United States v. John Pierce

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 1, 2021
• Docket: 19-30215
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 1 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30215

Plaintiff-Appellee, D.C. No. 3:18-cr-00040-SLG-2 v.

JOHN PIERCE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding

Argued and Submitted June 17, 2021 Anchorage, Alaska

Before: RAWLINSON, CHRISTEN, and R. NELSON, Circuit Judges.

John Pierce appeals his jury convictions for conspiracy to commit credit

union robbery, 18 U.S.C. § 371; armed robbery of a credit union, 18 U.S.C.

§ 2113(a) and (d); and brandishing a firearm during and in relation to a crime of

violence, 18 U.S.C. § 924(c)(1)(A)(ii). We have jurisdiction pursuant to 28 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. § 1291 and we affirm. Because the parties are familiar with the facts, we recite

only those necessary to resolve the issues on appeal.

1. Pierce argues the evidence was insufficient to convict him of conspiracy

to commit armed robbery. We review this challenge de novo. United States v.

Liew, 856 F.3d 585, 596 (9th Cir. 2017). Because Pierce failed to raise this

argument before the district court, we review for plain error. See United States v.

Garcia-Guizar, 160 F.3d 511, 516–17 (9th Cir. 1998). “Under plain-error review,

reversal is permitted only when there is (1) error that is (2) plain, (3) affects

substantial rights, and (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Cruz, 554 F.3d 840, 845 (9th

Cir. 2009) (internal quotation marks and citations omitted); see also Fed. R. Crim.

P. 52(b) (“A plain error that affects substantial rights may be considered even

though it was not brought to the court’s attention.”). The parties dispute whether

the plain error standard or the sufficiency test from Jackson v. Virginia, 443 U.S.

307, 319 (1979), should be applied. However, in this circuit, a conviction

predicated on insufficient evidence necessarily satisfies the plain-error test. Cruz,

554 F.3d at 844–45; see also United States v. Flyer, 633 F.3d 911, 917 (9th Cir.

2011).

2 To find plain error, we must conclude that a rational trier of fact could not

have found the essential elements of conspiracy based on the evidence presented.

See Garcia-Guizar, 160 F.3d at 517. The essential elements of conspiracy are “an

agreement to accomplish an illegal objective, coupled with one or more overt acts

in furtherance of the illegal purpose and the requisite intent necessary to commit

the underlying substantive offense.” United States v. Sangmeister, 685 F.2d 1124,

1126 (9th Cir. 1982) (citation omitted). “A formal agreement is not necessary;

rather the agreement may be inferred from the defendants’ acts pursuant to the

scheme, or other circumstantial evidence.” United States v. Lapier, 796 F.3d 1090,

1095 (9th Cir. 2015) (internal quotation marks and citations omitted); United

States v. Gonzalez, 906 F.3d 784, 792 (9th Cir. 2018) (“[A] tacit agreement will

suffice.”). “A tacit agreement may be inferred from the conspirators’ conduct as

well as other circumstantial evidence.” Gonzalez, 906 F.3d at 792.

The government presented three main pieces of evidence to argue that

Moore tacitly agreed to engage in an armed robbery: surveillance footage allegedly

showing Moore and Pierce handling a gun in the vehicle’s trunk, a prison

telephone call between Moore and his sister in which Moore did not deny

involvement in an armed robbery, and the cooperating witness’s testimony about

loaning Pierce the gun. These first two arguments lack merit. The surveillance

3 video of Pierce packing a duffel bag does not show a gun at all, and because there

was no other evidence that the gun was ever in the duffel bag, the video does not

offer circumstantial evidence that Moore knew that Pierce was armed. The same is

true of the recorded jailhouse telephone call. Moore never referred to a gun in the

call; he only responded to the caller by admitting to involvement as a driver. The

government’s argument that Moore would necessarily have responded to the

caller’s statement that the robbery had been an armed robbery is not persuasive; the

caller accurately described the circumstances of the robbery.

However, we conclude the government presented sufficient circumstantial

evidence for the jury to infer a tacit agreement based on the cooperating witness’s

testimony. The witness testified that Moore drove Pierce to pick up the gun prior

to the robbery and waited for Pierce outside for around thirty minutes while Pierce

collected the gun. A rational trier of fact could have inferred a tacit agreement

between Pierce and Moore to secure and employ a gun in the robbery based on

these facts. The outcome of this issue is largely controlled by the highly

deferential standard that we apply. We do not find plain error.

2. Pierce also argues that armed robbery is not categorically a crime of

violence under 18 U.S.C. § 924(c), but he concedes that current circuit precedent

forecloses this challenge. “[A]rmed bank robbery under § 2113(a) and (d)

4 qualifies as a crime of violence under § 924(c).” United States v. Watson, 881 F.3d

782, 786 (9th Cir. 2018). Accordingly, we reject Pierce’s argument, which he

raised in order to preserve the issue.

AFFIRMED.