                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 21 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50005

                Plaintiff-Appellant,            D.C. No.
                                                8:16-cr-00029-CJC-7
 v.

JUSTIN MARQUES HENNING, AKA J-                  MEMORANDUM*
Stone,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                     Argued and Submitted November 4, 2019
                              Pasadena, California

Before: MURGUIA and HURWITZ, Circuit Judges, and GUIROLA,** District
Judge.

      A jury found Justin Henning guilty of conspiracy to commit Hobbs Act

robbery, Hobbs Act robbery, and brandishing a firearm in furtherance of a crime of

violence in connection with a “smash-and-grab” robbery at a jewelry store in the Del


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Louis Guirola, Jr., United States District Judge for the
Southern District of Mississippi, sitting by designation.
Amo mall (“the Del Amo Mall Robbery”) in Los Angeles, California. The district

court then granted Henning’s motion for acquittal on all charges and conditionally

granted a new trial. We have jurisdiction over the government’s appeal under 28

U.S.C. § 1291. We reverse the judgment of acquittal but affirm the grant of a new

trial.

         1.   Viewing the evidence in the light most favorable to the prosecution, a

reasonable jury could have found that Henning was guilty of Hobbs Act robbery.

See United States v. Nevils, 598 F.3d 1158, 1164-65 (9th Cir. 2010) (en banc). Two

co-conspirators testified that Henning was the “emergency pickup” or “extra driver”

for the robbery, and that he attended a planning meeting shortly before the Del Amo

Mall Robbery at which individual roles were discussed. See United States v.

Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993) (“The uncorroborated testimony of

an accomplice is sufficient to sustain a conviction unless it is incredible or

insubstantial on its face.”). In addition, cell phone records showed 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 co-conspirators.

         2.   The evidence, viewed in the light most favorable to the prosecution,

was also sufficient to support Henning’s conspiracy conviction. See United States

v. Si, 343 F.3d 1116, 1123-24 (9th Cir. 2003). A co-conspirator testified that

Henning attended two meetings at which the robbery was planned. Henning drove


                                          2
to the Del Amo mall on one occasion with co-conspirators when the robbery was

aborted and was near the mall and in contact with co-conspirators when the robbery

occurred. This evidence established both a conspiratorial agreement and Henning’s

knowledge of the conspiratorial goal. See United States v. Mesa-Farias, 53 F.3d

258, 260 (9th Cir. 1995) (“Agreement may be shown by evidence of coordinated

activity between the defendant and the alleged coconspirators.”).

      3.     There was also sufficient evidence to support Henning’s 18 U.S.C.

§ 924(c) conviction for brandishing a firearm in furtherance of a crime of violence.

See United States v. Allen, 425 F.3d 1231, 1234 (9th Cir. 2005) (stating that a

defendant may be criminally liable for a § 924(c) violation as a conspirator if the use

of a gun was “reasonably foreseeable” and “in furtherance of the conspiracy”)

(internal quotation marks omitted). A co-conspirator testified that Henning attended

the first planning meeting where a gun was present and its potential use in the

robbery was discussed. See Rosemond v. United States, 572 U.S. 65, 77 (2014)

(holding that a defendant can also be convicted of aiding and abetting a § 924(c)

violation when he actively participates in the crime of violence and “knows that one

of his confederates will carry a gun”).

      4.     The district court did not “clearly and manifestly” abuse its discretion

in granting Henning a new trial on all three counts. See United States v. A. Lanoy

Alston, D.M.D., P.C., 974 F.2d 1206, 1212 (9th Cir. 1992) (internal quotation marks


                                          3
omitted). “[D]espite the abstract sufficiency of the evidence to sustain the verdict,”

id. at 1211 (internal quotation marks omitted), the district court accurately recited

the legal standard for granting a new trial, and identified significant issues with the

evidence underlying the verdict. The primary pickup driver for the Del Amo Mall

Robbery testified that he 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. “Given the district

judge’s familiarity with the evidence and his ability to evaluate the witnesses, and in

light of the deferential standard of review we are bound to apply in reviewing an

order granting a new trial, we cannot say the district judge abused his discretion.”

Id. at 1213.

      REVERSED IN PART AND AFFIRMED IN PART.




                                          4
