Monday, January 11, 2021

US v. Henry, No. 19-50080 (1-6-21) (Rosenthal w/Christen & Watford). This appeal arises from convictions for conspiracy to commit bank robbery, armed bank robberies, bank robberies, and three 924(c) counts. The 9th affirms against Speedy Trial challenges, Pinkerton liability, and defective jury and verdict forms.

In affirming, the 9th reviews the Speedy Trial claims. It recognizes that continuances stretching the case to almost a year is concerning, especially as the defendant had objected. However, the three continuances were for good cause: the court made the record as to ends of justice, the continuances were not for a disfavored purpose (forcing cooperation), and defense counsel stipulated.

In looking at the Pinkerton challenges, the 9th concluded that the 924 convictions were valid under foreseeability or aiding and abetting. The underlying offenses had elements of force. Further, 924 convictions can be sustained under accomplice liability. A question may be raised under Rosemond v. US, 572 US 65 (2014) whether advance knowledge is required for Pinkerton liability, but this is a poor vehicle to drive the point given the holding, facts of this case, and plain error review. The 9th concluded too that the verdict form should have required “use of a weapon” for the armed bank robbery counts, but the jury instructions were proper, and agreed to by counsel. There was an element of force.

A valiant appeal by Ben Coleman, CJA counsel.

The decision is here:


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