Safety valve ineligibility affirmed and thermal imagery warrant held valid

US v. Henry:  Mr. and Mrs. Henry received two convictions related to growing marijuana at their rural West Virginia home. On appeal, they challenged whether there was probable cause to support the issuance of the thermal imaging warrant; whether the district court erred when it granted the government’s motion in limine to exclude testimony that Mr. Henry used marijuana to improve his symptoms from medical illnesses; and whether the district court erred in finding them ineligible for safety valve relief at sentencing.

First, the Henrys argued that the affidavit from the police to the magistrate for the thermal search warrant failed to meet the probable cause standard, as the information to support the application was provided by a cooperating inmate interviewed twenty months before the warrant issued, and two other, unidentified sources. The Fourth Circuit concedes that none of the information provided by the three sources was recent, and any one of the sources considered alone would not have been sufficient information to base the application on; however, taken collectively, the three sources were unrelated and provided consistent information about the marijuana at the Henry residence, or that they had purchased from the couple. The Fourth Circuit held that the affidavit provided a sufficient basis to establish probable cause, and the district court did not err in denying the Henrys’ pre-trial motion to suppress.

Next, with respect to the government’s motion in limine to exclude testimony of the beneficial effect of marijuana on Mr. Henry’s health, the Fourth Circuit held that with the exception of government-approved research projects, medical necessity is not a defense to conduct prohibited by the Controlled Substances Act, including the manufacture and possession of marijuana to distribute. Additionally, as if to put a final nail in this coffin, the Fourth Circuit pointed out that the Supreme Court has explained and Congress has determined that there is no medical benefit from the use of marijuana. Thus, it found that the district court did not err here.

Finally, the district court declined to grant safety valve eligibility to Mr. and Mrs. Henry because it found that they did not provide truthful information to the government concerning their offenses. The safety valve program permits shorter sentences for first-time offenders who would otherwise be subject to a mandatory minimum sentence, provided the defendant can meet the following five requirements: 1) the defendant does not have more than one criminal history point; 2) the defendant did not use violence or weapons in connections with the criminal conduct; 3) the offense did not result in death or bodily harm; 4) the defendant did not have a supervisory or managerial role in the offense; and 5) prior to sentencing, the defendant was truthful in providing evidence and information concerning the offense to the government. The Henrys satisfied the first four prerequisites, but the district court concluded that they were not credible witnesses, as they provided "certain representations" that "were inconsistent with a full and truthful disclosure of all relevant information." The district court’s credibility determinations were accorded "substantial deference" by the Fourth Circuit and it held that the district court did not clearly err in this decision.