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United States v. Carr

United States Court of Appeals, Ninth Circuit

August 4, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
EDWIN CARR, AKA Edwin Luther Carr, Jr., Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MARK ANTHONY FRANKLIN, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DAMIEN LAMAR ANDERSON, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellant,
v.
MARK ANTHONY FRANKLIN, Defendant-Appellee. UNITED STATES OF AMERICA, Plaintiff-Appellant,
v.
DAMIEN LAMAR ANDERSON, Defendant-Appellee

Argued and Submitted, Pasadena, California: December 2, 2013.

Page 1069

Appeal from the United States District Court for the Central District of California. D.C. No. 2:09-cr-00618-SVW-2. D.C. No. 2:09-cr-00618-SVW-3. D.C. No. 2:09-cr-00618-SVW-1. D.C. No. 2:09-cr-00618-SVW-3. D.C. No. 2:09-cr-00618-SVW-1. Stephen V. Wilson, District Judge, Presiding.

Criminal Law

The panel affirmed in part, reversed in part, and remanded, in appeals and government cross-appeals arising from a case in which a jury convicted Edwin Carr, Damien Anderson, and Mark Franklin on counts related to the armed robbery of a federal credit union.

The panel held that the district court did not err by admitting an eyewitness's pretrial identification testimony. The panel held that the pretrial identification procedure was not impermissibly suggestive, and that despite an eighteen-month delay between the robbery and the eyewitness's interrogation, the district court did not err by allowing the jury to weigh her identification testimony.

The panel held that the evidence supports the jury verdict that Carr was guilty of forced accompaniment under 18 U.S.C. § 2113(e). The panel held that the evidence supported the jury's finding that forced accompaniment was foreseeable to all three defendants, and that to the extent the district court vacated Anderson's and Franklin's convictions under § 2113(e), it erred.

The panel held that the district court did not err by ruling that the evidence did not support Franklin's convictions for use of firearms under 18 U.S.C. § § 2113(d) and 924(c). Noting that the written judgment is inconsistent with the district court's oral explanation of its decision to vacate Franklin's conviction under § 2113(d), the panel instructed the district court on remand to enter an amended judgment reflecting that Franklin was acquitted of the § 924(c) gun charge and the § 2113(d) gun enhancement.

The panel held that the district court's Alleyne error -- application of the ten-year mandatory minimum pursuant to 18 U.S.C. § 924(c)(1)(A)(iii) without a supporting jury finding -- was harmless because all of the trial evidence supported the court's implicit finding that guns were discharged during the course of the robbery.

The panel held that the district court sufficiently justified its departure from the recommended guidelines range when sentencing Franklin, and rejected Franklin's argument that his sentence is substantively unreasonable.

Rasha Gerges (argued) and Christopher K. Pelham, Assistant United States Attorneys; Robert E. Dugdale, Chief, Criminal Division; Andre Birotte Jr., United States Attorney, Central District of California, Los Angeles, California, for Plaintiff-Appellee / Cross-Appellant.

Rebecca P. Jones (argued), San Diego, California, for Defendant-Appellant / Cross-Appellee Franklin.

Michael J. Treman (argued), Santa Barbara, California, for Defendant-Appellant / Cross-Appellee Carr.

Mark Yanis (argued), Costa Mesa, California, for Defendant-Appellant / Cross-Appellee Anderson.

Before: Harry Pregerson, Marsha S. Berzon, and Morgan Christen, Circuit Judges. Opinion by Judge Christen.

OPINION

Page 1070

CHRISTEN, Circuit Judge:

I. Introduction

Edwin Carr, Damien Anderson, and Mark Franklin were each indicted on three counts related to the armed robbery of a federal credit union. A jury found all of the defendants guilty on all counts. They appeal their convictions and sentences. The government cross-appeals, arguing the district court erroneously vacated portions

Page 1071

of the defendants' sentences. We have jurisdiction under 18 U.S.C. § § 1291 and 3731. We affirm in part, reverse in part, and remand.

II. Facts and Proceedings

Vons Federal Credit Union in Santa Fe Springs, California, was robbed in February 2008. Edwin Carr, Damien Anderson, and Mark Franklin were each indicted for: (1) conspiracy to commit bank robbery in violation of 18 U.S.C. § 371; (2) bank robbery, along with enhancements for the use of a firearm and forced accompaniment in violation of 18 U.S.C. § § 2113(a), (d), and (e) respectively; and (3) use or possession of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c).

At trial, the jury heard testimony from four eyewitnesses to the crime: Lanita Fields, who was present at the crime scene; Barbara Wilson, one of two tellers inside the credit union; Nicole Cervantes, the other teller; and Robert Monken, a security guard. The jury also heard testimony from police officers and forensic scientists who investigated the scene and collected physical evidence.

Fields testified that on the morning of the robbery, she received a telephone call from an old boyfriend, Darius Wilson, who asked her to meet him. Darius directed Fields to a duplex where he asked Fields to participate in a bank robbery. Fields agreed, and Darius took Fields inside the duplex to meet some people. Fields testified that she was introduced to eight or ten men she had not seen before. At trial, Fields identified Carr, Anderson, and Franklin as having been in the room. Fields testified that she spent about eight to ten minutes inside the duplex, that she stood about five feet away from the defendants, and that she could see them clearly.

Fields left the duplex with several of the men. She explained that two of them got into her car while Franklin drove a red car with another man in it. The cars traveled in a convoy toward the credit union. Fields used marijuana on the way.

After driving about 30 minutes, the cars stopped a few blocks from the credit union and a passenger got out of Franklin's red car and into Fields's car. The men in Fields's car told her to drive to the credit union parking lot, which she did.

At the time of the robbery, Vons Federal Credit Union was located in a small trailer in the parking lot of Vons Distribution Center. Stairs and a ramp led to a deck outside the trailer, where customers walked up to be served through three teller windows without entering the trailer. The trailer had one door, which was locked at all times except to allow credit union employees to enter and exit, and to accept deliveries. Customers were never allowed to enter the trailer. Testimony at trial established that Franklin was a former member of Vons Federal Credit Union and a former employee of Vons Distribution Center.

One of the men in Fields's car was dressed as a FedEx employee. Fields identified this man as Damien Anderson, and she testified that Anderson got out of her car and approached the door of the credit union carrying a clipboard and a box.

Barbara Wilson, one of two credit union tellers working that morning, identified Edwin Carr as the man in the FedEx uniform. Wilson testified that when she saw the man wearing a delivery uniform approach the credit union, she opened the door to accept the package. Before Wilson could sign for the package, the man used the box to shove her back inside the trailer. Realizing that this was a robbery, Wilson attempted to push the robber out of the trailer doorway. She managed to

Page 1072

advance a few feet outside before being pushed back inside. In the struggle, Wilson resisted the robber by grabbing one of the small wooden tables mounted under the teller windows outside the trailer. Eventually, the man overpowered Wilson and pushed her to the floor of the trailer.

Nicole Cervantes was the other teller working that morning. She testified that she heard Wilson say " Oh, FedEx" and get up to open the door to the credit union. After a minute or two, Cervantes left her station to see if Wilson needed help. Standing three or four feet away, she saw a man in a black sweatshirt in the middle of the trailer. The man said, " This is a robbery" and forced Cervantes at gunpoint to put cash into a black trash bag. Cervantes testified that her interaction with the robber wearing a black sweatshirt lasted about a minute. She also testified that the light was good and that she stood a few feet to a few inches away from the robber. Cervantes identified Damien Anderson as the second robber.

The men ran out of the trailer with the garbage bag and the money. Wilson recalled that the second robber pointed a gun at her face as he passed, but she did not get a look at his face. Wilson also testified that as he ran down the ramp outside the credit union, the robber with the gun pointed it over the fence at someone she could not see. Wilson estimated that three minutes passed between the time the first robber approached the credit union door and the time the robbers fled.

Waiting outside in her car, Lanita Fields watched the altercation in the credit union doorway. She told the jury that a second robber left her car and entered the credit union after the man in the FedEx uniform got out of her car. Fields identified Edwin Carr as the second robber. She also testified that a third, unidentified robber pulled out a gun, left her car, and entered the credit union. According to Fields, Franklin never got out of the red car.

As the robbery was in progress, Robert Monken, a security guard at Vons Distribution Center, saw Barbara Wilson fighting and shoving with a man on the platform outside the credit union. Monken estimated that about ten seconds later, three men ran out of the credit union and got into Fields's car. According to Monken, the last man out pointed his gun directly at Monken as he walked down the ramp.

Fields said the three men ran out of the credit union, jumped in her car, and ordered her to drive. She saw Monken pursuing them in his security van and testified that two of the three men in her car started shooting at the security van as it chased them.

Eventually, the men ordered Fields to stop in a residential neighborhood where they got out of her car and ran into a backyard. Monken was still ...


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