United States v. Alvin Henry ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________________
No. 20-1531
______________________
UNITED STATES OF AMERICA
v.
ALVIN HENRY,
Appellant
______________________
On Appeal from the District Court
of the Virgin Islands
(D.C. No. 1:16-cr-26)
Honorable Wilma A. Lewis
______________________
Submitted under Third Circuit L.A.R. 34.1(a)
December 11, 2020
Before: SMITH, Chief Judge, CHAGARES and MATEY, Circuit Judges
Filed January 19, 2021
______________________
OPINION*
______________________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SMITH, Chief Judge.
In this direct appeal, Defendant Alvin Henry challenges the District Court’s denial
of his motion to dismiss the indictment for prosecutorial misconduct. First, Henry argues
that the Government violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972), by failing to disclose impeachment-related evidence about
Henry’s cooperating co-defendant. Second, Henry contends that the Government’s failure
to preserve the luggage from which it seized the cocaine underlying his conviction denied
him a fair trial under California v. Trombetta, 467 U.S. 479 (1984), and Arizona v.
Youngblood, 488 U.S. 51 (1988).
The Government’s work appears to have been slipshod, but Henry’s appeal fails
because there was no constitutional violation. Defense counsel impeached Henry’s co-
defendant after disclosure of the Brady/Giglio material and secured a favorable jury
instruction. The exculpatory value of the luggage’s contents was not apparent to law
enforcement and could have been proved through other means, and there was no evidence
of bad faith by the Government. At bottom, these and the Government’s other failures
stemmed from negligence and not willful misconduct. The District Court did not err in
denying Henry’s motion to dismiss, so we will affirm.
I.
On November 2, 2016, Customs & Border Protection (CBP) officers searched
Henry’s bags at the St. Croix airport while he waited in the departure lounge for a flight to
Florida. They discovered bricks of cocaine in his luggage, and Henry was later indicted
along with a co-defendant, Lamech Matthew, for conspiracy to possess and actual
2
possession of cocaine with intent to distribute, in violation of various provisions of 21
U.S.C. § 841. Matthew worked at the airport and facilitated the attempted drug trafficking;
he signed a plea agreement with the Government in December 2018. On January 22, 2019,
the lead Assistant U.S. Attorney (AUSA) notified Henry’s counsel by email that “Matthew
entered a plea late this afternoon with a supp. agreement to cooperate and testify against
your client.” A1179.1 The AUSA stated that under Matthew’s supplemental plea
agreement, the Government would recommend a four-level reduction in Matthew’s
sentence if he testified against Henry. The AUSA did not provide a copy of it.
At Henry’s jury trial, Matthew testified about his role in the conspiracy to traffic
cocaine. Matthew stated that individuals for whom he had previously trafficked drugs
pointed Henry out to him on November 1, 2016—the night before both men were
arrested—and told him that Henry would retrieve the cocaine that Matthew would secret
into the airport the following day. Matthew also testified that he had a plea agreement with
the Government under which he expected sentencing benefits from his testimony but did
not “have to call any names.” A313. During his direct testimony, he identified only Henry.
On cross-examination, Matthew refused to answer certain of defense counsel’s
questions related to other individuals involved in the drug trafficking. It became clear that
on top of his original plea agreement and the written supplement mentioned in the AUSA’s
January 2019 email, Matthew also had an oral cooperation agreement with the Government
1
Citations are to Defendant-Appellant’s Appendix (“A”).
3
under which he could decline to provide information identifying anyone other than Henry.2
Neither a copy of the supplemental plea agreement nor the existence of the oral cooperation
agreement was disclosed to the defense before trial. Defense counsel asserted that the
Government had violated Giglio by withholding the agreements, as each provided
impeachment evidence relevant to a critical witness’s potential bias. Defense counsel also
maintained that the identities of other co-conspirators were probative of Henry’s innocence
because she could call them as witnesses and adduce evidence that they did not know who
Henry was.
The District Court adjourned trial for the day and heard from the parties on possible
courses of action. Both the District Court and the Government were disinclined to hold
Matthew in contempt for refusing to answer questions that could identify other members
of the drug trafficking operation, given his reliance on agreements with the Government.
The Government suggested that the Court either strike Matthew’s testimony or declare a
mistrial. Defense counsel proposed, without prejudice to her moving to dismiss the
indictment for prosecutorial misconduct, that (1) Henry be permitted to introduce as
substantive evidence one of Matthew’s recorded post-arrest interviews with law
enforcement—in which he named certain names and admitted that he had lied in a prior
interview; (2) the Government be precluded from rebutting Matthew’s statements in the
2
The rationale for this unusual side agreement was that Matthew feared reprisals from
members of the drug outfit. The AUSA believed that the identities of other participants
were irrelevant to the two-person conspiracy charged in Henry’s indictment.
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interview; and (3) the jury be instructed on the Government’s conduct in prosecuting
Henry. The District Court chose this approach.
Trial resumed. Defense counsel cross-examined Matthew about his motive to curry
favor with the Government and thereby benefit from the plea agreement and supplemental
plea agreement. She also introduced the supplemental plea agreement as an exhibit. She
then secured his refusal to answer questions about the identities of others involved in the
drug trafficking operation and, to supplement his non-answers, played for the jury portions
of Matthew’s recorded interview with law enforcement. The AUSA and defense counsel
ultimately agreed on a lengthy instruction, which the District Court read to the jury after
Matthew’s testimony. Among other things, the instruction stated that:
• the Government “had an obligation to disclose the supplement to the
plea agreement to the defense” but did not do so before trial;
• the Government “also entered into an improper oral agreement” with
Matthew by which he “was never required to provide any information
that would reveal the identity of anyone other than Mr. Henry”;
• the oral agreement too was not disclosed to the defense before trial;
• the individuals whose identities Matthew refused to disclose “had
larger roles in the conspiracy” than Henry allegedly did;
• the Government’s “tunnel vision in prosecuting Mr. Henry” led to the
“unusual” arrangement whereby Matthew “did not have to comply
with all the terms of the supplement to the plea agreement in order
for the government to recommend” the four-level downward
departure at Matthew’s sentencing; and
• how the Government “handled” Matthew’s testimony was
“inconsistent with the regular course of business.”
5
A644–46. This instruction also stated that the jury could consider Matthew’s recorded
statements as substantive evidence.
The Government’s evidence, including Henry’s own post-arrest interview with law
enforcement, tended to show that Henry arrived in St. Croix with no intention of trafficking
drugs but obliged when his cousin’s friend asked him to transport some packages on his
flight to Florida. In the portions of his interview played for the jury, Henry gave conflicting
statements about whether he knew upon receiving the packages from Matthew that they
contained cocaine.
After both sides rested, the District Court repeated the lengthy instruction regarding
Matthew and then instructed the jury about Henry’s luggage, which the Government had
somehow lost after seizing the drugs. “The parties agree,” the Court explained, “that there
were various items in the bags that are not depicted” in the Government’s photographs of
the alleged cocaine bricks found in Henry’s bags. A1006. The Court went on:
Whether those ten packages were found in the bags is a fact for you to
determine. . . . The parties also agree that the government had a duty to retain
the two bags and all the items contained in those bags. The parties further
agree that the government failed to retain those bags, and all the items
contained in them. You may infer from the government’s failure to retain
this evidence that the evidence was favorable to Defendant Henry. You are
not required [to] so infer, however, since you are the sole judges of the facts.
A1006–07.
During closing, defense counsel argued that Matthew was biased and untrustworthy
because of: his recorded admission that he had lied in his prior interview; his multiple
undisclosed agreements with the Government; and his need to testify in a way that the
Government would consider truthful. Defense counsel also argued that Henry didn’t learn
6
anything about the cocaine until Matthew delivered the packages to him in the airport; that
the jury should infer that the contents of Henry’s luggage would have exonerated him
because they were those of a person taking a pleasure trip to Florida; and that Henry
believed the packages contained only cash.
The jury found Henry guilty on both the conspiracy and possession counts. Henry
then moved to dismiss the indictment, arguing that the Government violated Brady and
Giglio by suppressing the supplemental plea and oral cooperation agreements.3 The
District Court denied Henry’s motion and sentenced him to 48 months’ imprisonment
followed by a three-year term of supervised release. This appeal followed.
II.
We have appellate jurisdiction under 28 U.S.C. § 1291. The District Court of the
Virgin Islands had jurisdiction under 48 U.S.C. § 1612 and 18 U.S.C. § 3231. We review
the denial of a motion to suppress for clear error as to the underlying factual findings and
exercise plenary review over the District Court’s application of the law to those facts.
United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).
1. No Brady/Giglio violation. Under Brady, the Government’s suppression “of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. at 87. Exculpatory evidence under Brady includes
information that could be used to impeach a government witness. Giglio, 405 U.S. at 154.
3
Before trial, the District Court denied Henry’s separate motion to dismiss the indictment
for prosecutorial misconduct arising out of the loss of his luggage and their contents.
7
The Government concedes that the supplemental plea agreement and the oral cooperation
agreement were Giglio material. But Henry cannot show that he suffered prejudice from
the Government’s suppression of the evidence. See Dennis v. Sec’y, Pa. Dep’t of Corrs.,
834 F.3d 263, 284–85 (3d Cir. 2016) (en banc) (noting prejudice requirement).
If the government makes Brady evidence available during trial so that the defendant
is able to effectively use it, there is no prejudice—and thus no Brady violation. In United
States v. Johnson, 816 F.2d 918 (3d Cir. 1987), our Court held that the Government did not
violate Brady by failing to provide the defendant with exculpatory fingerprint reports
before trial. Id. at 924. The defendant made extensive use of the reports at trial—including
on cross-examination, by introducing the reports as evidence, and by arguing to the jury
that the reports supported acquittal—and the District Court precluded the Government from
presenting expert testimony about their significance to mitigate any potential unfairness.
Id.Likewise, Henry used the Brady material extensively at trial. His counsel received
the supplemental plea agreement and learned of the contents of the oral agreement before
cross-examining Matthew. Counsel then asked Matthew about the sentencing benefits he
expected to receive under the supplemental plea agreement because of his testimony
against Henry; made clear that Matthew was refusing to “name names” as a result of his
oral agreement with the Government; introduced as substantive evidence Matthew’s prior
recorded interviews, in which he named certain names and admitted to previously being
untruthful; and secured a favorable instruction read to the jury at the end of Matthew’s
cross-examination. Consistent with Johnson, the Brady material surfaced during trial and
8
Henry effectively used it for all its impeachment value.4 See also United States v. Higgs,
713 F.2d 39, 44 (3d Cir. 1983) (holding that due process is satisfied by disclosure of
witness-credibility Brady material “the day that the witness testifies”).
2. No Trombetta/Youngblood violation. To establish a due process violation based
on law enforcement’s failure to preserve potentially exculpatory evidence, a defendant
must show: that the potentially exculpatory nature of the evidence was apparent at the time
of destruction or loss, Trombetta, 467 U.S. at 489; the lack of “comparable evidence by
other reasonably available means,” id.; and that the government acted in “bad faith,”
Youngblood, 488 U.S. at 58. None of these requirements is satisfied here.
To begin with, the supposedly exculpatory nature of the evidence would not have
been apparent to law enforcement at the time of the loss. Henry claims that the contents
of his luggage would have shown that the purpose of his trip to Florida was pleasure, not
to traffic drugs. But even so, the contents’ exculpatory value would not have been readily
apparent. That personal items redolent of a vacation may have been packed alongside
bricks of cocaine does little to exculpate the owner of the luggage from a drug distribution
conspiracy. The Government’s evidence tended to show that Henry agreed to courier the
4
The same lack of prejudice defeats Henry’s cursory argument that the District Court
should have dismissed the indictment under its supervisory authority. “[P]rejudice
sufficient for the District Court to intervene in a proper prosecution based upon its inherent
authority occurs only where the Government engages in actions that place a defendant at a
disadvantage in addressing the charges.” United States v. Wright, 913 F.3d 364, 372 (3d
Cir. 2019). Because Henry suffered no prejudice, dismissal of the indictment under the
District Court’s supervisory powers would have been inappropriate. See Gov’t of V.I. v.
Fahie, 419 F.3d 249, 259 (3d Cir. 2005) (“[W]e do not expect that trial courts will dismiss
cases under their supervisory powers that they could not dismiss under Brady itself.”).
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drugs at a late juncture—on the night before his already-booked flight. Indicia in his
luggage of a pleasure trip to Florida jibes with that theory of the case.
What’s more, Henry had other avenues to obtain comparable evidence. For
example, Henry could have elicited the testimony of the officers who handled his luggage
to prove the missing contents. The CBP agents who searched Henry’s luggage were called
as witnesses at trial, yet he declined to ask them about the contents of his bags. Henry’s
situation thus presents circumstances far different from those in which a defendant lacks
comparable means of adducing the exculpatory value of lost or destroyed evidence. See,
e.g., United States v. Elliott, 83 F. Supp. 2d 637, 643–44 (E.D. Va. 1999) (“[T]here is no
reasonably available alternative means of ascertaining the chemical contents of the residue
which was observed in some of the [destroyed] glassware.” (emphasis added)).
Nor does Henry offer evidence of bad faith. Unless a criminal defendant can show
bad faith on the part of police, “failure to preserve potentially useful evidence does not
constitute a denial of due process of law.” Youngblood, 488 U.S. at 58; see also United
States v. Deaner, 1 F.3d 192, 200 (3d Cir. 1993). But Henry argues only that the
Government’s failure to preserve his luggage violated police procedures and, ipso facto,
establishes bad faith. Precedent forecloses this argument. See, e.g., Youngblood, 488 U.S.
at 58; Deaner, 1 F.3d at 200–01; United States v. Ramos, 27 F.3d 65, 72 (3d Cir. 1994)
(holding that destruction of evidence in violation of established rules and policy did not,
alone, warrant finding of bad faith). Bad faith instead turns on “the police’s knowledge of
the exculpatory value of the evidence at the time it was lost or destroyed.” Griffin v. Spratt,
969 F.2d 16, 20 (3d Cir. 1992) (quoting Youngblood, 488 U.S. at 51 n.*). Nothing suggests
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anyone’s knowledge that the personal items Henry claims were in his luggage and
supposedly augured a pleasure trip to Florida had any tendency to exculpate him for
conspiring to traffic drugs.5
* * *
Finally, we reject Henry’s contention, if advanced as an independent argument, that
the District Court should have dismissed the indictment as a sanction for the Government’s
combined failures. Henry’s prosecution—while far below the standard that we expect and
the public should demand—did not include any “shocking, outrageous, and clearly
intolerable” conduct that would warrant dismissal on “fundamental fairness” grounds.
United States v. Nolan-Cooper, 155 F.3d 221, 230–31 (3d Cir. 1998) (quoting United
States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992)). Consider that, though the AUSA
failed to provide Matthew’s supplemental plea agreement to defense counsel before trial,
he did contemporaneously email Henry’s attorney the basic terms of the agreement.6 Such
5
At all events, the District Court’s instruction permitted the jury to draw an inference
favorable to Henry from the Government’s failure to preserve the luggage, likely mitigating
any unfairness.
6
Henry identifies the Government’s other missteps to try to trace a pattern of egregious
misconduct. For example, the AUSA misinformed the Court that Matthew’s testimony
against Henry was untethered to his plea agreements, misidentified the date and status of
Henry’s written plea agreement, and failed at first to produce all correspondence relating
to negotiations of the plea agreements. But the record suggests that these too were
negligent mistakes, eventually corrected by counsel or remedied by the District Court. For
instance, the Court ordered a full production of all correspondence relating to Matthew’s
plea and cooperation agreements. See, e.g., United States v. Kubini, 19 F. Supp. 3d 579,
628 (W.D. Pa. 2014) (“[T]he appropriate remedy which results from the inconsistent
information provided by the Government is simply to order the Government to produce
any such materials rather than to order the extreme sanction of dismissal.”).
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conduct reflects a negligent misunderstanding of Brady and Giglio rather than the sort of
“egregious” misconduct that justifies dismissal. Id.; see also Fahie, 419 F.3d at 249, 254–
55 (“rare sanction” of dismissal requires willful government misconduct and prejudice to
defendant); United States v. Lakhani, 480 F.3d 171, 180 (3d Cir. 2007) (dismissal not
appropriate “each time the government acts deceptively,” but “only in the face of the most
intolerable government conduct”).
III.
To conclude, the Government did not violate Giglio because Henry made effective
use of the withheld impeachment material at trial, and thus suffered no prejudice. And the
failure to preserve the contents of Henry’s luggage did not violate the Due Process Clause
because their exculpatory value was not readily apparent, Henry had other avenues to
adduce comparable evidence, and there was no bad faith on the part of law enforcement.
These and other mistakes by the Government did not offend the Constitution, nor do they
resemble the sort of willful misconduct that a dismissal remedy seeks to deter.7 We will
therefore affirm the District Court’s denial of Henry’s motion to dismiss.
7
Our opinion should not be read to excuse the numerous failures that littered Henry’s
prosecution. The Government tells us that, in response to these mistakes, it has instituted
a training program in the Virgin Islands to educate its AUSAs and local police on their
Brady and evidence-preservation obligations. The issues in this appeal suggest that such
training is indeed necessary, and we encourage the Government to implement any related
programming it deems advisable.
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