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United States v. Henderson

United States Court of Appeals, First Circuit

December 19, 2018

UNITED STATES OF AMERICA, Appellee,
v.
MARCEL HENDERSON, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS HON. RYA W. ZOBEL, U.S. DISTRICT JUDGE, HON. JOSEPH L. TAURO, U.S. DISTRICT JUDGE.

          David A. F. Lewis on brief for appellant.

          Andrew E. Lelling, United States Attorney, and Michael J. Crowley, Assistant U.S. Attorney, on brief for appellee.

          Before Lynch, Stahl, and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         Marcel Henderson ("Henderson") was indicted in the United States District Court for the District of Massachusetts in April 2011 on one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). He was convicted of that offense after trial in October 2016, following intermittent pre-trial proceedings, and, in February 2017, he was sentenced to time served plus three weeks of imprisonment and three years of supervised release. Henderson now challenges his conviction and his sentence. For the reasons that follow, we affirm.

         I.

         Henderson was arrested in Boston, Massachusetts on January 2, 2011 after law enforcement found a firearm on his person pursuant to a traffic stop and pat-down frisk. Henderson filed a motion to suppress evidence of the firearm, for which the District Court held a three-day evidentiary hearing. Based on testimony, call transcripts, and other evidence adduced at the hearing, the District Court made the following findings of fact.

         During an investigation of the Academy Homes Street Gang, law enforcement officials, including a detective with the Boston Police Department ("BPD"), intercepted a string of phone calls -- from December 30, 2010 to January 1, 2011 -- that suggested that Henderson was armed and committing violent crimes targeting members of that gang. The intercepts also revealed that the gang may also have been targeting Henderson, who had earlier been shot by the gang. The detective briefed other officers on the morning of January 2, 2011 about the information gleaned from the phone calls and the potential danger that Henderson posed. The detective specifically alerted team members that he expected Henderson to be armed. Officers soon thereafter "established surveillance" near Henderson's fiancée's residence in Boston, where Henderson often stayed.

         That same afternoon, the detective and a special agent with the Federal Bureau of Investigation ("FBI") observed Henderson exit his fiancée's residence and engage in an "animated conversation" with another man on the public street in front of the residence. They saw Henderson reach toward his waist with his right hand, at which point the other man threw his hands up and backed away.

         The detective broadcast his observations of the altercation, and his belief that Henderson possessed a firearm, by radio to a BPD police officer and a lieutenant with the Massachusetts State Police ("MSP"). They were each stationed nearby and had taken part in the detective's earlier briefing. Immediately after the altercation, the BPD officer and MSP lieutenant saw Henderson, his fiancée, and their child enter a car. The BPD officer and MSP lieutenant followed the car until it made an illegal U-turn and pulled over to the side of the road.

          When Henderson exited the vehicle, the officers activated their emergency lights and pulled up behind the car.

         After the MSP lieutenant informed Henderson of the traffic violation, the BPD officer conducted a pat-down frisk. The FBI special agent exited his own vehicle to assist the two officers, and the three of them ...


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