United States v. Henry ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0380p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee/Cross-Appellant, -
UNITED STATES OF AMERICA,
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Nos. 05-2084/2282
v.
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RODERICK HENRY, -
Defendant-Appellant/Cross-Appellee. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-80128—Denise Page Hood, District Judge.
Argued: September 17, 2008
Decided and Filed: October 17, 2008
Before: DAUGHTREY and GILMAN, Circuit Judges; MILLS, District Judge.*
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COUNSEL
ARGUED: James C. Thomas, PLUNKETT & COONEY, Detroit, Michigan, for Appellant.
Jennifer J. Sinclair, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: James C. Thomas, PLUNKETT & COONEY, Detroit, Michigan, for Appellant.
Jennifer J. Sinclair, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. This case arises from a large-scale drug-trafficking
operation that transported cocaine on musical-band tour buses from Los Angeles to Detroit and other
cities. The drugs were stored inside large concert speakers in amounts of up to 150 kilograms per
trip. Cocaine and several million dollars in cash proceeds were seized by the police when they
finally stopped the operation in February 2000.
After hearing extensive incriminating evidence, including the testimony of six coconspirators
in the drug-trafficking operation, a jury convicted Roderick Henry of conspiracy to possess five
kilograms or more of cocaine with the intent to distribute the drug. Following the jury verdict, the
district court calculated the applicable U.S. Sentencing Guidelines range at 324 to 405 months of
*
The Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting by
designation.
1
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imprisonment, but sentenced Henry to the considerably shorter term of 180 months. Henry now
appeals his conviction, asserting that he was denied a fair trial because of prosecutorial misconduct
during closing argument. The government cross-appeals Henry’s sentence, which it considers too
lenient. For the reasons set forth below, we AFFIRM Henry’s conviction, but VACATE his
sentence and REMAND the case to the district court for resentencing consistent with this opinion.
I. BACKGROUND
The government alleged at trial that Henry was a partner in a major drug conspiracy that
obtained cocaine from Mexican drug suppliers in Los Angeles and transported the drugs to Detroit
and other cities in the United States. Although Henry occasionally caused cocaine to be transported
by other means, the government asserted that he devised a plan to transport large amounts of cocaine
in tour buses that normally traveled with musical bands. The operation’s modus operandi was to
pack 50 kilograms of cocaine into a large concert speaker and to then place several such speakers
in the cargo bay of the bus. Upon arrival at the destination, the drugs would be unloaded and sold.
The cash proceeds would then be packed into the speakers and the speakers loaded back on the bus
for the return trip to Los Angeles.
On February 15, 2000, the Detroit police acted on tips from informants and seized powder
cocaine, crack cocaine, and money from two residences in the city. The money was bundled and
hidden in large concert speakers stored in one of the homes. On the same day, the police arrested
Gregory Jackson, one of the coconspirators. Jackson was driving a truck that contained another
speaker that held more than $1 million in bundled cash. A search of Jackson’s person revealed that
he had an additional $79,000 in cash inside his jacket. Federal agents ultimately seized more than
$3.2 million in drug proceeds from the Detroit searches. Almost 3 kilograms of cocaine and 244
grams of heroin were also seized from one of the Detroit residences in question.
Alerted by authorities to look for a specific tour bus, the police in Taylor, Michigan pulled
over a bus on the same day as the Detroit seizures. On board the bus were Donald Gatlin and Kevin
Minniefield, the latter being the drug operation’s principal driver. The bus was on its way back to
California. A search revealed one concert speaker with approximately $1.2 million in cash hidden
inside, allegedly the proceeds from drugs that had been sold in Baltimore, Maryland. Police also
seized three handguns, several cell phones, and various documents from the bus.
Gatlin was arrested during the seizure of the bus and was eventually prosecuted in California
on an unrelated drug charge involving Mark Yoakum, Henry’s alleged partner in the operation.
Minniefield was also arrested, released, and then rearrested in 2003. He eventually pled guilty to
being a felon in possession of a firearm. Both Gatlin and Minniefield testified at Henry’s trial.
Although Henry was in Los Angeles at the time the bus was seized, the government asserted
that he had organized the bus trip to Detroit and Baltimore that resulted in the February 15, 2000
searches and seizures. Specifically, the government alleged that Henry was responsible for putting
three speakers on the bus in Los Angeles, that two of the speakers were delivered in Detroit and one
went to Baltimore, and that each of the three speakers originally contained 50 kilograms of cocaine.
Jackson was allegedly responsible for the two speakers that were left in Detroit; Gatlin was allegedly
responsible for the speaker that went on to Baltimore.
Jackson, who was released on bond after his arrest, agreed to cooperate with the police. He
taped subsequent phone calls to Henry. During these conversations, the topics included whether
Gatlin was cooperating with the police, the use of cell phones, and Jackson’s request for a different
attorney. Henry also told Jackson that he should put on his “gogo boots,” which Jackson and the
government interpreted as an instruction that Jackson should “jump bond” and disappear.
Nos. 05-2084/2282 United States v. Henry Page 3
At Henry’s trial, Jackson testified that Cesar Soto was Henry’s supplier. Jackson admitted
that he had helped Henry unload several hundred kilograms of cocaine delivered by Soto, and said
that he had seen 200 to 250 kilograms of cocaine stored at Henry’s home. He explained that he and
Henry had originally transported cocaine to Detroit by airplane, but that Henry came up with the
idea of using musical-band tour buses to transport the drugs. Jackson also described numerous bus
trips that involved large amounts of cocaine, and claimed to have seen Henry and his wife counting
drug money. Although Jackson faced a possible sentence of 20 years, his plea agreement included
a motion for a reduction of his sentence to between 10 and 12 years of imprisonment.
Soto, Henry’s alleged supplier, was arrested in April 2002. He pled guilty to a drug charge
unrelated to Henry’s case and was incarcerated at the time of Henry’s trial. As part of Soto’s plea
agreement, the government decided not to prosecute him in connection with the seizures of drugs
and money that led to Henry’s conviction. Soto’s plea agreement also stated that within one year
of his original sentence, the government could file a motion under Rule 35 of the Federal Rules of
Criminal Procedure to reduce that sentence. Soto testified that he understood that the reduction
would be based on his cooperation in Henry’s case. The Rule 35 motion was pending at the time
Soto testified at Henry’s trial.
At trial, Soto said that he supplied Henry with cocaine and that Henry and Yoakum were
partners. Soto claimed that Henry and his wife counted money at their home using a money counter,
and that Soto’s workers provided Henry with 150 kilograms of cocaine in the year 2000. The
government alleged that this cocaine was sent to Detroit and Baltimore, and that the concert speakers
seized by the police in the various searches on February 15, 2000 contained the proceeds from the
drug sales. Soto said that he and his workers delivered cocaine directly to Henry’s house.
The principal bus driver, Minniefield, testified that he drove buses to Detroit at Jackson’s
request seven times. Minniefield also stated that, on one occasion when someone was trying to
break into a car containing a speaker, he fired a gun at that person. He further alleged that he saw
Henry in Detroit “just about every time” he went there, that Henry was in Los Angeles “just about
each and every time” the speakers were unloaded, and that Henry rode with him on the bus from
Detroit to California on one occasion.
Minniefield further testified that, after his first arrest, he saw Henry three times in California
before Minniefield was arrested again. He said that Henry suggested on one occasion that
Minniefield might not “remember” various facts due to the passage of time. Although Minniefield
testified at Henry’s trial that he had not made any agreement with the government for a sentence
reduction, his plea agreement included a provision for a possible sentence reduction if he provided
substantial assistance to the government.
Derrick Reynolds was another member of the alleged conspiracy. The record is unclear
regarding Reynolds’ exact role, but he appears to have been an associate of Henry’s who received
large amounts of the drugs transported on the tour buses. Reynolds pled guilty to a drug-trafficking
charge in an unrelated case. At Henry’s trial, Reynolds acknowledged that the government had filed
a motion to reduce his sentence in that case pending his testimony in Henry’s case.
Reynolds testified at Henry’s trial that between 600 and 800 kilograms of cocaine came to
him in Detroit on tour buses and by other means, and that he met with Henry and other members of
the alleged conspiracy in Los Angeles in January 2000. After the bus was seized in Michigan on
February 15, 2000, Reynolds contends that Henry asked him if he could send an attorney to talk to
Jackson, who was then in jail. Reynolds sent an attorney to meet with Jackson, but Jackson refused
to talk to him.
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Another key witness at Henry’s trial was Christine Kah, Yoakum’s girlfriend. Kah worked
at a Ramada Inn in Detroit, where Henry and Yoakum often stayed while they were in Michigan.
She cooperated with federal agents and received government funds totaling $1,500 to relocate to
Canada, where she is a citizen. Kah returned to the United States, however, to testify at Henry’s
trial. She said that Henry and Yoakum were business partners who she believed promoted music
groups. She also stated that a large amount of cash was stored at Yoakum’s apartment in Detroit,
that she had seen concert speakers on a bus associated with Henry, and that once she was with Henry
and Yoakum when they delivered two concert speakers to someone in Detroit named Big Al.
Carl McMullan, Henry’s former brother-in-law, also testified at Henry’s trial. McMullan
was arrested in February 2001 and prosecuted in Michigan on a separate drug charge involving Soto,
Henry’s alleged cocaine supplier. The government requested that McMullan be sentenced at the low
end of his applicable Guidelines range in exchange for his cooperation in Henry’s case. McMullan
was interviewed by the government about the case while he was in prison in July 2001.
At Henry’s trial, McMullan testified that Henry had a steady supply of cocaine, had once
shown him 100 kilograms of cocaine in a car, and had stated that he owed $180,000 to Soto.
McMullan also said that he had helped to count money at Henry’s residence on numerous occasions.
After the bus and the proceeds from the cocaine were seized by police on February 15, 2000, Henry
told McMullan about the bust. McMullan further testified that shortly after the bust, Soto tried to
convince him to bring Soto to Henry’s home to discuss the money that Henry owed Soto. He
refused to do so because he believed that Soto might try to kill Henry. Finally, McMullan testified
that, after his arrest, he had no contact with anyone involved in the drug conspiracy.
Henry was arrested at his home in October 2001. No money, drugs, or other paraphernalia
were found inside, and a trained drug dog did not alert to the presence of any drugs. The police
seized various documents, including receipts for landscaping and jewelry, notes about the present
case, and an application for an apartment in the name of an alias used by Derrick Reynolds. These
documents, along with phone records showing calls between Henry, Reynolds, Gatlin, and other
individuals involved in the alleged drug conspiracy, as well as records from the Ramada Inn in
Detroit showing that Henry, Kah, and Gatlin had stayed there, were presented at Henry’s trial.
Henry testified in his own defense. He denied that he was involved in any drug conspiracy
or that he had ever bought or sold cocaine. He also said that the money he had came from loans, the
sale of a home and a car, and a settlement that he received from an injury suffered at work. Henry
admitted that he knew Jackson, but asserted that he was responsible only for the promotion of
musical bands and organizing tours.
A jury convicted Henry on one count of conspiracy to possess cocaine with the intent to
distribute five kilograms or more of the drug, the crime being in violation of 21 U.S.C. § 841(a)(1),
21 U.S.C. § 841(b)(1)(A)(ii), and 21 U.S.C. § 846. The jury determined by special verdict that the
quantity of cocaine at issue in the case was 150 kilograms or more.
Henry’s Presentence Report (PSR) set his advisory Sentencing Guidelines range at 235 to
293 months of imprisonment. The government filed objections to the PSR, and sought to enhance
Henry’s offense level for possession of a firearm, for obstructing and attempting to obstruct justice,
and for his leadership role in the conspiracy. Henry, in contrast, argued that a reasonable sentence
was the statutory minimum of 10 years. The district court rejected the majority of the government’s
suggested enhancements, but added three levels to Henry’s final offense level for his leadership role
in the conspiracy. Henry’s final offense level was set at 41 and his Guidelines range was determined
to be between 324 and 405 months of imprisonment. The court, however, ultimately sentenced
Henry well below the Guidelines range to 180 months in custody and five years of supervised
Nos. 05-2084/2282 United States v. Henry Page 5
release. Henry timely appealed his conviction, and the government filed a cross-appeal relating to
his sentence.
II. ANALYSIS
A. Prosecutorial-misconduct claims
Henry contends that he was denied his due process right to a fair trial as a result of
prosecutorial misconduct. Specifically, he asserts that the prosecutor (1) misstated the evidence on
multiple occasions during the closing argument, (2) improperly vouched for the credibility of
government witnesses, (3) made arguments that improperly shifted and reduced the government’s
burden of proof, and (4) improperly defined the reasonable-doubt standard in emotional terms.
1. Standard of review
Allegations of prosecutorial misconduct contain mixed questions of law and fact that we
usually review de novo. United States v. Green, 305 F.3d 422, 429 (6th Cir. 2002). This court
employs a two-step inquiry to determine whether prosecutorial misconduct has occurred. United
States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999). First, we determine whether a statement was
improper. Id. If it was improper, we next examine whether the statement was so “flagrant” as to
warrant reversal. Id. We consider four factors in determining whether a statement was flagrant:
(1) whether the prosecutor’s remarks or conduct tended to mislead the jury or prejudice the
defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were
accidentally or deliberately made; and (4) the overall strength of the evidence against the accused.
Id. at 549-50.
Because Henry’s counsel failed to object during the trial to either the prosecutor’s remarks
or to any evidence relied upon by the prosecutor, we review his prosecutorial-misconduct claims
under the plain-error standard rather than de novo. See United States v. Emuegbunam, 268 F.3d 377,
406 (6th Cir. 2001); Fed. R. Crim. P. 52(b). Plain-error review requires us to determine whether
“(1) an error occurred in the district court; (2) the error was obvious or clear; (3) the error affected
defendant's substantial rights; and (4) this adverse impact seriously affected the fairness, integrity,
or public reputation of the judicial proceedings.” Emuegbunam, 268 F.3d at 406. “Only in
exceptional circumstances in which the error is so plain that the trial judge and prosecutor were
derelict in countenancing it will this court reverse a conviction under the plain-error standard.” Id.
We afford wide latitude to a prosecutor during closing argument, analyzing disputed
comments in the context of the trial as a whole and recognizing that inappropriate comments alone
do not justify reversal where the proceedings were “otherwise fair.” United States v. Young, 470
U.S. 1, 11 (1985); see also United States v. Hitow, 889 F.2d 1573, 1579 (6th Cir. 1989) (“Even if
certain comments are found to be inappropriate, they . . . must be examined within the context of
the trial to determine whether the prosecutor’s behavior amounted to prejudicial error.”(citation
omitted)). This requires us to examine “defense counsel’s conduct, as well as the nature of the
prosecutor’s response.” Young, 470 U.S. at 12. Henry’s conviction will not be set aside if
“prosecutors have responded reasonably in closing argument to defense counsel’s attacks, thus
rendering it unlikely that the jury was led astray.” See id.
2. Allegations regarding misstatements of the evidence
Henry’s first contention is that his conviction should be set aside because the prosecutor
misstated the evidence during closing and rebuttal arguments. Specifically, Henry alleges that the
prosecutor misrepresented the testimony of government witnesses Kah, Jackson, and McMullan, as
well as Henry’s own testimony.
Nos. 05-2084/2282 United States v. Henry Page 6
In his closing argument, the prosecutor said that Kah “told you about the apartment that was
rented for counting money,” and that Kah had testified that Henry “had decided to personally deliver
that speaker to Big Al’s house at three or four . . . in the morning.” Henry asserts that Kah did not
testify as to why the apartment was rented, and did not say that Henry alone decided to deliver two
speakers to Big Al’s house. Instead, Kah had said that Henry and Yoakum jointly agreed to deliver
the speakers to the residence.
Kah did testify at trial that she often saw “thousands and thousands of dollars” at the
apartment and that money was regularly counted there. The prosecutor’s characterization that the
apartment was rented for the purpose of counting money was therefore not totally devoid of factual
support in the record. Furthermore, the fact that money was counted at the apartment was far more
significant than whether the apartment was rented solely for that purpose.
Henry’s argument about the delivery of the two speakers is likewise without merit. No
relevant distinction can be drawn between Kah’s statement that Henry and Yoakum together decided
to deliver the speakers to Big Al and the prosecutor’s statement implying that Henry alone decided
to do so. Kah clearly testified that she heard Henry say that he needed to deliver two speakers to Big
Al’s house and that she witnessed the speakers being delivered there that night. The prosecutor’s
references to Kah’s testimony were therefore not improper.
Henry next alleges that the prosecutor mischaracterized Jackson’s testimony by stating that
Henry had told Jackson that “he needed a gun for Red,” one of the coconspirators, and by saying that
Jackson had given Henry a “free phone.” Specifically, Henry asserts that he asked Jackson only to
loan a gun to Red, and that he had testified that he bought the phone and paid the monthly charges.
Jackson, however, testified at trial that Henry had asked him to provide a gun to the
coconspirator in question. He also said that he told Henry that he would provide the “extra handgun”
to the coconspirator in order to “secure the bus.” And although Henry testified at one point during
the trial that he paid for the phone that Jackson provided him, Henry had previously said that
Jackson “gave” him a phone after he complained to Jackson about his expensive cell-phone bills.
The prosecutor’s statements relating to the gun and the phone were therefore supported by the
evidence and provide no basis for the claim of prosecutorial misconduct.
Henry further asserts that the prosecutor’s statement that McMullan did not know “whether
or not Cesar Soto is cooperating, doesn’t know whether Cesar Soto has been indicted, [and] doesn’t
have any idea what Cesar has said” was a mischaracterization of McMullan’s testimony. McMullan
testified, however, that from the time that he was arrested in February 2001 until Henry’s trial, he
had “no contact” with anyone involved in the conspiracy, including Soto. The prosecutor therefore
did not mischaracterize McMullan’s testimony.
Henry’s final evidentiary argument is that the prosecutor mischaracterized the amount of
cocaine that was in each concert speaker. The transcript of the prosecutor’s closing argument
includes the following statement made to the jury: “We know that there were 250 kilograms per
speaker.” No evidence from the record supports that number. The transcript, however, contains
several typographical errors, and the government suggests that the prosecutor actually said that there
were 50 kilograms of cocaine per speaker, not 250 kilograms. At the time of the disputed statement,
the prosecutor was discussing the special verdict form that required the jury to determine whether
“150 kilograms or more” of cocaine was at issue in Henry’s case. The prosecutor stated: “We know
that there were [some number, either 50 or 250] kilograms per speaker, and a minimum of two
speakers, sometimes three speakers on each trip. We know that three speakers on the last trip dealt
with 150 kilograms.” Then, after discussing one speaker, the prosecutor referenced two additional
speakers that had been found during the February 15, 2000 seizures and said “that is another 100
kilograms right there.”
Nos. 05-2084/2282 United States v. Henry Page 7
An examination of the entirety of the prosecutor’s statements about the quantity of cocaine
makes clear that the prosecutor was discussing a total of 150 kilograms of cocaine distributed among
three speakers in quantities of 50 kilograms each. The alleged error was therefore either
typographical or was isolated and unintentional, and was further limited by the fact that the special-
verdict form the jury received clarified that the jury was being asked to determine if “150 kilograms
or more” were involved in Henry’s case. In any event, after considering the context in which the
alleged error was made, we conclude that the purported misstatement could not have prejudiced
Henry or misled the jury. And even if the prosecutor did err, the error was unintentional and isolated
and does not warrant reversal under the plain-error standard of review.
3. Allegations of improper vouching for witness credibility
Henry next complains of improper vouching by the prosecutor. Improper vouching occurs
when a prosecutor either (1) bluntly states a personal belief in a witness’s credibility, “thereby
placing the prestige of the office of the United States Attorney behind that witness,” or (2) “implies
that the witness’s testimony is corroborated by evidence known to the government but not known
to the jury.” United States v. Francis, 170 F.3d 546, 550-51 (6th Cir. 1999). Henry argues that the
prosecutor engaged in both forms of improper vouching with regard to Kah, as well as with Henry’s
coconspirators.
In his closing argument, the prosecutor noted that Kah had not been charged with any crime,
and that she had relocated to Canada—where she was a citizen—and “couldn’t be forced to come
back to the United States to testify.” The prosecutor reminded the jury that Kah said “she wouldn’t
really feel right until she . . . came over and told the truth.” He asserted that Kah had nothing to lose
if she chose not to testify about Henry receiving money or personally delivering concert speakers,
and then went on to say: “Her testimony, I submit, when you discuss that, is highly credible
testimony, and her testimony alone when you compare it with the Defendant’s absolutely
contradictory testimony on the same point, is enough to convict the Defendant.”
Henry first argues that it was improper for the prosecutor to assert that Kah could not be
compelled to testify because there was no evidence in the record on that point. He then asserts that
the prosecutor improperly vouched for Kah’s credibility by suggesting that she was a disinterested
volunteer witness who could not have been compelled to appear in court, that she was more likely
to be truthful because the government had nothing to offer her, and that she was motivated by a
desire to tell the truth. Henry claims that the prosecutor improperly argued that Kah was a
disinterested witness despite the fact that the government could have charged her as a coconspirator
but did not, and despite the fact that Kah’s boyfriend, Yoakum, was allowed to plead guilty to
money-laundering charges rather than drug-trafficking charges. We conclude that these arguments
are without merit.
At trial, Kah made clear that she came to the United States voluntarily to testify. When
asked if, as a Canadian citizen living in Canada, the United States government could have forced
her to come to the United States to testify, she answered “no,” that the government could not do so.
Kah also asserted that she was testifying because she wanted “this chapter of [her] life to be closed”
and stated that, “unless I do the right thing and testify, it is never going to be closed.” The
prosecutor therefore did not do anything improper by arguing that Kah’s presence at the trial was
voluntary.
Nor did the prosecutor act improperly by explaining that the absence of a plea agreement
with the government suggested that Kah lacked a reason to lie. Evidence in the record supports the
prosecutor’s assertions that Kah had no agreement with the government regarding her testimony.
Furthermore, the prosecutor had some leeway to discuss Kah’s motivation for testifying because
Henry’s counsel had attacked her credibility during the defense’s closing argument. Although “[a]
Nos. 05-2084/2282 United States v. Henry Page 8
government attorney has a duty not to express a personal opinion or belief regarding the truth or
falsity of any testimony or evidence,” the government may attempt to explain why, based on the
facts, that witness’s testimony is honest after the same has been attacked by the defense. United
States v. Hurst, 951 F.2d 1490, 1502 (6th Cir. 1991) (citing United States v. Young, 470 U.S. 1, 8
(1985)).
Henry’s counsel repeatedly attacked the credibility of the government’s witnesses, arguing
that they could not be trusted because their testimony was “bought and paid for” and that “every
critical witness in this case called by the prosecution is a criminal seeking leniency.” Kah’s
credibility was specifically attacked when defense counsel referred to the $1,500 that Kah had
received from the government, and suggested that she was unreliable because she had been paid.
Because Henry attacked Kah’s credibility on the ground that she had received a benefit from the
government, the prosecutor was entitled to explain that, although Kah received money for relocating
to Canada, she had no agreement affording her any benefit for testifying at Henry’s trial.
Characterizing Kah as a witness who did not stand to gain anything from testifying was therefore
not misleading.
The prosecutor’s statement that Kah had provided “highly credible” testimony, however, was
problematic. In United States v. Francis, 170 F.3d 546 (6th Cir. 1999), this court explained that
“blunt comments” of personal belief constitute improper vouching. Id. at 550; see also United States
v. Bess, 593 F.2d 749, 756 (6th Cir. 1979) (explaining that statements of clear personal belief are
improper even when based on testimony advanced at trial, and are “unequivocally condemned”);
United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992) (holding that improper vouching
occurred when the prosecutor introduced his own opinion about credibility through comments
including “I think he [the witness] was candid. I think he was honest.”).
An improper statement of personal belief, however, is not per se reversible error. Bess, 593
F.2d at 754-56. The court must find that the improper statement was flagrant enough to “warrant
reversal.” Francis, 170 F.3d at 549. Here, the isolated improper vouching statement, whether
accidental or deliberate, was not likely to mislead the jury or prejudice Henry. Kah’s testimony was
only a small part of the evidence that the jury heard relating to Henry’s involvement in the
conspiracy. Her knowledge of the workings of the conspiracy was limited. We therefore conclude
that the improper statement was not flagrant and does not reach the level of reversible error. And
because the error was not flagrant even under de novo review, the vouching statement is clearly not
ground for reversal under the plain-error standard applicable here. See Gardiner, 463 F.3d at 459.
The remainder of Henry’s vouching allegations stem from the prosecutor’s references to the
plea agreements and reduced sentences received by coconspirators Gatlin, Jackson, McMullan,
Minniefield, and Soto. During closing argument, the prosecutor asked the jury to consider whether
the plea agreements would motivate the witnesses to lie, as suggested by the defense, or rather to
tell the truth because false testimony would cause the witnesses to forfeit their plea agreements. In
rebuttal argument, the prosecutor clarified that only after the interviews did he and the FBI agent
who interviewed many of the coconspirators “discuss[] and decide[] what if anything should be
offered as a sentence reduction to each witness.” Henry asserts that these comments improperly
expressed the prosecutor’s personal belief in each witness’s absolute and relative credibility.
A prosecutor may “refer to the plea agreement of a testifying witness . . . [,] elicit testimony
about its terms, attack the credibility of the witness because of it and even refer to the plea
agreement of a government witness in an attempt to deflect defense counsel’s use of the agreement
to attack the witness’s credibility.” Francis, 170 F.3d at 550. But because a prosecutor might
“imply, either intentionally or inadvertently, that the prosecutor is in a special position to ascertain
whether the witness was, in fact, testifying truthfully,” impropriety emerges where a prosecutor
Nos. 05-2084/2282 United States v. Henry Page 9
explains to the jury that the prosecutor will make “a recommendation to the witness’s sentencing
court whether the terms of the plea agreement have been adhered to.” Id.
In Henry’s case, the government never suggested to the jury that, if it deemed the testimony
of Henry’s coconspirators to be truthful, it would make a recommendation as to their sentencing.
The prosecutor instead noted that plea agreements are structured such that witnesses promise to tell
the truth and stand to lose any possible benefit if their testimony is later proven to be false. This
argument was a proper response to defense counsel’s contention that the government’s witnesses
were lying in order to receive sentence reductions.
Under the “invited response” rule, a “reviewing court must not only weigh the impact of the
prosecutor’s remarks, but must also take into account defense counsel’s opening salvo.” United
States v. Young, 470 U.S. 1, 11-12 (1985). “[I]f the prosecutor’s remarks were ‘invited,’ and did no
more than respond substantially in order to ‘right the scale,’ such comments would not warrant
reversing a conviction.” Id. at 12-13. Henry’s counsel repeatedly attacked the credibility of the
government’s witnesses during the trial and in closing argument, suggesting that the plea agreements
and sentence reductions were a quid pro quo for manufactured testimony. The prosecutor’s response
was reasonable in light of the attacks, explaining that the government interviewed the coconspirators
to learn what they knew well before making any decision to offer them a plea agreement or to reduce
their sentences because of their testimony in Henry’s case. Because a prosecutor is entitled to
explain the efforts made to ensure truthful testimony by a witness whose credibility has been
attacked, the prosecutor’s statement did not constitute improper vouching. See United States v.
Hurst, 951 F.2d 1490, 1502 (6th Cir. 1991) (concluding that, in response to attacks on the credibility
of a government witness, the prosecutor was entitled to explain his efforts to ensure full and honest
disclosure).
Henry properly notes, however, that the prosecutor’s closing argument incorrectly claimed
that the witnesses understood the terms of their plea agreement before they provided statements to
the FBI agent assigned to the investigation. There is no evidence in the record to suggest that any
of the coconspirators who testified at Henry’s trial had reviewed their plea agreements before talking
with the agent for the first time. In fact, both parties acknowledged that the coconspirators did not
receive their plea agreements until months or even years after their interviews.
Henry’s argument about this alleged error loses its persuasiveness when we examine the
arguments in context. Even if the coconspirators did not understand the risks associated with lying
at the time they first spoke with the FBI agent, they certainly had evaluated the consequences of
such an action prior to the time they signed their plea agreements. Any confusion about the timing
of the coconspirators’ interviews and the signing of their plea agreements was remedied by
comments made by the prosecutor in his rebuttal. There, the prosecutor made clear that the
government offered agreements to the coconspirators in exchange for their testimony only after they
had given their interviews. Furthermore, the coconspirators discussed the dates of their arrests,
debriefings with the FBI agent, and the content of their plea agreements at trial. The plea
agreements themselves were also all entered into evidence. When viewed in the context of the
prosecutor’s overall argument and the evidence before the jury, the statement about the witnesses
understanding their plea agreements was not improper.
4. Allegations regarding shifting and reducing the burden of proof
Henry further alleges that the prosecutor shifted and reduced the burden of proof during
closing argument. Specifically, Henry points to the following statement by the prosecutor: “Ladies
and gentlemen, I guess that sort of gets back to the whole point that I said in opening statement . . .
listen to the testimony of the witnesses, consider how it came in, and consider if there is any way
that the defense’s theory could hold any water.” Henry claims that the statement shifted the burden
Nos. 05-2084/2282 United States v. Henry Page 10
of proof to him because it purportedly tells the jury that Henry is required to present evidence and
a theory of innocence, and improperly tells the jury to weigh competing theories.
Nothing in the prosecutor’s remarks, however, suggested that Henry had the burden to prove
that he was innocent. In this circuit, “[i]f a defendant testifies . . . , a prosecutor may attack his
credibility to the same extent as any other witness,” United States v. Francis, 170 F.3d 546, 551 (6th
Cir. 1999), so long as the commentary is “supported by reasonable inferences from the record” and
is not based solely on the prosecutor’s personal opinion. Greer v. Mitchell, 264 F.3d 663, 683 (6th
Cir. 2001). At trial, Henry denied knowing many of his alleged coconspirators, asserted that he had
no involvement in the drug conspiracy, and attacked the credibility of the government’s witnesses.
This allowed the government to contrast Henry’s testimony with that of the numerous witnesses
who testified against him and to ask the jury to decide who they believed. The district court also
clearly and properly instructed the jury that the government bore the burden of establishing Henry’s
guilt beyond a reasonable doubt. Henry’s argument that this statement by the prosecutor shifted and
reduced the burden of proof is therefore without merit.
5. Allegation of an improper characterization of the reasonable-doubt
standard
In a final specific attack on his conviction, Henry argues that the prosecutor used a flagrantly
improper emotional characterization of the reasonable-doubt standard in his rebuttal to Henry’s
closing argument. The prosecutor described the standard by saying that “you don’t have a
reasonable doubt if proof is so convincing that you would not hesitate to act and rely on it in the
most important matters in your own lives.” He then proceeded to give an “example” for the jury:
Suppose you had your son or daughter come to you . . . just out of college and . . .
they’ve got a great job opportunity . . . out in California, and they’re going to go
work for a man named Roderick Henry. And they are going to go work for Roderick
Henry in the music business . . . .
What do you think, ladies and gentleman? You have heard evidence from people
who have criminal records. Do you know enough when your son and daughter
comes to you and say great, I’m going to work for Roderick Henry, what do you tell
them? Do you tell him or her, great, sounds great to me, good luck. If it was the
most important decision in your life, what decision would you ask your son or
daughter to make based on the evidence you heard from that witness stand?
You know what your decision would be. You know your decision would be that you
know enough about Roderick Henry based on the [evidence], you know, in the most
important decisions in your life, you would say he is a drug dealer, don’t work for
him.
Henry argues that the prosecutor’s example improperly suggested to the jurors that the
evidence against Henry should be considered as though it involved a matter regarding the potential
safety of their children. As such, he contends that the argument is a thinly veiled form of the
improper “community protection argument” found to be reversible error in United States v. Solivan,
937 F.2d 1146, 1153 (6th Cir. 1991) (“A prosecutor may not urge jurors to convict a criminal
defendant in order to protect community values . . . or deter future lawbreaking. The evil lurking in
such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to
his own guilt or innocence.” (quoting United States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir.
1984))).
But the suggestion that jurors consider what advice they would give a child who was
considering a job with Henry differs from the “send a message” and “community protection”
Nos. 05-2084/2282 United States v. Henry Page 11
arguments that have been condemned by the courts. The prosecutor’s statements in the present case
did not shift the focus away from Henry’s culpability or suggest that punishing Henry would send
other drug dealers in the community a message.
A more accurate characterization of the problem here is that the example used was an
improper effort on the part of the prosecutor to reduce the government’s burden of proof. By
suggesting to the jurors that the decision of whether to convict Henry was equivalent to the decision
of whether to recommend that their child take a job with Henry, the prosecutor inverted the burden
of proof. In other words, the prosecutor’s statement encouraged the jury to evaluate how sure they
were that Henry was not a drug dealer, as opposed to how sure they were that he was guilty of the
crime charged beyond a reasonable doubt.
No caring parent would recommend that their child take a job with anyone whom they
remotely feared might be a drug dealer. The prosecutor’s example therefore suggested that the jury
should convict Henry unless they were so convinced that he was not a drug dealer that they would
recommend that their child enter his employ. Such a characterization of the reasonable-doubt
standard was error. We must accordingly decide whether the statement was flagrant enough to
warrant reversal.
To start with, the improper example could easily have misled the jury regarding the
reasonable-doubt standard in a way prejudicial to Henry. The argument was also deliberately made,
even if the prosecutor did not intend to invert the burden of proof by telling the story. On the other
hand, the improper example was isolated and presumably given to counter defense counsel’s own
examples of “major decisions” that jurors would not make unless based on facts they believed
beyond a reasonable doubt.
If the evidence against Henry were less strong than it was in this case, a serious question
would be presented as to whether the argument rose to the level of reversible prosecutorial
misconduct. The record before us, however, demonstrates that the evidence establishing Henry’s
guilt was quite substantial. The government presented seven fact witnesses with personal
knowledge of the conspiracy, law enforcement agents who worked on the case testified, and tapes
of incriminating phone calls between Henry and a coconspirator were played. Moreover, the district
court properly described the reasonable-doubt standard at length in the jury instructions, making
clear that the presumption of innocence stayed with Henry “unless and until the government presents
evidence here in court that overcomes the presumption and convinces you beyond a reasonable
doubt that he is guilty.” In addition, the court noted that the “defendant has no obligation to present
any evidence at all or to prove to you in any way that he is innocent,” and that the government must
“prove every element of the crime charged beyond a reasonable doubt.” The court also instructed
the jury that they could rely only on the evidence and testimony of witnesses and not upon the
statements or arguments of the lawyers.
In sum, the level of proof against Henry, the proper jury instructions, and the lack of any
contemporaneous objection by defense counsel militate against a finding of reversible prosecutorial
misconduct. Plain-error review is the applicable standard, and under that standard we conclude that
the erroneous argument did not seriously affect the fairness, integrity, or public reputation of the
trial. See United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006); Fed. R. Crim. P. 52(b).
6. Cumulative effect of alleged misconduct
Henry’s final challenge to the fairness of his trial is based on the “cumulative effect” of all
of the prosecutor’s alleged misconduct as detailed above. Even if individual errors in and of
themselves do not constitute reversible error, a defendant may “show that the combined effect of
individually harmless errors was so prejudicial as to render his trial fundamentally unfair.” United
States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004). As discussed in the preceding sections,
Nos. 05-2084/2282 United States v. Henry Page 12
however, we conclude that only two of the challenged statements were improper: (1) the vouching
statement made by the prosecutor regarding Christine Kah’s credibility, and (2) the prosecutor’s
suggestion that the jury convict Henry if they would not encourage their own children to take a job
working for him. The remaining challenged statements were not inappropriate.
We further conclude that the isolated improper vouching statement and the improper example
of reasonable doubt do not cumulate to create uncertainty about the fundamental fairness of Henry’s
trial. The trial “may not have been perfect,” United States v. Hernandez, 227 F.3d 686, 697 (6th Cir.
2000), but due process does not require absolute perfection. Delaware v. Van Arsdall, 475 U.S. 673,
681 (1986). In addition, the two errors cumulatively did not “seriously affect[] the fairness,
integrity, or public reputation of the judicial proceedings,” and therefore do not rise to level of plain
error. See Gardiner, 463 F.3d at 459.
B. Reasonableness of Henry’s sentence
We now turn to the government’s cross-appeal. In its cross-appeal, the government
challenges the reasonableness of Henry’s 180-month sentence.
1. Standard of review
A district court’s sentencing determination is reviewed “under a deferential
abuse-of-discretion standard” for reasonableness. The inquiry contains both procedural and
substantive components. Gall v. United States, 128 S. Ct. 586, 597 (2007). We must first ensure
that the district court committed no procedural error. Id. at 597; United States v. Duane, 533 F.3d
441, 450 (6th Cir. 2008). A district court necessarily abuses its sentencing discretion if it
commit[s] [a] significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence—including an explanation for
any deviation from the Guidelines range.
Gall, 128 S. Ct. at 597.
If, and only if, the district court’s sentencing decision is procedurally sound, this court will
“then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard[,]. . . tak[ing] into account the totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id. A sentence within the applicable Guidelines range is
accorded a presumption of reasonableness in this circuit. United States v. Williams, 436 F.3d 706,
708 (6th Cir. 2006); see also Rita v. United States, 127 S. Ct. 2456, 2462 (2007). But we do not
apply “a presumption of unreasonableness” to sentences, such as Henry’s, that fall outside of the
Guidelines range. Gall, 128 S. Ct. at 597.
A sentencing court has an “obligation to explain to the parties and the reviewing court its
reasons for imposing a particular sentence.” United States v. Richardson, 437 F.3d 550, 554 (6th Cir.
2006). It must clearly “articulate its reasoning” in order to allow for a meaningful appellate review.
United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005). “[T]he reviewing court can intelligently
determine whether the specific sentence is indeed reasonable” only where the sentencing court
“communicate[s] clearly its rationale for imposing the specific sentence.” Richardson, 437 F.3d at
554.
This obligation is especially important where the district court has significantly departed
from the Guidelines range. United States v. Poynter. 495 F.3d 349, 357-58 (6th Cir. 2007)
(discussing the importance of ensuring that district courts provide adequate reasoning for the
Nos. 05-2084/2282 United States v. Henry Page 13
sentence imposed, especially when the sentence constitutes a significant departure from the
Guidelines). The Supreme Court in Gall declared “uncontroversial [the proposition] that a major
departure should be supported by a more significant justification than a minor one,” and made clear
that appellate courts may “take the degree of variance into account and consider the extent of a
deviation from the Guidelines.” Id. at 594-95, 597. Gall rejects the notion, however, that
extraordinary circumstances are required “to justify a sentence outside the Guidelines range,” and
prohibits “the use of a rigid mathematical formula that uses the percentage of a departure as the
standard for determining the strength of the justifications required for a specific sentence.” Id. at
595.
Post-Gall, this court has held that a district court’s deviation from the Guidelines “require[s]
some correlation between the extent of a variance and the justification for it.” United States v.
Grossman, 513 F.3d 592, 596 (6th Cir. 2008). If a sentencing court “decides that an
outside-Guidelines sentence is warranted,” the court must “consider the extent of the deviation and
ensure that the justification is sufficiently compelling to support the degree of the variance.” Id.
(quoting Gall, 128 S. Ct. at 597). But the appellate courts must still “give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”
Grossman, 513 F.3d at 596 (quoting Gall, 128 S. Ct. at 597).
2. Henry’s sentencing hearing
After hearing arguments from both parties, the district court determined that the appropriate
Guidelines sentencing range was between 324 and 405 months of imprisonment. The court then
heard testimony from four witnesses who appeared on Henry’s behalf—his wife, his father, a sister,
and a nephew. Henry asked for the statutory minimum sentence of 10 years based upon (1) the
concept of lingering doubt about whether he had been justly convicted, (2) his “exemplary life,”
(3) the impact on his family, (4) the assertion that a 10-year sentence was more than sufficient to
deter him from ever committing any future crime, and (5) the disparity in Henry’s sentencing
exposure as compared with his coconspirators. The government, on the other hand, requested a
sentence within the Guidelines range of between 324 and 405 months’ imprisonment on the basis
of the testimony indicating that Henry was a leader in the conspiracy to distribute upwards of 800
kilograms of cocaine. It also pointed out that Henry had taken steps to insulate himself from
prosecution and that his sentence should not be compared with others who cooperated with law
enforcement during the investigation.
At sentencing, the district court acknowledged not only the discretionary nature of the
Guidelines, but the court’s duty to impose a sentence “sufficient but not greater than necessary” to
comply with the factors set forth in 28 U.S.C. § 3553(a). It then enumerated each of the § 3553(a)
factors and discussed their general meaning and import. Ultimately, the district court sentenced
Henry to 180 months in prison and five years of supervised release. Henry’s sentence was thus set
at 144 months—or 12 years—below the bottom of the applicable Guidelines range.
But the district court failed to explain how the § 3553(a) factors specifically applied to
Henry’s non-Guidelines sentence or articulate why the sentence constituted an adequate punishment
in Henry’s case. In fact, immediately after acknowledging its authority to fashion an appropriate
sentence, the court noted that Henry was “somebody who was running the show,” and discussed the
fact that the Guidelines and the high sentences imposed for drug crimes reflect a determination by
lawmakers that there should be harsh penalties for drug dealers in order to deter people “from
engaging in the kind of devastation that happens in our communities because of drugs.” Such
statements call into question the court’s determination to impose a sentence substantially below the
applicable Guidelines range.
Nos. 05-2084/2282 United States v. Henry Page 14
Moreover, the district court never mentioned the huge quantity of cocaine at issue in Henry’s
case. And despite the court’s acknowledgment that it was required to consider the issue of disparity,
it failed to provide any discussion of the disparity between Henry and either his coconspirators or
similarly situated drug dealers. The only information specific to Henry in the court’s entire
discussion at sentencing was Henry’s leadership role in the conspiracy, his decision not to plead
guilty, and his strong family and community support.
Although the imposition of an appropriate sentence is the province of the district court,
appellate courts must have sufficient information about the justifications offered for the sentence
imposed in order to conduct a meaningful review. Kirby, 418 F.3d at 626. This court recently noted
when discussing post-Booker appellate review of outside-the-Guidelines sentences that, “[a]s a
practical matter, the most meaningful way for appellate courts to ‘iron out sentencing differences,’
and to ‘avoid excessive sentencing disparities while maintaining flexibility to individualize
sentences where necessary,’ is to permit them to account for the strength of the sentencing court’s
explanation in relation to the size of its deviation from the guidelines.” United States v. Poynter,
495 F.3d 349, 358 (6th Cir. 2007) (quoting Booker, 543 U.S. at 263, 264-65).
As Poynter explained, there is no “better way . . . to ensure that a sentence is ‘sufficient’ (in
the context of a proposed substantial downward variance) . . . than to insist that the district courts
explain such variances from the Sentencing Commission’s recommendations—the only empirical
guide to whether sentences are ‘sufficient . . . .’” Id. at 358-59. In sum, there is no means for
“judges [to] avoid such disparities in the first instance, or correct them on review, without
demanding that substantial variances be supported by substantial reasons.” Id. at 357.
3. Substantive reasonableness of Henry’s sentence
The sentence in the present case may or may not be reasonable. We cannot tell because the
district court failed to adequately explain its reasoning or to meaningfully articulate why Henry was
entitled to the greatly reduced sentence that he received. We therefore vacate the sentence imposed
below and remand the case for resentencing.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM Henry’s conviction, but VACATE his
sentence and REMAND the case to the district court for resentencing consistent with this opinion.