Today brings the Ninth's first criminal decision of 2021.
In United States v. Henry, --- F.3d ---, No.19-50080 (9th Cir. 2021), the Court affirmed Mr. Henry's convictions for one count of conspiracy to commit bank robbery under 18 U.S.C. § 371; five counts of armed bank robbery under 18 U.S.C. § 2113(a) and (d); two counts of bank robbery under § 2113(a); and three counts of brandishing a firearm during the bank robberies under 18 U.S.C. § 924(c)(1)(A)(ii).
"On appeal, Henry argues that: (1) the indictment should be dismissed because the district court made inadequate findings and did not dismiss the indictment under the Speedy Trial Act, 18 U.S.C. § 3161(h); (2) the § 924(c) convictions should be vacated because the district court improperly applied Pinkerton liability to those counts; and (3) the armed bank robbery counts and the derivative § 924(c) counts should be vacated for structural error because the armed bank robbery counts failed to allege the required mens rea."
The opinion contains some helpful language on waiver, including one of my favorite gems: "“[I]t is claims that are deemed waived or forfeited, not arguments.” United States v. Walton, 881 F.3d 768, 771 (9th Cir. 2018)."
As to the substance of Mr. Henry's arguments, first, "Henry argues that the district court did not make the required findings because it did not hold hearings before granting the second and third continuances and it failed to identify the reasons specifically applicable to Henry to delay the trial." The Court, however, explained: "[t]he statute does not require the court to hold a live hearing on a motion for continuance. The issue is whether the district court made sufficient findings to support each of the three ends-of-justice continuances that it granted."
It held: "the district court made findings on the record based on detailed stipulated facts provided in writing by the government and Henry’s co-defendants. Although not joined by Henry, the stipulations included statements by Henry’s counsel. The government and the codefendants stipulated that conflicting trial dates and the need for more time to prepare for trial required the additional delay. The district court made adequate fact findings to justify each of the three ends-of-justice continuances."
The Court further explained, "[t]he three continuances totaled 315 days, or approximately ten and a half months. This delay of close to a year is 'presumptively prejudicial.'" But "[c]onsidering all the circumstances, 'the addition of [the codefendant’s] testimony, although prejudicial, did not make the delay unreasonable.'"
Next, "Henry argues that United States v. Davis, 139 S. Ct. 2319 (2019) and Honeycutt v. United States, 137 S. Ct. 1626 (2017) prohibit using § 2113(d) convictions based on a Pinkerton theory of liability as predicates for § 924(c) convictions. He also argues that Pinkerton liability is inapplicable to the armed bank robbery and § 924(c) counts because the jury was instructed on conspiracy to commit generic bank robbery, not armed, bank robbery, and because the government failed to show the required mens rea. Finally, Henry argues that the court should reevaluate Pinkerton liability in light of the holding in Rosemond v. United States, 572 U.S. 65 (2014), that aiding-and-abetting liability for § 924(c) charges requires proof of the defendant’s advance knowledge that a firearm would be present."
The Court rejected each of these claims.
"Honeycutt does not apply principles of conspiracy liability and does not require this court to vacate Henry’s § 924(c) convictions."
"Under Davis, predicate crimes of violence for § 924(c) charges are limited to those that have violence as an element under § 924(c)(3)(A). Henry’s argument fails because armed bank robbery, his predicate offense, does have violence as an element."
"Davis does not conflict with or undermine the cases upholding § 924(c) convictions based on Pinkerton liability."
Next, "Henry also argues that his § 924(c) convictions should be vacated because the jury instructions and verdict form for the predicate § 2113(d) convictions only required the jury to find a conspiracy to commit generic bank robbery." But "Henry’s convictions made him liable for armed bank robbery as a principal. Armed bank robbery is a crime-ofviolence predicate for § 924(c)(3)(A). Henry’s § 924(c) convictions are valid."
Next, "Henry relies on Du Bo to argue that these counts fail to allege knowing or intentional use of a weapon." The Court held, however, "[u]nlike the word 'unlawfully' in the Du Bo indictment, the word 'assault' used in Henry’s indictment denotes intentionality. The indictment charges the required mens rea."
Finally, "Henry argues that these questions on the verdict form, which do not include the 'use of a weapon' element for the armed bank robbery counts, are plainly erroneous, requiring reversal of the convictions."
The Court held, "The failure to include the 'use of a weapon' element in a verdict form for armed robbery was incorrect. But the jury instructions, which Henry agreed to, were correct."
