USA. v. Parker

• Decision Date: 01 March 2001
• Docket Number: No. 00-10118,00-10118
• Citation: 241 F.3d 1114
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHRIS PARKER, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1114

241 F.3d 1114 (9th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHRIS PARKER, Defendant-Appellant.

No. 00-10118

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted January 9, 2001

Filed March 1, 2001

[Copyrighted Material Omitted]

COUNSEL: Sandra Gillies, Woodland, California, for the defendant appellant.

Christopher P. Sonderby, Assistant U.S. Attorney, Sacramento, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding D.C. No.CR 97-00202-1-LKK

Before: Alfred T. Goodwin, Susan P. Graber, and Richard A. Paez, Circuit Judges.

Opinion by Judge Goodwin

OPINION

GOODWIN, Circuit Judge:

Christopher Parker appeals his conviction under 18 U.S.C. S 2113(a) and (d) and S 924(c) for conspiracy, bank robbery, and firearms charges. Parker joins co-defendant Spencer Sawyer's argument that the district court erred in admitting a taped conversation between Sawyer and other coconspirators, and erred in displaying a transcript of the conversation to the jury during playback of the tape. Parker argues that his sentence of 888 months, which reflects mandatory minimum terms for firearms charges, violates the Eighth Amendment. Parker also contends that the district court erred in applying sentencing enhancements pursuant to United States Sentencing Guidelines Manual (U.S.S.G.) S 2B3.1(b)(4)(B) (2000) for physical restraint of a victim. He further argues that the district court's participation in the trial proceedings denied him a fair trial, that the prosecutor improperly vouched for the credibility of his witnesses, and that the district court erred in determining that he used a minor to commit a crime within the meaning of U.S.S.G. S 3B1.4 (2000).

We have jurisdiction pursuant to 18 U.S.C. S 3742 and 28 U.S.C. S 1291. We affirm the conviction, but reverse and remand the sentencing enhancement for physical restraint with respect to Count Four, and for use of a minor to commit a crime.

Defendant was a member of a gang that conducted a series of robberies of federally insured banks in Sacramento between November 30, 1996, and March 15, 1997. Defendant personally participated in all the robberies at issue in this case.

Defendant was charged as follows: Count One, conspiracy to commit armed bank robbery between November 30, 1996, and April 1, 1997; Count Two, armed bank robbery on December 20, 1996; Count Three, use or carrying of a gun in connection with Count Two; Count Four, armed bank robbery on February 13, 1997; Count Five, use or carrying of a gun in connection with Count Four; Count Six, armed bank robbery on February 14, 1997; Count Seven, use or carrying ofa gun in connection with Count Six; Count Eight, armed bank robbery on March 15, 1997; Count Nine, use or carrying of a gun in connection with Count Eight. Counts Two through Nine were each charged alternatively as aiding and abetting.

During the district court proceedings, the court denied codefendant Sawyer's motion to exclude evidence concerning a March 28, 1997, covert recording. The exhibit recorded a wiretapped conversation among Nathaniel Washington, a coconspirator who agreed to cooperate with the FBI, Sawyer, and two other co-conspirators. Comments by Sawyer on the tape suggested that he would retaliate against those coconspirators he suspected of cooperating with the FBI.

At trial, co-conspirators Jeffrey Elder, James Johnson, and Nathaniel Washington provided testimony on how the robbery gang worked and what role each member of the gang played. The defense case centered heavily around portraying these witnesses as having provided their testimony in exchange for reduced sentences or, in Washington's case, complete immunity.

On October 24-25, 1999, the jury returned guilty verdicts against Defendant on all counts in the Indictment. Parker was sentenced to a total of 888 months in custody, calculated as follows: 60 months on Count One; 108 months for Counts Two, Four, Six, and Eight, to be served concurrently with each other and Count One; a consecutive term of 60 months on Count Three; and consecutive terms of 240 months for Counts Five, Seven, and Nine. The total sentence was based on findings that included physical restraint of a victim warranting a two-level upward adjustment on Counts Two and Four, see U.S.S.G. S 2B3.1(b)(4)(B), and use of a minor to commit a crime, also triggering a two-level sentencing enhancement, see U.S.S.G. S 3B1.4.

The Taped Conversation

Parker argues that admission of the tape recording and display of the transcript to the jury were reversible error. The tape was admitted against co-defendant Sawyer, but not against Parker. The tape was redacted to remove all references to Parker, and the district court instructed the jury that the tape did not constitute evidence against Parker. The admission of the tape and the display of the transcript were therefore not prejudicial to Parker's case and there was no error.

The Firearms Charge

Parker's charges for using or carrying a firearm during and in relation to four bank robberies in violation of 18 U.S.C. S 924(c) account for 300 months of his total sentence. Despite Defendant's contentions otherwise, the mandatory consecutive sentences imposed by S 924(c) do not violate the Eighth Amendment. Generally, as long as the sentence imposed on a defendant does not exceed statutory limits, this court will not overturn it on Eighth Amendment grounds. See United States v. Zavala-Serra, 853 F.2d 1512, 1518 (9th Cir. 1988). In United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998), we held that mandatory consecutive minimum sentences for violations of S 924(c) amounting to 1141 and 597 months for two co-defendants did not run afoul of the Constitution. Noting that "[a]rmed robberies are extremely dangerous crimes," we held "We are unable to say that . . . the robberies committed by [the defendants] and the sentences imposed for each crime are grossly disproportionate. " Id.

The Supreme Court also has held that a mandatory life sentence without the possibility of parole imposed by a Michigan drug possession statute did not violate the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957, 994 (1991) ("Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense . . . ."); see also United States v. Wilkins, 911 F.2d 337, 339 (9th Cir. 1990) (holding that S 924(c)'s mandatory sentencing scheme is constitutional). In this light, Defendant's sentence was not cruel and unusual in violation of the Eighth Amendment.

Physical Restraint of Victim

Parker received sentencing enhancements for physical restraint on Counts Two and Four, pursuant to U.S.S.G. S 2B3.1(b)(4)(B). Count Two involved the December 20, 1996, robbery during which Evan Baylon grabbed a teller by her hair and pulled her up from the floor. There is little doubt that this conduct constituted physical restraint, see United States v. Thompson, 109 F.3d 639, 641 (9th Cir. 1997); the only question is whether this defendant is liable for the conduct. U.S.S.G. S 1B1.3(b) (2000) holds a defendant accountable at sentencing for all reasonably foreseeable acts and omissions of others in furtherance of a jointly undertaken criminal activity. See United States v. Carter , 219 F.3d 863, 868 (9th Cir. 2000). Here, it is clear that the accomplice's physical restraint of the bank teller during the robbery was reasonably foreseeable by Parker.

In United States v. Shaw, 91 F.3d 86, 89 (9th Cir. 1996), we held that a defendant who was absent during the planning of the robbery was responsible for a co-conspirator's physical restraint of a victim. Indeed, it is not only reasonably foreseeable, but probable that victims will be physically restrained during a bank robbery. Parker's S 2B3.1(b)(4)(B) sentence enhancement in connection with Count Two was appropriate.

Count Four involved the February 13, 1997, robbery during which one of the robbers pointed a gun at a bank teller and yelled at her to get down on the floor. Parker claims that the conduct in Count Four did not rise to the level of "physical restraint" within the meaning of S 2B3.1(b)(4)(B).

The application note to S 2B3.1(b)(4)(B) defines "physically restrained" as the "forcible restraint of the victim such as by being tied, bound, or locked up." U.S.S.G. S 2B3.1(b)(4)(B), cmt. n.1. These examples are illustrative and not exclusive. See United States v. Foppe , 993 F.2d 1444, 1452 (9th Cir. 1993).

There is little question that the victim's mobility was restricted when she was made to lie down on the floor. However, the degree to which the victim was restrained was not appreciably different from that of bank tellers who are made to get down by robbers who yell the command generally to everyone in the bank. Indeed, cases holding that a defendant physically restrained his victims usually involve a sustained focus on the restrained person that lasts long enough for the robber to direct the victim into a room or order the victim to walk somewhere. See, e.g., United States v. Nelson, 137 F.3d 1094, 1112 (9th Cir. 1998) (holding that a robber physically restrained two victims when he ordered them into a back room at gunpoint); Thompson, 109 F.3d at 641 (holding that the defendant physically restrained his victim when he either made someone lie down and then stand up repeatedly, or forced another person to walk some distance, all at gunpoint).

It is therefore likely that Congress meant for something more than briefly pointing a gun at a victim and commanding her once to get down to constitute physical restraint, given that nearly all armed bank robberies will presumably involve such acts. In United States v. Anglin, 169 F.3d 154, 164 (2d Cir. 1999), the Second Circuit held that a bank robber who brandished a gun and told the tellers to get down on the floor and not to move did not...