                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-14-2008

USA v. Henderson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2671




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                                                 NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                 __________

                     No. 07-2671
                     __________

          UNITED STATES OF AMERICA

                           v.

             VALENTINO HENDERSON
              a/k/a VAN HENDERSON

                   Valentino Henderson,

                                     Appellant
                     __________

    On Appeal from the United States District Court
         for the Middle District of Pennsylvania
               (Criminal No. 06-cr-00234)
    District Judge: Honorable Christopher C. Conner
                      __________

      Submitted Under Third Circuit LAR 34.1(a)
                  on June 30, 2008

Before: RENDELL, SMITH, and FISHER, Circuit Judges.

                Filed: August 14, 2008


                     __________

             OPINION OF THE COURT
                   __________
RENDELL, Circuit Judge.

          Valentino Henderson appeals from his conviction for conspiracy to distribute and

possess with intent to distribute 2 kilograms or more of cocaine hydrochloride in violation

of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1). For the reasons that follow, we will

affirm.

          Henderson was indicted after a package sent to him from California was

intercepted and found to contain a purple stuffed dinosaur with two 1-kilogram bricks of

cocaine sewn into it. According to police testimony, after being arrested and advised of

his rights, Henderson admitted that an associate of a man named Larry Wright had sent

him the package. He told the police that he was to keep one-half kilogram of the cocaine,

while Wright was to have the remainder. He also stated that the package was scheduled

to have been delivered the previous day and he had tried to track the package several

times. He admitted that he had previously received a stuffed bear containing 9 ounces of

cocaine and that cellular telephones seized by the police belonged to him.

          At trial, Henderson denied that he had made these statements to the police and

claimed that the cell phone, which reflected numerous calls to Larry Wright, belonged to

Henderson’s cousin. As the trial progressed, Henderson’s counsel argued that Henderson

had been “set up” by a confidential informant who had prompted the investigation by




                                               2
giving the police information regarding Henderson.1 The informant apparently told police

of repeated deliveries of packages containing cocaine to both Henderson and his brother.

The jury convicted Henderson.

       On appeal, Henderson raises two principal arguments: first, that portions of the

testimony of two witnesses at trial should not have been admitted; and second, that his

counsel’s performance was constitutionally deficient and that this denied him his right to

the effective assistance of counsel.

       We have little difficulty disposing of the second argument. We do not generally

entertain ineffective assistance of counsel claims on direct appeal, because the record is

not sufficiently developed to allow the court to determine ineffectiveness in the absence

of an evidentiary hearing. United States v. McLaughlin, 386 F.3d 547, 555-56 (3d Cir.

2004).2 This is especially true where the challenged action might be considered sound

trial strategy. Strickland v. Washington, 466 U.S. 668, 689 (1989). As we note in our

discussion below of the evidentiary issues that Henderson raises, this case appears to be

one in which the strategic considerations are indeed implicated. Accordingly, the proper



  1
    There was additional evidence of Henderson’s guilt in that upon searching his home,
the police found two digital scales with cocaine residue, UPS shipping envelopes, express
mail labels, and an empty bottle of the cocaine-cutting agent inositol.
  2
    In response to Henderson’s argument that counsel was ineffective, the government
attempts to introduce post-trial, extra-record discussions between government counsel and
defendant’s trial counsel, Korey Leslie. This represents a violation of Federal Rule of
Appellate Procedure 10(a); those portions of the government’s brief will, therefore, be
stricken.

                                             3
procedure for consideration of this claim would be to file a habeas corpus petition

pursuant to 28 U.S.C. § 2255, rather than a direct appeal to this Court.

       With respect to Henderson’s other argument, namely, that the District Court erred

by admitting improper testimony, we note that Henderson made no objection at trial to the

testimony of these witnesses; thus, he must convince us that permitting the witnesses to

testify amounted to plain error. United States v. Rivas, 493 F.3d 131, 136 (3d Cir. 2007).

This he cannot do.

       The first testimony that Henderson finds objectionable was that of the

government’s expert, who testified, Henderson contends, regarding his “intent.” He

argues that this testimony violated Rule 704(b) of the Federal Rules of Evidence.3 The

difficulty with Henderson’s objection is that the expert was not testifying as to

Henderson’s “intent.” Rather, he was responding to the prosecutor’s question as to

whether a particular user would purchase 2 kilograms of cocaine for personal

consumption, rather than for distribution.

       As we have noted, this type of testimony in which the expert witness calls upon his

or her experience as it relates to the modus operandi of individuals involved in drug

trafficking does not violate the Federal Rules of Evidence and, specifically, Rule 704(b).


  3
    Rule 704(b) provides “[n]o expert witness testifying with respect to the mental state
or condition of a defendant in a criminal case may state an opinion or inference as to
whether the defendant did or did not have the mental state or condition constituting an
element of the crime charged or of a defense thereto. Such ultimate issues are matters for
the trier of fact alone.”

                                              4
United States v. Watson, 260 F.3d 301, 307-08 (3d Cir. 2001). We do not consider

admission of this evidence to be error, and it surely was not plain error for the District

Court to permit the jury to hear this testimony.

          Henderson also objects to the District Court’s having allowed Trooper Cotroneo to

testify regarding the substance of the confidential informant’s tip. Again, there was no

objection lodged by counsel. In fact, as noted above, the defense strategy appears to have

been that Henderson was set up by the confidential informant. On cross-examination of

Cotroneo, Henderson’s counsel actually elicited the information to which Henderson now

objects, namely, that the informant told Cotroneo that Henderson and his brother, Alonzo

Henderson, were receiving 1-2 kilos of cocaine in the mail every one to two weeks. The

thrust of the defense was that this was a lie because Henderson had been under

surveillance for nine months after the informant’s tip, but there had been no activity to

support what the confidential informant said until, suddenly, the package containing the

2 kilograms of cocaine arrived in May. This, Henderson alleged, was proof that he was

set up.

          Had the District Court stricken the trooper’s statement as hearsay – as Henderson

now urges – it would have gutted the defense’s theory of Henderson’s innocence, i.e., that

the confidential informant was lying and, to prove that he was not lying, had cocaine

delivered to Henderson nine months after his initial tip. Counsel not only failed to object,

but also elicited the hearsay from the trooper. Surely this was a tactical decision. This is



                                               5
not plain error and, in fact, could constitute a waiver of the claim altogether for purposes

of appellate review. See Gov’t of the Virgin Islands v. Rosa, 399 F.3d 283, 290-91

(3d Cir. 2005).

       Accordingly, we will not disturb Henderson’s conviction, and we will AFFIRM

the Judgment and Commitment Order of District Court.




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