United States v. Henry, No. 19-50080 (9th Cir. 2021)Annotate this Case
The Ninth Circuit affirmed defendant's conviction and sentence 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 section 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 defendant's assertion of his rights and pretrial motion to dismiss for Speedy Trial Act violations preserved the issue for appeal; the district court made sufficient findings to support its three ends-of-justice continuances under 18 U.S.C. 3161(h)(7); and the delay of 315 days was not prejudicial where each continuance was supported by detailed information and it was reasonable to allow the codefendants and defendant additional time to adequately prepare. The panel rejected defendant's claim that United States v. Davis, 139 S. Ct. 2319 (2019), and Honeycutt v. United States, 137 S. Ct. 1626 (2017), prohibit using section 2113(d) convictions based on a Pinkerton theory of liability as predicates for section 924(c) convictions. Although defendant did not waive this claim, the panel concluded that it need not decide which liability theory the jury used to convict, because defendant's convictions are valid under either.
The panel also rejected defendant's claim that his section 924(c) convictions should be vacated because the jury instructions and verdict form for the predicate section 2113(d) convictions only required the jury to find a conspiracy to commit generic bank robbery. The panel concluded that the district court instructions on aiding-and-abetting liability were not plainly erroneous, and defendant's conviction on either a Pinkerton or an aiding-and-abetting theory was amply supported. Finally, the panel concluded that defendant preserved the claim that the indictment failed to allege the necessary elements of armed bank robbery under section 2113(d). The panel explained that although the failure to include the "use of a weapon" element in the verdict form for armed robbery was incorrect, there is no basis for reversal where the district court correctly instructed the jury on the use of a dangerous weapon.