FILED
United States Court of Appeals
Tenth Circuit
August 12, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-5027
(D.C. No. 4:05-CR-00084-JHP-1)
(N.D. Oklahoma)
TONY MAURICE BECKNELL, JR.,
a/k/a Smoke,
Defendant.
---------------------------
JEFF M. HENDERSON,
Respondent - Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
Appellant Jeff M. Henderson, proceeding pro se, appeals the judgment of
the district court finding that he was in contempt of court because he had offered
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
false testimony to the court, in violation of 18 U.S.C. § 401. He was sentenced to
three months’ imprisonment, to be served consecutively to the sentence he was
already serving on a different conviction. Mr. Henderson appeals, and we affirm.
BACKGROUND
Mr. Henderson, while an officer with the Tulsa Police Department, was
indicted in 2010 for offenses related to the performance of his official duties.
The charges against Mr. Henderson included allegations that he committed
perjury and falsified Reliable Confidential Informant (“RCI”) information in
search warrant affidavits. During his criminal trial, Mr. Henderson testified with
confidence about the search warrant affidavits at issue in the indictment and the
identity of particular RCIs.
The jury ultimately convicted Mr. Henderson of six counts of perjury and
two counts of civil rights deprivations. United States v. Henderson, No. 11-
5164. 1 One of his civil rights convictions and all of his perjury convictions
stemmed from his involvement in the case of United States v. Crawford. In the
Crawford case, Mr. Henderson testified during a suppression hearing. Mr.
Henderson’s testimony during this suppression hearing was that Mr. Crawford
was present at a specific location in Tulsa, Oklahoma, on January 5 and 6, 2009,
and that Mr. Henderson had seen Mr. Crawford at this location. Testimony at the
1
Mr. Henderson’s appeal of his conviction is pending in our court.
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subsequent trial, however, established that during the times Mr. Henderson
claimed to have seen Mr. Crawford in Tulsa, Mr. Crawford was actually in
Arlington, Texas. Furthermore, cell tower location data contradicted a claim that
Mr. Henderson’s phone was near Mr. Crawford’s house at the time Mr. Henderson
claimed to have been there on surveillance. Despite that evidence, Mr. Henderson
claimed at trial that he saw Mr. Crawford in Tulsa on January 5 and 6, 2009.
The instant appeal, involving Mr. Henderson’s conviction for contempt of
court, involves yet a different case. In particular, this appeal involves the
conviction of Tony Maurice Becknell, Jr. Mr. Becknell sought collateral review
of that conviction. While Mr. Becknell’s original motion was originally styled a
Fed. R. Civ. P. 60(b)(2), he later joined his claims in a petition seeking relief
under 28 U.S.C. § 2255. Mr. Becknell claimed that the two affidavits for search
warrants prepared by, and sworn out by, Mr. Henderson were not truthful.
Specifically, Mr. Becknell questioned whether Mr. Henderson actually had an
RCI as he stated in his March 29, 2005, affidavits.
The district court conducted a series of evidentiary hearings in this matter.
Mr. Becknell’s attorney subpoenaed Mr. Henderson to testify at a hearing on
June 29, 2012. When asked about the Becknell search warrants, Mr. Henderson
asserted his Fifth Amendment privilege against self-incrimination. At that point,
Mr. Henderson was granted testimonial immunity by the district court, and he was
compelled to provide truthful testimony.
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When he was asked to identify (under a grant of immunity) the RCI upon
whom he relied for the Becknell search warrants, Mr. Henderson unequivocally
identified an individual by name. Mr. Henderson then provided a series of
answers to questions about the named RCI, in which he stated that he had used
the RCI in “[m]ore than six” cases; that he (the RCI) “was a reliable confidential
informant”; that he (Mr. Henderson) had used this RCI in three other specific
cases involving specific named individuals; that the named RCI was “a black
male, probably 5-8 at the time back then, 150 pounds, was a certified Hoover
Crip, he has a street name of [redacted]”; that he “stayed in the [identified
redacted street number] block of North [redacted names of two streets]”; that the
RCI’s reliability was “not alleged, it’s a fact”; and that “[e]verything in th[e]
[Becknell] affidavit is true.” Tr. of Mot. Hr’g, R. Vol. II at 99-102.
As it turned out, it was revealed at a July 6, 2012, hearing that Mr.
Henderson’s testimony about the particular RCI at the above June 29 hearing was
false. Mr. Becknell offered certified records and testimony that the RCI named
by Mr. Henderson was actually incarcerated during the time period of the
Bucknell search warrants. After this July 6 hearing, the United States filed a
motion for an order directing Mr. Henderson to show cause why he should not be
held in contempt of court for his false testimony at the June 29, 2012, hearing.
On November 26, 2012, the district court conducted a show cause hearing,
at which the United States indicated that it would not seek a sentence greater than
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six months if Mr. Henderson was held in contempt of court. Mr. Henderson then
testified under oath that he had made a mistake and had gotten the dates and
investigations confused in his June 29 testimony. He further averred that he did
not intend to lie; that he only realized his error after the hearing when he was
shown documentary evidence that the RCI he named was incarcerated in the local
jail during the time period of the Becknell search warrants. Mr. Henderson
further testified that he then believed that another person, now deceased, was his
RCI on the Becknell warrants.
The district subsequently entered an order on February 27, 2013, holding
Mr. Henderson in contempt of court. The court first found that Mr. Henderson’s
testimony regarding the identity of the RCI was material to the proceedings being
conducted, and that Mr. Henderson had been fully apprised of that materiality
prior to his false testimony. The court further stated:
The Court had the benefit of observing the demeanor of
Henderson at [the] hearing[] and the Court listened intently to his
testimony. At the June 29, 2012, hearing, Henderson was very
emphatic about his testimony and the identity of the RCI. During
that hearing, Henderson was neither hesitant, nor confused. He was
not unsure of his testimony, and in fact, was very confident and
persuasive. If Henderson was not certain of the identity of the RCI,
the date, or subject of the investigation, all he had to do was to state
that he could not remember. Henderson is not a novice at testifying.
In fact, during his testimony on June 29th, after Henderson
emphatically identified the RCI on the Becknell search warrant
affidavit, he then stated 31 times in response to other questions from
defense counsel that he did not remember or could not recall the
answer to the posed question. This is in marked contrast to his
definitive testimony as to the identity of the RCI. Clearly,
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Henderson knew that if he was unsure of an answer, all he needed to
do was to state his uncertainty. Henderson is a very experienced
witness as evidenced by his tenure as a Tulsa police officer with
years of experience testifying in courtrooms. This Court had a
firsthand observation of his testimonial mannerisms, techniques and
body language.
This outcome of this contempt proceeding is contingent on the
credibility of Henderson. This Court has now had the opportunity –
just as the judges and jury in Henderson’s criminal case – to see just
how earnest and persuasive Henderson can be when he is testifying,
even testifying falsely. This Court finds that Henderson testified
falsely in his June 29, 2012 testimony. He now readily admits the
falsity, but only after being confronted with documentary evidence
that his testimony was false. And this Court also finds that
Henderson testified falsely with intent to obstruct the administration
of justice. It was not an inadvertent mistake. After observing and
listening to Henderson during both hearings, the Court does not
believe Henderson’s testimony that he made an honest mistake about
the identity of the RCI. Henderson had no equivocation in his
testimony on June 29, 2012.
The record before the Court, as well as the observations by the
Court concerning Henderson’s credibility, demonstrate that
Henderson either, with knowledge of its falsity or with reckless
disregard for its truthfulness, offered false testimony to this Court.
As a result, it is the Finding and Order of this Court that Jeff
Henderson is in contempt of this Court’s order directing his truthful
testimony.
Order of Contempt at 12-14, R. Vol. 1 at 120-22. The court then imposed a
sentence of three months’ imprisonment, to be served “consecutive to the
sentence imposed in US v. Henderson, 10-CR-117-BDB.” Id. at 123. This appeal
followed.
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DISCUSSION
“A district court may exercise broad discretion in using its contempt power
to assure compliance with its orders.” Rodriguez v. IBP, Inc., 243 F.3d 1221,
1231 (10th Cir. 2001). We accordingly “review[] a district court’s exercise of its
discretion for abuse of discretion.” Id. “Abuse of discretion is established if the
district court’s adjudication of the contempt proceedings is based upon an error of
law or a clearly erroneous finding of fact.” Id. (quoting Reliance Ins. Co. v. Mast
Constr. Co., 84 F.3d 372, 375-76 (10th Cir. 1996)); In re Contempt Order, 441
F.3d 1266, 1267 (10th Cir. 2006).
The district court exercised its power to punish Mr. Henderson for failing
to obey its order requiring him to testify truthfully. 18 U.S.C. § 401. We fully
agree with the government that the district court did not abuse its discretion when
it found Mr. Henderson in contempt for testifying falsely. The district court
emphasized its unique ability to view Mr. Henderson’s testimony and assess his
credibility. “[W]e generally grant ‘great deference’ to a district court’s
credibility assessments.” United States v. Quaintance, 608 F.3d 717, 723
(quoting Wessel v. City of Albuquerque, 463 F.3d 1138, 1145 (10th Cir. 2006)).
“When findings [of fact] are based on determinations regarding the credibility of
witnesses, Rule 52(a) demands even greater deference to the trial court’s findings;
for only the trial judge can be aware of the variations in demeanor and tone of
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voice that bear so heavily on the listener’s understanding of and belief in what is
said.” Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985).
Given that deferential standard of review, we cannot say that the district
court abused its discretion when it found Mr. Henderson in contempt. We
accordingly affirm its order.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the district court.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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