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w . vi l l a no va . e du/thir dc ir c uit_2004/687NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

_______________ No. 03-1367

________________ UNITED S TATES OF AMERI CA

v. EDWARD J OHN HENRI ES, ak a EDDI E MOO

Edward John Henries , Appell ant

____________________________________ On A ppeal Fro m the U nited States D istrict Court

For the Dist

rict of New Jersey (D.C. No. 00-cr -00788-1) Distri ct Judge: Honorable John C. Li fland

_____________________________________

Argued May 4, 2004 Be for e: S LO VI TE R, F UE NT ES and BE CK ER , Circuit Judges (Fil ed: May 24, 2004) CH RIST OP HE R J. CH RIST IE United States Attor

ney GEORGE S . L EONE Chief, Appeals Divisi on Office of United St ates Att orney 970 Broad Street Newark, New Jersey07102-2535 GLEN N J. MOR AM ARC O (Argued) Assist ant Unite d States Attorney Camde n Federal Building & C ourthouse 401 Market Stree t, Four th Floor Camden, New Jersey 081012

Attorney s for Appellee BRY AN B LAN EY (Argued) Lowenste in San dler , PC 65 Livingst on Avenue Roseland, New Jersey 07068 Attorneyfor Appell

ant

______________ _______

OPI NION

_____________________ BE CK ER , Circuit

Judge. This is an appeal by

Edward Henries from an adver se judgment in a crimi nal case

. Henries was convi cted of cons piracy to posses s and posses sion of a cont roll ed substance for his involvement

in a heroin distribut ion conspi racy in Newark. After

he was arres ted, Henries agr eed to engage in a proffer s ession at which he re vealed t he operat ion of the

cons piracy; the te rms o f his p roffe r agree men t grante d him use im mu nity for this informat ion. At t

rial , however, the pros ecutor e licited the content s of thes e selfincrim inating statem ents, an d, con com itantly, failed to disclos e them in adv ance to Henries as requir ed by Fed. R. Crim. P. 16(a)( 1)(A). On appeal , Henries advances as

revers ible e rrors (1) the violation of t he proffer a greement; (2) the violation of Rul e 16; (3) the Distr ict Court ’s ref usal t o give a “mis sing witness” i nstruc tion wit h regard t o a government i nformant who had helped t he government i nfilt

rate Henri es’s dr

ug operati on; and (4) the Dist rict Court’s a dmissi on of evidence of dr ug acti vity

recovere d from a location that

was not the principa l si te of the charged cons piracy . The pri ncipal1 We have explained t hat a miss ing witnes s inst ructi on is not

appropri ate when a wit nes s is eq ually a vaila ble ( or e qua lly una vaila ble) to b oth par ties. See, e. g. , United States v . Vasto la , 899 F.2 d 21 1, 23 5 (3 d C ir.), vacated on ot her grounds , 497 U.S. 1001 (1990). The logic i s that the negat ive inf

erence as sumed by suc h an inst ructi on applie s equall y t o both parties, if both c ould have cal led the witness. The Distri ct Court made precis ely the fi nding of fact

that pl aced thi s case wit hin Vas tola : The government (thr ough both the prosecutor and the t esti fyi ng FBI agents) clai med that i t did not know wh ere N aim

— the “ mis sing wit nes s”— wa s, an d th e D istrict Co urt c red ited t his. He nries’s c oun sel rep resen ted tha t he ha d ask ed aro und the (rele vant) S om erset loc ale about Naim’s wherea

bouts, and the re plies suggeste d that Nai m was in the are a, though he was never act

ually locat ed. The Dist

rict Court concluded that

this essent ially meant that H enries had e qual (o r better) a ccess to N aim a s did th e gov ernm ent. A lthoug h N aim had been paid cons iderabl e sums as a confi dentia l government informant , and the gov ernm ent ind icated that it w ould not ev en co oper ate in se rving Na im if it co uld, this does not make the Distr ict Court ’s fact ual fi ndings cl early

erroneous , and we conclude that t hey w ere n ot. Moreov er, even if Henries should have received the requested missing witness instruc tion, the Distric t Cou rt’s failure to give it was harm less fo r two reaso ns. First, Henries stillwas allowed to s uggest t he adverse inference t o the jur y, which he in fact did . Sec ond , it is ran k sp ecu latio n th at N aim wo uld hav e offere d bo mb she ll testim ony. Most likely, he would have done no more than close t he loop on how Detecti ve Jackson was intr oduced to Henri es’s organizat ion. Thus we rej ect the missi ng witness instruc tion cl ai m. Henries’ s argument t hat the evidence r ecovered fr om the Manor Drive location should n ot have b een adm itted rests on his assertions that (1) the m aterials recovered w ere relat ed to cocaine traf

ficki ng, and the conspir acy t hat he was char ged with was a heroinonly distribut ion conspi racy ; while ( 2) ther e were severalother occ upants of t he building, and the drugs and parapher nalia were never shown to bel ong to Henries (e.g. , by fingerprints). Legally , Henries argues t hat the evidence s hould have been exc luded under Rule 403 as substantia lly more prejudi cialthan probative, and under Rule 401 as not re lev an t ev id en ce be ca us e it w as no t co nn ec ted to th e c ha rg ed co ns pi ra cy. Th e R ul e 4 03 ar gu m en t is m er itle ss , si nc e H en rie s c an no t id en tif y an y unfa ir prejud ice fro m the adm ission o f the M anor Driv e evid ence . Rath er, He nries is re ally asking us to hold that

the Dist rict Court abused i ts di scret ion under Rule 401 in finding that a reasonabl e jury

could have found t

hat the Manor Drive evidence was somehow connected t o the conspiracy . This i s an almost impossi ble hurdl e to overc ome; simpl y t he facts ( 1) that

Henries l ived at

the Manor Drive l ocati on, and (2) that t he evidence was seized t here during the li fe of the Somers et heroin conspir acy are enough to s upport t he 3 issues on appeal ar e the fi rst t wo, and we dispose of t he others in the mar gin. 1 For theDistri ct Court’ s admissi on of the t esti mony. Henri es focuses on the things that the government di d not show , but that misses the p oint; the govern ment sho wed Hen ries’s presence at Manor Drive and a t emporal coi ncidence, which is enough. Thus we reject this evid entiary arg um ent as w ell.

2 The government cont ends that Henries fai led to preserve hi s objection on the proffer agr eem ent is sue and that o ur re view ther efo re is o nly fo r pla in er ror. W e dis agr ee. Henries’ s objections were t imely enough to put t

he Distr ict Court

on notice of the object ionable evidence. Since the breach of t

he proffer a greement i s essentially a ques tion of c ontract inter pre tatio n, ou r rev iew is ple nar y. See United States v. Liranzo , 944 F.2d 73, 77 (2d Cir. 1991) (“Pre- tri al agre ements, such as cooper ation a greements and proffer agreements , are interpr eted according to principl es of contr act l aw. . . . Because t he interpretation of a co ntract is generally a question o f law, ou r review o f the district court’s determination that t

he governmen t did not breach the Proffer Agreement is de novo .” (citations omitted)). With respec t to t

he questi on whether the government met i ts obl igati on under Fed. R. C rim. P. 1 6 to d isclose oral state men ts by He nries in its poss ession that it inten ded to use at trial, because this is essentially a discovery matter, w e review the District Cou rt’s rulin g an d re spo nse und er an abu se-o f-d iscre tion stan dar d. See U nited S tates v. S cott , 223 F .3d 208, 21 1 (3d C ir. 2000). The applic able h armle ss erro r stand ard is th at an e rror is ha rmles s only if “‘it is highly probable t

hat the error

did not cont

ribut e to the judgment. ’” Un ited Sta tes v. D avis , 183 F.3d 231, 255 ( 3d Cir. 1999) (quoti ng Murray v. United of Omaha Life Ins. Co. , 145 F.3d 14 3, 156 (3d Cir. 1998 )). 4 reasons t hat fol low, we will affirm t he judgment of t

he Distr ict Court . Because t he parti es are ful ly

famili ar with t

he background fact s and procedur al his tory we need not set them fo rth, and limit our discus sion to our ratio d ecide ndi. The first two issues are best

taken up t ogether. We set out t he rele vant st andards of revie w in the margi n. 2 W e w ill ass um e, arguendo , that both t he proffer a greement and Rule 16 were viol ated and t hat the intr oduction during the gove rnment’s direct3 The governm ent does not deny that t he proffer agreement was violated. It argues, however, that the Dis tri ct Court’ s decis ion to s tri ke the offending test imony cured the error because: (1) there is no “overwhelming pr obability ” that the jur y coul d not foll ow the instruction to strike; and (2 ) Henries’s ad missions fro m the pro ffer session w ere adm issib le un der the th eor y of “ cur ative adm issib ility” an d th e pr incip le of com plete nes s. For the r easons not ed in the text, we need not rel y exclusively on t he firs t argument , nor even reach t

he second. We note, however, in s trong t erms, our displ easure wit

h the fail ure of the government t o live up to its proffer agreement. The Court expects t

he gov ern me nt to be s cru pul ous in fu lfillin g its u nde rtak ing s. 5 exam ination of ev idence that ha d been obtained f rom the p roffer session was im proper. 3 However, we find any

such err or harmles s. This is becaus e: (1) the proffe r-der ived evidence aga inst

Henries was i n part cumul ative of other properly admitt ed evidence; and (2) the (other) evidenc e against Henries was over

whelming. Under the te rms of the pr offer agre ement, Agent Thompson shoul d not have test ifie d that Henri es (1) “ reveal [ed] the inner worki ngs of his narcoti cs dist ribut ion organization, ” (2) i dentif ied Paulino as Henries ’s heroin suppli er, and ( 3) descr ibed the methods Henries used to pur chase (and t he quanti ties purchased) from Paulino. But Henries had di rectly confes sed to as pects of hi s heroi n-dealing acti vity to law enforcement off

icers following t

he raid on t

he Manor Drive resi dence, and s o the chall enged evidence d was in part cumulati ve. Turning to t

he str ength of the government’ s other evidence, it may

be summarized as foll ows. Firs t, asearch of t he Manor Drive stas h house that Henries use d for his drug dea ling activ ity, duri ng w hich He nrie s w as p rese nt, re vea led c oca ine a nd m ariju ana . Du ring the ques tioning that fo llow ed, H enries told an Esse x C oun ty detective not o nly6

that s ome of the narcotics se ized i n the apartment di d not belong to him, but also t hat he had d rug su ppliers in N ew ark an d N ew Yo rk C ity from w hom he co uld o btain forty to fif ty b ric ks of

he ro in at a tim e, a s w ell as ki lo gr am qu an titi es of co ca in e. A dd itio na lly, Henries admit

ted to f requenting the 81 Somerset Street locat ion in Newark, whic h was the cent er of the heroin di stribution ac tivi ty , where numerous “buy s” were made. Second, whil e Henries di d not speci fical ly identi fy Danny

Paulino ( the New Yorkbased drug di stributor who was Henries’ s main suppl ier and who was the animati ng figure be hind the proffer offer) in hi s admissi ons to the Essex County invest igator , othe r evide nce in the ca se w ould sugg est that P aulino wa s the su pplier. A t the time of this admissi on, Henries had in his possessi on a card bearing both t he name “Danny” and Pau lino’s tele pho ne nu mb er. W hen P aulino wa s arreste d, he h ad a a ddre ss bo ok in his possessi on which lis ted “Eddie” (Henries ) and his phone numbers. Moreover, Paulino testif ied th at he wa s H enr ies’s sup plier , and he p led g uilty to c ons pirin g w ith H enr ies. And there were at

least seventy tele phone call s between Henrie s and Pauli no during t he

co ur se of th e c ha rg ed co ns pi ra cy. Third, the government

present ed video and audi o tapes of Henri es’s par ticipation in a Ju ne 27 , 2000 drug deal, alo ng w ith und ercov er age nt Jack son’s testimo ny abou t this event. Her test imony was t o the effect that on J une 27, 2000, when she came to 81 Somerset Street to purchase eight bri cks of heroin, Sean Crawfo rd (an aide of Henries) repli ed that

he did not have a suffic ient quantit y. Only aft er Henries ’s vehi cle (f ollowed7

by t he FBI) left

Somerset St

reet, proceeded t o a stas h house, and r eturned to 81 Somerset Street was Agent Jackson able to purchase the drugs. Fourth, the government had a simil ar set

of evidence about

a drug dealon Sep temb er 14 , 2000 . On that oc casion , Ag ent Jac kson aske d C raw ford if she c ould purchase t

wenty bricks of heroin, and Crawford said on t ape that he needed a coupl e of minutes b ecause h e only had fou rteen bricks. Th e videotap e then sho ws C rawfo rd walking over to Henries and s peaking with him. Law enforcement of ficer s then fol lowed Henr ie s a s he dr ove to a s ta sh h ous e an d r eturnedto 81 So mer se t S tr eet , at wh ic h t ime Agent Jackson w as able to purchase the full amount of drugs. Fifth, evidence was adduced a bout the s earch of Henri es’s Manor Drive a partment that oc curred i n March of 2000 (which was in bet ween Jackson’s first and second drug purchases at 81 Somerset Street), during which law enforcement offi cers found Bolivian rock ince nse, a cof

fer gri nder, a s mall di gitalscale, 720 glass vi als use d for packagi ng cocaine, severalloose bundl es of cash, and a safe wit h over $25,000 in cash. Sixth, the jur

y al so heard t esti mony from (coope rator s) Crawford and Paul ino about the ir dr

ug-dealing relationships with Henri es. Crawford’ s testimony was corrobor ated by

the vide otapes and audiotape s play ed at trial , while Paulino’ s was

corro bora ted by the audio tapes o f his co nver sations with He nries d uring the pe riod in wh ich H enries wa s coo peratin g w ith the g over nm ent. Fin ally, the Co urt in struc ted th e jur y to dis reg ard the p roffer- bas ed e vid enc e.8

Und er our jurisprude nce, a jury is presume d to follow the court’s instruction to d isregard inadmiss ible e vidence “unl ess the re is an overwhelming poss ibil ity that t he jury will be unable t o follow the court’ s inst ructi ons . . . and a st

rong li kelihood t

hat the effect of t

he evidence would be de vastating to t he defendant. ” United Stat es v. Thomas , 315 F.3d 190, 203 (3d Cir. 2002) (quot ing Greer v. Mill er , 483 U .S. 756 , 766 n .8) (altera tion in origina l); see also United States v. McGlory , 968 F.2d 309, 344 (3d Cir. 1992) (“Prej udicia l tes timony

will not mandate a mist

rialwhen there i s other

signi ficant evidence of gui lt which reduces the likel ihood that the othe rwise i mproper tes timony had a substantialimpact upon t he verdic t of the jury .” (quoting United States v. RodriguezArev alo , 734 F.2d 612, 615 (11th Cir . 1984)) ). I n light of this principle, even if t he Distri ct Court’ s curat ive ins truction alone did not cure the er ror i n admitt ing Agent Thompson’s testimony about Henries’ s proffer , it

did markedl y di minish t he harm worked by t he improper e vidence. In sum, t he audiot apes and vide otapes, combined with per fectl y dovet ailing narrations by

Jackson and Crawford, impli cate Henri es in t he conspir acy, even if t hey never dir ectl y capt

ure him doing s omething i llega l. Henri es’s r ecorded conver sati ons with Paulino (duri ng Henries’ s cooperation with t he government) make it cl ear that the two had a preexi sti ng course of bus iness—and indeed, as we note above, each had the other’ s phone number in hi s phone dir ectory . Circ umstanti ally , it seems clear that Hen ries is the head of

the consp iracy. At all events, Paulino’s, Cra wfo rd’s, and Jack son’s4 We do, however, commend Court-appointed counsel , Mr. Blaney , upon his zealous

ad vo ca cy. 9 testimony was so thorough ly consistent that we can not possibly conclu de that H enries’s confession mad e the c ritical differenc e in the jury’s verd ict. The judgment of the Distr ict Court will be a ffirmed. 4