Since my last update, a few significant events have unfolded in the criminal prosecution of former NFL star Travis Henry. First, and perhaps most important, the indictment was unsealed and jurisdiction of the case was actually transferred. The indictment is the formal charging document. It indicates to the defendant exactly what he or she is being charged with and, thus, what the possible penalties may be.
Mr. Henry was charged with a three count indictment alleging that between March 1, 2006 and September 30, 2008 he (1) conspired with his co-defendant and others to possess with the intent to distribute five or more kilograms of cocaine; (2) that he actually possessed with the intent to distribute the five or more kilograms of cocaine; and (3) that he actually did distribute over five kilograms of cocaine in Yellowstone County, Montana. The penalty for each of those offenses is a mandatory minimum of ten (10) years in a federal prison. The maximum is life. If he is found guilty, his sentences will likely be concurrent, rather than consecutive. Thus, if he is sentenced to twelve (12) years on each count, he will serve twelve (12) years of prison time, rather than thirty six (36).
Second, the case has been transferred to Federal Court in Montana. The court in Montana has jurisdiction over the matter because that is where the narcotics were allegedly distributed. Because Federal narcotics laws are the same in every state in the country, the fundamental laws and rules will not be any different than they were in Colorado (where Henry was physically arrested). [Contrast this to state court where, for example, the penalty for one kilogram of cocaine in Arkansas is different than in Maine]. What is significant about the change to Montana is the way some of the laws may be interpreted.
The Federal Court system is comprised of, at the top, the Supreme Court, the next level down is Circuit Appeals courts, and finally, District level trial courts. The District Courts are trial level courts where the usual courtroom drama unfolds. Circuit Appeals courts hear appellate arguments originating in the District Courts within their jurisdiction. The Supreme Court is the final appellate level and the supreme law of the land.
What is significant in Mr. Henry’s case is that the trial court in Montana is in the Ninth Circuit, while the trial court in Colorado is in the Tenth Circuit. This is important because each Circuit may have a different interpretation of certain laws, rules of evidence and procedure. The Ninth Circuit has been historically known to be a more liberal circuit, with the rulings being more favorable to defendants rather than the government. For Mr. Henry, it could mean the difference in the outcomes of any pretrial motions he may file. We will not know the actual significance of this shift until the case progresses.
Third, as expected, Mr. Henry has been released on bond. The court in Colorado set his bond at $400,000. He satisfied this bond by posting a house in Aurora, Colorado as well as cash. The Court valued the house at $360,000 and the remainder was paid with either cash or a cashier’s check. He has been placed on electronic monitoring (ankle tracking device) and confined to his home except for work, schooling, medical matters and attorney visits. Mr. Henry’s bond contains many other conditions, some of them standard, others unique. The standard provisions are that he is not allowed to have a firearm, he must submit to and pay for drug tests, refrain from any alcohol usage and not obtain a passport or other international travel document. One of the standard, but unique conditions is that he is not allowed contact with the confidential informant in the case. Operationally, this means Mr. Henry knows the confidential informant and it is likely someone close to him. He was, essentially, betrayed by a friend, associate or fellow narcotics distributor. The fact that Mr. Henry knows the informant means the government is likely to have very solid evidence, as the informant was able to get very close to Mr. Henry. This is not uncommon in Federal cases, as members of a narcotics conspiracy are the best sources of information about that conspiracy.
Finally, and as mentioned before, the complaint has been unsealed and made available. Although analysis of the complaint was promised in the previous posting, it will again be delayed. First, the complaint now makes more sense since the revelation of the indictment. Second, the complaint contains several aspects that relate to how Mr. Henry’s lawyer is likely to fight the case. To give it less than a full article would be shorting the importance of it. It will be given its full analysis in due time.