United States of America v.  Kimberley Henry

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 opin-
ion, in which Judge Wilkinson and Judge Wynn joined.

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COUNSEL
ARGUED: Brian Joseph Kornbrath, OFFICE OF THE FED-
ERAL 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 Appel-
lee.
OPINION
BARBARA MILANO KEENAN, Circuit Judge:
Kimberley Henry and her husband Edgar Henry (collec-
tively, 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 tes-
timony that Edgar Henry used marijuana for medical pur-
poses; and 3) whether the district court erred in determining
that the Henrys were ineligible to receive "safety valve" sen-
tencing 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 Vir-
ginia 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
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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 main-
tained a large indoor marijuana "grow operation" at their resi-
dence 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 activ-
ity. Sandy told the officers that he had purchased small quan-
tities 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 mari-
juana 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
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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 inves-
tigation 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’] resi-
dence" 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 Kimber-
ley Henry did not have an arrest record. However, Manning
further stated that Kimberley Henry appeared to have a partic-
ular interest in a 2002 federal prosecution of another individ-
ual 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.
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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 kilo-
watt hours, with an average cost of about $728 for each bi-
monthly 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 appli-
cation, a magistrate judge concluded that there was probable
cause to support a thermal-imaging scan of the Henrys’ prop-
erty, and issued the requested search warrant. Manning exe-
cuted 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 condi-
tioning 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 mari-
juana 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 "grow-
ing equipment," processed marijuana, triple-beam scales,
gallon-sized plastic bags, drug usage paraphernalia, and a
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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 vio-
lation 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 rec-
ommendation and denied the Henrys’ motion to suppress.
Also before trial, the district court considered the govern-
ment’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) (Oak-
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land Cannabis), prohibited the Henrys from presenting a
"medical necessity defense." However, the district court per-
mitted 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 manufac-
ture, 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 abet-
ting 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 sen-
tence 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 infor-
mation relating to the offenses. Thus, the district court con-
cluded 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 ques-
tions regarding her conduct.
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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 suffi-
ciency of the affidavit submitted to obtain the thermal-
imaging 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 gener-
ally is accorded "great deference" by reviewing courts. Illi-
nois v. Gates, 426 U.S. 213, 236 (1983); Wellman, 663 F.3d
at 228. In deciding whether there was probable cause to sup-
port 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 proba-
bility 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 argu-
ment 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 credi-
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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 thermal-
imaging search warrant was issued. Additionally, the Henrys
argue that although Manning submitted information to the
magistrate judge regarding power usage at the Henrys’ prop-
erty, Manning failed to show that such usage was irregular.
We disagree with the Henrys’ arguments, because they iso-
late 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 affi-
davit 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 recently-
acquired 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 distri-
bution of marijuana.
We also observe that many details provided by these three
sources were corroborated by Manning’s independent investi-
gation. 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’ prop-
erty, 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, includ-
ing Edgar Henry’s threats to residents seeking to organize a
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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 estab-
lish 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 evi-
dence 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 Hen-
rys were given ample opportunity to defend themselves and were permit-
ted 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.
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in granting the motion in limine. We disagree with the Hen-
rys’ 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 dis-
cretion 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 discre-
tion 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 Califor-
nia 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 deci-
sion. 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
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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 (cit-
ing 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 circum-
stances in Oakland Cannabis differ significantly from those
before us in the present case. Here, the Henrys were not seek-
ing 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 ben-
eficial impact on Edgar Henry’s health.
Despite this distinction, however, a critical component of
the Supreme Court’s rationale in Oakland Cannabis is rele-
vant 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 arbi-
trarily 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.
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§ 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 def-
erence. United States v. Layton, 564 F.3d 330, 334 (4th Cir.
2009).
When applicable, the safety valve provision permits a dis-
trict 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 pro-
vided 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 find-
ing regarding the fifth requirement for safety valve relief,
namely, that the Henrys failed to provide truthful information
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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 Hen-
rys were not credible witnesses, and that certain representa-
tions 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 equip-
ment rental was paid for by check, not in cash. The district
court also stated that although the Henrys presented some evi-
dence that a portion of the $72,000 flowing into and out of
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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 con-
sistent 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 triple-
beam scales and the large plastic baggies found in close prox-
imity 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 sentenc-
ing 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 con-
duct 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). Accord-
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ingly, we affirm the district court’s decision denying applica-
tion of the safety valve provision.
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
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