United States v. Henson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 96-50817
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERALD JOE HENSON, a/k/a Jerry Henson,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-95-CR-154-6
- - - - - - - - - -
December 4, 1997
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:1

Gerald Joe Henson appeals his conviction and sentence for

conspiracy to defraud the United States by devising a scheme to

utter counterfeit securities, and for aiding and abetting the

uttering of counterfeit securities, the possession of false

papers to defraud the United States, and mail fraud, in violation

of 18 U.S.C. §§ 2, 371, 513, 1002, and 1341. Henson raises

myriad arguments in support of his appeal, none of which entitles

him to relief. Accordingly, his conviction and sentence are

1
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
 No. 96-50817
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AFFIRMED. For ease of explication, we group Henson’s arguments

into eleven categories which we address in turn.

Henson argues first that venue did not properly lie in the

Western District of Texas because none of his alleged criminal

actions occurred there. The Constitution guarantees criminal

defendants the right to be tried in the state where their alleged

crimes were committed, U.S. Const. art. III, § 2, cl. 3, amend.

VI, and the Federal Rules of Criminal Procedure provide that

crimes shall generally be prosecuted in the district in which

they were committed, Fed. R. Crim. P. 18. For conspiracy

offenses, however, the crime is considered to have occurred, and

therefore venue is proper, where the agreement was formed and

where any overt act in furtherance of the conspiracy took place.

United States v. Pomranz, 43 F.3d 156, 158-59 (5th Cir. 1995).

Similarly, venue for aiding and abetting offenses does not

require that the defendant have been physically present in the

district; venue is proper if the principal committed the

substantive crime there. United States v. Winship, 724 F.2d

1116, 1125 (5th Cir. 1984). In this case, evidence showed that a

portion of each substantive offense underlying the conspiracy and

aiding and abetting charges brought against Henson occurred in

the Western District of Texas. Thus, venue was proper.

Second, Henson offers numerous arguments in an effort to
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show that the district court lacked jurisdiction.2 We find these

arguments to be wholly without merit.

Third, Henson raises several objections to the sufficiency

of the indictment brought against him. He argues that the

indictment was defective because: 1) the conspiracy count failed

to allege the object of the conspiracy with respect to him; 2)

Counts Two through Five are duplicitous; and 3) the indictment

failed to allege that the agreement was carried out by deceitful

or dishonest means, an essential element of all the counts.3 Our

review of the record does not reveal any indication that these

objections were raised prior to trial.

Objections to defects in an indictment, with the exceptions

of assertions that an indictment fails to show jurisdiction or to

charge an offense, are waived if not raised before trial. Fed.

R. Crim. P. 12(b)(2), (f). The exceptions do not cover Henson’s

claim regarding duplicity which is, therefore, deemed to have

2
Henson appears to raise the following jurisdictional
arguments: 1) that, because he never mailed a certified money
order interstate, there was no commercial nexus to support
federal jurisdiction; 2) that there was no jurisdiction because
the indictment does not cite implementing regulations for the
statutes under which Henson was charged; 3) that the statutes
under which Henson was convicted are unconstitutional because
they lack enacting clauses; and 4) that the grand jury, the
district court, the magistrate judge, and the U.S. Attorney
involved in this case were without authority to act because no
regulations were promulgated to implement the statutes under
which Henson was charged, and the statutes’ reach is therefore
limited to territories not including the fifty states.
3
Henson also challenges the indictment on the grounds that
Counts One, Four, & Five failed to allege a commercial nexus.
The crimes charged plainly do not require a commercial nexus.
Accordingly, we reject this claim without further discussion.
 No. 96-50817
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been waived. See United States v. Baytank (Houston), Inc., 934

F.2d 599, 608-09 (5th Cir. 1991).4

The remaining challenges to the indictment, claims that the

indictment failed to state an essential element of the conspiracy

charge, fit within the exception for objections to failure to

charge an offense. See United States v. Wilson, 884 F.2d 174,

179 (5th Cir. 1989). If first challenged on appeal, however, “an

indictment will be sufficient unless it is so defective that by

any reasonable construction, [it fails to] charge an offense for

which the defendant is convicted.” United State v. Wylie, 919

F.2d 969, 972 (5th Cir. 1990) (internal quotation marks and

citations omitted).

Henson argues that Count One failed to charge the object of

the conspiracy with respect to him because his signature was not

found on any bogus securities instrument. Henson misunderstands

the requirements of a conspiracy charge. A conspiracy under 18

U.S.C. § 371 requires: “[1] an agreement between two or more

persons to defraud the United States or to violate a law of the

United States, [2] that one of the persons committed an overt act

4
We note that the indictment did not join multiple offenses
within counts. Thus, had we reached the merits of this
objection, we would not have found it valid. See id. Moreover,
to the extent Henson intended in his discussion of duplicity to
raise a claim of double jeopardy, such an objection would not
have prevailed either. A defendant may be prosecuted for both
aiding and abetting and conspiring to commit the same offense,
United States v. Payan, 992 F.2d 1387, 1392 (5th Cir. 1993), and
the various aiding and abetting charges brought against Henson
each describe crimes with different elements.
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in furtherance of the conspiracy, and [3] that the defendant

possessed the requisite intent to further an unlawful objective

of the conspiracy.” United States v. Hopkins, 916 F.2d 207, 212

(5th Cir. 1990) (citations omitted). As this language indicates,

an indictment need not allege that any particular conspirator

committed any particular overt act.

The indictment against Henson alleges both an agreement to

defraud the federal Government and an agreement to violate laws

of the United States. The objects of the conspiracy, as clearly

stated in the indictment, are interference with the collection of

income tax, furnishing counterfeit securities, and using the

mails to do so. Thus, the indictment is not defective in its

statement of the objects of the conspiracy.

In his final challenge to the indictment, Henson asserts

that Count One lacks an essential element of § 371 because it

does not state that the agreement was carried out by deceitful or

dishonest means.5 “[A]n indictment is sufficient if it contains

the elements of the offense charged and fairly informs a

defendant of the charge against him and enables him to plead

acquittal or conviction in bar of future prosecutions for the

same offense.” United States v. Hagmann, 950 F.2d 175, 183 (5th

Cir. 1991). As we have already noted, § 371 has three elements.

5
Henson contends that the other counts in the indictment
are also insufficient because they lack allegations of deceit or
dishonesty. As the Government points out, however, this
contention is plainly false with respect to the other counts.
 No. 96-50817
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See Hopkins, 916 F.2d at 212. Each of the three is clearly

articulated in Count One of the indictment. Thus, Henson was

fairly informed of the charges against him, and Count One was

sufficient.

Henson mistakenly relies on Hammerschmidt v. United States,

265 U.S. 182 (1924), and United States v. Caldwell, 989 F.2d 1056

(9th Cir. 1993), to argue that an explicit allegation of deceit

or dishonesty is required. These cases are inapposite because

they deal with situations in which the term “defraud” in § 371

and its predecessor statute is broadly construed to go beyond its

lay meaning. See Hammerschmidt, 265 U.S. at 187-88; Caldwell,

989 F.2d at 1060. The charge against Henson does not raise the

same concerns because it falls within the narrower, lay meaning

of the term, and therefore entails the requisite sense of deceit

and dishonesty without a separate allegation of such.

Fourth, Henson argues that the conspiracy count against him

must be dismissed because the conspiracy counts against his

codefendants were dismissed. This argument is without merit. A

conspiracy count can stand against one conspirator regardless of

whether alleged co-conspirators are prosecuted. United States v.

Lance, 536 F.2d 1065, 1068 (5th Cir. 1976).

Fifth, Henson challenges the sufficiency of the evidence as

to each count for which he was convicted.

In evaluating the sufficiency of the evidence, [this court]
must determine whether, viewing the evidence and the
inferences that may be drawn from it in the light most
favorable to the verdict, a rational jury could have found
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the essential elements of the offense beyond a reasonable
doubt. [This court] must accept all credibility choices
that support the jury’s verdict.

United States v. Harris, 25 F.3d 1275, 1279 (5th Cir. 1994)

(internal quotation and citation omitted). We have carefully

reviewed the record and Henson’s arguments with regard to the

sufficiency of the evidence and find that a rational jury could

have found, beyond a reasonable doubt, each element of each count

for which Henson was convicted.

Sixth, Henson raises several arguments contending that the

jury instructions were erroneous. He suggests first that the

jury instructions were defective in that they failed to inform

the jury of the distinction between an aider and abettor and a

principal. This objection was not raised at trial.

Although the instructions for Counts Two through Five listed

the elements of the offenses in terms of a defendant-principal,

the court instructed the jury on party liability. Because the

court’s instructions informed the jury of the necessity of

finding criminal intent and active participation on Henson’s part

in order to convict him of aiding and abetting, there is no plain

error. See United States v. Roberts, 483 F.2d 226, 228 (5th Cir.

1973).

Henson also argues for the first time on appeal that

materiality is an element of each offense for which he was

convicted and that the district court erred by not giving a

materiality instruction. For this point, Henson relies on United
 No. 96-50817
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States v. Gaudin, 515 U.S. 506 (1995), which found constitutional

error in failure to give an instruction on materiality where

materiality was an element of an offense charged. Henson cites a

number of cases in which materiality was found to be an essential

element of various criminal charges, leading to Gaudin error. He

cites no authority from this circuit, however, to show that

materiality is a required element of the particular charges in

this case. Given the lack of direct authority on this question,

it is hardly “clear and obvious” that the lack of jury

instructions on this point was error as is required under the

clear error standard. See United States v. Olano, 507 U.S. 725,

734 (1993).

Next, Henson argues that it was error not to instruct the

jury on a deceitful-or-dishonest-means element of the conspiracy

count.6 Henson did not request such an instruction. As

discussed above, this court has not recognized a deceitful-or-

dishonest-means element of § 371. See Hopkins, 916 F.2d at 212.

Thus, the error, if any, is not plain. Additionally, that the

jury was instructed that “[t]o act with intent to defraud means

to act with the specific intent to deceive or cheat,” leads us to

believe that the omission of a specific instruction on a deceit-

or-dishonest-means element was not prejudicial even if such an

6
As with his objection to the indictment, Henson appears to
claim that deceitful or dishonest means are an element of each of
the counts brought against him, but the claim is patently
unsupported with respect to Counts Two through Five, and we
therefore discuss it only with respect to Count One.
 No. 96-50817
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element was required.

Henson asserts that the court erred by giving a deliberate

ignorance, or willful blindness, instruction. In light of the

evidence adduced at trial regarding Henson’s knowledge of his

alleged co-conspirators’ actions, and of the ineffectiveness of

the payment instruments they were circulating, there was

sufficient basis for a deliberate ignorance instruction. See

United States v. Stouffer, 986 F.2d 916, 925 (5th Cir. 1993).

Finally with respect to instructions, Henson argues that the

court erred by refusing to give a requested instruction on good

faith or willfulness. The requested instruction explained that

Henson’s good-faith belief, or his honest mistake in judgment,

would be a defense to the offenses with which he was charged.

The instructions given by the district court listed the

elements of each offense charged, including the requirements of

specific intent, provided definitions of “knowingly” and

“wilfully,” and explained that the Government had the burden of

proving Henson’s guilt beyond a reasonable doubt. Henson argued

to the jury that he had lacked criminal intent, that he had

believed the economic views he had espoused, and that, for a

time, he had believed in the viability of the bogus payment

instruments. Because the jury instructions substantially

encompassed the requested instruction, and Henson’s ability to

present his good-faith defense was not impaired, the district

court did not abuse its discretion in refusing the instruction.
 No. 96-50817
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See Stouffer, 986 F.2d at 925-26.

Seventh, Henson argues that he is entitled to a new trial

because the issue of militias was raised during voir dire.

During voir dire, one of the venirepersons asked whether

Henson was associated with any militia group or secessionist

movement. The court asked whether such association would affect

the venireperson’s impartiality, and he answered in the

affirmative. Following a bench conference, that person was

excused for cause by the court.

Henson contends that he was deprived of an impartial trial

due to prejudice resulting from the circumstances surrounding

that excuse for cause. He argues that the other venirepersons

were aware of the reason for the bench conference and that, in

light of the publicity that the Republic of Texas and other

militia groups have received, the association of the defendant

with such groups tainted the jury.

“Absent an abuse of discretion and a showing that the rights

of the accused have been prejudiced thereby, the scope and

content of voir dire will not be disturbed on appeal.” United

States v. Okoronkwo, 46 F.3d 426, 433 (5th Cir. 1995) (citation

omitted).

After the dismissal of the venireperson who asked about

militias, the court made further inquiries, asking if any venire

member had heard or read anything about the Republic of Texas

and, if so, whether that information would affect their
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impartiality; the court received no affirmative answers.

Further, the jury was instructed to consider only the evidence

from the trial, not to view statements or objections by counsel

as evidence, and to refrain from assuming that any of the court’s

acts or statements during the trial were based on opinions on the

issues in the case. Based on these considerations, we find that

the district court did not abuse its discretion in its handling

of the issue of militias and the Republic of Texas. See United

States v. Garcia, 86 F.3d 394, 402 (5th Cir. 1996). We also find

that Henson has not shown that prejudice resulted from the voir

dire questioning.

Eighth, Henson argues that he did not receive a fair trial

because the jury was exposed to unspecified extrinsic evidence.

To the extent that the extrinsic evidence to which Henson refers

is evidence regarding the activities of his alleged co-

conspirators that went to establishing the elements of the

conspiracy charge, such evidence was admissible against him. If

Henson means to refer to some other evidence as extrinsic, he has

relinquished this point of appeal by failing to provide an

argument for this court’s consideration. See Fed. R. App. P.

28(a)(6); Trust Co. of La. v. N.N.P. Inc, 104 F.3d 1478, 1485

(5th Cir. 1997). We have throughout this appeal read Henson’s

brief liberally because he is a pro se litigant, but we will not

generate arguments out of whole cloth on his behalf. See Grant

v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
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Ninth, Henson argues that the jury was prejudiced against

him because it had knowledge that some of Henson’s alleged co-

conspirators had already been convicted. Henson did not object

at trial to the testimony that introduced this information, and

we therefore review for plain error. Myers, 104 F.3d at 80.

Under Federal Rule of Evidence 403, “Although relevant,

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice . . . .” “Relevant

evidence is inherently prejudicial; but it is only unfair

prejudice, substantially outweighing probative value, which

permits exclusion of relevant matter under Rule 403.” United

States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979). Rule 403's

gatekeeping effect should be applied “cautious[ly] and

sparingly].” Id.

Two of Henson’s alleged co-conspirators, O’Neill and Slater,

testified at trial. Because evidence of their convictions was

permissible under Rule 609, and in light of the cautionary

instruction given by the court concerning testimony of accomplice

witnesses, the prejudicial effect of the evidence did not

substantially outweigh its probative value. See United States v.

Borchardt, 698 F.2d 697, 701 (5th Cir. 1983).

Testimony concerning alleged co-conspirator Johnston’s

conviction came in during the cross-examination of defense

witness Ann Henson, defendant-Henson’s wife. The probative value

of the evidence concerned the timing of Johnston’s conviction:
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Henson and his wife sold a book, which had a chapter promoting

the use of the bogus payment instruments, after Henson had

knowledge of Johnston’s conviction, which arose from the

promotion and use of those instruments. The probative value of

this evidence, which went to negating Henson’s defense of being

an unwitting victim of the bogus instrument scheme, was not

substantially outweighed by any prejudicial effect. See Fed. R.

Civ. Pro. 403.

The convictions of two other alleged co-conspirators,

Wilkins and Forester, were mentioned when Slater and O’Neill were

asked to list the codefendants in their conspiracy prosecutions.

Any prejudicial effect of introducing these additional

convictions, even if it outweighed the probative value of the

testimony, did not affect Henson’s substantial rights because the

jury would in any event have been aware--because of trial

testimony that we have just explained was proper--of the

convictions of three of Henson’s alleged co-conspirators. Thus,

we find no plain error with respect to the admission of any of

the evidence regarding convictions of Henson’s alleged co-

conspirators.

Tenth, Henson challenges the district court’s sentencing

determination on several grounds. We review the district court’s

application of the Sentencing Guidelines de novo, and its

findings of fact for clear error. United States v. Peterson, 101

F.3d 375, 384 (5th Cir. 1996).
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Henson argues first that the district court erred in basing

his offense level in part on losses of $61 million when there was

no actual loss.7 Henson’s base offense level was 6, pursuant to

U.S.S.G. § 2F1.1(a),8 and the district court added seventeen

levels based on a loss calculated to be approximately $61

million. At sentencing, both sides agreed that the $61 million

figure reflected the total face value of the bogus instruments

uttered by the co-conspirators and placed into commerce.

Henson argues that it was improper to use the $61 million

figure in determining his sentence because no one suffered this

as actual loss. He also appears to challenge the figure as an

assessment of intended losses insofar as it stems from the

criminal activities of his co-conspirators. The Government does

not contend that there were actual losses, but that the

Sentencing Guidelines direct that intended losses be taken into

account. The Sentencing Guidelines prescribe that intended

loss be considered where it can be determined. Section 2F1.1,

comment (n.7). They also indicate that “all reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity” shall be taken into account

7
Henson also seems to argue that the allegation of a $61
million loss prejudiced his trial. Henson points to no place in
the record where the Government alleged a $61 million loss at
trial, and our review of the record finds such an allegation only
in the presentencing report. Thus, we discuss the allegation of
this loss only with respect to the sentencing.
8
The district court used the 1995 Sentencing Guidelines to
determine the appropriate sentencing range.
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in sentencing. U.S.S.G. § 1B1.3(a)(1)(B). In light of Henson’s

testimony admitting that he printed batches of the blank

instruments used in the conspiracy, the district court’s implicit

finding that the $61 million figure was reasonably foreseeable to

Henson is not clearly erroneous.

Henson next argues that the district court erred by granting

a two-level increase in Henson’s offense level based on a finding

of obstruction of justice pursuant to U.S.S.G. § 3C1.1. The

district court’s finding of obstruction of justice was based on

the probation officer’s recommendation, which cited Henson’s

refusal to comply in a timely manner with a court order to

provide handwriting samples, and Henson’s failure to testify

truthfully regarding his involvement with a bogus instrument

scheme in California. When Henson objected to the proposed

adjustment prior to sentencing, the district court heard

testimony from the officer who had served Henson with the court

order concerning handwriting samples. We have reviewed that

testimony, and find that the district court’s finding was not

clearly erroneous.

Henson also challenges his sentence on the grounds that his

offense level should not have been increased by two for “more

than minimal planning” pursuant to U.S.S.G. § 2F1.1(b)(2). More

than minimal planning is present when a case involves repeated

acts over a given period or more planning than what would be

typical for the offense in a simple form. U.S.S.G. § 1B1.1,
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comment.(n.1(f)); see id. 2F1.1, comment.(n.2). In light of

Henson’s extended involvement with his co-conspirators, which

included his printing checks, videotaping one of their seminars,

and promoting and selling the bogus payment instruments, the

district court’s finding of more than minimal planning is not

clearly erroneous. See United States v. Clements, 73 F.3d 1330,

1340-41 (5th Cir. 1996).

Eleventh, Henson argues that he received ineffective

assistance of trial counsel and that he has been denied effective

assistance of appellate counsel. We decline to review Henson’s

claims of ineffective assistance of trial counsel, without

prejudicing his opportunity to raise such claims in a

postconviction proceeding. See United States v. Higdon, 832 F.2d

312, 314 (5th Cir. 1987). In light of Henson’s proceeding pro se

on appeal and the lack of any request for appellate counsel, his

claim regarding appellate counsel is frivolous.

On the remaining issues raised, we detect no error. For the

foregoing reasons, we AFFIRM.