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United States v. Henry

United States Court of Appeals, First Circuit

January 18, 2017

CHRISTOPHER HENRY, Defendant, Appellee.


          Christine DeMaso, Assistant Federal Public Defender, with whom the Federal Defender Office was on brief, for Appellant.

          Vijay Shanker, Attorney, United States Department of Justice, Criminal Division, Appellate Section, with whom Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Carmen M. Ortiz, United States Attorney, Glenn A. Mackinlay, Assistant United States Attorney, and John Albert Wortmann, Jr., Assistant United States Attorney, were on brief, for Appellee.

          Before Thompson and Kayatta, Circuit Judges, and Barbadoro, [*] District Judge.

          BARBADORO, District Judge.

         Christopher Henry was convicted after a trial of possession of crack cocaine with intent to distribute. He claims on appeal that the district court erroneously failed to suppress text messages the police obtained from his cell phone pursuant to a search warrant. He also faults the district court for admitting evidence of his prior drug conviction, allowing a police officer to provide inadmissible expert testimony, and failing to instruct the jury on the lesser included offense of simple possession. We affirm.

         I. BACKGROUND

         A. The Crimes

         May 29, 2014, was the three-year anniversary of the death of a Boston-area gang member, and the police were informed that his family would be holding a memorial gathering at their home that night. Concerned that the event might spark violence, two police officers were dispatched to patrol the neighborhood in a car that was unmarked but that could be identified as a police vehicle based on its make, model, and accessories. As the officers drove toward the address where the gathering was expected, they saw two men standing on the sidewalk. When they drove past, one of the men, later identified as Henry, appeared shocked. Suspicious, the officers stopped and reversed toward the men. Upon seeing the car reverse, Henry and the other man took off running.

         The officers gave chase, one by foot and one by car. Henry momentarily eluded the officer on foot by jumping over a fence and running through a schoolyard marked with "no trespassing" signs. The officer then glimpsed Henry running into the yard of a nearby home. He followed Henry into the yard and saw him facing another fence, topped with barbed wire. The officer identified himself, ordered Henry to the ground, frisked him, and arrested him for trespassing. A gun was subsequently found in the driveway of the home on the other side of the fence from where Henry was arrested.

         The second man, later identified as Dwayne Leaston-Brown, ran around the side of the school building and disappeared from view. He was eventually found sitting on the steps of the same home where the gun was found. A second gun, bearing Leaston-Brown's fingerprints, was discovered next to the school building along the path he followed as he fled from the police.

         Henry was taken to the police station following his arrest where he was booked and thoroughly searched. A search of his pants produced a cell phone and $830 in cash, denominated mostly in $20 bills. Underneath his pants, Henry was wearing a pair of basketball shorts. A search of the shorts produced 21 individually packaged rocks of crack cocaine and two loose rocks, amounting to approximately three grams.

         The police later applied for and received a warrant to search Henry's cell phone. The search yielded coded text messages that appeared to reference drug sales. Henry was ultimately indicted for possession of crack cocaine with intent to distribute based on the cocaine the police found during the search at the police station, and possession of a firearm by a convicted felon based on the gun the police discovered in the driveway of the home across the fence from where he was arrested.

         B. Proceedings Below

         Henry moved to suppress the text messages obtained from the cell phone search on the ground that the search warrant application failed to establish probable cause. In rejecting Henry's motion, the district court relied on the quantity and packaging of the drugs and the large amount of cash Henry was carrying, the discovery of the gun nearby, and the fact that Henry was carrying the cell phone at the time of his arrest. The court also gave weight to the affiant's training and experience, which led him to conclude that cell phones are critical tools of the modern drug trade. Alternatively, the court determined that the text messages should not be suppressed even if the search was not supported by probable cause because the police relied in good faith on the search warrant when they conducted the search.

         The government filed a motion in limine prior to trial asking the court to admit evidence of Henry's 2012 state court conviction for possession of crack cocaine with intent to distribute. Henry challenged the government's motion by arguing that evidence of his past criminal conduct was inadmissible propensity evidence that should be excluded under Rules 404(b) and 403 of the Federal Rules of Evidence. In rejecting Henry's arguments, the district court concluded that Henry's prior criminal conduct was admissible under Rule 404(b) to prove intent and modus operandi. The court also refused to exclude the prior conviction evidence pursuant to Rule 403 because its probative value was not substantially outweighed by the danger of unfair prejudice. When the prior conviction evidence was later admitted at trial, the court instructed the jury that it could consider the evidence to the extent that it was relevant in proving intent or modus operandi, but the fact that Henry may have committed a prior crime did not prove that he committed either of the charged crimes.

         The court also rejected Henry's effort at trial to block the government from offering certain expert testimony by a police officer. The officer testified that he had experience investigating drug trafficking as a member of the Drug Control Unit of the Boston Police Department, where he had participated in over 100 drug buys, listened to wiretapped conversations, and instructed other officers on drug trade practices. During the trial, he testified that texts on Henry's cell phone containing terminology such as "flav, " "dub, " "hard, " "plays, " "bus[t]ing a move, " and "7 to a 14 lg" referred to drug transactions. These opinions were inadmissible, Henry argued, because they were speculative or within the ken of the average juror. The officer also opined that, "looking at everything, the large amount of money, looking at the booking sheet without any employment, apparently, the large amount of drugs, the way that they're packaged, all similar in size and packaging, . . . putting it all together, in [his] opinion, these drugs were packaged for sale." Henry claimed that this opinion should be excluded pursuant to Rule 704(b) of the Federal Rules of Evidence as an impermissible opinion on intent.

         Henry's primary theory of defense was that the officers lied in claiming that they had found drugs on him during the search. He also sent mixed signals as to whether he planned to challenge the government's contention that he possessed the drugs with an intent to distribute. Prior to trial, he informed the court that he would be contesting possession but not intent. He stated in his opening statement that "[i]t may very well be that the packaging and the amount of cocaine in those bags was intended for distribution, but what you're going to learn is that Henry didn't possess it." He also submitted a proposed jury instruction prior to trial, however, that asked the court to instruct the jury on the lesser included offense of simple possession.

         The day before closing arguments, Henry renewed his request for a simple possession instruction. Although the judge agreed to consider the issue further, she told Henry that he should assume that she would not give his proposed instruction. The next morning, the judge informed counsel that she had looked into case law and determined that it would not be rational for a jury to find simple possession. On that basis, she told counsel that she would not give a lesser included instruction. She also stated, "Counsel, your objection as to that is noted for the record." Before bringing in the jury, the judge again stated, "I'm not going to give the lesser included instruction, and I addressed that on the record."

         The jury instructions were split into two parts: the jury was given preliminary instructions, each party gave its closing argument, and then the jury was given the remaining instructions, which did not include a charge on simple possession. Following this last set of instructions, the judge met with counsel at sidebar. The government stated that it did not object to the charge, and Henry's counsel declared that there was "[n]othing from . . . the defense."

         The jury convicted Henry of the drug charge, but acquitted him of the firearm charge. This appeal followed.

         II. ANALYSIS

         Henry challenges his conviction by claiming that (1) the warrant authorizing the search of his cell phone was not supported by probable cause; (2) the court erred in admitting evidence of his prior drug conviction; (3) a police expert was permitted to offer inadmissible opinion testimony; and (4) Henry was entitled to a jury ...

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