Jury Tampering Inquiry Complicates Henley Case

A professional football player in Southern California is charged with running a cross-country drug network.

His girlfriend, a Ram cheerleader he recruited to shuttle suitcases filled with cocaine cross-country, turns state’s witness to testify against him and four co-defendants.

All five are eventually convicted.

Before they are sentenced, however, allegations of jury tampering abound.

The defense argues that jury deliberations were influenced by one juror’s open expressions of racial prejudice, and that another juror’s guilty vote is suspect because he sought--but was not paid--a $50,000 bribe to vote not guilty.

The tangled federal drug trafficking case of former Ram cornerback Darryl Henley has taken on the drama of overtime play in an NFL football game.

More than a year after their convictions in federal court here, the five men have yet to be sentenced, because defense lawyers, alleging jury misconduct, are demanding a new trial.

Prosecutors fighting the retrial motions have said in open court they have evidence that Henley, hoping to win his freedom or at least force a hung jury and a mistrial, was at the center of the unsuccessful scheme to bribe the juror.

The charges might not end there.

A federal grand jury investigating the jury tampering allegations might issue more indictments in the coming weeks.

“Any time you have a case involving a sports celebrity . . . and drugs, there is always that chance you would play upon jurors’ possible weaknesses,” said Robert A. Pugsley, a law professor at Southwestern University School of Law in Los Angeles.

“The effort to tamper with the jury [in this case] is upsetting. If you can’t trust juries to do the right thing, then belief in the trial system collapses.”

Pugsley said that from evidence presented at the hearing for a new trial, it is probable that Henley himself would be indicted for “complicity in jury tampering.”

Assistant U. S. Atty. Deirdre Z. Eliot, who helped prosecute the case, declined to discuss the grand jury probe, saying only, “Our office has always been committed to ensuring the integrity of the jury system.”

But prosecution evidence has focused attention on Henley’s alleged role in the jury tampering scheme.

Eliot and fellow prosecutor John C. Rayburn Jr. subpoenaed Henley’s cellular telephone records, which showed that someone using Henley’s phone made a flurry of calls to dismissed juror Michael Malachowski in the week before the trial ended in a guilty verdict on March 28, 1995.

Malachowski has been indicted since then for allegedly acting as the middleman and offering $50,000 to one of the remaining jurors, Bryan Quihuis, to vote not guilty in the case.

Toll records also show that during the same period, Malachowski--and someone using Darryl Henley’s cellular phone--made frequent calls to Quihuis’ San Bernardino home.

Henley’s attorneys did not return telephone calls seeking comment. In court, Henley and his attorneys have maintained that the former football player did not know of the alleged jury tampering.

“He was not the instigator in the bribery discussion,” attorney Stephen M. Hogg has insisted.

Apart from the telephone records, prosecutors have also obtained tape recordings of Henley’s telephone conversations from the Metropolitan Detention Center in Los Angeles. The tapes, according to prosecutors, show that Henley knew about the bribery scheme.

During one conversation on the night of his conviction, Henley urged a friend and business associate to “definitely jump on it. . . . You remember what we were going to do with them people out of town.”

Rayburn, the prosecutor, said this was a veiled reference to Malachowski and a plot to fabricate allegations of jury misconduct.

On the tapes, Henley also makes oblique references to his connection to the “Green Tablet,” which prosecutors said meant jurors who carried green notebooks in court.

Henley said he was simply referring to one of his luxury cars, a green Lexus.

Among the tapes is a conversation between Henley and a business associate who, according to prosecutors, referred to a plan to kill former Ram cheerleader Tracy Donaho, the Henley courier who was eventually sentenced to four months in prison for her role in the drug network.

In the taped conversation, Henley is heard telling the associate how he heard that Donaho got a sentence of “probation . . . and a job.”

The associate replies: “Well, maybe not for long. You know what I’m saying?”

In court, Rayburn asked Henley: “Would you kill to get out of prison?”

Henley replied: “I wouldn’t kill anybody, not even you.”

*

The trial of Henley and his cohorts had all the elements of a modern-day crime movie: Prosecution testimony portrayed Henley as a rising football star who seduced a naive and love-stricken 19-year-old Ram cheerleader into carrying suitcases of cocaine across the country.

When Donaho was caught with a suitcase full of cocaine, federal agents were quickly able to link her to Henley, and the cross-country drug network began to unravel. Higher-level drug dealers then threatened to kill Henley and members of his family if the athlete did not come up with money for the busted cocaine deal.

During the trial, Henley and the four other defendants protested their innocence. Defense attorneys portrayed the athlete as the victim of a “big con” by friends who took advantage of his name and generosity to run a cocaine ring out of his Brea home without his knowledge.

But the jury found the government’s evidence was convincing, especially telephone records for more than 79 calls through the spring, summer and fall of 1993 connecting Henley to other defendants in the case.

Also convicted on conspiracy and possession charges were:

* Henley’s uncle, Rex Henley, 32, of Rancho Cucamonga, accused of bundling the cocaine in suitcases and helping transport couriers to the airport;

* Willie McGowan, 32, of Duarte, accused of putting the drug deals together;

* Garey West, 26, of Memphis, accused of selling the drugs; and

* Ralph Bustamante, 28, of Rancho Cucamonga, accused of supplying the cocaine.

All face at least 10 years in prison. Bustamante and West, who have prior drug convictions, face additional time. Bustamante and two other men are charged in a separate case with trying to extort $360,000 from Henley and his family for a drug payment.

Henley could face more than 10 years in prison depending on U. S. District Judge Gary L. Taylor’s judgment about other circumstances in the case, including whether Henley played a key role in the drug conspiracy, the amount of cocaine involved, and his alleged role in the jury tampering scheme. He also faces up to $4 million in fines.

Henley and the others were scheduled to be sentenced June 12, 1995--but that was before the case took its first post-conviction twist. Before the sentences could be handed down, Quihuis reported to Taylor that he had been contacted by Malachowski before jury deliberations began and offered a $50,000 bribe from Henley to vote not guilty.

Quihuis said there were “various conversations on the topic, that he did not report it to the court [at the time], and that he did not accept any money,” according to court documents.

Malachowski had been dismissed from the jury early in the trial after he reported to the judge that he had received a phone message from a man with the same name as one of Henley’s co-defendants. The FBI found no connection between the call and any defendant in the case.

In May of last year, Rex Henley’s attorney filed a petition in federal court seeking a new trial for his client. The petition alleged that a third juror--one who voted to convict Henley and the others--had openly expressed racial prejudice against the five defendants, four of whom are African American.

The petition also alleged that Quihuis told Malachowski that he would be willing to vote for the defendants’ acquittal in exchange for a $50,000 bribe. But after an FBI investigation, it was Malachowski who was indicted for jury tampering and obstruction of justice, not Quihuis.

In court papers, FBI agent James Blanchard said Malachowski has admitted lying when he previously stated that Quihuis offered to throw the case if Henley and his uncle paid him a bribe.

According to Blanchard, Malachowski acted as an intermediary for Henley. At one point, when Darryl Henley thought that Quihuis was trying to get off the jury, Malachowski said that Henley would double the bribe if Quihuis held out for a not-guilty verdict, Blanchard said.

Malachowski’s trial on jury tampering charges is set for June 4.

Quihuis took the Fifth Amendment when asked to testify during the hearing for a new trial.

The judge is yet to rule on the motion for a new hearing.

Pugsley, the Southwestern law professor, said the defense’s bid for a new trial based on juror misconduct appears to be “dead in the water” because some of the defendants apparently were in on the scheme.

In a taped telephone conversation recorded a few days after the convictions, Thomas Henley, Darryl’s Henley father, asked Rex Henley whether the defendants were going to pursue an appeal “or the other thing,” which prosecutors said referred to the jury tampering.

Rex Henley replied: “It’s on Darryl, when Darryl’s ready to make that decision to go ahead and do it. But we need to go ahead and do it fast. Ain’t no use waiting.”