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United States v. Henderson

July 30, 2010

UNITED STATES OF AMERICA, APPELLEE,
v.
STEPHEN HENDERSON, APPELLANT.



Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Benton, Circuit Judge.

Submitted: June 16, 2010

Before MURPHY, BEAM, and BENTON, Circuit Judges.

A jury convicted Stephen Anthony Henderson of conspiring to distribute, and possessing with the intent to distribute, in excess of five kilograms of cocaine, and distributing over five kilograms of cocaine, in violation of U.S.C. §§ 841(a)(1), 846, and 851(a). The district court*fn1 sentenced him to life imprisonment. He appeals, arguing that the district court erred in (1) denying his motion to suppress evidence and statements, (2) admitting evidence of prior convictions and bad acts, (3) limiting defense questioning at trial, (4) sentencing under 21 U.S.C. § 841 without properly following 21 U.S.C. § 851, and (5) refusing to allow his previous counsel to testify. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms.

I.

On March 5, 2008, Henderson delivered 10 kilograms of cocaine to a confidential informant. Drug Enforcement Agency (DEA) agents witnessed Henderson retrieve a black bag containing cocaine from a house on Bon Jour Court. He and the informant then drove to another residence. Violating the agents' instructions, the informant took the bag inside the house as Henderson left. The informant then met the investigators and gave them the bag, containing five kilograms of cocaine. The next day, the informant admitted he placed in the house an additional five kilograms, which the agents retrieved.

On March 10, 2008, based on this drug sale and other recorded conversations, agents arrested Henderson at an apartment on Seiloff Drive, without a warrant. He consented to a search of the apartment, directing agents to a closet with a duffel bag containing $256,575. They also conducted a warranted search of the Bon Jour house, finding a drug ledger and $948,080.

Later that day, at the DEA office, he told the agents, "This is much bigger than you guys think." He named six drug customers who owed him money. Henderson cooperated in the investigation by wearing a recorder while retrieving a money counter from his supplier, "the biggest dope dealer in St. Louis."

The next day, he and two agents met with his then-attorney, who claimed that one agent asked if he "could live with" a sentence of "a year or so." The agent denied making this statement. Pre-trial, the district court excluded the attorney's testimony. The court also denied Henderson's motion to suppress evidence and statements obtained after his arrest.

The government filed an information listing his two prior convictions, requiring a life sentence. At trial, the informant and another witness testified that the drug conspiracy began in 2007. The Government sought to introduce evidence of a 1993 felony conviction. The district court instructed the jury on the 1993 conviction for selling cocaine and (initially) on a 1989 felony conviction for possessing cocaine. The court immediately corrected the instruction, stating, "Oops. Let me say this, it was only one conviction, and that conviction was for the sale of cocaine, not the other [one for possession]. So I'll start again, and so keep that in mind." The court also restricted the Government's questioning about Henderson's failure to file income taxes but did not instruct the jury to disregard the testimony.

At sentencing, Henderson received the statutory minimum of life imprisonment based on two prior felony convictions.

II.

A.

Henderson first argues that the district court erred in denying his motion to suppress evidence and his statements because the DEA agents lacked probable cause to arrest him. Usually, "the denial of a pretrial motion to suppress evidence preserves the objection for appeal." United States v. Johnson, 906 F.2d 1285, 1290 (8th Cir. 1990). But "this court has found pretrial objections waived when an appellant's counsel affirmatively stated 'no objection' at trial to the ...


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