United States v. Kelvin Harris and James Archibald (11th Cir. August 2021)

The Federal Docket

August 16, 2021

Firearm Offenses/924(c) – There was sufficient evidence that the defendant’s possession of a firearm was in furtherance of a drug offense where the defendant explicitly carried a gun to serve as armed protection for drug couriers.

Jury Instructions – It is not plain error for a trial court to fail to sua sponte advise the jury that it is entitled to a “read-back” of a witness’s testimony where the jury requests a transcript.

Juries/BatsonA defendant cannot establish a prima facie case of discrimination only by showing that a stricken juror was African American and that there is no reason for finding him or her unqualified.

Kelvin Harris and James Archibald were convicted of drug and firearm offenses in a “reverse sting police corruption case” where the two defendants were paid to protect undercover law enforcement officers pretending to be “drug couriers” during drug deliveries. On appeal, they defendants challenged the sufficiency of the evidence, argued the Government improperly struck a juror based on race, and claimed that the trial court erred in not providing the jury with a transcript of Archibald’s testimony.

The Eleventh Circuit affirmed both mens’ convictions under plain error review since the defendants had not moved for acquittal on the specific grounds as in their appeals. Regarding the drug conspiracy count, the Court noted that, throughout the course of the defendants’ work with other corrupt officers (who ended up cooperating with the Government) and the undercovers acting as drug dealers, the defendants had made clear on multiple occasions that they were “in” and “all in” to continue working with the drug dealers. The defendants had discussed the need to only work with officers they trusted and to conceal the money they were being paid.

The Court also affirmed their conviction on the substantive attempt to possess cocaine with intent to distribute count. While Harris was not present for most of the planning of the delivery, he knew he was being paid $4,000, he helped move coolers of cocaine, and was told by a drug dealer that he had helped move “100 kilos” that month. The evidence against Archibald included his post-arrest interview and trial testimony where he acknowledged knowing that he had been protecting drugs based on his conversations with the undercover officer acting as a dealer. The Court also noted that the two officers and other corrupt officers had created “code words” to discuss their work protecting drugs.

The Court affirmed Harris’ conviction for possessing a firearm in furtherance of the drug offenses. Harris made statements to other officers stating that he “had to carry” a gun wherever he went, he was being paid to provide armed protection for drug couriers, and he had confirmed to other corrupt officers that he had a firearm when asked during their jobs.

The Court also rejected Archibald’s arguments regarding his entrapment defense, where he argued that Government had not proved that he was predisposed to commit the crime. Archibald had testified that he did not know what was going on until much later in the offense, when an undercover officer showed him kilos of cocaine, and that he was extremely nervous and scared when he was initially approached and asked to help protect the undercover couriers. The Court countered that Archibald willingly accepted the “opportunity” offered to him by another corrupt officer, he admitted he was not coerced into taking part in the scheme, and he had an opportunity to withdraw. The Court also cited substantial evidence including his post-crime conduct, where Archibald discussed ways to avoid detection by law enforcement and suggested to his co-defendants that they had gained the drug dealers’ trust by handling the drugs directly. The Court affirmed the district court’s decision not to instruct the jury on duress, since Archibald “had numerous reasonable opportunities to inform the police of his predicament.”

The Court also rejected Harris’ claim that the district court erred in not dismissing the indictment based on the Government’s cooperator, a corrupt-cop-turned-informant, testifying falsely before the grand jury. The Court reasoned there was no intentional or material false testimony.

The defendants also argued that the Government had improperly struck a juror based on race. The Court rejected this argument, first holding Harris failed to establish a prima facie case where his lawyer simply argued that the struck juror was black and there was no reason to disqualify him other than race. The Government had used only one peremptory strikes on an African American juror and other African American jurors were included in the final panel.

Finally, the Court rejected the defendants’ argument that the trial court erred in failing to inform the jury that it was entitled to a “read-back” of Archibald’s testimony when the jury asked for it. The Court held this was not plain error as there was no case law suggesting a trial court must sua sponte inform the jury that it is entitled to a read-back of testimony where there is no transcript yet.

On appeal from the Southern District of Florida
Opinion by Marcus, joined by J. Pryor and Newsom

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

Scroll to Top