United States v. John Pierce

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NOT FOR PUBLICATION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).
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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
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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)
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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.
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