US v. Troy Henley

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UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:08-cr-00046-AMD-1 Copies to all parties and the district court/agency. [998373740] [08-5161]

US v. Troy Henley

Doc. 0

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5161 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TROY HENLEY, a/k/a Chubbs, a/k/a Bill Bill, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:08cr-00046-AMD-1) Argued: May 14, 2010 Decided: July 6, 2010

Before MOTZ, KING, and KEENAN, Circuit Judges Affirmed by unpublished opinion. Judge Keenan wrote the opinion, in which Judge Motz and Judge King concurred. ARGUED: Stuart O. Simms, BROWN, GOLDSTEIN & LEVY, Baltimore, Maryland, for Appellant. Michael Joseph Leotta, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Michael C. Hanlon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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KEENAN, Circuit Judge: A jury convicted Troy Henley of one count of conspiracy to commit robbery and two counts of robbery, in violation of 18 U.S.C. § 1951(a), and two counts of possession of a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c). The district court sentenced Henley to a total of 38 years' imprisonment. refusal to Henley challenges on appeal the district court's evidence of statements he made to law

suppress

enforcement officers. erred in admitting

He also asserts that the district court certain evidence, including evidence of

Henley's flight from the police, evidence of his threat against a witness, and evidence of certain bad acts unrelated to the robberies. jury Finally, Henley challenges certain rulings regarding and the procedural reasonableness we affirm of his

instructions, For

sentence.

the

following

reasons,

Henley's

convictions and sentence.

I. We will review the facts in the light most favorable to the government. 2005). United States v. Nunez, 432 F.3d 573, 576 (4th Cir.

In 2006, Henley, along with several co-conspirators,

planned and participated in robberies at a Wal-Mart Store in Ellicott City, Maryland, on August 2, 2006, and at a Check Point Check Cashing Store in Baltimore, 2 Maryland, on December 30,

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2006.

During the robberies, some of Henley's co-conspirators

entered the stores, assaulted various employees, pointed guns at them, and left the stores with cash. Several months after these robberies, Baltimore City police officers arrested Henley for an unrelated larceny that occurred in 2004. On March 27, 2007, Detective Julie Pitocchelli and

another officer observed Henley at a "car wash" establishment. When Henley saw the officers, he "jumped" into the driver's side of a truck and drove down an alley. Detective Pitocchelli and

several other police officers in marked police vehicles chased the truck that Henley was driving through the streets of The

Baltimore.

Ultimately, the truck collided with a tree.

police officers apprehended Henley about two blocks away from the scene of the accident and arrested him. After his arrest, the police took Henley to the hospital based on his complaint that he injured his neck in the accident. While at the hospital, Henley spoke with Special Agent Stacey Bradley of the Federal Bureau of Investigation, the chief

officer assigned to investigate the robberies described above. Henley told Agent Bradley that he was willing to "talk" with her at a later date. On April 2, 2007, six days after Henley's arrest on the 2004 larceny charge, Agent Bradley and another federal law

enforcement officer interviewed Henley. 3

At the start of the

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interview,

the

officers

informed

Henley

of

his

rights

under

Miranda v. Arizona, 384 U.S. 436 (1966), and Henley signed a form waiving those rights. "feeling better," and that Henley told the officers that he was he had not been taking the pain

medication he was prescribed at the hospital. During the interview, the officers repeatedly asked Henley about his acquaintances and their general involvement in the commission of robbery offenses. After the officers told Henley

that these acquaintances had implicated Henley in the commission of some robberies, Henley denied any such involvement. He also

stated that about two or three weeks before the interview, he learned that the "Feds" were investigating certain robberies and were "lookin[g]" for him in connection with those crimes.

Several months after the interview, Henley was arrested for his involvement in the present offenses. A few weeks after his arrest, Henley placed a telephone call to his sister from jail. During this conversation,

Henley's sister talked about the police and asked the name of the female police officer involved in Henley's case. Henley

responded, "Stacey Bradley," and stated in part, "I hate that bitch. I'll kill that bitch."

Henley's case proceeded to trial on the present offenses. Before trial, Henley filed a motion in limine seeking to exclude certain evidence. The challenged evidence included testimony 4

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that he fled from police on March 27, 2007, and his statement to his sister threatening to kill Agent Bradley. Henley also

sought to exclude the testimony of three witnesses, described below, on the basis that evidence of those witnesses' criminal activity unrelated The to the present robberies Henley's would motion be in

prejudicial.

district

court

denied

limine and admitted the challenged evidence at trial. Also prior to trial, Henley filed a motion to suppress the statements he made during his April 2, 2007 police interview. The district court denied Henley's motion and permitted Agent Bradley to testify Henley at trial that during his the cell April phone 2, 2007

interview,

provided

her

with

number.

Agent Bradley testified that this information assisted in her investigation and resulted in her conclusion that Henley's cell phone was located In at the scene when the present robberies Agent

occurred.

addition,

the

district

court

permitted

Bradley to testify that Henley told her during the interview that he was aware he was under investigation for the commission of some robberies. At the close of trial, the district court considered the parties' submissions of proposed jury instructions. As relevant

to this appeal, Henley submitted a jury instruction addressing multiple conspiracies, which the district court rejected. Also,

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over

Henley's

objection,

the

district

court

gave

a

jury

instruction regarding Henley's flight from police. Finally, instruction the district the court gave the of jury a limiting activity

regarding

evidence

criminal

unrelated to the present robberies.

That instruction informed

the jury that it could not "use" evidence of unrelated crimes committed by Henley's acquaintances to infer that Henley

"carried out the acts charged in this case."

The instruction

also stated that even if the jury found that Henley committed unrelated crimes the "similar" jury could to not those committed such by his to

acquaintances,

consider

evidence

support an inference that Henley committed the crimes charged in the indictment. After the jury convicted Henley of conspiracy to commit robbery, two counts of robbery, and two counts of possession of a firearm, the district court conducted the sentencing phase of trial. The presentence report (PSR) recommended a total

Guidelines range for the conspiracy and robbery counts of 210262 months, and the statutory minimum sentence for the firearm counts of 384 months. on Henley objected and of to the recommended court for to the

Guidelines consider a

range total

several

grounds range

urged

the

Guidelines

78-97

months

conspiracy and robbery convictions.

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II. A. We first consider whether the district court erred in

denying Henley's motion to suppress his statements made to law enforcement officers during the April 2, 2007 interview. asserts that these statements were involuntary. Henley

According to

Henley, the interviewing officers failed to determine whether any injuries from the March 27, 2007 automobile accident "could have affected" Henley's ability to waive his rights under

Miranda v. Arizona, 384 U.S. 436 (1966).

Henley also argues

that because of the "congenial" nature of the interview, the officers persuaded Henley to make incriminating statements that he did not intend to volunteer. We disagree with Henley's

arguments. On appeal, we review de novo a district court's

determination regarding the voluntary nature of a defendant's statement. Cir. 2008). United States v. Abu Ali, 528 F.3d 210, 232 (4th In assessing whether a statement was voluntary, we

examine the totality of the circumstances in which the statement was given. Id. A statement is voluntary when it represents Schneckloth contrast, a

the free and unconstrained choice by the speaker. v. Bustamonte, 412 U.S. 218, 225 (1973). In

statement is involuntary when the speaker's will is overborne

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and his capacity for self-determination is critically impaired. Id. at 225; Abu Ali, 528 F.3d at 232. We observe that Henley fails to assert that any injury he suffered as a result of the March 27, 2007 accident actually affected his ability to waive his rights and to speak freely. Contrary to Henley's assertion that the officers failed to

assess the presence and severity of Henley's injuries, Agent Bradley testified that he that felt on the day and of was the not interview, taking Henley pain

indicated

better

the

medication he had been prescribed. During the time that the interviewing officers engaged in general conversation with Henley, they made clear their desire to obtain information about the commission of robberies. The

officers repeatedly asked Henley whether he or his acquaintances participated in such acts. The officers also advised Henley

that his acquaintances had told the officers that Henley had committed some robberies. Additionally, over the course of the

interview, Henley stated that he was aware that he was being investigated robberies. Based on the totality of the circumstances of the for his involvement in the commission of some

interview, we conclude that Henley's will was not overborne, and that his statements were voluntary. 232. See Abu Ali, 528 F.3d at

The evidence showed that in seeking to elicit information 8

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from Henley about the commission of robberies, the officers did not make any promises he did at or otherwise not 225; the wish Abu induce to Ali, make 528 Henley to make See 232. in

statements Schneckloth, Therefore,

that 412

freely. F.3d not at

U.S.

we

hold

that

district

court

did

err

denying Henley's motion to suppress. B. Next, Henley argues that the district court erred in

admitting evidence of his attempt to flee from the police as proof of his consciousness of guilt. the district court erred in giving Henley also argues that the jury an instruction

regarding flight.

Henley notes that after he attempted to evade

capture, he was arrested on an outstanding, unrelated warrant from 2004. Therefore, Henley asserts, the evidence of his

flight showed no more than a general consciousness of guilt and did not reflect a particular sense of guilt based on his

involvement in the present robberies. In response, the government argues that because Henley knew he was under investigation for his involvement in some robberies at the time he fled from the police, the district court properly Henley also argues that because he was not the driver of the truck, his action did not constitute flight from the police. This argument is without merit because two officers testified that Henley was the driver of the truck. 9

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admitted the evidence of flight.

The government further argues

that this evidence supported the district court's decision to instruct the jury on flight. arguments. On appeal, we review under an abuse of discretion standard a district court's decision to admit certain evidence and to give an accompanying jury instruction. United States v. We agree with the government's

Udeozor, 515 F.3d 260, 265 (4th Cir. 2008); United States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006). that evidence regarding a criminal We have recognized flight is

suspect's

inherently weak because one who flees to evade capture by the police does not necessarily do so based on his consciousness of guilt for committing a certain crime. See United States v. Therefore, we have

Foutz, 540 F.2d 733, 739-40 (4th Cir. 1976).

held that before a jury may be allowed to consider evidence of flight, the following links in a chain of inferences must be established and adequately supported by the evidence: (1)

between a defendant's behavior and his flight, (2) between his flight and his consciousness of guilt, (3) between his

consciousness of guilt and his consciousness of guilt concerning the crime charged, and (4) between his consciousness of guilt concerning the crime charged and his actual guilt of the crime charged. 2001). 10 United States v. Obi, 239 F.3d 662, 665-65 (4th Cir.

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In the present case, Henley challenges only the adequacy of the evidence to support the third link, the connection between his consciousness of guilt and his consciousness of guilt

concerning the present robberies.

Even though the robberies

occurred several months prior to Henley's flight from police, Henley told the officers during his April 2, 2007 interview that he had learned just three weeks before his attempt to evade capture that he was under investigation for his participation in some robberies. In contrast, the criminal activity that served

as the basis for Henley's arrest took place at least three years before his flight from police. The close connection in time between Henley's flight and his recently acquired knowledge that he was under investigation for some robberies supports the inference that Henley fled from the police because of his involvement with the present

robberies.

Therefore, we conclude that the evidence established

and adequately supported the link between Henley's consciousness of guilt and his consciousness of guilt for the crimes charged. See Obi, 239 F.3d at 665. We also conclude that the evidence of Henley's flight was sufficient to support the court's decision to give the jury a "flight" instruction. This jury instruction read:

You have heard evidence that defendant fled from law enforcement after he believed that he was about to be arrested for certain crimes. If proved, the flight of 11

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a defendant after he knows he is to be accused of a crime may tend to prove that the defendant believed he was guilty. It may be weighed by you in this connection and weighed with all the other evidence. However, flight may not always reflect feelings of guilt. Moreover, feelings of guilt which are present in many innocent people do not necessarily reflect actual guilt. We observe that the language of the jury instruction was balanced and informed the jurors that evidence of flight may not reflect Henley's consciousness of guilt. instruction fairly addressed the We conclude that this weakness of flight

inherent

evidence and permitted the jury to evaluate the evidence in this case in determining whether the evidence of flight demonstrated Henley's consciousness of guilt for the crimes charged. Foutz, 540 F.2d at did 739-40. not abuse Accordingly, its we hold in that See the

district

court

discretion

admitting

evidence of Henley's flight and in instructing the jury on this issue. C. We next consider Henley's argument that the district court erred in admitting into evidence his statement threatening to kill Agent Bradley. Henley contends that his statement

constituted an isolated expression of anger unaccompanied by a plan to carry out the threat. Henley asserts that because he

did not intend to harm or influence a potential witness, the

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court

improperly

admitted

the

statement

into

evidence.

We

disagree with Henley's arguments. We review a district court's admission of evidence for an abuse of discretion. that evidence of a Udeozor, 515 F.3d at 265. threat against an adverse We have held witness is

admissible to prove a defendant's consciousness of guilt if the evidence relates to the offense charged and is reliable. States v. Young, 248 F.3d 260, 272 (4th Cir. 2001). explained against an that such evidence witness is admissible a because a United We have threat

adverse

indicates

defendant's

awareness

that his case is weak or unfounded. 150 F.3d 339, 352 (4th Cir. 1998). We observe that Henley's

United States v. Van Metre,

statement

was

admitted

into

evidence to show Henley's consciousness of guilt of the crimes charged and not to prove a separate criminal offense. In this

context, we conclude that the district court did not abuse its discretion Henley's his in admitting "I'll to Henley's kill an [Agent threatening Bradley]," of statement. demonstrated the robberies

statement, desire

present

harm

investigator

charged in the indictment. a few weeks after his

Also, Henley made the statement only arrest for these robberies. Thus,

Henley's threatening statement directly related to the charged offenses, and the district court did not abuse its discretion in admitting the statement into 13 evidence to show Henley's

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consciousness of guilt. 150 F.3d at 352.

See Young, 248 F.3d at 272; Van Metre,

D. Henley permitting also argues by that three the district court erred in

testimony

witnesses

about

"bad

acts" Henley

unrelated to the robberies charged in the indictment.

asserts that he was unduly prejudiced by the testimony of Joseph White and Michael Lonesome concerning their "other" criminal

activity, and Sean Matthews' testimony concerning his "scouting" of check cashing store locations with Henley. Henley's assertions. Under Rule 403 of the Federal Rules of Evidence, evidence is admissible when the danger of unfair prejudice does not We disagree with

outweigh the probative value of the evidence.

See also United With

States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).

regard to potentially prejudicial evidence, we have acknowledged that cautionary and limiting instructions given to the jury may alleviate slight dangers of prejudice. Id. at 833 n.15 (citing

United States v. Queen, 132 F.3d 991 (4th Cir. 1997) and United States v. Powers, 59 F.3d 1460, 1468 (4th Cir. 1995)). At trial, White testified that he had entered into a plea agreement and had pled guilty to a charge of bank robbery.

White clearly stated, however, that Henley was not involved in the commission of that bank robbery. 14 This portion of White's

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testimony,

therefore,

related

only

to

White's

own

criminal

activity and served to impeach White's credibility. White also testified that Henley told him that Henley had committed provided Henley's court giving limiting some the robberies jury with at gas stations. This evidence concerning district by

background with

information White. of this

confidential any

relationship prejudicial cautionary at the

The

mitigated an

effect

testimony a

immediate

instruction conclusion

and of

similar See

jury

instruction

trial.

Grimmond, 137 F.3d at 833, n.15. Lonesome testified that Henley discussed the possibility of committing "other robberies" with Lonesome before their This

participation in the robbery at the Check Point store. evidence likewise was probative of the relationship

between

Henley and one of his co-conspirators.

Additionally, Matthews'

testimony about his "scouting" missions with Henley of check cashing establishments directly related to the robbery at the Check Point store and, therefore, was probative evidence

regarding the crimes charged against Henley. conclude that the probative value of the

Accordingly, we by these

testimony

three witnesses outweighed its prejudicial effect, and that the district court did not err in admitting this testimony. id., 137 F.3d at 833. See

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E. Henley also challenges the district court's refusal to give the jury an instruction regarding multiple conspiracies. asserts that the evidence showed that his Henley

co-conspirators

engaged in "different enterprises" beyond the conspiracy charged in the indictment the and jury that, without the multiple impute conspiracy of

instruction,

improperly

could

evidence

unrelated activity to Henley. showed banks that and Henley's

Henley argues that this evidence committed that robberies occurred at at

co-conspirators in some

were

suspects

robberies

restaurants.

Finally, Henley asserts that this evidence also

included information that he routinely sold illegal drugs, which did not relate to the overall conspiracy at issue in his case. We are not persuaded by Henley's arguments. We review a district court's decision to give or refuse a jury instruction for an abuse of discretion. at 474. Hurwitz, 459 F.3d

We have held that a district court is not required to

instruct the jury on multiple conspiracies unless the evidence demonstrates that the defendant was involved in a separate

conspiracy unrelated to the overall conspiracy charged in the indictment. In Nunez, 432 F.3d at 578. case, in the any the evidence did not show that Henley

this

participated charged in

conspiracies

other

than to

the the

conspiracy evidence

indictment. 16

With

regard

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concerning

robberies

committed

at

banks

and

restaurants,

the

evidence demonstrated that Henley did not participate in these crimes. The only evidence of Henley's unrelated criminal

activity involved Henley's sale of drugs and his commission of robberies at gas to stations. This evidence, however, was

insufficient

support

Henley's

requested

jury

instruction

because the evidence failed to show that Henley entered into any agreements or otherwise conspired with other criminal agents to commit these crimes. See Nunez, 432 F.3d at 578. Additionally,

the district court's cautionary and limiting instructions to the jury mitigated any potential prejudice caused by this evidence. Therefore, we conclude that the district court did not abuse its discretion instruction. F. Finally, Henley asserts that his sentence was procedurally unreasonable. He contends that the district court erred in in refusing to give a multiple conspiracy

failing to calculate the appropriate Guidelines range at the outset of the sentencing proceeding. According to Henley, the

district court's error prejudiced him because the court did not consider and rule on Henley's objections to the Guidelines range recommended in the PSR for his conspiracy and robbery counts. Henley concedes that he did not make this argument in the district court and that, therefore, 17 we review his claim for

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plain error.

United States v. Lynn, 592 F.3d 572, 577 (4th Cir. To demonstrate plain

2010) (citing Fed. R. Crim. P. 52(b)).

error, a defendant must show that the district court erred, that the error was plain, and that the error affected the defendant's substantial rights. (1993). In the United States v. Olano, 507 U.S. 725, 732 of sentencing, an error affects a

context

defendant's substantial rights if the defendant can show that his imposed sentence was longer than it would have been absent the district court's error. 514, 518 (4th Cir. 2001). In this case, we first consider whether the district court committed significant procedural error. Gall v. United States, United States v. Angle, 254 F.3d

552 U.S. 38, 51 (2007); United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). As a matter of procedure, a district court

must begin its sentencing proceeding with a correct calculation of the applicable Guidelines range. Gall, 552 U.S. at 49;

Evans, 526 F.3d at 161. Here, calculate the the district applicable court did not err by failing at to the

Guidelines

range,

because,

beginning of the sentencing proceeding, the court adopted the "approach" and the calculated range set forth in the PSR. The

PSR recommended the statutory minimum sentence for the firearm counts and a Guidelines range of 210-262 months for the

conspiracy and robbery counts. 18

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Even if we assume, however, that the district court erred in failing to announce a "final" Guidelines range before

considering the factors under 18 U.S.C. § 3553(a), Henley has failed to show that, absent such error, his sentence would have been shorter than the one actually imposed. at 518. and See Angle, 254 F.3d

In fact, Henley's 72-month sentence for the conspiracy counts was shorter than the "low-end" of the

robbery

Guidelines range of 78-97 months that Henley urged the district court to consider based on his objections to the PSR.

Therefore, we conclude that the district court did not plainly err in imposing Henley's sentence, and that Henley's sentence was procedurally reasonable.

III. Based on our holdings stated above, we affirm the district court's judgment. AFFIRMED

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