United States v. Gary Henry, 984 F.3d 1343

Background

Gary Henry was indicted for a 2016 series of bank robberies and charged with conspiracy (18 U.S.C. § 371), multiple counts of bank robbery and armed bank robbery (18 U.S.C. § 2113(a), (d)), and three counts of brandishing a firearm (18 U.S.C. § 924(c)(1)(A)(ii)).
The indictment alleged Henry generally remained outside while co-defendants entered banks; some counts explicitly alleged a firearm was used and other counts alleged assault by using a dangerous weapon.
After Henry’s May 1, 2017 initial appearance, the district court granted three “ends-of-justice” continuances (totaling ~315 days) over Henry’s objections; two continuances were supported by written stipulations that included statements from Henry’s counsel about conflicting trials and need for preparation.
Henry moved to dismiss under the Speedy Trial Act; the district court denied the motion. Henry was tried in May 2018, convicted on conspiracy, multiple (armed) bank robbery counts, and three § 924(c) counts, and sentenced to 387 months.
On appeal Henry raised three principal issues: (1) Speedy Trial Act continuances were invalid; (2) § 924(c) convictions cannot rest on Pinkerton/aiding-and-abetting liability in light of Davis, Honeycutt, and Rosemond; and (3) the indictment and verdict form failed to allege or instruct the required mens rea/use-of-weapon elements.

Issues

Issue	U.S. Argument	Henry Argument	Held
1) Were the three ends-of-justice continuances invalid under the Speedy Trial Act?	The court made adequate on-the-record findings (incorporating written stipulations); delays were reasonable given case complexity and counsel conflicts.	The court failed to make adequate findings and the cumulative ~315-day delay was unreasonable; Speedy Trial Act dismissal required.	Not waived; findings were sufficient (hearing + written stipulations); delays reasonable under totality of circumstances; denial of dismissal affirmed.
2) Do Davis and Honeycutt bar using Pinkerton liability to support § 924(c) convictions, or does Rosemond require revisiting Pinkerton mens rea?	Pinkerton and accomplice/aiding-and-abetting liability have long sustained § 924(c) predicates; Davis does not undermine convictions because armed bank robbery is a § 924(c)(3)(A) crime of violence. Honeycutt (forfeiture) does not change conspiracy liability for convictions.	Davis and Honeycutt (and Rosemond) require vacatur because Pinkerton allows liability without the defendant’s knowing use/advance knowledge of a gun.	Davis/Honeycutt do not require vacatur; armed bank robbery is a crime of violence and convictions stand. Rosemond did not alter Ninth Circuit accomplice law; convictions are supported under either Pinkerton or aiding-and-abetting.
3) Did the indictment and verdict form fail to allege the required mens rea/use-of-weapon element for § 2113(d) and thus invalidate derivative § 924(c) counts?	The indictment’s allegation that defendants “assaulted” and “put in jeopardy” by using a dangerous weapon sufficiently alleges intentionality; the jury instructions correctly required the firearm/dangerous-weapon element even though the verdict form omitted explicit reference.	The indictment and verdict form omitted an allegation that Henry knowingly used or intended weapon use; omission is structural/error requiring reversal.	The word “assault” connotes intentional conduct and supplies the required mens rea; the verdict form’s omission was erroneous but harmless because correct jury instructions (agreed-to) required weapon use. Convictions affirmed.
4) Did Henry waive/forfeit these challenges by counsel’s stipulations and agreed instructions?	Many issues were forfeited but not waived; intervening Supreme Court authority allows de novo consideration of some claims.	Henry preserved Speedy Trial and preservation arguments; for other issues he relied on intervening law to avoid waiver.	Court treated several claims as forfeited (plain-error review) rather than waived; Speedy Trial claim was preserved. Ultimate rulings survived plain-error/de novo review as applicable.

Key Cases Cited

Pinkerton v. United States, 328 U.S. 640 (conspiracy defendant liable for co-conspirator’s substantive offenses if reasonably foreseeable and in furtherance of the conspiracy)
Rosemond v. United States, 572 U.S. 65 (aiding-and-abetting a § 924(c) offense requires advance knowledge that a firearm would be used)
Davis v. United States, 139 S. Ct. 2319 (invalidated § 924(c)(3)(B) residual clause as unconstitutionally vague)
Honeycutt v. United States, 137 S. Ct. 1626 (limits joint-and-several forfeiture under § 853; does not alter conspiracy criminal liability)
Bloate v. United States, 559 U.S. 196 (Speedy Trial Act 70-day rule and exclusions analysis)
Zedner v. United States, 547 U.S. 489 (ends-of-justice continuances require on-the-record findings)
Doggett v. United States, 505 U.S. 647 (post-accusation delay approach; ~one year is presumptively prejudicial)
United States v. Lam, 251 F.3d 852 (Ninth Circuit on attribution of delay and counsel stipulations)
United States v. Hall, 181 F.3d 1057 (Speedy Trial Act and prejudice where continuances used to secure cooperator’s testimony)