A published Ninth Circuit panel held that murder-for-hire resulting in death is not categorically a crime of violence under the federal solicitation statute, requiring two convictions against James Terry Henrikson to be vacated.
What happened
The Ninth Circuit on Wednesday wiped out two remaining solicitation convictions against James Terry Henrikson, holding in a published opinion that murder-for-hire resulting in death is not categorically a crime of violence under the federal solicitation statute.
The panel affirmed in part, reversed in part and remanded a 28 U.S.C. § 2255 ruling with instructions to vacate Counts 7 and 8, the two solicitation counts the district court had left intact after already vacating two other solicitation convictions under the Ninth Circuit's 2022 Linehan precedent.
The decision matters for federal criminal practitioners because it extends the Ninth Circuit's categorical-approach analysis to the death-results version of 18 U.S.C. § 1958(a). Even when a murder-for-hire violation results in death, the panel said, the offense does not always require the purposeful, knowing or extremely reckless use of force needed to serve as a predicate for solicitation to commit a crime of violence under 18 U.S.C. § 373(a).
Henrikson was convicted in 2016 of 11 counts, including murder-for-hire, conspiracy, four solicitation counts and a heroin conspiracy count, after evidence that he hired a hit man who killed business associates Kristopher Clarke and Douglas Carlile and separately hired another hit man for killings that never occurred. In 2023, he moved under Section 2255 to vacate the four solicitation convictions.
The district court vacated Counts 9 and 10 because they involved solicitations that did not result in death, but it refused to vacate Counts 7 and 8 because those counts were tied to the deaths of Clarke and Carlile. The Ninth Circuit granted a certificate of appealability on whether murder-for-hire resulting in death under Section 1958(a) is a crime of violence for purposes of Section 373.
Writing for the panel, Judge William A. Fletcher said the court would not use the concurrent sentence doctrine to avoid the merits, even though the challenged sentences ran concurrently with unchallenged life sentences. The panel said the merits had already been resolved below and fully briefed and argued on appeal, so declining review would not significantly advance judicial economy.
On the merits, the panel concluded that Congress intentionally omitted a mens rea requirement from Section 1958(a)'s death-results element. The opinion said the statute already includes mens rea requirements elsewhere, so there was "no need to add an additional mens rea requirement" to the separate death-results element.
The panel declined to follow the Fourth Circuit's reasoning in United States v. Runyon, saying that decision relied on a realistic-probability test the U.S. Supreme Court later eliminated for federal offenses and improperly carried mens rea from other parts of Section 1958(a) into the death-results element. Because a defendant could violate Section 1958(a) through an accidental killing, the Ninth Circuit held the offense is not categorically a crime of violence and remanded for vacatur of Henrikson's remaining solicitation convictions.