United States v. Henry

71 F. App'x 493
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 30, 2003
DocketNos. 01-6607, 02-5133
StatusPublished
Cited by6 cases

This text of 71 F. App'x 493 (United States v. Henry) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Henry, 71 F. App'x 493 (6th Cir. 2003).

Opinion

PER CURIAM.

Tommy “Tylee” Henry (“Henry”) appeals his conviction for conspiracy, and Herman Rosenboro (“Rosenboro”) appeals his conviction for conspiracy and distribution of cocaine powder and cocaine base, also called “crack” or “crack cocaine.” Henry challenges (1) the sufficiency of the [495]*495evidence; (2) the district court’s decision to allow a police officer to testify, on short notice to the defense, regarding a statement Henry made to the officer; and (3) the district court’s decision to exclude an expert witness. Rosenboro challenges (1) the district court’s decision to exclude an expert witness; (2) the district court’s refusal to grant him a downward departure in sentencing for poor health; and (3) the government’s alleged failure to strictly comply with the notice requirements of 21 U.S.C. § 851, which requires the government to notify the defense, prior to trial, of its intention to seek a statutorily enhanced sentence. We AFFIRM the judgment of the district court on all grounds.

I.

Henry and Rosenboro (collectively “Appellants”) are accused members of a larger cocaine distribution conspiracy formerly headed by Gerald Scott Long (“Long”), a major cocaine hydrochloride (“cocaine powder” or “cocaine”) supplier in the upper East Tennessee region for many years. Long, who started selling in 1989, bought his cocaine in Florida and elsewhere, and by 1996 he was paying from $16,500 to $23,000 per kilogram. Long estimated that in the period between 1996 and 2000 — the time alleged in this conspiracy — he purchased forty or more kilograms. In his plea agreement, he stipulated to conspiring to distribute between fifty and 150 kilograms of cocaine powder. He had a number of sellers, including Kevin Evans (“Evans”), Randy Carpenter (“Carpenter”), Jeff Teague (“Teague”), Jonathan Lytle (“Lytle”), and Marcus Thompson (“Thompson”).

A. Henry’s Involvement

Long recruited his eighteen-year-old relative Henry in the summer of 1998, and Henry sold cocaine for Long from that time until Long’s arrest on April 19, 2000. Long began by distributing ounces of cocaine to Henry on a weekly or bi-weekly basis and later alternated between ounces and quarter-kilograms. Henry, who was at times Long’s biggest seller, would pay for the cocaine either at the time he received it or else after he had sold it.

Long would occasionally pool his money with Henry, Evans, Teague, Lytle, and others — a total of $50,000 to $80,000, depending on the occasion — to buy large quantities of cocaine in Florida. Henry accompanied Long on two or three of these Florida buying trips. Long would do the buying himself, because his suppliers preferred not to have anyone else involved. On one such trip, Long, Henry, and Lytle had traveled together, Long carrying $80,000 of his own money, but it turned out that the cocaine Long purchased was fake, and he lost $51,000 in cash on the deal. On the date of Long’s arrest, April 19, 2000, Long was trying to purchase twenty-two kilograms of cocaine by paying $80,000 up-front in pooled cash: Henry had contributed $5,000; Evans, $8,000; Teague, $5,000; and Long, $62,000. Henry continued to sell after Long’s arrest (in transactions described below), though he obviously needed another supplier.

One of Henry’s regular customers was Billy Joe Wolfe (‘Wolfe”), who had known Henry for most of his life. Between 1996 and 2000, Wolfe purchased cocaine and crack from Henry, cocaine from Long and Evans, and crack from Lytle. On one occasion, in the summer of 1999, Henry approached Wolfe as the latter was leaving a recreation center; they got into Wolfe’s car, where Henry showed Wolfe a bag containing over an ounce of crack, and Wolfe bought $250 worth.

Wolfe, who was both a user and a seller, was arrested in October 1999, while in [496]*496possession of two ounces of cocaine, and he thereafter agreed to work for the police as a confidential informant. As an informant, Wolfe bought cocaine from Henry on four different occasions in the year 2000 — July 19, July 22, August 9, and September 6— for a total of about sixty-three years. On the final occasion, Henry retrieved some cocaine from his grandmother’s house; he met Wolfe outside the house; they drove a short distance; and Henry exchanged 15.8 grams2 of cocaine for $1,400.

Also on September 6, 2000, a Kingsport Police Department patrol officer stopped a vehicle in which Henry was a passenger. After Henry had exited the car, the officer asked him if he was carrying any contraband or anything illegal and whether he (the officer) might search Henry. Henry consented to a search, and, according to the officer,

he laughed and told me that ... [”]I won’t be holding anything, I’m too big for that. You know I’m too big for that.[”] ... He said, [”]I might distribute, but you know I don’t hold, ... you may catch me on a conspiracy one day, but you know you won’t catch me holding.[”]

The officer found a wad of cash containing at least two to three hundred dollars, but he let Henry go because he had insufficient reason to arrest him.

Henry was finally arrested on January 9, 2001, in Kingsport, Tennessee, at the apartment of a woman named Erica Davis. While Henry was inside, the police used a drug interdiction dog to examine a GMC Yukon Sport Utility Vehicle registered to Henry and his mother, the same vehicle that the officers had seen Henry driving previously. After the dog alerted on the truck, the officers searched it. Inside a duffle bag sitting on the front passenger’s seat, they found a basketball jersey bearing Henry’s nickname “Sweet Lee,” $5,720 in cash stuffed into a pair of tennis shoes, and a Rolex wristwatch, a gold chain, and a bracelet — together worth several thousand dollars. (The money and the value of the jewelry are significant because Henry’s regular job was at a gas station.) Elsewhere in the vehicle they found a bottle of Inositol, which drug dealers often use to dilute cocaine (e.g., to cheat customers); a strainer, useful in breaking up pieces of cocaine; a wireless telephone; a pager; and an electronic address book.

B. Rosenboro’s Involvement

Another alleged member of the conspiracy was Rosenboro, a relative of Henry who had also sold cocaine to Wolfe both before and after Wolfe’s arrest. On February 15, 2000, the police wired Wolfe and sent him to the Kingsport, Tennessee, Amoco gas station where Henry worked. The objective that day was to catch Henry; hence, when Wolfe arrived at the station, he asked Rosenboro, who also worked there, if Henry was around. Rosenboro told him that Henry had “gone to see the tax man,” but offered to do the deal himself. Wolfe told Rosenboro that he wanted to buy an ounce of cocaine; Rosenboro replied that he could get two “nice ones” [perhaps “eight balls,” 3.5-gram units of cocaine] for Wolfe within fifteen minutes and bragged that he was selling ten to twelve ounces at the station per week. When Wolfe discovered, after Rosenboro made a phone call, that it would be a few hours before Rosenboro could get the amount Wolfe wanted, Wolfe instead [497]*497bought what Rosenboro had ready — 1.4 grams of crack at $850. The police tape-recorded the transaction, as they did all transactions involving Wolfe as an informant.

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Bluebook (online)
71 F. App'x 493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-henry-ca6-2003.