Tuesday, January 19, 1999

Appeals court reviews Harmon's drug-linked convictions

LINDA SATTER
ARKANSAS DEMOCRAT-GAZETTE

Former prosecuting attorney Dan Harmon's quest to have his four federal drug-related convictions thrown out is now in the hands of the 8th U.S. Circuit Court of Appeals, which reviewed the case last week in St. Louis.
    The convictions stem from Harmon's Oct. 4, 1997, arrest by FBI agents outside his girlfriend's apartment in Conway.
    Prosecutors said the agents had been alerted by secretly recorded telephone conversations the previous day between Harmon and the girlfriend, Patricia Vaughn.
    They said the conversations -- recorded by agents with Vaughn's knowledge -- revealed that Harmon was bringing pornographic videos and drugs to share with the woman and a female friend of hers.
    When Harmon, former prosecutor for the 7th Judicial District of Grant, Saline and Hot Spring counties, arrived as expected outside the Westlake Apartments, some of the seven agents approached him. Startled, Harmon threw down a videotape.
    After tossing the tape, Harmon ran around a corner, shedding his shirt, and dove into a pond on the complex grounds. Agents testified they saw him up to his neck in the water, breathing heavily, and that the water appeared to be "churning," before Harmon stood up, revealing that the water was waist deep.
    Agents searched Harmon and found he had a hollow pen and some aluminum foil.
    A state chemist testified that the foil contained traces of amphetamine and methamphetamine, and that methampehtamine dissolves in water. In addition, Vaughn testified that Harmon had taught her how to smoke the drug with foil and a straw.
    The federal appellate court didn't hear oral arguments last week on Harmon's appeal, instead accepting written briefs on which the matter will be decided.
    In his brief, written by defense attorney Lea Ellen Fowler, Harmon, 53, of Benton raised two issues that he contends justify a reversal of his convictions or a dismissal of the case.
    First, he argued that the evidence at his April 13, 1998, trial was insufficient to sustain the convictions, partly because drugs weren't mentioned directly in any of the recorded conversations.
    The government, citing FBI testimony that drug dealers frequently talk "in code," responded that the conversations nevertheless made clear that Harmon "intended to use methamphetamine with the two women and engage in sexual activity with them." In conjunction with other evidence -- such as Vaughn's testimony explaining terms used in the conversations, the methamphetamine residue and Harmon's act of driving to the apartment complex -- the government argued that it clearly established guilt beyond a reasonable doubt.
    Secondly, Harmon argued that the presiding judge, U.S. District Judge Henry Woods, mistakenly refused to grant Fowler's request for a mistrial after the judge made an inadvertent, prejudicial remark in front of potential jurors.
    Government prosecutors disagreed that the remark was prejudicial, instead calling it harmless and "insignificant in the context of the trial."
    Also, Assistant U.S. Attorney Pat Harris wrote that the remark was made before questioning of potential jurors began, and was later overshadowed by Fowler's more damaging questions to witnesses that referred to Harmon's prior trial and conditions of release.
    According to the briefs, Woods made the remark while reading to potential jurors an Oct. 15, 1997, grand jury indictment outlining the charges.
    After reading the four counts - two charging Harmon with using a telephone to commit a drug felony and one each charging him with possessing methamphetamine with intent to deliver and attempting to distribute methamphetamine -- Woods said, "the above offenses were committed at a time the defendant had been released pending," and then stopped.
    Woods then said, "Well, I'm not going to read the enhancement portion of this. I am just going to read the counts."
    Fowler asked for a mistrial, and the judge denied the request, saying he hadn't read the enhancement, a provision in an indictment stating that any sentence Harmon receives should be increased because the offenses occurred while he was awaiting sentencing on earlier convictions.
    "The Court halted the reading before any potentially damaging remarks were made," Harris wrote on the government's behalf.
    Harmon's earlier convictions came in June 1997 on five of 11 federal felony charges, including racketeering by using his office to get drugs and money.
    Harmon was convicted on all four drug-related counts in the 1998 trial, and Woods sentenced him in July to the maximum 37 months in prison, to be served consecutively to the eight years he received in the racketeering case before Reasoner.

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