USA v. Henderson

• Decision Date: 10 September 2010
• Docket Number: No. 09-3326.,09-3326.
• Citation: 613 F.3d 1177
• Parties: UNITED STATES of America, Appellee, v. Stephen HENDERSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

613 F.3d 1177

UNITED STATES of America, Appellee,

v.Stephen HENDERSON, Appellant.

No. 09-3326.

United States Court of Appeals,Eighth Circuit.

Submitted: June 16, 2010.

Filed: July 30, 2010.

Rehearing and Rehearing En Banc Denied Sept. 10, 2010.

COPYRIGHT MATERIAL OMITTED.

Richard H. Sindel, argued, Clayton, MO, for appellant.

Tiffany Gulley Becker, AUSA, argued, St. Louis, MO, for appellee.

Before MURPHY, BEAM, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

A jury convicted Stephen Anthony Henderson of conspiring to distribute, and possessing with the intent to distribute, in excess of five kilograms of cocaine, and distributing over five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 851(a). The district court ¹ sentenced him to life imprisonment. He appeals, arguing that the district court erred in (1) denying his motion to suppress evidence and statements, (2) admitting evidence of prior convictions and bad acts, (3) limiting defense questioning at trial, (4) sentencing under 21 U.S.C. § 841 without properly following 21 U.S.C. § 851, and (5) refusing to allow his previous counsel to testify. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms.

I.

On March 5, 2008, Henderson delivered 10 kilograms of cocaine to a confidential informant. Drug Enforcement Agency (DEA) agents witnessed Henderson retrieve a black bag containing cocaine from a house on Bon Jour Court. He and the informant then drove to another residence. Violating the agents' instructions, the informant took the bag inside the house as Henderson left. The informant then met the investigators and gave them the bag, containing five kilograms of cocaine. The next day, the informant admitted he placed in the house an additional five kilograms, which the agents retrieved.

On March 10, 2008, based on this drug sale and other recorded conversations, agents arrested Henderson at an apartment on Seiloff Drive, without a warrant. He consented to a search of the apartment, directing agents to a closet with a duffel bag containing $256,575. They also conducted a warranted search of the Bon Jour house, finding a drug ledger and $948,080.

Later that day, at the DEA office, he told the agents, “This is much bigger than you guys think.” He named six drug customers who owed him money. Henderson cooperated in the investigation by wearing a recorder while retrieving a money counter from his supplier, “the biggest dope dealer in St. Louis.”

The next day, he and two agents met with his then-attorney, who claimed that one agent asked if he “could live with” a sentence of “a year or so.” The agent denied making this statement. Pre-trial, the district court excluded the attorney's testimony. The court also denied Henderson's motion to suppress evidence and statements obtained after his arrest.

The government filed an information listing his two prior convictions, requiring a life sentence. At trial, the informant and another witness testified that the drug conspiracy began in 2007. The Government sought to introduce evidence of a 1993 felony conviction. The district court instructed the jury on the 1993 conviction for selling cocaine and (initially) on a 1989 felony conviction for possessing cocaine. The court immediately corrected the instruction, stating, “Oops. Let me say this, it was only one conviction, and that conviction was for the sale of cocaine, not the other [one for possession]. So I'll start again, and so keep that in mind.” The court also restricted the Government's questioning about Henderson's failure to file income taxes but did not instruct the jury to disregard the testimony.

At sentencing, Henderson received the statutory minimum of life imprisonment based on two prior felony convictions.

II.

A.

Henderson first argues that the district court erred in denying his motion to suppress evidence and his statements because the DEA agents lacked probable cause to arrest him. Usually, “the denial of a pretrial motion to suppress evidence preserves the objection for appeal.”

United States v. Johnson, 906 F.2d 1285, 1290 (8th Cir.1990). But “this court has found pretrial objections waived when an appellant's counsel affirmatively stated ‘no objection’ at trial to the admission of evidence previously sought to be suppressed.” United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951 (8th Cir.2001).

He seeks to suppress only evidence and statements obtained at the Seiloff apartment. At trial, his counsel stated “no” when asked for “any objection” to admitting the physical evidence. Counsel later waived objection to admitting the $256,575 seized from the apartment. Henderson thus “consciously and intentionally waived any objection to the district court's receipt of the evidence at issue in his pretrial suppression motion.” United States v. Comstock, 531 F.3d 667, 675 (8th Cir.2008) (internal quotation omitted) (defendant waived motion to suppress when “each time the Government moved to admit evidence, defense counsel stated ‘no objection’ ”).

Henderson did preserve his motion to suppress the statements. But his motion fails when reviewing the “district court's factual findings for clear error and its legal conclusions de novo.” See United States v. Williams, 431 F.3d 1115, 1117 (8th Cir.2005). “Because this case proceeded to trial, we examine the entire record, not merely the evidence adduced at the suppression hearing.” United States v. Inman, 558 F.3d 742, 745 (8th Cir.2009).

He claims that an intervening exculpatory act destroyed probable cause for his arrest. See United States v. Watson, 423 U.S. 411, 449, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (Marshall, J., dissenting) (noting that “probable cause to arrest, once formed, will continue to exist for the indefinite future, at least if no intervening exculpatory facts come to light”); Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (explaining that if the police gain information that destroys probable cause, then statements made as a result of that information cannot be admitted). “Probable cause exists when, at the time of the arrest, the available facts and circumstances are sufficient to warrant a person of reasonable caution to believe that an offense was being or had been committed by the person to be arrested.” United States v. Martinez, 462 F.3d 903, 908 (8th Cir.2006); see United States v. Quiroga, 554 F.3d 1150, 1154 (8th Cir.2009). “[B]ecause the totality of circumstances determines the existence of probable cause, evidence that tends to negate the possibility that a suspect has committed a crime is relevant to whether the officer has probable cause.” Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir.1999) (emphasis in original) (probable cause was destroyed when an officer ignored exculpatory evidence that the suspect was really the victim in the altercation, and refused to interview a witness who could corroborate the suspect's statement).

Henderson conjectures that when the informant disobeyed instructions by entering the house, he could have placed five kilograms of cocaine in the bag himself. The next day, Henderson continues, he delivered the additional five kilograms stored in the basement because he wanted to ensure Henderson received life imprisonment. This intervening act, he asserts, destroyed probable cause.

Law enforcement officers have “substantial latitude in interpreting and drawing inferences from factual circumstances.” United States v. Washington, 109 F.3d 459, 465 (8th Cir.1997). DEA agents witnessed what they reasonably believed was a drug transaction and possessed recorded conversations about Henderson's dealings. These circumstances were sufficient to arrest Henderson. See United States v. Brown, 49 F.3d 1346, 1349-50 (8th Cir.1995) (probable cause existed where officers witnessed what an informant claimed was a drug transaction). Following his arrest, Henderson waived his Miranda rights and consented to a search of the Seiloff apartment. No intervening exculpatory act destroyed probable cause. The district court properly concluded that his statements were not subject to the exclusionary rule.

He also asserts that his statements should have been suppressed because he was not presented to a neutral, independent magistrate to determine probable cause for his arrest. But he raises this argument for the first time on appeal. “Federal Rule of Criminal Procedure 12(b)(3)(C) and (e) provides that motions to suppress evidence must be raised before trial or are waived, and the waiver provision applies not only to the failure to make a pretrial motion, but also to the failure to include a particular argument in the motion.” United States v. Spotted Elk, 548 F.3d 641, 656 (8th Cir.2008) (internal quotation omitted); see Fed.R.Crim.P. 12(e) (“A party waives any Rule 12(b)(3) [motion to suppress] defense ... not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides.”). By not raising this suppression argument below, Henderson waived the claim, rendering it “unreviewable on appeal.” United States v. Booker, 576 F.3d 506, 511 (8th Cir.2009).

B.

Henderson next argues that the district court should have excluded evidence of the 1993 conviction for selling cocaine. This court reviews “a district court's decision to admit evidence under Federal Rule of Evidence 404(b) for abuse of discretion and reverse[s] only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts.” United States v. Thomas, 593 F.3d 752, 757 (8th Cir.2010) (internal quotation omitted). District courts can admit 404(b) evidence of a prior conviction in order to prove intent or knowledge. United States v. Trogdon, 575 F.3d 762, 766 (8th Cir.2009). The prior conviction must be “(1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by...