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United States of America v. TROY HENLEY, a/k/a Chubbs, a/k/a Bill Bill
Case Number: 08-5161
Judge: Barbara Milano Keenan
Court: UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Plaintiff's Attorney: Joseph Leotta, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, Michael C.
Hanlon, Assistant United States Attorney, OFFICE OF THE UNITED
Richmond, Virginia - Criminal defense lawyer represented defendant with a charge.
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,
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
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
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,
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
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.
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
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
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
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
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.
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.
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
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.
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
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
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
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
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
consciousness of guilt. See Young, 248 F.3d at 272; Van Metre,
150 F.3d at 352.
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
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
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.
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
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
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
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.
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.
Outcome: Based on our holdings stated above, we affirm the district