U.S. v. Alexander

Decision Date11 April 1995
Docket Number93-50612,Nos. 93-50595,s. 93-50595
Citation48 F.3d 1477
Parties41 Fed. R. Evid. Serv. 774 UNITED STATES of America, Plaintiff-Appellee, v. Gary Edward ALEXANDER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jonathan HARRINGTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anthony F. HICKS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Willie James HARRIS, Defendant-Appellant. * , 93-50663 and 93-50831.
CourtU.S. Court of Appeals — Ninth Circuit

William A. Dougherty, P.C., Villa Park, CA, for defendant/appellant Gary Edward Alexander.

C. Thomas McDonald, Santa Ana, CA, Gail Ivens, Pasadena, CA, and H. Dean Steward, Asst. Federal Public Defender, Santa Ana, CA, for defendants-appellants.

Stephen G. Wolfe, Asst. U.S. Atty., Santa Ana, CA, for plaintiff-appellee.

Appeals from the United States District Court for the Central District of California.

Before: WIGGINS, KOZINSKI and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

These are the consolidated appeals of defendants Gary Edward Alexander, Jonathan Harrington, Anthony F. Hicks and Willie James Harris. The defendants appeal their convictions for conspiracy to commit robbery, in violation of 18 U.S.C. Sec. 371; armed bank robbery, in violation of 18 U.S.C. Sec. 2113(a) and (d); and use of a firearm during commission of a crime of violence, in violation of 18 U.S.C. Sec. 924(c).

The defendants contend their Sixth Amendment right to trial by an impartial jury was violated because the district court (1) failed to strike for cause two prospective jurors who had previously been victims of robbery, and (2) replaced a juror with an alternate on the last day of trial when the juror's child became ill and had to be taken

to a hospital. They also argue the district court committed reversible error by admitting the government's FDIC "Certificate of Proof of Insured Status" as evidence that the victim bank was federally insured at the time of the robbery. In addition, defendant Hicks seeks reversal of his conviction on the ground that the district court erroneously admitted, for impeachment purposes, evidence of his prior drug and robbery convictions. Defendant Alexander contends the district court should have granted his motion for judgment of acquittal because he was not properly identified at trial

The defendants also appeal their sentences. They argue their sentences should be recalculated because the sentence enhancement applied for robbery of a financial institution, pursuant to United States Sentencing Guidelines [hereinafter USSG] Sec. 2B3.1(b)(1), deprived them of their right to substantive due process. They also contend other provisions of the guidelines under which they were sentenced unconstitutionally permitted double counting of various sentence enhancements. Defendant Harrington also argues he should have been given a two-point reduction in his base offense level for acceptance of responsibility. Finally, defendant Hicks argues the district court improperly enhanced his sentence based on his prior drug conviction, because his guilty plea to that crime was neither knowing, intelligent nor voluntary.

We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm all convictions and all sentences.

FACTS

On January 24, 1992, four armed men--all wearing blue coveralls, gloves, and ski masks--burst into the First Interstate Bank in Victorville, California. They ordered everyone present in the bank to lie down, forced two of the bank's employees to open the vault, and emptied cash from the vault into a duffle bag. After taking the money, the robbers fled in a van. The total amount stolen was $331,951.

The police had been alerted to the robbery by a passerby. As a result, officers arrived at the scene in time to pursue the van as it left the bank. A high-speed chase ensued in which the occupants of the van fired several shots at the police.

Eventually, the van pulled into a K-Mart parking lot. The four robbers got out of the van and split up. Two of them got into a Camaro and the other two got into a Camry. The vehicles sped away in different directions, with the police in pursuit. The chase continued at speeds up to 110 miles per hour, with more shots being fired at the police from the fleeing vehicles.

Eventually, the Camaro stalled; defendants Harrington and Alexander were arrested inside the car. The Camry also came to a stop, but its occupants continued their flight on foot. After a brief chase, police arrested defendants Harris and Hicks a short distance from the abandoned Camry.

Remaining pertinent facts are discussed in relevant portions of the discussion that follows.

DISCUSSION
I. Sixth Amendment Violations
A. Denial of Challenges for Cause

During jury selection, prospective jurors Mark Austin and Phyllis Kenny disclosed they had been victims of robberies. Austin said he "believed" he nonetheless could be fair and impartial despite the subject matter of the case--armed bank robbery. Upon additional interrogation by the court, Austin stated unequivocally that he could put aside his own experience and act fairly. 1 Prospective juror Kenny twice said she "believed" she could be fair and impartial despite her experience, but never gave a more definitive statement. 2

The defense challenged both prospective jurors Austin and Kenny for cause but the district court, satisfied that they could act fairly, denied the challenges. The defense then used peremptory challenges to excuse Austin and Kenny. Ultimately, the defense exhausted its full allotment of peremptory challenges. The defendants now contend that the district court's denial of their challenges for cause violated their Sixth Amendment right to an impartial jury, because it forced them to exercise peremptory challenges they otherwise could have used against other prospective jurors.

We reject the defendants' argument. First, we note that, in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), the Supreme Court specifically held that loss of a peremptory challenge because of a trial court's improper failure to grant a challenge for cause does not amount to a violation of a constitutional right without a showing of prejudice. Id. at 88, 108 S.Ct. at 2278. As the Court explained:

[P]eremptory challenges are not of constitutional dimension. They are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.

Id. (citations omitted).

In the present case, the defendants removed prospective jurors Austin and Kenny with peremptory challenges. They have not asserted that the jury which finally tried them was in any way biased or prejudiced. Consequently, they have not shown any prejudice from the court's denial of their challenges for cause.

In arguing they should not be required to show prejudice, the defendants rely on our decision in United States v. Claiborne, 765 F.2d 784, 799-800 (9th Cir.1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1636, 90 L.Ed.2d 182 (1986), and the Fifth Circuit's decision in United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.1976). These cases are not persuasive. We have specifically stated that, because it is a pre-Ross case, Claiborne is no longer good law. United States v. Baker, 10 F.3d 1374, 1404 n. 12 (9th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994). Although the Fifth Circuit has not explicitly overruled Nell, it has recognized that a showing of prejudice is required for reversal of a conviction based on a trial court's erroneous denial of a challenge for cause. See United States v. Mendoza-Burciaga, 981 F.2d 192, 197-98 (5th Cir.1992) (denying a reversal because the defendant had not alleged prejudice from having to use a peremptory challenge to exclude a potential juror--no comment on Nell ), cert. denied, --- U.S. ----, 114 S.Ct. 356, 126 L.Ed.2d 320 (1993). But see United States v. Bryant, 991 F.2d 171, 174 n. 3 (5th Cir.1993) (expressing doubt as to whether the Nell or Mendoza-Burciaga line of cases is controlling); United States v. Munoz, 15 F.3d 395, 398 n. 1 (5th Cir.1994) (suggesting that Ross may not be applicable to review of federal criminal convictions on direct appeal).

Apart from the defendants' failure to show prejudice, the district court determined that prospective jurors Austin and Kenny could serve impartially. This determination was neither an abuse of discretion nor manifest error. See United States v. Egbuniwe, 969 F.2d 757, 762 (9th Cir.1992) (Because "determination[s] of impartiality, in which demeanor plays such an important part, [are] particularly within the province of the trial judge," an appellate court should not disturb a district court's decision to deny challenges for cause without a showing of abuse of discretion or manifest error.) (quoting Ristaino v. Ross, 424 U.S. 589, 595, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976)). See also United States v. Baker, 10 F.3d 1374, 1403 (9th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994); United States v. Poschwatta, 829 F.2d 1477, 1484 (9th Cir.1987), cert. denied, 484 U.S. 1064, 108 S.Ct. 1024, 98 L.Ed.2d 989 (1988).

Prospective juror Austin initially said he "believed" he could be impartial, but he ultimately stated definitively that he could separate his experience from the facts of the case and act fairly. The district court was not required to excuse him for cause based solely on his initial response. See United States v. Daly, 716 F.2d 1499, 1507 (9th Cir.1983) (finding no abuse of discretion in the district court's refusal to remove for cause a prospective juror who initially said he would "try" to be...

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