United States v. James C. Henderson , 86 F. App'x 213 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1687
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Minnesota.
*
James Christopher Henderson, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 19, 2003
Filed: December 22, 2003
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Before MURPHY, LAY, and FAGG, Circuit Judges.
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PER CURIAM.
A jury found James Christopher Henderson guilty of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g). The district court*
sentenced Henderson to 78 months in prison, and he appeals his conviction and
sentence, challenging the denial of his requests for the jury to view the vehicle where
the gun was found and for admission of a codefendant’s statement under Federal Rule
*
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
of Evidence 804(b)(3), and the denial of a mitigating-role adjustment for sentencing
purposes. For the reasons that follow, we affirm.
Henderson was in the front passenger seat of a Ford Expedition driven by
Mario Smith when police officers stopped the vehicle to execute a search warrant that
included Smith’s residence and vehicle. A police officer approaching the vehicle
observed Henderson manipulating some items in his lap, and when another officer
removed Henderson from the vehicle, he threw wrapped pieces of crack cocaine
weighing 1.2 grams to the ground. As another officer opened a rear door, he noticed
a large pistol with an eight-inch barrel tucked between the passenger seat where
Henderson had been sitting and the center console.
At trial, Henderson conceded he was a convicted felon, but denied knowing
there was a gun next to him in the vehicle. The government’s theory was that
Henderson and Smith jointly possessed the gun and used it for protection in their drug
trafficking activities. Smith, who pleaded guilty to a drug offense, gave a statement
to the Government exculpating Henderson, who was charged only with the gun
offense. Smith said he had bought the pistol found in the vehicle about a year before
his arrest from some person on the street, and Smith did not believe Henderson would
have been able to see the gun because it was concealed between the center console
and the passenger seat. The Government disclosed Smith’s statement to Henderson’s
counsel, but Smith refused to testify under oath about the statement, citing the Fifth
Amendment. The government opposed Henderson’s request to admit Smith’s
unsworn statement, arguing its falsity was demonstrated in part by a trace of the gun,
which showed the pistol had been stolen from a gun store only five months before
Smith’s arrest, and by photographs of the vehicle’s interior and the officer’s
statements.
The district court refused to admit Smith’s statement, and also refused
Henderson’s request that the jury be transported to a police garage to view the interior
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of the Ford Expedition, a motion the Government opposed as unnecessary in light of
the photographs. At sentencing, the district court also denied Henderson’s request
for an adjustment to his offense level based on his minor role, finding a mitigating-
role reduction was unavailable under U.S.S.G. § 3B1.2 n.2, when there was only one
participant in the offense.
We find no abuse of the district court’s discretion in either of the challenged
evidentiary rulings. Given the introduction of the photographs of the Expedition’s
interior, the jury did not need to view the Expedition itself. See United States v.
Triplett, 195 F.3d 990, 998-99 (8th Cir. 1999) (affirming denial of “jury view”
request where trial evidence included photographs, diagrams, and witness testimony
describing conditions at sites at issue), cert. denied, 529 U.S. 1094 (2000). The
district court properly excluded Smith’s hearsay statement because the statement was
not supported by corroborating circumstances clearly indicting the statement’s
trustworthiness. See Fed. R. Evid. 804(b)(3); United States v. Preciado, 336 F.3d
739, 746 n.3 (8th Cir. 2003). As for Henderson’s sentence, without deciding whether
a mitigating-role adjustment is permissible when, as here, only one codefendant was
charged with possessing the gun, see U.S.S.G. § 3B1.2 n.2 (requirement of multiple
participants), Henderson has not shown the adjustment should have applied to him,
see United States v. Smith, 49 F.3d 475, 479 (8th Cir. 1995) (standard of review).
Henderson was closer to the gun than Smith, which supports an inference that
Henderson would have been more likely to use it. Accordingly, we affirm.
LAY, Circuit Judge, concurs only in the result.
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