PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 10-5201

KIMBERLEY HENRY,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 10-5219

EDGAR HENRY,

Defendant-Appellant. 

Appeals from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, District Judge.

(1:08-cr-00083-IMK-JSK-2; 1:08-cr-00083-IMK-JSK-1)

Argued: December 6, 2011

Decided: March 8, 2012

Before WILKINSON, KEENAN, and WYNN,

Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Wilkinson and Judge Wynn joined.
COUNSEL

ARGUED: Brian Joseph Kornbrath, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for

Appellants. Shawn Angus Morgan, OFFICE OF THE

UNITED STATES ATTORNEY, Clarksburg, West Virginia,

for Appellee. ON BRIEF: Charles T. Berry, Fairmont, West

Virginia, for Appellant Edgar Henry. William J. Ihlenfeld, II,

United States Attorney, Clarksburg, West Virginia, for Appellee.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

Kimberley Henry and her husband Edgar Henry (collectively, the Henrys) were convicted in a jury trial of two

offenses related to their conduct of growing marijuana at their

home in a rural area of West Virginia. The Henrys raise three

issues in this appeal: 1) whether a thermal-imaging search

warrant that led to the seizure of marijuana on their property

was valid; 2) whether the district court erred in excluding testimony that Edgar Henry used marijuana for medical purposes; and 3) whether the district court erred in determining

that the Henrys were ineligible to receive "safety valve" sentencing consideration under 18 U.S.C. § 3553(f). Upon our

review of these issues, we affirm the Henrys’ convictions and

sentences. 

I.

In September 2003, Sergeant Steve Jones of the West Virginia State Police received information that the Henrys were

growing large amounts of marijuana at their residence in

Rosedale, West Virginia. Jones relayed this information to

Sergeant James M. Manning, a West Virginia State Police

2 UNITED STATES v. HENRY
officer who also was serving as a deputy task force agent with

the United States Drug Enforcement Administration. After

receiving this information, Manning began investigating the

Henrys. 

On July 13, 2004, Manning filed an application for a search

warrant to conduct a thermal-imaging scan of the Henrys’

property. In his affidavit filed with the warrant application,

Manning stated that he received information from a deputy

sheriff that a confidential informant had revealed that the

Henrys had been growing and distributing marijuana in the

Rosedale area for the past four years. 

The affidavit also contained the information that Manning

received from Sergeant Jones, including an account from an

anonymous source who stated in 2003 that the Henrys maintained a large indoor marijuana "grow operation" at their residence near Rosedale. This source also stated that the Henrys

once had lived in New Jersey. Manning confirmed with the

West Virginia Department of Motor Vehicles that the Henrys’

physical address was in Rosedale, West Virginia, which is

located in Gilmer County. Manning additionally confirmed

that Kimberley Henry’s social security number was issued in

New Jersey. 

Also in the affidavit, Manning stated that in November

2002, two West Virginia State Police officers interviewed an

inmate named Phillip Lee Sandy in a jail in Braxton County,

West Virginia, regarding his knowledge of drug-related activity. Sandy told the officers that he had purchased small quantities of high-quality marijuana from Kimberley Henry on

four or five occasions. Sandy also stated that the Henrys had

constructed a building behind their residence to grow marijuana hydroponically, and Sandy provided the officers with a

hand-drawn map of the Henrys’ property. 

According to Sandy, the Henrys moved to West Virginia

from the Washington, D.C. area. Manning corroborated this

UNITED STATES v. HENRY 3
information when he conducted a criminal history review and

learned that Edgar Henry had an arrest record in certain areas

of Maryland located near Washington, D.C. Manning’s investigation further revealed that Edgar Henry’s first arrest in that

area, in 1972, was based on drug-related charges, and that his

second arrest in Maryland, in 1993, was for possession of

marijuana. 

Manning corroborated Sandy’s description of the Henrys’

property by conducting an aerial surveillance of the property

in February 2004. During that surveillance, Manning

observed a tan-colored residence with an attached, enclosed

walkway leading to a building behind the residence. 

As stated in the affidavit, several weeks after conducting

the aerial surveillance, Manning and two other officers

walked "along the roadway in the area of the [Henrys’] residence" to view the property. Manning observed in the rear

building two large hooded lights and two ceiling fans, and

heard the sound of a "large ventilation fan" emanating from

the roof of the building. 

The affidavit also stated that in May 2004, Manning

learned that Edgar Henry had been arrested and charged with

assault and disorderly conduct after threatening individuals at

a grocery store in Rosedale who were trying to organize a

"neighborhood watch program." Following Henry’s arrest,

police discovered marijuana on his person, and Henry later

was charged with possession of marijuana. 

Manning also included in the affidavit the fact that Kimberley Henry did not have an arrest record. However, Manning

further stated that Kimberley Henry appeared to have a particular interest in a 2002 federal prosecution of another individual from Rosedale who was charged with growing marijuana.

A West Virginia State police officer had informed Manning

that Kimberley Henry was present for every court appearance

made by that defendant. 

4 UNITED STATES v. HENRY
Finally, Manning stated in the affidavit that he received

power usage records for the Henrys’ residence, which

revealed an average bi-monthly electric usage of 10,870 kilowatt hours, with an average cost of about $728 for each bimonthly billing period. Additionally, Manning confirmed that

the Henry residence was not heated by electric power, but by

gas. 

After reviewing this affidavit along with Manning’s application, a magistrate judge concluded that there was probable

cause to support a thermal-imaging scan of the Henrys’ property, and issued the requested search warrant. Manning executed the thermal-imaging search warrant in July 2004. 

During the search, although the outside temperature in the

area was about 58 degrees Fahrenheit, an air conditioning unit

was operating in the rear building. However, the air conditioning unit in the residential portion of the property was not

operating. Using night-vision goggles and a thermal-imaging

unit, Manning and another officer determined that the rear

building emitted a high amount of heat, which was much

greater than the residential portion of the structure. 

Relying on the information obtained during this search,

along with the information provided in his initial affidavit,

Manning applied for a second search warrant to conduct a

physical search of the Henrys’ property. The magistrate judge

issued the requested warrant. 

During the physical search of the Henrys’ property, the

police seized numerous items, including a total of 85 marijuana plants in various stages of development. The police also

seized evidence of a recent harvest, including 31 marijuana

plant roots. 

Additionally, the police discovered various types of "growing equipment," processed marijuana, triple-beam scales,

gallon-sized plastic bags, drug usage paraphernalia, and a

UNITED STATES v. HENRY 5
binder containing handwritten notes, most of which were

entered by Kimberley Henry and involved the growing of

marijuana from 2000 through 2002. Finally, the police seized

$1,800 in cash, in the form of $100 bills. 

The Henrys were indicted in the United States District

Court for the Northern District of West Virginia on three

counts: 1) conspiracy to manufacture, distribute, and possess

with intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B); 2) aiding and

abetting in the manufacture of 100 or more marijuana plants,

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C.

§ 2; and 3) aiding and abetting in the possession with the

intent to distribute less than 50 kilograms of marijuana. 

The Henrys filed a motion to suppress the evidence

obtained from the searches of their property, arguing that the

warrant application for each search was insufficient, and that

the initial affidavit for the thermal-imaging search warrant

was so deficient that it constituted a "bare bones" affidavit.

The magistrate judge conducted hearings on the Henrys’

motion and issued an opinion recommending that the district

court deny the motion. The district court agreed with this recommendation and denied the Henrys’ motion to suppress.

Also before trial, the district court considered the government’s motion in limine. In that motion, the government

sought to preclude the Henrys from offering testimony that

Edgar Henry personally used the marijuana grown by the

Henrys to alleviate symptoms relating to his medical illnesses.

The purported purpose of this testimony was to show that the

Henrys lacked any intent to distribute the marijuana being

grown on their property. 

After conducting a hearing, the district court granted the

government’s motion in limine. The district court concluded

that the Supreme Court’s holding in United States v. Oakland

Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001) (Oak6 UNITED STATES v. HENRY
land Cannabis), prohibited the Henrys from presenting a

"medical necessity defense." However, the district court permitted the Henrys to offer evidence that they possessed and

manufactured the marijuana solely for their personal use. 

The case proceeded to a jury trial. The jury convicted the

Henrys of two charges, the charge of conspiracy to manufacture, distribute, and possess with intent to distribute 100 or

more marijuana plants, and the charge of aiding and abetting

in the manufacture of 100 or more marijuana plants.1 The jury

found the Henrys not guilty of the charge of aiding and abetting in the possession with the intent to distribute less than 50

kilograms of marijuana. 

The Henrys’ pre-sentence reports reflected that the Henrys

both were subject to a five-year mandatory minimum sentence

under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). The

Henrys objected to the pre-sentence reports and contended

that they should not be subject to the statutory minimum sentence because they qualified for a sentencing benefit under the

"safety valve" provision of 18 U.S.C. § 3553(f). In support of

their argument, the Henrys relied on a written "offer of proof"

submitted to the district court before sentencing, in which the

Henrys described the details of their marijuana operation.2

After conducting a sentencing hearing during which the

parties presented testimony and other evidence, the district

court determined that the Henrys were not credible, and that

they had not provided the government with all relevant information relating to the offenses. Thus, the district court concluded that the Henrys failed to establish that they qualified

for safety valve relief. The district court imposed on each

1The jury also affirmatively answered a special interrogatory, finding

that the Henrys’ real property should be forfeited. 

2The Henrys also informed the district court that Kimberley Henry had

met with two police officers before sentencing and had answered questions regarding her conduct. 

UNITED STATES v. HENRY 7
defendant the mandatory minimum sentence of 60 months’

imprisonment. The Henrys timely filed this appeal.

II.

A.

We first consider the Henrys’ contention that the district

court erred in denying their motion to suppress. The Henrys’

argument on this issue is limited to challenging the sufficiency of the affidavit submitted to obtain the thermalimaging search warrant. We review this issue of law de novo.

See United States v. Wellman, 663 F.3d 224, 228 (4th Cir.

2011). 

A judicial officer’s determination of probable cause generally is accorded "great deference" by reviewing courts. Illinois v. Gates, 426 U.S. 213, 236 (1983); Wellman, 663 F.3d

at 228. In deciding whether there was probable cause to support the issuance of a search warrant, we consider whether the

known facts and circumstances were sufficient such that a

reasonable person could conclude that the described evidence

would be found in a particular place. Wellman, 663 F.3d at

228. The probable cause standard "is not defined by bright

lines and rigid boundaries" but "allows a [judicial officer] to

review the facts and circumstances as a whole and make a

common sense determination" whether there is a fair probability that evidence of a crime will be found. Id. (quoting

United States v. Grossman, 400 F.3d 212, 217 (4th Cir.

2005)).

The Henrys assert that the affidavit at issue failed to meet

this probable cause standard. The Henrys focus their argument on the information provided by the two unidentified

sources and by Sandy, the cooperating inmate. According to

the Henrys, these sources failed to explain how they obtained

the information they relayed to the authorities, and failed to

provide sufficient details to demonstrate that they were credi8 UNITED STATES v. HENRY
ble and reliable sources. The Henrys further contend that

Sandy’s information was "stale," because he was interviewed

by the police more than twenty months before the thermalimaging search warrant was issued. Additionally, the Henrys

argue that although Manning submitted information to the

magistrate judge regarding power usage at the Henrys’ property, Manning failed to show that such usage was irregular. 

We disagree with the Henrys’ arguments, because they isolate certain aspects of the affidavit to the exclusion of other

supporting facts and circumstances. Initially, we observe that

the Henrys accurately identify certain weaknesses in the affidavit concerning the information obtained from Sandy and the

two unidentified sources. The individual statements from each

of these three sources were not based on recent information.

Rather, the sources only were able to state that the Henrys had

grown large amounts of marijuana at their residence in the

past, and that the sources had purchased marijuana from the

Henrys at some unidentified earlier time. 

Because these accounts were not based on recentlyacquired information, the accounts, if considered separately,

may well have been insufficient to establish probable cause.

However, when considered collectively, that information

demonstrated that three individuals with no connection to one

another provided consistent statements regarding the Henrys’

alleged illegal conduct involving the manufacture and distribution of marijuana. 

We also observe that many details provided by these three

sources were corroborated by Manning’s independent investigation. Manning confirmed that Kimberley Henry had lived in

New Jersey, that the Henrys likely moved to West Virginia

from the Washington D.C. area, and that the Henrys’ property, when viewed by Manning during an aerial surveillance,

appeared as described by Sandy. In addition, the magistrate

judge’s determination was supported by other details, including Edgar Henry’s threats to residents seeking to organize a

UNITED STATES v. HENRY 9
neighborhood watch program, and Kimberley Henry’s acute

interest in court proceedings involving a person accused of

manufacturing marijuana in the Rosedale area. 

Regarding the electric power usage information submitted

to the magistrate judge, the Henrys correctly observe that

Manning failed to provide information to assist the magistrate

judge in determining whether the Henrys’ power usage was

excessive for a property of that size. However, Manning did

determine that the residence was heated by gas, rather than by

electric power. Therefore, the magistrate judge was able to

consider the Henrys’ electric power usage information in that

relevant context. 

In view of the collective strength of this information, we

conclude that the affidavit provided a sufficient basis to establish probable cause for issuance of the thermal-imaging search

warrant. Therefore, we hold that the district court did not err

in denying the Henrys’ motion to suppress. 

B.

We next consider the Henrys’ argument that the district

court erred in granting the government’s pre-trial motion in

limine, thereby preventing the Henrys from presenting evidence that Edgar Henry used marijuana to improve symptoms

related to his medical illnesses.3 The Henrys contend that the

district court erroneously applied the Oakland Cannabis case

3The Henrys also assert that their due process rights were violated

because the district court’s ruling on the motion in limine resulted in their

inability to present a defense. The record, however, indicates that the Henrys were given ample opportunity to defend themselves and were permitted to present evidence that they personally used marijuana. As we

explained in United States v. Malloy, 568 F.3d 166, 176-77 (4th Cir.

2009), evidence regarding a particular aspect of a defense can be excluded

without infringing on the general right of a defendant to present a defense.

Therefore, we agree with the district court’s conclusion that the ruling on

the motion in limine did not impact the Henrys’ right to present a defense.

10 UNITED STATES v. HENRY
in granting the motion in limine. We disagree with the Henrys’ argument. 

We review a district court’s refusal to admit evidence under

an abuse of discretion standard. United States v. Malloy, 568

F.3d 166, 177 (4th Cir. 2009). A district court abuses its discretion when it acts in an arbitrary manner, when it fails to

consider judicially-recognized factors limiting its discretion,

or when it relies on erroneous factual or legal premises. Id.

(citing United States v. Uzenski, 434 F.3d 690, 709 (4th Cir.

2006)). 

We conclude that the district court did not abuse its discretion in limiting the scope of the Henrys’ defense based on the

decision in Oakland Cannabis. In that case, the government

filed an action seeking an injunction against a California

cooperative to enjoin the cooperative from manufacturing and

distributing marijuana to patients who qualified under California law to receive marijuana for medical purposes. 532 U.S.

at 486-87. After the district court granted the government’s

request for a preliminary injunction, the cooperative asked the

court to modify the injunction to permit distributions that

were "medically necessary." Id. at 488. The district court

denied the cooperative’s request and, on appeal, the Ninth

Circuit reversed the district court’s ruling. Id.

The Supreme Court disagreed with the Ninth Circuit’s decision. The Supreme Court held that the district court was not

permitted to consider the cooperative’s medical necessity

defense in fashioning injunctive relief, because medical

necessity is not a defense to the conduct prohibited by the

Controlled Substances Act (the Act), 21 U.S.C. § 801 et seq.

Id. at 494.

In reaching this conclusion, the Court observed that the Act

contained only one exception to the general prohibition of

manufacturing marijuana or possessing marijuana with the

intent to distribute, namely, the exception afforded to

UNITED STATES v. HENRY 11
government-approved research projects. Id. at 489-90 (citing

21 U.S.C. §§ 823(f), 841(a)(1)). The Court further explained

that for a drug to qualify as a Schedule I controlled substance

under the Act, that drug cannot have any "currently accepted

medical use" in treatment in the United States. Id. at 491 (citing 21 U.S.C. § 811). Thus, the Court reasoned that Congress,

by including marijuana as a Schedule I controlled substance,

made a determination "that marijuana has no medical benefits

worthy of an exception" beyond the single exception for

government-approved research stated in the Act. Id.

As the Henrys accurately observe, the facts and circumstances in Oakland Cannabis differ significantly from those

before us in the present case. Here, the Henrys were not seeking to defend their acts of distribution of marijuana on the

basis that marijuana provided some medical benefit. Rather,

the Henrys sought to bolster their defense of personal use of

marijuana by explaining their belief that marijuana had a beneficial impact on Edgar Henry’s health. 

Despite this distinction, however, a critical component of

the Supreme Court’s rationale in Oakland Cannabis is relevant here. As the Supreme Court explained, because Congress

has determined that there is no medical benefit from the use

of marijuana, such use cannot serve as a defense to conduct

prohibited by the Controlled Substances Act. Given Congress’

determination, we cannot say that the district court acted arbitrarily or relied on an erroneous legal principle in determining

that the Henrys’ reason for personally using marijuana should

be excluded from evidence. Therefore, we conclude that the

district court did not err in granting the government’s motion

in limine. 

C.

Finally, the Henrys argue that the district court committed

sentencing error in determining that they both were ineligible

for safety valve relief under the provisions of 18 U.S.C.

12 UNITED STATES v. HENRY
§ 3553(f). Because a district court’s decision regarding the

eligibility for such relief presents a question of fact, we

review the district court’s decision for clear error. United

States v. Aidoo, ___ F.3d ____, ____, slip op. at 11 (4th Cir.

2012) (citing United States v. Wilson, 115 F.3d 429, 432 (4th

Cir. 1997)). This standard of review permits reversal only if

this Court is "left with the definite and firm conviction that a

mistake has been committed." United States v. Stevenson, 396

F.3d 538, 542 (4th Cir. 2005) (quoting Anderson v. Bessemer

City, 470 U.S. 562, 573 (1985)). In conducting our review, we

accord the district court’s credibility determinations great deference. United States v. Layton, 564 F.3d 330, 334 (4th Cir.

2009). 

When applicable, the safety valve provision permits a district court to impose a shorter sentence for first-time offenders

who otherwise would be subject to a mandatory minimum

sentence. 18 U.S.C. § 3553(f); United States v. Withers, 100

F.3d 1142, 1146 (4th Cir. 1996). A defendant seeking this

statutory relief must establish that (1) the defendant does not

have more than one criminal history point; (2) the defendant

did not use violence or possess a firearm in connection with

the offense; (3) the offense did not result in death or serious

bodily injury; (4) the defendant was not an organizer, leader,

manager, or supervisor of others in the offense; and (5) no

later than the time of sentencing, the defendant truthfully provided the government with all evidence and information the

defendant had concerning the offense or offenses comprising

the same course of conduct or a common scheme or plan. 18

U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2; United States v.

Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996).

In the present case, the district court concluded, and the

government agrees, that the Henrys satisfied the first four

requirements necessary to qualify for safety valve relief.

Therefore, the only issue before us is the district court’s finding regarding the fifth requirement for safety valve relief,

namely, that the Henrys failed to provide truthful information

UNITED STATES v. HENRY 13
to the government concerning the offense or offenses that

were part of the same course of conduct or common scheme

or plan. See 18 U.S.C. § 3553(f)(5).

The Henrys argue that they provided the district court with

all relevant information regarding their marijuana operation.

They also contend that they provided financial documentation

supporting their contention of legitimate income, including

evidence that they regularly received income from their rental

of farm equipment. The Henrys maintain that based on these

submissions, they satisfied the fifth requirement of 18 U.S.C.

§ 3553(f) and were entitled to application of the safety valve

provision. We disagree.

As we have explained, section 3553(f)(5) "requires broad

disclosure from the defendant" and mandates that a defendant

supply the details of his own culpability. Aidoo, slip op. at 13-

14. The district court is obligated to determine whether a

defendant has truthfully provided the government with all

known relevant information, and the court may consider any

false statements a defendant may have made when evaluating

the defendant’s credibility. Aidoo, slip op. at 14-15. (citing

United States v. Nuzzo, 385 F.3d 109, 119 n.25 (2d Cir.

2004); United States v. Brownlee, 204 F.3d 1302, 1305 (11th

Cir. 2000)). 

In the case before us, the district court found that the Henrys were not credible witnesses, and that certain representations they made were inconsistent with a full and truthful

disclosure of all relevant information. The district court first

cited Kimberley Henry’s trial testimony, in which she stated

that the $1,800 in cash seized by the authorities came from a

rental payment received for leasing their farm equipment. The

district court contrasted this testimony with other evidence

presented by the government, which showed that the equipment rental was paid for by check, not in cash. The district

court also stated that although the Henrys presented some evidence that a portion of the $72,000 flowing into and out of

14 UNITED STATES v. HENRY
their bank accounts during the time period covered by the

conspiracy may have come from legitimate sources, the court

found that the general absence of financial records was consistent with cash income based on illegal drug sales. 

In addition, the district court noted that several items seized

during the search of the Henrys’ property, including the triplebeam scales and the large plastic baggies found in close proximity to 299 grams of marijuana, indicated that the Henrys

were distributing marijuana and not merely using it as they

had maintained. Based on these considerations, the district

court determined that the Henrys did not truthfully disclose all

relevant information as required by section 3553(f)(5). We

hold that the district court did not clearly err in reaching this

determination, which was supported on the several bases

described above. 

Our conclusion is not altered by the fact that the district

court rested its decision in part on its finding that the Henrys

were not truthful when they denied that they had distributed

marijuana. Although the jury found the Henrys not guilty of

the charge of aiding and abetting in the possession with the

intent to distribute marijuana, the issue remained at sentencing whether the Henrys truthfully disclosed all information

regarding the $1,800 in cash seized by the police and the other

undocumented income. Thus, the district court was entitled to

evaluate the Henrys’ credibility on this issue, including

whether their testimony revealed the true source of that

income or instead was an attempt to obscure other illegal conduct related to the distribution of marijuana. 

Based on the district court’s credibility finding, which we

accord substantial deference, Layton, 564 F.3d at 334, and the

several sound bases on which the district court relied, we hold

that the district court did not clearly err in determining that

the Henrys failed to carry their burden of proving that they

satisfied the requirements of 18 U.S.C. § 3553(f)(5). AccordUNITED STATES v. HENRY 15
ingly, we affirm the district court’s decision denying application of the safety valve provision. 

III.

For these reasons, we affirm the district court’s judgment.

AFFIRMED

16 UNITED STATES v. HENRY