United States v. James Davis

FILED
NOT FOR PUBLICATION JAN 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50353
Plaintiff - Appellee, D.C. No. 2:06-cr-00812-CBM-1
v.
MEMORANDUM *
JAMES ERNEST DAVIS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Submitted January 12, 2010 **
Pasadena, California
Before: CANBY, HALL and O’SCANNLAIN, Circuit Judges.
James Davis appeals his jury conviction of two counts of bank robbery in
violation of 18 U.S.C. § 2113(a). He advances three arguments for vacating the
conviction, each of which is defeated by well-established precedent. The first
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
argument—that the district court abused its discretion by declining to instruct the
jury as to the consequences of a verdict of not guilty by reason of insanity—is
foreclosed by United States v. Shannon, in which the United States Supreme Court
cautioned that an instruction concerning the consequences of such a verdict “is not
to be given as a matter of general practice.” 512 U.S. 573, 587 (1994). The second
argument—that the district court abused its discretion by declining to instruct the
jury to consider the “perspective” of the bank tellers—is foreclosed by United
States v. Alsop, in which we held that a jury must “focus its attention on the
conduct of the defendant and not on the reaction of the victim.” 479 F.2d 65, 67
(9th Cir. 1973). The third argument—that there was insufficient evidence of a
taking by intimidation—is defeated by uncontested evidence that Davis presented
the tellers with demand notes. See United States v. Hopkins, 703 F.2d 1102, 1103
(9th Cir. 1983) (“[T]hreats implicit in . . . written and verbal demands for money
provide sufficient evidence of intimidation to support [a] jury’s verdict.”).
The judgment of the district court is
AFFIRMED.
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