165 F.3d 918 (9th Cir. 1998), 97-50393, U.S. v. Blanton

Docket Nº:97-50393.
Citation:165 F.3d 918
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bryan Lamar BLANTON, Defendant-Appellant.
Case Date:November 10, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 918

165 F.3d 918 (9th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bryan Lamar BLANTON, Defendant-Appellant.

No. 97-50393.

No. CR 96-850-JMI

United States Court of Appeals, Ninth Circuit

November 10, 1998

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted Oct. 7, 1998--Pasadena, California.

Appeal from the United States District Court for the Central District of California James M. Ideman, District Judge, Presiding.

Before BRUNETTI, FERNANDEZ, and MCKEOWN, Circuit Judges.

MEMORANDUM 1

Bryan Lamar Blanton appeals his conviction on the charges of conspiracy to commit bank robbery in violation of 18 U.S.C. § 371, armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d), and using or carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. Motion to Suppress

Blanton claims that the district court erred by denying his motion to suppress evidence obtained pursuant to a stop of his vehicle. He contends that, under the totality of the circumstances, the police officers lacked founded suspicion for the stop. He argues that the only basis for the officers' decision to stop him was his race and the officers' subjective impressions of his appearance. These contentions fail.

First, although race or color alone cannot serve as a basis for making an investigatory stop, "racial appearance may be considered as a factor contributing to a founded suspicion of criminal conduct." United States v. Fouche, 776 F.2d 1398, 1402-03 (9th Cir.1985), cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988), overruled on other grounds, California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Here, in light of the broadcast description that the suspects were young black males, the same race, gender, and age as Blanton, the police could permissibly consider Blanton's race and color as one factor in deciding whether to make a stop.

Second, the record reflects that before Officer Smith stopped Blanton he knew that a nearby bank had been robbed by three armed men who were seen fleeing into the mobile home park adjacent to where Blanton was parked and running in Blanton's general direction. He was also aware that it was unusual to see cars parked on the particular street where Blanton's car was located. He observed Blanton, who appeared to be quite nervous and was looking around suspiciously, begin to pull away when he drove toward him with lights flashing. Under the totality of circumstances, Officer Smith was aware of articulable facts leading to a reasonable suspicion that Blanton was involved in the bank robbery. United States v. Fouche, 776 F.2d at 1402.

Blanton also contends that, even if there was reasonable suspicion to justify an investigatory stop, the district court erred in denying his motion to suppress because the force used to effectuate the stop transformed the encounter into an arrest lacking probable cause. We disagree. Officer Smith's use of force was justified by the fact that he was holding the defendant alone, was aware that three armed suspects were reportedly traveling in his general direction, and was unable to see if anyone else was present in Blanton's car. We find that under these circumstances, Officer Smith was justified in holding Blanton at gun point until another police officer arrived to assist him. See United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1991); Washington v. Lambert, 98 F.3d 1181, 1189 (9th Cir.1996); Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1971).

II. Prosecutorial Misconduct

  1. Comments on Defense Tactics

    Blanton claims that the government's disparagement of defense counsel's "tactics" during its rebuttal argument violated his Fifth and Sixth Amendment rights. In particular, Blanton asserts that the government's comments concerning defense counsel's opening statement were improper and required the district court to grant Blanton's motion for a new trial.

    Both the government and defense counsel are given wide latitude in closing argument and may strike hard blows based on the evidence in the case and reasonable inferences drawn from that evidence. United States v. Vaccaro, 816 F.2d 443, 451 (9th Cir.), cert. denied, 484 U.S. 928, 108 S.Ct. 295, 98 L.Ed.2d 255 (1987). Even where a prosecutor's comments exceed the permissible bounds, this Court will reverse a conviction only where the comments "are so gross as to probably prejudice the defendant, and the prejudice is not neutralized by the trial judge." United States v. Lester, 749 F.2d 1288, 1301 (9th Cir.1984).

    Viewing the government's rebuttal closing argument in context, United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), we find that the government's comments regarding the defense's tactics did not amount to prejudicial error. The prosecutor's comments were, to a certain extent, invited by defense counsel's closing arguments and therefore were not entirely improper. See United States v. Parker, 991 F.2d 1493, 1499 (9th Cir.), cert. denied, 510...

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