U.S. v. Henry
| Decision Date | 03 July 1989 |
| Docket Number | No. 88-5890,88-5890 |
| Citation | 878 F.2d 937 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Louis Edward HENRY, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Joseph M. Whittle, U.S. Atty., Julie A. Brown, Asst. U.S. Atty. (argued), Louisville, Ky., for U.S.
G. Murray Turner (argued), Mulhall, Turner & Hoffman, Louisville, Ky., for Louis Edward, Jr.
Before JONES, WELLFORD and GUY, Circuit Judges.
Defendant, Louis Edward Henry, Jr., appeals from his criminal convictions for marijuana offenses. Specifically, Henry was convicted of manufacturing and possessing marijuana with the intent to distribute, 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Since Henry was in possession of firearms at the time of his arrest, he was also charged and convicted of using a firearm during the commission of a drug trafficking crime. 18 U.S.C. Sec. 924(c)(1).
Henry was sentenced to two one-year concurrent terms on the marijuana offenses and two consecutive five-year terms on the firearms counts. The five-year terms were also made consecutive to the concurrent one-year terms.
On appeal, Henry argues that the trial court made two errors as to jury instructions. He also claims that the evidence against him was obtained in violation of his fourth amendment rights, and that the two firearms counts should have been merged as they constitute only one offense.
Upon review, we find the questions raised as to jury instructions to be wholly without merit. We also conclude that no violation of defendant's fourth amendment rights occurred. However, we find merit to defendant's arguments on the firearms counts, and conclude that only one offense was committed. We discuss these issues seriatim.
On September 21, 1987, at 3:30 a.m., an anonymous tipster telephoned the Jefferson County, Kentucky, Police Department, and indicated that a marijuana field was in the process of being harvested on property which was later determined to be owned by defendant Henry. 1 Pursuant to the call, Sgt. Douglas Hawkins met with the tipster and they travelled together to where the harvesting was occurring. Upon arriving at the scene, Hawkins observed three flashlights moving about in a manner that confirmed a harvesting operation was in progress. Hawkins then called for backup and a helicopter to illuminate the area. Three backup units and the helicopter arrived at about the same time. Since the helicopter pilot was only aware of the general area where the activity was occurring, he turned on his lights too soon and the three suspects fled. The police officers then returned to their vehicles and proceeded up a road leading into the property in the direction the suspects had fled. Upon reaching a locked gate, the officers, all of whom were uniformed, left their cars and proceeded on foot. They observed a farmhouse, an outbuilding, and a circular driveway on which two vehicles were parked. The vehicles were dew covered and the officers could not see inside. Officer James Gray approached one of the vehicles, a Ford Torino, while the other officers stayed back. Gray thought he saw a person or persons in the front seat. He loudly identified himself and ordered the occupants out. When no one exited, Gray approached the car and opened the driver's door. He saw two persons crouched down in the front seat. Gray ordered the driver and passenger to get out. Gray started to pat down the driver when he heard Hawkins shouting that the passenger, who turned out to be defendant Henry, had a gun. Henry, apparently realizing for the first time that other officers were present, dropped the gun as ordered by Hawkins.
Having seen Henry emerge not only armed but also in a manner suggesting he might use the weapon, the officers were concerned about the location of the third individual who had fled the harvesting operation. Gray checked the other vehicle, a pickup truck, and found what appeared to be a bag of marijuana in plain view, but no occupants. Gray then looked up at the farmhouse, which appeared to be in the process of being remodeled, and saw that the front door was ajar eight to ten inches. Gray carefully opened the door, shined his flashlight inside, and observed a large marijuana plant hanging upside down from an exposed rafter in the kitchen. At this point, Gray returned to his vehicle and the narcotics unit was summoned. The narcotics unit responded with a search warrant.
Upon execution of the search warrant, a large amount of freshly cut marijuana was found in the house. One thousand forty-one dollars ($1,041) was confiscated from Henry's person at the time of the arrest along with $2,100 found in a cigar box in the living room. A .22 caliber Beretta pistol was located in close proximity to the cash. Thirty mature marijuana plants were found growing behind the garage, a short distance from the house. The plants were tied over with ropes and staked to the ground. The area was encircled with ropes, trip wires, and bells. An intercom system was hooked up between the garage and the house which broadcast sounds in the garage area into the house. Inside the house, next to a window which looked out upon the plants growing behind the garage, a pair of binoculars was found. Next to the window was a bathtub containing three large baggies, each containing over a pound of cured processed marijuana. Close to the window was a loaded .30 caliber rifle. Two books on growing marijuana were also seized.
Henry and the other occupant of the car, Frank Morgan, Jr., were subsequently indicted. Henry testified at trial and, on the basis of his exculpatory testimony as to his codefendant, Morgan was acquitted. The jury found the rest of Henry's testimony less convincing, however. Henry testified that the marijuana plants had grown wild, and that he merely harvested them for his own personal use. As to the weapons, Henry maintained he was merely exercising his Constitutional right to keep and bear arms, stating that he carried a loaded firearm with him at all times on the premises due to his concern about "prowlers." With regard to the rifle, Henry testified he used it on occasion to "shoot groundhogs." Henry further testified he found the bagged processed marijuana in a farm outbuilding, that it appeared moldy to him, and he thought he might use it for "mulch."
During deliberations, the jury sent out a note requesting "the written charges ... the judge's instructions ... [and] more coffee." (Transcript at 484-85). The court brought in the jury and the following colloquy took place:
Defense counsel objected to less than the full set of instructions being sent in and also asked that the jury be readmonished that the indictment is not evidence. The court overruled the objection as to less than the full set of instructions going to the jury but did repeat the entire instruction relating to the indictment not being evidence of guilt.
Although the discussion that occurred between the court and members of the jury is less than completely illuminating as to just what the jury wanted, we cannot conclude that the court was unresponsive to the jury's request. As to the court's decision to send in only the instructions relating to the substantive counts, we find this to be a proper exercise of the court's discretion. United States v. Acosta, 763 F.2d 671, 677 (5th Cir.), cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 148 (1985).
Henry also argues that the court erred in the instruction it gave to the jury relative to the lesser included offense of possession of marijuana. The court's instruction was as follows:
The essential elements which the government must prove beyond a reasonable doubt to establish the guilt of the defendants or either of them under Count 2 of the indictment are, first, that the defendants knowingly and intentionally possessed a controlled substance, and second, that the defendants or either of them possessed the substance with the intent to distribute it.
If the jury finds the defendants or either of them not guilty under this instruction, you should then proceed to determine the guilt or innocence of the accused as to the lesser included offense of possession of a controlled substance. In order to find the defendants or either of them guilty of the lesser included offense of possession of a controlled substance, the jury must find beyond a reasonable doubt that the defendants or either of them knowingly and intentionally possessed a controlled substance as charged in the indictment.
(Transcript at 466-67). Defendant argues that the last five words of the instruction, "as charged in the...
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