United States v. Gary Henry ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50080
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00862-RHW-1
GARY LAMAR HENRY, AKA OPINION
G-Thing, AKA G.,
Defendant-Appellant.
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. Rosenthal, * Chief District Judge.
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.
2 UNITED STATES V. HENRY
SUMMARY **
Criminal Law
The panel affirmed convictions for 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 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 18 U.S.C. § 3161(h)(7), and that the delays were not
unreasonable.
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
§ 924(c) counts, and that Rosemond v. United States, 572
U.S. (2014), requires revisiting Pinkerton liability.
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 21 U.S.C. § 853, does not apply
principles of conspiracy and thus does not require this court
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HENRY 3
to vacate the defendant’s § 924(c)’s convictions. The panel
also held that Davis, under which crimes of violence for
§ 924(c) are limited to those that have violence as an element
under § 924(c)(3)(A), does not conflict with or undermine
the cases upholding § 924(c) convictions based on Pinkerton
liability.
The panel reviewed for plain error the defendant’s
argument that his § 924(c) convictions should be vacated
because the jury instructions and verdict form for the
predicate § 2113(d) convictions only required the jury to find
a conspiracy to commit generic bank robbery and did not
require the jury to find the knowing use of a gun. Noting
that Rosemond did not alter Ninth Circuit precedents on
accomplice liability, the panel declined the defendant’s
request 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 § 924(c)
charges. The panel held that the district court’s instructions
on aiding-and-abetting liability were not plainly erroneous,
and that the defendant’s conviction on either a Pinkerton or
an aiding-and-abetting theory was amply supported.
The panel held that the defendant preserved the claim
that the indictment failed to allege the necessary elements of
armed bank robbery under § 2113(d). Noting that the word
“assault” used in the indictment denotes intentionality, the
panel wrote that the indictment charged the required mens
rea. The panel wrote that the failure to include the “use of a
weapon” element in the verdict form for armed robbery was
incorrect, but that there is not a basis for reversal, because
the district court correctly instructed the jury on the use of a
dangerous weapon.
4 UNITED STATES V. HENRY
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; §924(c) convictions
after United States v. Davis, 139 S. Ct. 2319 (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
UNITED STATES V. HENRY 5
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
6 UNITED STATES V. HENRY
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
UNITED STATES V. HENRY 7
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.”
8 UNITED STATES V. HENRY
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.
UNITED STATES V. HENRY 9
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 (2010). Section 3161(h)
sets out delays that are excluded from the 70-day calculation.
Id. Delays not in one of the enumerated categories may be
excluded to serve the “ends of justice.” 18 U.S.C.
§ 3161(h)(7)(A).
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
10 UNITED STATES V. HENRY
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.
Id.“Excludability under [§ 3161(h)(7)(A)] is not automatic;
the period of delay must be ‘reasonable.’” United States v.
Hall, 181 F.3d 1057, 1062 (9th Cir. 1999) (citing Henderson
v. United States, 476 U.S. 321, 326–27 (1986)). This court
“gauge[s] the reasonableness of delay on a case by case
basis, given the fact-bound nature of the inquiry.” United
States v. Lewis, 611 F.3d 1172, 1177 (9th Cir. 2010) (quoting
United States v. Messer, 197 F.3d 330, 337 (9th Cir. 1999)).
“[C]ourts look particularly to whether the delay was
necessary to achieve its purpose and to whether there was
any actual prejudice suffered by the appellant.” Hall, 181
F.3d at 1062 (quotation omitted). Other relevant
considerations include whether the length of the delay “was
so egregious as to call into question its reasonableness” and
“whether the defendant was free on bond during the delay.”
Messer, 197 F.3d at 338. Delay is prejudicial when its
purpose is to secure the cooperation of codefendants. Hall,
181 F.3d at 1063.
“[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).
UNITED STATES V. HENRY 11
Henry asserts Speedy Trial Act violations because (1) the
district court failed to make adequate findings when it
granted the continuances under § 3161(h)(7)(A); and (2) the
delays were unreasonable. The government responds that
Henry failed to preserve these errors because he did not raise
specific violations of the Speedy Trial Act before the district
court and because his own counsel twice made the same
request for more time as the codefendants. Henry replies
that he properly asserted violations of the Speedy Trial Act
before trial, his counsel did not “join” in the continuances,
and both Henry and his counsel objected to the first
continuance, which alone violated the Speedy Trial Act. The
government argues in the alternative that the district court
did not err in granting any or all of the three continuances.
B.
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
12 UNITED STATES V. HENRY
could have, and should have, brought defendant Henry to
trial within the time period mandated by § 3161(d)(2).” This
court has found that, in keeping with Congress’s intent “to
place a fair share of responsibility for ensuring that cases are
tried in a timely fashion on the district court and government
counsel,” district courts should consider Speedy Trial Act
motions as long as the defendant raises “his belief that the
STA ha[s] been violated,” even when a motion is made
orally or on the eve of trial. Alvarez-Perez, 629 F.3d at 1061(alteration in original) (citation and quotation omitted).
Henry’s assertion of his rights and pretrial motion to dismiss
for Speedy Trial Act violations preserved the issue for
appeal.
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). Section 3161(h)(7)(B) lists the
likelihood of a miscarriage of justice, the complexity of the
case, and the lack of opportunity for counsel to complete
adequate trial preparations using due diligence as factors a
judge must consider in determining whether to grant an
ends-of-justice continuance. 18 U.S.C. § 3161(h)(7)(B).
Section 3161(h)(7), which provides for ends-of-justice
continuances, “demands on-the-record findings and
specifies in some detail certain factors that a judge must
consider in making those findings.” Zedner v. United States,
547 U.S. 489, 509 (2006). If the district court does not make
the required findings, the delay resulting from the ends-of-
UNITED STATES V. HENRY 13
justice continuance is counted against the Speedy Trial
clock. Id. at 508.
Henry argues that the district court did not make the
required findings because it did not hold hearings before
granting the second and third continuances and it failed to
identify the reasons specifically applicable to Henry to delay
the trial. Section 3161(h)(7) requires the district court to
provide reasons “either orally or in writing.” 18 U.S.C.
§ 3161(h)(7)A). The statute does not require the court to
hold a live hearing on a motion for continuance. The issue
is whether the district court made sufficient findings to
support each of the three ends-of-justice continuances that it
granted.
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
14 UNITED STATES V. HENRY
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
UNITED STATES V. HENRY 15
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 a trial set for
the same date” as Henry’s. (Docket No. 14 at 104–05).
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 § 3161(h)([7])(B) and
determined that the continuance was merited based on the
applicable factor or factors” (alteration in original)
(quotation omitted)); United States v. Ramirez-Cortez, 213
F.3d 1149, 1157 n.9 (9th Cir. 2000) (“District courts may
fulfill their Speedy Trial Act responsibilities by adopting
stipulated factual findings which establish valid bases for
Speedy Trial Act continuances.”).
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
16 UNITED STATES V. HENRY
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. 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.
UNITED STATES V. HENRY 17
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, particularly
because the defense lawyers had a number of conflicting trial
commitments. It was reasonable to allow the codefendants
and Henry’s counsel additional time to adequately prepare
to try this complex bank robbery and conspiracy case.
Considering all the circumstances, “the addition of [the
codefendant’s] testimony, although prejudicial, did not
make the delay unreasonable.” Id.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 § 2113(d) convictions based on a
Pinkerton theory of liability as predicates for § 924(c)
convictions. He also argues that Pinkerton liability is
inapplicable to the armed bank robbery and § 924(c) counts
because the jury was instructed on conspiracy to commit
generic bank robbery, not armed, bank robbery, and because
the government failed to show the required mens rea.
Finally, Henry argues that the court should reevaluate
Pinkerton liability in light of the holding in Rosemond v.
United States, 572 U.S. 65 (2014), that aiding-and-abetting
liability for § 924(c) charges requires proof of the
defendant’s advance knowledge that a firearm would be
present.
18 UNITED STATES V. HENRY
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 § 924(c) convictions. “The Government
suffers no prejudice because of [Henry]’s failure to raise the
issue to the district court—at the time, under then-current
law, the answer would have been obvious and in the
Government’s favor.” McAdory, 935 F.3d at 842.
Henry has not waived his claim that the district court
misapplied Pinkerton liability to the § 924(c) counts under
Honeycutt, or that Rosemond requires revisiting Pinkerton
liability. “[W]aiver is different from forfeiture. Whereas
forfeiture is the failure to make the timely assertion of a
right, waiver is the intentional relinquishment or
abandonment of a known right.” United States v. Depue, 912
F.3d 1227, 1232 (9th Cir. 2019) (emphasis in original)
(quotations omitted). The Ninth Circuit has held that a
defendant forfeited, as opposed to waived, his right to appeal
an erroneous jury instruction that his attorney submitted at
trial when there was no evidence that the attorney knew the
correct instruction. United States v. Perez, 116 F.3d 840,
845 (9th Cir. 1997); see also Depue, 912 F.3d at 1233
(“Under Perez, a failure to object or an uninformed
representation to the court is not alone sufficient evidence of
waiver. Rather, there must be evidence that the defendant
was aware of the right he was relinquishing and relinquished
UNITED STATES V. HENRY 19
it anyway.”). The record does not reflect that Henry’s trial
counsel was aware of, or intentionally relinquished, the
claim that Pinkerton liability did not apply to the § 924(c)
counts because the object of the conspiracy was generic
rather than armed bank robbery. Because Henry forfeited,
rather than waived, these issues, we review the district
court’s decision for plain error. The court reviews Henry’s
argument that Pinkerton liability is inapplicable to his
§ 924(c) convictions de novo.
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 § 924(c) counts. See, e.g.,
United States v. Luong, 627 F.3d 1306, 1308 (9th Cir. 2010);
United States v. Allen, 425 F.3d 1231, 1234 (9th Cir. 2005);
United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1203
(9th Cir. 2000); United States v. Winslow, 962 F.2d 845, 853
n.2 (9th Cir. 1992). Henry argues that two recent Supreme
Court cases require a different result.
In Honeycutt, the Supreme Court held that joint and
several liability under 21 U.S.C. § 853, which requires
forfeiture by defendants convicted of certain drug crimes,
20 UNITED STATES V. HENRY
did not extend to defendants who never obtained tainted
property as a result of the crime. 137 S. Ct. at 1632. The
Supreme Court rejected the government’s contention that the
text of § 853 was based on background principles of
conspiracy liability, and instead based its analysis on the in
rem nature of forfeiture. Id. at 1634–35. The Court
explained that Ҥ 853 maintains traditional in rem
forfeiture’s focus on tainted property unless one of the
preconditions [for forfeiting substituted property] exists.”
Id. at 1635. The forfeiture provision did not apply when the
individual in question did not reap the profits of the crime.
Id. Honeycutt overturned a forfeiture judgment against a
coconspirator who did not receive the proceeds from selling
materials used to produce methamphetamine. Id. at 1630.
The Court did not review or vacate the defendant’s
underlying conviction for drug conspiracy. See id. at 1635.
Honeycutt does not apply principles of conspiracy liability
and does not require this court to vacate Henry’s § 924(c)
convictions.
Relying on Davis, Henry also argues that his § 924(c)
convictions are invalid because to convict him under
§ 2113(d), the jury likely found him guilty under a Pinkerton
theory, which did not require the jury to find that Henry
himself intentionally used, attempted to use, or threatened to
use physical force. Davis invalidated the § 924(c) residual
clause, § 924(c)(3)(B), as unconstitutionally vague, because
that provision extended § 924(c)’s long prison sentences to
certain offenses treated as “crimes of violence,” while
“provid[ing] no reliable way to determine which offenses
qualify as crimes of violence.” Davis, 139 S. Ct. at 2324.
Davis vacated a conviction based on a conspiracy to commit
Hobbs Act robbery only under the residual clause. Id. at
2336.
UNITED STATES V. HENRY 21
Under Davis, predicate crimes of violence for § 924(c)
charges are limited to those that have violence as an element
under § 924(c)(3)(A). Henry’s argument fails because
armed bank robbery, his predicate offense, does have
violence as an element. See Buford v. United States, 532
U.S. 59, 61 (2001) (armed bank robbery is a crime of
violence in federal court); United States v. Watson, 881 F.3d
782, 784 (9th Cir. 2018) (per curiam) (concluding that armed
bank robbery is a crime of violence under the elements
clause). Defendants found guilty of armed bank robbery
under either a Pinkerton or aiding-and-abetting theory are
treated as if they committed the offense as principals. See
18 U.S.C. § 2(a) (whoever “aids, abets, counsels,
commands, induces or procures [the] commission” of an
offense against the United States is “punishable as a
principal”); Ortiz-Magana v. Mukasey, 542 F.3d 653, 659
(9th Cir. 2008) (“there is no material distinction between an
aider and abettor and principals in any jurisdiction of the
United States including . . . federal courts”); Allen, 425 F.3d
at 1234 (“The Pinkerton rule holds a conspirator criminally
liable for the substantive offenses committed by a co-
conspirator when they are reasonably foreseeable and
committed in furtherance of the conspiracy.” (quotation
omitted)).
This court has repeatedly upheld § 924(c) convictions
based on accomplice liability. See, e.g., United States v.
Gadson, 763 F.3d 1189, 1214–18 (9th Cir. 2014); Allen, 425
F.3d at 1234; United States v. Johnson, 886 F.2d 1120, 1123
(9th Cir. 1989). We have continued to affirm convictions
that may have been based on a Pinkerton theory in
unpublished decisions after Davis. See, e.g., United States
v. Sleugh, 827 F. App’x 645, 648–49 (9th Cir. 2020); United
States v. Jordan, 821 F. App’x 792, 793 (9th Cir. 2020);
United States v. Khamnivong, 779 F. App’x 482, 483 (9th
22 UNITED STATES V. HENRY
Cir. 2019). Since Davis, the First, Third, Sixth, Tenth, and
Eleventh Circuits have all held that aiding and abetting
Hobbs Act robbery—the conviction that was vacated in
Davis when based on the residual clause— is a crime of
violence under § 924(c)(3)(A). See United States v.
Richardson, 948 F.3d 733, 742 (6th Cir. 2020) (collecting
cases). Davis does not conflict with or undermine the cases
upholding § 924(c) convictions based on Pinkerton liability.
C.
Henry also argues that his § 924(c) convictions should
be vacated because the jury instructions and verdict form for
the predicate § 2113(d) convictions only required the jury to
find a conspiracy to commit generic bank robbery. Henry
argues that because the jury did not have to find the knowing
use of a gun for the § 2113(d) convictions, the § 924(c)
convictions cannot stand.
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 § 924(c) charges. See 572 U.S. at 67. Rosemond did not
alter Ninth Circuit precedents on accomplice liability.
UNITED STATES V. HENRY 23
United States v. Nosal, 844 F.3d 1024, 1040 (9th Cir. 2016)
(“The instructions [in Rosemond] are perfectly consonant
with our line of cases” on aiding-and-abetting liability).
Rosemond raises some question about whether advance
knowledge should be required for Pinkerton liability as well
as for aiding-and-abetting liability, but it does not hold that.
The facts of this case, and our plain error review, provide a
poor vehicle to take that step.
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
1
The judge instructed the jury that, for aiding and abetting liability,
“[i]t is not enough that the defendant merely associated with the person
committing the crime or unknowingly or unintentionally did things that
were helpful to that person or was present at the scene of the crime. The
evidence must show beyond a reasonable doubt that the defendant acted
with the knowledge and intention of helping that person commit the
crime charged.” (Docket No. 14 at 51).
24 UNITED STATES V. HENRY
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 § 924(c)(3)(A). Henry’s § 924(c)
convictions are valid.
V.
Henry argues that the armed bank robbery counts failed
to allege mens rea, requiring reversal of those convictions
and of the derivative § 924(c) convictions. Henry also
argues that the verdict form was flawed because the
definition of “armed bank robbery” did not include the use
of a weapon. Instead, the verdict form defined armed bank
robbery as robbery with “a display of force that reasonably
caused the victim to fear bodily injury.”
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.
UNITED STATES V. HENRY 25
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
of specific intent for bank robbery itself.
“[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, 18 U.S.C.
§ 2113(d), requires more than “mere possession” of a
weapon. United States v. Odom, 329 F.3d 1032, 1035 (9th
Cir. 2003). While “not necessarily determining that
§ 2113(d) contains a mens rea requirement,” this court has
held that the statute requires that “the robber knowingly
made one or more victims at the scene of the robbery aware
that he had a gun, real or not.” United States v. McDuffy,
890 F.3d 796, 799 (9th Cir. 2018), cert. denied, 139 S. Ct.
26 UNITED STATES V. HENRY
845 (2019) (emphasis in original) (quoting Odom, 329 F.3d
at 1035). “Implied, necessary elements, not present in the
statutory language, must be included in an indictment.”
United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999)
(alteration omitted) (quoting United States v. Jackson, 72
F.3d 1370, 1380 (9th Cir. 1995)).
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
UNITED STATES V. HENRY 27
instructions seem to be agreed. Unless someone raises an
issue about them, I will give them as – as presented.”
(Docket No. 26 at 7). The parties then made minor changes
to the verdict form, but the relevant language remained the
same.
Henry now challenges the armed bank robbery counts in
the verdict form, which asked the jury to decide if “the
robbery [was] an armed robbery, meaning, defendant aided
and abetted or a co-conspirator intentionally made a display
of force that reasonably caused the victim to fear bodily
injury.” (Docket No. 14 at 3, 5–7, 9). Henry argues that
these questions on the verdict form, which do not include the
“use of a weapon” element for the armed bank robbery
counts, are plainly erroneous, requiring reversal of the
convictions.
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).
28 UNITED STATES V. HENRY
VI.
Henry’s convictions are AFFIRMED.