United States v. Allen ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-50205
Plaintiff-Appellee,
D.C. No.
v.
 CR-02-00904-WJR-
KORAN MCKINLEY ALLEN, a/k/a 04
Sinbad,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
William J. Rea, District Judge, Presiding
Argued and Submitted
August 1, 2005—Pasadena, California
Filed October 18, 2005
Before: William C. Canby, Jr., Alex Kozinski, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson
14319
14322 UNITED STATES v. ALLEN
COUNSEL
Phillip I. Bronson, Encino, California, for defendant-appellant
Koran McKinley Allen.
Dorothy C. Kim and Jason de Bretteville, Assistant United
States Attorneys, Los Angeles, California, for plaintiff-
appellee United States of America.
OPINION
RAWLINSON, Circuit Judge:
A jury convicted Koran McKinley Allen of conspiracy to
commit armed bank robbery, armed bank robbery, and using,
carrying, or possessing a firearm during a crime of violence.
On appeal, Allen maintains that there was insufficient evi-
dence to support his firearm conviction; that the admission of
a co-conspirator’s statement violated his Sixth Amendment
right of confrontation; that a government witness’s allusion to
Allen’s previous incarceration warranted a mistrial; that the
district court failed to appreciate that it had discretion to
depart downward on Allen’s sentence based on a tragic per-
sonal history and the disproportionate impact of a prior con-
UNITED STATES v. ALLEN 14323
viction; and that the enhancement of his sentence using judge-
found facts violated the Sixth Amendment. We affirm the
convictions and, because the sentencing judge is no longer
available, we order a remand for resentencing pursuant to
United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en
banc), and United States v. Sanders, 421 F.3d 1044, 1052 (9th
Cir. 2005).
I
BACKGROUND
Allen and his co-conspirators robbed the Community Bank
in Pasadena, California, of $21,619. The plan was organized
by Larry Washington and his longtime friend, Derrick
O’Neal. The two of them, along with co-conspirator Edward
Warren, drove to Pasadena the day before the robbery and
selected Community Bank as the target. O’Neal recruited
three co-conspirators to assist with the robbery, and Washing-
ton told O’Neal that Washington “was going to bring a crew
that he had used in another robbery.” According to FBI Spe-
cial Agent Taglioretti’s testimony, he was informed by
O’Neal of Washington’s prior statement to O’Neal that Wash-
ington recruited Jerry Hughes, Allen, and another individual.1
On the morning of the robbery, all involved, including
Allen, met in front of Warren’s home to organize and discuss
the logistics of the robbery. The use of firearms was dis-
cussed, and Washington took a bag full of guns out of his
Pathfinder truck, around which all the participants had gath-
ered. Hughes also displayed his gun during the meeting. The
meeting ended when Warren’s mother began looking out the
window of the home.
1
Telephone records indicate that Washington called Allen on the eve-
ning before the robbery.
14324 UNITED STATES v. ALLEN
The robbers drove to Pasadena in four vehicles: a maroon
van that O’Neal had stolen to use as a getaway car; Washing-
ton’s white Pathfinder; a gray Escort; and a rental car. Allen,
who was designated as a getaway driver, drove the maroon
van. When they arrived in Pasadena, all four cars met behind
the bank in a parking area. Eventually, five members of the
crew entered the bank. Allen remained behind.
During the robbery, Hughes and another co-conspirator dis-
played their firearms. Hughes also used his gun to strike two
bank employees. One of these employees was knocked
unconscious and taken to the emergency room for a CAT
scan. Upon exiting the bank, the robbers walked toward the
maroon van, but Allen was not in it. As a result, the five rob-
bers drove away in the Escort.
Warren and O’Neal remained in O’Neal’s car during the rob-
bery.2 They were planning to drive away from the bank, turn
around, and drive back. As they were heading back toward the
bank, Washington called O’Neal, explaining that he needed a
ride because his truck would not start. At approximately the
same time, O’Neal and Warren saw Allen walking down the
street and summoned him into the vehicle. Washington
phoned O’Neal a second time, and, as the two were speaking,
O’Neal spotted Washington on the corner. Washington
entered the backseat of the car and attempted to lie down to
hide himself from view.
Officer Shannon Reece of the Pasadena Police Department
was on patrol when she heard over the police radio that the
Community Bank had been robbed. While Reece was at an
intersection, a car stopped on the opposite side of the traffic
light drew her attention. When she proceeded through the
intersection, she noticed a passenger in that car attempting to
hide in the backseat, so she made a U-turn and initiated a traf-
2
It appears that Washington also remained in his vehicle during the rob-
bery.
UNITED STATES v. ALLEN 14325
fic stop of the vehicle. The four individuals in the car—
O’Neal, Warren, Washington, and Allen—were taken into
custody later that day.
All those involved in the robbery were charged with one
count of conspiracy to commit bank robbery in violation of 18
U.S.C. § 371, one count of armed bank robbery in violation
of 18 U.S.C. § 2113(a) and (d), and one count of using, carry-
ing, or possessing a firearm during a crime of violence in vio-
lation of 18 U.S.C. § 924(c). Allen was convicted on all
counts, and sentenced to 319 months imprisonment after the
district court applied several enhancements to Allen’s base
offense level. This appeal followed.
II
DISCUSSION
A. Sufficiency of the Evidence
Allen’s motion for a judgment of acquittal was denied by
the district court. Allen contends that there is insufficient evi-
dence to support his conviction for using, carrying, or pos-
sessing a firearm because the evidence failed to establish that
he could reasonably foresee the use of firearms during the
robbery.
The denial of a motion for a judgment of acquittal is
reviewed de novo. United States v. Bello-Bahena, 411 F.3d
1083, 1087 (9th Cir. 2005). “We must view the evidence in
the light most favorable to the government and determine
whether any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.” Id.(citation omitted).
[1] Under § 924(c), it is a crime to use or carry a firearm
during a crime of violence or to possess a firearm in further-
ance of such a crime. 18 U.S.C. § 924(c)(1)(A) (2000 & Supp.
14326 UNITED STATES v. ALLEN
2005). Although Allen did not himself use, carry, or possess
a gun in furtherance of the robbery,3 he could be convicted as
a co-conspirator. See Pinkerton v. United States, 328 U.S.
640, 647 (1946). The Pinkerton rule holds “a conspirator
criminally liable for the substantive offenses committed by a
co-conspirator when they are reasonably foreseeable and
committed in furtherance of the conspiracy.” United States v.
Long, 301 F.3d 1095, 1103 (9th Cir. 2002) (citing Pinkerton,
328 U.S. at 645-48). Thus, the government “is not required to
establish that [Allen] had actual knowledge of the gun[s]”;
rather, “[t]he touchstone is foreseeability.” United States v.
Hoskins, 282 F.3d 772, 776 (9th Cir. 2002) (citation omitted).
[2] The district court committed no error in denying Allen’s
motion for a judgment of acquittal. Allen was present at the
“morning of” meeting where guns were present and their use
was discussed; he had a longstanding friendship with co-
conspirator O’Neal who had participated in previous armed
bank robberies; and, it is reasonable to infer from the nature
of the plan—the overtaking of a bank by force and
intimidation—that guns would be used. See id. at 777(upholding a conviction under § 924(c) premised on co-
conspirator liability where the defendant participated in two
meetings at which the robbery was planned, was involved
romantically with one of the co-conspirators who had partici-
pated in similar armed robberies, and because the nature of
the plan, which required the use of force or intimidation to
overtake the cash room at a K-Mart, made the use of a gun
reasonably foreseeable.).
B. Confrontation Clause Claim
Relying on Crawford v. Washington, 541 U.S. 36 (2004),
Allen contends that Washington’s statement to O’Neal about
whom Washington was recruiting into the conspiracy was
3
Robbery is a crime of violence. See United States v. Mendez, 992 F.2d
1488, 1491 (9th Cir. 1993).
UNITED STATES v. ALLEN 14327
inadmissible hearsay, and its introduction violated Allen’s
right of confrontation. Allen cites two instances where Wash-
ington’s statement was impermissibly allowed into evidence:
O’Neal’s testimony that Washington told him he was bringing
in his “crew”; and Agent Taglioretti’s testimony that O’Neal
told him whom Washington had recruited.
Because Allen failed to object to Washington’s statement
on Confrontation Clause grounds, we review for plain error.
See United States v. Huber, 772 F.2d 585, 588 (9th Cir. 1985).4
Confrontation Clause violations are also subject to harmless
error analysis. United States v. Nielsen, 371 F.3d 574, 581
(9th Cir. 2004).
[3] In Crawford, the Court held that “[w]here testimonial
evidence is at issue, . . . the Sixth Amendment demands what
the common law required: unavailability and a prior opportu-
nity for cross-examination.” Crawford, 541 U.S. at 68. How-
ever, co-conspirator statements are not testimonial and
therefore beyond the compass of Crawford’s holding. See id.
at 56 (describing “statements in furtherance of a conspiracy”
as “statements that by their nature [are] not testimonial”); see
also United States v. Delgado, 401 F.3d 290, 299 (5th Cir.
2005); United States v. Rashid, 383 F.3d 769, 777 (8th Cir.
2004).
[4] Therefore, Washington’s statement to O’Neal, as a
statement made in furtherance of the conspiracy, was not tes-
timonial, and its introduction did not violate the Confrontation
Clause. Additionally, although O’Neal’s statement to Agent
Taglioretti was “testimonial” under Crawford, see Crawford,
541 U.S. at 53 (holding that statements made to law enforce-
ment “fall squarely within that class” of testimonial hearsay
covered by the Sixth Amendment), because O’Neal was avail-
4
Allen does not challenge the admission of Washington’s statement on
hearsay grounds. Rather, he asserts that the hearsay nature of the statement
violated his rights under the Confrontation Clause.
14328 UNITED STATES v. ALLEN
able as a witness and cross-examined by Allen, the admission
of O’Neal’s out-of-court statement did not violate Allen’s
Sixth Amendment rights under Crawford.5 See id. at 59 n.9
(“[W]e reiterate that, when the declarant appears for cross-
examination at trial, the Confrontation Clause places no con-
straints at all on the use of his prior testimonial statements.”)
(citation omitted).
Finally, even if the statements complained of were improp-
erly admitted, any error was harmless, as there was over-
whelming evidence connecting Allen to the conspiracy. See
United States v. Bowman, 215 F.3d 951, 961-62 (9th Cir.
2000) (holding that Confrontation Clause violation, if any,
was harmless beyond a reasonable doubt, as there was other
evidence linking defendant to the conspiracy beyond a reason-
able doubt.). Allen was arrested in the same vehicle as three
other conspirators as they attempted to flee the scene of the
robbery, and both O’Neal and Alexander identified Allen as
a participant in the conspiracy.
C. Denial of Requested Mistrial
During his cross-examination of O’Neal, Allen’s counsel
asked O’Neal how often he had seen Allen, and O’Neal
responded “When he got out of jail.” Allen immediately made
5
Nor does the admission of these statements implicate Bruton v. United
States, 391 U.S. 123 (1968). Bruton precludes the admission of a defen-
dant’s confession implicating a co-defendant during a joint trial. Id. at
123-24, 135-37. However, that is not the situation before us. Washington,
having pled guilty, was not a co-defendant in Allen’s trial, and Washing-
ton’s statement to O’Neal about whom Washington had recruited was not
a confession; rather, it was a statement made by a co-conspirator during
and in furtherance of the conspiracy and thus not barred by Bruton. See
United States v. McCown, 711 F.2d 1441, 1448 (9th Cir. 1983) (finding
Bruton inapplicable to statements made by a co-conspirator in furtherance
of a conspiracy.). Additionally, to the extent that O’Neal’s statement to
Taglioretti occurred during O’Neal’s confession, O’Neal was not a co-
defendant, having pled guilty, and was also subjected to cross-examination
at Allen’s trial.
UNITED STATES v. ALLEN 14329
a motion for a mistrial. The government agreed that O’Neal’s
answer should be stricken and insisted that the court admon-
ish the jury to disregard it. The court did so and denied
Allen’s motion. Allen appeals the denial of his motion. We
review the district court’s denial of the motion for an abuse
of discretion. United States v. Allen, 341 F.3d 870, 891 (9th
Cir. 2003).
[5] We conclude that the district court acted within its dis-
cretion. O’Neal’s isolated reference to Allen’s prior incarcera-
tion did not warrant a mistrial. See United States v.
Yarbrough, 852 F.2d 1522, 1540 (9th Cir. 1988) (“[I]solated
references to [defendant’s] prior prison record did not warrant
a mistrial.”), and any resulting prejudice dissipated when the
district court immediately gave a curative instruction to the
jury. See United States v. Parks, 285 F.3d 1133, 1141 (9th
Cir. 2002) (finding no abuse of discretion when the district
court denied defendant’s motion for a mistrial because the
district court “admonished the jury to disregard the state-
ment.”). Moreover, there was overwhelming evidence of
Allen’s guilt, so any error was harmless. See, e.g., Allen, 341
F.3d at 892 (affirming the denial of a motion for a mistrial
because there was ample evidence of defendant’s guilt.).
D. Allen’s Sentence
[6] Allen argues that the district court erred in failing to
grant him a downward departure to his sentence based on a
tragic personal history and the disproportionate impact of a
prior conviction. Because the district court appeared to be
aware of its authority to depart downward, denial of Allen’s
request is not reviewable. See United States v. Berger, 103
F.3d 67, 69 (9th Cir. 1996). However, Allen and the govern-
ment agree that a remand is appropriate under Ameline.
Because the sentencing judge is no longer available, the sen-
tence is vacated and this case is remanded “for a full resen-
tencing hearing.” Sanders, 421 F.3d at 1052.
14330 UNITED STATES v. ALLEN
III
CONCLUSION
There was sufficient evidence presented during the trial to
enable a rational jury to conclude that the use of firearms dur-
ing the bank robbery was reasonably foreseeable to Allen.
The admission of a co-conspirator’s statement made during
and in furtherance of the conspiracy did not violate Allen’s
right to confront adverse witnesses, and no mistrial was war-
ranted for a brief, isolated reference to Allen’s prior incarcera-
tion. Although the district court’s denial of Allen’s request to
depart downward is not reviewable, the parties agree that a
remand of Allen’s sentence is appropriate. Because the sen-
tencing judge is no longer available, resentencing is war-
ranted.
CONVICTION AFFIRMED; SENTENCE VACATED;
REMANDED FOR RESENTENCING.