United States v. Henry
| Decision Date | 19 January 2021 |
| Docket Number | No. 20-1531,20-1531 |
| Parties | UNITED STATES OF AMERICA v. ALVIN HENRY, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Appeal from the District Court of the Virgin Islands
Honorable Wilma A. Lewis
Submitted under Third Circuit L.A.R. 34.1(a)
December 11, 2020
Before: SMITH, Chief Judge, CHAGARES and MATEY, Circuit Judges
In this direct appeal, Defendant Alvin Henry challenges the District Court's denial of his motion to dismiss the indictment for prosecutorial misconduct. First, Henry argues that the Government violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), by failing to disclose impeachment-related evidence about Henry's cooperating co-defendant. Second, Henry contends that the Government's failure to preserve the luggage from which it seized the cocaine underlying his conviction denied him a fair trial under California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U.S. 51 (1988).
The Government's work appears to have been slipshod, but Henry's appeal fails because there was no constitutional violation. Defense counsel impeached Henry's co-defendant after disclosure of the Brady/Giglio material and secured a favorable jury instruction. The exculpatory value of the luggage's contents was not apparent to law enforcement and could have been proved through other means, and there was no evidence of bad faith by the Government. At bottom, these and the Government's other failures stemmed from negligence and not willful misconduct. The District Court did not err in denying Henry's motion to dismiss, so we will affirm.
On November 2, 2016, Customs & Border Protection (CBP) officers searched Henry's bags at the St. Croix airport while he waited in the departure lounge for a flight to Florida. They discovered bricks of cocaine in his luggage, and Henry was later indicted along with a co-defendant, Lamech Matthew, for conspiracy to possess and actualpossession of cocaine with intent to distribute, in violation of various provisions of 21 U.S.C. § 841. Matthew worked at the airport and facilitated the attempted drug trafficking; he signed a plea agreement with the Government in December 2018. On January 22, 2019, the lead Assistant U.S. Attorney (AUSA) notified Henry's counsel by email that "Matthew entered a plea late this afternoon with a supp. agreement to cooperate and testify against your client." A1179.1 The AUSA stated that under Matthew's supplemental plea agreement, the Government would recommend a four-level reduction in Matthew's sentence if he testified against Henry. The AUSA did not provide a copy of it.
At Henry's jury trial, Matthew testified about his role in the conspiracy to traffic cocaine. Matthew stated that individuals for whom he had previously trafficked drugs pointed Henry out to him on November 1, 2016—the night before both men were arrested—and told him that Henry would retrieve the cocaine that Matthew would secret into the airport the following day. Matthew also testified that he had a plea agreement with the Government under which he expected sentencing benefits from his testimony but did not "have to call any names." A313. During his direct testimony, he identified only Henry.
On cross-examination, Matthew refused to answer certain of defense counsel's questions related to other individuals involved in the drug trafficking. It became clear that on top of his original plea agreement and the written supplement mentioned in the AUSA's January 2019 email, Matthew also had an oral cooperation agreement with the Governmentunder which he could decline to provide information identifying anyone other than Henry.2 Neither a copy of the supplemental plea agreement nor the existence of the oral cooperation agreement was disclosed to the defense before trial. Defense counsel asserted that the Government had violated Giglio by withholding the agreements, as each provided impeachment evidence relevant to a critical witness's potential bias. Defense counsel also maintained that the identities of other co-conspirators were probative of Henry's innocence because she could call them as witnesses and adduce evidence that they did not know who Henry was.
The District Court adjourned trial for the day and heard from the parties on possible courses of action. Both the District Court and the Government were disinclined to hold Matthew in contempt for refusing to answer questions that could identify other members of the drug trafficking operation, given his reliance on agreements with the Government. The Government suggested that the Court either strike Matthew's testimony or declare a mistrial. Defense counsel proposed, without prejudice to her moving to dismiss the indictment for prosecutorial misconduct, that (1) Henry be permitted to introduce as substantive evidence one of Matthew's recorded post-arrest interviews with law enforcement—in which he named certain names and admitted that he had lied in a prior interview; (2) the Government be precluded from rebutting Matthew's statements in theinterview; and (3) the jury be instructed on the Government's conduct in prosecuting Henry. The District Court chose this approach.
Trial resumed. Defense counsel cross-examined Matthew about his motive to curry favor with the Government and thereby benefit from the plea agreement and supplemental plea agreement. She also introduced the supplemental plea agreement as an exhibit. She then secured his refusal to answer questions about the identities of others involved in the drug trafficking operation and, to supplement his non-answers, played for the jury portions of Matthew's recorded interview with law enforcement. The AUSA and defense counsel ultimately agreed on a lengthy instruction, which the District Court read to the jury after Matthew's testimony. Among other things, the instruction stated that:
A644-46. This instruction also stated that the jury could consider Matthew's recorded statements as substantive evidence.
The Government's evidence, including Henry's own post-arrest interview with law enforcement, tended to show that Henry arrived in St. Croix with no intention of trafficking drugs but obliged when his cousin's friend asked him to transport some packages on his flight to Florida. In the portions of his interview played for the jury, Henry gave conflicting statements about whether he knew upon receiving the packages from Matthew that they contained cocaine.
After both sides rested, the District Court repeated the lengthy instruction regarding Matthew and then instructed the jury about Henry's luggage, which the Government had somehow lost after seizing the drugs. "The parties agree," the Court explained, "that there were various items in the bags that are not depicted" in the Government's photographs of the alleged cocaine bricks found in Henry's bags. A1006. The Court went on:
During closing, defense counsel argued that Matthew was biased and untrustworthy because of: his recorded admission that he had lied in his prior interview; his multiple undisclosed agreements with the Government; and his need to testify in a way that the Government would consider truthful. Defense counsel also argued that Henry didn't learnanything about the cocaine until Matthew delivered the packages to him in the airport; that the jury should infer that the contents of Henry's luggage would have exonerated him because they were those of a person taking a pleasure trip to Florida; and that Henry believed the packages contained only cash.
The jury found Henry guilty on both the conspiracy and possession counts. Henry then moved to dismiss the indictment, arguing that the Government violated Brady and Giglio by suppressing the supplemental plea and oral cooperation agreements.3 The District Court denied Henry's motion and sentenced him to 48 months' imprisonment followed by a three-year term of supervised release. This appeal followed.
We have appellate jurisdiction under 28 U.S.C. § 1291. The District Court of the Virgin Islands had jurisdiction under 48 U.S.C. § 1612 and 18 U.S.C. § 3231. We review the denial of a motion to suppress for clear error as to the underlying factual findings and exercise plenary review over the District Court's application of the law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).
1. No Brady/Giglio violation. Under Brady, the Government's suppression "of...
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