Petition for Writ of Certiorari — Justin Marques Henning, Petitioner v. United States

NO. ______

In the

Supreme Court of the United States

________________

JUSTIN MARQUES HENNING,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

I. Cason Hewgley IV

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

W. Scott Cameron

Matthew V.H. Noller

KING & SPALDING LLP

621 Capitol Mall

Suite 1500

Sacramento, CA 95814

(916) 321-4800

Anne M. Voigts

Counsel of Record

KING & SPALDING LLP

601 South California Ave.

Suite 100

Palo Alto, CA 94304

(650) 422-6700

avoigts@kslaw.com

Counsel for Petitioner

July 2, 2020

QUESTION PRESENTED

After sitting through the trial of Petitioner Justin

Henning and his co-defendants, the district court

granted Henning’s motion for acquittal on the handful of counts on which the jury had convicted him,

calling the evidence against him the “thin[nest]” it had

ever seen. After the government appealed, the United

States Court of Appeals for the Ninth Circuit

overturned that decision in part, reversing the grant

of acquittal but affirming the grant of a new trial. The

Ninth Circuit did so based only on evidence of Mr.

Henning’s mere presence near the scene of the crime.

Every other federal court to have considered the issue

has concluded that mere presence alone is not enough

to sustain a criminal conviction. State courts have

also consistently applied the same rule. The question

presented is:

Whether a criminal defendant may be convicted

based solely on evidence of his mere presence near the

scene of the crime, without any evidence that the

defendant participated in the crime.

ii

PARTIES TO THE PROCEEDING

Justin Henning, petitioner on review, was the

appellee below.

The United States of America, respondent on

review, was the appellant below.

iii

RELATED PROCEEDINGS

This case arises from the following proceedings in

the United States District Court for the Central

District of California and the United States Court of

Appeals for the Ninth Circuit, listed here in

chronological order:

•

United States v. Henning, No. CR 16-029-CJC-7

(C.D. Cal. Dec. 20, 2017);

•

United States v. Henning, No. 18-50005 (9th Cir.

Nov. 21, 2019), reported at 785 F. App’x 430.

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly

related to this case within this Court’s Rule

14.1(b)(iii).

iv

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................ii

RELATED PROCEEDINGS ..................................... iii

TABLE OF CONTENTS ............................................ iv

TABLE OF AUTHORITIES ...................................... vii

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINIONS BELOW .................................................... 2

JURISDICTION .......................................................... 3

CONSTITUTIONAL, STATUTORY, AND

OTHER PROVISIONS INVOLVED ...................... 3

STATEMENT OF THE CASE .................................... 3

A. Factual Background ......................................... 3

B. Procedural History ............................................ 9

REASONS FOR GRANTING THE PETITION........ 14

A. The Decision Below Conflicts With

Decisions of This Court and Every Other

Court of Appeals ............................................. 14

1. This Court Has Held That Evidence

of Mere Presence Cannot Support a

Conviction .................................................. 15

2. Every Other Court of Appeals to

Consider the Issue Has Held That

Evidence of Mere Presence Cannot

Support a Conviction ................................. 15

3. State Courts Hold That Evidence of

Mere Presence Cannot Support a

Conviction .................................................. 19

v

4. The Ninth Circuit’s Decision Creates

a Circuit Split by Approving a

Conviction Based on Evidence of

Mere Presence............................................ 20

5. This Case Also Implicates a Circuit

Split Over the Equipoise Rule .................. 23

B. The Issue Presented Is Important

Because the Decision Below Would

Allow Widespread Convictions for

Innocent Conduct ............................................ 24

CONCLUSION .......................................................... 26

APPENDIX

Appendix A

Opinion of the United States Court of

Appeals

for

the

Ninth

Circuit,

United States v. Henning, No. 18-50005

(Nov. 21, 2019) ............................................. App-1

Appendix B

Order of the United States District Court

for the Central District of California,

United States v. Henning, No. 16-cr-00029CJC-7 (Dec. 20, 2017) .................................. App-5

Appendix C

Order of the United States Court of

Appeals for the Ninth Circuit Denying

Rehearing and Rehearing en Banc,

United States v. Henning, No. 18-50005

(Feb. 5, 2020) ............................................. App-32

vi

Appendix D

Relevant Provision, Statutes, & Rule

U.S. Const. amend. V .......................... App-34

18 U.S.C. § 924(c) ................................ App-35

18 U.S.C. § 1951(a).............................. App-39

Fed. R. of Crim. P. 29 .......................... App-40

SUPPLEMENTAL APPENDIX

Appendix E

-- FILED UNDER SEAL -Excerpt of Motion Hearing Transcript,

United States District Court for the

Central District of California, United

States v. Henning, No. 16-cr-00029-CJC-7

(Dec. 20, 2017) .................................... Supp.App-1

vii

TABLE OF AUTHORITIES

Cases

Acker v. United States,

618 A.2d 688 (D.C. 1992) ....................................... 19

Bailey v. United States,

416 F.2d 1110 (D.C. Cir. 1969) .............................. 16

Bigelow v. RKO Radio Pictures, Inc.,

327 U.S. 251 (1946) ................................................ 22

Commonwealth v. Flowers,

387 A.2d 1268 (Pa. 1978) ....................................... 19

Cosby v. Jones,

682 F.2d 1373 (11th Cir. 1982) .............................. 24

Curley v. United States,

160 F.2d 229 (D.C. Cir. 1947) ................................ 24

Fleming v. State,

818 A.2d 1117 (Md. 2003) ...................................... 19

Gamble v. United States,

139 S. Ct. 1960 (2019) ...................................... 24, 25

Hicks v. United States,

150 U.S. 442 (1893) ................................................ 15

Kansas v. Garcia,

140 S. Ct. 791 (2020) .............................................. 24

Marinello v. United States,

138 S. Ct. 1101 (2018) ............................................ 26

McDonnell v. United States,

136 S. Ct. 2355 (2016) ............................................ 26

McGill v. State,

247 N.E.2d 514 (Ind. 1969) .................................... 19

Nye & Nissen v. United States,

336 U.S. 613 (1949) ................................................ 15

viii

Reyes v. State,

745 S.E.2d 738 (Ga. Ct. App. 2013) ....................... 19

Rodriguez v. State,

813 P.2d 992 (Nev. 1991) ....................................... 19

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ............................................ 25

State v. Banks,

771 N.W.2d 75 (Neb. 2009) .................................... 19

State v. Gazerro,

420 A.2d 816 (R.I. 1980) ......................................... 19

State v. Gomez,

432 P.2d 444 (Ariz. 1967) ....................................... 19

State v. Irby,

423 S.W.2d 800 (Mo. 1968) .................................... 19

State v. Johnson,

313 S.E.2d 560 (N.C. 1984) .................................... 19

State v. Leonard,

355 S.E.2d 270 (S.C. 1987) ..................................... 19

State v. Pendleton,

759 N.W.2d 900 (Minn. 2009) ................................ 19

United States v. Anderson,

189 F.3d 1201 (10th Cir. 1999) .............................. 17

United States v. Caraballo-Rodriguez,

726 F.3d 418 (3d Cir. 2013) .................................... 24

United States v. Caseer,

399 F.3d 828 (6th Cir. 2005) .................................. 24

United States v. D’Amato,

39 F.3d 1249 (2d Cir. 1994) .................................... 23

United States v. Dean,

59 F.3d 1479 (5th Cir. 1995) .................................. 16

ix

United States v. Francomano,

554 F.2d 483 (1st Cir. 1977) ............................. 16, 17

United States v. Hill,

464 F.2d 1287 (8th Cir. 1972) .......................... 18, 21

United States v. John-Baptiste,

747 F.3d 186 (3d Cir. 2014) .............................. 16, 17

United States v. Johnson,

592 F.3d 749 (7th Cir. 2010) .................................. 24

United States v. Kozminski,

487 U.S. 931 (1988) ................................................ 25

United States v. López-Díaz,

794 F.3d 106 (1st Cir. 2015) ................................... 23

United States v. Love,

767 F.2d 1052 (4th Cir. 1985) ................................ 17

United States v. Lovern,

590 F.3d 1095 (10th Cir. 2009) .............................. 24

United States v. Mancillas,

580 F.2d 1301 (7th Cir. 1978) ................................ 17

United States v. Martinez,

54 F.3d 1040 (2d Cir. 1995) .................................... 22

United States v. Miller,

800 F. App’x 39 (2d Cir. 2020) ............................... 18

United States v. Minieri,

303 F.2d 550 (2d Cir. 1962) .................................... 16

United States v. Mulheren,

938 F.2d 364 (2d Cir. 1991) .................................... 23

United States v. Nevils,

598 F.3d 1158 (9th Cir. 2010) ......................... 11, 23

United States v. Pauling,

924 F.3d 649 (2d Cir. 2019) .................................... 22

x

United States v. Peoni,

100 F.2d 401 (2d Cir. 1938) .................................... 15

United States v. Rolon-Ramos,

502 F.3d 750 (8th Cir. 2007) .................................. 17

United States v. Rutkowski,

814 F.2d 594 (11th Cir. 1987) ................................ 16

United States v. Vargas-Ocampo,

747 F.3d 299 (5th Cir. 2014) .................................. 24

United States v. Whitney,

229 F.3d 1296 (10th Cir. 2000) .............................. 17

United States v. Williams,

341 U.S. 58 (1951) .............................................. 1, 15

United States v. Winston,

687 F.2d 832 (6th Cir. 1982) .................................. 18

United States v. Wright,

835 F.2d 1245 (8th Cir. 1987) ................................ 24

Yates v. United States,

574 U.S. 528 (2015) .................................... 24, 25, 26

Constitutional Provision

U.S. Const. amend. V .................................................. 3

Statutes & Rule

17 U.S.C. § 506 .......................................................... 25

18 U.S.C. § 924(c) .................................................... 3, 9

18 U.S.C. § 1951(a) .................................................. 3, 9

Sup. Ct. R. 10 ............................................................... 2

Other Authority

2 Wayne R. LaFave,

Subst. Crim L. (3d ed. 2019) ............................ 14, 19

PETITION FOR WRIT OF CERTIORARI

The district court in this case said, “I’ve had a lot

of cases, but I’ve never had the evidence be so thin,”

and granted Petitioner Justin Henning’s motion for

acquittal of three robbery-related crimes. Supp.App.2.

Viewed in the Government’s favor, that evidence

showed at most that Henning knew about the robbery

and was present in its general vicinity when it

occurred. But there was no evidence that Henning

agreed to participate in the robbery or took part in its

commission. Because of that, the district court

correctly granted Henning’s motion for acquittal and

conditionally granted a new trial. App.30–31.

After the government appealed, the Ninth Circuit

reversed the district court’s judgment of acquittal.

Even in doing so, however, it didn’t disagree with the

district court’s conclusion that the evidence showed at

best Henning’s mere presence near the robbery. In

fact, the Ninth Circuit expressly acknowledged there

were “significant issues with the evidence.” App.4.

But it still found that evidence sufficient to support the

verdict, allowing Henning to be retried for crimes the

Government did not prove he committed beyond a

reasonable doubt.

That decision flouts this Court’s holding that “[t]o be

present at a crime is not evidence of guilt.” United

States v. Williams, 341 U.S. 58, 64 n.4 (1951). Ten

other federal courts of appeals—and multiple state

appellate courts—have similarly held that evidence of

“mere presence” at the scene of a crime is insufficient

to prove guilt beyond a reasonable doubt. Instead, the

Government must introduce some evidence that the

defendant actively participated in the crime. Although

2

the government did not do so here, the Ninth Circuit

reversed Henning’s acquittal anyway.

The Ninth Circuit’s decision is indefensible and

should be summarily reversed. At a minimum, it

creates one Circuit split and aggravates another,

justifying this Court’s review. See Sup. Ct. R.

10(a), (c). The first split is over the mere presence

rule, while the second is over an approach to

insufficiency-of-the-evidence review called the

“equipoise rule.” Under that rule, a defendant cannot

be convicted if the evidence supports guilt and

innocence equally. The Ninth Circuit has rejected

that approach, while other Circuits have adopted it.

This case clearly presents both splits. Given the everexpanding scope of federal criminal law, the Ninth

Circuit’s decision exposes countless innocent

Americans to prosecution and conviction for being not

even at, but simply near the wrong place at the wrong

time.

This Court should reject that outcome and resolve

the circuit split created by the decision below. It

should reverse the Ninth Circuit’s judgment and

reinstate Henning’s acquittal, either summarily or

after briefing and argument.

OPINIONS BELOW

The Ninth Circuit’s memorandum disposition is

reported at 785 F. App’x 430. App.1–4. That court’s

order denying rehearing is not reported. App.32–33.

The district court’s decision granting petitioner’s

motion for acquittal and conditional motion for a new

trial is not reported. App.5–31.

3

JURISDICTION

The Ninth Circuit issued its decision on November

21, 2019. Petitioner timely sought rehearing and

rehearing en banc, which the Ninth Circuit denied on

February 5, 2020. This Court issued an order on

March 19, 2020, extending all deadlines for the filing

of a petition for certiorari to 150 days from the denial

of a timely petition for rehearing. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY, AND

OTHER PROVISIONS INVOLVED

The Due Process Clause of the Fifth Amendment,

U.S. Const. amend. V, provides:

No person shall be . . . deprived of life, liberty,

or property, without due process of law.

The substantive statutes under which Henning

was convicted, 18 U.S.C. § 924(c) (possession of a

firearm during drug-trafficking offense) and 18 U.S.C.

§ 1951(a) (Hobbs Act Robbery), are reproduced at

App.35–39.

Federal Rule of Criminal Procedure 29, governing

motions for judgment of acquittal, is reproduced at

App.40–41.

STATEMENT OF THE CASE

A. Factual Background

This case arose out of eleven robberies targeting

watch and jewelry stores in Southern California. The

relevant indictment charged that the robberies were

committed by a large, fluid group of co-conspirators

4

that allegedly included Henning. 1 App.6–7. Although

the Government accused Henning of being involved in

several robberies, there was virtually nothing

connecting him to those other robberies, and the Ninth

Circuit’s decision relied on evidence related to just

one: the February 29, 2016 robbery of Ben Bridge

Jeweler in Torrance, California’s Del Amo Fashion

Center (the “Del Amo robbery”). App.7. 2

1. At trial, the Government’s primary evidence

related to the Del Amo robbery was testimony from

two cooperating witnesses (“CW1” and “CW2”). Their

testimony, viewed in the Government’s favor, showed

The other charged co-conspirators were Keith Walton

(nickname “Green Eyes”), Robert (“Bogart”) Johnson, Evan

(“Macc”) Scott, Jameson (“J Bone”) Laforest, and Jeremy

(“Widget”) Tillett. The indictment also identified, but did not

charge, Darrell (“D”) Dent, Kenneth (“Lil K.O.”) Paul, Dominic

(“Bones”) Callaway, Devan (“Snoop”) Howard, Mychael

(“Poncho”) Craig, Wilson (“Junior Bogart”) Elima, Cornell (“Bully

Bad Azz”) Stephen, Shane (“Hang Out”) Lewis, Brandon White,

Vincent Haynes, Mariah Smith, Stanley (“Stan”) Ford,

Marshawn (“Junior Manchester”) Marshall, and Michael (“Ave

Boy”) Germeille. Gov’t Excerpts of Record (“GER”) 58–59.

1

The ten other robberies described in the indictment were:

(1) the August 3, 2014 robbery of Prestige Jewelers in Manhattan

Beach, (2) the August 24, 2016 robbery of the Rolex Boutique

Geary’s in Century City, (3) the October 21, 2015 robbery of

Frederic H. Rubel Jewelers in Mission Viejo, (4) the January 2,

2016 attempted robbery of Ben Bridge Jeweler in Santa Monica,

(5) the January 22, 2016 robbery of Manya Jewelers in Woodland

Hills, (6) the February 7, 2016 robbery of Ben Bridge Jewelers in

Thousand Oaks, (7) the February 15, 2016 robbery of Westime in

West Hollywood, (8) the February 22, 2016 planned robbery of

Glendale Galleria, (9) the March 22, 2016 robbery of Westime in

Malibu, and (10) the April 24, 2016 robbery of Ben Bridge Santa

Monica. GER 61–78.

2

5

that Henning knew about the Del Amo robbery and

may have been present somewhere in its vicinity when

it occurred. But the CWs did not testify that Henning

participated in the robbery in any way, and no other

witness implicated Henning in its commission. Nor for

that matter was there any physical evidence tying him

to the crime.

a. CW1 testified about the planning of the robbery.

He testified that Keith Walton planned the robbery,

while Robert Johnson recruited participants and

assigned them roles. GER 153–54, 173. No one

testified that Henning planned the robbery, recruited

participants, or assigned roles.

CW1 testified that, on February 25, 2016, he

discussed the robbery with Walton, CW2, Darrell

Dent, and Jameson Laforest at Walton’s house. Supp.

Excerpts of Records (“SER”) 710–14. At Walton’s

suggestion, they “finish[ed] the conversation” in a

parking lot. SER 717. No evidence placed Henning at

these meetings.

After the February 25 meeting, CW1 scouted the

Del Amo store with Laforest, Shane Lewis, and

another unidentified co-conspirator. SER 719–20. No

one testified that Henning was present then either.

b. According to CW1, Johnson assigned

participants their roles at a meeting one day later, on

February 26. SER 729–30. CW2 denied that Henning

attended the February 26 meeting. SER 1563, 1578–

79. CW1 testified that Henning was present but

“didn’t say nothing.” SER 729, 732.

At the meeting, Johnson assigned CW1 to be the

getaway driver, Evan Kwan Scott to be the gunman,

and CW2 and Shane Lewis to steal watches. SER 729–

6

30. No witness testified that Johnson assigned

Henning a role at the meeting. SER 729–30, 1567.

Nevertheless, CW1 said he “was told” that Johnson

had assigned Henning the role of “emergency” backup

driver. SER 603–04, 732. CW2 testified that Jameson

Laforest told him Henning would be a backup driver,

but he admitted he had no independent knowledge of

Henning’s role. SER 1579, 1701–03. No one testified

that Johnson assigned Henning any role during any

meeting and no one testified that Henning accepted

the role. Indeed, no one testified that Henning even

knew the role had been assigned to him. App.8.

c. CW1 testified that after the February 26

meeting, its attendees traveled to the Del Amo mall.

SER 733. They waited outside the mall while Stanley

Ford went inside to scope out Ben Bridges Jeweler.

SER 734. When he returned and said a girl was sitting

by the store, the robbery was called off. SER 735–36.

The decision when to carry out the robbery was made

by Johnson, Scott, Lewis, and CW2. SER 735–36,

1575–76. No one testified that Henning was involved

in that decision.

Indeed, there was no evidence that Henning did

anything to participate in this aborted robbery. For

instance, no one testified that Henning scouted the

store or helped decide whether to proceed or not. And

though CW1 testified that Henning drove to the Del

Amo mall, he also testified that Henning was not “with

[him]” when “Stan went inside the store.” SER 733–

34.

d. Three days later, on February 29, Johnson,

Laforest, Scott, Ford, Lewis, Germeille, CW1, and

CW2 met in a park. SER 740, 1577–79. Henning also

7

attended, arriving in his own car. SER 1579. CW2

had never met Henning before that day. SER 1578–

79.

CW1 and CW2 differed as to what, if anything, was

discussed at the meeting. CW1 said Johnson saw no

need for further discussion, while CW2 said Johnson

discussed “[t]he same thing we discussed on Friday.”

SER 741, 1578. Yet again, no one testified that

Henning said or did anything at the meeting.

2.a. The Del Amo robbery occurred after the

February 29 meeting. According to CW2, Germeille

drove CW2 and two others to the Del Amo mall.

SER 1580. The three entered Ben Bridges Jeweler,

where one pulled a gun while the other two grabbed

watches. SER 1580–81. CW1 then picked up the

three men and drove them to a parking lot, where they

handed off the stolen goods to another co-conspirator.

SER 743–48.

From there, CW1 drove to meet

Germeille. SER 748–49, 1584–85. He then drove CW2

and Lewis to the freeway, where police pulled them

over and arrested them. SER 1585–86.

None of the robbery participants knew where

Henning was during any of that. Although CW1 said

Henning drove to the mall, he admitted he didn’t know

where Henning was during the robbery. SER 742,

1206. Nor did Henning or his car appear in any of the

security video footage of the mall’s surroundings.

Neither CW1 nor CW2 ever saw Henning again after

the February 29 meeting. SER 1190–91, 1643, 1703.

Indeed, neither could even reach Henning because

they did not have his phone number. SER 1186–87,

1206, 1703. Thus, according to the evidence, if

Henning was supposed to be the emergency back-up

8

driver, he was an emergency back-up driver who could

not be reached directly in case of an actual emergency.

Indeed, before the robbery, CW1 added other

robbery participants’ numbers to his phone contacts,

but he did not add Henning’s number. SER 612, 614,

1186–87. And while Laforest gave CW1 a list naming

the participants in the robbery and listing their phone

numbers, Henning was not on that list. SER 753–56;

TE 404. Simply put, there was no evidence that

anyone took any steps to make sure that those

carrying out the robbery could reach him in case of

emergency.

b. Without any witness testimony placing Henning

at the Del Amo mall during the robbery, let alone

taking any action to carry it out, the Government

relied on testimony from a law-enforcement agent that

a cell phone associated with Henning connected to a

cell tower “in the vicinity” of the mall during the time

of the robbery. SER 3475–83. But the agent could not

place the phone in any specific geographic range. SER

3509. He admitted that the distance between the cell

tower and the phone could be up to two miles, and

there was no evidence that could place Henning at any

particular location within that range. SER 3509.

Nevertheless, the district court gave the Government

the inference that Henning was in the vicinity based

on this evidence. GER 34.

During the robbery, the phone associated with

Henning called numbers linked to Laforest and

Johnson. GER 34. But there was no evidence of what

anyone said on those calls. GER 30, 33; SER 3444,

3509, 3514.

9

B. Procedural History

1. The Government indicted Henning on seven

counts, three of which related to the Del Amo robbery,

and four of which related to other robberies. App.6.

After 18 days of trial and four days of deliberation,

the jury acquitted Henning on all four counts related

to robberies other than the Del Amo robbery. App.7.

The jury convicted Henning on the three counts related

to the Del Amo robbery: robbery and conspiracy to

commit robbery, in violation of 18 U.S.C. § 1951(a),

and aiding and abetting the brandishing of a gun in

the

robbery,

in

violation

of

18

U.S.C.

§ 924(c)(1)(A)(ii), 2(a). App.24–25.

2. Henning moved for an order of acquittal and, in

the alternative, for a new trial. App.30 n.9.

a. At the hearing on Henning’s motion, the district

court summarized its view of the evidence against

him: “I’ve had a lot of cases, but I’ve never had the

evidence be so thin.” GER 37.

The district court accepted that Henning attended

meetings related to the Del Amo robbery. GER 38.

But the court observed, “[t]he way the testimony was

developed, . . . I don’t know where Mr. Henning is. I

don’t know if he can hear anything that’s being said.

What I do know for certain is that Mr. Henning never

said anything or did anything. . . .

The other

defendants you have evidence that they’re saying

things at these meetings, they’re giving directions,

they’re bringing a firearm, they’re bringing tools and

equipment. I don’t have that with respect to Mr.

Henning.” GER 27–28. Indeed, the Government

conceded that Henning did not actively participate in

any of the meetings. GER 30, 33.

10

And although there was no direct evidence of it, the

district court also gave the Government an inference

that Henning “was in the general vicinity of the [Del

Amo] robbery” and spoke to Johnson and Laforest on

his cell phone during the robbery. GER 34. But the

court found, and the Government conceded, that there

was no evidence of what anyone said during the calls

between Henning, Johnson, and Laforest. GER 30, 33–

34. As a result, the court lacked “evidence that

[Henning]’s doing or saying things showing

intentional participation” in the robbery. GER 34.

There was nothing to support even an inference going

that far.

b. After the hearing, the district court issued an

order granting Henning’s motion for acquittal.

App.30 n.9.

The district court held that the evidence was

insufficient to prove beyond a reasonable doubt that

Henning participated in the Del Amo robbery. App.30.

Based on the evidence that Henning attended two

planning meetings3 and was in the general vicinity of

the robbery, the court found that “a rational trier of

fact could conclude that Henning was a knowing

spectator of the crime.” App.17. But that under well

settled law was not enough: “Mere presence, affiliation,

and knowledge are not sufficient to prove guilt beyond

a reasonable doubt.” App.6.

Instead, “the Government was required to present

evidence that Henning said or did something to prove

3 Despite the conflicting testimony of CW1 and CW2 on the point,

the court gave the Government the inference that Henning was

at the first planning meeting. GER 38.

11

that he intentionally participated or joined in the

conspiracy, or said or did something to prove that he

knowingly aided and abetted the Del Amo robbery at

which a firearm was brandished.” App.6. Because the

Government “failed to present such evidence,” the

court entered a judgment of acquittal on all three

counts of conviction. App.6.

In the alternative, the district court also granted

Henning’s motion for a new trial. App.30 n.9.

3. The Government appealed. It argued that the

evidence, viewed in its favor, proved Henning’s guilt

beyond a reasonable doubt.

Notably, the Government dismissed the cases the

district court had relied on to find that Henning could

not be convicted based solely on evidence of his “mere

presence” at the robbery. The Government argued

that those cases had been “overruled” or “repudiated”

by the Ninth Circuit’s later decision in United States

v. Nevils, 598 F.3d 1158 (9th Cir. 2010) (en banc). CA9

Gov’t Br. 41–43 (Doc. 14). Nevils rejected an approach

to insufficiency-of-the-evidence review, sometimes

called the “equipoise rule,” under which a defendant

cannot be convicted if the evidence supports guilt and

innocence equally. 598 F.3d at 1166–67. Under

Nevils, the Government argued, the evidence against

Henning was sufficient to convict.

4.a. A panel of the Ninth Circuit reversed the

district court’s judgment of acquittal on all three

counts of conviction. App.4.

12

The panel relied solely on evidence related to the

Del Amo robbery. App.3. 4 It reversed Henning’s

acquittal on the robbery count based on three pieces of

evidence: (1) the CWs’ testimony “that Henning was

the ‘emergency pickup’ or ‘extra driver’” even though

no one testified that he said or did anything to indicate

that he had taken on that role; (2) Henning’s

attendance at “a planning meeting shortly before the

Del Amo Mall Robbery at which individual roles were

discussed,” even though no one testified that he said

anything about participating in the robbery; and

(3) cell phone records showing “that Henning’s car was

in the vicinity of the Del Amo mall at the time of the

robbery and he was in contact with several of the coconspirators”—although not with the conspirators

who were carrying out the robbery, who did not even

have Henning’s number. App.2–3.

The panel reversed Henning’s acquittal on the

conspiracy count because “Henning attended two

meetings at which the [Del Amo] robbery was

planned” and “was near the mall and in contact with

co-conspirators when the robbery occurred.” App.3.

The court also found that “Henning drove to the Del

Amo mall on one occasion with co-conspirators when

the robbery was aborted.” App.3. Finally, the panel

reversed Henning’s acquittal on the firearm count

because of evidence that “Henning attended the first

planning meeting where a gun was present and its

4 The Government had argued that Henning could be convicted

of conspiracy to commit the Del Amo robbery based on evidence

related to robberies Henning had not been convicted of or even

indicted for. CA9 Gov’t Br. 50–59 (Doc. 14). The panel did not

reach that issue.

13

potential use in the [Del Amo] robbery was discussed.”

App.3.

The panel did not claim that any of this evidence

showed anything more than Henning’s knowing

presence near the scene of the Del Amo robbery.

Indeed, the panel cited Nevils, the case the

Government argued had overruled the cases

prohibiting conviction based on “mere presence”

evidence. App.2.

b. Despite reversing Henning’s acquittal, the panel

acknowledged that there were “significant issues with

the evidence underlying the verdict.” App.4. “The

primary pickup driver,” the panel noted,

did not know where Henning was during the

robbery and did not have Henning’s phone

number. Henning’s name and number were not

written on a piece of paper listing the robbery

participants found in the primary pickup

driver’s car. There was no footage of Henning’s

car in the parking lot of the mall around the

time of the robbery, and there was conflicting

testimony about whether Henning even

attended the first planning meeting.

App.4.

For that reason, the panel affirmed the district

court’s grant of a new trial. App.2. The Government

has expressed a clear intent to retry Henning.

5. Henning timely petitioned for rehearing and

rehearing en banc. The petition argued the panel had

erroneously reversed Henning’s acquittal based solely

on evidence of his presence near the scene of a crime.

CA9 Pet. 5 (Doc. 81). That error, Henning explained,

14

created a split with other Circuits that have reversed

convictions based on similar “mere presence” evidence.

CA9 Pet. 12–13 (Doc. 81).

The Ninth Circuit summarily denied Henning’s

petition. App.33. Although Henning’s argument was

clearly stated in the petition, the panel did not amend

its decision to clarify that the evidence it relied on

showed anything more than Henning’s “mere

presence” near the Del Amo robbery, nor did it do so

in the order denying the petition for rehearing.

This petition follows.

REASONS FOR GRANTING THE PETITION

A. The Decision Below Conflicts With Decisions

of This Court and Every Other Court of

Appeals

Until this decision, it was hornbook criminal law

that “mere presence at the scene of the crime,” even

together with “mental approval of the actor’s conduct,”

is not enough to support criminal liability. 2 Wayne R.

LaFave, Subst. Crim L. § 13.2(a) (3d ed. 2019)

(collecting state court decisions and describing the

rule as “[q]uite clear[]”). Simply put, it’s not enough

to be a lookie-loo, even one who knows and approves

of what will happen. By allowing Henning’s conviction

on evidence showing at most knowing presence near

the scene of a crime, the Ninth Circuit’s decision

conflicts with the decisions of this Court, every other

federal court of appeals, and every state to have

addressed the issue. It also adds to another circuit

split.

15

1. This Court Has Held That Evidence of

Mere Presence Cannot Support a

Conviction

Since the nineteenth century, this Court has

consistently recognized that a defendant’s guilt can be

inferred from his presence at the scene of a crime only

if that presence is intended to assist the others in

committing the crime. Hicks v. United States, 150

U.S. 442 (1893). Thus, “[i]n order to aid and abet

another to commit a crime it is necessary that a

defendant ‘in some sort associate himself with the

venture, that he participate in it as in something that

he wishes to bring about, that he seek by his action to

make it succeed.’” Nye & Nissen v. United States, 336

U.S. 613, 619 (1949) (quoting United States v. Peoni,

100 F.2d 401, 402 (2d Cir. 1938)). Criminal liability

therefore requires, at a bare minimum, affirmative

“acts or words of encouragement,” done with “the

intention of encouraging and abetting.” Hicks, 150

U.S. at 449. This Court’s rule could not be much

clearer: To be liable as an accomplice, a person has to

do something.

The conclusion that follows is inescapable and

unambiguous: “To be present at a crime is not

evidence of guilt.” Williams, 341 U.S. at 64 n.4. Mere

presence—even knowing that a crime will occur—is

not enough.

2. Every Other Court of Appeals to Consider

the Issue Has Held That Evidence of Mere

Presence Cannot Support a Conviction

Consistent with this Court’s precedent, every

single federal court of appeals to have considered the

issue—until the Ninth Circuit in this case—has held

16

that mere presence at the scene of a crime cannot

sustain a conviction. That consistent line of precedent

dates back nearly sixty years, holding without

exception that presence alone—even knowing

presence—is not enough to sustain a criminal

conviction.

The Second Circuit’s rule is typical: “Evidence that

a person was present where an illegal act occurred is

not sufficient evidence, without more, to convict him

of aiding and abetting that unlawful act.” United

States v. Minieri, 303 F.2d 550, 557 (2d Cir. 1962). The

rule in every other geographic Circuit is the same and

has been for decades. See, e.g., United States v. JohnBaptiste, 747 F.3d 186, 206 (3d Cir. 2014) (“[M]ere

presence at the scene of the crime or association with

a criminal is not sufficient evidence of a conspiracy.”);

United States v. Dean, 59 F.3d 1479, 1486 (5th Cir.

1995) (“Mere presence and association alone cannot

support a conspiracy conviction.”); United States v.

Rutkowski, 814 F.2d 594, 597 (11th Cir. 1987) (quoting

jury instructions charging that “mere presence at the

scene of the crime or mere presence in the area of

where an offense is being committed or mere

association with the person or persons who are

violating the law is not in and of itself sufficient to

support a conviction of a conspiracy”); United States v.

Francomano, 554 F.2d 483, 486 (1st Cir. 1977) (“Mere

presence . . . is not evidence of guilt.”); Bailey v. United

States, 416 F.2d 1110, 1113 (D.C. Cir. 1969) (“An

inference of criminal participation cannot be drawn

merely from presence; a culpable purpose is essential.”

(footnote omitted)).

17

Even when a defendant knows about the crime or

knowingly associates with its perpetrators, the

defendant’s presence is not sufficient to convict in any

Circuit other than the Ninth. E.g., John-Baptiste, 747

F.3d at 206 (“[M]ere presence at the scene of the crime

or association with a criminal is not sufficient evidence

of a conspiracy.”); United States v. Rolon-Ramos, 502

F.3d 750, 754 (8th Cir. 2007) (“[A] defendant’s mere

presence, coupled with the knowledge that someone

else who is present intends to sell drugs, is insufficient

to establish membership in a conspiracy.” (internal

quotation marks omitted)); United States v. Love, 767

F.2d 1052, 1059 (4th Cir. 1985) (“[A] criminal

defendant’s mere presence at the scene of the crime or

his knowledge of that crime is insufficient to establish

that he joined a conspiracy or aided and abetted in the

commission of the crime.”); United States v. Mancillas,

580 F.2d 1301, 1308 (7th Cir. 1978) (“[M]ere presence

at the scene of the crime or mere association with

conspirators will not by themselves support a

conspiracy conviction.”); Francomano, 554 F.2d at 486

(“[N]or is mere presence at the scene and knowledge

that a crime was to be committed sufficient to

establish aiding and abetting.”).

Instead, the federal courts of appeals require proof

of “the defendant’s active, knowing participation” in a

crime. Love, 767 F.2d at 1059. Thus, “[t]o be guilty of

aiding and abetting the commission of a crime, the

defendant must willfully associate himself with the

criminal venture and seek to make the venture

succeed through some action of his own.” United

States v. Whitney, 229 F.3d 1296, 1303 (10th Cir. 2000)

(quoting United States v. Anderson, 189 F.3d 1201,

1207 (10th Cir. 1999)). Similarly, as the Sixth Circuit

18

has explained, “the defendant must be a participant

rather than merely a knowing spectator before he can

be convicted of aiding and abetting.” United States v.

Winston, 687 F.2d 832, 835 (6th Cir. 1982) (citation,

alterations, and internal quotation marks omitted).

And in United States v. Miller, 800 F. App’x 39 (2d Cir.

2020), although the Second Circuit ultimately rejected

the defendant’s mere-presence defense, it did so only

because of the district court’s instruction, which

“caution[ed] [the jury] that merely knowing or

acquiescing without participation in the unlawful plan

is not sufficient.” Id. at 42. These Circuits all require

some action by the defendant.

In one especially relevant case, the Eighth Circuit

reversed a conviction for aiding and abetting a bank

robbery. United States v. Hill, 464 F.2d 1287 (8th Cir.

1972). On the day of the robbery, the defendant met

with one of the bank robbers in an apartment. Id. at

1288. During that meeting, the robber said the

defendant would wait on a street corner to receive

guns and money after the robbery. Id. at 1288–89.

The defendant nodded her head “like she understood

what [the robber] was talking about,” then left in a car

with the robber. Id. at 1289. The Eighth Circuit held

that the defendant’s “presence during a portion of one

of the conversations where [the robber] indicated the

various parts the participants were to play in the

criminal venture” was not “sufficient to make her a

willful participant,” even when “accompanied by [her]

nod of assent.” Id. Even her decision to leave the

apartment in the robber’s car, though it showed “she

could be employed in the criminal venture in the

manner prescribed,” did not “establish[] willful

participation.” Id.

19

3. State Courts Hold That Evidence of Mere

Presence Cannot Support a Conviction

State courts of last resort are also unanimous that

mere knowing presence at the scene of a crime cannot

support a conviction. 2 LaFave, Subst. Crim L.

§ 13.2(a). For example, the D.C. Court of Appeals held

in a robbery case that “mere presence at the scene of a

crime committed by someone else, even with

knowledge that an offense has been committed is

insufficient to sustain a conviction as an aider or

abettor.” Acker v. United States, 618 A.2d 688, 689

(D.C. 1992). And in Pennsylvania, it’s long been the

law that “mere presence during the crime d[oes] not

constitute such aiding and abetting.” Commonwealth

v. Flowers, 387 A.2d 1268, 1270 (Pa. 1978). This

longstanding rule extends westward, too: In Arizona,

“mere presence at the scene of the crime does not prove

guilt” and “a conviction cannot be based entirely upon

the uncorroborated testimony of an accomplice.” State

v. Gomez, 432 P.2d 444, 445 (Ariz. 1967) (en banc).

Other states are in accord. See, e.g., Reyes v. State,

745 S.E.2d 738, 740 (Ga. Ct. App. 2013); State v.

Pendleton, 759 N.W.2d 900, 907 (Minn. 2009); State v.

Banks, 771 N.W.2d 75, 98 (Neb. 2009); Fleming v.

State, 818 A.2d 1117, 1121–22 (Md. 2003); Rodriguez

v. State, 813 P.2d 992, 994 (Nev. 1991); State v.

Leonard, 355 S.E.2d 270, 272 (S.C. 1987); State v.

Johnson, 313 S.E.2d 560, 564 (N.C. 1984); State v.

Gazerro, 420 A.2d 816, 828 (R.I. 1980); McGill v. State,

247 N.E.2d 514, 518 (Ind. 1969); State v. Irby, 423

S.W.2d 800, 803 (Mo. 1968). Petitioner has uncovered

no case to the contrary.

20

4. The Ninth Circuit’s Decision Creates a

Circuit Split by Approving a Conviction

Based on Evidence of Mere Presence

The Ninth Circuit’s decision affirming Henning’s

conviction based solely on mere presence squarely

conflicts with this long line of federal and state case

law. Even when viewed in the prosecution’s favor, the

evidence shows at most that Henning was in the

vicinity of the Del Amo robbery and that he knew that

it would take place. That is not enough to sustain his

conviction.

Take first the evidence of Henning’s presence at

meetings where others planned the robberies,

including one meeting “shortly before the Del Amo

Mall Robbery at which individual roles were

discussed.” App.2–3. At best this proves that Henning

knew the others would commit the robbery. The

Government conceded that Henning did not actively

participate in those meetings. GER 30. And though

CW1 claimed Johnson assigned roles at one meeting,

no witness testified that Johnson assigned Henning

any role there, that Henning was aware that he had

been assigned any role, or that Henning ever accepted

any role. SER 729–30, 1567.

Second, the CWs testified that they had heard that

“Henning was the ‘emergency pickup’ or ‘extra driver’

for the robbery.” App.2. But this shows, at most, that

participants other than Henning believed that

Henning was a backup driver. For all we know,

Henning had no idea that he was supposed to play any

role. Although the Government had the burden of

proof, it introduced “no evidence that Henning

accepted or acknowledged this role.” GER 13. Indeed,

21

the government introduced no evidence that the other

conspirators acted as if Henning had accepted the

role—none of the conspirators who actually carried

out the robbery knew where Henning was or how to

reach him. If Henning was the emergency back-up

driver, he was an emergency driver who could not be

reached in case of emergency.

And there is no evidence that Henning actually did

anything as a backup driver. Indeed, there was no

testimony establishing what an emergency backup

driver would do in the first place. Henning did not

drive anyone to or from the robbery. None of the

robbers saw Henning at the Del Amo mall, and the

only witnesses who testified about his purported role

had no way to contact him. SER 1186–87, 1190–91,

1206, 1643, 1703. CW1 added his other conspirators

to his phone contacts, but not Henning, and when

other conspirators put together a list of participants

and their contact information so that they could reach

each other, they didn’t include either Henning’s name

or contact information on that list. SER 612, 614, 753–

56, 1186–87; TE 404. In short, the totality of the

evidence introduced against Henning was much

weaker than in Hill, where the defendant nodded,

accepting her assigned role in the robbery, and then

travelled with one of the robbers. 464 F.2d at 1288–

89. If the evidence in Hill was not sufficient to show

intentional participation, neither is the evidence here.

Even the cell-tower records placing Henning “in

the vicinity of the Del Amo mall at the time of the

robbery,” App.2–3, show at most Henning’s “mere

presence” somewhere within a mile or two of the crime

scene. Nor does the inference that Henning “was in

22

contact with several of the co-conspirators” establish

Henning’s participation in the robbery. App.3. The

Government conceded that it had no evidence of what

anyone said on those calls. GER 33. A jury could not

conclude that the calls related to the robbery without

improper speculation. Cf. Bigelow v. RKO Radio

Pictures, Inc., 327 U.S. 251, 264 (1946) (“[T]he jury

may not render a verdict based on speculation or

guesswork.”); United States v. Pauling, 924 F.3d 649,

656, 657 (2d Cir. 2019) (affirming district court’s order

granting acquittal, and holding that courts “give no

deference to impermissible speculation” but must

instead “be satisfied that the inferences are

sufficiently supported to permit a rational juror to find

that the element, like all elements, is established

beyond a reasonable doubt” (quoting United States v.

Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995))); United

States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015)

(holding that “if the government relied on

circumstantial evidence, reasonable inferences, not

mere speculation, must support the conviction”)

(internal quotation marks omitted)). And even if the

calls did relate to the robbery, that would only show,

at most, that Henning knew the robbery was

happening, unless there was other testimony or

evidence that through these calls he intentionally

participated in the robbery. And there wasn’t.

The same is true of evidence that “Henning drove

to the Del Amo mall on one occasion with coconspirators when the robbery was aborted.” App.3.

CW1 testified about the aborted robbery, but he did

not say that Henning agreed to participate or did

anything in connection with it. SER 734–36. Neither

did any other witness, and there was no additional

23

evidence about Henning’s role in the aborted robbery.

As with the other evidence cited by the Ninth Circuit,

this evidence shows at most that Henning was aware

of the robbery and present at a time when no crime

was committed.

Only in the Ninth Circuit would this “mere

presence” evidence be enough to convict. In every

other Circuit, the district court’s order of acquittal

would have been affirmed. This Court should resolve

this split by reversing the Ninth Circuit’s decision.

5. This Case Also Implicates a Circuit Split

Over the Equipoise Rule

Henning also would have been acquitted in every

federal court of appeals that has adopted the equipoise

rule for insufficiency of evidence. As explained, supra

at 10–13, the equipoise rule requires acquittal when

the evidence is “at least as consistent with innocence

as with guilt.” United States v. D’Amato, 39 F.3d 1249,

1256 (2d Cir. 1994), as amended (Nov. 15, 1994)

(quoting United States v. Mulheren, 938 F.2d 364, 372

(2d Cir. 1991)). Under that rule, even if the evidence

of Henning’s presence at the scene of a crime were

consistent with guilt, he would be acquitted because

the evidence would be equally consistent with

innocence.

The Ninth Circuit, however, has rejected the

equipoise rule. Nevils, 598 F.3d at 1167. That puts

the Ninth Circuit in conflict with the vast majority of

circuits—the First, Second, Sixth, Seventh, Eighth,

Tenth, Eleventh, and D.C. Circuits—each of which has

endorsed the rule. E.g., United States v. López-Díaz,

794 F.3d 106, 111–12 (1st Cir. 2015); D’Amato, 39 F.3d

at 1256; United States v. Caseer, 399 F.3d 828, 840

24

(6th Cir. 2005); United States v. Johnson, 592 F.3d

749, 755 (7th Cir. 2010); United States v. Wright, 835

F.2d 1245, 1249 n.1 (8th Cir. 1987); United States v.

Lovern, 590 F.3d 1095, 1107, 1109 (10th Cir. 2009);

Cosby v. Jones, 682 F.2d 1373, 1382–83 (11th Cir.

1982); Curley v. United States, 160 F.2d 229, 233 (D.C.

Cir. 1947). The Ninth Circuit shares its minority

approach with the Third and Fifth Circuits, both of

which have rejected the equipoise rule. United States

v. Caraballo-Rodriguez, 726 F.3d 418, 431–32 (3d Cir.

2013) (en banc); United States v. Vargas-Ocampo, 747

F.3d 299, 301 (5th Cir. 2014) (en banc).

This case thus implicates a clear and outcomedeterminative split over the equipoise rule. The Court

should grant review to resolve that split.

B. The Issue Presented Is Important Because

the Decision Below Would Allow Widespread

Convictions for Innocent Conduct

The Ninth Circuit’s decision is not simply a one-off

mistake, bad for Henning but not anyone else.

Allowing the Ninth Circuit’s analysis to stand would

in turn allow convictions to stand based on little more

than where defendants were and what company they

kept.

That is particularly problematic given how “the

reach of federal criminal law has expanded” in recent

years. Kansas v. Garcia, 140 S. Ct. 791, 806 (2020).

By one estimate, the U.S. Code now “contains more

than 4,500 criminal statutes, not even counting the

hundreds of thousands of federal regulations that can

trigger criminal penalties.” Gamble v. United States,

139 S. Ct. 1960, 2008 (2019) (Gorsuch, J., dissenting);

see Yates v. United States, 574 U.S. 528, 569–70 (2015)

25

(Kagan, J., dissenting) (calling the tendency toward

“overcriminalization and excessive punishment” a

“pathology in the federal criminal code”). As a result,

there is probably “no one in the United States over the

age of 18 who cannot be indicted for some federal

crime.” Gamble, 139 S. Ct. at 2008 (Gorsuch, J.,

dissenting) (internal quotation marks omitted).

Because courts “do[] not get to rewrite the law,”

Yates, 574 U.S. at 570 (Kagan, J., dissenting), they

can’t cure this expansion. But they shouldn’t make it

worse. That is precisely what the Ninth Circuit did,

by expanding the universe beyond the individuals who

actually participated in the crime to include anyone

who knew about it and was somewhere nearby.

Take for example, criminal copyright infringement

(17 U.S.C. § 506): If a digital pirate uploads a hit song

on a file-sharing website, the Ninth Circuit could

uphold a conviction of the pirate’s roommate if the

roommate knew about it. Or, as here, courts would

affirm the convictions of anyone who knew about a

Hobbs Act robbery before it was committed and who

was then found near the crime scene, even if, as was

the case with Henning, there is no evidence they did

anything to assist the robbery.

By not giving putative offenders notice of “what the

law demands,” expansive criminal liability “invite[s]

the exercise of arbitrary power” by “allowing

prosecutors and courts to make it up.” Sessions v.

Dimaya, 138 S. Ct. 1204, 1223–24 (2018) (Gorsuch, J.,

concurring). That is why this Court has repeatedly

rejected analyses of criminal statutes that would

“criminalize a broad range of day-to-day activity.”

United States v. Kozminski, 487 U.S. 931, 949 (1988);

26

see also Marinello v. United States, 138 S. Ct. 1101,

1109 (2018); McDonnell v. United States, 136 S. Ct.

2355, 2372–73 (2016); Yates, 574 U.S. at 547–48. This

Court should do the same with analyses of criminal

convictions that would uphold convictions based on

mere presence.

CONCLUSION

The Court should summarily reverse the Ninth

Circuit’s judgment or, in the alternative, grant the

petition.

Respectfully submitted,

I. Cason Hewgley IV

Anne M. Voigts

KING & SPALDING LLP

Counsel of Record

1700 Pennsylvania Ave. NW KING & SPALDING LLP

Washington, DC 20006

601 South California Ave.

(202) 737-0500

Suite 100

Palo Alto, CA 94304

W. Scott Cameron

(650) 422-6700

Matthew V.H. Noller

KING & SPALDING LLP avoigts@kslaw.com

621 Capitol Mall

Suite 1500

Sacramento, CA 95814

(916) 321-4800

Counsel for Petitioner

July 2, 2020