United States v. Michael Henry
797 F.3d 371
6th Cir.2015Background
- Michael Henry participated in three bank robberies (Sept 22, 2009; Nov 6, 2009; Oct 21, 2010). He confessed to the first two but denied involvement in the third.
- In each robbery Henry acted as the counter-jumper while an associate stood back with a weapon; Henry himself was unarmed in the second and third robberies.
- Henry was indicted for three robberies (18 U.S.C. § 2113) and three firearm offenses under 18 U.S.C. § 924(c); the § 924(c) counts were pursued on an aiding-and-abetting theory (18 U.S.C. § 2).
- At trial the jury convicted Henry of all robberies and all § 924(c) counts; the second § 924(c) conviction triggered a mandatory 25-year consecutive sentence under the repeat-offender provision.
- After trial, the Supreme Court decided Rosemond v. United States (2014), holding that an accomplice must have advance knowledge that a firearm will be used to be guilty under § 924(c) as an aider/abettor; Henry’s trial instruction did not include an advance-knowledge requirement.
- The Sixth Circuit applied plain-error review (because Henry did not object at trial) and reversed the § 924(c) convictions for the second and third robberies, but affirmed the robbery convictions (including the third robbery) and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (Henry) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the § 924(c) aiding-and-abetting jury instruction was legally sufficient for the Nov. 6, 2009 robbery (second robbery) | Instruction omitted Rosemond’s advance-knowledge requirement; conviction therefore invalid | Evidence showed Henry was not surprised and didn’t hesitate when the gun appeared; sufficient for aiding-and-abetting | Reversed § 924(c) conviction for the second robbery (plain error); Rosemond requires advance knowledge and the omission affected substantial rights |
| Sufficiency of evidence for conviction for the Oct. 21, 2010 robbery (third robbery) | Conviction unsupported; forensic evidence alone insufficient | DNA on the discarded blue ski mask, Henry’s statements, and eyewitness descriptions suffice | Affirmed robbery conviction for the third robbery (evidence viewed in light most favorable to prosecution is sufficient) |
| Admissibility/use of Rule 404(b) similar-crimes evidence to prove identity for the third robbery | Use of similarities was improper and prejudicial | Even without 404(b) evidence, independent evidence (DNA mask, statements) proves identity | Any error (if present) was harmless; conviction affirmed |
| Whether the § 924(c) aiding-and-abetting jury instruction was legally sufficient for the Oct. 21, 2010 robbery (third robbery) | Instruction lacked Rosemond advance-knowledge requirement; could have convicted without proof of advance knowledge | The rifle used might make advance knowledge more inferable | Reversed § 924(c) conviction for the third robbery (plain error); reasonable probability a properly instructed jury could have found no advance knowledge |
Key Cases Cited
- Rosemond v. United States, 134 S. Ct. 1240 (2014) (aiding-and-abetting liability under § 924(c) requires advance knowledge that a firearm will be used)
- United States v. Olano, 507 U.S. 725 (1993) (standards for plain-error appellate review)
- Puckett v. United States, 556 U.S. 129 (2009) (four-part plain-error test)
- United States v. Marcus, 560 U.S. 258 (2010) (reasonable-probability standard for prejudice under plain-error review)
- Neder v. United States, 527 U.S. 1 (1999) (harmless-error rule for trial errors)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
- Henderson v. United States, 133 S. Ct. 1121 (2013) (obviousness of error assessed at time of appellate consideration)
- United States v. Miller, 767 F.3d 585 (6th Cir. 2014) (state-of-mind errors often affect substantial rights)
- United States v. Collon, 426 F.2d 939 (6th Cir. 1970) (discusses limits of sole-forensic-evidence convictions)