United States v. Edwin Carr
761 F.3d 1068
9th Cir.2014Background
- Three defendants (Carr, Anderson, Franklin) were indicted for conspiracy (18 U.S.C. § 371), armed bank robbery with firearm and forced-accompaniment enhancements (18 U.S.C. §§ 2113(a), (d), (e)), and a § 924(c) firearm charge after a February 2008 robbery of a Vons Federal Credit Union in a trailer.
- Key eyewitnesses: teller Barbara Wilson, teller Nicole Cervantes, getaway-driver Lanita Fields, and security guard Robert Monken; physical evidence linked defendants (DNA on sweatshirt and baseball cap; phone calls between Anderson and Franklin).
- Fields was interviewed by the FBI 18 months post-robbery; she identified the three defendants from photos during that interview. Defendants moved to exclude her pretrial identification; the district court admitted it.
- A jury convicted all three on all counts; the district court granted Franklin’s Rule 29 acquittal as to his firearms convictions (§ 2113(d) and § 924(c)). At sentencing the court applied a 10-year § 924(c) firearm-discharge enhancement to Carr and Anderson without a jury finding that the weapons were discharged.
- On appeal the defendants challenged admission of Fields’s pretrial identification and the sufficiency of evidence as to forced accompaniment, foreseeability of co-conspirators, and firearms liability; the government cross-appealed vacatur of forced-accompaniment enhancements for Anderson and Franklin and the district court’s acquittal of Franklin’s firearm convictions.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Fields’s pretrial photographic ID | Procedure was not suggestive; identification reliable and admissible | Procedure was impermissibly suggestive (few photos, coercive pressure, no admonition) | Admitted: procedure not impermissibly suggestive; reliability and delay go to weight, not admissibility |
| Sufficiency of evidence for Carr’s forced-accompaniment (§ 2113(e)) | Wilson was forced back into trailer; qualifies as forced accompaniment | Movement too slight to trigger enhancement | Affirmed: movement and forcing into trailer satisfied § 2113(e) |
| Foreseeability of forced accompaniment & co-conspirator liability (Anderson, Franklin) | Struggle in doorway was foreseeable to co-conspirators; accomplice liability applies | Could not foresee FedEx robber would be resisted or use force; plan was deception only | Guilty: forced-accompaniment was foreseeable to all three; vacaturs (if any) for Anderson/Franklin were erroneous |
| Firearms charges and Alleyne error (§ 924(c) discharge enhancement) | Evidence (Fields, Monken) showed shots fired during getaway; discharge finding supported by trial evidence | No evidence Franklin was present or knew guns would be used; district court properly acquitted Franklin on firearms | Franklin’s § 2113(d) and § 924(c) convictions/accompanying enhancement vacated as to him; Alleyne error in applying 10-year discharge minimum to Carr/Anderson was harmless beyond a reasonable doubt because trial evidence showed guns were fired |
| Sentencing departure for Franklin (above-guidelines) | District court adequately explained above-guidelines sentence (role as architect, priors, § 3553(a)) | Explanation insufficient; procedural error | Affirmed: brief but adequate justification; no plain error |
Key Cases Cited
- Simmons v. United States, 390 U.S. 377 (1968) (standard for excluding identifications obtained by suggestive procedures)
- Manson v. Brathwaite, 432 U.S. 98 (1977) (reliability factors for eyewitness identification; suggestiveness goes to weight)
- Montgomery v. United States, 150 F.3d 983 (9th Cir. 1998) (de novo review for constitutionality of identification procedures)
- Strobehn v. United States, 421 F.3d 1017 (9th Cir. 2005) (§ 2113(e) forced-accompaniment enhancement applies even for brief movement)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts increasing mandatory minimums are elements for the jury)
- Neder v. United States, 527 U.S. 1 (1999) (harmless-error test for omitted elements)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)