United States v. Henry

• Decision Date: 08 March 2012
• Docket Number: Nos. 10–5201,10–5219.,s. 10–5201
• Citation: 673 F.3d 285
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kimberley HENRY, Defendant–Appellant.United States of America, Plaintiff–Appellee, v. Edgar Henry, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

673 F.3d 285

UNITED STATES of America, Plaintiff–Appellee,

v.Kimberley HENRY, Defendant–Appellant.United States of America, Plaintiff–Appellee,

v.Edgar Henry, Defendant–Appellant.

Nos. 10–5201

10–5219.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 6, 2011.Decided: March 8, 2012.

ARGUED: Brian Joseph Kornbrath, Office of the Federal Public Defender, Clarksburg, West Virginia, for Appellants. Shawn Angus Morgan, Office of the United States Attorney, Clarksburg, West Virginia, for Appellee. ON BRIEF: Charles T. Berry, Fairmont, West Virginia, for Appellant Edgar Henry. William J. Ihlenfeld, II, United States Attorney, Clarksburg, West Virginia, for Appellee.

Before WILKINSON, KEENAN, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge KEENAN wrote the opinion, in which Judge WILKINSON and Judge WYNN joined.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

Kimberley Henry and her husband Edgar Henry (collectively, the Henrys) were convicted in a jury trial of two offenses related to their conduct of growing marijuana at their home in a rural area of West Virginia. The Henrys raise three issues in this appeal: 1) whether a thermal-imaging search warrant that led to the seizure of marijuana on their property was valid; 2) whether the district court erred in excluding testimony that Edgar Henry used marijuana for medical purposes; and 3) whether the district court erred in determining that the Henrys were ineligible to receive “safety valve” sentencing consideration under 18 U.S.C. § 3553(f). Upon our review of these issues, we affirm the Henrys' convictions and sentences.

I.

In September 2003, Sergeant Steve Jones of the West Virginia State Police received information that the Henrys were growing large amounts of marijuana at their residence in Rosedale, West Virginia. Jones relayed this information to Sergeant James M. Manning, a West Virginia State Police officer who also was serving as a deputy task force agent with the United States Drug Enforcement Administration. After receiving this information, Manning began investigating the Henrys.

On July 13, 2004, Manning filed an application for a search warrant to conduct a thermal-imaging scan of the Henrys' property. In his affidavit filed with the warrant application, Manning stated that he received information from a deputy sheriff that a confidential informant had revealed that the Henrys had been growing and distributing marijuana in the Rosedale area for the past four years.

The affidavit also contained the information that Manning received from Sergeant Jones, including an account from an anonymous source who stated in 2003 that the Henrys maintained a large indoor marijuana “grow operation” at their residence near Rosedale. This source also stated that the Henrys once had lived in New Jersey. Manning confirmed with the West Virginia Department of Motor Vehicles that the Henrys' physical address was in Rosedale, West Virginia, which is located in Gilmer County. Manning additionally confirmed that Kimberley Henry's social security number was issued in New Jersey.

Also in the affidavit, Manning stated that in November 2002, two West Virginia State Police officers interviewed an inmate named Phillip Lee Sandy in a jail in Braxton County, West Virginia, regarding his knowledge of drug-related activity. Sandy told the officers that he had purchased small quantities of high-quality marijuana from Kimberley Henry on four or five occasions. Sandy also stated that the Henrys had constructed a building behind their residence to grow marijuana hydroponically, and Sandy provided the officers with a hand-drawn map of the Henrys' property.

According to Sandy, the Henrys moved to West Virginia from the Washington, D.C. area. Manning corroborated this information when he conducted a criminal history review and learned that Edgar Henry had an arrest record in certain areas of Maryland located near Washington, D.C. Manning's investigation further revealed that Edgar Henry's first arrest in that area, in 1972, was based on drug-related charges, and that his second arrest in Maryland, in 1993, was for possession of marijuana.

Manning corroborated Sandy's description of the Henrys' property by conducting an aerial surveillance of the property in February 2004. During that surveillance, Manning observed a tan-colored residence with an attached, enclosed walkway leading to a building behind the residence.

As stated in the affidavit, several weeks after conducting the aerial surveillance, Manning and two other officers walked “along the roadway in the area of the [Henrys'] residence” to view the property. Manning observed in the rear building two large hooded lights and two ceiling fans, and heard the sound of a “large ventilation fan” emanating from the roof of the building.

The affidavit also stated that in May 2004, Manning learned that Edgar Henry had been arrested and charged with assault and disorderly conduct after threatening individuals at a grocery store in Rosedale who were trying to organize a “neighborhood watch program.” Following Henry's arrest, police discovered marijuana on his person, and Henry later was charged with possession of marijuana.

Manning also included in the affidavit the fact that Kimberley Henry did not have an arrest record. However, Manning further stated that Kimberley Henry appeared to have a particular interest in a 2002 federal prosecution of another individual from Rosedale who was charged with growing marijuana. A West Virginia State police officer had informed Manning that Kimberley Henry was present for every court appearance made by that defendant.

Finally, Manning stated in the affidavit that he received power usage records for the Henrys' residence, which revealed an average bi-monthly electric usage of 10,870 kilowatt hours, with an average cost of about $728 for each bimonthly billing period. Additionally, Manning confirmed that the Henry residence was not heated by electric power, but by gas.

After reviewing this affidavit along with Manning's application, a magistrate judge concluded that there was probable cause to support a thermal-imaging scan of the Henrys' property, and issued the requested search warrant. Manning executed the thermal-imaging search warrant in July 2004.

During the search, although the outside temperature in the area was about 58 degrees Fahrenheit, an air conditioning unit was operating in the rear building. However, the air conditioning unit in the residential portion of the property was not operating. Using night-vision goggles and a thermal-imaging unit, Manning and another officer determined that the rear building emitted a high amount of heat, which was much greater than the residential portion of the structure.

Relying on the information obtained during this search, along with the information provided in his initial affidavit, Manning applied for a second search warrant to conduct a physical search of the Henrys' property. The magistrate judge issued the requested warrant.

During the physical search of the Henrys' property, the police seized numerous items, including a total of 85 marijuana plants in various stages of development. The police also seized evidence of a recent harvest, including 31 marijuana plant roots.

Additionally, the police discovered various types of “growing equipment,” processed marijuana, triple-beam scales, gallon-sized plastic bags, drug usage paraphernalia, and a binder containing handwritten notes, most of which were entered by Kimberley Henry and involved the growing of marijuana from 2000 through 2002. Finally, the police seized $1,800 in cash, in the form of $100 bills.

The Henrys were indicted in the United States District Court for the Northern District of West Virginia on three counts: 1) conspiracy to manufacture, distribute, and possess with intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B); 2) aiding and abetting in the manufacture of 100 or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2; and 3) aiding and abetting in the possession with the intent to distribute less than 50 kilograms of marijuana.

The Henrys filed a motion to suppress the evidence obtained from the searches of their property, arguing that the warrant application for each search was insufficient, and that the initial affidavit for the thermal-imaging search warrant was so deficient that it constituted a “bare bones” affidavit. The magistrate judge conducted hearings on the Henrys' motion and issued an opinion recommending that the district court deny the motion. The district court agreed with this recommendation and denied the Henrys' motion to suppress.

Also before trial, the district court considered the government's motion in limine. In that motion, the government sought to preclude the Henrys from offering testimony that Edgar Henry personally used the marijuana grown by the Henrys to alleviate symptoms relating to his medical illnesses. The purported purpose of this testimony was to show that the Henrys lacked any intent to distribute the marijuana being grown on their property.

After conducting a hearing, the district court granted the government's motion in limine. The district court concluded that the Supreme Court's holding in United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) ( Oakland Cannabis ), prohibited the Henrys from presenting a “medical necessity defense.” However, the district court permitted the Henrys to offer evidence that they possessed and manufactured the marijuana solely for their personal use.

The case proceeded to a jury trial. The jury convicted the Henrys of two charges, the charge of conspiracy to manufacture, distribute, and possess with intent to distribute 100 or more marijuana plants, and the charge of aiding and abetting in the manufacture of 100 or more marijuana plants.¹ The...