United States v. Henderson

Decision Date30 August 2018
Docket NumberNo. 17-2726,17-2726
Parties UNITED STATES of America, Plaintiff-Appellee v. Larry Lee HENDERSON, Defendant-Appellant
CourtU.S. Court of Appeals — Eighth Circuit

Counsel who represented the appellant was Kevin Michael Whiteley of Saint Louis, MO.

Counsel who represented the appellee was Jennifer J. Roy, AUSA, of Saint Louis, MO.

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

SMITH, Chief Judge.

Larry Lee Henderson challenges the district court’s1 revocation of his supervised release, claiming insufficiency of the evidence. He also contends that two special conditions of his supervised release (1) are not reasonably related to the 18 U.S.C. § 3583(d) sentencing factors; (2) involve a greater deprivation of liberty than reasonably necessary; and (3) are inconsistent with the pertinent Sentencing Commission policy statements. We affirm.

I. Background
A. Original Conviction

In February 2014, while completing a prison term at a Bureau of Prisons halfway house, Henderson fraudulently purchased a car. As laid out in the undisputed presentence investigation report (PSR), Henderson obtained a 2004 Chevrolet Tahoe, priced at $13,871.50, from Driver Seat Auto Sales, LLC ("Driver Seat Auto"), in St. Charles, Missouri. Henderson identified himself as bishop, pastor, and chairman of the Holy Temple National Assembly of Churches, Inc., also known as the World Council of the National Assembly of Churches, Inc. To make the purchase, Henderson presented the car dealership with a $1,200 check as down payment. To obtain financing for the remainder of the purchase price, Henderson completed an online loan application, where he falsely claimed to be employed by the "US Ecclesiastical Court," drawing a salary of $5,800 per month. PSR at 5, United States v. Henderson , No. 4:14-cr-00207-HEA (E.D. Mo. Nov. 3, 2014), ECF No. 32. He produced two paystubs purportedly from the "US Ecclesiastical Court," as well as a 2013 Wage and Tax Statement (W-2) from the same company.2 Id. The W-2 noted Henderson’s salary at $62,882.56. Based on the false information he provided, Henderson received approval for his online financing application, and Henderson drove away in the Tahoe.

Henderson’s down payment check to Driver Seat Auto bounced. Its bank informed the dealership that the check came from a closed account. The company then contacted Henderson, who—after multiple collection attempts—promised to make good on the down payment. Two months later, Henderson paid the company with a cashier’s check, satisfying the down payment amount. Around the same time, Henderson fraudulently procured a Missouri Department of Revenue Notice of Lien Release ("Lien Release") for the Tahoe. He then used that document to apply for—and receive—a $4,000 loan from the Missouri Title Loan Company in St. Louis, Missouri. On his loan application, Henderson claimed—falsely—to be employed by an entity called "US Legal," with a salary of $2,370 every two weeks. Id. Henderson subsequently cashed the $4,000 check; he kept $2,000 as cash and placed $2,000 as a cashier’s check payable to the Holy Temple National Assembly Church. Henderson also received another loan from Missouri Title Loan for $1,200 based on the forged Lien Release and the false information he previously provided to the company. Throughout this time period, Henderson wired multiple payments for the financed Tahoe. However, only one of the payments was credited. The others failed because the originating bank accounts either lacked sufficient funds or were nonexistent.

A grand jury indicted Henderson on two counts: wire fraud, in violation of 18 U.S.C. § 1343, and mail fraud, in violation of 18 U.S.C. § 1341. Henderson pleaded guilty to wire fraud, and in exchange the government dismissed the mail fraud charge. While Henderson awaited sentencing, probation officers uncovered another one of his fraud schemes:

[A]gents learned that Henderson was planning to start a new business named the Committee for Ex-Offenders Equality Association, which appeared to be an auxiliary to Henderson’s Holy Temple National Assembly Church. ... Henderson sought to rent property which was advertised for lease on Craigslist. The property included a business location and a residence in Florissant, Missouri. Specifically, in June 2014, Henderson contacted Meinecke Enterprises and arranged a meeting to discuss the lease of the property in Florissant, Missouri. Henderson and his associate ... and an unknown male met with Meinecke and agreed to lease the property and possibly purchase the property by August 31, 2014. The rental application noted that the applicant was the Holy Temple Church and the business at the location was to be named Committee Center of Holy Temple Outreach. On July 1, 2014, Henderson provided Meinecke three checks totaling $4,300.00. After attempting to deposit the checks, on July 3, 2014, the checks were returned as counterfeit as they purported to be drawn on a non-existent account located at Clayton Bank which is located in Tennessee.

Id. at 6–7 (bold omitted). The PSR also recounted Henderson’s three prior federal convictions for bank fraud, manufacture of forged securities, and unlawful use of counterfeited securities.

Henderson’s total offense level of nine and criminal history category VI yielded a Guidelines recommended range of 21 to 27 months’ imprisonment. At sentencing, the government voiced its concerns regarding Henderson’s history of noncompliance while on supervised released. It also advocated for a sentence at the high end of the Guidelines range, asking the court to take into account Henderson’s lengthy criminal history involving misrepresentation. The government then asked the district court to impose as a special condition of supervised release that Henderson "cannot act in any capacity for any employer, including a church or nonprofit entity, in either a salaried or volunteer capacity, to include a board member or consultant without the prior approval of the U.S. Probation Office." Sentencing Hr’g Tr. at 9, United States v. Henderson , No. 4:14-cr-00207-HEA (E.D. Mo. Jan. 7, 2015), ECF No. 60.

Henderson objected, averring that the proposed condition inappropriately restricted his employment and infringed on his rights under the First Amendment. He suggested that the court instead impose conditions that prohibit him from "opening new [bank] accounts, ... using checks, [and require him to] hav[e] a different financial officer at the church to handle the finances." Id. at 10. The district court adopted Henderson’s recommendation and ordered that

[Henderson shall] not be self-employed or be employed as a "consultant" ... without the written permission of the Probation Office. [Henderson shall] not be employed as a board member or a consultant or a volunteer or aid or assistant or in any other capacity associated with the church that has been the subject of discussion here that would allow him in any way, shape, manner, or form access to or involvement in any type of financial activity.

Id. at 16. Further, the court barred Henderson from "creat[ing], operat[ing], manag[ing], or participat[ing] in the creation, operation, or management of any business entity, including a family business, without the written permission of the Probation Office." Id. at 19. These prohibitions subsequently became special conditions of supervised release 8 and 9, respectively. See Am. J. at 4, United States v. Henderson , No. 4:14-cr-00207-HEA (E.D. Mo. Feb. 17, 2015), ECF No. 65.

In imposing the special conditions, the court carefully explained to Henderson that he was to have no part in the financial matters of any organization, including his church. The court noted that "[e]verybody has th[e] right to participate in their church, to express their belief, [and] to proceed with an expression of their religion." Sentencing Hr’g Tr. at 24. According to the court, Henderson may participate in church activities; he simply may not "do anything that has to do with money in the church." Id. at 18. Henderson assured the district court that he understood the restrictions. The court sentenced Henderson to 27 months’ imprisonment, followed by three years of supervised release. The sentence was at the top of the calculated Guidelines range.

B. Revocation Proceedings

Henderson’s incarceration ended in March 2017, and his three-year supervised release commenced. In May 2017, the probation office suspected that Henderson had violated his probation conditions, again while living at a Bureau of Prisons halfway house. The government initiated an investigation, which revealed that Henderson, under the name Bishop Larry Henderson-Bey, had begun administering a public Facebook page entitled "The National Assembly of Churches." Government’s Motion to Revoke Def.’s Supervised Release at 2, United States v. Henderson , No. 4:14-cr-00207-HEA (E.D. Mo. May 3, 2017), ECF No. 73 The page’s cover photo showed an image of Henderson at a desk in an office setting, superimposed by a logo of the organization. The cover also included the coat of arms of the Bishop of the National Assembly of Churches. Henderson frequently updated the Facebook page and informed visitors that he also managed "The Daniel Matthews Ecclesiastical College" ("Daniel Matthews"). The college proclaimed itself to be the "largest ecclesiastical college providing marketable/occupational studies to local churches and ex-offenders," which had been in operation for more than 24 years. Id. at 3. Daniel Matthews’s Facebook page identified Henderson’s son, Daniel L. M. Henderson, as the "Chair of [the] Board of Incorporators." Id.

Henderson posted multiple advertisements for Daniel Matthews, including job offers and free or reduced tuition offers. Henderson’s Facebook page also provided enrollment information for Daniel Matthews and provided a Paypal hyperlink where prospective students could pay their application fees. Henderson posted photos of...

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