U.S. v. Henderson, No. 08-3439

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtMcKEAGUE
Citation626 F.3d 326
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thomas A. HENDERSON, Defendant-Appellant.
Docket NumberNo. 08-3439
Decision Date19 November 2010
626 F.3d 326

UNITED STATES of America, Plaintiff-Appellee,
v.
Thomas A. HENDERSON, Defendant-Appellant.


No. 08-3439.

United States Court of Appeals,
Sixth Circuit.


Argued: Oct. 19, 2010.
Decided and Filed: Nov. 19, 2010.

626 F.3d 330

ARGUED: Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before: MARTIN and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.*

626 F.3d 331

OPINION

McKEAGUE, Circuit Judge.

Defendant-appellant Thomas A. Henderson was convicted of bank robbery in 1981. Within three years after his release from prison, two persons who had assisted law enforcement authorities in the bank robbery prosecution were shot to death, in 1996 and 1998, respectively. Henderson was charged in 2006 with killing two witnesses in retaliation for providing information and testifying against him in the federal bank robbery prosecution, and with two unlawful-use-of-firearm offenses in relation to the killings. The jury returned a guilty verdict on all counts. Henderson was sentenced to two concurrent terms of life imprisonment on the murder counts and two consecutive two-year terms on the firearm counts. He asserts nine claims of error on appeal. Because none of the claims have merit, the district court's judgment is affirmed.

I. BACKGROUND

In June 1981, defendant Thomas Henderson was traveling with Ecolia ("Coy") Washington from Columbus, Ohio, to Florida to visit a mutual friend in the Dade County Jail, Robert Earl Bass. After their car broke down in Macon, Georgia, they decided to rob a bank, the Macon Bank & Trust Company. Henderson actually conducted the holdup, using a .38 caliber revolver and taking more than $160,000 from the bank. Washington drove the getaway vehicle. They drove to Atlanta, where Washington dropped Henderson off and returned to Columbus. Henderson got a ride back to Columbus with other friends. In July 1981, Bass, concerned about the way Henderson was treating his friend, Washington, called the FBI in Macon from jail and volunteered information regarding the bank robbery. This information led to Henderson's arrest. Washington had already been arrested. She agreed to testify against Henderson in exchange for immunity. In the ensuing federal trial, in the District of Georgia, Washington testified against Henderson. Henderson was convicted of bank robbery in October 1981 and sentenced to 25 years in prison.

Henderson was released from prison in April 1996 and returned to Columbus to live in the home of his ex-wife, Frances Henderson. In the early morning hours of November 4, 1996, Robert Bass was shot to death in his car outside his apartment in Pickerington, a suburb of Columbus. Authorities were unable to solve the crime. At about 5:30 a.m. on November 2, 1998, the body of Ecolia Washington was found in a burning van near her home in a Columbus neighborhood. Washington had suffered multiple gunshot wounds, which had caused her death.

Not until 2006 did an FBI investigation yield enough evidence to secure an indictment against Henderson. In February 2006, Henderson was charged with two counts of retaliatory murder (for killing Robert Bass and Ecolia Washington in retaliation for their participation in the bank robbery prosecution), in violation of 18 U.S.C. § 1513(a)(1)(B) and § 1513(a)(1)(A), respectively; and two counts of using a firearm in relation to the killings, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Henderson pleaded not guilty and a jury trial commenced in June 2007. Following several days of trial and two days of deliberations, the jury returned its verdict: guilty on all four counts. Appellant Henderson asserts nine claims of error, addressed below in the order he has presented them.

626 F.3d 332

II. ANALYSIS

A. Admission of Victims' Statements

During trial, the district court allowed the government to introduce evidence of statements previously made by the murder victims. First, through the testimony of retired FBI Agent Fred C. Stofer, who had participated in the 1981 Macon bank robbery investigation, the government was allowed to introduce exhibits bearing certain teletype communications. These teletype communications, between law enforcement offices in Macon, Miami and Columbus, relate to Robert Bass's willingness to provide information concerning the Macon bank robbery. Bass did not testify in the bank robbery trial, but Agent Stofer was allowed to read the contents of one of the teletype communications into the record:

[O]n this date Robert Earl Bass incarcerated at Dade County Jail under the name Robert Earl, black male, date of birth, telephonically contacted the Macon RA regarding the above matter. Bass stated that he was—or that he has information regarding this case indicating specifically that he can provide information on the weapon used not yet recovered, the current location of the getaway car, a '73 Datsun not yet recovered, registered to Bass, and that he can convince Ecolia Johnson to cooperate with Macon FBI office in this case.
R. 160-8, trial tr. vol. VII, p. 123; Gov't Appx. p. 6, ex. 1K.1

Second, the government was allowed to read into the record a sworn statement Ecolia Washington gave to police on August 27, 1981, before she testified against Henderson in the bank robbery trial:

Ms. Wonsley, Question: How many times have you talked to him since you all have been here at the Law Enforcement Center?
Answer: Twice on the telephone.
Question: What has he said to you?
Answer: Well, the first time he called me, well, you know, when Mr. Child's (sic) had told me about that you all would drop them two counts on me if I could come up with those three items, I tried to get Tommy to help me pay for my attorney some kind of way or to give me some more money, and that's why he called me, because he got my message that if he didn't give me no money, I was going to tell them.
"So he called me and he told me he had got my message and that he wouldn't advise me to do that. Knowing Tommy, you know, he told me he didn't believe that it was only my doing, it was me and Robert's doings and I just listened to him.
Question, Mr. Tosi: Did he threaten you in any direct way; say he was going to burn down Woody's house or ribs up there or anything like that?
Witness, answer: No. He just—he told me to think about it because he would do something to me if I was to do something to him. And that was it.
R. 160-12, trial tr. vol. XI, pp. 100-01.

Henderson contends these two statements are testimonial in nature and that their admission, without opportunity for cross-examination, was in violation of his right of confrontation. The district court admitted the statements under the "forfeiture by wrongdoing" exception to the hearsay rule, Fed.R.Evid. 804(b)(6), finding by a preponderance of the evidence that Henderson was "responsible" for Bass's and Washington's absence. R. 160-12, trial tr. vol. XI, pp. 2-7. Citing

626 F.3d 333
Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), Henderson argues the forfeiture-by-wrongdoing doctrine does not provide an exception to the Sixth Amendment's right of confrontation.

Indeed, in Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause requires that a defendant have an opportunity to confront the witnesses who give testimony against him, except in cases where an exception to that right was recognized at the time of the nation's founding. Unless such an exception applies, a testimonial statement made by an absent witness is admissible only if the defendant had a prior opportunity to cross-examine that witness. Id. at 68, 124 S.Ct. 1354. In Giles, the Court observed that the doctrine of forfeiture by wrongdoing was, at common law, not intended to permit introduction of unconfronted hearsay statements unless there was clear proof that the defendant engaged in conduct designed to prevent the declarant's testimony by procuring his or her unavailability. Giles, 128 S.Ct. at 2683-84. Because the doctrine had not been invoked—either at the time of the nation's founding or in American jurisprudence prior to 1985—to obtain admission of murder victims' unconfronted statements absent a showing of such an intent to preemptively silence, the Giles Court refused to read the exception so broadly today.

Hence, because Bass and Washington could not have been killed, in 1996 and 1998, respectively, to prevent them from testifying against him in the bank robbery prosecution in 1981, and because there is no evidence that Bass and Washington were killed to prevent them from testifying against him in relation to any other offense, Henderson argues the forfeiture-by-wrongdoing doctrine has no application in this case. Indeed, there is no evidence that Henderson engaged in conduct designed to prevent Bass and Washington from testifying against him. In the wake of the Giles ruling, the district court's reliance on the forfeiture-by-wrongdoing doctrine is seen to have been misplaced. Yet, the government contends the error does not necessarily undermine the validity of Henderson's conviction because (a) Bass's statement was not testimonial, and (b) admission of Washington's statement was harmless error.

The court of appeals generally "reviews all evidentiary rulings—including constitutional challenges to evidentiary rulings—under the abuse-of-discretion standard." United States v. Schreane, 331 F.3d 548, 564 (6th Cir.2003). Evidentiary rulings relating to violations of the Confrontation Clause, however, are reviewed de novo. United States v. McGee, 529 F.3d 691, 697 (6th Cir.2008). Further, violations of the Confrontation Clause are subject to harmless error analysis. Id. Errors...

To continue reading

Request your trial
146 practice notes
  • United States v. Thurman, Criminal Action No. 3:10CR107–H.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 7 Enero 2013
    ...not presently excludable under Rule 403. A helpful Sixth Circuit decision that involves Rule 801(b)(2)(A) is United States v. Henderson, 626 F.3d 326, 337 (6th Cir.2010). In Henderson, an Ohio defendant was charged with the murder of two witnesses in retaliation for their providing informat......
  • United States v. Brown, Nos. 14–6543
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 24 Marzo 2016
    ...486 (1985) (per curiam) (citation and internal quotation marks omitted). This right, however, is not absolute. United States v. Henderson, 626 F.3d 326, 343 (6th Cir.2010) (noting that "a defendant's right to be present at every stage of trial is not absolute"). "The presence of a defendant......
  • State v. Holman, Case No. 2017CA00114
    • United States
    • United States Court of Appeals (Ohio)
    • 9 Abril 2018
    ...224 N.E.2d 126 (1967). However, we review de novo evidentiary rulings that implicate the Confrontation Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010)." State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97. ISSUES FOR APPEAL A. Whether the trial co......
  • State v. Price, Case No. 17CA015
    • United States
    • United States Court of Appeals (Ohio)
    • 18 Mayo 2018
    ...224 N.E.2d 126 (1967). However, we review de novo evidentiary rulings that implicate the Confrontation Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010)." State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97. Page 6 ISSUES FOR APPEAL A. Whether the t......
  • Request a trial to view additional results
146 cases
  • United States v. Thurman, Criminal Action No. 3:10CR107–H.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 7 Enero 2013
    ...not presently excludable under Rule 403. A helpful Sixth Circuit decision that involves Rule 801(b)(2)(A) is United States v. Henderson, 626 F.3d 326, 337 (6th Cir.2010). In Henderson, an Ohio defendant was charged with the murder of two witnesses in retaliation for their providing informat......
  • United States v. Brown, Nos. 14–6543
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 24 Marzo 2016
    ...486 (1985) (per curiam) (citation and internal quotation marks omitted). This right, however, is not absolute. United States v. Henderson, 626 F.3d 326, 343 (6th Cir.2010) (noting that "a defendant's right to be present at every stage of trial is not absolute"). "The presence of a defendant......
  • State v. Holman, Case No. 2017CA00114
    • United States
    • United States Court of Appeals (Ohio)
    • 9 Abril 2018
    ...224 N.E.2d 126 (1967). However, we review de novo evidentiary rulings that implicate the Confrontation Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010)." State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97. ISSUES FOR APPEAL A. Whether the trial co......
  • State v. Price, Case No. 17CA015
    • United States
    • United States Court of Appeals (Ohio)
    • 18 Mayo 2018
    ...224 N.E.2d 126 (1967). However, we review de novo evidentiary rulings that implicate the Confrontation Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010)." State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97. Page 6 ISSUES FOR APPEAL A. Whether the t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT