U.S. v. Collins

• Decision Date: 27 March 1997
• Docket Number: No. 96-10174,96-10174
• Citation: 109 F.3d 1413
• Parties: 97 Cal. Daily Op. Serv. 2227, 97 Daily Journal D.A.R. 4070 UNITED STATES of America, Plaintiff-Appellee, v. Robert John COLLINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1413

109 F.3d 1413

97 Cal. Daily Op. Serv. 2227, 97 Daily Journal

D.A.R. 4070

UNITED STATES of America, Plaintiff-Appellee, v. Robert John COLLINS, Defendant-Appellant.

No. 96-10174.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 10, 1997.

Decided March 27, 1997.

Janet S. Bessemer, John C. Lambrose, Assistant Federal Public Defenders, and James G. Connell, III, Research & Writing Specialist, Las Vegas, Nevada, for defendant-appellant.

Thomas R. Green and Walter L. Ayers, Assistant United States Attorneys, Las Vegas, Nevada, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada, David Warner Hagen, District Judge, Presiding. D.C. No. CR-00035-DWH.

Before: SCHROEDER, ALARCON, and O'SCANNLAIN, Circuit Judges.

ALARCON, Circuit Judge.

Robert J. Collins timely appeals from the judgment in this matter. The Government presented evidence that Robert J. Collins caused a destructive device to be mailed to the home of Nevada Highway Patrol Trooper Kenneth Gager. The device was designed to explode when the container was opened by the addressee. Trooper Gager and his wife were injured when the destructive device exploded. Collins rested without introducing any evidence. He was convicted, after a trial by jury, of conspiracy to make and mail a destructive device with the intent to kill and injure in violation of 18 U.S.C. § 1716 and 26 U.S.C. §§ 5822, 5861(f), and 5871 (count 1); making an unlawful destructive device and aiding and abetting in violation of 18 U.S.C. § 2, and 26 U.S.C. §§ 5841, 5861(d), and 5871 (count 2); possession of an unlawful destructive device and aiding and abetting in violation of 18 U.S.C. § 2 and 26 U.S.C. §§ 5841, 5861(d), and 5871 (count 3); mailing a destructive device with the intent to kill and injure and aiding and abetting in violation of 18 U.S.C. §§ 2 and 1716 (count 4); and use of a destructive device during and in relation to a crime of violence and aiding and abetting in violation of 18 U.S.C. §§ 2 and 924(c) (count 5).

He seeks reversal of the judgment of conviction on four grounds:

One. The district court deprived him of his Sixth Amendment right to a fair and impartial jury by denying his motion for a change of venue.

Two. The district court deprived him of his right to due process by ordering the marshal to shackle him during his trial by jury.

Three. The evidence is legally insufficient to demonstrate that he used a destructive device during and in relation to the crime of conspiracy to make and mail a destructive device with the intent to kill and injure, as charged in count 1, and the crime of mailing a destructive device with the intent to kill or injure as charged in count 4.

Four. The conviction for use of a destructive device during and in relation to the commission of a crime of violence pursuant to § 924(c)(1) constitutes double punishment because the crimes charged in counts 1 and 4 cannot be committed without mailing a destructive device. We affirm the judgment of conviction because we conclude that none of these contentions has merit.

Collins also asks us to vacate the sentence. He contends that the district court clearly erred in finding that he mailed the destructive device with the intent to murder the addressee. He also asserts that the district court abused its discretion in imposing an upward departure of eight points for the injuries resulting from the explosion of the destructive device when the addressee opened the package mailed to him by Collins. We hold that the district court's finding that Collins intended to murder Trooper Gager was supported by a preponderance of the evidence. We conclude that the district court did not abuse its discretion in departing upward because the sentencing guidelines do not adequately take into consideration the construction by a defendant of a destructive device with the intent to enhance the pain and maximize the injuries suffered by the victim. We discuss each contention and the facts pertinent thereto under separate headings.

I DENIAL OF THE MOTION FOR A CHANGE OF VENUE

Collins contends that the district court erred in denying his motion for a change of venue because the responses of the members of the jury panel regarding the impact of the pretrial publicity about this case "demonstrated actual partiality or hostility that could not be laid aside." (Appellant's Opening Br. at 14.) We review a trial court's denial of a motion for change of venue for abuse of discretion. United States v. Corona, 34 F.3d 876, 878 (9th Cir.1994).

A change of venue must be granted when there exists in the district "so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial." Fed.R.Crim.P. 21(a). Prejudice can be either presumed or actual. Jeffries v. Blodgett, 5 F.3d 1180, 1189 (9th Cir.1993), cert. denied, 510 U.S. 1191, 114 S.Ct. 1294, 127 L.Ed.2d 647 (1994). "Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime." Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir.1988), cert. denied, 493 U.S. 1051, 110 S.Ct. 854, 107 L.Ed.2d 848 (1990). Collins does not claim that the media reports about this crime were prejudicial or inflammatory.

Actual prejudice is demonstrated where a sufficient number of the jury panel "had such fixed opinions that they could not judge impartially the guilt of the defendant" so that it is clear that a trial before that panel would be inherently prejudicial. Id. at 1364 (quoting Patton v. Yount, 467 U.S. 1025 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984)).

In deciding whether there was actual prejudice against a defendant in the district, we "must determine if the jurors demonstrated actual partiality or hostility that could not be laid aside." Harris, 885 F.2d at 1363. "[A] key factor in gauging the reliability of juror assurances of impartiality is the percentage of veniremen who 'will admit to a disqualifying prejudice.' " Id. at 1364 (quoting Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975)).

Here, the original jury panel consisted of 97 persons. Seventeen were excused for personal reasons. In response to a jury questionnaire, 46 of the 80 remaining prospective jurors replied that they had been exposed to media accounts of the crime. Eighteen panel members indicated that they believed that Collins was guilty based on pretrial publicity. Nine of this group were excused for cause because they stated they could not set aside their belief that Collins was guilty. The remaining nine prospective jurors who had formed an opinion regarding the defendant's guilt informed the court that they could set aside their opinion of guilt and decide the case on the evidence presented during the trial.

Twelve of the 16 jurors who were sworn to serve as jurors or alternates were aware of the case through pretrial publicity. Two of the 12 jurors who served on the panel initially indicated that they had formed an opinion that Collins was guilty. During the voir dire examination conducted by the court and counsel, these jurors stated that they could decide the guilt of the defendant solely on the evidence presented in court. Collins did not challenge either of these jurors for cause.

In this matter, nine of the ninety-seven prospective jurors admitted that their opinion of the defendant's guilt would not be changed by the evidence. In measuring the reliability of a juror's assurances of impartiality, the number of potential jurors who held "fixed opinions as to the guilt of petitioner" is measured against the number of jurors on the panel. Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961). In Irvin, the Court held that excusing 268 members for cause from a panel consisting of 430 persons demonstrated a "pattern of deep and bitter prejudice" that "give[s] little weight" to their assurances of impartiality. Id. at 727-28, 81 S.Ct. at 1645.

The Court held in Murphy that an inference of actual prejudice did not exist when "20 of the 78 persons questioned were excused because they indicated an opinion as to petitioner's guilt." 421 U.S. at 803, 95 S.Ct. at 2037. In Murphy, approximately 26% (25.64%) of the jurors were biased against the defendant. Here, only 9.27% of the members of the jury panel held a fixed opinion regarding Collins' guilt. Accordingly, Collins has failed to demonstrate that he was deprived of his right to a fair and impartial jury. The district court did not abuse its discretion in denying Collins' motion for a change of venue.

II VALIDITY OF THE SHACKLING ORDER

The district court ordered the marshal to shackle Collins during the trial of this matter. Collins maintains that he was deprived of his right to due process because the district court "did not have sufficient cause to conclude that chaining the Appellant to the table was compelled." (Appellant's Opening Br. at 18.) We review a district court's decision to shackle a defendant for an abuse of discretion. United States v. Baker, 10 F.3d 1374, 1401 (9th Cir.1993), cert. denied, 513 U.S. 934, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994). "[G]enerally, a defendant has the right to appear before the jury free of shackles or other restraints." Wilson v. McCarthy, 770 F.2d 1482, 1484 (9th Cir.1985). A defendant's appearance in shackles "may reverse the presumption of innocence by causing jury prejudice" thereby denying him due process. Jones v. Meyer, 899 F.2d 883, 884 (9th Cir.), cert. denied, 498 U.S. 832, 111 S.Ct. 95, 112 L.Ed.2d 67 (1990); see Duckett v. Godinez, 67 F.3d 734, 748 (9th Cir.1995) (holding that because of the potential for prejudice, due process requires that shackles be used as a "last resort"), cert. denied, --- U.S. ----, 116 S.Ct. 1549, 134 L.Ed.2d 651 (1996). However, the trial court "has discretion to use shackles or other security...