United States v. Henry

• Citation: 984 F.3d 1343
• Decision Date: 06 January 2021
• Docket Number: No. 19-50080,19-50080
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Lamar HENRY, AKA G-Thing, AKA G., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

984 F.3d 1343

UNITED STATES of America, Plaintiff-Appellee,

v.Gary Lamar HENRY, AKA G-Thing, AKA G., Defendant-Appellant.

No. 19-50080

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 12, 2020 Pasadena, California

Filed January 6, 2021

Benjamin L. Coleman (argued), Coleman & Balogh LLP, San Diego, California, for Defendant-Appellant.

David R. Friedman (argued), Assistant United States Attorney, Criminal Appeals Section; Nicole T. Hanna, United States Attorney; L. Ashley Aull, Assistant United States Attorney, Chief, Criminal Appeals Section; Los Angeles, California; for Plaintiff-Appellee.

Before: Morgan Christen and Paul J. Watford, Circuit Judges, and Lee H. Rosenthal,^* Chief District Judge.

ROSENTHAL, Chief District Judge:

This appeal raises three issues: continuances that allegedly violated the Speedy Trial Act; § 924(c) convictions after United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019) ; and an allegedly defective indictment and verdict form. Gary Henry appeals his bank robbery, armed bank robbery, and derivative firearms convictions. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

I.

In 2017, Gary Henry was indicted with three codefendants for a 2016 series of bank robberies in Los Angeles and Bakersfield, California. Henry was charged with conspiracy under 18 U.S.C. § 371, bank robbery under 18 U.S.C. § 2113(a), armed bank robbery under 18 U.S.C. §§ 2113(a) and (d), and brandishing a firearm during the armed bank robberies under 18 U.S.C. § 924(c)(1)(A)(ii). The indictment alleged that Henry would remain outside the banks while some of his codefendants went inside. The armed bank robbery counts alleged that "[i]n committing said offense, defendants HENRY and [his codefendants] assaulted and put in jeopardy the life of an employee of [the bank], and others, by using a dangerous weapon and device." Some of the armed bank robbery counts specified that a firearm was used.

Henry was arrested and detained and made his first appearance on May 1, 2017, starting the Speedy Trial Act clock. The district court set a trial date of June 27, 2017. On June 6, 2017, the government and two codefendants, Orlando Soto-Forcey and Edgar Santos, jointly sought a continuance to December 2017, citing the need for more time to prepare and their lawyers’ conflicting trial settings through the summer and early fall. Henry opposed the continuance. At a June 12, 2017 status conference, the district court stated that it would grant the continuance over Henry's objection because Santos had just made his first appearance in what was "a complicated conspiracy and bank robbery case." The next day, the district court entered a written order finding that the continuance served the "ends of justice."

In October 2017, the government and all codefendants sought a second continuance, to March 2018. Henry objected but the stipulation provided by the government and Henry's codefendants included Henry's counsel's statement that he too needed the additional time to prepare to defend Henry at trial. The district court issued a written order granting the continuance and finding that: "(i) the ends of justice served by the continuance outweigh the best interest of the public and defendant in a speedy trial; (ii) failure to grant the continuance would be likely to make a continuation of the proceeding impossible, or result in a miscarriage of justice; (iii) failure to grant the continuance would deny defense counsel the reasonable time necessary for effective preparation, taking into account the exercise of due diligence."

In January 2018, the government and all Henry's codefendants sought a third continuance, to May 2018. Although Henry again objected, the stipulation provided by the government and Henry's codefendants included Henry's counsel's statement that he had trials scheduled for January and March, and that he too needed the additional time "to confer with [Henry], conduct and complete an independent investigation of the case, conduct and complete additional legal research including for potential pre-trial motions, review the discovery and potential evidence in the case, and prepare for trial in the event that a pretrial resolution does not occur." The district court granted the continuance, finding that it served the ends of justice. The district court noted Henry's objection, but also pointed out that Henry's counsel had represented that a "failure to grant the continuance would deny him reasonable time necessary for effective preparation," and that he needed more time because he was "scheduled to begin multiple trials, including a trial set for the same date." (Docket No. 14 at 104–05).

Henry's three codefendants pleaded guilty in February, March, and April 2018. On April 30, 2018, Henry filed a motion to dismiss based on violations of the Speedy Trial Act, 18 U.S.C. § 3161. Henry argued that he had objected to each continuance and that "[t]he Government could have, and should have, brought defendant HENRY to trial within the time period mandated by § 3161(d)(2)." (Docket No. 26 at 319). The district court denied the motion, finding that Henry had not "state[d] or present[ed] any actual issue with the continuances or any contention that the continuances were invalid [under the Speedy Trial Act]." The district court found the delay excludable under the Speedy Trial Act.

At Henry's six-day trial in May 2018, Santos testified that Henry was the leader of the robbery crew. A jailhouse informant also testified against him and stated that Henry provided guns for robberies.

The parties submitted joint proposed jury instructions and a joint proposed verdict form. The judge read the instructions to the jury before closing arguments. The instruction on armed bank robbery included the requirement that the government prove that "[t]he defendant or a co-conspirator ... intentionally made a display of force that reasonably caused a victim to fear bodily harm by using a dangerous weapon or device," and that "[a] weapon or device is dangerous if it is something that creates a greater apprehension in the victim and increases the likelihood that police or bystanders would react using deadly force." The instructions explained that "the evidence would not support that the defendant possessed a firearm himself, brandished a firearm, carried it, or used it" during the robberies, but stated that Henry could be convicted under either an aiding-and-abetting or a Pinkerton theory of liability, setting out the elements for both.

The verdict form sections on the armed bank robbery counts did not refer to a firearm. The verdict form asked the jury whether it found Henry guilty of armed bank robbery, meaning one including "a display of force that reasonably caused the victim to fear bodily injury." The verdict form sections for the § 924(c) counts did ask the jury whether Henry "or a co-conspirator knowingly possess[ed] a firearm in furtherance of ... [or] use[d] or carr[ied] a firearm during and in relation to the crime charged," and if the firearm "was brandished."

The jury sent two notes during deliberations. One note asked whether the jury had to find both Pinkerton and aiding-and-abetting liability to convict Henry on the substantive counts. The district court responded that the instructions for Pinkerton and aiding-and-abetting liability referred to "separate legal principles" and that the jury could base its verdict "on either instruction, alone, or both." The second jury note asked if a finding of guilt on the conspiracy charge would necessarily extend to the armed bank robbery and firearms counts. The court responded that it would not, and while the jury "must decide the other Counts separately," conspiracy was "a means by which [the] defendant may be found guilty of the offenses charged in the other Counts."

Henry was convicted of 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). The sentence totaled 387 months: 60 months for conspiracy; concurrent terms of 135 months for each of the bank robbery counts; and a consecutive term of 84 months for each of the three § 924(c) counts.

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 court reviews the denial of the motion to dismiss on Speedy Trial Act grounds de novo and reviews findings of fact for clear error. United States v. King , 483 F.3d 969, 972 n.3 (9th Cir. 2007) (citations omitted). "A district court's finding of an ends of justice exception will be reversed only if there is clear error." United States v. Murillo , 288 F.3d 1126, 1133 (9th Cir. 2002) (quotation omitted). Henry's Pinkerton claim based on intervening law is reviewed de novo and his forfeited Pinkerton claims are reviewed for plain error. See United States v. McAdory , 935 F.3d 838, 842 (9th Cir. 2019) (claims based on intervening law); United States v. Perez , 116 F.3d 840, 845 (9th Cir. 1997) (forfeited claims). The sufficiency of the indictment is reviewed de novo . United States v. Omer , 395 F.3d 1087, 1088 (9th Cir. 2005).

III.

A.

The Speedy Trial Act requires a trial within 70 days of the defendant's initial appearance or indictment. Bloate v. United States , 559 U.S. 196, 203, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010). Section 3161(h) sets out delays...