United States v. Henderson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0359p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 08-3439

v.

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Defendant-Appellant. -

THOMAS A. HENDERSON,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 06-00039-001—Algenon L. Marbley, District Judge.

Argued: October 19, 2010

Decided and Filed: November 19, 2010

Before: MARTIN and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.*

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COUNSEL

ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati,

Ohio, for Appellant. Benjamin C. Glassman, ASSISTANT UNITED STATES

ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad,

FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant.

Benjamin C. Glassman, ASSISTANT UNITED STATES ATTORNEY, Cincinnati,

Ohio, for Appellee.

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OPINION

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McKEAGUE, Circuit Judge. Defendant-appellant Thomas A. Henderson was

convicted of bank robbery in 1981. Within three years after his release from prison, two

*

The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of

Michigan, sitting by designation.

1

No. 08-3439 United States v. Henderson Page 2

persons who had assisted law enforcement authorities in the bank robbery prosecution

were shot to death, in 1996 and 1998, respectively. Henderson was charged in 2006 with

killing two witnesses in retaliation for providing information and testifying against him

in the federal bank robbery prosecution, and with two unlawful-use-of-firearm offenses

in relation to the killings. The jury returned a guilty verdict on all counts. Henderson

was sentenced to two concurrent terms of life imprisonment on the murder counts and

two consecutive two-year terms on the firearm counts. He asserts nine claims of error

on appeal. Because none of the claims have merit, the district court’s judgment is

affirmed.

I. BACKGROUND

In June 1981, defendant Thomas Henderson was traveling with Ecolia (“Coy”)

Washington from Columbus, Ohio, to Florida to visit a mutual friend in the Dade County

Jail, Robert Earl Bass. After their car broke down in Macon, Georgia, they decided to

rob a bank, the Macon Bank & Trust Company. Henderson actually conducted the hold-

up, using a .38 caliber revolver and taking more than $160,000 from the bank.

Washington drove the getaway vehicle. They drove to Atlanta, where Washington

dropped Henderson off and returned to Columbus. Henderson got a ride back to

Columbus with other friends. In July 1981, Bass, concerned about the way Henderson

was treating his friend, Washington, called the FBI in Macon from jail and volunteered

information regarding the bank robbery. This information led to Henderson’s arrest.

Washington had already been arrested. She agreed to testify against Henderson in

exchange for immunity. In the ensuing federal trial, in the District of Georgia,

Washington testified against Henderson. Henderson was convicted of bank robbery in

October 1981 and sentenced to 25 years in prison.

Henderson was released from prison in April 1996 and returned to Columbus to

live in the home of his ex-wife, Frances Henderson. In the early morning hours of

November 4, 1996, Robert Bass was shot to death in his car outside his apartment in

Pickerington, a suburb of Columbus. Authorities were unable to solve the crime. At

about 5:30 a.m. on November 2, 1998, the body of Ecolia Washington was found in a

No. 08-3439 United States v. Henderson Page 3

burning van near her home in a Columbus neighborhood. Washington had suffered

multiple gunshot wounds, which had caused her death.

Not until 2006 did an FBI investigation yield enough evidence to secure an

indictment against Henderson. In February 2006, Henderson was charged with two

counts of retaliatory murder (for killing Robert Bass and Ecolia Washington in

retaliation for their participation in the bank robbery prosecution), in violation of 18

U.S.C. § 1513(a)(1)(B) and § 1513(a)(1)(A), respectively; and two counts of using a

firearm in relation to the killings, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

Henderson pleaded not guilty and a jury trial commenced in June 2007. Following

several days of trial and two days of deliberations, the jury returned its verdict: guilty

on all four counts. Appellant Henderson asserts nine claims of error, addressed below

in the order he has presented them.

II. ANALYSIS

A. Admission of Victims’ Statements

During trial, the district court allowed the government to introduce evidence of

statements previously made by the murder victims. First, through the testimony of

retired FBI Agent Fred C. Stofer, who had participated in the 1981 Macon bank robbery

investigation, the government was allowed to introduce exhibits bearing certain teletype

communications. These teletype communications, between law enforcement offices in

Macon, Miami and Columbus, relate to Robert Bass’s willingness to provide information

concerning the Macon bank robbery. Bass did not testify in the bank robbery trial, but

Agent Stofer was allowed to read the contents of one of the teletype communications

into the record:

[O]n this date Robert Earl Bass incarcerated at Dade County Jail under

the name Robert Earl, black male, date of birth, telephonically contacted

the Macon RA regarding the above matter. Bass stated that he was – or

that he has information regarding this case indicating specifically that he

can provide information on the weapon used not yet recovered, the

current location of the getaway car, a ‘73 Datsun not yet recovered,

No. 08-3439 United States v. Henderson Page 4

registered to Bass, and that he can convince Ecolia Johnson to cooperate

with Macon FBI office in this case.

R. 160-8, trial tr. vol. VII, p. 123; Gov’t Appx. p. 6, ex. 1K.1

Second, the government was allowed to read into the record a sworn statement

Ecolia Washington gave to police on August 27, 1981, before she testified against

Henderson in the bank robbery trial:

Ms. Wonsley, Question: How many times have you talked to him since

you all have been here at the Law Enforcement Center?

Answer: Twice on the telephone.

Question: What has he said to you?

Answer: Well, the first time he called me, well, you know, when Mr.

Child’s (sic) had told me about that you all would drop them two counts

on me if I could come up with those three items, I tried to get Tommy to

help me pay for my attorney some kind of way or to give me some more

money, and that’s why he called me, because he got my message that if

he didn’t give me no money, I was going to tell them.

“So he called me and he told me he had got my message and that

he wouldn’t advise me to do that. Knowing Tommy, you know, he told

me he didn’t believe that it was only my doing, it was me and Robert’s

doings and I just listened to him.

Question, Mr. Tosi: Did he threaten you in any direct way; say he was

going to burn down Woody’s house or ribs up there or anything like that?

Witness, answer: No. He just – he told me to think about it because he

would do something to me if I was to do something to him. And that was

it.

R. 160-12, trial tr. vol. XI, pp. 100-01.

Henderson contends these two statements are testimonial in nature and that their

admission, without opportunity for cross-examination, was in violation of his right of

confrontation. The district court admitted the statements under the “forfeiture by

wrongdoing” exception to the hearsay rule, Fed. R. Evid. 804(b)(6), finding by a

1

Ecolia Washington’s name was formerly “Ecolia Johnson.”

No. 08-3439 United States v. Henderson Page 5

preponderance of the evidence that Henderson was “responsible” for Bass’s and

Washington’s absence. R. 160-12, trial tr. vol. XI, pp. 2-7. Citing Giles v. California,

128 S.Ct. 2678 (2008), Henderson argues the forfeiture-by-wrongdoing doctrine does

not provide an exception to the Sixth Amendment’s right of confrontation.

Indeed, in Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the Supreme

Court held that the Confrontation Clause requires that a defendant have an opportunity

to confront the witnesses who give testimony against him, except in cases where an

exception to that right was recognized at the time of the nation’s founding. Unless such

an exception applies, a testimonial statement made by an absent witness is admissible

only if the defendant had a prior opportunity to cross-examine that witness. Id. at 68.

In Giles, the Court observed that the doctrine of forfeiture by wrongdoing was, at

common law, not intended to permit introduction of unconfronted hearsay statements

unless there was clear proof that the defendant engaged in conduct designed to prevent

the declarant’s testimony by procuring his or her unavailability. Giles, 128 S.Ct. at

2683-84. Because the doctrine had not been invoked—either at the time of the nation’s

founding or in American jurisprudence prior to 1985—to obtain admission of murder

victims’ unconfronted statements absent a showing of such an intent to preemptively

silence, the Giles Court refused to read the exception so broadly today.

Hence, because Bass and Washington could not have been killed, in 1996 and

1998, respectively, to prevent them from testifying against him in the bank robbery

prosecution in 1981, and because there is no evidence that Bass and Washington were

killed to prevent them from testifying against him in relation to any other offense,

Henderson argues the forfeiture-by-wrongdoing doctrine has no application in this case.

Indeed, there is no evidence that Henderson engaged in conduct designed to prevent

Bass and Washington from testifying against him. In the wake of the Giles ruling, the

district court’s reliance on the forfeiture-by-wrongdoing doctrine is seen to have been

misplaced. Yet, the government contends the error does not necessarily undermine the

validity of Henderson’s conviction because (a) Bass’s statement was not testimonial, and

(b) admission of Washington’s statement was harmless error.

No. 08-3439 United States v. Henderson Page 6

The court of appeals generally “reviews all evidentiary rulings—including

constitutional challenges to evidentiary rulings—under the abuse-of-discretion

standard.” United States v. Schreane, 331 F.3d 548, 564 (6th Cir. 2003). Evidentiary

rulings relating to violations of the Confrontation Clause, however, are reviewed de

novo. United States v. McGee, 529 F.3d 691, 697 (6th Cir. 2008). Further, violations

of the Confrontation Clause are subject to harmless error analysis. Id. Errors are

deemed harmless when “the reviewing court may confidently say, on the whole record,

that the constitutional error was harmless beyond a reasonable doubt.” Id. (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)). If the court finds that the error is

harmless, an otherwise valid conviction should not be set aside. Id.

1. Bass’s Statement

Even though the district court may have improperly relied on the forfeiture-by-

wrongdoing exception to admit Bass’s statement, and even though Henderson never had

a chance to cross-examine Bass, the government contends that admission of the

statement does not run afoul of the Sixth Amendment because Bass’s statement is not

testimonial hearsay. Indeed, Bass’s offer to provide information to the FBI was

introduced not to show that he provided truthful information regarding the location of

the weapon and vehicle used in the bank robbery, but to show that he made the offer to

assist authorities. Whether or not Bass actually possessed and provided the information

he claimed to have was irrelevant to the inquiry whether Henderson retaliated against

Bass for giving information to the authorities. However, the fact that Bass made such

an offer to the FBI tends to show that Bass cooperated with the government in the bank

robbery prosecution, thus bringing his murder within the purview of retaliation under

18 U.S.C. § 1513(a)(1)(B). Consequently, Bass’s offer to provide information to the FBI

was admissible over Henderson’s Confrontation Clause objection because it was not

testimonial hearsay offered to establish the truth of the matter asserted, but was

introduced only to establish the verbal act. See Crawford, 541 U.S. at 59 n.9 (“The

[Confrontation] Clause does not bar the use of testimonial statements for purposes other

than establishing the truth of the matter asserted.”); United States v. Childs, 539 F.3d

No. 08-3439 United States v. Henderson Page 7

552, 559 (6th Cir. 2008) (finding statement admissible non-hearsay as it was relevant to

show that the declaration was made, not the truth of the declaration); United States v.

Goosby, 523 F.3d 632, 638 (6th Cir. 2008) (finding no Confrontation Clause violation

where declarant did not make statements that would be characterized as testimonial

hearsay).

Furthermore, the fact that the district court incorrectly relied on the forfeiture-by-

wrongdoing doctrine in admitting Bass’s statement, as opposed to the non-hearsay

rationale, is of no consequence. “A decision below must be affirmed if correct for any

reason, including a reason not considered by the lower court.” Childs, 539 F.3d at 559

(quoting Russ’ Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th

Cir. 1985)). It follows that the district court’s decision to admit Bass’s statement into

evidence was not reversible error.

2. Washington’s Statement

The government acknowledges that, to the extent Washington’s proffer included

her account of what Henderson said to her, it should not have been admitted because it

included testimonial hearsay offered to show Henderson’s retaliatory animus. However,

the government maintains the error was harmless, because Washington’s statement that

Henderson said “he would do something to me if I was to do something to him” was not

central to the government’s case and was cumulative of other more direct evidence of

Henderson’s retaliatory motivation.

As indicated above, violations of the Confrontation Clause are subject to

harmless error analysis. McGee, 529 F.3d at 697. In this context, an error may be

deemed harmless if the record contains substantial evidence apart from the improperly

admitted evidence so that there is no reasonable probability that the admission made a

difference to the jury’s verdict. See Doan v. Carter, 548 F.3d 449, 459 (6th Cir. 2008);

United States v. Driver, 535 F.3d 424, 428 (6th Cir. 2008); McGee, 529 F.3d at 698-99.

Here, to be sure, there was sufficient evidence apart from Washington’s

statement establishing retaliatory animus and supporting the jury’s verdict. Specifically,

No. 08-3439 United States v. Henderson Page 8

the government points to a letter from Henderson to Washington while they were in jail

awaiting trial in the bank robbery case. The letter was admitted into evidence without

objection. It warned Washington not to cooperate with the police or “you’ll also be

shortening your own life considerably.” Gov’t App’x p. 4, ex. 1H. This letter represents

even stronger evidence of Henderson’s retaliatory animus. Its admission into evidence

rendered Washington’s inadmissible proffer statement cumulative.

In addition, multiple witnesses testified that Henderson admitted committing the

murder. Ronald Beauford is a step-brother of one of Henderson’s sons. He looked up

to Henderson as a father figure. He testified in trial that on the day Washington was

killed, Henderson told him to watch the eleven o’clock news. Seeing the report of

Washington’s death, he asked Henderson if that’s what Henderson wanted him to see.

Henderson responded, “Yeah, that’s how I handle business.” R. 160-10, trial tr. vol. IX,

p. 34. The next day Henderson explained to Beauford that he had to stalk Washington

to make sure he caught her at the right time; that she had “told on him” for robbing a

bank; that snitches deserved to die. Id. at 37-39.

An inmate known as General Smith, with whom Henderson was jailed in 2001,

testified that Henderson “[t]alked about how his codefendants actually told on him on

his bank robbery and he had killed them.” R. 160-10, trial tr. vol. IX, p. 111. A second

inmate, Michael Williams, testified about a similar admission made by Henderson years

later. Henderson explained to Williams that “real killers carry revolvers . . . because the

shells go with you.” Id. at 177. Later, FBI Special Agent Tim Creedon testified that

Henderson had purchased a .38 caliber revolver, a Smith & Wesson Model 10, in 1998

under an assumed name. Mark Hardy, a criminalist, had testified that the bullets

recovered from Washington’s body were .38 caliber and could have been fired by a

Smith & Wesson Model 10.

It thus appears that Washington’s improperly admitted proffer statement was not

central to the prosecution; it was merely cumulative of other evidence establishing

Henderson’s retaliatory motive for killing Washington. Considering the substantial

evidence establishing that Henderson murdered Washington because she cooperated

No. 08-3439 United States v. Henderson Page 9

with the prosecution in the bank robbery case, we hold “the constitutional error was

harmless beyond a reasonable doubt.” McGee, 529 F.3d at 697 (quoting Van Arsdall,

475 U.S. at 681).

In sum, because Bass’s statement was not introduced for the truth of the matter

asserted and was not, therefore, testimonial hearsay; and because the admission of

Washington’s statement constituted harmless error, the district court’s reliance on the

forfeiture-by-wrongdoing doctrine to admit both statements, though erroneous, does not

warrant appellate relief.

B. Ineffective Assistance of Counsel

Henderson contends his trial counsel, Diane Menashe and David Stebbins, were

ineffective in two respects. First, he contends the cross-examination of Agent Tim

Creedon was mishandled in such a way as to open the door to damaging testimony by

Christie Collins, a witness whose credibility the government conceded was suspect and

who would not otherwise have testified. Second, counsel are said to have been

ineffective for failing to object to the admission of tape-recorded telephone

conversations between Henderson, while incarcerated, and others.

To demonstrate that counsel’s performance was constitutionally deficient,

Henderson must show that it “fell below an objective standard of reasonableness” and

that it prejudiced the defense. Strickland v. Washington, 466 U.S. 688, 687-88 (1984).

The reviewing court’s scrutiny of counsel’s performance is “highly deferential;” the

defendant must overcome the presumption that the challenged action might be

considered sound strategy. Id. at 689. To show prejudice, Henderson must show “there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

Ineffective assistance claims are ordinarily deferred until post-conviction

proceedings under 28 U.S.C. § 2255, when an evidentiary hearing can be held to

ascertain whether counsel’s conduct was motivated by sound strategy. United States v.

No. 08-3439 United States v. Henderson Page 10

Watkins, 509 F.3d 277, 283 (6th Cir. 2007). However, if the record is adequately

developed, an ineffective assistance claim may be considered on direct review. Id.

1. Collins’ Testimony

Christie Collins was living with Robert Bass on the night he was killed. Hearing

gunshots, she had ventured out of their apartment to find Bass dead in his car. Prior to

trial, the government had advised the court and defense counsel that it did not intend to

call Collins because of uncertainty about her credibility. However, Assistant U.S.

Attorney David Devillers changed his mind after defense counsel’s cross-examination

of Agent Creedon created the impression that money had been taken from Bass after he

was killed, suggesting the motive for the murder may have been robbery rather than

retaliation. Devillers was obliged to call Collins to explain that she had taken the money

out of the apartment in a suitcase. She also testified, however, that she had seen the

killer at Bass’s car that night, and she eventually came to identify Henderson as the

perpetrator.

Henderson argues that Collins is the only eye-witness of either homicide and

that, but for counsel’s deficient cross-examination of Agent Creedon, Collins would

never have been called. Review of Collins’ testimony reveals that she was indeed a

colorful witness; a confessed drug trafficker who spent some fourteen of the previous

twenty-one years in prison. Her testimony was erratic and of questionable reliability.

She initially identified a different suspect as the killer, and changed her mind only after

seeing Henderson at a drug house some time later. She was cross-examined at some

length by defense counsel—to marginal effect.

Yet, without a more fully developed record, we are in no position to fairly

evaluate Henderson’s threefold assertion that defense counsel’s cross-examination of

Agent Creedon was so inept as to be objectively unreasonable, that Collins would not

otherwise have been called, and that there is a reasonable probability that her testimony

affected the jury’s verdict. At this stage, based on the present record, we could only

conclude that Henderson has failed to carry his burden of showing ineffective assistance

of counsel. Instead of denying the claim on the merits, however, we deny it as

No. 08-3439 United States v. Henderson Page 11

premature, without prejudice to his right to seek collateral relief under § 2255 based on

a more fully developed record.

2. Prison Telephone Recordings

During trial, the government was allowed to play recordings of telephone

conversations between Henderson, while imprisoned, and others. Henderson contends

the jury was permitted to hear not only conversations regarding attempts by him and his

family to influence witnesses in the case, but also de facto testimony by him on his

feelings about the victims’ deaths. Henderson now contends counsel’s failure to object

to such hearsay evidence constituted ineffective assistance.

We disagree. Counsel’s failure to object was not deficient because any hearsay

objection would have been overruled. The statements made by Henderson during the

conversations were non-hearsay admissions under Federal Rule of Evidence

801(d)(2)(A), and the statements made by others were not admitted to show the truth of

the matters asserted, but to provide context for Henderson’s admissions. See United

States v. Jacob, 377 F.3d 573, 581 (6th Cir. 2004); United States v. Davis, 170 F.3d 617,

627 (6th Cir. 1999). Inasmuch as no additional factual development would alter the

conclusion that this ineffective assistance of counsel claim is meritless, we conclude that

it is ripe for disposition and hereby deny it on its merits.

C. Allowance of Collins’ Testimony

Henderson contends the district court, having been advised pre-trial of the

government’s unwillingness to vouch for Christie Collins’ credibility, and having denied

the government’s request to call her as a witness under Federal Rule of Evidence 614,

should have exercised its discretion sua sponte to exclude her testimony. To allow the

testimony of an “incompetent” witness is said to have been an abuse of discretion.

Alternatively, Henderson complains that the government’s decision to call Collins

despite misgivings about her credibility constituted subornation of perjury and denied

him due process.

No. 08-3439 United States v. Henderson Page 12

Despite his protestations, Henderson has not even so much as identified any part

of Collins’ testimony that substantiates the charge that she was not competent to testify

or testified falsely. Yes, the Assistant U.S. Attorney was forthrightly reticent to call

Collins, but when he felt constrained to do so, Henderson did not object. The issue is

raised for the first time in this appeal. Hence, the claim that the court abused its

discretion or that the government engaged in prosecutorial misconduct is subject only

to plain error review. See Fed. R. Crim. P. 52(b). In other words, to win relief on

appeal, Henderson must establish that “(1) an error occurred; (2) the error was obvious

or clear; (3) the error affected his substantial rights; and (4) the error seriously affected

the fairness, integrity, or public reputation of the judicial proceedings.” United States v.

Mayberry, 540 F.3d 506, 512 (6th Cir. 2008) (quoting United States v. Cline, 362 F.3d

343, 348 (6th Cir. 2004)). Henderson is hard-pressed to meet any of these four

requirements without identifying how Collins manifested incompetence or testified

falsely.

Granted, Collins’ testimony was erratic and of questionable reliability, but this

characterization could be used to describe the testimony of a sizable portion of witnesses

who commonly testify in criminal cases. Significantly, the transcript offers no grounds

to question Collins’ rationality while testifying, or whether she was under the influence

of any drug or medication, or whether she understood her obligation to tell the truth.

Nor is Collins’ testimony manifestly false in any way. She appears to have been a

cooperative witness. It was for the jury to assess her credibility and determine the

weight her testimony was entitled to.

In sum, Henderson has not carried his burden of demonstrating that the district

court committed plain error or that the prosecution engaged in any misconduct that

affected his substantial rights and the fairness of the trial.

No. 08-3439 United States v. Henderson Page 13

D. Rule 404(b) “Other Bad Acts” Evidence

Next, Henderson complains that the trial court erroneously allowed the

government to introduce evidence of other bad acts he had committed under Federal

Rule of Evidence 404(b) without identifying the admissible purpose and without giving

contemporaneous limiting instructions to minimize any unfair prejudicial effect.2

Henderson identifies three objectionable items of evidence. The government contends

there was no error because each item of evidence related not to other bad acts, but to the

crimes charged. Again, because no objection was made at trial, plain error review

applies.

1. Beauford’s Testimony

Henderson points first to the testimony of Ronald Beauford. The day after

Washington was murdered—that is, the day after Beauford had seen the eleven o’clock

news report of the discovery of Washington’s body and had heard Henderson explain,

“that’s how I handle business”—Henderson called Beauford and three others together

at the All-in-One Store run by Henderson. Henderson ensured that Beauford and at least

one of the others were armed with guns. He told them that Washington’s nephew or

cousin, Jimmy Freeman, thought Henderson had killed Washington and was coming to

the store for a meeting. Henderson told them, “if anything happens, don’t let him

[Freeman] get out alive.” R. 160-10, trial tr. vol. IX, p. 35. After Freeman came and

went, without incident, Henderson explained to Beauford that he had to stalk

Washington and that she got “what she deserved . . . because the bitch was a rat.” Id. at

36-38. Henderson later told Beauford that Washington “had told on him and that’s why

he was in jail . . . for robbing a bank or something.” Id. at 38.

2

Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith. It may, however, be admissible

for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident, provided that upon request by

the accused, the prosecution in a criminal case shall provide reasonable notice in

advance of trial, or during trial if the court excuses pretrial notice on good cause shown,

of the general nature of any such evidence it intends to introduce at trial.

No. 08-3439 United States v. Henderson Page 14

Beauford’s testimony was legitimately offered for an admissible purpose:

because it tended to prove that Henderson was the killer and what his motive was. The

Freeman encounter was among the events during which Henderson admitted to Beauford

that he killed Washington and why. Where the challenged evidence is “intrinsic” to, or

“inextricably intertwined” with evidence of, the crime charged, Rule 404(b) is not

applicable. See United States v. Gonzales, 501 F.3d 630, 638-39 (6th Cir. 2007); United

States v. Everett, 278 F.3d 986, 992 (6th Cir. 2001). In this argument, however,

Henderson attempts to tease-out and focus on one aspect of the Freeman encounter: the

evidence that he, a convicted felon, possessed guns and instructed others to assault and

even kill Freeman, i.e., other bad acts, the revelation of which may have unfairly

prejudiced him in the eyes of the jury.

Clearly, if a contemporaneous objection had been made, a limiting instruction

could have been requested and given, advising the jury that Henderson had not been

charged with any offenses growing out of the Freeman encounter and that they should

consider the evidence only for its tendency to prove the elements of the charges

stemming from Washington’s death. But no objection was made, and the court can

hardly be deemed to have had a sua sponte duty to specially call the jury’s attention to

these “other bad acts.” Moreover, the notion that Henderson was so unfairly prejudiced

by this evidence as to adversely affect his substantial rights and impugn the fairness and

integrity of the trial is preposterous. The notion that the jury was distracted by or placed

any significance on the marginal details of the Freeman encounter, instead of focusing

on the intended and legitimate significance of Beauford’s story—i.e., Henderson’s

admission of retaliatory murder—is simply implausible. There was no plain error in the

admission of Beauford’s testimony.

2. Humphrey’s Testimony

Stanley Humphrey was one of the friends who brought Henderson back to

Columbus from Atlanta after the 1981 Macon bank robbery. Humphrey testified for the

prosecution at trial. He testified that when they returned to Columbus, Henderson

offered him Coy Washington’s “cut from the robbery . . . but I needed to make her

No. 08-3439 United States v. Henderson Page 15

disappear.” R. 160-9, trial tr. vol VIII, p. 177. Humphrey explained, “[Henderson]

wanted me to kill Coy and get rid of the body . . . because he knew the FBI was going

to be questioning her.” Id. at 177-79. Humphrey was unsure about carrying out

Henderson’s plan, but his involvement became a moot question when Humphrey was

arrested shortly thereafter and eventually imprisoned for a different murder. Henderson

now contends this evidence should not have been admitted.

Again, evidence of Henderson’s desire to have Washington killed was relevant

to prove his retaliatory motive. Humphrey’s testimony about Henderson’s offer to pay

him for killing her was intrinsic to the crime charged and was not, therefore, Rule 404(b)

evidence. See Gonzales, 501 F.3d at 638-39; Everett, 278 F.3d at 992. The district court

did not plainly err in admitting Humphrey’s testimony.

3. McClendon’s Testimony

Ace McClendon was a heroin addict who helped lure Bobby Bass out of his

house in November 1996 (by pretending to want to buy drugs from him) so that

Henderson could kill him. McClendon testified that a couple days after the murder plot

had been successfully completed, Henderson brought him some drugs that he did not

have to pay for. Henderson did not object at trial, but now contends this was Rule

404(b) evidence that was not admitted for an admissible purpose and was not

accompanied by a limiting instruction. Henderson contends this evidence of his

involvement in drug trafficking may have unfairly prejudiced him in the eyes of the jury.

Clearly, this evidence was intrinsic to the story of Bass’s murder, tending to show that

it was Henderson, with McClendon’s assistance, who carried out the actual killing. The

evidence was not Rule 404(b) evidence and its admission was not improper.

E. Failure to Substitute Counsel

Henderson contends the trial court erred by failing to order substitution of new

defense counsel after learning of reason to believe there had been a breakdown in the

attorney-client relationship between Diane Menashe and himself. He contends he was

denied his Sixth Amendment right to conflict-free counsel.

No. 08-3439 United States v. Henderson Page 16

The claim grows out of an incident that occurred during jury selection voir dire.

Henderson took exception to the way in which Menashe was asking certain voir dire

questions. He asked her to rephrase her questions. Then, as he “was wearing a

restraining device that would, in the event of a problem, shock him, [he] joked with

counsel that if she did not desist, he would hug her so that when the officer activated the

restraining device, it would shock her as well.” Appellant’s brief p. 28. Henderson

contends Menashe did not see the humor in this, “took it as a threat, and refused to

communicate with the Appellant.” Id. When the court learned there was a problem, it

made inquiry in a separate proceeding (outside the presence of the government), but

Henderson now contends the inquiry was inadequate. He argues the court failed to

ensure that counsel could continue to effectively represent him.

The transcript of the separate proceeding conclusively defeats Henderson’s

challenge to the adequacy of the district court’s inquiry. When the court asked Menashe

about the extent to which the misunderstanding would interfere with her ability to

zealously represent Henderson, she responded unequivocally, “None whatsoever, Your

Honor.” Separate record tr. p. 5. For his part, Henderson expressed his satisfaction with

Menashe’s representation, saying she “has been doing an outstanding job to this point.”

Id. at 16. Reassured that both attorney and client understood their roles in the

relationship, the court told them the issue would be revisited if communication became

a problem during the trial. Id. at 14. Neither Henderson nor Menashe requested

substitution of counsel and it appears no further question regarding the integrity of the

attorney-client relationship arose during the remainder of the trial.

In United States v. Vasquez, 560 F.3d 461 (6th Cir. 2009), the court observed that

a defendant who wants substitution of appointed counsel must “bring any serious

dissatisfaction with counsel to the attention of the district court.” Id. at 466 (quoting

Benitez v. United States, 521 F.3d 625, 632 (6th Cir. 2008)). “Once a defendant

expresses his dissatisfaction with counsel, the district court is obliged to conduct an

inquiry into the defendant’s complaint to determine whether there is good cause for

substitution of counsel.” Id. The court considers the following factors:

No. 08-3439 United States v. Henderson Page 17

When reviewing a district court’s denial of a motion to withdraw or

substitute counsel, we generally must consider: (1) the timeliness of the

motion, (2) the adequacy of the court’s inquiry into the matter, (3) the

extent of the conflict between the attorney and client and whether it was

so great that it resulted in a total lack of communication preventing an

adequate defense, and (4) the balancing of these factors with the public’s

interest in the prompt and efficient administration of justice.

Id. (quoting United States v. Mack, 258 F.3d 548, 556 (6th Cir. 2001).

Review of the separate hearing record clearly demonstrates that the district court

did not abuse its discretion in its handling of the misunderstanding between Henderson

and his counsel. Considering that Henderson never requested substitution of counsel,

did not assert that there was a breakdown in the attorney-client relationship, and

expressed satisfaction, not dissatisfaction, with counsel’s performance, the district

court’s handling of the matter was entirely appropriate.

F. Sufficiency of the Evidence

Henderson contends the government failed to carry its burden of proving that he

killed either Bass or Washington or that he did so in retaliation for their participation in

the bank robbery prosecution. Henderson cites, in particular, the lack of physical

evidence and eye-witness testimony linking him to either murder, and the lack of

competent evidence that he knew Bass cooperated with the FBI in the bank robbery

prosecution.

To prevail on this argument, Henderson must bear a heavy burden. United States

v. Graham, — F.3d — , 2010 WL 3632149, at *2 (6th Cir. Sept. 21, 2010). In reviewing

the insufficiency of the evidence challenge, the court “examine[s] the evidence in the

light most favorable to the government and draw[s] all inferences in the government’s

favor in order to determine whether any rational trier of fact could have found the

elements of the offense beyond a reasonable doubt.” United States v. Torres-Ramos, 536

F.3d 542, 556 (6th Cir. 2008). “This analysis does not require the removal of every

hypothesis except that of guilt.” Id.

No. 08-3439 United States v. Henderson Page 18

Henderson’s argument about the dearth of physical evidence and eye-witness

testimony is not unfounded. But physical evidence is not required to sustain a

conviction. Graham, 2010 WL 3632149, at *2. Further, the fact that the testimony of

various accomplices is not corroborated by eye-witness testimony is of little

consequence. “[I]t is well-settled that uncorroborated testimony of an accomplice may

support a conviction in federal court.” Id. (quoting United States v. Spearman, 186 F.3d

743, 746 (6th Cir. 1999)). To conclude that no rational trier of fact, viewing this record

in the light most favorable to the government, could find Henderson guilty of the

charged offenses, the court would have to ignore abundant testimony from Henderson’s

friends, relatives and acquaintances (including Beauford, Williams, Smith, McClendon,

and Humphrey, discussed above) about statements from his own mouth either admitting

or pointing strongly toward guilt. Presumably, Henderson would have the court dismiss

this testimony as lacking in credibility. But for the court of appeals to assess witness

credibility would be to impermissibly “invade the province of the jury as the sole finder

of fact in a jury trial.” Id. (quoting United States v. Bearden, 274 F.3d 1031, 1039 (6th

Cir. 2001)). Henderson’s implicit attack on witness credibility is simply a challenge to

“the quality of the government’s evidence and not the sufficiency of the evidence.” Id.

(quoting United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006)).

Henderson correctly points out that there was no direct evidence that he actually

knew that Bass cooperated with the FBI in the bank robbery prosecution. Absent

evidence of actual knowledge of cooperation, he asks, how can he be found guilty of

retaliating for the cooperation? Yet, “[i]n a case of witness retaliation, the government

need not adduce direct evidence of Appellant’s knowledge of a witness’s informant

status in order for the jury to infer his intent to retaliate.” United States v. Ashley, 606

F.3d 135, 140 (4th Cir. 2010) (quoting United States v. Brown, 937 F.2d 32, 36 (2d Cir.

1991)). This is so because the government is not required to produce a “smoking gun”

that reveals the contents of defendant’s mind. Id. at 140-41. “Though a jury may not

convict based on rank speculation, it is entitled to deduce and infer.” Id. at 140. Here,

the testimony of McClendon, Beauford, Smith and Williams concerning statements made

by Henderson relating to his desire to kill the “snitches” who “told on him” for the bank

No. 08-3439 United States v. Henderson Page 19

robbery was sufficient to justify the reasonable inference that Henderson killed Bass in

retaliation for cooperating—even if the cooperation was only suspected and not actually

known by Henderson. In sum, the sufficiency of the evidence challenge is meritless.

The jury’s verdict is not irrational and must be upheld.

G. Jury Instructions

Henderson contends the district court erred when it refused to give a requested

jury instruction. He had requested an instruction requiring the jury to explicitly find that

he knew of Bass’s cooperation with the FBI in the bank robbery prosecution in order to

find him guilty of retaliatory murder under 18 U.S.C. § 1513(a)(1)(B). The court

reviews a district court’s decision not to give a requested instruction for abuse of

discretion. United States v. Triana, 468 F.3d 308, 315 (6th Cir. 2006). An abuse of

discretion may be found if “(1) the proposed instruction is substantially correct; (2) the

proposed instruction is not substantially covered by other delivered charges; and (3) the

failure to give the instruction impaired the defendant’s theory of the case.” Id.

The district court concluded that the substance of Henderson’s proposed

instruction was substantially covered by the instructions given. The instructions given

by the court required proof that Henderson intentionally killed Bass in retaliation for

providing information to the FBI. The court thus concluded that the purpose for the

“knowledge” instruction urged by Henderson was already satisfied by the finding-of-

intent-to-retaliate requirement. As the court stated:

I think that there would be some redundancy. If he intended to

kill someone because they retaliated, that sort of presumes that he knew

or at least believed that that person had provided some information;

otherwise, it would not be a retaliation.

So, once there is the intent, I think that that subsumes the

knowingly elemental issue.

R. 160, trial tr. vol. XII at 19.

The district court’s identification of a potential redundancy finds support in the

fact that the code language does not contain an explicit knowledge-of-cooperation

No. 08-3439 United States v. Henderson Page 20

element. See 18 U.S.C. § 1513(a)(1)(B) (“Whoever kills or attempts to kill another

person with intent to retaliate against any person for providing to a law enforcement

officer any information relating to the commission or possible commission of a Federal

offense . . . shall be punished as provided in paragraph (2).”). Consistent with this

language, the elements of the offense have been defined without inclusion of such an

explicit knowledge-of-cooperation requirement:

The elements of an offense under18 U.S.C. § 1513 are (1) knowing

engagement in conduct (2) either causing, or threatening to cause, bodily

injury to another person (3) with the intent to retaliate for, inter alia, the

attendance or testimony of a witness at an official proceeding.

United States v. Cofield, 11 F.3d 413, 419 (4th Cir. 1993); see also United States v.

Wardell, 591 F.3d 1279, 1291 (10th Cir. 2009) (same). The district court’s ruling also

finds support in the case law discussed above, addressing this question in the context of

a sufficiency-of-the-evidence challenge. See, e.g., Ashley, 606 F.3d at 140 (“[I]n a case

of witness retaliation, the government need not adduce direct evidence of appellant’s

knowledge of a witness’s informant status in order for the jury to infer his intent to

retaliate.”)

Moreover, Henderson’s theory of the case was not impaired by the district

court’s refusal to include the requested instruction. The denial of the instruction did not

foreclose Henderson from arguing that retaliation had not been proved. Henderson did

in fact make such an argument. Because Henderson’s proposed instruction was

substantially covered by the instructions given, and its denial did not impair Henderson’s

theory of the case, the district court did not abuse its discretion by refusing to give the

requested instruction.

H. Defendant’s Presence at Critical Stage

A half-hour after the jury had been excused from the courtroom to begin their

deliberations at 2:04 p.m. on Friday June 22, 2007, the jury indicated that they wished

to adjourn for the day and begin deliberations the following Monday. The district judge

addressed this request with counsel on the record in the courtroom in the absence of

No. 08-3439 United States v. Henderson Page 21

defendant Henderson, who was held in the custody of the Marshals. Both defense

counsel and the Assistant U.S. Attorney preferred to have the jury begin deliberations

right away. The judge elected to bring the jury back into the courtroom to deliver this

answer and inquired as to whether defense counsel would waive defendant’s right to be

present. Counsel so waived. Then, in the absence of the defendant, the court, without

incident, instructed the jury to commence deliberating. The jury continued deliberating

until 5:35 p.m., when they decided to adjourn for the day. The court dismissed them

with instructions to return and continue deliberating on Monday at 9:00 a.m.

Although Henderson stated no objection at the time, he now contends that he had

a right to be present for the court’s communication with the jury and that his attorney’s

waiver of this right was ineffective because not made knowingly and intelligently. He

contends this denial of his right to be present during a critical stage of the trial violated

his Sixth Amendment rights. Henderson acknowledges that his claim is subject to plain

error review. Thus, he must show not only that the trial court committed plain error by

not insisting, over his attorney’s waiver, that Henderson be brought into the courtroom

so that the court could again instruct the jury to begin deliberating, but also that such

error adversely affected his substantial rights and the fairness, integrity and public

reputation of the trial. Mayberry, 540 F.3d at 512. Henderson has not even tried to meet

the latter two requirements. He has not even argued that any prejudice resulted from his

absence. Instead, he contends the error is reversible per se, citing United States v.

Barnwell, 477 F.3d 844, 852 (6th Cir. 2007).

Barnwell is clearly distinguishable. In Barnwell, the court was faced with

repeated ex parte communications between the court and the prosecuting attorney and

the jury foreperson—i.e., without the presence of the defendant or his counsel or even

their knowledge that the meetings were taking place. The court held these errors

“prejudiced the effectiveness of Barnwell’s legal representation and violated his right

to due process of law.” Id. Here, in contrast, defense counsel was present for all

communications with the jury and expressly waived Henderson’s right to be present

No. 08-3439 United States v. Henderson Page 22

during what was a purely technical procedure that had no bearing on Henderson’s

substantive rights.

We have recognized that a defendant’s right to be present at every stage of the

trial is not absolute, but exists only when “his presence has a relation, reasonably

substantial, to the fullness of his opportunity to defend against the charge.” United

States v. Brika, 416 F.3d 514, 526 (6th Cir. 2005) (quoting Kentucky v. Stincer, 482 U.S.

730, 745 (1987)). In other words, the defendant’s presence is not guaranteed when it

would be “useless,” but only “to the extent that a fair and just hearing would be thwarted

by his absence.” Id. In Brika, the court held that where “the judge did nothing more

than give the jurors a technical and perfunctory rereading or explanation of previously-

given instructions, we fail to see how [defendant’s] absence . . . thwarted a fair trial.”

Id. at 527. The same reasoning applies here. Henderson has failed to show any error,

much less remediable plain error.

I. Prison Telephone Recordings

In his second claim of error (part II.B.2, above), Henderson contends that defense

counsel rendered ineffective assistance by failing to object the government’s

introduction of audio-recordings of certain prison telephone conversations between

himself and others. Here, in his ninth and final claim of error, he contends the trial court

abused its discretion by not excluding the recordings despite his counsel’s failure to

object. In other words, he contends the admission of the recordings was such an

egregious error as to demand sua sponte action by the court. As explained above,

however, Henderson has failed to show that the admission of the recordings was error

at all. They did not constitute inadmissible hearsay. It follows that the district court

committed no error, much less plain error, by admitting them.

But Henderson insists that if the recordings did not contain inadmissible hearsay,

then his request to permit introduction of additional tape recordings pursuant to the

doctrine of completeness was erroneously denied. Again, the law does not support

Henderson’s argument.

No. 08-3439 United States v. Henderson Page 23

First, “the ‘rule of completeness’ allows a party to correct a misleading

impression created by the introduction of part of a writing or conversation by

introducing additional parts of it necessary to put the admitted portions in proper

context.” United States v. Holden, 557 F.3d 698, 705 (6th Cir. 2009). Henderson has

failed to identify any misleading impression created by the recordings that were

introduced. Second, although the government was properly permitted to introduce select

recordings because Henderson’s parts in the conversations were admissible as

admissions of a party-opponent under Rule 801(d)(2), Henderson could not take

advantage of this hearsay exclusion to introduce his own out-of-court statements. See

Holden, 557 F.3d at 706. The district court did not, therefore, abuse its discretion by

refusing to allow Henderson to introduce additional recordings.

III. CONCLUSION

Accordingly, defendant Henderson having failed to identify any remediable error

by the district court or any instance of ineffective assistance in defense counsel’s

representation of him, the judgment of the district court is AFFIRMED.