UNITED STATES OF AMERICA v. GARY LAMAR HENRY, AKA G-Thing, AKA G.
No. 19-50080
United States Court of Appeals for the Ninth Circuit
January 6, 2021
D.C. No. 2:16-cr-00862-RHW-1
FOR PUBLICATION
Appeal from the United States District Court for the Central District of California Robert H. Whaley, District Judge, Presiding
Argued and Submitted November 12, 2020 Pasadena, California
Filed January 6, 2021
Before: Morgan Christen and Paul J. Watford, Circuit Judges, and Lee H.
Opinion by Chief District Judge Rosenthal
* The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, sitting by designation.
SUMMARY**
Criminal Law
The panel affirmed convictions for one count of conspiracy to commit bank robbery under
The panel held that the defendant did not waive his Speedy Trial Act claim, that the district court made sufficient findings to support its three ends-of-justice continuances under
The panel held that the defendant did not waive his claims under United States v. Davis, 139 S. Ct. 2319 (2019), and Honeycutt v. United States, 137 S. Ct. 1626 (2017), that the district court misapplied Pinkerton liability to the
Because the defendant‘s convictions are valid under either a Pinkerton or aiding-and-abetting theory, the panel did not need to decide which theory the jury used to convict. The panel held that Honeycutt, which addressed joint and several liability under
The panel reviewed for plain error the defendant‘s argument that his
The panel held that the defendant preserved the claim that the indictment failed to allege the necessary elements of armed bank robbery under
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
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.
OPINION
ROSENTHAL, Chief District Judge:
This appeal raises three issues: continuances that allegedly violated the Speedy Trial Act;
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
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,
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 coconspirator 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
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
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,
The court reviews the denial of the motion to dismiss on Speedy Trial Act
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 (2010).
The district court must make certain findings to exclude time from the Speedy Trial clock based on the ends of justice:
No such period of delay . . . shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.
“Excludability under [
“[W]hen a defendant expressly asserts his speedy trial right before the trial court, he preserves that right even if his actions contradict his lawyer‘s behavior.” United States v. Tanh Huu Lam, 251 F.3d 852, 858 (9th Cir. 2001) (citing Hall, 181 F.3d 1057). The district court must consider a pretrial motion to dismiss under the Speedy Trial Act when it is “not frivolous, defense counsel is proceeding in good faith, and the facts supporting the motions are set forth.” United States v. Alvarez-Perez, 629 F.3d 1053, 1061 (9th Cir. 2010).
B.
Henry asserts Speedy Trial Act violations because (1) the district court failed to make adequate findings when it granted the continuances under
Henry did not waive his Speedy Trial Act claim. Both Henry and his counsel objected to the first continuance, which totaled 161 days. The second and third continuances present a closer question, but Henry also preserved his objection to those continuances, despite his counsel‘s inconsistent request for more time to prepare. In Lam, the Ninth Circuit found that trial delays were attributable to the defendant when the attorney had “repeatedly stipulated in open court” to the need for more time, and when the defendant did not move to dismiss the indictment prior to trial. Lam, 251 F.3d at 857, 858 n.9. Although Henry‘s counsel stated that he needed the additional time provided by the second and third continuances, Henry maintained his objection, and his counsel did not join in the motions for the continuances or the stipulated facts. Henry moved to dismiss the indictment after the third continuance and before trial. While Henry‘s motion did not provide detailed facts, he reiterated his objections and asserted that “[t]he Government could have, and should have, brought defendant Henry to trial within the time period mandated by
C.
“[T]he district court must satisfy two requirements whenever it grants an ends of justice continuance: (1) the continuance must be specifically limited in time; and (2) it must be justified [on the record] with reference to the facts as of the time the delay is ordered.” United States v. Lloyd, 125 F.3d 1263, 1268 (9th Cir. 1997) (quotation omitted) (alteration in original).
Henry argues that the district court did not make the required findings because it did not hold hearings before
The district court held a hearing on the first continuance. The court stated, on the record, several reasons for moving the original trial date. It was the first appearance for one of Henry‘s codefendants, who would not have time to prepare for the trial, then set only a few weeks away. The court asked counsel for the newly appearing codefendant if he could be ready for the trial when set, and he stated that he could not. Henry did not move to sever his trial from that of his codefendants. The court addressed Henry‘s objection directly, granting the continuance over the objection because the trial was of “a complicated conspiracy and bank robbery case.” The district court issued an order incorporating by reference the codefendants’ and the government‘s written stipulation setting out the reasons justifying the continuance, 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; and (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 October 2017, the government and Henry‘s codefendants sought a second continuance, to March 2018. Henry objected, but the joint written stipulation provided by the government and Henry‘s codefendants included Henry‘s counsel‘s statement that he needed the additional time to prepare to defend Henry at trial. The district court issued a written order granting the continuance. The order incorporated the joint stipulation by reference and stated that the facts in the stipulation supported a continuance. The court found 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.”
On January 19, 2018, the government and Henry‘s codefendants sought a third continuance, supported by a joint written stipulation, to May 2018. While Henry objected, the joint stipulation 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 judge incorporated the stipulation by reference and granted the continuance, finding that it served the ends of justice. The court noted Henry‘s objection, but also noted that Henry‘s counsel had stated that “failure to grant the continuance would deny him reasonable time necessary for effective preparation,” and that Henry‘s counsel was “scheduled to begin multiple trials, including
In each instance, the district court made findings on the record based on detailed stipulated facts provided in writing by the government and Henry‘s codefendants. Although not joined by Henry, the stipulations included statements by Henry‘s counsel. The government and the codefendants stipulated that conflicting trial dates and the need for more time to prepare for trial required the additional delay. The district court made adequate fact findings to justify each of the three ends-of-justice continuances. See United States v. McCarns, 900 F.3d 1141, 1145 (9th Cir. 2018), cert. denied, 139 S. Ct. 926 (2019) (“A district court‘s discussion of the statutory factors is adequate to support a continuance that serves the ends of justice when it is clear that the district court considered the factors in
D.
Henry argues that the delays were unreasonable. “[A]n exclusion from the Speedy Trial clock for one defendant applies to all codefendants. The attribution of delay to a codefendant, however, is limited by a reasonableness requirement.” Messer, 197 F.3d at 336 (internal citation omitted). Reasonableness is assessed on a case-by-case basis according to a totality-of-the-circumstances test. See Messer, 197 F.3d at 338 (in determining whether a delay was unreasonable, courts consider the length of the delay and whether the defendant was in pretrial detention).
The three continuances totaled 315 days, or approximately ten and a half months. This delay of close to a year is “presumptively prejudicial.” Doggett v. United States, 505 U.S. 647, 652 n.1 (1992) (“Depending on the nature of the charges, the lower courts have generally found postaccusation delay presumptively prejudicial at least as it approaches one year.” (quotation omitted)). But the Ninth Circuit has upheld similar continuances in complex cases, even when, as here, the defendant is in pretrial detention. See Lam, 251 F.3d at 856 (a delay of fourteen and a half months was reasonable in a complex case). In addition to the fact of the detention itself, a jailhouse informant ultimately testified against Henry at trial, and his codefendant Santos pleaded guilty and also testified against him at trial.
In Hall, the court found a delay of 293 days between arraignment and trial was unreasonable because, among other issues, “an underlying aim [of the continuances] was to eliminate the need for a joint trial by achieving a plea agreement” with the cooperating co-defendant. Hall, 181 F.3d at 1063 (emphasis in original). But in Lewis, a subsequent case, this court found no error when there was no evidence that the primary purpose of the continuance was to secure the testimony of a codefendant, and when only one of multiple codefendants testified against the objecting defendant. Lewis, 611 F.3d at 1178.
This case is closer to Lewis. There is no evidence that the primary purpose of the continuances was to secure Santos‘s testimony or to secure the testimony of a jailhouse informant. Instead, each continuance was supported by detailed information about the complexity of the case and the need for additional time to prepare a defense,
The district court‘s denial of the motion to dismiss the indictment is affirmed.
IV.
Henry argues that United States v. Davis, 139 S. Ct. 2319 (2019) and Honeycutt v. United States, 137 S. Ct. 1626 (2017) prohibit using
A.
Again, an initial issue is whether Henry preserved these claims for appeal. The government asserts waiver because Henry did not raise the claims before the district court and because he submitted and approved jury instructions that included Pinkerton liability. Henry asserts that because his claims are based on intervening Supreme Court authority, de novo review is appropriate.
Henry relies on an intervening Supreme Court case, Davis, to support his argument that Pinkerton liability is inapplicable to his
Henry has not waived his claim that the district court misapplied Pinkerton liability to the
B.
Henry argues, based on the two notes from the jury during deliberations, that his convictions were based on a Pinkerton rather than on an aiding-and-abetting theory of liability. We need not decide which liability theory the jury used to convict, because Henry‘s convictions are valid under either.
Pinkerton extends liability to a conspirator for a coconspirator‘s substantive offenses “when they are reasonably foreseeable and committed in furtherance of the conspiracy.” United States v. Long, 301 F.3d 1095, 1103 (9th Cir. 2002) (citing Pinkerton v. United States, 328 U.S. 640, 645-48 (1946)). We have consistently held that Pinkerton liability applies to
In Honeycutt, the Supreme Court held that joint and several liability under
Relying on Davis, Henry also argues that his
Under Davis, predicate crimes of violence for
This court has repeatedly upheld
C.
Henry also argues that his
Henry‘s argument is unpersuasive. We have sustained convictions based on Pinkerton liability when the government has proven, beyond a reasonable doubt, that: “(1) the substantive offense was committed in furtherance of the conspiracy; (2) the offense fell within the scope of the unlawful project; and (3) the offense could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement.” United States v. Fonseca-Caro, 114 F.3d 906, 908 (9th Cir. 1997) (quoting United States v. Douglass, 780 F.2d 1472, 1475–76 (9th Cir. 1986)).
Henry urges the court to revisit the mens rea required for Pinkerton liability in light of the Supreme Court‘s holding in Rosemond that “knowledge“—not just reasonable foreseeability—is required for aiding-and-abetting liability for
The district court instructions on aiding-and-abetting liability were not plainly erroneous.1 At trial, Henry‘s friend, part of the bank robbery crew, testified that Henry and another codefendant got in an argument in April 2016 because Henry knew that this codefendant had brandished a gun during a recent robbery. The friend testified that, after this argument, Henry continued to send this codefendant to rob banks, and that this codefendant insisted on using a gun to commit the robberies. The jailhouse informant testified that Henry provided guns for the robberies and decided that using guns in the robberies was “a good idea.” The record shows that Henry “chose[], with full knowledge, to participate in the illegal scheme.” Rosemond, 572 U.S. at 79. Use of a firearm was within the scope of the coconspirators’ unlawful scheme, and Henry had advance knowledge that his codefendant would use the gun. Henry‘s
conviction on either a Pinkerton or an aiding-and-abetting theory was amply supported.
Henry‘s convictions made him liable for armed bank robbery as a principal. Armed bank robbery is a crime-of-violence predicate for
V.
Henry argues that the armed bank robbery counts failed to allege mens rea, requiring reversal of those convictions and of the derivative
To support the armed bank robbery counts, the indictment 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‘s trial counsel moved to exclude an aiding-and-abetting theory from the jury instructions and verdict form on those counts, arguing that they did not allege that Henry “had the specific intent to facilitate the assault and plac[e] in jeopardy the life of an employee.” The district court rejected the argument, finding that aiding and abetting was a theory of liability, not a substantive offense, and that the government had sufficiently alleged the elements of armed bank robbery. Henry reasserts the argument here.
A.
The government contends that Henry has waived this argument on appeal because he moved to dismiss the indictment for failing to allege the specific intent necessary for aiding-and-abetting liability for the bank robbery counts. The pretrial motion did not raise the absence of allegations
“[I]t is claims that are deemed waived or forfeited, not arguments.” United States v. Walton, 881 F.3d 768, 771 (9th Cir. 2018) (quoting United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004)). In the district court, Henry argued that the indictment did not support aiding-and-abetting liability because the bank robbery counts did not allege that Henry “had the specific intent to facilitate the assault and plac[e] in jeopardy the life of an employee.” Henry preserved the claim that the indictment failed to allege the necessary elements for appeal even though he now advances a variation on his original argument. We review Henry‘s argument de novo. United States v. Studhorse, 883 F.3d 1198, 1203 n.3 (9th Cir.), cert. denied, 139 S. Ct. 127 (2018) (a variation of an argument based on a claim raised before the trial court is reviewed de novo).
B.
The armed bank robbery statute,
The issue is whether the armed robbery counts allege the required mens rea for armed bank robbery. Henry relies on Du Bo to argue that these counts fail to allege knowing or intentional use of a weapon. In Du Bo, the court found that an indictment alleging that the defendant “unlawfully” affected commerce through the “wrongful” use of force was fatally flawed because it did not allege the “knowingly or willingly” mens rea required for a Hobbs Act conviction. 186 F.3d at 1179.
A defendant acts knowingly when “the defendant is aware of the act and does not act through ignorance, mistake, or accident.” Manual of Model Criminal Jury Instructions (Ninth Circuit Jury Instructions Comm. 2010) (brackets and alternate wording omitted). Unlike the word “unlawfully” in the Du Bo indictment, the word “assault” used in Henry‘s indictment denotes intentionality. See United States v. Acosta-Sierra, 690 F.3d 1111, 1117 (9th Cir. 2012) (the two types of common-law assault are “a willful attempt to inflict injury upon the person of another” or a threat to inflict injury causing a reasonable apprehension of immediate bodily harm, sometimes called “intent-to-frighten“). The indictment charges the required mens rea.
C.
Before trial, Henry‘s counsel and the government submitted joint proposed jury instructions. At the final pretrial conference, the district court noted that “[t]he jury instructions seem to be agreed. Unless someone raises an issue about them, I will give them as presented.” (Docket No. 26 at 7). The parties then made minor changes to the verdict form, but the relevant language remained the same.
The district judge correctly instructed the jury on the use of a dangerous weapon for counts 3, 5, 6, 7, and 9. Henry‘s argument does not present a basis for reversal.
The failure to include the “use of a weapon” element in a verdict form for armed robbery was incorrect. But the jury instructions, which Henry agreed to, were correct. The district judge‘s jury instruction stated that armed robbery required the government to prove beyond a reasonable doubt 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.” (Docket No. 14 at 47). The judge instructed the jury 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.” (Docket No. 14 at 47-48).
VI.
Henry‘s convictions are AFFIRMED.