U.S. v. Harper
| Decision Date | 30 August 1994 |
| Docket Number | 93-50717,Nos. 93-50527,s. 93-50527 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Trina Devay HARPER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Aziz SHARRIEFF, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael I. Garey, Paul G. Stark, Goldfein & Stark, Santa Ana, CA, for defendants-appellants.
Clare S. Phillips, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before: FLETCHER, CANBY and HALL, Circuit Judges.
Trina Devay Harper and Aziz Sharrieff appeal their convictions for conspiracy in violation of 18 U.S.C. Sec. 371, attempted bank robbery in violation of 18 U.S.C. Sec. 2113(a), and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. Sec. 924(c). Harper and Sharrieff both assert that the district judge denied them their right to exercise the full complement of peremptory challenges allotted them by statute and that there was insufficient evidence to support any of the verdicts. Harper additionally challenges the district court's jury instructions and its application of the United States Sentencing Guidelines.
We reverse the attempt convictions, affirm the other convictions and remand for resentencing.
Police officers in Buena Park, California found appellants and one other codefendant, Carlos Munoz, sitting in a rented car in the parking lot of the Home Savings Bank shortly after 10:00 p.m. on the evening of September 21, 1992. The officers searched the defendants, the vehicle and the surrounding area. They found two loaded handguns--a .44 caliber Charter Arms Bulldog and a .357 magnum Smith and Wesson--under a bush located five or six feet from the car, where a witness had earlier seen one of the car's occupants bending over. In the car, the police discovered a roll of duct tape in a plastic bag, a stun gun, and a pair of latex surgical gloves. They found another pair of latex surgical gloves in the pocket of Munoz's sweat pants. They also found six rounds of .357 magnum ammunition in the pocket of his shorts, which he wore under his sweat pants. Some of this ammunition came from either the same box or the same lot as the ammunition in the loaded .357 magnum handgun. The defendants had a total of approximately $182 in cash among them and Sharrieff was carrying an automated teller machine (ATM) card which bore the name of Kimberly Ellis.
Harper had used the ATM card belonging to Kimberly Ellis shortly before 9:00 p.m. that evening in an ATM at the Buena Park branch of the Bank of America, which was located adjacent to the Home Savings parking lot in which the defendants were parked. The ATM's camera photographed Harper. Harper had requested a twenty dollar withdrawal from the ATM, but had not removed the cash from the cash drawer. This omission had created what is known as a "bill trap." When a bill trap occurs, the ATM shuts itself down and the ATM supply company that monitors the ATM contacts its ATM service technicians to come and repair the ATM. 1 These facts were known to Harper, who had previously worked for both Bank of America and one of its ATM service companies.
On the basis of this evidence, Harper, Sharrieff and Munoz were indicted for conspiracy to rob a federally insured bank, attempted bank robbery, and carrying a firearm during and in relation to a crime of violence. The prosecution's theory was that Harper had intentionally caused the bill trap to summon the ATM service technicians who would have to open the ATM vault to clear the trap. At that time, the theory went, the defendants planned to rob the technicians of the money in the ATM. The three defendants were convicted of all charges.
Prior to the voir dire examination of the jury venire, the district judge explained to counsel that she uses the "Arizona blind strike" method of jury selection. Under that system, the venire members are numbered beginning with the number one. After the venire members to be excused for cause are excused, the prosecution and the defense simultaneously list their peremptory challenges on pieces of paper without knowing which venire members the other side is challenging.
The judge then eliminates the subjects of the peremptory challenges and selects the twelve lowest numbered remaining venire members as the jury. The judge explained that, because she would seat two alternate jurors (with the next lowest numbers) the defense would be entitled to eleven peremptory challenges. See Fed.R.Crim.P. 24(c).
Following voir dire and the excuse of venire members for cause, the judge instructed the prosecutor and defense counsel to list their peremptory challenges on forms supplied by the court. The court did not reiterate its earlier instructions regarding the jury selection method or the number of peremptory challenges available to each side. The forms the court supplied for listing the challenges, however, had the proper number of blank lines for each side: six for the prosecution and ten for the defense, with an additional blank line on each entitled "Alternates." Each side then completed the forms; the three defense attorneys passed the sheet back and forth among themselves while making strikes. Neither the government nor the defense filled in the additional blank to utilize the extra peremptory challenge afforded each for the alternate jurors in accordance with Fed.R.Crim.P. 24(c).
When the peremptory challenge lists were complete, the judge selected the jury panel and alternates and announced the results to counsel. At that point, defense counsel announced that they had inadvertently failed to list one additional strike of a particular juror; they requested that that juror be stricken. The judge refused, stating that the request came too late because the names of the jury members had been revealed. Harper and Sharrieff now argue that their convictions must be overturned because the district court did not allow them to exercise the full complement of peremptory challenges permitted by Fed.R.Crim.P. 24(b) & (c).
The district judge did not err. The blind-strike system she employed permitted the defendants to exercise the full number of peremptory challenges authorized by law, and the defendants were fully informed of the nature of the system. See United States v. Turner, 558 F.2d 535, 538 (9th Cir.1977) (). The defendants' complaint is that the court declined to relieve them of the consequences of their own error. To permit the defendants to exercise their peremptory challenge after the court had announced the composition of the jury, however, would have partially defeated the purpose of the blind-strike system. The district court was not compelled to accept such a result.
Our holding in Turner is not to the contrary. In Turner, the district judge, who was employing a "jury-box" system of challenges, had failed to notify the defendants that each time that they accepted a jury as empaneled, they were exhausting one peremptory challenge. We held that this failure to notify was error, and that the rule itself was improper: although a defendant's acceptance of a jury might preclude him from challenging members accepted, it did not waive challenges of future replacement jurors. Turner, 558 F.2d at 538. Neither of the errors committed in Turner occurred in the present case. Accordingly, neither Turner nor the other authority relied on by Harper and Sharrieff requires reversal here. 2
Harper and Sharrieff assert that there was insufficient evidence to support their convictions for the charged offenses. "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We conclude that there was insufficient evidence to support the attempt convictions, but that there
was sufficient evidence to support the conspiracy and firearm convictions.
To obtain a conviction for attempted bank robbery the prosecution must prove (1) culpable intent and (2) conduct constituting a substantial step toward the commission of the crime. United States v. Still, 850 F.2d 607, 608 (9th Cir.1988), cert. denied, 489 U.S. 1060, 109 S.Ct. 1330, 103 L.Ed.2d 598 (1989); United States v. Buffington, 815 F.2d 1292, 1301 (9th Cir.1987). Here, there was sufficient evidence to permit a jury to find that the defendants intended to rob the Bank of America. We conclude, however, that under the law of this circuit there was insufficient evidence that the defendants took a substantial step toward commission of the robbery.
It is admittedly difficult to draw the line between mere preparation to commit an offense, which does not constitute an attempt, and the taking of a substantial step toward commission of the crime, which does. Various theories have been propounded for determining when the activities of one who intends to commit a crime ripen into an attempt, see 2 W. LaFave & A. Scott, Substantive Criminal Law, Sec. 6.2 at 31-39 (1986), and they yield varying results in a case like this. We must draw our guidance from our own precedent, however, and we conclude that the activities of the defendants, viewed in the light most favorable to the prosecution, fail to qualify as an attempt.
Our primary authorities are Buffington and Still. In Buffington, the defendants had driven past the supposed target bank twice. One of the three male defendants then entered a store near the bank and observed the bank. The...
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