U.S. v. Henderson
| Decision Date | 14 February 2003 |
| Docket Number | No. 01-2392.,01-2392. |
| Citation | 320 F.3d 92 |
| Parties | UNITED STATES of America, Appellee, v. Chamond HENDERSON, a/k/a "Butter," Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
John T. Ouderkirk, Jr., for appellant.
Peter K. Levitt, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.
Before SELYA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.
Defendant-appellant Chamond Henderson ("Henderson") appeals from a jury conviction on all five counts of an indictment charging him and two others. Count One charged Henderson, Robert Carey ("Carey") and Kimberly Powers ("Powers") with conspiring to possess with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 846.1 Counts Two through Five charged Henderson and Powers with possessing crack cocaine with intent to distribute it and with distribution in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Carey was also charged in Count Five.
Henderson and Carey were tried jointly. Both were convicted and appealed separately. Carey's appeal is also before us and is the subject of a separate opinion. See United States v. Carey, No. 01-2439. Powers entered into a plea bargain with the government and testified at the trial.
We recount the facts as the jury rationally could have found them, consistent with record support. In October 1998 the Drug Enforcement Administration ("DEA") began an investigation of crack cocaine trafficking in Worcester, Massachusetts. The DEA contacted a known crack cocaine user, Joseph Mozynski ("Mozynski"), to serve as a cooperating witness in its investigation. Mozynski knew Henderson and had seen him once or twice before becoming a cooperating witness. Mozynski facilitated four purchases of crack cocaine from Henderson during the course of the investigation. Henderson and Mozynski were present at all four sales. Two of these four purchases were made in the basement of the apartment building in which Henderson lived, 27 Wachusett Street. The other sales took place within two blocks of Wachusett Street.
The sale occurred on October 19, 1998. It took place at 6 Denny Street in Worcester. Carey and Powers were living there at the time. Mozynski talked to Carey about wanting to buy crack cocaine and was told by Carey that he could get it from a person called "Butter." The deal was that Mozynski would pay $1,200 for 25 grams of crack cocaine. Carey was to get $200 for setting up the sale. It was agreed that Mozynski would pick up the crack cocaine at 6 Denny Street on October 19.
On that day, Mozynski met with DEA Special Agents Timothy Anderson and Robert Guerard. They searched him and then wired him with a concealed monitoring device, enabling the DEA to tape record the drug transactions, and gave him $1,200. The agents watched Mozynski enter 6 Denny Street. After he was inside the house, he was met by Powers, Carey, and a woman named Lynn Cappulett. Mozynski showed Powers the $1,200 and Powers told Carey to page Butter. After speaking to Butter on the phone and telling him that Mozynski was here with the money, Powers told Mozynski that Butter would be there within five minutes. Agent Anderson videotaped Henderson walking down Denny Street and then turning into the driveway at 6 Denny Street. Mozynski gave Henderson the $1,200 and received from him a package. Mozynski and Henderson discussed future transactions, and Henderson told Mozynski to contact him only through Powers.
A short time after Mozynski had entered 6 Denny Street, Agent Anderson observed and videotaped him leaving the premises. Mozynski went straight to the DEA agents and gave them the package Henderson had given him. Mozynski also made a written statement describing the events that took place inside 6 Denny Street. As part of the statement, Mozynski described Henderson as five feet, ten inches tall, 175 or 180 pounds and of medium complexion. A couple of minutes later, Agent Anderson observed and videotaped Henderson leaving 6 Denny Street. A chemical analysis of the contents of the package given by Mozynski to the DEA agents showed that it contained 23.7 grams of crack cocaine.
The second sale, which took place on October 27, 1998, was also a face-to-face purchase by Mozynski. Mozynski met Powers at 6 Denny Street to purchase three ounces of crack cocaine from Henderson. After leaving Denny Street, Mozynski and Powers met Agent Guerard in the car he used for undercover work. Agent Guerard said he was a customer of Mozynski. Powers told Guerard to drive to a nearby location where Powers and Mozynski got out of the car. Mozynski and Powers met Henderson in the basement of Henderson's apartment building at 27 Wachusett Street. Mozynski paid Henderson $3,000 and was given a piece of newspaper containing a plastic bag. Mozynski then delivered the package to Agent Guerard, who searched him. The subsequent chemical analysis showed the substance in the plastic bag contained 73.2 grams of crack cocaine.
The third sale took place on November 3, 1998. Mozynski contacted Powers prior to November 3. Powers told him to contact Butter directly by his pager, which he did. Butter returned the page; they talked over the phone and agreed to another drug sale using the same format as the prior sale. On November 3, Mozynski met Powers at 6 Denny Street. They both met Agent Guerard in his car. Powers and Mozynski again met Henderson in the basement of Henderson's apartment building at 27 Wachusett Street. Mozynski gave Henderson $3,000 and Henderson gave Mozynski a package. The package was delivered to Agent Guerard. Subsequent analysis disclosed that the contents of the package contained 81.09 grams of cocaine. A DEA agent took photos of Powers and Mozynski entering 27 Wachusett Street.
There were actually two more sales. On November 16, Powers met with Henderson on the street while Mozynski waited a short distance away. It was dark outside and Mozynski could not positively identify Henderson. Henderson gave Powers a package, which Powers gave to Mozynski. Analysis of the package disclosed that it contained wax, not crack cocaine. Mozynski called Butter from Carey's apartment the evening of the wax sale. Butter said that he would give Mozynski the crack cocaine he owed him. Mozynski then met with Agent Guerard and gave him Butter's pager number, which Guerard called. The agent spoke to Butter, who promised that he would give Guerard one ounce of crack cocaine the next day, November 17, and two and one half ounces the day after, November 18. The beeper number Agent Guerard used to contact Butter was listed to "D. Henderson" of "27 Wachusett Street, Worcester, MA." Henderson, whose middle name is David, lived at "27 Wachusett Street" in Worcester. On November 17, Powers met Henderson at 27 Wachusett Street and Henderson gave her a package to give Mozynski. Powers then met Mozynski and handed him the package which Mozynski gave to Agent Guerard. An analysis showed that the package contained 19.68 grams of cocaine.
In addition to this evidence there was testimony by Powers that she bought crack cocaine from Henderson on a daily basis throughout the period of the conspiracy; that at times she made purchases of crack cocaine several times a day; that she usually purchased crack cocaine one ounce at a time which she sold to her customers. Powers further testified that Carey regularly bought crack cocaine from Henderson during the period of the conspiracy. She also testified that Carey either used the crack cocaine himself or resold it to his own customers. Powers and Carey lived together during most of the conspiracy period.
We consider the issues in the order set forth in appellant's brief.
Defendant filed a Motion to Suppress Identifications. There was a hearing on the motion prior to trial. The district court denied the motion by a margin notation, "Motion Denied." There were no findings of facts or rulings of law. "We will uphold a district court's decision to deny a suppression motion if the decision is supported by any reasonable view of the evidence." United States v. Campa, 234 F.3d 733, 737 (1st Cir.2000). "Our review of a district court's decision to grant or deny a suppression motion is plenary."2 United States v. McCarthy, 77 F.3d 522, 529 (1st Cir.1996).
There is an additional factor, however, that must be addressed in our consideration of the pretrial review of the suppression motion. There were two identification witnesses who testified at the hearing, Powers and Mozynski. In January 1999, Mozynski was shown a single booking photo of the defendant. Mozynski was asked "Who is this?" He replied, "It looks like Butter." In mid-February 1999, Powers was shown the same photo. Powers was asked if it was "Butter." She answered, "Yes."
The Supreme Court has dealt directly with this problem. In Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Court held:
Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of...
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