United States v. 2005-08-31 | 03-50471 | USA VSANDERS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-50471
Plaintiff-Appellee, D.C. No.
v. CR-01-01008-  LGB-4RAYKEE RASHANN SANDERS,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Lourdes G. Baird, District Judge, Presiding
Argued and Submitted
March 7, 2005—Pasadena, California
Filed August 31, 2005
Before: Cynthia Holcomb Hall, Kim McLane Wardlaw, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Hall
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COUNSEL
Gretchen Fusilier, Carlsbad, California, for the defendant-
appellant.
Karen I. Meyer, Assistant United States Attorney, Criminal
Division, Los Angeles, California, for the plaintiff-appellee.
OPINION
HALL, Senior Circuit Judge:
Defendant Raykee Sanders appeals his convictions for con-
spiracy to commit bank robbery, in violation of 18 U.S.C.
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§ 371, armed bank robbery, in violation of 18 U.S.C. § 2113,
using a gun during the commission of a crime of violence, in
violation of 18 U.S.C. § 924(c), and attempted witness tam-
pering, in violation of 18 U.S.C. § 1512(b)(1). We exercise
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)
and affirm his conviction. Sanders also appeals his sentence,
and we vacate and remand for a full resentencing hearing.
I. BACKGROUND
Defendant Raykee Sanders planned to rob a bank on Sep-
tember 17, 2003, with Madrid Hopkins and Eugene Hamilton.
Sanders told Hopkins that he should enter the bank and give
the teller a note demanding money. Hopkins enlisted his
friend, Leon Walker, to assist him in the planned robbery.
Walker wanted to bring a gun into the bank. Walker and Hop-
kins told Sanders that Walker intended to bring a gun into the
bank, and Sanders reiterated that a note would be sufficient.
Sanders went on to state “that’s cool, too, if you—I guess if
you want to use a gun, use a gun.”
Sanders, Hopkins, Hamilton, and Walker abandoned their
initial attempt to rob the bank on September 17, 2003,
because police cars were in the area. They returned the next
day and Sanders and Hamilton acted as lookouts while Hop-
kins and Walker entered the bank. Inside the bank, Walker
waved the gun in the air and told everyone to get down. Hop-
kins grabbed the assistant manager by the arm and demanded
she take him to the vault. Once there, the assistant manager
and another employee placed approximately $24,000-$25,000
in a bag. Hopkins then fled with Walker. They were caught
shortly after the robbery because of a combination of bad luck
and poor planning. A bystander saw Hopkins and Walker act-
ing nervous while moving something from a van to a truck
and immediately informed the police. The truck Hopkins and
Walker used as a getaway vehicle ran out of gas shortly after
they fled. Police caught up with them at a gas station, and a
high speed chase ensued. Once in police custody, Hopkins
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cooperated with police and eventually Sanders and Hamilton
were apprehended during a traffic stop.
Prior to their respective trials, Hopkins and Sanders were
placed in the same jail. While there, Sanders asked Hopkins
to lie to the police and tell them that Sanders had nothing to
do with the bank robbery. Hopkins and Sanders were later
both moved to a second jail where they spoke to each other
through the vents on several occasions. During these vent
conversations Sanders asked Hopkins if he was going to tes-
tify against him, and Sanders told Hopkins that he would
receive a document. Another inmate later delivered a type-
written declaration to Hopkins, which was purportedly from
Hopkins and addressed to Sanders’s attorney. The declaration
falsely stated, in part, that “Mr. Sanders was not involved in
any way with the planning or execution of the U.S. Bank rob-
bery.” The declaration included Hopkins’s booking number,
which Hopkins had previously given to Sanders. Hopkins tes-
tified that he signed the declaration in fear that if he did not,
other inmates would think he was a snitch and would poten-
tially harm him.
Hopkins also received a number of written notes, known as
“kites,” signed with Sanders’s nicknames, “Smiley” or “S.
Kay.” These kites asked whether Hopkins was going to testify
against Sanders and offered Hopkins favors. Hopkins sent a
response to one of these kites to “Smiley” on 5 South, where
Sanders was housed, requesting cigarettes. Hopkins subse-
quently received cigarettes.
At Sanders’s trial, Hopkins testified to what Sanders said
through the vents and to what he wrote in the kites. Sanders
objected to Hopkins’s testimony, arguing that it was inadmis-
sible hearsay, but the district court ultimately ruled that it was
a party admission1 and thus admissible, or in the alternative,
1“A statement is not hearsay if . . . (2) [t]he statement is offered against
a party and is (A) the party’s own statement. . . .” Fed. R. Evid. 801(d).
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that it was admissible under the catch-all exception to the
hearsay rule.2
After all the evidence was in, the judge instructed the jury.
On the issue of attempted witness tampering, the judge
defined “corruptly persuades” under 18 U.S.C. § 1512 as
“motivated by an inappropriate or improper purpose to con-
vince another person.” The jury found Sanders guilty on all
counts, including attempting to “corruptly persuade” Hopkins.
The pre-sentencing report recommended a sentence ranging
from 87-108 months for armed bank robbery and witness tam-
pering. The district court judge sentenced Sanders to 97
months. Sanders was sentenced to an additional 60 months for
conspiracy to commit bank robbery, to be served concur-
rently, and to 60 months for Walker’s use of a gun, to be
served consecutively. Sanders timely appeals his convictions
and sentencing.
II. DISCUSSION
A. Hopkins’s Testimony
We review the district court’s decision to admit evidence
for an abuse of discretion. United States v. Warren, 25 F.3d
890, 894 (9th Cir. 1994).
2This rule provides:
A statement not specifically covered by Rule 803 or 804 but hav-
ing equivalent circumstantial guarantees of trustworthiness, is not
excluded by the hearsay rule, if the court determines that (A) the
statement is offered as evidence of a material fact; (B) the state-
ment is more probative on the point for which it is offered than
any other evidence which the proponent can procure through rea-
sonable efforts; and (C) the general purposes of these rules and
the interests of justice will best be served by admission of the
statement into evidence.
Fed. R. Evid. 807.
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[1] Sanders objected to Hopkins’s testimony concerning the
vent and kite conversations, arguing that it was inadmissible
hearsay. To admit such testimony, the district judge must
make a preliminary finding that Sanders was the inmate who
communicated with Hopkins through the vents and kites.
United States v. Gil, 58 F.3d 1414, 1419 (9th Cir. 1995)
(“When evidence is admitted subject to the jury’s finding that
a threshold condition is satisfied, ‘[t]he judge makes a prelim-
inary determination whether the foundation evidence is suffi-
cient to support a finding of fulfillment of the condition.’ ”
(citation omitted). The district judge made this finding. She
held that “the evidence supports a finding by preponderance
of the evidence that those statements through the vents and
those kites . . . were statements by the defendant.” This pre-
liminary finding is supported by substantial evidence because
(1) Hopkins claimed that he recognized Sanders’s voice; (2)
he claimed that Sanders knew his booking number, and that
this booking number was written on the declaration; (3) Hop-
kins received a response to a kite he sent to Sanders; (4)
although other inmates also wanted to prevent Hopkins from
snitching, no other inmate had any significant interest in get-
ting Hopkins to sign a declaration stating that “Mr. Sanders
was not involved in any way with the planning or execution
of the U.S. Bank robbery.”
[2] Any statements that Sanders made to Hopkins were
non-hearsay because the judge found that Sanders was the
inmate who communicated with Hopkins through the vents
and kites. See Fed. R. Evid. 801(d). Therefore, the district
judge did not abuse her discretion by admitting Hopkins’s tes-
timony because she made the appropriate preliminary finding
which was supported by substantial evidence.
B. Firearm Conviction
When reviewing convictions for sufficiency of the evi-
dence, we must determine “whether, after viewing the evi-
dence in the light most favorable to the prosecution, any
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rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v.
Segura-Gallegos, 41 F.3d 1266, 1268 (9th Cir. 1994) (internal
quotation marks omitted).
[3] Sanders argues that there was insufficient evidence to
support his conviction under 18 U.S.C. § 924(c)3 for Walker’s
use of a gun during the bank robbery. Sanders is liable for
Walker’s use of a gun if (1) Walker used the gun “in further-
ance of the conspiracy;” (2) Walker’s use of the gun “fell
within the scope of the unlawful project;” and (3) Walker’s
use of the gun “could reasonably have been foreseen as a nec-
essary or natural consequence of the unlawful agreement.”
United States v. Douglass, 780 F.2d 1472, 1475-76 (9th Cir.
1986). Sanders only challenges whether Walker’s use of the
gun was foreseeable.
[4] Viewed in the light most favorable to the government,
a rational trier of fact could conclude that Walker’s use of the
gun was foreseeable. Hopkins testified that he and Walker
“agreed to use the gun” while in the presence of Sanders and
3This section provides:
Except to the extent that a greater minimum sentence is other-
wise provided by this subsection or by any other provision of
law, any person who, during and in relation to any crime of vio-
lence or drug trafficking crime (including a crime of violence or
drug trafficking crime that provides for an enhanced punishment
if committed by the use of a deadly or dangerous weapon or
device) for which the person may be prosecuted in a court of the
United States, uses or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm, shall, in addition to the pun-
ishment provided for such crime of violence or drug trafficking
crime—(i) be sentenced to a term of imprisonment of not less
than 5 years; (ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years; and (iii) if the fire-
arm is discharged, be sentenced to a term of imprisonment of not
less than 10 years.
18 U.S.C. § 924(c).
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that Sanders then said “that’s cool, too, if you—I guess if you
want to use a gun, use a gun.” The fact that Sanders did not
order Walker to use the gun, and did not definitively know
that Walker had the gun on the day of the robbery, does not
make it unforeseeable that Walker would do exactly what he
said he would do: use the gun.
Sanders’s argument based on United States v. Castaneda,
9 F.3d 761 (9th Cir. 1993), is unavailing. Castaneda held that
due process concerns sometimes dictate that a conspirator
with a “slight” involvement in the conspiracy and underlying
felony cannot be said to foresee a co-conspirator’s use of a
gun. Id. at 766, 768. Although the judge found that Sanders
was not a unitary “mastermind,” she found that Sanders
planned the robbery along with Hamilton. Sanders gave Hop-
kins explicit directions in robbing the bank. He told Hopkins
to jump over the counter with a note, to hold the bank doors
open with door stoppers, and to place the money into water
to destroy any tracking devices. Thus, Sanders’s involvement
was not “slight” and Castaneda does not apply. Id. at 766-68
(finding a “slight” involvement when a spouse assisted her
husband, a more active conspirator, “only insofar as she acted
as his spouse: answering her home phone, taking messages
from callers and answering his questions when he called”).
[5] Sanders’s conviction under § 924(c) is clearly supported
by substantial evidence.
C. Jury Instructions
When a defendant does not object to jury instructions at
trial, as here, we review those instructions for plain error.
United States v. Klinger, 128 F.3d 705, 710 (9th Cir. 1997).
A judge commits plain error when there is:
(1) error, (2) that is plain, and (3) that affect[s] sub-
stantial rights. If all three conditions are met, an
appellate court may then exercise its discretion to
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notice a forfeited error, but only if (4) the error seri-
ously affect[s] the fairness, integrity, or public repu-
tation of judicial proceedings.
Johnson v. United States, 520 U.S. 461, 466-67 (1997) (cita-
tion and internal quotation marks omitted); see also United
States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004). An error
is plain when it is “clear and obvious.” United States v. Fuchs,
218 F.3d 957, 962 (9th Cir. 2000).
Sanders objected to the district court’s jury instruction on
the charge that Sanders violated 18 U.S.C. § 15124 by
attempting to “corruptly persuade[ ]” Hopkins to not testify
against Sanders. The district court instructed the jury that
“corruptly persuades” means “to be motivated by an inappro-
priate or improper purpose to convince another person to
engage in a course of behavior, namely, to interfere with trial
testimony.” Sanders requested that the district court instruct
the jury that an individual can attempt to persuade another not
to testify without doing so “corruptly” if both parties possess
the Fifth Amendment privilege against self-incrimination.
[6] Even if the trial judge erred, any such error was not
“plain” and did not “affect the substantial rights” of the defen-
dant. The error here, if any, was not clear and obvious. One
year prior to Sanders’s trial, we noted there was a circuit split
over whether a defendant violates § 1512 when he attempts to
persuade others to invoke their Fifth Amendment right to
remain silent. United States v. Khatami, 280 F.3d 907, 913
(9th Cir. 2002) (“[T]here is a difference in approach among
the circuits about whether merely attempting to persuade a
witness to withhold cooperation or not to disclose information
4This section states “Whoever knowingly . . . corruptly persuades
another person, or attempts to do so, . . . with intent to—(1) influence,
delay, or prevent the testimony of any person in an official proceeding . . .
shall be fined under this title or imprisoned not more than ten years, or
both.” 18 U.S.C. § 1512(b).
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to law enforcement officials—as opposed to actively
lying—falls within the ambit of § 1512(b).”). We declined to
rule on the issue, leaving the question open in this circuit. Id.
at 913-14 (“We need not join in this debate to resolve the case
before us.”). Thus, the correct interpretation of § 1512 was
not clear and obvious. See United States v. Turman, 122 F.3d
1167, 1170 (9th Cir. 1997) (noting that to be clear and obvi-
ous an error must be “so clear-cut, so obvious, [that] a compe-
tent district judge should be able to avoid it without benefit
of objection”).
[7] Even if any error were clear and obvious at the time of
trial, Sanders cannot meet his burden of showing that the
alleged error affected his substantial rights. In order to show
that his substantial rights were affected, Sanders must show
that the error “affected the outcome of the district court pro-
ceedings.” United States v. Olano, 507 U.S. 725, 734 (1993).
Because Hopkins testified that Sanders told him to lie, and the
declaration included several misstatements, Sanders cannot
show that there is a reasonable probability that the jury would
have reached a different result if given his proffered instruc-
tion. See United States v. Williams, 990 F.2d 507, 512 (9th
Cir. 1993) (finding no prejudice for plain error purposes in
erroneous jury instruction because there was “considerable
circumstantial evidence” of element that was misdescribed to
the jury).
D. Witness Tampering
When reviewing convictions for sufficiency of the evi-
dence, we must determine “whether, after viewing the evi-
dence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Segura-Gallegos, 41
F.3d at 1268 (internal quotation marks omitted).
[8] Sanders argues that his conviction for witness tamper-
ing is not supported by substantial evidence. Sanders asked
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Hopkins to perjure himself by testifying that Sanders was not
involved in the bank robbery, and by signing a declaration
that stated that “Mr. Sanders was not involved in any way
with the planning or execution of the U.S. Bank robbery.”
Considering the evidence in the light most favorable to the
government, a rational trier of fact could have concluded that
Sanders attempted to “corruptly persuade[ ]” Hopkins to alter
his testimony. 18 U.S.C. § 1512(b). There was also substantial
evidence to show that it was Sanders who communicated
these requests to Hopkins because (1) Hopkins claimed that
he recognized Sanders’s voice; (2) he claimed that Sanders
knew his booking number, and that this booking number was
written on the declaration; (3) Hopkins received a response to
a kite he sent to Sanders; (4) although other inmates also
wanted to prevent Hopkins from snitching, no other inmate
had any significant interest in getting Hopkins to sign a decla-
ration stating that “Mr. Sanders was not involved in any way
with the planning or execution of the U.S. Bank robbery.”
E. Sentencing Issues
[9] Sanders’s sentence violates the Sixth Amendment
because the judge’s extra-verdict findings were applied under
a now-defunct mandatory guideline scheme. United States v.
Booker, 125 S. Ct. 738 (2005). Because Sanders did not chal-
lenge his sentence on Sixth Amendment grounds in the dis-
trict court, we would normally grant a limited remand
pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.
2005) (en banc). However, the fact that the original sentenc-
ing judge has since retired changes this result.
[10] Our decision in Ameline to adopt a limited remand
approach was based on three premises. First, most district
court records will not contain enough information to allow
this court to perform a meaningful plain error analysis. Ame-
line, 409 F.3d at 1082 (noting that the record is “potentially
misleading”); id. at 1083 n.6 (noting that review would
require “rank speculation”). Second, a limited remand is the
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“only practical way (and it happens also to be the shortest, the
easiest, the quickest, and the surest way) to determine whether
there was prejudice.” Id. at 1079 (internal quotation marks
omitted). Third, the original sentencing judge can quickly and
accurately decide whether he or she would have issued a
materially different sentence had the guidelines been advi-
sory. Id. Here, the purposes underlying Ameline are nullified
because the original sentencing judge is unavailable and
therefore a limited remand is not the appropriate solution in
this case. We hold that when the original sentencing judge is
not available to conduct a limited remand pursuant to Ame-
line, the original sentence should be vacated and the case
remanded for a full resentencing hearing.
The Second Circuit faced the issue of an unavailable origi-
nal sentencing judge in United States v. Garcia, 413 F.3d 201,
226 (2d Cir. 2005), and held that a limited remand was appro-
priate with two caveats. First, the court held that the proper
prejudice inquiry must be altered to ask whether the new dis-
trict court judge would have given the defendant a materially
different sentence, rather than asking the new district court
judge if the original sentencing judge would have given the
defendant a materially different sentence, knowing the Sen-
tencing Guidelines were merely advisory. Id. at 228. Second,
the Second Circuit held that the new district court judge “must
order the defendant produced in open court . . . and must
afford him an opportunity to be heard.” Id. at 230 (noting that
an exception to this requirement will be granted if both parties
agree to waive the defendant’s appearance and the court con-
sents).
[11] Concurring in the Garcia opinion, Judge Calabresi
noted that this modified limited remand “is identical, in its
effects, to a remand for a post-Booker new sentence.” Id. at
231 (Calabresi, J., concurring). We agree with Judge Calabre-
si’s reasoning and adopt it here. There is no substantive dif-
ference between the modified limited remand endorsed by the
Garcia court and a full resentencing hearing. Whether the
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new district judge is imposing a new sentence in a full resen-
tencing hearing, or determining in a Garcia modified limited
remand whether he or she would have imposed a materially
different sentence than that imposed by the original judge, a
full review of the record is required. Further, in both cases the
defendant must be produced and given an opportunity to be
heard. We believe the Garcia modified limited remand
approach is not limited in any material sense. Accordingly,
rather than obscure the issue with misleading terminology, we
elect to vacate the original sentence and remand for a full
resentencing hearing. Because the purposes underlying Ame-
line are frustrated by the subsequent unavailability of the orig-
inal sentencing judge, we hold that under these circumstances
the appropriate response to Booker error is to vacate the origi-
nal sentence and remand for a full resentencing hearing.
AFFIRMED IN PART, VACATED and REMANDED
IN PART.
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