United States v. Pritchard, 15-50278
| Decision Date | 18 May 2017 |
| Docket Number | No. 15-50360,No. 15-50278,No. 15-50356,15-50278,15-50356,15-50360 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH GRANSON PRITCHARD, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RONNIE JOSEPH JOHNSON, AKA Ronnie Johnson, Jr., Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RONNIE JOSEPH JOHNSON, AKA Ronnie Johnson, AKA Ronnie Johnson, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
NOT FOR PUBLICATION
MEMORANDUM*D.C. No. 2:99-cr-01214-CJC-1Appeals from the United States District Court for the Central District of California
Submitted May 9, 2017** Pasadena, California
Before: O'SCANNLAIN and OWENS, Circuit Judges, and CHRISTENSEN,*** Chief District Judge.
Defendants-appellants Ronnie Johnson (Johnson) and Joseph Pritchard (Pritchard) (collectively, defendants), appeal from their convictions and sentences for (1) conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371; (2) armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d)-(e); and (3) using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Johnson also appeals from the revocation of his supervised release. Because the parties arefamiliar with the facts, we do not recount them here. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
1. The district court did not err in admitting the government's DNA expert's testimony regarding random match probabilities. Defendants argue that the expert, Jeanne Putinier (Putinier), served as a "conduit for hearsay evidence," in violation of Federal Rule of Evidence 703. However, Putinier's testimony did not introduce hearsay material. Putinier did not simply report the conclusions of other scientists; rather, she "appli[ed] [her] training and experience to the sources before [her] and reach[ed] an independent judgment." United States v. Gomez, 725 F.3d 1121, 1129 (9th Cir. 2013) (quoting United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009)). Accordingly, Putinier's testimony constituted permissible expert opinion testimony. Furthermore, even if it was hearsay, the probative value of this testimony substantially outweighed any prejudicial effect, as it allowed the jury to properly weigh Putinier's additional expert testimony (which defendants do not challenge).
Accordingly, regardless of the applicable standard of review, there is no basis on which to conclude that the district court plainly erred or abused its discretion in admitting Putinier's testimony regarding random match probabilities.
2. Pritchard's argument that his conviction under 18 U.S.C. § 924(c)(1)(A)(ii) must be reversed because armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d) does not qualify as a "crime of violence" under 18 U.S.C. § 924(c)(3) is subject to plain error review, and is unavailing. See United States v. Gonzalez-Aparicio, 663 F.3d 419, 426 (9th Cir. 2011); see also United States v. Walls, 784 F.3d 543, 546 (9th Cir. 2015) (). We have twice held that armed bank robbery in violation of § 2113(a) qualifies as a crime of violence. United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000); United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990). Pritchard fails to show that any intervening authority is "clearly irreconcilable with" or has overruled these authorities. Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (en banc).
The requirement of "violent force" under Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis omitted), is not inconsistent with our clear statement that the element of "intimidation" is "sufficient to meet the . . . requirement of a 'threatened use of physical force.'" Selfa, 918 F.2d at 751 (citation omitted); see also 18 U.S.C. § 924(c)(3). Additionally, a conviction under § 2113(a) requires a showing of general intent, and therefore requires that any "intimidation" and threatened use of force be intentional. Therefore, under our precedents, Pritchard'sconviction under § 2113(a) & (d) was for a predicate crime of violence, and his conviction under 18 U.S.C. § 924(c)(1)(A)(ii) is affirmed.
3. Johnson's conviction under 18 U.S.C. § 924(c)(1)(A)(ii) is also affirmed, as it was supported by sufficient evidence under a valid theory of liability. First, viewing the evidence of aiding and abetting the brandishing in the light most favorable to the prosecution, there was sufficient evidence to allow a rational trier of fact to convict. See United States v. Flyer, 633 F.3d 911, 917 (9th Cir. 2011). The evidence established that Johnson was present when the co-conspirators planned a robbery that necessarily involved displaying or making known the presence of the gun to intimidate and control the bank employees and customers during the robbery. He not only had "advance knowledge" that the firearm would be brandished, but he also aided in the brandishing by helping plan the robbery and furnishing the pistol used in the robbery. Rosemond v. United States, 134 S. Ct. 1240, 1243, 1247-50 (2014).
Second, if Johnson's claim that he could not be convicted on a theory of co-conspirator liability under Pinkerton v. United States, 328 U.S. 640, 647 (1946), is reviewable, it is reviewable only for plain error, and it fails. Johnson seems to argue that the government was required to allege that brandishing the firearm was an object of the conspiracy; however, he provides no relevant authority to supportthis proposition. Moreover, he acknowledges that we have repeatedly affirmed convictions similar to his under 18 U.S.C. § 924(c). See, e.g., United States v. Carter, 560 F.3d 1107, 1110, 1113 (9th Cir. 2009); United States v. Allen, 425 F.3d 1231, 1233-34 (9th Cir. 2005); United States v. Fonseca-Caro, 114 F.3d 906, 907-08 (9th Cir. 1997) (per curiam). There is no indication that the district court erred by instructing the jury that Johnson could be convicted under a Pinkerton theory of liability, or that any such error was "clear or obvious." Walls, 784 F.3d at 546.
Accordingly, Johnson's conviction under 18 U.S.C. § 924(c)(1)(A)(ii) is affirmed.
4. The district court did not clearly err by applying a two-level sentencing enhancment for reckless endangerment during flight pursuant to U.S.S.G. § 3C1.2 when calculating Pritchard's guidelines range. See United States v. Reyes-Oseguera, 106 F.3d 1481, 1482 (9th Cir. 1997) (). Pritchard acknowledges that his co-conspirator's driving during the getaway chase that followed the robbery constituted reckless endangerment, but he argues that (1) he cannot be held personally responsible for the reckless driving, or for aiding and abetting it, and (2) his own conduct during the escape was not recklessendangerment. The district court did not, however, hold Pritchard responsible for the getaway driver's conduct. Instead, the district court evaluated Pritchard's own conduct. In particular, Pritchard's throwing of money out of the car as it drove at high speeds on the highway, his bringing the gun into the car and handing it to Johnson, and his flight into a crowded mall after the car crashed all supported the district court's finding that the enhancement applied. See id. at 1483-84 (). In light of this conduct, Pritchard fails to show that the district court's application of the enhancement was clearly erroneous, and his sentence is affirmed.
5. Finally...
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