United States v. Henderson

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-14-2008
USA v. Henderson
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2671
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 07-2671
__________
UNITED STATES OF AMERICA
v.
VALENTINO HENDERSON
a/k/a VAN HENDERSON
Valentino Henderson,
Appellant
__________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Criminal No. 06-cr-00234)
District Judge: Honorable Christopher C. Conner
__________
Submitted Under Third Circuit LAR 34.1(a)
on June 30, 2008
Before: RENDELL, SMITH, and FISHER, Circuit Judges.
Filed: August 14, 2008
__________
OPINION OF THE COURT
__________
RENDELL, Circuit Judge.
Valentino Henderson appeals from his conviction for conspiracy to distribute and
possess with intent to distribute 2 kilograms or more of cocaine hydrochloride in violation
of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1). For the reasons that follow, we will
affirm.
Henderson was indicted after a package sent to him from California was
intercepted and found to contain a purple stuffed dinosaur with two 1-kilogram bricks of
cocaine sewn into it. According to police testimony, after being arrested and advised of
his rights, Henderson admitted that an associate of a man named Larry Wright had sent
him the package. He told the police that he was to keep one-half kilogram of the cocaine,
while Wright was to have the remainder. He also stated that the package was scheduled
to have been delivered the previous day and he had tried to track the package several
times. He admitted that he had previously received a stuffed bear containing 9 ounces of
cocaine and that cellular telephones seized by the police belonged to him.
At trial, Henderson denied that he had made these statements to the police and
claimed that the cell phone, which reflected numerous calls to Larry Wright, belonged to
Henderson’s cousin. As the trial progressed, Henderson’s counsel argued that Henderson
had been “set up” by a confidential informant who had prompted the investigation by
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giving the police information regarding Henderson.1 The informant apparently told police
of repeated deliveries of packages containing cocaine to both Henderson and his brother.
The jury convicted Henderson.
On appeal, Henderson raises two principal arguments: first, that portions of the
testimony of two witnesses at trial should not have been admitted; and second, that his
counsel’s performance was constitutionally deficient and that this denied him his right to
the effective assistance of counsel.
We have little difficulty disposing of the second argument. We do not generally
entertain ineffective assistance of counsel claims on direct appeal, because the record is
not sufficiently developed to allow the court to determine ineffectiveness in the absence
of an evidentiary hearing. United States v. McLaughlin, 386 F.3d 547, 555-56 (3d Cir.
2004).2 This is especially true where the challenged action might be considered sound
trial strategy. Strickland v. Washington, 466 U.S. 668, 689 (1989). As we note in our
discussion below of the evidentiary issues that Henderson raises, this case appears to be
one in which the strategic considerations are indeed implicated. Accordingly, the proper
1
There was additional evidence of Henderson’s guilt in that upon searching his home,
the police found two digital scales with cocaine residue, UPS shipping envelopes, express
mail labels, and an empty bottle of the cocaine-cutting agent inositol.
2
In response to Henderson’s argument that counsel was ineffective, the government
attempts to introduce post-trial, extra-record discussions between government counsel and
defendant’s trial counsel, Korey Leslie. This represents a violation of Federal Rule of
Appellate Procedure 10(a); those portions of the government’s brief will, therefore, be
stricken.
3
procedure for consideration of this claim would be to file a habeas corpus petition
pursuant to 28 U.S.C. § 2255, rather than a direct appeal to this Court.
With respect to Henderson’s other argument, namely, that the District Court erred
by admitting improper testimony, we note that Henderson made no objection at trial to the
testimony of these witnesses; thus, he must convince us that permitting the witnesses to
testify amounted to plain error. United States v. Rivas, 493 F.3d 131, 136 (3d Cir. 2007).
This he cannot do.
The first testimony that Henderson finds objectionable was that of the
government’s expert, who testified, Henderson contends, regarding his “intent.” He
argues that this testimony violated Rule 704(b) of the Federal Rules of Evidence.3 The
difficulty with Henderson’s objection is that the expert was not testifying as to
Henderson’s “intent.” Rather, he was responding to the prosecutor’s question as to
whether a particular user would purchase 2 kilograms of cocaine for personal
consumption, rather than for distribution.
As we have noted, this type of testimony in which the expert witness calls upon his
or her experience as it relates to the modus operandi of individuals involved in drug
trafficking does not violate the Federal Rules of Evidence and, specifically, Rule 704(b).
3
Rule 704(b) provides “[n]o expert witness testifying with respect to the mental state
or condition of a defendant in a criminal case may state an opinion or inference as to
whether the defendant did or did not have the mental state or condition constituting an
element of the crime charged or of a defense thereto. Such ultimate issues are matters for
the trier of fact alone.”
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United States v. Watson, 260 F.3d 301, 307-08 (3d Cir. 2001). We do not consider
admission of this evidence to be error, and it surely was not plain error for the District
Court to permit the jury to hear this testimony.
Henderson also objects to the District Court’s having allowed Trooper Cotroneo to
testify regarding the substance of the confidential informant’s tip. Again, there was no
objection lodged by counsel. In fact, as noted above, the defense strategy appears to have
been that Henderson was set up by the confidential informant. On cross-examination of
Cotroneo, Henderson’s counsel actually elicited the information to which Henderson now
objects, namely, that the informant told Cotroneo that Henderson and his brother, Alonzo
Henderson, were receiving 1-2 kilos of cocaine in the mail every one to two weeks. The
thrust of the defense was that this was a lie because Henderson had been under
surveillance for nine months after the informant’s tip, but there had been no activity to
support what the confidential informant said until, suddenly, the package containing the
2 kilograms of cocaine arrived in May. This, Henderson alleged, was proof that he was
set up.
Had the District Court stricken the trooper’s statement as hearsay – as Henderson
now urges – it would have gutted the defense’s theory of Henderson’s innocence, i.e., that
the confidential informant was lying and, to prove that he was not lying, had cocaine
delivered to Henderson nine months after his initial tip. Counsel not only failed to object,
but also elicited the hearsay from the trooper. Surely this was a tactical decision. This is
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not plain error and, in fact, could constitute a waiver of the claim altogether for purposes
of appellate review. See Gov’t of the Virgin Islands v. Rosa, 399 F.3d 283, 290-91
(3d Cir. 2005).
Accordingly, we will not disturb Henderson’s conviction, and we will AFFIRM
the Judgment and Commitment Order of District Court.
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