United States v. Willie Henderson ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4673
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIE LAZZLO HENDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:11-cr-00146-H-1)
Submitted: June 7, 2013 Decided: July 10, 2013
Before MOTZ, GREGORY, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Lazzlo Henderson, convicted by a jury of being a
felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924, challenges his conviction on five grounds.
We affirm.
I.
First, Henderson contends that the district court erred in
denying his motion to suppress the firearm that forms the basis
of his conviction. We review factual findings for clear error
and legal conclusions de novo. See United States v. Dire, 680
F.3d 446, 473 (4th Cir. 2012).
A domestic dispute gave rise to the search that located the
gun at issue here. Pamela Bullock, known by one of the
arresting officers since high school, initiated a 911 call. She
asserted that: Henderson, a convicted felon, who fought with
her and took her gun, was proceeding east from her residence on
foot with the intent to sell the gun. Officers responded within
three minutes. They had responded to similar recent domestic
calls from Ms. Bullock complaining about Henderson and knew the
area to be an area of drug trafficking. Acting on all of this
information, the officers found Henderson a short time later and
when he refused to stop and raise his hands, the officers drew
their weapons, frisked him, and found the gun.
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After hearing testimony from the police officers, the
magistrate judge recommended that the suppression motion be
denied. The magistrate credited the officers and concluded that
the show of force constituted a valid investigatory stop under
Terry v. Ohio, 392 U.S. 1 (1968), given their reasonable
articulable suspicion for believing Henderson to be in
possession of a gun. The district court adopted the
recommendation and refused to suppress the evidence or the
officers’ testimony, both of which were admitted at trial. *
Henderson maintains that “there were plenty of reasons for
the law enforcement officers to doubt the reliability of
Bullock.” Perhaps, but as outlined above, there was nonetheless
ample evidence, including Henderson’s own actions, for the
officers to credit Bullock. The district court’s denial of the
motion to suppress, well reasoned and supported by evidence, did
not constitute error.
II.
Henderson also maintains that the district court erred in
permitting a Government witness, in the presence of the jury, to
*
Henderson did not testify at the suppression hearing but
did testify at trial. He offered a very different account of
the evening and his encounter with police. Of course, the jury
was free to credit his testimony over that of the officers.
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testify to Henderson’s invocation (apparently post Miranda
warnings) of his right to counsel. Henderson immediately
objected to the statement but the court overruled his objection.
We review de novo. United States v. Sullivan, 138 F.3d 126, 131
(4th Cir. 1998).
The Government argues that admission of the statement is
not error. We cannot agree. See Doyle v. Ohio, 426 U.S. 610,
616-20 (1976); see also Wainwright v. Greenfield, 474 U.S. 284,
289-96 & n.13 (1986). Indeed, less than ten years ago, the
United States Attorney’s Office, in the same district, conceded
that such a comment was error. See United States v. Locklear,
24 F.3d 641, 649 n.7 (4th Cir. 1994). But, given the fact the
Government never sought to exploit this isolated statement and
the mountain of evidence offered by the Government demonstrating
Henderson’s guilt, we believe the error was harmless. See id.;
Williams v. Zahradnick, 632 F.2d 353, 361-62 (4th Cir. 1998).
III.
In addition, Henderson argues that the district court
erroneously admitted evidence in violation of Fed. R. Civ.
P. 401 and 402. We can reverse only if we find an abuse of
discretion. See United States v. Moore, 27 F.3d 969, 974 (4th
Cir. 1994). The challenged evidence concerns Henderson’s prior
disputes with Bullock, his alleged assault of her, his intent to
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sell the gun, and his 2001 felony conviction for breaking and
entering. Given Henderson’s decision to testify on his own
behalf, attempting to explain away the assault and gun theft,
and putting his credibility at issue, we cannot conclude that
the district court abused its discretion in admitting the
challenged evidence.
IV.
Henderson also maintains that the district court erred in
refusing to grant his appellate counsel the right to review the
grand jury transcript. We review for abuse of discretion. See
In re Grand Jury Proceedings GJ-76-4 & GJ-75-3, 800 F.2d 1293,
1299, 1303 (4th Cir. 1986). To obtain grand jury transcripts,
an applicant must demonstrate a “strong showing of
particularized need.” See United States v. Sells Eng’g Inc.,
463 U.S. 418, 443 (1983). Henderson made no such showing.
Accordingly, the district court did not abuse its discretion in
refusing to permit appellate counsel to view the grand jury
transcript.
V.
Finally, Henderson maintains that the “multiple alleged
errors” set forth above cumulatively require reversal. We have
held that none of Henderson’s individual claims of error require
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reversal and so must reject his claim that “cumulative error”
requires reversal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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