Filed: Aug. 04, 2014
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 12-50082 Plaintiff-Appellee, D.C. No. v. 2:09-cr-00618- SVW-2 EDWIN CARR, AKA Edwin Luther Carr, Jr., Defendant-Appellant. UNITED STATES OF AMERICA, No. 12-50089 Plaintiff-Appellee, D.C. No. v. 2:09-cr-00618- SVW-3 MARK ANTHONY FRANKLIN, Defendant-Appellant. UNITED STATES OF AMERICA, No. 12-50135 Plaintiff-Appellee, D.C. No. v. 2:09-cr-00618- SVW-1 DAMIEN LAMAR ANDERSON, Defendant-Appellant. 2 UNI
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 12-50082 Plaintiff-Appellee, D.C. No. v. 2:09-cr-00618- SVW-2 EDWIN CARR, AKA Edwin Luther Carr, Jr., Defendant-Appellant. UNITED STATES OF AMERICA, No. 12-50089 Plaintiff-Appellee, D.C. No. v. 2:09-cr-00618- SVW-3 MARK ANTHONY FRANKLIN, Defendant-Appellant. UNITED STATES OF AMERICA, No. 12-50135 Plaintiff-Appellee, D.C. No. v. 2:09-cr-00618- SVW-1 DAMIEN LAMAR ANDERSON, Defendant-Appellant. 2 UNIT..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50082
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-00618-
SVW-2
EDWIN CARR, AKA Edwin Luther
Carr, Jr.,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 12-50089
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-00618-
SVW-3
MARK ANTHONY FRANKLIN,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 12-50135
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-00618-
SVW-1
DAMIEN LAMAR ANDERSON,
Defendant-Appellant.
2 UNITED STATES V. CARR
UNITED STATES OF AMERICA, No. 12-50144
Plaintiff-Appellant,
D.C. No.
v. 2:09-cr-00618-
SVW-3
MARK ANTHONY FRANKLIN,
Defendant-Appellee.
UNITED STATES OF AMERICA, No. 12-50169
Plaintiff-Appellant,
D.C. No.
v. 2:09-cr-00618-
SVW-1
DAMIEN LAMAR ANDERSON,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
December 2, 2013—Pasadena, California
Filed August 4, 2014
Before: Harry Pregerson, Marsha S. Berzon,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
UNITED STATES V. CARR 3
SUMMARY*
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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 UNITED STATES V. CARR
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.
COUNSEL
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.
UNITED STATES V. CARR 5
Mark Yanis (argued), Costa Mesa, California, for Defendant-
Appellant / Cross-Appellee Anderson.
OPINION
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 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
6 UNITED STATES V. CARR
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
UNITED STATES V. CARR 7
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 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
8 UNITED STATES V. CARR
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
UNITED STATES V. CARR 9
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 following Fields, but she
managed to evade him.
Driving separately in a “maroon” Buick, Franklin was
stopped near the credit union shortly after the robbery was
reported. He told the arresting officer that he had been at
Vons Distribution Center looking for a job, but later stated
that he was in the area to have lunch with a friend. A search
of Franklin’s maroon Buick revealed a baseball cap and a cell
phone on which calls to and from Anderson had been made
and received on the morning of the robbery. DNA testing on
the baseball cap revealed DNA consistent with Anderson.
The government recovered several other pieces of
corroborating physical evidence. A black sweatshirt with
DNA on it consistent with Carr was found in a backyard near
where the robbers fled on foot after leaving Fields’s car. The
sweatshirt was found next to coins and money traced to the
robbery.
In addition to this testimony concerning the events that
occurred on the day of the robbery, the jury heard evidence
that Fields was interviewed by Agent Taglioretti of the FBI
10 UNITED STATES V. CARR
eighteen months after the robbery. The interrogation was
recorded. Fields was told that surveillance cameras showed
her car at the scene of the robbery and that witnesses
identified her as one of the drivers. Confronted with evidence
of her involvement in the crime and told that she faced “very
serious” exposure to charges, Fields identified Carr, Franklin,
and Anderson as participants in the robbery. She selected
their photographs from a series of photos Taglioretti
displayed during the interrogation. At trial, Fields testified
about her pretrial identification of the defendants over their
objection.
After the jury found all three defendants guilty of all
charges, the defendants filed motions for a new trial and
judgment of acquittal. The district court granted Franklin’s
Rule 29 motion for judgment of acquittal as to his firearms
convictions under § 2113(d) and § 924(c). The court’s
sentencing comments made it apparent that the court
considered Carr to be the robber who wore the FedEx
uniform, and Franklin, the robber who waited in the red or
maroon Buick, to be the “architect” of the robbery because he
had a history of working at Vons. The court expressed
concern that Franklin and Anderson could not have foreseen
that the FedEx robber would get into a shoving match with
Barbara Wilson at the door of the credit union, this tussle
being the basis for the forced accompaniment charge. But the
record is unclear regarding the court’s ruling on Anderson’s
and Franklin’s motions for acquittal of forced
accompaniment.
On appeal, defendants argue that the district court erred
by allowing Fields to testify about her pretrial identification
of them. They also argue that the evidence was insufficient
to support several of the charges. Franklin appeals his
UNITED STATES V. CARR 11
sentence, and Anderson and Carr argue that the court’s
finding that they discharged firearms during the robbery was
reversible error under Alleyne v. United States, 133 S. Ct.
2151 (2013). The government cross-appeals, arguing that the
district court erred by vacating Franklin’s and Anderson’s
sentencing enhancements for forced accompaniment under
§ 2113(e), and by vacating Franklin’s convictions for use and
possession of a firearm under § 2113(d) and § 924(c).
III. Discussion
A. The district court did not err by admitting Fields’s
pretrial identification testimony.
Before trial, the defendants joined in a motion to exclude
Fields’s pretrial identification of the defendants. The district
court denied the motion. All three defendants submit that this
was error, arguing that the pretrial identification procedure
was impermissibly suggestive and unreliable.
The constitutionality of pretrial identification procedures
is a question of law we review de novo. United States v.
Montgomery, 150 F.3d 983, 992 (9th Cir. 1998).
“[C]onvictions based on eyewitness identification at trial
following a pretrial identification by photograph will be set
aside . . . only if the [pretrial] photographic identification
procedure was so impermissibly suggestive as to give rise to
a very substantial likelihood of irreparable misidentification.”
Simmons v. United States,
390 U.S. 377, 384 (1968). This
involves a three-part inquiry. First, this court must determine
if the pretrial identification procedure was impermissibly
suggestive. United States v. Love,
746 F.2d 477, 478 (9th
Cir. 1984). Second, if the identification procedure was
unduly suggestive, the court must determine whether it was
12 UNITED STATES V. CARR
sufficiently reliable such that it does not implicate the
defendant’s due process rights.
Id. Third, even if the pretrial
identification procedure was suggestive and the identification
was unreliable, this court must examine the district court’s
failure to exclude the identification for harmless error. See
Ocampo v. Vail,
649 F.3d 1098, 1114 (9th Cir. 2011).
1. The pretrial identification procedure was not
impermissibly suggestive.
“An identification procedure is suggestive when it
emphasizes the focus upon a single individual thereby
increasing the likelihood of misidentification.” Montgomery,
150 F.3d at 992 (internal quotation marks, alteration, and
citation omitted). To determine if an identification procedure
was unduly suggestive, the court must examine the totality of
the surrounding circumstances. United States v. Bagley,
772 F.2d 482, 492 (9th Cir. 1985).
Both Fields and Agent Taglioretti described the contested
identification procedure at trial. Because only an audio
recording was made, Taglioretti and Fields were both
extensively questioned about the method Taglioretti used to
display the suspects’ photos during the questioning.
Agent Taglioretti explained that when the interview
began, he advised Fields that the situation was “very serious.”
The audio recording confirms that he repeated this at least
three times. According to Agent Taglioretti, Fields was very
upset and cried throughout most of the interview.
After asking Fields some preliminary questions but before
giving Fields a Miranda warning, Agent Taglioretti described
what he knew about the robbery and the evidence that Fields
UNITED STATES V. CARR 13
was involved. Taglioretti explained that while he was doing
this, he placed a series of twelve photographs, one after
another, face up, in a stack on the table. Agent Taglioretti
recalled that the photographs of the defendants were the last
three photos he laid on the table, so they ended up as the first
three photos at the top of the stack. He described the other
photographs in the pile as photos of men with similar
appearances. After he displayed the photos in the manner
described, Agent Taglioretti read Fields her Miranda rights
and began to ask questions about the robbery. Taglioretti did
not admonish Fields that the stack of photographs may not
include pictures of the suspects.
Agent Taglioretti testified that Fields spontaneously
identified the three defendants by separating their
photographs from the pile before he asked her about them.
She did this after she had been told that she was implicated in
the robbery. Fields’s testimony substantially corroborated
Agent Taglioretti’s version of how the interrogation was
conducted.
Taglioretti informed Fields that it could take a year or two
before the case went to trial. This portion of the audio
recording captured Fields’s statement: “Well, unless I pin it
on these guys.” During the interrogation, Taglioretti did not
ask what Fields meant by this statement, but at trial Fields
testified that she meant “that these were the [people]
involved, like are they going to get it.”
The defendants joined in a motion to exclude evidence of
Fields’s pretrial identification, arguing that Agent Taglioretti
used an impermissibly suggestive procedure that differed
substantially from the version of events the government
described in its pretrial briefing. The district court denied the
14 UNITED STATES V. CARR
motion, reasoning that the conflicting versions of the
interview went to the weight of the evidence, not its
admissibility. The district court later held an evidentiary
hearing on the issue outside the presence of the jury and
reached the same conclusion. The court found that while the
transcript of the interrogation was ambiguous and “it is clear
that there were things going on physically and visually that
weren’t captured on the audio,” Fields and Agent Taglioretti
were “essentially consistent” in their descriptions of what
happened during the interrogation. The court concluded it
had no reason to discredit Agent Taglioretti’s version of
events and denied the motion, reasoning that the procedure
described by the government was not impermissibly
suggestive.
On appeal, Carr, Anderson, and Franklin renew their
argument that the pretrial identification procedure was
impermissibly suggestive because Agent Taglioretti presented
Fields with only three photographs. This argument seems to
be based on the defendants’ supposition that because only
three photographs were mentioned in the audio recording,
only three photographs were displayed. But Taglioretti
testified that there were twelve photographs in the stack used
in the interrogation, and Fields testified that there were
“about ten” photographs in the stack. We agree with the
district court that the record of the interrogation is ambiguous
because there is no video, but we also agree with its
conclusion that the defense presented no reason to discredit
Agent Taglioretti’s account and we cannot conclude that
Agent Taglioretti unfairly focused Fields on the defendants
by displaying 10–12 photographs of men of similar
appearances during the interrogation.
UNITED STATES V. CARR 15
The appellants also argue that Fields’s identification was
coerced by Agent Taglioretti’s repeated statements that
cooperation would help her avoid serious prison time. There
can be no question that Fields undoubtedly felt pressure to
cooperate — she was told the police had strong evidence that
she had participated as the getaway driver in the robbery, and
she knew that shots had been fired from her car. But some
degree of pressure to cooperate is exerted whenever the
police question a suspected criminal accomplice, and we
know of no authority holding that this alone renders an out-
of-court identification inadmissible. In these circumstances,
it is hard to imagine a procedure that would not put Fields
under pressure. Apart from the fact that she was personally
implicated, defendants cite no other reason to suspect Fields’s
identification of defendants was coerced. They do not, for
example, claim that she was deprived of food, friends, and
counsel, cf. Reck v. Pate, 367 U.S. 433, 441–42 (1961), or
deprived of sleep, cf. Ashcraft v. State of Tennessee,
322 U.S.
143, 153 (1944), or subjected to extended interrogation, cf.
Chambers v. State of Florida,
309 U.S. 227, 238–39 (1940),
or that she was mentally disabled and subjected to misleading
questioning, cf. United States v. Preston,
751 F.3d 1008,
1017–18 (9th Cir. 2014) (en banc), or that she was a juvenile
or without the benefit of proper Miranda warnings, cf. Doody
v. Ryan,
649 F.3d 986, 1009 (9th Cir. 2011) (en banc). The
jury was certainly aware of her incentive to cooperate in the
hope of receiving a lesser charge or a lighter sentence for
herself, but this incentive goes to the weight, not the
admissibility, of Fields’s testimony. See Manson v.
Brathwaite,
432 U.S. 98, 113 n.14 (1977).
Defendants also challenge Fields’s identification on the
basis of the following exchange captured on the audio
recording of the pretrial interrogation:
16 UNITED STATES V. CARR
Fields: How long will this take?
Agent Taglioretti: It’ll take awhile, it could
take like two years
Fields: Oh no!
Agent Taglioretti: Yeah, it could take one
year. You know it could
be over in one year. But
right now
Fields: (Crying) unless I pin it on
these guys
Agent Taglioretti: I’m sorry?
Fields: Unless I pin it on, will I
have to (inaudible) with
them
Agent Taglioretti: Well, I have to talk to the
prosecutor. It’s possible
he could fashion it so that
you’re not going to court
with them . . . .
Counsel for all three defendants confronted Fields with this
exchange, and Carr’s counsel argued in summation that
Fields’s testimony should not be believed in light of these
statements. On appeal, defendants argue this exchange is
evidence that Fields felt compelled to identify someone,
regardless of whether the photos represented the real robbers.
There is no question the jury could have interpreted this
UNITED STATES V. CARR 17
exchange as showing that Fields had an incentive to
cooperate with the police, and that she likely understood she
would be positioned to negotiate for a more favorable
resolution of her own criminal liability if she identified her
accomplices. But Agent Taglioretti expressly told Fields that
he did not make charging decisions and could not promise
Fields leniency if she cooperated. We conclude that Agent
Taglioretti did not impermissibly coerce Fields’s testimony
such that it lacks sufficient reliability as a matter of law. The
entire exchange surely showed the jury that Fields felt
pressure, but the jury was free to disregard or discount
Fields’s identification testimony.
Finally, the appellants argue that the procedure Agent
Taglioretti used was tainted by his failure to admonish Fields
that the photos he showed her may not have included pictures
of the suspected robbers. Appellants cite no case holding that
the lack of this type of admonition renders an otherwise
permissible identification procedure unduly suggestive. This
omission did undermine the reliability of the identification
procedure and the jury was appropriately told of this
omission, but we cannot say that it rendered Fields’s
identification inadmissible. We conclude the district court
did not deny defendants due process by ruling that Agent
Taglioretti’s interrogation technique was not impermissibly
suggestive; the technique he used did not present a substantial
likelihood of irreparable misidentification.
2. The district court did not err by allowing the
jury to weigh Fields’s identification testimony.
On appeal, the defendants challenge Fields’s
identification testimony because there was an eighteen-month
delay between the robbery and the interrogation. The
18 UNITED STATES V. CARR
defendants argue that the delay made it impossible for Fields
to reliably identify the individuals who were involved in the
robbery. We agree that the eighteen-month delay gave the
jury a powerful reason to discount Fields’s testimony. But
because we conclude that the procedure used to interrogate
Fields was not impermissibly suggestive, we find no error in
the trial court’s decision to allow the jury to weigh this
testimony. See, e.g., Montgomery, 150 F.3d at 993 (analyzing
the reliability of an identification only after concluding the
pretrial procedure used to elicit the identification was
impermissibly suggestive).
When an identification procedure is not unduly
suggestive, nor barred by Evidence Rule 403,1 it is the duty
of the jury to assess the reliability of the evidence. See
Watkins v. Sowders, 449 U.S. 341, 347–48 (1981) (“[T]he
proper evaluation of evidence under the instructions of the
trial judge is the very task our system must assume juries can
perform. Indeed . . . the only duty of a jury in cases in which
identification evidence has been admitted will often be to
assess the reliability of that evidence.”). The jury is equipped
to make these determinations because “[c]ounsel can both
cross-examine the identification witnesses and argue in
summation as to factors causing doubts as to the accuracy of
the identification — including reference to both any
suggestibility in the identification procedure and any
countervailing testimony such as alibi.”
Id. (quoting
Brathwaite, 432 U.S. at 113 n.14).
1
The defendants did not argue at trial or in their briefing on appeal that
the probative value of Fields’s pretrial identification is outweighed by a
danger of unfair prejudice or misleading the jury under Evidence Rule
403.
UNITED STATES V. CARR 19
In this case, Fields’s testimony was seriously tested at
trial. The defense seized the opportunity to extensively
cross-examine both Agent Taglioretti and Fields, and the
eighteen-month delay between the robbery and Fields’s
identification was emphasized in the defendants’ closing
arguments. Fields was also confronted with other weaknesses
in her testimony, including her criminal history, her use of
marijuana on the way to the robbery, her motivation to
cooperate with the prosecution in return for a reduced
sentence, and the discrepancies between Fields’s testimony
and the tellers’ testimony about which robber wore the FedEx
uniform and how many robbers entered the credit union.
These weaknesses were similarly emphasized in the
defendants’ closing arguments. Agent Taglioretti was cross-
examined about the identification procedure he used, his
failure to admonish Fields that the suspects’ photos might not
have been included in the stack of photos, and the
inconsistency between Fields’s testimony and the tellers’
identification. The jury was also aware that there were
reasons to decide that Fields’s testimony was reliable: unlike
the tellers, she spent eight to ten minutes in the duplex with
the defendants where she was only five feet away from them
and she could see them clearly. She also spent about 30
minutes in the car with two of them en route to the credit
union. We conclude the jury was well-positioned to weigh
the strengths and weaknesses of Fields’s identification, and
decide whether it found the testimony persuasive. The
district court did not err by admitting this evidence.
B. The evidence supports the jury’s verdict that Carr
was guilty of forced accompaniment.
In its closing argument, the prosecution stressed its view
that the evidence showed Carr was guilty of forced
20 UNITED STATES V. CARR
accompaniment because he shoved Barbara Wilson and
forced her back into the credit union trailer after she managed
to push her way outside.2 The prosecution argued that the
other defendants were guilty of forced accompaniment as co-
conspirators in the robbery. See United States v. Douglass,
780 F.2d 1472, 1475–76 (9th Cir. 1986) (conspirators are
liable for the foreseeable criminal acts of co-conspirators
committed in furtherance of conspiracy). After the jury found
all three defendants guilty of forced accompaniment,
defendants moved for acquittal, arguing that the
government’s evidence was insufficient to support this
charge. As noted, the district court denied the motion.
Defendants argue on appeal that the evidence did not suffice
to prove that the shoving match rose to the level of forced
accompaniment, and that even if it did, forced
accompaniment was unforeseeable to co-conspirators
Franklin and Anderson.
When considering a challenge to a verdict based on the
sufficiency of the evidence, we “consider the evidence
presented at trial in the light most favorable to the
prosecution” and determine whether “this evidence, so
viewed, is adequate to allow any rational trier of fact [to find]
the essential elements of the crime beyond a reasonable
doubt.” United States v. Nevils, 598 F.3d 1158, 1163-64
(9th Cir. 2010) (en banc) (internal quotation marks and
citations omitted).
2
18 U.S.C. § 2113(e) provides a sentencing enhancement for aggravated
conduct committed during a bank robbery, including when a robber
“forces any person to accompany him without the consent of such
person.”
UNITED STATES V. CARR 21
Carr argues that Wilson’s testimony that the robber in the
FedEx uniform engaged her in a shoving match was
insufficient to support a sentencing enhancement under
18 U.S.C. § 2113(e), because the movement of Wilson’s body
in and out of the credit union doorway was too minimal to
qualify as forced accompaniment. Because all three
defendants were convicted of this charge on the theory that
they were equally culpable as co-conspirators, all defendants
join in this argument.3
“On its face, the enhancing elements [of § 2113(e)] are
that a defendant (1) in the course of committing a bank
robbery (2) forces a person (3) to accompany him (4) without
that person’s consent.” United States v. Strobehn, 421 F.3d
1017, 1019 (9th Cir. 2005). Our court concluded in Strobehn
that this forced accompaniment enhancement was applicable
where a defendant accosted a security guard in a bank parking
3
As we have observed, there was conflicting testimony about whether
Carr was the robber dressed in a FedEx uniform. Wilson testified that it
was Carr who wore the FedEx uniform, but it is not entirely clear how
well Wilson saw the FedEx robber’s face. She testified that she is 5'3"
tall, that the robber was considerably taller, and that she used her head as
a battering ram, planting her feet and pushing her head into the robber’s
chest in an effort to force him back outside. The second teller, Cervantes,
only recalled a robber who wore black, pointed a gun at her, and instructed
her to put cash in a garbage bag. Fields, the getaway driver, spent several
minutes with the robbers inside the duplex and about thirty minutes
driving them to the credit union. She testified that it was Anderson who
wore the FedEx uniform. The uniform was not among the physical
evidence retrieved by the police, but they did retrieve a black sweatshirt
with DNA on it consistent with Edwin Carr. The jury was not asked to
make a finding regarding which defendant wore the uniform, but the
district court seems to have credited Wilson’s testimony that it was Carr,
and the court’s sentencing remarks indicate that the court considered
Anderson and Franklin potentially guilty of forced accompaniment only
under the government’s accomplice liability theory.
22 UNITED STATES V. CARR
lot, and forced the guard at gunpoint to walk to the bank door,
open it, and lie on the floor. Id. at 1018. We declined to read
a “substantiality” requirement into the degree of movement
required by the statute, holding that the enhancement was
applicable even where the victim “was moved for only a few
seconds, over a matter of feet, and without increasing the
danger already inherent in an armed bank robbery.”
Id. at
1019. Strobehn left open the possibility that some movement
might be too slight to qualify as forced accompaniment: “we
do not hold that § 2113(e) ‘plainly’ applies to any forced
accompaniment, no matter how slight.”
Id. at 1020 n.1.
Here, Wilson testified that she was standing in the credit
union when she opened the door to receive the robber dressed
as a FedEx employee. She was pushed deeper into the credit
union, but she responded by shoving the robber’s chest with
her head. She was able to push the robber, and get herself, a
few feet outside the credit union. Wilson was screaming and
testified that she was trying to get outside to summon help
and to escape danger. Once outside, she grabbed a small
table mounted below the windows of the credit union and
hung on while the robber tried to force her back inside.
Wilson was overpowered after a few seconds; she was thrown
inside the credit union and knocked to the floor where she
remained until the robbers fled.
Although Wilson was only moved a few feet, it is
undisputed that she was forced into the credit union where a
bank robbery was in progress, clearly against her will. She
was prevented from summoning help, and she was not
allowed to flee from an obviously dangerous situation. We
do not find these facts to be appreciably different from those
in Strobehn, where the victim was forced to walk inside a
building to facilitate the commission of an armed robbery.
UNITED STATES V. CARR 23
As the Seventh Circuit has held, “[c]learly, the phrase ‘forces
any persons to accompany him without . . . consent’
encompasses forcing someone outside a building to enter the
building.” United States v. Davis, 48 F.3d 277, 279 (7th Cir.
1995). We conclude that the evidence supported Carr’s
conviction for forced accompaniment.
C. The evidence supported the jury’s finding that
forced accompaniment was foreseeable as to all
three defendants.
None of the government’s evidence showed that Franklin
exited the red car. He and Anderson argue that even if the
shoving match in the doorway constituted forced
accompaniment, their convictions under 18 U.S.C. § 2113(e)
should be vacated because it was unforeseeable to them that
the FedEx robber would use force to gain access to the credit
union. They argue that the evidence showed a plan for the
FedEx robber to trick the tellers into opening the door, not to
enter by force or the show of force. Their contention on
appeal is that it was not foreseeable that two women, working
in a credit union without a security guard, would resist an
armed robbery. But Barbara Wilson apparently had a
different idea about the extent to which she was willing to
acquiesce in the armed robbery of the credit union where she
was employed. Once she realized the credit union was being
robbed, Wilson used all her strength to escape and flee.
Having reviewed the record, we conclude that reasonable
jurors could find that the struggle in the doorway was
foreseeable to all the accomplices.
As a preliminary matter, it is unclear from the record
whether the district court granted Anderson’s and Franklin’s
post-verdict motions for acquittal of their forced
24 UNITED STATES V. CARR
accompaniment convictions under § 2113(e).4 The
government argues in its cross-appeal that the district court
did not apply the sentencing enhancement under § 2113(e) to
Franklin or Anderson, and that it erred by failing to do so.
We conclude the evidence supports the jury’s finding that
forced accompaniment was foreseeable to all three
conspirators.
The evidence must be considered in the light most
favorable to the prosecution. Jackson v. Virginia, 443 U.S.
307, 319 (1979). Wilson testified that the robber in the
FedEx uniform began to push her into the credit union almost
immediately, before she had realized he was a fraud. This
suggests that the robber’s actions were part of a plan to trick
the teller into unlocking the door so he could force his way in
once the door was open. Though others may have reacted
differently, reasonable jurors could also conclude that an
employee like Wilson, who thought she was accepting a
delivery but instead found herself being forcefully shoved,
would shove back. Wilson’s battering ram technique may
have been unique, but it was at least momentarily effective,
and reasonable jurors could decide that it was foreseeable an
employee would attempt to flee rather than remain in harm’s
4
In its order of judgment, the district court found Anderson guilty of
“armed bank robbery and forced accompaniment in violation of 18 U.S.C.
§ 2113(a), (d), (e) as charged in Count 2.” Franklin was similarly found
guilty of violating § 2113(e). But at the sentencing hearing, the district
court treated Carr as the FedEx robber, repeatedly stating that Anderson
could not have foreseen the forced asportation. And when announcing
Anderson’s sentence, the district court did not appear to rely on the ten-
year mandatory minimum that would result from a conviction under
§ 2113(e). Similarly, the district court declared that “[a]s to defendant
Franklin, he is not under my rulings subject to any mandatory minimums
. . . .”
UNITED STATES V. CARR 25
way and watch her place of employment get robbed. This is
particularly the case given the nature of the robbery, the
absence of security in the trailer, and the small area where the
tellers worked. To the extent the district court vacated
Anderson’s and Franklin’s convictions under § 2113(e), it
erred, and we grant the government’s cross-appeal. The
government’s evidence supported all three convictions for
forced accompaniment.
D. The district court did not err by ruling that the
evidence did not support Franklin’s convictions
for use of firearms.
In its cross-appeal, the government argues that the district
court erred by granting Franklin’s post-judgment motion for
acquittal of his firearms charges under 18 U.S.C. § 924(c)5
and § 2113(d).6 After the jury returned its verdict, Franklin
filed a motion for judgment of acquittal of his convictions for
the firearms charges. Franklin argued that the prosecution
introduced no evidence that he was present at the robbery or
that he used or possessed a weapon, or knew that a weapon
would be used or possessed by the other robbers. Franklin
also argued that there was no evidence that a firearm was
5
18 U.S.C. § 924(c)(1)(A)(i) provides that if a firearm is used or carried
or possessed in the furtherance of any crime of violence, a five year
minimum sentence shall be imposed in addition to the sentence imposed
for the crime of violence. Under 18 U.S.C. § 924(c)(1)(A)(iii), the
minimum additional penalty increases to 10 years if the firearm is
discharged.
6
18 U.S.C. § 2113(d) provides a separate offense if, in the course of
committing or attempting to commit a bank robbery, a robber “assaults
any person, or puts in jeopardy the life of any person by the use of a
dangerous weapon or device.”
26 UNITED STATES V. CARR
displayed or discussed before the robbery. The district court
found “[t]here was no evidence that Franklin was at the scene
of the credit union during the robbery when firearms were
displayed or during the getaway when firearms were
discharged.” The district court further found that, because
Franklin and his co-conspirators were aware of the age of the
tellers,7 the lack of security cameras or guards, and the
absence of customers inside the credit union, “the robbery
would not be the sort of ‘takeover’ robbery that would
typically necessitate the use of firearms for crowd control.”
The court concluded “[t]he evidence presented at trial, taken
in the light most favorable to the government, does not
support a conclusion that it was reasonably foreseeable to
Franklin that a firearm would be used in the robbery.”
In Pinkerton v. United States, 328 U.S. 640, 647–48
(1946), the Supreme Court held that a co-conspirator is
responsible for the foreseeable acts of his partners in crime.
Whether an act is foreseeable is a fact-driven and case-
specific inquiry, conducted under the deferential standard of
review common to all sufficiency of the evidence claims. See
United States v. Lewis,
787 F.2d 1318, 1324 (9th Cir. 1986).
Here, there was no direct evidence linking Franklin to the
use of firearms, and no evidence that guns were discussed or
present at the planning meeting. This omission distinguishes
the present case from those the government relies upon,
where a gun or guns were displayed or discussed by co-
conspirators before the commission of a crime. See, e.g.,
United States v. Hoskins, 282 F.3d 772, 776-77 (9th Cir.
2002), overruled in part on other grounds by United States v.
7
Barbara Wilson testified that she was 59 at the time of trial.
Cervantes’s age is not clear from the record.
UNITED STATES V. CARR 27
Contreras, 593 F.3d 1135 (9th Cir. 2010) (en banc); United
States v. Alvarez-Valenzuela,
231 F.3d 1198, 1204–05 (9th
Cir. 2000).
The government’s only support for its argument that use
of a firearm was foreseeable to these defendants is: (1) this
was a “takeover” style robbery in which the robbers would
have to subdue the credit union employees; and (2) the fact
that more than one robber had a firearm is evidence that guns
were part of the robbery plan. Despite these contentions, the
government can point to no evidence that the robbers
discussed the use of firearms before the robbery, and there
was no testimony that firearms were displayed before the
robbery. “[A] finding of reasonable foreseeability must be
based upon something more than . . . observations about bank
robberies in general.” United States v. Zelaya, 114 F.3d 869,
871 (9th Cir. 1997). Because no evidence showed that the
robbers planned to use guns to subdue or intimidate the
tellers, or that Franklin was aware that at least one of his co-
conspirators was carrying a gun, the district court did not err
by granting Franklin’s motion for judgment of acquittal on
the firearms-related charges.
We do note that the district court’s written judgment is
inconsistent with its oral explanation of its decision to vacate
Franklin’s conviction under § 2113(d).8 On remand, the
8
After the jury returned its verdict finding all defendants guilty on all
counts, defendants filed Rule 29 motions for a judgment of acquittal on
the forced accompaniment charge (§ 2113(e)), and the firearms charges
(§ 2113(d) and § 924(c)). The court denied these motions “with the
exception of Franklin’s motion to dismiss the firearms charges as applied
to him under 18 U.S.C. § 924(c) and 18 U.S.C. § 2113(d).” Consistent
with its finding that there was no evidence of a plan to use guns, the court
28 UNITED STATES V. CARR
district court shall enter an amended judgment reflecting that
Franklin was acquitted of the § 924(c) gun charge and the
§ 2113(d) gun enhancement.
E. The district court’s Alleyne error was harmless.
Under 18 U.S.C. § 924(c), anyone who uses or carries a
firearm in relation to a crime of violence is subject to a
mandatory minimum sentence of five years, id.
§ 924(c)(1)(A)(i). This enhancement is to be imposed in
addition to the punishment for the particular crime of
violence. It rises to a ten-year enhancement if the firearm
was discharged during commission of the underlying crime.
Id. § 924(c)(1)(A)(iii).
The jury found that both Carr and Anderson “us[ed] and
carr[ied] a firearm during and in relation to a crime of
violence” in violation of 18 U.S.C. § 924(c), but the jury did
not make any findings about whether either Anderson or Carr
discharged their weapons. At sentencing, the district court
found that the defendants were responsible for discharging
firearms, and ruled that § 924(c)(1)(A)(iii)’s ten-year
mandatory minimum penalty applied.9 Both Carr and
acquitted Franklin of the charge under § 924(c) in its judgment order, but
it erroneously entered judgment against him under § 2113(d).
9
We are mindful that Fields testified a third robber participated in the
armed robbery, and that Monken testified that three robbers fled the credit
union. Neither Carr nor Anderson argue on appeal that the evidence was
insufficient to show which two robbers in the getaway car fired shots at
the pursuing security van. At trial, Fields was asked “So there are three
men in the car, and two are firing, and you’re not sure which of the two?”
Fields replied, “I know which of the two.” But she was not asked to
identify the two shooters.
UNITED STATES V. CARR 29
Anderson received ten-year enhancements for discharging
firearms during the robbery.
After defendants filed their notices of appeal, the
Supreme Court handed down its decision in Alleyne,
extending the reasoning of Apprendi v. New Jersey, 530 U.S.
466 (2000), to mandatory minimum sentences. Apprendi
established the principle that, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable
doubt.” 530 U.S.
at 490. Analogously, Alleyne held that “[f]acts that increase
the mandatory minimum sentence are . . . elements and must
be submitted to the jury and found beyond a reasonable
doubt.” 133 S. Ct. at 2158. Alleyne’s holding applies to the
defendants’ appeals because they were still pending when
Alleyne was decided. See Griffith v. Kentucky,
479 U.S. 314,
328 (1987).
The government concedes that the trial court’s application
of 18 U.S.C. § 924(c)(1)(A)(iii)’s ten-year mandatory
minimum enhancement was not supported by any jury
finding, and thus it presumptively violated the Supreme
Court’s ruling in Alleyne. But the government correctly notes
that this court has held that Apprendi errors do not require
reversal if the government can show the errors were harmless.
United States v. Salazar-Lopez, 506 F.3d 748, 755 (9th Cir.
2007). An Apprendi error is harmless only “where a
reviewing court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would
have been the same absent the error.” Neder v. United States,
527 U.S. 1, 17 (1999).
30 UNITED STATES V. CARR
The government argues there is no reasonable probability
that the jury would have acquitted Anderson or Carr of
discharging a firearm because there was overwhelming and
uncontroverted evidence adduced at trial that two of the co-
conspirators shot at the security van during the course of the
getaway. We agree. The government presented the jury with
undisputed evidence through Fields and Monken that the
robbers fired at Monken’s car while fleeing the scene. This
evidence was not challenged by the defense, no conflicting
evidence was introduced, and the defendants did not argue in
closing that no shooting had taken place. Moreover, as the
jury was required to decide whether the defendants had
“us[ed] and carr[ied] a firearm” during the crime, the
defendants had incentive to present at trial any evidence
tending to show that firearms were not used. We therefore
conclude the Alleyne error was harmless because all of the
trial evidence on this point supported the court’s implicit
finding that guns were discharged during the course of the
robbery.
F. The district court sufficiently justified its
departure from the recommended guidelines range
when sentencing Franklin.
The district court calculated Franklin’s sentencing
guideline range as 92–115 months and sentenced Franklin to
a total of 144 months in prison. The court explained that
Franklin “was involved in this crime as a co-conspirator and
seemingly the architect — or one of the architects.” Franklin
argues that the judge committed procedural error by failing
sufficiently to justify an above-guidelines sentence. We do
not find this argument persuasive.
UNITED STATES V. CARR 31
Franklin did not object to his sentence before the district
court, so we review it for plain error.10 United States v.
Rangel, 697 F.3d 795, 805 (9th Cir. 2012). A judge must
explain the rationale relied upon when imposing an above-
guidelines sentence, and the explanation must be sufficient to
permit meaningful appellate review. United States v. Carty,
520 F.3d 984, 992 (9th Cir. 2008) (en banc) (citing Rita v.
United States,
551 U.S. 338, 356 (2007)).
Here, the district court noted that Franklin’s sentence was
based on “the court’s consideration of the guidelines and the
sentencing factors under § 3553(a), the nature and
circumstances of the offense, and the history and
characteristics of the defendant.” The court mentioned
Franklin’s serious prior convictions, including convictions
involving the use of firearms. Finally, citing evidence that
Franklin had previously worked at Vons Distribution Center
and been a member of the credit union, the district court
resolved that Franklin was likely the architect, or one of the
architects, of the robbery scheme.
We conclude that the district court’s justification, though
brief, was not inadequate. Franklin’s apparent role as
mastermind of the robbery is not reflected in the
recommended sentencing range for his crimes of conviction
and it was within the district court’s discretion to account for
this role with an above-guidelines sentence. The district court
10
“Plain error will be found only if the error was highly prejudicial and
there was a high probability that the error materially affected the verdict.”
United States v. Bosch, 951 F.2d 1546, 1548 (9th Cir. 1991) (quotation
omitted). To prove plain error, Franklin must show that “(1) there is
‘error’; (2) it was ‘plain’; and (3) the error affected ‘substantial rights.’”
United States v. Garrido,
713 F.3d 985, 994 (9th Cir. 2013) (quoting
United States v. Recio,
371 F.3d 1093, 1100 (9th Cir. 2004)).
32 UNITED STATES V. CARR
did not commit plain error by imposing an above-guidelines
sentence. Franklin’s argument that his sentence was
substantively unreasonable fails for the same reasons.
IV. Conclusion
If the district court vacated Anderson’s conviction for
false accompaniment under § 2113(e), it erred and we reverse
this portion of its judgment in case number 12-50135 and
grant the government’s cross-appeal in case number 12-
50169. If the district court vacated Franklin’s conviction for
false accompaniment under § 2113(e), it erred and we reverse
this portion of its judgment in case number 12-50089 and
grant the government’s cross-appeal in case number 12-
50144.
The government’s cross-appeal regarding Franklin’s gun
conviction under § 924(c) and corresponding sentencing
enhancement under § 2113(d) in case number 12-50144 is
denied. On remand, the district court shall enter a corrected
judgment in case number 12-50089 reflecting its acquittal of
Franklin on the § 924(c) gun charge and the § 2113(d) gun
enhancement.
The remainder of the district court’s judgments in cases
number 12-50082, 12-50089, 12-50135, 12-50144, and 12-
50169 are affirmed.
AFFIRMED in part, REVERSED in part, and
REMANDED.
