U.S. v. Henry, 04-3076.

• Citation: 472 F.3d 910
• Decision Date: 12 January 2007
• Docket Number: No. 04-3116.,No. 04-3076.,04-3076.,04-3116.
• Parties: UNITED STATES of America, Appellee v. Walter HENRY, III, A/K/A Money, A/K/A Henry Walker, Appellant United States of America, Appellee v. Charles Harrison, A/K/A Boomie, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

472 F.3d 910

UNITED STATES of America, Appellee v. Walter HENRY, III, A/K/A Money, A/K/A Henry Walker, Appellant United States of America, Appellee v. Charles Harrison, A/K/A Boomie, Appellant.

No. 04-3076.

No. 04-3116.

United States Court of Appeals, District of Columbia Circuit.

Argued September 14, 2006.

Decided January 12, 2007.

Appeals from the United States District Court for the District of Columbia (No. 98cr00235-04). (No. 98cr00235-05).

William M. Kent argued the cause for appellants. Deborah A. Persico, appointed by the court for appellant Charles Harrison, was on the joint brief for the appellants.

Deborah Watson, Attorney, United States Department of Justice, argued the cause for the appellee. Kenneth L. Wainstein, United States Attorney at the time the brief was filed, was on brief. Roy W. McLeese, III, Assistant United States Attorney, entered an appearance.

Before: HENDERSON, GARLAND and KAVANAUGH, Circuit Judges.

Opinion for the court filed PER CURIAM.

Concurring opinion filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge KAVANAUGH.

PER CURIAM.

Having been resentenced on remand from this court, Walter Henry and Charles Harrison again appeal their convictions and sentences stemming from their participation in a conspiracy to import and distribute heroin in the Washington, D.C. and Baltimore, Maryland metropolitan areas. They appeal their convictions on the ground that the trial court committed three evidentiary errors: (1) it admitted expert testimony based in part on testimonial hearsay in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (Claim One), (2) it admitted expert testimony based on unreliable methodology (Claim Two) and (3) it admitted the guilty plea of a non-testifying co-conspirator (Claim Three). Henry and Harrison also argue that they received ineffective assistance of counsel when their appellate counsel failed to raise Claims Two and Three on direct appeal.¹ Finally, Henry and Harrison challenge their sentences on the ground that the district court applied the United States Sentencing Guidelines (Guidelines) in a mandatory fashion in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons set forth below, we conclude that Henry and Harrison waived their evidentiary claims by failing to raise them at trial or on direct appeal. Furthermore, Henry's and Harrison's ineffective assistance of counsel claim must be raised on collateral review, see 28 U.S.C. § 2255, if at all. Consistent with our holding in United States v. Ayers, 428 F.3d 312 (D.C.Cir.2005), however, we will vacate the sentences and remand for resentencing because we cannot say that the district court's Booker error was harmless beyond a reasonable doubt.

I.

We set forth in detail the facts surrounding the heroin conspiracy in United States v. Stover, 329 F.3d 859 (D.C.Cir. 2003), cert. denied, 541 U.S. 1018, 124 S.Ct. 2088, 158 L.Ed.2d 635 (2004). Accordingly, we mention only those matters required for an understanding of the decision. On May 4, 1999, the Government charged Henry, Harrison and other individuals with conspiracy to possess with intent to distribute one kilogram or more of heroin. Nuri Lama, the conspiracy's ringleader, pleaded guilty and thereafter testified as a witness against his co-conspirators at their October 20, 1999 trial. Although the jury convicted Henry of possession with intent to distribute, it failed to reach a verdict on the drug conspiracy count against Henry and Harrison.²

On September 11, 2000, Henry and Harrison were retried on the drug conspiracy count. Because Lama had died between the two trials, the prosecution introduced evidence at the second trial that Lama had pleaded guilty to the conspiracy charge. The prosecution also introduced the expert testimony of Metropolitan Police Department Detective Tyrone Thomas who testified about the meanings of various code words used by the co-conspirators during telephone conversations intercepted by the FBI.

After a five-week trial, the jury convicted both Henry and Harrison of conspiracy to possess with intent to distribute one kilogram or more of heroin. In determining Henry's and Harrison's sentences under the then-mandatory Guidelines, the district court utilized a formula derived from Detective Thomas's expert testimony to calculate the amount of heroin for which Henry and Harrison were responsible. Based on its calculations, the court found each responsible for 39.4 kilograms of heroin, resulting in a base offense level of 38. The court then added four levels for the leadership roles of both Henry and Harrison in the conspiracy and two levels for possession of a firearm for a total offense level of 44. Combined with Henry's and Harrison's Criminal History Category of I, the Guidelines mandated a sentence of life imprisonment for both and the court sentenced them accordingly.

The co-conspirators, including Henry and Harrison, appealed their convictions and sentences. In Stover, we affirmed Henry's and Harrison's convictions but concluded that the district court had erroneously calculated the amount of heroin for which each should be held responsible. Accordingly, we vacated their sentences and remanded to the district court to recalculate the drug quantity. Stover, 329 F.3d at 876.

At their resentencing hearings,³ both Henry and Harrison argued that the Sixth Amendment prohibits judicial calculation of drug amounts at sentencing.⁴ The district court rejected their argument and, based on its revised calculation of the drug amounts, held both Henry and Harrison responsible for 27.3 kilograms of heroin. Again treating the Guidelines as mandatory, the court set both base offense levels at 36. It then added four levels for their managerial roles in the offense and two levels for possession of a firearm for a total offense level of 42. Combined with their Criminal History Category of I, Henry's and Harrison's Guidelines range was 360 months to life imprisonment and the district court again sentenced them to life imprisonment. Henry and Harrison filed timely notices of appeal.

II.

We address separately Henry's and Harrison's evidentiary challenges, their ineffective assistance of counsel claim and their Booker challenge.

A. Evidentiary Challenges

Although they failed to raise their evidentiary challenges at trial or on direct appeal, Henry and Harrison argue that we should nevertheless review them for plain error on this appeal after the resentencing remand. See Fed.R.Crim.P. 52(b). We disagree.

It is well-settled that "where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand." Nw. Ind. Tel. Co. v. FCC, 872 F.2d 465, 470 (D.C.Cir.1989) (citing Laffey v. Nw. Airlines, Inc., 740 F.2d 1071, 1089-90 (D.C.Cir.1984)); see also United States v. Ben Zvi, 242 F.3d 89, 95-96 (2d Cir.2001) (applying waiver to second appeal following resentencing remand); cf. United States v. Adesida, 129 F.3d 846, 849-50 (6th Cir.1997) (applying waiver at resentencing remand stage). The "widely-accepted" bar promotes procedural efficiency and prevents the "`bizarre result'" that "`a party who has chosen not to argue a point on a first appeal should stand better as regards the law of the case than one who had argued and lost.'" Nw. Ind. Tel., 872 F.2d at 470 (quoting Laffey, 740 F.2d at 1089-90). Although the "waiver principle is [not] an absolute preclusion to appellate review," Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.Cir. 1995), we have stated that "discretion to waive a waiver is normally exercised only in `exceptional circumstances, where injustice might otherwise result,'" id. at 740 (quoting Eli Lilly & Co. v. Home Ins. Co., 794 F.2d 710, 717 (D.C.Cir.1986)).

Henry and Harrison have not demonstrated "exceptional circumstances" that excuse their failure to raise the evidentiary challenges either at trial or on direct appeal. Regarding Claim One—the allegedly erroneous admission of Thomas's expert testimony based in part on hearsay—Henry and Harrison argue that the Crawford decision, which the Supreme Court issued after their direct appeal,⁵ created a new legal rule that rendered the testimony inadmissible. While we have suggested that an intervening change in the law can constitute an "exceptional circumstance[]" that justifies waiving waiver, see Crocker, 49 F.3d at 740, the Crawford decision did not effect such a change with respect to the admissibility of Thomas's expert testimony. In Crawford, the Supreme Court altered the framework set forth earlier in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and held that the Confrontation Clause of the Sixth Amendment bars "testimonial" hearsay statements unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine him. Crawford, 541 U.S. at 68-69, 124 S.Ct. 1354. Crawford, however, did not involve expert witness testimony and thus did not alter an expert witness's ability to rely on (without repeating to the jury) otherwise inadmissible evidence in formulating his opinion under Federal Rule of Evidence 703.⁶ In other words, while the Supreme Court in Crawford altered Confrontation Clause precedent, it said nothing about the Clause's relation to Federal Rule of Evidence 703. Because Crawford does not represent an intervening change in the law regarding the admissibility of Thomas's expert testimony, no exceptional circumstance exists and Henry's and Harrison's Claim One is thus waived.

With respect to Claims Two and Three, Henry and Harrison appear to argue that we should address the merits in this appeal because their original appellate counsel acted ineffectively in failing to raise them on direct appeal. See Appellants' Br. at 35-36, 40. In particular, Henry and Harrison argue that the trial court...