Tuesday, January 19, 1999
Appeals court reviews Harmon's drug-linked
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
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
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
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
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
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
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