United States v. Henry

• Decision Date: 14 August 2015
• Docket Number: No. 14–1887.,14–1887.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael Jerome HENRY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

797 F.3d 371

UNITED STATES of America, Plaintiff–Appellee

v.Michael Jerome HENRY, Defendant–Appellant.

No. 14–1887.

United States Court of Appeals, Sixth Circuit.

Argued: Aug. 7, 2015.

Decided and Filed: Aug. 14, 2015.

ARGUED:Judy Bao, Federal Appellate Litigation Clinic, Ann Arbor, Michigan, Melissa M. Salinas, Office of the Federal Public Defender, Toledo, Ohio, for Appellant. Kenneth R. Chadwell, United States Attorney's Office, Detroit, Michigan, for Appellee. ON BRIEF:Judy Bao, Federal Appellate Litigation Clinic, Ann Arbor, Michigan, Melissa M. Salinas, Office of the Federal Public Defender, Toledo, Ohio, Dennis G. Terez, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Kenneth R. Chadwell, United States Attorney's Office, Detroit, Michigan, for Appellee.

Before: CLAY and SUTTON, Circuit Judges; WATSON, District Judge.^*

OPINION

SUTTON, Circuit Judge.

Three bank robberies, two confessions, one defendant, and an assortment of firearms charges make up this case. Michael Henry confessed to the first two robberies but disclaimed any involvement in the third. The jury found that Henry committed all three robberies. The jury also convicted Henry of using a firearm in each robbery—not because he carried a gun but because his associate did. Because the prosecution failed to prove everything needed to pin the associate's gun on Henry in the second and third robberies, see Rosemond v. United States, ––– U.S. ––––, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), we reverse those convictions. We affirm Henry's other convictions.

On the morning of September 22, 2009, Henry and an unknown compatriot arrived at a Chase Bank branch in Ypsilanti, Michigan. Their faces were covered, and they wore gloves. Clutching a BB gun, Henry jumped over the counter and demanded cash while his associate stood nearby with a real firearm. The deed was short and sweet: The two disappeared a minute later, taking $4,382 with them and shedding clothing and paraphernalia as they escaped.

A month and a half later, on the morning of November 6, 2009, Henry and an unknown associate robbed a Bank of America branch in Ann Arbor, Michigan. The two men covered their faces with bandanas, and Henry wore gloves. Henry once again jumped over the counter and demanded cash, while his compatriot held a weapon and stood near the door. This deed was shorter and sweeter: It took around 30 seconds and yielded $23,179. Once again, the two discarded various items of clothing as they fled.

On the morning of October 21, 2010, two men robbed the same Ann Arbor Bank of America branch. Both were masked and wore baggy clothing. Again, one robber jumped the counter, while the other stood a bit back and fired shots into the air. The counter-jumper wore gloves and a distinctive blue ski mask. This robbery took a bit more time (41 seconds) and yielded less money ($11,966). The robbers shed clothing and other items, including the blue ski mask, as they escaped.

Police eventually identified Henry as one of the robbers. He confessed to the first two robberies but not the third. A grand jury indicted him for committing all three robberies and for three firearms charges to boot. 18 U.S.C. § 2113 ; id. § 924(c). Notwithstanding his confession, Henry pled not guilty to all of the charges brought against him. The jury credited Henry's confession and then some: It convicted him of committing all three bank robberies and all three firearms offenses.

The judge sentenced Henry to more than 60 years in prison.

On appeal, Henry challenges the firearms conviction from the second robbery and the robbery and firearms convictions from the third robbery.

Henry's firearms conviction arising from the second robbery. The firearms statute applies to “any person who, during and in relation to any crime of violence ..., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c). The government charged Henry with aiding and abetting a violation of the statute because Henry's compatriot, not Henry, possessed the firearm during the robbery. Id. § 2(a).

Rosemond v. United States, ––– U.S. ––––, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), spells out the proof required for the intent element of aiding-and-abetting liability in this setting. “[I]ntent must go to the specific and entire crime charged”—“the full scope (predicate crime plus gun use) of § 924(c).” Id. at 1248. An accomplice thus must have “advance knowledge” that a firearm will be used in connection with the underlying crime because he must “cho[ose] ... to align himself with the illegal scheme in its entirety—including its use of a firearm.” Id. at 1249. Absent such advance knowledge, the necessary intent is missing.

Unfortunately for the government and for the district court, Rosemond was decided after Henry's trial. Unfortunately for Henry, his lawyer did not challenge the relevant jury instruction and thus did not ask the judge to include an advance-knowledge requirement. All of this means that plain-error review applies to the alleged error. Fed.R.Crim.P. 30(d), 52(b) ; United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ; see United States v. Houston, No. 14–5295, 792 F.3d 663, 666–67, 2015 WL 4114604, at *2 (6th Cir. July 9, 2015). Under that standard, we may correct the claimed mistake only if there is (1) an error (2) that is plain, (3) that “affected the [party's] substantial rights,” and (4) that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks omitted). Henry meets each condition.

First, the jury instruction was wrong. With respect to the intent requirement, the instruction required only that Henry “intend[ed] to help commit or to encourage the crime.” R. 84 at 46. Rosemond clarifies that intent must go to the entire crime —that Henry intended to aid in an armed bank robbery. 134 S.Ct. at 1248, 1251. The court never instructed the jury that Henry had to have advance knowledge that a (real) firearm would be used. Id. at 1249. As a result, the jury could have convicted Henry of violating § 924(c) merely because he “intend[ed] to help commit or to encourage” the predicate offense—the bank robbery—without ever finding that he had the requisite intent and advance knowledge related to his compatriot's firearm possession.

Rosemond invalidated an instruction similar to this one. That instruction allowed a conviction merely if “the defendant knew his cohort used a firearm in the [predicate] crime.” Rosemond , 134 S.Ct. at 1244. We recently held that a similar jury instruction—also without an advance-knowledge requirement—violated Rosemond. See United States v. Richardson, Nos. 13–2655 & 13–2656, 793 F.3d 612, 631, 2015 WL 4174809, at *14 (6th Cir. July 13, 2015).

Second, the error was plain. We gauge the obviousness of an error from “the time of appellate consideration,” not from the perspective of the time of trial. Henderson v. United States, ––– U.S. ––––, 133 S.Ct. 1121, 1130–31, 185 L.Ed.2d 85 (2013) (internal quotation mark omitted). As just shown, Rosemond seals the fate of this instruction—and clearly so.

Third, the error affected Henry's substantial rights. When the causation question “turns on the state of mind” of the defendant and there is evidence pointing both ways, it will often be the case that the error affects substantial rights. See United States v. Miller, 767 F.3d 585, 600 (6th Cir.2014) ; see also Houston, 792 F.3d at 668–69, 2015 WL 4114604, at *4. In his lengthy confession, Henry never said that he knew in advance that the second robbery would be an armed robbery. When shown the gun carried by his partner in that robbery, Henry indicated that he thought it was a real firearm. But that was after the fact. Henry never said he knew ahead of time that a real firearm would be used during the robbery. The jury could have accepted two theories of innocence on this record. It could have found that Henry thought only a toy gun—not considered a firearm under § 924(c), see 18 U.S.C. § 921(a)(3) —would be used in the robbery. (Recall that a BB gun, treated as a toy for these purposes, was used in addition to a real firearm during the first robbery.) Or it could have found that Henry thought his compatriot would not carry a toy gun or a real one in the robbery. Either finding would lead to an acquittal after Rosemond. That creates a “reasonable probability” that the flawed state-of-mind jury instruction led to a flawed conviction. United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010).

Fourth, the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. While this prong of the inquiry speaks in terms of discretionary standards, not hard-and-fast rules, we have no problem applying it here. This second firearms conviction added 25 years to Henry's sentence. Because Henry had one (unchallenged) conviction under § 924(c) for the first bank robbery, the mandatory minimum penalty of 25 years kicked in for this second firearms conviction. 18 U.S.C. § 924(c)(1)(C)(i). No such automatic sentence should exist for a crime that a reasonable jury could conclude Henry did not commit.

The government treats Henry's appeal on this score as challenging the sufficiency of the evidence, not the sufficiency of the jury instruction underRosemond. The confusion is not unwarranted as there is some overlap between the two points. All of the briefs and arguments considered, however, they fairly raise a challenge to the jury instruction under Rosemond.

Even under plain-error review of the jury instruction, the government adds, there is some evidence that Henry had advance knowledge that his colleague planned to use a firearm in committing the robbery. Maybe so. But the question is whether there is a “reasonable probability” that the jury would not have inferred...