Tuesday, January 26,1999

Drug convictions of ex-prosecutor affirmed

BY LINDA SATTER
ARKANSAS DEMOCRAT-GAZETTE

A three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis has affirmed the April 1998 drug-related convictions of former Prosecuting Attorney Dan Harmon of Benton.
    In a ruling released Monday, Circuit Judge Richard S. Arnold of Little Rock wrote that Harmon failed to show in his appeal that there was insufficient evidence to support the jury’s verdict or that he was prejudiced by a judge’s inadvertent remark in front of jurors.
    Joining Arnold in the decision were Circuit Judge Roger L. Wollman of Sioux Falls, S.D., and U.S. District Judge John R. Tunheim of Minneapolis.
    Harmon, 53, was the prosecuting attorney for Arkansas’ 7th Judicial District, which then included Grant, Saline and Hot Spring counties, from 1979 until 1980, and again from 1991 through 1996, when he was forced to resign in a plea agreement involving a set of state misdemeanor charges.
    The 37-month sentence he received for the four drug convictions that were affirmed Monday stemmed from an October 1997 incident at a Conway apartment complex.
    He must serve the sentence after he completes a 97-month term imposed in June 1997 for his convictions on one count of racketeering, three counts of conspiring to commit extortion and one count of conspiring to possess and distribute marijuana — though he also is appealing those convictions.
    At the time of his arrest outside the Conway apartment of his girlfriend, Harmon was supposed to be confined to his home pending sentencing for the earlier racketeering conviction, which alleged that he used his prosecutor’s office as a crime organization to obtain money and drugs.
    Consequently, seven of the 37 months he must serve for his drug convictions were a penalty enhancement for violating terms of his supervised release in the other case.
    In his appeal, discussed last week when the appellate panel met in St. Louis, Harmon contended that his convictions were largely based on secretly recorded telephone conversations in which federal prosecutors contended he was arranging to bring drugs to the apartment complex, when in fact no drugs were ever mentioned by name during the conversations.
    To that, Arnold wrote, "in the context of the previous relations between the woman and the defendant, ... it was entirely reasonable for the jury to infer that the conversations were about methamphetamine. The girlfriend herself so testified."
    Arnold also wrote that "it was reasonable for the jury to infer from [other] evidence that the defendant arrived at the apartment with methamphetamine, intending to give it to his girlfriend and the other woman, and that he jumped in the pool to destroy the evidence when he saw the officers."
    Harmon’s convictions were on two counts of using a telephone to commit a felony, and one count each of possession of methamphetamine with the intent to distribute, and attempting to distribute methamphetamine.
    Harmon had also complained in his appeal that when U.S. District Judge Henry Woods read the indictment outlining the charges before jury selection, he inadvertently began reading the penalty enhancement portion of the document, indicating that Harmon had a prior conviction.
    But the appellate court sided with the U.S. attorney’s office in noting that "the Court did well to stop when it did. Was it error to refuse a mistrial? We think not. ... we defer to the judgment of the able District Judge that the incident was not serious enough to justify aborting the trial."

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