U.S. v. Allee, 01-3395.

• Decision Date: 22 August 2002
• Docket Number: No. 01-3395.,No. 01-3535.,01-3395.,01-3535.
• Citation: 299 F.3d 996
• Parties: UNITED STATES of America, Appellee, v. Justin J. ALLEE, Appellant. United States of America, Appellant, v. Justin J. Allee, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

299 F.3d 996

UNITED STATES of America, Appellee, v. Justin J. ALLEE, Appellant.

United States of America, Appellant, v. Justin J. Allee, Appellee.

No. 01-3395.

No. 01-3535.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2002.

Filed: August 22, 2002.

COPYRIGHT MATERIAL OMITTED

Jeff T. Courtney, argued, Omaha, Nebraska, for appellant.

Jan W. Sharp, argued, Asst. U.S. Attorney, Omaha, Nebraska, for appellee.

Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.

WOLLMAN, Circuit Judge.

Justin J. Allee appeals his convictions for conspiracy, bank robbery, carjacking and weapons violations. The government cross appeals the district court's decision to run Allee's sentence for a second violation of 18 U.S.C. § 924(c)(1) concurrently with his sentence for his first violation of that section. We affirm Allee's convictions but reverse his sentence and remand to the district court for resentencing.

I.

On March 14, 2000, Allee, his brother James Allee, and Sue Bryant robbed the West Gate Bank in Lincoln, Nebraska. While the Allees were carrying out the robbery, Sue Bryant waited with the switch car in an apartment complex a short distance from the bank. After fleeing the bank in the white Jeep Cherokee that they, along with Bryant, had earlier stolen, the Allees drove to the apartment complex where they joined Bryant in the switch car, a blue Mazda Navajo that belonged to the Allees' sister. Police observed and followed the Mazda on Interstate 80. When the officers pulled the Mazda over and approached the vehicle, Bryant sped off, left the highway, and drove across a field.

Shortly thereafter, the Allees entered a home in Greenwood, Nebraska, and demanded the keys to a pickup truck that was parked in the driveway. After taking the keys, James Allee shot the residents, Leslie and Retha Debrie. Bryant and the Allees fled the scene in the Debries' pickup truck. They subsequently abandoned and burned the truck in Iowa.

On March 16, 2000, all three defendants were arrested, Bryant in the morning, James Allee in the afternoon, and Allee in the evening. Police read Allee his Miranda rights and placed him in a Chevrolet Suburban for transport to the Omaha police station. After being placed in an interview room, Allee consented to answer questions from the police. In a short interview, he asserted that he was not involved in the robbery or the shooting. He stated that he hoped the Debries would recover, but denied having shot them.¹

During his pretrial incarceration in the Douglas County, Nebraska, Correctional Facility, Allee made a number of phone calls to various people wherein he made statements that the prosecution argued were attempts to create an alibi, instructions to individuals to keep silent, and attempts to implicate others in the crimes.

Both Bryant and James Allee pleaded guilty. James Allee entered his guilty plea on March 6, 2001. On March 12, 2001, James Allee escaped from jail, but was recaptured some four hours later. There was substantial news coverage of the crimes, the search for the perpetrators, the arrests, James Allee's escape and recapture, the DeBries' recovery from the extensive injuries they had suffered in the shooting, and the related court proceedings. Additionally, on March 6 and 7, 2001, the Omaha World-Herald reported that the Assistant United States Attorney announced that initially both Allees accepted plea agreements, but that Justin Allee had withdrawn from the plea deal.

Allee was convicted of conspiracy to commit bank robbery in violation of 18 U.S.C. § 2113(a) and (d); bank robbery in violation of 18 U.S.C. §§ 2113(a), (d), and 2; car jacking in violation of 18 U.S.C. §§ 2119(2) and 2; displaying and brandishing a firearm during a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2; using and discharging a firearm during a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), (C)(ii), and 2; and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Allee was sentenced to concurrent 235 month sentences on each count except the two § 924(c)(1) offenses. He was sentenced to 84 months' imprisonment on the first § 924(c)(1) charge and 300 months' imprisonment on the second. At sentencing, the district court found that § 924(c)(1)(D)(ii) required that it impose the § 924 sentences consecutively to the sentences for the underlying offenses but that it had the discretion to run the § 924 sentences concurrently with each other. Hence, Allee was sentenced to a total of 535 months' imprisonment.

II.

Allee appeals his conviction on three grounds. First, he asserts that the district court wrongfully denied his motion for a change of venue based on excessive pretrial publicity. Second, he contends that the court impermissibly allowed testimony about his post-Miranda silence. Last, he argues that the court erred in admitting tapes of telephone calls made while he was awaiting trial because their prejudice outweighed their probative value and because they were inadmissible character evidence. The government cross appeals Allee's sentence, asserting that the district court had no discretion to run the sentences for the § 924 violations concurrently with each other.

A.

We review a denial of a motion for a change of venue for abuse of discretion. United States v. Blom, 242 F.3d 799 803 (8th Cir.2001). We employ a two-tiered analysis when the motion is based on pretrial publicity. Id. The tier-one analysis involves a determination of whether the pretrial publicity was so extensive and corrupting that unfairness of constitutional magnitude must be presumed. Id. If no such determination is made, we move to the second tier of the analysis, which is a determination "whether the jury-selection process established an inference of actual prejudice." Id. at 804. In making this determination, "[w]e must `independently evaluate the voir dire testimony of the impaneled jury in order to determine whether an impartial jury was selected, thus obviating the necessity for a change of venue.'" Id. (quoting United States v. McNally, 485 F.2d 398, 403 (8th Cir.1973)). Thus, under either tier of the analysis, we will reverse only if a change of venue would have been necessary to protect the defendant's right to a fair trial.

Allee contends that his is a tier-one case. He points to over two hundred local news items that pertained to the crimes, the search for and arrests of the perpetrators, the recovery of the victims, the guilty pleas of James Allee and Sue Bryant, James Allee's escape from jail, and the announcement of Allee's withdrawn guilty plea.

The mere existence of press coverage, however, is not sufficient to create a presumption of inherent prejudice and thus warrant a change of venue. To create a presumption, the coverage must be inflammatory or accusatory. See Id. Allee documents incidents in which less-than-objective language was used in the news media. Some examples include statements that the perpetrators "should pay forever," engaged in a "series of `Bonnie and Clyde' getaways," were "very dangerous individuals who do not have regard for life," and were "linked to [a] long list of crimes." Isolated incidents of intemperate commentary about the crimes and perpetrators, however, do not rise to the level of inflammatory or accusatory where for the most part, the reporting appears to have been objective and unemotional. See McNally, 485 F.2d at 401 (finding no inherent prejudice in press coverage despite "understandable emotionalism concerning hijacking" in community).

Although the press coverage of the events in question was extensive, the time frames in which the bulk of the coverage occurred were limited to the period of the crimes and arrests and the period that encompassed James Allee's guilty plea and jailbreak. The first events occurred in March 2000, more than one year before trial, and the second incidents occurred in March 2001, approximately two months before trial. Moreover, because Allee's trial originally was scheduled for the end of March 2001, the district court granted Allee's request for a continuance in order to guard against any prejudice that might have arisen from the coverage of James Allee's guilty plea, escape, and recapture. Thus, the year-long time span between the press accounts of the robbery, shooting, and capture, and the two-month time span between the accounts regarding James Allee's plea, escape, and recapture worked to eliminate the risk of presumed prejudice.

Allee's claim also fails under tier-two analysis. Allee directs our attention to four venire members who were dismissed from the panel because they asserted that they could not set aside what they had heard in the press and decide the case only on the evidence presented in court. In determining whether Allee's jury was fair and impartial, we must focus on the jury that was actually seated. Blom, 242 F.3d at 804-05; McNally, 485 F.2d at 403. "The existence of prejudice among prospective jurors does not necessarily mean that an impartial jury cannot be impaneled." United States v. Mercer, 853 F.2d 630, 633 (8th Cir.1988). Each of the potential jurors Allee identifies was replaced with a venire member who either had no recollection of the events or affirmatively asserted the ability to decide the case impartially and only on the evidence presented. Additionally, five venire members who had stated that they had some recollection of the events ultimately were struck from the panel. Our independent review of the voir dire record satisfies us that the district court's careful exercise of its discretion in the manner in which it conducted the voir dire resulted in the seating of a fair and impartial jury. See Blom, 242 F.3d at 804. Accordingly, we find no abuse of discretion in the district court's denial of the motion for change of venue.

B.

Allee also argues that the district court erred in permitting the government to...