U.S. v. Govan

• Decision Date: 03 August 1998
• Docket Number: No. 97-10275,97-10275
• Citation: 152 F.3d 1088
• Parties: 98 Daily Journal D.A.R. 8422 UNITED STATES of America, Plaintiff-Appellee, v. Chet GOVAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1088

152 F.3d 1088

98 Daily Journal D.A.R. 8422

UNITED STATES of America, Plaintiff-Appellee, v. Chet GOVAN, Defendant-Appellant.

No. 97-10275.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 9, 1998.

Decided Aug. 3, 1998.

Donald J. Green (argued), Las Vegas, NV, for defendant-appellant Chet Govan.

Peter Ko (argued), Thomas M. O'Connell, Kathryn E. Landreth, Assistant United States Attorneys, Las Vegas, NV, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the District of Nevada; Phillip M. Pro, District Judge, Presiding. D.C. No. CR-95-00263-PMP.

Before: WOOD, ^** HALL, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide various issues arising from convictions and sentence for federal crimes arising out of a failed robbery at a Las Vegas casino.

I

Sometime in February 1994, Chet Govan approached fellow members of the "118th Street East Coast Crips" ("Crips"), a violent Los Angeles street gang, with a proposition to participate along with him and Melvin Foster in the robbery of a Las Vegas hotel and casino. Govan told the Crips, who included Joseph Wright, Dontel Carter, Damian Littlejohn, Jamal Brown, and John Doe, a juvenile, that he and Foster, a member of the rival "Bloods" street gang, would provide the vehicles and weapons to be used in the commission of the robbery. He also told them that Foster had been the leader in previous armed robberies. Foster thereafter met with the Crips while Govan was in jail on an unrelated offense.

On or about April 21, 1994, the members of the conspiracy travelled from Los Angeles to Las Vegas. Govan, his girlfriend Dionne Chappelle, and an unidentified female drove in a 1992 Honda automobile belonging to Chappelle. Wright, Littlejohn, Carter, Brown, and Doe travelled in a 1985 Chevrolet Astrovan belonging to Govan. They arrived the following morning, April 22, and registered for two rooms at a motel. Sometime later that day, Foster arrived and revealed for the first time that Harrah's Hotel and Casino ("Harrah's") was to be the target of the robbery.

In preparation for the crime, Foster and Brown stole a van, which they parked outside the motel. Sometime thereafter, the members of the conspiracy rehearsed several "dry runs" of the robbery. Govan oversaw each rehearsal. The following night, April 23, hours before the robbery, Foster, Wright, and Brown stole a second van and parked it in Harrah's parking lot.

On April 24, at approximately 2:47 a.m., Brown, joined by Wright, Carter, Littlejohn, and Doe, drove one of the stolen vans northbound on Las Vegas Boulevard to the front of Harrah's. As the van slowed to a stop in front of Harrah's, Wright, Carter, Littlejohn, and Doe jumped out and entered the casino through the west entrance doors. Wright and Littlejohn were armed with the firearms Govan had obtained for them. After the passengers exited the van, Brown continued northbound on Las Vegas Boulevard, turning into an alley next to Harrah's to wait.

Wright, Carter, Littlejohn, and Doe charged into the casino, screaming at casino patrons and employees to get down on the floor. As they ran from the front door to the cashier's cage, one or more of the men struck at least two patrons with their fists or a heavy object, knocking the patrons to the floor.

Carter, Littlejohn, and Doe burst into the cashier's cage while Wright remained out front. Wright grabbed a casino patron by the hair and collar, dragging the patron around the floor as a hostage, alternatively pointing his gun at the hostage and the other patrons and employees. When the hostage begged not to be shot, Wright responded with epithets.

Meanwhile, inside the cashier's cage, Carter, Littlejohn, and Doe ordered the employees to get down on the floor. The three men removed $97,040 from the cash drawers and stuffed the money into pillowcases. They then jumped back over the cashier's counter and, along with Wright, fled through the casino, exiting into the alley where Brown was waiting with the get-away van. The perpetrators reentered the van and Brown drove away, crashing through a stationary fire gate barrier and driving into Harrah's covered parking garage. Brown parked the van next to Chappelle's car and the second stolen van. All five men exited the first van, discarded their clothes, dumped the pillowcases full of money and one of the guns into Chappelle's car, and switched into the second van. Brown, now driving the second van, drove out of the parking garage while Chappelle's car, carrying the loot, followed behind. As soon as the vehicles exited the garage, Chappelle's car split off, avoiding further detection. The van, however, was not so fortunate. A marked police car began to follow the perpetrators. Rather than give themselves up, they led police on a 20-minute high-speed chase involving numerous police cars and a police helicopter. When the police positioned patrol cars to block the van's path, Brown purposely rammed into a police car, causing the van to skid out of control into a brick wall. The van disabled, the men fled on foot into a residential neighborhood. Police surrounded the area and, after a brief search, captured all five men.

During the robbery, Foster and Govan were waiting in Harrah's parking lot in Foster's black Chevrolet Suburban vehicle in case something went awry.

Foster and Govan were subsequently identified through telephone records and arrested. Chappelle remains a fugitive.

An eight-count indictment was returned charging Govan with conspiracy to interfere with commerce by threats or violence in violation of 18 U.S.C. § 1951, interference with commerce by threats or violence in violation of 18 U.S.C. § 1951, use of a firearm during or in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c) and 2, conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h), and money laundering in violation 18 U.S.C. § 1956(a)(1)(B)(i). Two counts of forfeiture under 18 U.S.C. § 928(a)(1) were also alleged.

A jury found Govan guilty on all counts, and the district court sentenced him to 262 months in jail. Govan timely appealed.

II

Govan first argues that the evidence presented by the government was insufficient to support his convictions. Specifically, Govan challenges the evidence admitted to prove that he conspired to rob Harrah's and that he aided and abetted the five men who actually committed the robbery. Govan maintains that he merely "found himself in the company of young men, suspected of being the perpetrators of the planned casino robbery" and that the "caper was planned, directed and controlled by Foster at all levels."

Govan's argument borders on the absurd. First, evidence presented at trial confirmed that Govan recruited the members of the conspiracy from his own gang. Without his facilitation, the younger Crips would have never had any contact with Foster, a member of a rival gang. Second, one of the Crips members who testified that Govan tried to recruit him, also testified that Govan came to his house a week or two after the robbery, showed him a new truck he had purchased for $9,000, and bragged about having $60,000 in proceeds from the heist. This witness claimed that Govan threatened to kill him if he testified against him. Third, fingerprints, telephone records, and witness testimony, confirmed Govan's presence at the motel along with his co-conspirators. Fourth, Harrah's surveillance videotapes from the parking garage the night of the robbery reveal Govan's Astrovan and Chappelle's Honda rehearsing the crime at 2:02 a.m. and 2:04 a.m., about forty-five minutes before the robbery occurred. The camera spotted Govan's Astrovan again at 2:45 a.m. and 2:47 a.m., and Foster's Chevrolet Suburban at approximately 2:19 a.m. and again at 2:50 a.m., just moments after the robbery.

The foregoing is more than sufficient to enable a rational trier of fact to find the essential elements of the charged crimes beyond a reasonable doubt and, specifically, to find that Govan was involved in the underlying conspiracy. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Nash, 115 F.3d 1431, 1435 (9th Cir.1997); United States v. Iriarte-Ortega, 113 F.3d 1022, 1024 n. 2 (9th Cir.1997). Govan did not have a "mere casual association with conspiring people"; he had knowledge of the conspiracy and acted in furtherance of it. See United States v. Medina, 940 F.2d 1247, 1250 (9th Cir.1991).

III

Govan next maintains that the district court's refusal to give a proposed jury instruction constitutes reversible error. Govan asked the district court to give the following instruction:

You are instructed that as a matter of law that when there is an innocent explanation for a defendant's conduct as well as one that suggests that the defendant was engaged in wrongdoing, the government must produce evidence that would allow you, the jury, to conclude beyond a reasonable doubt that the government's explanation of the defendant's conduct is the correct one.

Govan claims that the district court's failure to give his so-called "innocent explanation" instruction prevented him from presenting his defense to the jury. According to Govan, a district court is required to give an instruction describing the defendant's theory of the case if "some" evidence regarding the issue has been presented. See, e.g., Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir.1984). Govan argues that a district court may reject an instruction setting forth a defendant's theory of the case only if it is in the form of a "narrative recitation of the defendant's version of the facts rather than in the form of a statement of appropriate principles of law which the jury must apply to the facts." See United States v. Nevitt, 563 F.2d 406, 409 (9th...