241 F.3d 638 (9th Cir. 2000), 99-10526, United States v. Henderson

Docket Nº:99-10526
Citation:241 F.3d 638
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARREN EUGENE HENDERSON, Defendant-Appellant.
Case Date:December 11, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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241 F.3d 638 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DARREN EUGENE HENDERSON, Defendant-Appellant.

No. 99-10526

United States Court of Appeals, Ninth Circuit

December 11, 2000

Argued and Submitted August 8, 2000

As Amended March 5, 2001

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Thomas C. Naylor, Henderson, Nevada, for the defendant appellant.

Walter L. Ayers, Asst. U.S. Atty., Las Vegas, Nevada, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding. D.C. No.CR-98-00131-HDM

Before: David R. Thompson, Thomas G. Nelson, and Barry G. Silverman, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Darren Eugene Henderson was convicted of three counts of armed bank robbery in violation of 18 U.S.C. S 2113(a) and (d) (1994). He contended someone else committed the robberies. He had been an informant who had provided information leading to the apprehension of a number of criminals, and he claimed he had been framed in retaliation for these services. His arrest followed a tip by a confidential informant who told the Federal Bureau of Investigation ("FBI") that Henderson was the bank robber depicted on a television episode of "America's Most Wanted." Henderson challenges the district court's refusal to order disclosure of the informant's name and to hold an in camera hearing on his disclosure request. Henderson also argues that probable cause for his arrest was lacking and that FBI agents improperly impounded and searched his rental car, on which the lease had expired. He also contends the district court erred by denying his request to present an alibi witness, by allowing a witness to testify that he was the bank robber shown in bank surveillance photographs, by denying his motion for acquittal on two counts of bank robbery based on robberies that occurred on the same day, and by denying his new trial motion brought on the ground of prosecutorial misconduct during closing argument.

We have jurisdiction under 28 U.S.C. S 1291 (1994), and we affirm.

FACTS

"America's Most Wanted" is a nationally syndicated television show that profiles unsolved crimes and solicits assistance from the public in identifying and tracking down the suspects portrayed on its episodes. The March 21, 1998 episode featured a suspect sought in a series of bank robberies in New Orleans, Louisiana. The show explained that the robber employed a series of disguises designed to hide his appearance. One particularly notorious disguise, which involved a black wig, earned the robber the nickname "the Wig Bandit."

Agents of the FBI believed the Wig Bandit was also responsible for three bank robberies in Las Vegas, Nevada. On January 16, 1998, a lone black man wearing a maroon suit had robbed the Bank of America at 4610 West Sahara in Las Vegas. After entering the bank, the man, who was wearing glasses, brandished a black handgun

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and, using obscene language, demanded fifty and one hundred dollar bills from two tellers. After they complied, he left. On March 13, 1998,agents believed the same man, this time wearing glasses, camouflage fatigues and a matching hat, robbed the Wells Fargo Bank at 4720 South Eastern Avenue in Las Vegas. He again pointed a handgun at a teller and, cursing, demanded that the teller give him money. When he received the money, he left. That same day, surveillance cameras filmed what appeared to be the same man rob the Bank of America on 1380 East Flamingo in Las Vegas. Once again, the man, who was wearing glasses and camouflage clothing, displayed a handgun and ordered a bank teller to give him fifty and one hundred dollar bills. After the teller gave the man the money, he left the bank. Agents believed the New Orleans bank robberies and the three Las Vegas bank robberies were the work of the same individual because the crimes followed the same organizational pattern and because the robber in New Orleans had worn the same distinctive maroon suit worn by the robber in the January 16, 1998 Las Vegas bank robbery.

Given this connection between the Las Vegas and New Orleans robberies, when a man called the FBI field office in New Orleans and told agents that he recognized the bank robber portrayed on the March 21st "America's Most Wanted" episode, they contacted FBI Special Agent Tracy L. Dockery of the Las Vegas FBI office. Agent Dockery interviewed the tipster, who said that the suspect was a man named "Dee Henderson." The tipster also positively identified the suspect in the Las Vegas surveillance photographs as "Dee Henderson." He added that "Dee Henderson" was from New Orleans, had an extensive criminal record, and liked to stay at one of three hotels while in Las Vegas, including the Las Vegas Marriott Hotel.

Agent Dockery then searched through the FBI's computerized databases to find an individual with connections to both Las Vegas and New Orleans. She determined that the appellant, Henderson, had such connections. She found a Las Vegas driver's license for Henderson that fit the informant's description of "Dee Henderson." She learned that Henderson had used, in various documents, certain addresses in Las Vegas and New Orleans that were close to several of the banks victimized by the Wig Bandit. She also learned that an electronic tracking device, or B-pack, associated with one of the Las Vegas robberies had been found near an address listed by Henderson on his Nevada driver's licence. Finally, because the tipster told the FBI that "Dee Henderson" was currently staying at the Marriott Hotel in Las Vegas, agents called the front desk at that hotel and learned that Henderson was staying in one of the guest rooms with a girlfriend, Anne Thompson. The agents then checked themselves into the hotel and began surveillance of Henderson.

On the morning of March 24, 1998, Allison Ryan of the FBI called the Las Vegas Metropolitan Police Department ("LVMPD") and asked for a booking photo of Henderson, which the LVMPD had from a previous arrest. Agent Dockery and Special Agents Henry Schlumpf and Deborah Calhoun testified that when they obtained the booking photo they compared it with the surveillance photos of the New Orleans and Las Vegas bank robberies. All three agents agreed that Henderson was the man shown in the surveillance photographs. Later that day, when they saw Henderson in person, they said they became even more convinced that he was the robber depicted in the surveillance photographs from the Las Vegas bank robberies.

That afternoon, agents observed Henderson's girlfriend, Thompson, outside the Marriott Hotel loading a rental car with luggage. Later, Henderson left the hotel and entered the car to join Thompson. The agents then arrested him. The FBI also took Thompson into custody because

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there was an outstanding warrant for her arrest on an unrelated matter.

While the agents attempted to determine whether the outstanding warrant for Thompson's arrest was valid, they allowed her to remove some of her belongings from the rental car, which they had impounded. Thompson refused to consent to a search of the car because, she said, she had marijuana in the trunk. She previously had told the agents there was a gun in the trunk.

The FBI later learned the warrant for Thompson's arrest was invalid and decided to release her. Thompson asked to remove more of her personal belongings from the impounded rental car. Agent Friedrich told her she could remove those items, but that an agent would have to watch her because the FBI was probably going to obtain a search warrant for the vehicle, given the information that the car contained a gun and marijuana. Thompson agreed to this procedure, and while Agent Friedrich watched, she rummaged through her belongings in the trunk of the car. While she was doing so, Agent Friedrich observed several pieces of clothing in the trunk that were similar to items worn by the bank robber, including a burgundy suit, a Kangol hat, and military boots. Based on Agent Friedrich's observations, the FBI obtained a search warrant for the car. When the agents searched the car, they recovered the burgundy suit, one black and one silver handgun, several Kangol hats, military boots, and a black bag similar to one used by the suspect in several of the robberies.

On April 8, 1998, a grand jury indicted Henderson on three counts of bank robbery for robbing the three banks in Las Vegas. Before trial, Henderson moved to compel disclosure of the tipster's identity. The district court declined to hold an in camera hearing and denied the disclosure motion. Henderson also moved to exclude the clothes and firearms found in the trunk of his rental car. The district court concluded Henderson had standing to make such a challenge, but denied the motion.

At trial, the government called three Bank of America employees who testified that they could not say whether Henderson was the man who robbed their bank on West Sahara on January 16, 1998. One, Megan Moulton, testified that the robbery occurred shortly before the bank closed for the day. Moulton said she could not positively identify the robber, although she testified that Henderson looked like the robber. The others, Rosalind Terlitzky and Michelle Sanders, testified that they could not identify Henderson. Later, over Henderson's objection, the government called LVMPD Detective Gayland Hammack. Detective Hammack knew Henderson and, based on his review of the surveillance photographs from the January 16th bank robbery of the Bank of America on West Sahara, he testified that Henderson was the man depicted in the photograph robbing that bank.

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