United States v. Henderson ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4433
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEROME HENDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(1:03-cr-00109-MJG)
Submitted: August 8, 2007 Decided: August 24, 2007
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Sarah S. Gannett, Staff
Attorney, Joanna Silver, Assistant Federal Public Defender,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Michael J. Leotta, Harry M. Gruber, Assistant
United States Attorneys, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerome Henderson was convicted by a jury of one count of
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (2000). The district court determined the statutory
conditions set forth in the Armed Career Criminal Act (“ACCA”) were
satisfied, and sentenced Henderson to 184 months’ imprisonment.
Finding no error, we affirm.
On appeal, Henderson initially contends that the
Government’s closing argument, as it pertained to an alleged
attempted armed robbery, was improper. We review a claim of
prosecutorial misconduct “to determine whether the conduct so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.” United States v. Scheetz, 293
F.3d 175, 185 (4th Cir. 2002) (internal quotation marks omitted).
“The test for reversible prosecutorial misconduct has two
components; first, the defendant must show that the prosecutor’s
remarks or conduct were improper and, second, the defendant must
show that such remarks or conduct prejudicially affected his
substantial rights so as to deprive him of a fair trial.” Id.Relevant factors in the determination of prejudice include:
(1) the degree to which the prosecutor’s
remarks had a tendency to mislead the jury and
to prejudice the defendant; (2) whether the
remarks were isolated or extensive; (3) absent
the remarks, the strength of competent proof
introduced to establish the guilt of the
defendant; (4) whether the comments were
deliberately placed before the jury to divert
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attention to extraneous matters; (5) whether
the prosecutor’s remarks were invited by
improper conduct of defense counsel; and
(6) whether curative instructions were given
to the jury.
Id. at 185-86.
Testimony regarding an alleged attempted armed robbery
was introduced at trial to establish why law enforcement officers
initially approached Henderson. In accordance with the parties’
agreement, a limiting instruction addressing this testimony was
given by the court after the testimony was first presented and once
again during the court’s final jury instructions. The agreed to
instruction stated:
You have heard evidence that the police
approached Mr. Henderson in connection with
their investigation of an attempted armed
robbery. That information has been presented
to explain why the police approached Mr.
Henderson. You are not to consider it for any
other purpose. That is, you are not to
consider whether there in fact was an
attempted robbery, whether a gun was used, or
whether Mr. Henderson was involved, in
deciding whether the government has sustained
its burden of proof in this case.
As evidence of the § 922(g)(1) violation, the Government
presented the testimony of law enforcement officers who responded
to the alleged attempted armed robbery. When Henderson was
approached by officers, he fled. Officer John Gorman of the
Baltimore City Police Department stated that he saw Henderson
clutching the right side of his jacket as he ran away. Soon
thereafter, Officer Gorman witnessed Henderson withdraw a firearm
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from his jacket. Officer Gorman consequently tackled Henderson.
In the process, Henderson dropped the firearm and it “flew
forward.” Officer Gorman instructed the other officers on the
scene as to the firearm’s location, and it was quickly recovered.
Though the firearm was in poor condition, it was determined to be
operable. Henderson stipulated that the firearm had traveled in
interstate commerce and that he was a convicted felon.
During its closing argument, the Government stated:
We’re here today because on November 3rd,
2002, this man, the defendant, Jerome
Henderson, was caught red-handed with a gun on
Eutaw Place in Baltimore, Maryland. Caught
red-handed with this gun. The police had
stopped Mr. Henderson because they had
received a tip that he matched the exact
description of a person who tried to rob this
victim with a gun.
The Government additionally argued:
And let me also talk about the condition of
this gun because there’s been a lot of talk
about the gun. You know, it’s a rusty old
gun. It’s covered in rust. It’s corroded. I
don’t know how long it must take to get this
rusty. Probably months. But that doesn’t
have anything to do with whether the defendant
possessed it on the night in question. You
can rob somebody with a rusty gun.
Throughout the opening statements, trial, and closing
arguments, both the Government and the defense addressed the issue
of the alleged attempted armed robbery. The remarks challenged by
the defense are not inconsistent with the manner in which the issue
was addressed during the course of the trial. Moreover, the
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remarks at issue comprise only a fraction of the Government’s
lengthy closing and rebuttal arguments. Even if the remarks could
be said to have prejudiced Henderson by misleading the jury or
diverting its attention, such prejudice was minimal when compared
to the compelling evidence introduced to establish Henderson’s
guilt. Furthermore, any prejudice suffered by Henderson was cured
by the district court’s limiting instruction given several times
during the course of the trial. See United States v. Francisco, 35
F.3d 116, 119-20 (4th Cir. 1994) (per curiam) (stating this court
generally follows the presumption that the jury obeyed the district
court’s instructions). Thus, we conclude Henderson has failed to
establish that the Government’s remarks constitute reversible
error.
Henderson also contends that the district court erred in
its application of the ACCA. He argues that it was improper for
the district court to rely on United States v. Wardrick, 350 F.3d
446, 455-56 (4th Cir. 2003), in finding his resisting arrest
conviction categorically qualifies as a violent felony under the
residual provision of clause (ii)1, as such an approach requires
impermissible judicial fact-finding in violation of Shepard v.
United States, 544 U.S. 13 (2005).
1
The term “violent felony” is defined by the residual
provision of clause (ii) to include crimes that “otherwise
involve[] conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii) (“clause
(ii)”).
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However, the Supreme Court has determined that the use of
such a “categorical approach” does not run afoul of Shepard as it
“look[s] only to the fact of conviction and the statutory
definition of the prior offense, and [does] not generally consider
the particular facts disclosed by the record of conviction.” James
v. United States, 127 S. Ct. 1586, 1594 (2007) (internal quotation
marks omitted). Thus, the approach taken by this court in Wardrick
survives post-Shepard scrutiny. The district court’s application
of the ACCA was therefore proper.2
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid in the decisional process.
AFFIRMED
2
As Henderson has the requisite number of convictions for
enhancement under the ACCA, we need not address the Government’s
alternative argument that Henderson’s subsequently vacated
convictions likewise support enhancement. Therefore, we deny as
moot Henderson’s motion to strike those portions of the
Government’s brief addressing this argument.
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