United States of America v. TROY HENLEY, a/k/a Chubbs, a/k/a Bill Bill

Richmond, Virginia - Criminal defense lawyer represented defendant with one count of conspiracy to commit robbery and two counts of robbery, and two counts of possession of a firearm during a crime of violence charges.

We will review the facts in the light most favorable to the

government. United States v. Nunez, 432 F.3d 573, 576 (4th Cir.

2005). In 2006, Henley, along with several co-conspirators,

planned and participated in robberies at a Wal-Mart Store in

Ellicott City, Maryland, on August 2, 2006, and at a Check Point

Check Cashing Store in Baltimore, Maryland, on December 30,

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2006. During the robberies, some of Henley's co-conspirators

entered the stores, assaulted various employees, pointed guns at

them, and left the stores with cash.

Several months after these robberies, Baltimore City police

officers arrested Henley for an unrelated larceny that occurred

in 2004. On March 27, 2007, Detective Julie Pitocchelli and

another officer observed Henley at a "car wash” establishment.

When Henley saw the officers, he "jumped” into the driver's side

of a truck and drove down an alley. Detective Pitocchelli and

several other police officers in marked police vehicles chased

the truck that Henley was driving through the streets of

Baltimore. Ultimately, the truck collided with a tree. The

police officers apprehended Henley about two blocks away from

the scene of the accident and arrested him.

After his arrest, the police took Henley to the hospital

based on his complaint that he injured his neck in the accident.

While at the hospital, Henley spoke with Special Agent Stacey

Bradley of the Federal Bureau of Investigation, the chief

officer assigned to investigate the robberies described above.

Henley told Agent Bradley that he was willing to "talk” with her

at a later date.

On April 2, 2007, six days after Henley's arrest on the

2004 larceny charge, Agent Bradley and another federal law

enforcement officer interviewed Henley. At the start of the

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interview, the officers informed Henley of his rights under

Miranda v. Arizona, 384 U.S. 436 (1966), and Henley signed a

form waiving those rights. Henley told the officers that he was

"feeling better,” and that he had not been taking the pain

medication he was prescribed at the hospital.

During the interview, the officers repeatedly asked Henley

about his acquaintances and their general involvement in the

commission of robbery offenses. After the officers told Henley

that these acquaintances had implicated Henley in the commission

of some robberies, Henley denied any such involvement. He also

stated that about two or three weeks before the interview, he

learned that the "Feds” were investigating certain robberies and

were "lookin[g]” for him in connection with those crimes.

Several months after the interview, Henley was arrested for his

involvement in the present offenses.

A few weeks after his arrest, Henley placed a telephone

call to his sister from jail. During this conversation,

Henley's sister talked about the police and asked the name of

the female police officer involved in Henley's case. Henley

responded, "Stacey Bradley,” and stated in part, "I hate that

bitch. I'll kill that bitch.”

Henley's case proceeded to trial on the present offenses.

Before trial, Henley filed a motion in limine seeking to exclude

certain evidence. The challenged evidence included testimony

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that he fled from police on March 27, 2007, and his statement to

his sister threatening to kill Agent Bradley. Henley also

sought to exclude the testimony of three witnesses, described

below, on the basis that evidence of those witnesses' criminal

activity unrelated to the present robberies would be

prejudicial. The district court denied Henley's motion in

limine and admitted the challenged evidence at trial.

Also prior to trial, Henley filed a motion to suppress the

statements he made during his April 2, 2007 police interview.

The district court denied Henley's motion and permitted Agent

Bradley to testify at trial that during the April 2, 2007

interview, Henley provided her with his cell phone number.

Agent Bradley testified that this information assisted in her

investigation and resulted in her conclusion that Henley's cell

phone was located at the scene when the present robberies

occurred. In addition, the district court permitted Agent

Bradley to testify that Henley told her during the interview

that he was aware he was under investigation for the commission

of some robberies.

At the close of trial, the district court considered the

parties' submissions of proposed jury instructions. As relevant

to this appeal, Henley submitted a jury instruction addressing

multiple conspiracies, which the district court rejected. Also,

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over Henley's objection, the district court gave a jury

instruction regarding Henley's flight from police.

Finally, the district court gave the jury a limiting

instruction regarding the evidence of criminal activity

unrelated to the present robberies. That instruction informed

the jury that it could not "use” evidence of unrelated crimes

committed by Henley's acquaintances to infer that Henley

"carried out the acts charged in this case.” The instruction

also stated that even if the jury found that Henley committed

unrelated crimes "similar” to those committed by his

acquaintances, the jury could not consider such evidence to

support an inference that Henley committed the crimes charged in

the indictment.

After the jury convicted Henley of conspiracy to commit

robbery, two counts of robbery, and two counts of possession of

a firearm, the district court conducted the sentencing phase of

trial. The presentence report (PSR) recommended a total

Guidelines range for the conspiracy and robbery counts of 210-

262 months, and the statutory minimum sentence for the firearm

counts of 384 months. Henley objected to the recommended

Guidelines range on several grounds and urged the court to

consider a total Guidelines range of 78-97 months for the

conspiracy and robbery convictions.

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II.

A.

We first consider whether the district court erred in

denying Henley's motion to suppress his statements made to law

enforcement officers during the April 2, 2007 interview. Henley

asserts that these statements were involuntary. According to

Henley, the interviewing officers failed to determine whether

any injuries from the March 27, 2007 automobile accident "could

have affected” Henley's ability to waive his rights under

Miranda v. Arizona, 384 U.S. 436 (1966). Henley also argues

that because of the "congenial” nature of the interview, the

officers persuaded Henley to make incriminating statements that

he did not intend to volunteer. We disagree with Henley's

arguments.

On appeal, we review de novo a district court's

determination regarding the voluntary nature of a defendant's

statement. United States v. Abu Ali, 528 F.3d 210, 232 (4th

Cir. 2008). In assessing whether a statement was voluntary, we

examine the totality of the circumstances in which the statement

was given. Id. A statement is voluntary when it represents

the free and unconstrained choice by the speaker. Schneckloth

v. Bustamonte, 412 U.S. 218, 225 (1973). In contrast, a

statement is involuntary when the speaker's will is overborne

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and his capacity for self-determination is critically impaired.

Id. at 225; Abu Ali, 528 F.3d at 232.

We observe that Henley fails to assert that any injury he

suffered as a result of the March 27, 2007 accident actually

affected his ability to waive his rights and to speak freely.

Contrary to Henley's assertion that the officers failed to

assess the presence and severity of Henley's injuries, Agent

Bradley testified that on the day of the interview, Henley

indicated that he felt better and was not taking the pain

medication he had been prescribed.

During the time that the interviewing officers engaged in

general conversation with Henley, they made clear their desire

to obtain information about the commission of robberies. The

officers repeatedly asked Henley whether he or his acquaintances

participated in such acts. The officers also advised Henley

that his acquaintances had told the officers that Henley had

committed some robberies. Additionally, over the course of the

interview, Henley stated that he was aware that he was being

investigated for his involvement in the commission of some

robberies.

Based on the totality of the circumstances of the

interview, we conclude that Henley's will was not overborne, and

that his statements were voluntary. See Abu Ali, 528 F.3d at

232. The evidence showed that in seeking to elicit information

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from Henley about the commission of robberies, the officers did

not make any promises or otherwise induce Henley to make

statements that he did not wish to make freely. See

Schneckloth, 412 U.S. at 225; Abu Ali, 528 F.3d at 232.

Therefore, we hold that the district court did not err in

denying Henley's motion to suppress.

B.

Next, Henley argues that the district court erred in

admitting evidence of his attempt to flee from the police as

proof of his consciousness of guilt. Henley also argues that

the district court erred in giving the jury an instruction

regarding flight. Henley notes that after he attempted to evade

capture, he was arrested on an outstanding, unrelated warrant

from 2004. Therefore, Henley asserts, the evidence of his

flight showed no more than a general consciousness of guilt and

did not reflect a particular sense of guilt based on his

involvement in the present robberies.∗

In response, the government argues that because Henley knew

he was under investigation for his involvement in some robberies

at the time he fled from the police, the district court properly

∗ Henley also argues that because he was not the driver of

the truck, his action did not constitute flight from the police.

This argument is without merit because two officers testified

that Henley was the driver of the truck.

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admitted the evidence of flight. The government further argues

that this evidence supported the district court's decision to

instruct the jury on flight. We agree with the government's

arguments.

On appeal, we review under an abuse of discretion standard

a district court's decision to admit certain evidence and to

give an accompanying jury instruction. United States v.

Udeozor, 515 F.3d 260, 265 (4th Cir. 2008); United States v.

Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006). We have recognized

that evidence regarding a criminal suspect's flight is

inherently weak because one who flees to evade capture by the

police does not necessarily do so based on his consciousness of

guilt for committing a certain crime. See United States v.

Foutz, 540 F.2d 733, 739-40 (4th Cir. 1976). Therefore, we have

held that before a jury may be allowed to consider evidence of

flight, the following links in a chain of inferences must be

established and adequately supported by the evidence: (1)

between a defendant's behavior and his flight, (2) between his

flight and his consciousness of guilt, (3) between his

consciousness of guilt and his consciousness of guilt concerning

the crime charged, and (4) between his consciousness of guilt

concerning the crime charged and his actual guilt of the crime

charged. United States v. Obi, 239 F.3d 662, 665-65 (4th Cir.

2001).

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In the present case, Henley challenges only the adequacy of

the evidence to support the third link, the connection between

his consciousness of guilt and his consciousness of guilt

concerning the present robberies. Even though the robberies

occurred several months prior to Henley's flight from police,

Henley told the officers during his April 2, 2007 interview that

he had learned just three weeks before his attempt to evade

capture that he was under investigation for his participation in

some robberies. In contrast, the criminal activity that served

as the basis for Henley's arrest took place at least three years

before his flight from police.

The close connection in time between Henley's flight and

his recently acquired knowledge that he was under investigation

for some robberies supports the inference that Henley fled from

the police because of his involvement with the present

robberies. Therefore, we conclude that the evidence established

and adequately supported the link between Henley's consciousness

of guilt and his consciousness of guilt for the crimes charged.

See Obi, 239 F.3d at 665.

We also conclude that the evidence of Henley's flight was

sufficient to support the court's decision to give the jury a

"flight” instruction. This jury instruction read:

You have heard evidence that defendant fled from law

enforcement after he believed that he was about to be

arrested for certain crimes. If proved, the flight of

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a defendant after he knows he is to be accused of a

crime may tend to prove that the defendant believed he

was guilty. It may be weighed by you in this

connection and weighed with all the other evidence.

However, flight may not always reflect feelings of

guilt. Moreover, feelings of guilt which are present

in many innocent people do not necessarily reflect

actual guilt.

We observe that the language of the jury instruction was

balanced and informed the jurors that evidence of flight may not

reflect Henley's consciousness of guilt. We conclude that this

instruction fairly addressed the inherent weakness of flight

evidence and permitted the jury to evaluate the evidence in this

case in determining whether the evidence of flight demonstrated

Henley's consciousness of guilt for the crimes charged. See

Foutz, 540 F.2d at 739-40. Accordingly, we hold that the

district court did not abuse its discretion in admitting

evidence of Henley's flight and in instructing the jury on this

issue.

C.

We next consider Henley's argument that the district court

erred in admitting into evidence his statement threatening to

kill Agent Bradley. Henley contends that his statement

constituted an isolated expression of anger unaccompanied by a

plan to carry out the threat. Henley asserts that because he

did not intend to harm or influence a potential witness, the

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court improperly admitted the statement into evidence. We

disagree with Henley's arguments.

We review a district court's admission of evidence for an

abuse of discretion. Udeozor, 515 F.3d at 265. We have held

that evidence of a threat against an adverse witness is

admissible to prove a defendant's consciousness of guilt if the

evidence relates to the offense charged and is reliable. United

States v. Young, 248 F.3d 260, 272 (4th Cir. 2001). We have

explained that such evidence is admissible because a threat

against an adverse witness indicates a defendant's awareness

that his case is weak or unfounded. United States v. Van Metre,

150 F.3d 339, 352 (4th Cir. 1998).

We observe that Henley's statement was admitted into

evidence to show Henley's consciousness of guilt of the crimes

charged and not to prove a separate criminal offense. In this

context, we conclude that the district court did not abuse its

discretion in admitting Henley's threatening statement.

Henley's statement, "I'll kill [Agent Bradley],” demonstrated

his present desire to harm an investigator of the robberies

charged in the indictment. Also, Henley made the statement only

a few weeks after his arrest for these robberies. Thus,

Henley's threatening statement directly related to the charged

offenses, and the district court did not abuse its discretion in

admitting the statement into evidence to show Henley's

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consciousness of guilt. See Young, 248 F.3d at 272; Van Metre,

150 F.3d at 352.

D.

Henley also argues that the district court erred in

permitting testimony by three witnesses about "bad acts”

unrelated to the robberies charged in the indictment. Henley

asserts that he was unduly prejudiced by the testimony of

and concerning their "other” criminal

activity, and ' testimony concerning his "scouting”

of check cashing store locations with Henley. We disagree with

Henley's assertions.

Under Rule 403 of the Federal Rules of Evidence, evidence

is admissible when the danger of unfair prejudice does not

outweigh the probative value of the evidence. See also United

States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998). With

regard to potentially prejudicial evidence, we have acknowledged

that cautionary and limiting instructions given to the jury may

alleviate slight dangers of prejudice. Id. at 833 n.15 (citing

United States v. Queen, 132 F.3d 991 (4th Cir. 1997) and United

States v. Powers, 59 F.3d 1460, 1468 (4th Cir. 1995)).

At trial, testified that he had entered into a plea

agreement and had pled guilty to a charge of bank robbery.

clearly stated, however, that Henley was not involved in

the commission of that bank robbery. This portion of 's

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testimony, therefore, related only to 's own criminal

activity and served to impeach 's credibility.

also testified that Henley told him that Henley had

committed some robberies at gas stations. This evidence

provided the jury with background information concerning

Henley's confidential relationship with . The district

court mitigated any prejudicial effect of this testimony by

giving an immediate cautionary instruction and a similar

limiting jury instruction at the conclusion of trial. See

Grimmond, 137 F.3d at 833, n.15.

testified that Henley discussed the possibility of

committing "other robberies” with before their

participation in the robbery at the Check Point store. This

evidence likewise was probative of the relationship between

Henley and one of his co-conspirators. Additionally, '

testimony about his "scouting” missions with Henley of check

cashing establishments directly related to the robbery at the

Check Point store and, therefore, was probative evidence

regarding the crimes charged against Henley. Accordingly, we

conclude that the probative value of the testimony by these

three witnesses outweighed its prejudicial effect, and that the

district court did not err in admitting this testimony. See

id., 137 F.3d at 833.

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E.

Henley also challenges the district court's refusal to give

the jury an instruction regarding multiple conspiracies. Henley

asserts that the evidence showed that his co-conspirators

engaged in "different enterprises” beyond the conspiracy charged

in the indictment and that, without the multiple conspiracy

instruction, the jury improperly could impute evidence of

unrelated activity to Henley. Henley argues that this evidence

showed that Henley's co-conspirators committed robberies at

banks and were suspects in some robberies that occurred at

restaurants. Finally, Henley asserts that this evidence also

included information that he routinely sold illegal drugs, which

did not relate to the overall conspiracy at issue in his case.

We are not persuaded by Henley's arguments.

We review a district court's decision to give or refuse a

jury instruction for an abuse of discretion. Hurwitz, 459 F.3d

at 474. We have held that a district court is not required to

instruct the jury on multiple conspiracies unless the evidence

demonstrates that the defendant was involved in a separate

conspiracy unrelated to the overall conspiracy charged in the

indictment. Nunez, 432 F.3d at 578.

In this case, the evidence did not show that Henley

participated in any conspiracies other than the conspiracy

charged in the indictment. With regard to the evidence

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concerning robberies committed at banks and restaurants, the

evidence demonstrated that Henley did not participate in these

crimes. The only evidence of Henley's unrelated criminal

activity involved Henley's sale of drugs and his commission of

robberies at gas stations. This evidence, however, was

insufficient to support Henley's requested jury instruction

because the evidence failed to show that Henley entered into any

agreements or otherwise conspired with other criminal agents to

commit these crimes. See Nunez, 432 F.3d at 578. Additionally,

the district court's cautionary and limiting instructions to the

jury mitigated any potential prejudice caused by this evidence.

Therefore, we conclude that the district court did not abuse its

discretion in refusing to give a multiple conspiracy

instruction.

F.

Finally, Henley asserts that his sentence was procedurally

unreasonable. He contends that the district court erred in

failing to calculate the appropriate Guidelines range at the

outset of the sentencing proceeding. According to Henley, the

district court's error prejudiced him because the court did not

consider and rule on Henley's objections to the Guidelines range

recommended in the PSR for his conspiracy and robbery counts.

Henley concedes that he did not make this argument in the

district court and that, therefore, we review his claim for

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plain error. United States v. Lynn, 592 F.3d 572, 577 (4th Cir.

2010) (citing Fed. R. Crim. P. 52(b)). To demonstrate plain

error, a defendant must show that the district court erred, that

the error was plain, and that the error affected the defendant's

substantial rights. United States v. Olano, 507 U.S. 725, 732

(1993). In the context of sentencing, an error affects a

defendant's substantial rights if the defendant can show that

his imposed sentence was longer than it would have been absent

the district court's error. United States v. Angle, 254 F.3d

514, 518 (4th Cir. 2001).

In this case, we first consider whether the district court

committed significant procedural error. Gall v. United States,

552 U.S. 38, 51 (2007); United States v. Evans, 526 F.3d 155,

161 (4th Cir. 2008). As a matter of procedure, a district court

must begin its sentencing proceeding with a correct calculation

of the applicable Guidelines range. Gall, 552 U.S. at 49;

Evans, 526 F.3d at 161.

Here, the district court did not err by failing to

calculate the applicable Guidelines range, because, at the

beginning of the sentencing proceeding, the court adopted the

"approach” and the calculated range set forth in the PSR. The

PSR recommended the statutory minimum sentence for the firearm

counts and a Guidelines range of 210-262 months for the

conspiracy and robbery counts.

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Even if we assume, however, that the district court erred

in failing to announce a "final” Guidelines range before

considering the factors under 18 U.S.C. § 3553(a), Henley has

failed to show that, absent such error, his sentence would have

been shorter than the one actually imposed. See Angle, 254 F.3d

at 518. In fact, Henley's 72-month sentence for the conspiracy

and robbery counts was shorter than the "low-end” of the

Guidelines range of 78-97 months that Henley urged the district

court to consider based on his objections to the PSR.

Therefore, we conclude that the district court did not plainly

err in imposing Henley's sentence, and that Henley's sentence

was procedurally reasonable.

Based on our holdings stated above, we affirm the district

court’s judgment.



AFFIRMED