U.S. v. Banks
| Citation | 514 F.3d 959 |
| Decision Date | 29 January 2008 |
| Docket Number | No. 05-10053.,05-10053. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leland Devine BANKS, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Richard F. Cornell, Law Office of Richard F. Cornell, Reno, NV, for appellant Leland Devine Banks.
Russell E. Marsh, Assistant United States Attorney, United States Attorney's Office, Las Vegas, NV; for the appellee.
Appeal from the United States District Court for the District of Nevada; Kent J. Dawson, District Judge, Presiding. D.C. No. CR-04-00052-KJD,
Before: J. CLIFFORD WALLACE, ANDREW J. KLEINFELD, and JAY S. BYBEE, Circuit Judges.
ORDER AMENDING OPINION AND GRANTING IN PART APPELLANT'S MOTION FOR CLARIFICATION OR, IN THE ALTERNATIVE, FOR REHEARING AND AMENDED OPINION
The opinion, filed on October 25, 2007, slip opinion 14183, and appearing at 506 F.3d 756 (9th Cir.2007), is amended as follows:
I. At slip op. 14187, second full paragraph; 506 F.3d at 759, second full paragraph, replace:
2. At slip op. 14213, second full paragraph; 506 F.3d at 773, fourth full paragraph, replace:
With these amendments, the panel has voted to grant in part appellant's Motion for Clarification or, in the alternative, for Rehearing. Appellant's Motion for Clarification or, in the alternative, for Rehearing has been considered, and it is GRANTED IN PART. No further petitions for rehearing may be filed.
Leland Devine Banks was convicted of violence in aid of a racketeering enterprise ("VICAR"), use of a firearm in a crime of violence, and possession of a firearm by a convicted felon. He was sentenced to a total of 450 months in prison. Banks appeals his conviction and sentence, raising five alleged errors by the district court. First, he argues that the district court gave erroneous instructions for the VICAR counts. Second, he argues that the evidence was insufficient to convict him on the VICAR and use of firearm counts. Third, he argues that the district court erred in giving a "de facto Allen charge." Fourth, he argues that the district court erred in admitting into evidence the underlying facts of a prior felony conviction. Finally, he argues that cumulative error produced a miscarriage of justice.
We have jurisdiction under 28 U.S.C. § 1291, and we REVERSE his VICAR convictions and sentences on the basis that the district court's instructions to the jury were, erroneous. We REVERSE his convictions for use of a firearm in furtherance of a crime of violence because his VICAR convictions were essential elements of those crimes. We AFFIRM the district court in all other respects.
Leland Banks had issues with Kenny Gilmore. For starters, they belonged to rival Crips gangs in Las Vegas: Banks was a member of the Rolling 60s, and Gilmore belonged to the Valley View Crips. But Banks also had, or thought he had, a personal score to settle with Gilmore. Banks had once overheard Gilmore's girlfriend use the word "crab," apparently one of the most disrespectful names a Crips member can be called, and thought she was referring to him. Banks told Gilmore to "check his bitch," but Gilmore only retorted, "my baby's mama ain't no bitch."1 Banks, perhaps hoping to restore his honor, challenged Gilmore to a fight, but Gilmore declined.
Banks then initiated what he described as an "ongoing battle" with Gilmore. Banks launched the first disastrous salvo a couple of weeks after the perceived insult. Banks, high on PCP, saw Gilmore playing dice. Banks pulled his gun, but somebody, apparently a friend, of Gilmore's, approached Banks from behind and pistol-whipped him, sending him into a coma.
Banks, however, was not easily deterred. Shortly after being discharged from the hospital, Banks tried shooting Gilmore again but missed. Banks then sought reinforcements, enlisting his "little homies" to beat and shoot at Gilmore. This rather one-sided battle finally culminated on January 6, 2004, when Banks saw Gilmore in the neighborhood, grabbed his broken-stocked .22 caliber rifle, and climbed to the rooftop of the Kimberly Place Apartments, which offered him a clear line of sight to Gilmore, who was standing across the street in front of a 7-Eleven. Banks fired several shots at Gilmore but again missed his target. Gilmore and the store clerk fled into the store, where they stayed hidden with several customers until the police arrived.
Banks remained on the rooftop where he was discovered by Officer Garness of the Las Vegas Metropolitan Police Department ("LVMPD"), who was flying overhead in a police helicopter. The police Ordered Banks off the roof; after placing something near the air conditioner, he complied and was arrested. The police found the .22 caliber rifle hidden on the roof near the air conditioner.
Banks was ultimately tried on five counts: (1) attempted murder in violation of 18 U.S.C. § 1959(a)(5) (); (2) use of a firearm in relation to a crime of violence in violation of' 18 U.S.C. § 924(c)(1); (3) assault with a dangerous weapon in violation of 18 U.S.C. § 1959(a)(3) (VICAR); (4) another count involving use of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1); and (5) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) & (a)(2).
Prior to trial, Banks moved to sever the felon-in-possession count, but the prosecution offered to stipulate to the fact of the prior felony conviction, and the district court therefore denied the motion as moot. Also prior to trial, the government gave notice that it intended to present evidence of Banks's prior criminal acts for three reasons: (1) to establish his gang membership; (2) to show his motive for attempting to kill Gilmore; and (3) to establish that Banks's gang was a criminal enterprise for purposes of the VICAR statute. Banks did not move to preclude any of this evidence.
Trial began in October 2004. One of the prior criminal acts introduced by the government was the conduct that resulted in Banks's prior felony conviction: his stabbing of another individual, a man identified in the record only as Mr. Lindsey, in response to a perceived slight. Banks objected to introduction of this evidence but provided no basis for his objection other than that he had already stipulated to the fact of the prior conviction. After admonishing the prosecution to "stay away from the conviction," the district court admitted the evidence of the underlying act.
Jury deliberations began two days later. After some difficulty in reaching a verdict, followed by additional instructions from the court (described in greater detail below), the jury convicted Banks on all five counts. The district court sentenced Banks to a total of 450 months in prison: 120 months as to count one (the first VICAR count), 210 months as to count three (the second VICAR count), and 120 months as to count five (the felon-in-possession charge), all to run concurrently; 120 months each on counts two and four (the two use-of-a-firearm charges), running concurrently to each other, but consecutively to the sentences on counts one, three, and five; and 120 months as a criminal gang enhancement, to run consecutively to the other sentences. Banks timely filed this appeal.
On appeal, Banks raises five challenges to his convictions and sentence. Of these, we reject all but the first.
The VICAR statute provides that "[w]hoever, ... for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders [or] ... assaults with a dangerous weapon ... in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished." 18 U.S.C. § 1959(a) (emphasis added). In our prior decisions we have identified four elements required for a conviction under this statute: "(1) that the criminal organization exists; (2) that the organization is a racketeering enterprise; (3) that the defendant[ ] committed a violent crime; and (4) that [the defendant] acted for the purpose of promoting [his] position in a racketeering enterprise." United States v. Bracy, 67 F.3d 1421, 1429 (9th Cir.1995); see also ...
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