U.S. v. Gonzalez, s. 85-5054

• Decision Date: 04 November 1986
• Docket Number: 85-5055,Nos. 85-5054,s. 85-5054
• Citation: 800 F.2d 895
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Manuel GONZALEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee v. Tanya GONZALEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 895

800 F.2d 895

UNITED STATES of America, Plaintiff-Appellee v. Manuel GONZALEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee v. Tanya GONZALEZ, Defendant-Appellant.

Nos. 85-5054, 85-5055.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 4, 1986.

Decided Sept. 23, 1986.

As Amended Nov. 4, 1986.

Manuel Medrano, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Joseph D. Allen, David K. Allen, Santa Barbara, Cal., Elsa Leyva, John Gyorgy, Asst. Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

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

Before TANG, Circuit Judge, BRUNETTI, Circuit Judge, and LEAVY, District Judge. ^*

LEAVY, District Judge:

Manuel Gonzalez appeals his convictions for armed bank robbery and use of a firearm to commit a crime of violence in violation of 18 U.S.C. Secs. 2113 (a) and (d) and 924(c). His wife, Tanya Gonzalez, appeals, in a companion case, her conviction for aiding and abetting the armed robbery. The Gonzalezes base their appeals on a number of grounds. Manuel contends that his convictions violate the Double Jeopardy Clause. He also challenges the district court's refusals to grant a continuance and to substitute counsel. The Gonzalezes challenge the denial of their motions for judgment of acquittal based on insufficiency of the evidence. Tanya contends the district court erred by denying her motion to dismiss the indictment. We affirm the convictions.

I. FACTS AND PROCEEDINGS BELOW

On November 8, 1984 Manuel Gonzalez entered the First Interstate Bank of Bell, California armed with a sawed-off shotgun. He pointed the gun at a teller, demanded money and received $1,672. He left the bank through the back door and ran to a car parked on the adjoining street. His wife, Tanya Gonzalez, was driving the car. After Manuel got in the passenger side the car took off at a high rate of speed pursued by local police. After approximately two miles, the car left the road and crashed into a tree. Tanya was arrested in the car. Manuel was arrested as he crawled out the passenger side.

Manuel Gonzalez was interviewed after his arrest by an FBI Special Agent. He told the agent that Tanya had no knowledge of the robbery and that she sped away from the bank only because he had so ordered her.

At the hearing before the grand jury the agent testified erroneously that Tanya began driving calmly after Manuel got into the car and only sped up when the police turned on their lights. The agent also told the grand jury that there was no evidence pointing to the innocence of either of the defendants. The grand jury charged Manuel with violations of 18 U.S.C. Sec. 2113(a) and (d) (armed bank robbery) and 18 U.S.C. Sec. 924(c) (use of a firearm during a crime of violence). Tanya was indicted for aiding and abetting the armed bank robbery.

On the first day of trial, Manuel orally moved to dismiss his counsel, John Robertson, and for a continuance to prepare for trial. He told the district court he wished to represent himself. After questioning Manuel regarding waiver of his right to counsel and his understanding of the charges against him, the district court found that his waiver was knowing and voluntary and allowed him to proceed in propria persona with Robertson as standby counsel. The district court denied the motion for a continuance finding that an adequate showing for granting the motion had not been made.

On the second day of trial, Manuel told the district court he no longer wished to represent himself and requested appointment of an attorney other than Robertson. Because Manuel provided no specific reasons why Robertson could not represent him, the district court gave Manuel the option of continuing pro per or having Robertson reappointed. Manuel chose to continue to represent himself with Robertson serving as standby counsel. During the course of the trial Manuel frequently conferred with Robertson. Robertson also participated actively on Manuel's behalf.

The jury found the Gonzalezes guilty of the crimes as charged. Manuel received a sentence of ten years for the armed bank robbery charge and a consecutive sentence of five years for the use of a firearm during a crime of violence. Tanya received a three year sentence.

II. DISCUSSION

A. Double Jeopardy

Manuel contends that his convictions under 18 U.S.C. Secs. 2113(a) and (d) and 924(c) violate the Double Jeopardy Clause. The Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Thus, the clause protects against multiple punishments for the same offense. Simpson v. United States, 435 U.S. 6, 11 n. 5, 98 S.Ct. 909, 912 n. 5, 55 L.Ed.2d 70 (1978). In determining multiplicity, we must consider whether each count of the indictment requires proof of a fact that the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Wylie, 625 F.2d 1371, 1381 (9th Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981).

The "proof of a fact" referred to under the Blockburger test does not simply relate to whether the same evidence is used at trial to prove the two charges. So long as each offense requires the proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975); United States v. Gann, 732 F.2d 714, 719 (9th Cir.1984), cert. denied, 469 U.S. 1034, 105 S.Ct. 505, 83 L.Ed.2d 397 (1984).

18 U.S.C. Sec. 2113 (a) and (d) provide in pertinent part:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank ... [shall be guilty of an offense.]

(d) Whoever, in committing, or in attempting to commit, any offense defined in subsection (a) ... assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device ... [shall be guilty of an offense.]

18 U.S.C. Sec. 924(c) provides in pertinent part:

(c) Whoever, during and in relation to any crime of violence, including a crime of violence which provides for an enhanced punishment if committed by the use of deadly or dangerous weapon or device, for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment for such crime of violence be sentenced to imprisonment for five years.

The two statutes meet the Blockburger test. The statutory elements of 18 U.S.C. Secs. 2113(a) and (d) not required to be proved for conviction under Sec. 924(c) include the taking of money from a bank and an assault or jeopardizing the life of another. The statutory element of 18 U.S.C. Sec. 924(c) not part of Sec. 2113 (a) and (d) is the use or carriage of a firearm.

Moreover, with respect to cumulative sentences imposed in a single proceeding, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment that the legislature intended." Missouri v. Hunter 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). In 1984, Congress amended 18 U.S.C. Sec. 924(c) with the express purpose of authorizing an additional sentence to that imposed for the underlying felony, specifically including Sec. 2113. S. Rep. No. 225, 98th Cong., 1st Sess. 312-13 (1984), reprinted in 1984 U.S. Code Cong. & Ad. News 3182, 3490-91. Therefore, under Missouri v. Hunter, Manuel's convictions and consecutive sentences do not violate the Double Jeopardy Clause.

B. Continuance

Manuel contends the district court erred by denying his motion for a continuance. The denial of a motion for a continuance will not be reversed absent a clear abuse of discretion. United States v. Clevenger, 733 F.2d 1356, 1359 (9th Cir.1984). Denial is a constitutional violation only if the district court unreasonably and arbitrarily insists upon "expeditiousness in the face of a justifiable request for delay." United States v. Mitchell, 744 F.2d 701, 704 (9th Cir.1984) (quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983) ). To demonstrate reversible error from the denial of such a motion, the defendant must show that the denial resulted in actual prejudice to his defense. Id.

Manuel moved for continuance on the first day of trial following the granting of his motion to dismiss counsel. He requested the continuance to prepare for trial. Manuel told the district court that counsel's recommendation that he plead guilty created a conflict between them. The district court denied the motion finding that an adequate showing for delay had not been made. Manuel contends that the district court should have inferred from his statement regarding the guilty plea that he desired a delay in trial to prepare a defense of either duress or diminished capacity.

Because the motion was made on the eve of trial and no reason was actually articulated for delay, the district court did not abuse its discretion in denying the motion for a continuance. Manuel has also made no showing that the denial resulted in actual prejudice to his defense, a prerequisite to this court finding reversible error.

C. Substitute Counsel

Manuel contends that the district court's denial of his motion to substitute counsel was an abuse of discretion. The following factors are relevant to this court's review of the denial of a motion to substitute counsel: (1) timeliness of the motion; (2) adequacy of the court's inquiry into the defendant's complaint; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack...