United States v. Mark Higgins, Thaddeus Harrison, and Orlando Potts

Citations: 75 F.3d 332; 1996 U.S. App. LEXIS 1754Docket: 95-1389, 95-1986 and 95-1987

Court: Court of Appeals for the Seventh Circuit; February 7, 1996; Federal Appellate Court

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Mark Higgins, Thaddeus Harrison, and Orlando Potts were jointly indicted for cocaine offenses. Higgins pleaded guilty and requested an appeal, but his attorney filed an Anders brief, concluding that there were no viable appellate issues. The court determined Higgins's unconditional plea waived any objections to pretrial rulings, validated the plea process under Fed.R.Crim.P. 11, and confirmed a two-level sentence enhancement due to Higgins's supervisory role, resulting in a 121-month prison sentence. Consequently, Higgins's appeal was dismissed as frivolous.

Harrison and Potts were tried twice; the first trial ended in a mistrial when a DEA agent's statement regarding Harrison's post-arrest silence was deemed inadmissible under Doyle v. Ohio and United States v. Hale. They argued that a second trial violated the Fifth Amendment's double jeopardy protections. However, the court held that defendants who request a mistrial waive their right to a verdict from the jury, as established in United States v. Dinitz. The district judge found that the agent's statement was not intended to provoke a mistrial, allowing the second trial to proceed. The court clarified that while Miranda warnings and a defendant's silence cannot be used against them, mentioning such warnings is not inherently prohibited, provided it does not imply guilt for exercising the right to remain silent.

A statement indicating that a suspect remained silent does not inherently suggest guilt, and if it did, the judge should provide corrective guidance to the jury. In *Greer v. Miller*, the Supreme Court found that a prosecutor’s inquiry about a defendant’s silence did not violate due process, as the judge sustained an objection and instructed the jury to disregard such questions. This guidance prevents the jury from inferring guilt based on silence. In the current case, the judge curtailed an agent's testimony but should have advised the jury that the defendant, Harrison, had the right to remain silent, which should not be held against him. By opting for a mistrial instead of allowing the trial to continue, defendants forfeited their objections to retrial. The agent's testimony was irrelevant to Potts, who initially opposed a mistrial but later joined Harrison's motion. Potts' change in position appeared influenced by the judge's demeanor, although there was no evidence of coercion. The judge's preference for a joint trial was valid to save time and minimize witness demands. Defendants are entitled to express their wishes regarding trial proceedings and must accept the consequences of their choices. A defendant cannot later contest a mistrial they requested, as this could undermine the judicial process and deter future grants of mistrials. The double jeopardy clause allows defendants the right to a verdict and the ability to relinquish that right if they choose not to proceed with the jury.

Forcing a verdict in the first trial, only to reverse the conviction for a second trial, is not desired by either party. The defendant, Potts, explicitly expressed his wish against a verdict from the initial jury. The second trial commenced on October 27, 1994. Days prior, the prosecutor revealed that a fingerprint found on a cocaine package matched Harrison's prints. Harrison's legal team, informed just before the trial, cross-examined the fingerprint expert rigorously, noting discrepancies between the expert's initial report—which lacked mention of any prints—and prior assurances from the prosecutor that no fingerprint evidence would be presented. Harrison claims that this late disclosure violates his due process rights under the Brady rule. However, there is no constitutional mandate for pretrial discovery; defendants are guaranteed fair trials to differentiate the guilty from the innocent, and prosecutors must disclose favorable evidence, though not necessarily before trial. Disclosure can occur mid-trial, provided the defendant has sufficient time to utilize the evidence. Harrison's counsel was able to interview the expert and challenge the evidence during cross-examination; she did not request additional time if needed. Consequently, the court affirmed the decision.