U.S. v. Banks

• Decision Date: 25 October 2007
• Docket Number: No. 05-10053.,05-10053.
• Citation: 506 F.3d 756
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leland Devine BANKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

506 F.3d 756

UNITED STATES of America, Plaintiff-Appellee, v. Leland Devine BANKS, Defendant-Appellant.

No. 05-10053.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 18, 2006.

Filed October 25, 2007.

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.

BYBEE, Circuit Judge:

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 AFFIRM the district court in all other respects.

I

A. Factual Background

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.

B. Trial

Banks was ultimately tried on five counts: (1) attempted murder in violation of 18 U.S.C. § 1959(a)(5) (violent crime in aid of racketeering (VICAR)); (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.

II

On appeal, Banks raises five challenges to his convictions and sentence. Of these, we reject all but the first.

A. VICAR Jury Instruction

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 United States v. Fernandez, 388 F.3d 1199, 1220 (9th Cir.2004). Banks contends that the district court's instructions to the jury on the VICAR counts misstated the purpose element of the charged offense. We review the district court's instructions de novo. See United States v. Phillips, 367 F.3d 846, 854 (9th Cir.2004).

The district court instructed the jury that the purpose element could be satisfied if "at least one of the defendant's purposes in committing [the violent crime] was to gain entrance or maintain or increase his position in the enterprise, the Rolling 60s Crips." Thus, the Government need not "prove that this motive was the sole purpose, or even the primary purpose of the Defendant in committing the charged crime"; rather, the jury "need only find that it was one of his purposes." The court further instructed the jury that the fourth element could be satisfied "if the Defendant committed the charged violent crime at least in part because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership."

Banks objects that these instructions misstate the law because they permit the jury to convict him of a VICAR violation even if his primary motive was personal revenge and he was only incidentally motivated by the desire to regain the respect of fellow gang members. This, he contends, plainly contravenes the language of the statute, which requires that the violent act be committed "for the purpose of ... maintaining or increasing [his] position" in the Rolling 60s. 18 U.S.C. § 1959(a) (emphasis added).

This question—whether VICAR requires the defendant to have committed the violent act for the primary or sole purpose of maintaining or enhancing his purpose in the criminal enterprise, or whether it is sufficient that he was motivated only in part by such purpose—is one of first impression in this circuit. However, at least five of our sister circuits have addressed this question, and all of them have concluded that VICAR's purpose element is satisfied even if the maintenance or enhancement of his position in the criminal enterprise was not the defendant's sole or principal purpose. In the first of these cases, the Second Circuit "reject[ed] any suggestion that the `for the purpose of element requires the government to prove that maintaining or increasing position in the RICO enterprise was the defendant's sole or principal motive." United States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992). Instead, it held that § 1959(a) simply required that the...