United States v. Alexander

48 F.3d 1477, 1995 WL 67232
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 21, 1995
DocketNos. 93-50595, 93-50612, 93-50663 and 93-50831
StatusPublished
Cited by193 cases

This text of 48 F.3d 1477 (United States v. Alexander) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alexander, 48 F.3d 1477, 1995 WL 67232 (9th Cir. 1995).

Opinion

DAVID R. THOMPSON, Circuit Judge:

These are the consolidated appeals of defendants Gary Edward Aexander, Jonathan Harrington, Anthony F.- Hicks and Willie James Harris. The defendants appeal their convictions for conspiracy to commit robbery, in violation of 18 U.S.C. § 371; armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); and use of a firearm during commission of a crime of violence, in violation of 18 U.S.C. § 924(c).

The defendants contend their Sixth Amendment right to trial by an impartial jury was violated because the district court (1) failed to strike for cause two prospective jurors who had previously been victims of robbery, and, (2) replaced a juror with an alternate on the last day of trial when the juror’s child became ill and had to be taken [1482]*1482to a hospital. They also argue the district court committed reversible error by admitting the government’s FDIC “Certificate of Proof of Insured Status.” as evidence that the victim bank was federally insured at the time of the robbery. In addition, defendant Hicks seeks reversal of his conviction on the ground that the district court erroneously admitted, for impeachment purposes, evidence of his prior drug and robbery convictions. Defendant Alexander contends the district court should have granted his motion for judgment of acquittal because he was not properly identified at trial.

The defendants also appeal their sentences. They argue their sentences should be recalculated because the sentence enhancement applied for robbery of a financial institution, pursuant to United States Sentencing Guidelines [hereinafter USSG] § 2B3.1(b)(l), deprived them of their right to substantive due process. They also contend other provisions of the guidelines under which they were sentenced unconstitutionally permitted double counting of various sentence enhancements. Defendant Harrington also argues he should have been given a two-point reduction in his base offense level for acceptance of responsibility. Finally, defendant Hicks argues the district court improperly enhanced his sentence based on his prior drug conviction, because his guilty plea to that crime was neither knowing, intelligent nor voluntary.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm • all convictions and all sentences.

FACTS

On January 24, 1992, four armed men — all wearing blue coveralls, gloves, and ski masks — burst into the First Interstate Bank in Victorville, California. They ordered everyone present in the bank to lie down, forced two of the bank’s employees to open the vault, and emptied cash from the vault into a duffle bag. After taking the money, the robbers fled in a van. The total amount stolen was $331,951.

The police had been alerted to the robbery by a passerby. As a result, officers arrived at the scene in time to pursue the van as it left the bank. A high-speed chase ensued in which the occupants of the van fired several shots at the police.

Eventually, the van pulled into a K-Mart parking lot. The four robbers got out of the van and split up. Two of them got into a Camaro and the other two got into a Camry. The vehicles sped away in different directions, with the police in pursuit. The chase continued at speeds up to 110 miles per hour, with more shots being fired at the police from the fleeing vehicles.

Eventually, the Camaro stalled; defendants Harrington and Alexander were arrested inside the car. The Camry also came to a stop, but its occupants continued their flight on foot. After a brief chase, police arrested defendants Harris and Hicks a short distance from the abandoned Camry.

Remaining pertinent facts are discussed in relevant portions of the discussion that follows.

DISCUSSION

I. Sixth Amendment Violations

A. Denial of Challenges for Cause

During jury selection, prospective jurors Mark Austin and Phyllis Kenny disclosed they had been victims of robberies. Austin said he “believed” he nonetheless could be fair and impartial despite the subject matter of the case — armed bank robbery. Upon additional interrogation, by the court, Austin stated unequivocally that he could put aside his own experience and act fairly.1 Prospec-[1483]*1483five juror Kenny twice said she “believed” she could be fair and impartial despite her experience, but never gave a more definitive statement.2

The defense challenged both prospective jurors Austin and Kenny for cause but the district court, satisfied that they could act fairly, denied the challenges. The defense then used peremptory challenges to excuse Austin and' Kenny. Ultimately, the defense exhausted its full allotment of peremptory challenges. The defendants now contend that the district court’s denial of their challenges for cause violated their Sixth Amendment right to an impartial jury, because it forced them to exercise peremptory challenges they otherwise could have used against other prospective jurors.

We reject the defendants’ argument. First, we note that, in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), the Supreme Court specifically held that loss of a peremptory challenge because of a trial court’s improper failure to grant a challenge for cause does not amount to a violation of a constitutional right without a showing of prejudice. Id. at 88, 108 S.Ct. at 2278. As the Court explained:

[P]eremptory challenges are not of constitutional dimension. They are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.

Id. (citations omitted).

In the present case, the defendants removed prpspective jurors Austin and Kenny with peremptory challenges. They have not asserted that the jury which finally tried [1484]*1484them was in any way biased or prejudiced. Consequently, they have not shown any prejudice from the court’s denial of their challenges for cause.

In arguing they should not be required to show prejudice, the defendants rely on our decision in United States v. Claiborne, 765 F.2d 784, 799-800 (9th Cir.1985), cert. denied, 475 U.S. 1120,106 S.Ct. 1636, 90 L.Ed.2d 182 (1986), and the Fifth Circuit’s decision in United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.1976).' These cases are not persuasive. We have specifically stated that, because it is a pre-Ross case, Claiborne is no longer good law. United States v. Baker, 10 F.3d 1374, 1404 n. 12 (9th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994). Although the Fifth Circuit has not explicitly overruled Nell, it has recognized that a showing of prejudice is required for reversal of a conviction based on a trial court’s erroneous denial of a challenge for cause. See United States v.

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Cite This Page — Counsel Stack

Bluebook (online)
48 F.3d 1477, 1995 WL 67232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alexander-ca9-1995.