U.S. v. Henry, 95-20651

• Decision Date: 08 May 1997
• Docket Number: No. 95-20651,95-20651
• Citation: 113 F.3d 37
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcus Damone HENRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 37

113 F.3d 37

UNITED STATES of America, Plaintiff-Appellee, v. Marcus Damone HENRY, Defendant-Appellant.

No. 95-20651.

United States Court of Appeals, Fifth Circuit.

May 8, 1997.

Michael Taylor Shelby, Paula Camill Offenhauser, Assistant U.S. Attorney, Kathlyn Giannaula Snyder, Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Federal Public Defender, Dola J. Young, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and REAVLEY and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The issues presented are whether the district court, in accepting defendant's pleas of guilty to conspiracy to possess more than 50 grams of cocaine base with intent to distribute and possession of cocaine with intent to distribute, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 and 18 U.S.C. § 2, varied from the procedures required by Federal Rule of Criminal Procedure 11, and if so, whether the variance affected the substantial rights of the defendant. We affirm. After reviewing the transcript of the Rule 11 hearing we conclude that the district court (1) complied with the procedure required by FED.R.CRIM.P. 11(d) to insure that the pleas were voluntary; and (2) any variance from its duty to advise defendant as to his rights to confront and cross-examine witnesses against him, FED.R.CRIM.P. 11(c)(3), and as to the potential admissibility of his statements made in the Rule 11 proceedings in a perjury prosecution, FED.R.CRIM.P. 11(c)(5), did not affect the defendant's substantial rights.

BACKGROUND

On January 24, 1995, a narcotics officer with the Houston Police Department received information from a reliable informant that Henry had offered to sell two kilograms of cocaine. As a result of receiving this information, the undercover officer arranged to buy the cocaine from Henry for $17,500 a kilogram. The officer met Henry and was shown 36 "cookies" of crack cocaine in a car trunk. Henry was arrested and 940.6 grams of 80.8 percent pure crack cocaine was recovered from the trunk of a car.

Henry was indicted on February 27, 1995 with conspiracy to possess more than 50 grams of cocaine base with intent to distribute (Count 1) and possession of cocaine base with intent to distribute (Count 2). Henry was not charged, as his co-conspirator, with knowingly using a firearm during and in relation to the drug-trafficking crimes. 18 U.S.C. § 924(c)(1). At his rearraignment hearing Henry pleaded guilty to both counts. He was subsequently sentenced to 168 months imprisonment, followed by a 60-month term of supervised release, and fined $10,000. The sentence reflects a three-level reduction for acceptance of responsibility.

At the Rule 11 hearing, the Government's attorney provided the following factual basis to support Henry's guilty pleas:

On Wednesday, January 24, 1995, Houston Police Department [HPD] narcotics officer Don LeBlanc and an HPD confidential informant [CI] negotiated via telephone and in person to purchase two kilograms of crack cocaine for $17,500 each.

On January 24, 1995, an HPD CI contacted HPD narcotics officer Don LeBlanc and advised LeBlanc that he or she knew of individuals who were capable of supplying two kilograms of crack cocaine.

At approximately 1300 hours the CI met with LeBlanc and the CI paged a black Henry subsequently returned the call and negotiated with LeBlanc and stated he was ready to deliver the two kilograms of crack cocaine.

male later identified as Marcus Damone Henry.

Henry further requested that LeBlanc and the CI meet him at a store located at Bellfort and Mykwa [Streets] to conduct a transaction.

Moreover, Henry also told Officer LeBlanc that "my people will have the two kilograms of cocaine at the store when you arrive." Henry further stated to Officer LeBlanc that he would be waiting in front of the store wearing red clothing.

Prior to LeBlanc and the CI arriving at the story to meet Henry HPD narcotics officers established surveillance at area of Bellfort and Mykawa [sic]. Officer LeBlanc and the CI arrived at approximately 1350 hours and conversed with Henry.

When he told officer LeBlanc that the cocaine was at his residence located behind the store, an unknown black male further described as five-eight, approximately 22 years of age approached Henry. Henry asked this person was it okay to give officer LeBlanc the crack cocaine. This person stated that it was okay and further advised Henry that he would meet him and Officer LeBlanc at the residence as soon as he came out of the store

Officer LeBlanc then saw this person enter the store. Henry escorted Officer LeBlanc to Henry's residence at 6155 Bellarbor, Houston, Texas. Once at this residence, Henry and Officer LeBlanc met with another black male who was later positively identified by Officer LeBlanc as Dundre Robertson.

Henry obtained the keys from Robertson to a green Chevrolet Monte Carlo which was parked in the driveway of the residence. Robertson said the quality of the crack cocaine was good and further stated that all 36 cookies of crack cocaine were present inside the above-mentioned Chevrolet Monte Carlo.

Robertson stood back as to stand guard as Henry proceeded to open the trunk of the Chevrolet Monte Carlo. The person arrived at the residence as Henry was about to show Officer LeBlanc the crack cocaine.

LeBlanc spoke to this person. Robertson stated to LeBlanc that this person was very cool. Henry reached into the trunk of the vehicle and displayed a dark-colored plastic bag containing a white plastic bag which further contained 12 small pink pouches. Each pouch contained three cookie-shaped substances which Henry and Robertson represented to Officer LeBlanc as being crack cocaine.

Officer LeBlanc then asked Henry and Robertson where were the other kilograms of crack-cocaine--excuse me--cocaine. Henry stated that someone would bring the other kilogram of cocaine to Henry's residence in 10 minutes.

The prearranged bust signal was given by the officer, and the surveillance team officers attempted to arrest Henry and Robertson. While Officer Mark Ahn was attempting to arrest Robertson, it escalated to a struggle in which Robertson attempted to remove a weapon from his person, without success.

Once the arrest was effected, Officer Ahn received a 9mm Baywood semiautomatic handgun from the front wasteband of Robertson's trousers. The weapon was loaded, one round was in the chamber, and the hammer of the weapon was loaded--strike that--cocked--and weapon was in the cocked position.

Officer Ahn also recovered 1200 in U.S. currency from the person of Robertson. While the officers were attempting to arrest these individuals, the John Doe escaped without being apprehended.

Henry ran southbound from the scene and was pursued by HPD officers. Henry jumped over several fences and ran through the yards of several residences. Henry was arrested after he kicked in the door of the residence located at 6207 Bellcrest and fought with the HPD officer. The resident of this house did not know Henry and struggled in an attempt to remove him from the house.

Henry and Robertson were subsequently transported to the HPD city jail by HPD officers. Officer LeBlanc later field tested the substance seized, which showed positive results for the presence of cocaine. The gross weight of the crack cocaine seized was approximately 967 grams.

Henry agreed that the factual basis was true.

ANALYSIS

A plea of guilty is a "grave and solemn act to be accepted only with care and discernment...." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970); See Boykin v. Alabama, 395 U.S. 238, 243-244, 89 S.Ct. 1709, 1712-13, 23 L.Ed.2d 274 (1969). Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927). A defendant has a Fifth Amendment right not to plead guilty and a Sixth Amendment Right to demand a jury trial. United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968); Boykin, id. In federal court Rule 11 makes elaborate provision to insure that the plea is made voluntarily and intelligently, i.e., that the defendant understands the nature of the charge, his rights, the consequences of the plea, and that there is a factual basis for the plea. See 1 CH ARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE, § 171.1 at 561-62.

FED.R.CRIM.P. 11, in pertinent part provides:

Rule 11. Pleas

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(c) Advice to Defendant. Before accepting a plea of guilty ..., the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:

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(3) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, and the right against compelled self-incrimination; and

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(5) if the court intends to question the defendant under oath, on the record, and in the presence of counsel about the offense to which the defendant has pleaded, that the defendant's answers may later be used against the defendant in a prosecution for perjury or false statement.

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(d) Insuring that the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or the defendant's attorney.

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(h) Harmless Error. Any variance from the procedure required by...