separate counts with multiple offenses if the offenses charged “are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Courts must liberally construe this joinder rule “to promote the goals of trial convenience and judicial efficiency.” United States v. Wirsing, 719 F.2d 859, 862 (6th Cir. 1983). Joinder is appropriate when “‘the joinder counts are logically related, and there is a large area of overlapping proof.'” United States v. Graham, 275 F.3d 490, 512 (6th Cir. 2001) (quoting Wirsing, ...

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