NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 12 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10357
Plaintiff - Appellee, D.C. No. 3:12-cr-08088-PGR-2
v.
MEMORANDUM*
SHAWN LORIN HENDERSON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Submitted March 10, 2015**
San Francisco, California
Before: BYBEE, CALLAHAN, and OWENS, Circuit Judges.
Shawn Henderson appeals his conviction for felon in possession of a firearm
and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Having
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Henderson argues that the government presented inconsistent theories at his
trial. A prosecutor violates a defendant’s due process rights by pursuing
fundamentally inconsistent theories against separate defendants for the same crime
if the prosecutor knowingly uses false evidence or acts in bad faith. Nguyen v.
Lindsey, 232 F.3d 1236, 1240 (9th Cir. 2000). The government did not act in bad
faith or use false evidence when it argued that Henderson possessed the same
handgun that his co-defendant admitted to possessing in the factual basis of his
plea agreement; and, these were not fundamentally inconsistent theories. See id.
(“[Although] the prosecutor made different arguments at each trial, . . . [there was
no due process violation because] these arguments were consistent with the
evidence actually adduced at each trial.”).
Henderson also argues that the district court improperly rejected his motion
to dismiss counsel, which he raised for the first time after trial (and after the jury
acquitted him on one count and failed to reach a verdict on another). We consider
three factors when assessing whether a motion to dismiss counsel was properly
denied: (1) whether the district court’s inquiry was adequate, (2) the extent of the
conflict between the defendant and his counsel, and (3) the timeliness of the
defendant’s motion weighed against any inconvenience or delay that would result
from granting the motion. United States v. Corona-Garcia, 210 F.3d 973, 976 (9th
2 13-10357
Cir. 2000). Based on these factors, the district court did not abuse its discretion in
rejecting Henderson’s motion. See id. at 976-77.
AFFIRMED.
3 13-10357