                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 02-1036
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *    Appeal from the United States
      v.                                  *    District Court for the
                                          *    Northern District of Iowa.
Jermaine Harris,                          *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: June 11, 2002
                                 Filed: October 31, 2002
                                  ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and MURPHY, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

       Jermaine Harris was indicted after a search of his home revealed a weapon,
ammunition, and drugs. He pled guilty to the weapons charges and was convicted by
a jury of distribution and possession of cocaine base and of conspiracy to distribute
and possess with intent to distribute more than fifty grams of a mix containing
cocaine base. Harris appeals and argues that the district court1 erred in its evidentiary
rulings and instructions to the jury, that the government presented perjured testimony,

      1
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
that the evidence at trial was insufficient for conviction, that the court erred by
enhancing his sentence for possession of a firearm, and that his trial counsel was
ineffective. We affirm.

                                           I.

       After Harris sold some crack cocaine to an informant who was fitted with a
recording device, police executed a search warrant at the house in which he lived. In
his upstairs bedroom they found a police scanner, $1190 in cash, drug notes and small
plastic bags, an unregistered short barreled .410 gauge shotgun, and a box of .45
caliber ammunition and a loaded magazine. In a bathroom down the hall they found
0.86 grams of crack hidden in the toilet bowl. Harris was the only person in the
upstairs area at the time of the search.

       Harris was indicted for distribution of cocaine base, 21 U.S.C. § 841(a)(1),
(b)(1)(C); possession with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1),
(b)(1)(C); conspiracy to distribute and possess with intent to distribute a cocaine base
mixture weighing fifty grams or more, 21 U.S.C. § 841(a)(1), (b)(1)(A), 846;
possession of an unregistered short barreled shotgun, 26 U.S.C. §§ 5841, 5861(d),
5871; and possession of a firearm by a felon. 18 U.S.C. § 922(g)(2).

      His attorney hoped to succeed in excluding evidence related to the shotgun and
ammunition at any jury trial and recommended that Harris plead guilty to the weapons
charges. Harris subsequently pled guilty to possession of an unregistered short
barreled shotgun and to felon in possession of a firearm, and he acknowledged at the
plea hearing that he had possessed the shotgun and the forty one rounds of .45 caliber
ammunition found in his room.

      At trial the government presented a number of witnesses who testified that they
had been involved with Harris in drug distribution. Most of them had been convicted

                                          -2-
of drug related crimes and had reached plea agreements with the government. Robert
Watkins testified that he sold Harris a total of seven ounces of crack on three
occasions. Watkins also testified that he had reserved a special pager code for
customers who purchased significant amounts and that Harris was among them and
had mentioned that he had an additional supplier in Iowa City. The notes found in
Harris' bedroom contained Watkins' phone number and one of his nicknames ("The
Brain").

       Wallace Maxwell and Robert Lewis, who both sold drugs with Watkins,
corroborated his testimony that Harris had purchased crack from him. They testified
that Harris had another cocaine source in the Davenport area whom Lewis identified
as "Atticus" and whose name and phone number were contained in the notes found
in Harris' bedroom. Maxwell testified that he once traveled with Harris to Davenport,
where Harris purchased at least 1½ ounces of crack from Atticus. Harris' former
girlfriend, Juanita Heald Perkins, testified that she had also accompanied him to
Davenport to buy crack and confirmed that he knew Atticus. Maxwell testified that
Harris once showed him three handguns when he visited his bedroom. Maxwell said
that he saw .45 caliber, .32 caliber, and .25 caliber guns in Harris' bedroom and that
Harris referred to the .45 caliber as "my baby" and refused to let him touch it.
Maxwell later acquired the .32 caliber pistol from Harris.

        Several other witnesses, including the government informant, testified that they
had also purchased crack from Harris on a number of occasions. Shaune Hull
testified that he bought crack for resale from Harris on six or seven occasions in early
1997, with at least one transaction occurring in Harris' bedroom. The drugs were
frequently packaged in plastic bags. Hull was arrested with the phone number to
Harris' house on a piece of paper in his pocket. An audiotape of the informant's
transaction was introduced, and during the transaction the informant called the seller
"Jermaine" several times.



                                          -3-
        Harris called a number of witnesses, including family members, fellow
employees, and a former girlfriend. They testified that they had never seen him with
drugs or guns and did not believe that he sold controlled substances. Several testified
that it was not his handwriting on the notes found in his bedroom and that the room
was frequently used by other family members. Several denied that the seller's voice
on the audiotape was his. Harris' sister testified that she sold crack and frequently
used her brother's bedroom to package it and that the only gun she had seen him with
was the shotgun, which she claimed was only a decorative antique.

       The case was submitted to the jury with a special interrogatory. The jury was
instructed to answer this question in the event it found Harris guilty of conspiracy:

      What quantity of a mixture or substance containing crack cocaine do
      you find that Jermaine Harris knowingly combined, conspired,
      confederated and agreed with other persons to distribute and/or possess
      with intent to distribute?

(emphasis in original). The form supplied with the interrogatory provided the jury
with three options: less than five grams, more than five but less than fifty grams, and
fifty or more grams. The jury found Harris guilty of distribution of crack cocaine as
well as conspiracy to distribute and possess with intent to distribute and then found
that Harris had conspired to distribute fifty or more grams. On the third count,
possession with intent to distribute, the jury found Harris guilty of the lesser included
offense of possession of crack cocaine.

      Harris moved for judgment of acquittal and for a new trial, arguing insufficient
evidence and errors in instructing the jury and in admitting evidence of the shotgun
and the ammunition. After this motion was denied, Harris obtained new counsel and
sought to amend his original motion for new trial, filed a second new trial motion, and
moved in arrest of judgment. He also sought to withdraw his guilty plea to the two
weapons charges. He renewed his earlier arguments and in addition claimed that the

                                          -4-
government had made knowing use of perjured testimony at trial and that he had
received ineffective assistance of counsel in respect to his decision to plead guilty.
After the court held an evidentiary hearing on the claims of perjured testimony and
ineffective assistance, it denied all the post trial motions.

       At sentencing the court found Harris accountable for more than 150 but less
than 500 grams of crack and calculated his base offense level at 34.2 See United
States Sentencing Commission, Guidelines Manual, § 2D1.1(c)(1) (Nov. 2001). It
then imposed a two level increase for possession of a firearm. See § 2D1.1(b)(1), for
an adjusted offense level of 36. This, combined with a high criminal history category
of V based on Harris' prior record, resulted in a sentencing range of 292 to 365
months. The court sentenced Harris to 292 months on the conspiracy charge, at the
lowest point of his guidelines range. He also received concurrent sentences of 240
months for distribution of cocaine base, 120 months for felon in possession, 240
months for possession of a short barreled shotgun,3 and 12 months for possession of
cocaine base.

                                           II.

       On his appeal Harris raises a number of arguments in respect to the district
court's rulings at trial and on the post trial motions.




      2
       There was evidence at trial indicating that Harris had been involved with at
least 8½ ounces of crack, or approximately 240.97 grams.
      3
        The statutory maximum on this charge is 120 months, 26 U.S.C. § 5871, and
the government acknowledges that Harris received a 240 month sentence through "a
clerical error." The parties should ask the district court to correct this clerical error
and to communicate the correction to the Bureau of Prisons.

                                          -5-
       First, he argues that evidence regarding weapons should not have been
admitted. This evidence included the shotgun and ammunition found during the
search of his bedroom, as well as testimony by Wallace Maxwell that he had seen
Harris with three handguns. Harris argues that the weapons evidence was
inadmissible under Fed. R. Evid. 404(b) as other crimes evidence which was
substantially more prejudicial than probative. Weapons have been recognized to be
a tool frequently used to safeguard and facilitate drug transactions, United States v.
Matra, 841 F.2d 837, 842 (8th Cir. 1988), however, and the evidence has sufficient
probative value in this case to overcome any prejudicial effect. Moreover, evidence
which merely indicates the "full context of the charged crime" is not governed by
Rule 404(b). United States v. Carroll, 207 F.3d 465, 468 (8th Cir. 2000). The district
court did not abuse its discretion in admitting this evidence. See United States v.
Withorn, 204 F.3d 790, 794 (8th Cir. 2000) (standard of review).

       Harris challenges the court's use of a special jury interrogatory on the quantity
of drugs involved in the conspiracy. He contends that the jury should rather have
been instructed that drug quantity is an additional element of the offense of
conspiracy under 21 U.S.C. § 841(a)(1), (b)(1)(A), 846, requiring proof of
involvement with more than fifty grams of a mix containing cocaine base. He relies
on the holding in Jones v. United States, 526 U.S. 227, 243 n.6 (1999), that "any fact
(other than a previous conviction) that increases the maximum penalty for a crime
must be charged in an indictment, submitted to a jury, and proven beyond a
reasonable doubt." The indictment here alleged that Harris conspired to distribute
and possess with intent to distribute more than fifty grams of a mix containing crack
cocaine. The court instructed the jury that the quantity of drugs which Harris
conspired to distribute had to be proven "by the government . . . beyond a reasonable
doubt." There was thus no error or abuse of discretion in the way in which the court
instructed the jury or submitted the issues to it. Cf. United States v. Borders, 270
F.3d 1180, 1184 (8th Cir. 2001).



                                          -6-
       Harris claims that a number of trial witnesses committed perjury, an argument
raised in his second motion for a new trial. He supported this argument with an
affidavit of Marlin Knox, who said he was in a holding facility with Lewis, Hull,
Maxwell, and Springfield while they waited to testify at trial and that they had a
"lighthearted" attitude about it and discussed "tak[ing] down as many people as they
could" in order to reduce their own sentences. Knox alleged that Maxwell had said
"call me what you want just call me at home." Harris also submitted a letter from
Maxwell claiming that the prosecutor had "played me all the way out. He even told
me to say that shit about the gun." Following an investigation by the United States
Attorney's office, Maxwell wrote a second letter stating that he had written the first
in order to avoid a confrontation with Harris and other inmates.4

      In order to obtain a new trial based on alleged use of perjured testimony, a
defendant must prove that (1) the government's case included perjured testimony, (2)
the government knew or should have known of the perjury, and (3) there was a
reasonable likelihood that the false testimony could have affected the judgment of the
jury. See United States v. Nelson, 970 F.2d 439, 443 (8th Cir. 1992).

        The district court held an evidentiary hearing to examine the perjury charge.
At the hearing, Knox admitted that the four witnesses had not said that they planned
to testify falsely and Maxwell repeated the explanation he made in his second letter.
The court found that Harris had failed to establish that there was perjured testimony
at trial or that the government had known or should have known about it. The district
court properly held an evidentiary hearing and was able to judge the credibility of the



      4
        In support of the perjury charge Harris also cited a number of alleged
inconsistencies in the testimony of government witnesses. The court acknowledged
"inconsistencies and . . . post trial information that . . . could have been used for
impeachment" at trial but found these insufficient to establish perjury. We agree with
this finding, although Harris does not appear to challenge it on appeal.

                                         -7-
witnesses, and its rulings have not been shown to be an abuse of its discretion. See
Nelson, 970 F.2d at 443.

       Harris contends that the evidence presented by the government was insufficient
to convict him. A challenge to the sufficiency of the evidence is reviewed in the light
most favorable to the verdict, allowing the prevailing party all reasonable inferences
from the evidence. United States v. Butler, 238 F.3d 1001, 1003 (8th Cir. 2001). We
may reverse only if no reasonable jury could have found the defendant guilty beyond
a reasonable doubt. United States v. Calderin-Rodriguez, 244 F.3d 977, 983 (8th Cir.
2001). Harris argues that the government presented insufficient evidence that he
possessed the crack found in the toilet since the bathroom was on the other side of the
house from his bedroom, there was no evidence that he knew it was there, and others
admitted having sold drugs in the house. The evidence showed that the crack was
found in a bathroom while Harris was right down the hall and was the only person on
the floor. There was considerable testimony that Harris bought and sold crack and
had done so at least once in the bedroom where he was found. This evidence was
sufficient for the jury to conclude that Harris possessed the crack. Harris also
challenges the credibility of the government witnesses, including the informant and
those testifying under plea agreements. Our review does not permit us to weigh the
evidence or to assess the credibility of witnesses, however. United States v. Pardue,
983 F.3d 843, 847 (8th Cir. 1993). We conclude after studying the record that
sufficient evidence was presented to support the convictions.

       Harris argues that he received ineffective assistance from his counsel in the
district court. He bases this on her recommendation that he plead guilty to the
weapons charges and her representation of him at the change of plea hearing.5 He
also contends that she failed to recognize that he suffers from borderline mental



      5
      He has not argued on appeal that the district court erred by denying him the
opportunity to withdraw his pleas.
                                      -8-
retardation and that this hampered her ability to advocate his case at trial effectively.6
The district court held an evidentiary hearing to investigate the claim of ineffective
assistance at the plea bargain stage; both Harris and his counsel testified. The court
found that counsel's recommendation to plead on the weapons charges was a strategic
choice and not ineffective assistance and commented that Harris "clearly had the
intellectual prowess to fully appreciate the legal proceedings and understand what
was going on and what was taking place." Harris did not claim before the district
court that he had received ineffective assistance at trial.

       An ineffective assistance of counsel claim should generally be raised in
collateral post conviction proceedings under 28 U.S.C. § 2255 rather than on direct
appeal. United States v. Whitefeather, 275 F.3d 741, 743 (8th Cir. 2002). That is
because "normally such a claim cannot be advanced without the development of facts
outside the original record." United States v. Dubray, 727 F.2d 771, 772 (8th Cir.
1984) (quoting United States v. Kazni, 576 F.2d 238, 242 (9th Cir. 1978)). The
evidentiary hearing in the district court developed some additional facts related to the
pretrial proceedings, but these may need to be seen in the larger perspective of the
entire case now that the direct appeal from Harris' convictions has been concluded.
Harris also seeks to raise claims of ineffective assistance at trial. For these reasons,
his ineffective assistance claims are premature at this stage and should be raised in
a § 2255 motion.

      Finally, Harris challenges his sentence. He claims that the court erred by
imposing a two level increase for possession of a firearm. Without this increase, his
offense level would have been 34, resulting in a guidelines range of 235 to 293
months.


      6
       Harris also alleges that his counsel's failure to recognize his limitations
violated his rights under the Thirteenth, Fourteenth, and Fifteenth Amendments to the
Constitution. This summary allegation has no legal merit.

                                           -9-
       The sentencing guidelines provide a two level increase in offense level for drug
distribution crimes in which "a dangerous weapon (including a firearm) was
possessed" by the defendant. USSG § 2D1.1(b)(1). The adjustment applies "if the
weapon is present, unless it is clearly improbable that the weapon was connected with
the offense." Id., comment. (n.3) The government has the burden to show by a
preponderance of the evidence both that the weapon was possessed by the defendant
and that it was not clearly improbable that the weapon was connected with the
offense. United States v. Vaughn, 111 F.3d 610, 616 (8th Cir. 1997).

       In a conspiracy case the government must also establish that the weapon was
possessed by the defendant during the period of the conspiracy and that it was
connected to the activity of the conspiracy. See United States v. Richmond, 37 F.3d
418 (8th Cir. 1994) (government must establish temporal and spatial connection
between the weapon and the drug offense); United States v. Bost, 968 F.2d 729 (8th
Cir. 1992) (enhancement not appropriate where defendant never seen in possession
of weapons during the conspiracy and weapons found in location not connected to the
drug transactions); United States v. Shields, 44 F.3d 673 (8th Cir. 1995).

       Here the jury convicted Harris of Count V of the indictment which charged his
knowing involvement in a conspiracy “between about 1996 and 1997" to distribute
and possess with the intent to distribute more than 50 grams of cocaine base. The
district court found that it was not clearly probable that the short barreled shotgun
possessed by Harris was connected with his offense, but that the .45 caliber handgun
Harris had in his bedroom and showed Maxwell in the fall of 1996 was. The court
found by a preponderance of the evidence that Harris was in possession of such a gun
and that it was clearly probable that it was connected with his offense of conspiracy.
The court noted that ammunition and a magazine for a .45 caliber gun were seized on
April 1, 1997 from Harris’ bedroom, Harris pled guilty to possession of .45
ammunition, and Maxwell had previously seen the gun in the bedroom from which



                                         -10-
most of the seized items were taken.7 We review a sentencing enhancement under §
2D1.1(b)(1) for clear error. Vaughn, 111 F.3d at 616.

        Harris argues that Maxwell did not mention the gun before the grand jury or
in his proffer statement, but Maxwell testified at the evidentiary hearing that he had
not been asked about Harris' involvement with guns until his pretrial interview. The
weapon was observed in Harris' bedroom, a location from which at least one witness
testified that Harris sold drugs. Ammunition for the gun was found in the same room,
along with plastic bags, a scanner, and a large amount of currency. Cf. United States
v. Pou, 953 F.2d 363, 371 (8th Cir. 1992) (connection present where firearms seen
in the same apartment from which cocaine was distributed); United States v. Turpin,
920 F.2d 1377 (8th Cir. 1990) (enhancement appropriate where witness saw
defendant with access to gun during the time period of the conspiracy in a vehicle
from which drug transactions were conducted).

        The district court based the enhancement on the evidence before it and its own
credibility determinations. Harris admitted during his plea proceeding that he
possessed forty one rounds of .45 caliber ammunition in April 1997, and Maxwell
testified at trial that he had seen Harris in his bedroom with a .45 caliber handgun in
fall 1996. There was evidence at trial that Harris was selling crack during 1996 and
1997, and cocaine base was found hidden in a toilet bowl down the hall from his
bedroom on April 1, 1997. All of these events occurred during the time period of the
conspiracy. Given the evidence in the record and the fact that weapons are "key tools
in the drug trade," United States v. Dierling, 131 F.3d 722, 732 (8th Cir. 1997), the
court did not err in finding that Harris possessed the .45 caliber gun and that it was
not clearly improbable that the gun was connected with his offense.



      7
       Maxwell was not the only witness who testified at trial that Harris possessed
a .45 caliber handgun. Andre Alexander Springfield also testified that he had seen
Harris with a .45 caliber gun in 1996.
                                       -11-
                                         III.

       For these reasons we conclude that Harris is not entitled to either a new trial
or to resentencing, and we affirm the judgment of the district court.

HEANEY, Circuit Judge, dissenting.

       The district court added thirty months to the appellant’s sentence on the basis
that he possessed a firearm during the commission of the offense. The evidence
established that Harris had the firearm several months before his drug sales, but not
during them. Therefore, I cannot agree that the weapon was connected to the offense
and I dissent from that portion of the majority’s opinion that affirms the sentence
enhancement.

       As the majority correctly notes, a two-level enhancement for drug distribution
crimes applies when “a dangerous weapon (including a firearm) was possessed” by
the defendant. USSG § 2D1.1(b)(1). The adjustment is appropriate “if the weapon
is present, unless it is clearly improbable that the weapon was connected with the
offense.” Id., comment. (n.3). Thus, the guideline clearly requires that before the
enhancement is imposed, the government must establish that a weapon is at least
present.

       This circuit has consistently held that in order for § 2D1.1(b)(1) to apply, the
government must prove by a preponderance of the evidence that a dangerous weapon
was present when the crimes were committed, and that it was not clearly improbable
that the weapon had some nexus with the criminal activity. See United States v.
Shields, 44 F.3d 673, 674 (8th Cir. 1995) (holding enhancement not appropriate
because firearms were seized from defendant’s home thirty-seven days after last
known drug sale occurred). See also United States v. Bost, 968 F.2d 729, 731-33 (8th
Cir. 1992) (holding enhancement not appropriate because of two and one-half month

                                         -12-
lapse between the criminal activity and the discovery of the weapons, and no
evidence that weapons were present when defendant committed charged offense).

       In this case, the district court did not find that any weapons present at the time
of the charged crime were connected to the offense. Rather, the district court
enhanced the appellant’s sentence based on evidence that the appellant had possessed
a handgun several months earlier. In doing so, the district court effectively
disregarded Application Note 3 in the § 2D1 Official Commentary, and chose to
interpret “possession” in a way that is counter to the official commentary and this
circuit’s case law. Without a firearm actually present at the time of the charged
crime, the appellant’s confession to possession of ammunition and the Maxwell
testimony that he had seen a firearm seven months prior are irrelevant. At best, the
evidence suggests that Harris possessed a handgun at one time, but it does not support
the conclusion that Harris was currently in possession of a firearm, or that it was used
in connection with criminal activity.8 Unlike United States v. Turpin, 920 F.2d 1377
(8th Cir. 1990), where a witness observed the defendant in possession of a firearm
while conducting a drug transaction, there is no evidence here that any weapons were
ever used in connection with drug transactions, bringing this case more squarely in
line with the facts of Bost.

      The majority’s extension of temporal possession is not supported by law. The
best evidence the government provides to support the enhancement is that the
appellant owned a gun six or seven months prior to his arrest. The majority


      8
        The majority points to Count V of the indictment, alleging that Harris was
involved in a conspiracy between about 1996 and 1997. The Maxwell testimony
states that Harris was in possession of the .45 caliber handgun in the fall of 1996. To
my mind, a thirty-month enhancement deserves a more exacting inquiry than vague
generalities placing the two events around the same time. Two and one-half years
should not simply be tagged onto a sentence because the conspiracy may have
overlapped Harris’s possession of the firearm.

                                          -13-
constructively extends possession into the past, in direct conflict with Eighth Circuit
precedent and the Sentencing Guidelines on their face. The Guidelines were not
intended to open the door so wide as to allow any possession of any weapon at any
time remotely proximate to a drug offense to be considered when enhancing a
defendant’s sentence. There is no evidence Harris ever used the weapon in
conjunction with his drug sales. There was no weapon present at the time of his
arrest. There is no reason this enhancement should apply to this case.

      I do not believe the government has shown that USSG § 2D1.1(b)(1) applies.
The two-level enhancement for possession of a firearm should not be applied to the
appellant’s sentence. I would therefore remand for resentencing.

      A true copy.

             Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -14-
