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.*

_________________

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.