United States v. Lindsey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50459

Plaintiff-Appellee, D.C. No.

v.  2:08-cr-00186-

JAMONN LAMONT LINDSEY, GAF-1

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

Argued and Submitted

October 5, 2010—Pasadena, California

Filed January 14, 2011

Before: Harry Pregerson, Dorothy W. Nelson and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge D.W. Nelson;

Concurrence by Judge Pregerson

761

UNITED STATES v. LINDSEY 765

COUNSEL

Thomas P. Sleisenger, Los Angeles, California, for the

defendant-appellant.

April A. Christine, Assistant United States Attorney, Criminal

Appeals Section; Mark R. Yohalem, Assistant United States

Attorney, Los Angeles, California, for the plaintiff-appellee.

OPINION

D.W. NELSON, Senior Circuit Judge:

This case concerns the proper remedy for a good faith,

erroneous denial of a defendant’s peremptory challenge. Due

to the district court’s error in counting, Appellant Jamonn

Lamont Lindsey (“Lindsey”) received just nine out of the ten

peremptory challenges afforded him by the Federal Rules of

766 UNITED STATES v. LINDSEY

Criminal Procedure. Our circuit precedent provides for auto-

matic reversal under these circumstances. United States v.

Annigoni, 96 F.3d 1132, 1134 (9th Cir. 1996) (en banc). We

conclude, however, that Annigoni was effectively overruled

by the Supreme Court in Rivera v. Illinois, 129 S. Ct. 1446

(2009). Accordingly, we reject Annigoni’s automatic reversal

rule and review the denial of Lindsey’s peremptory challenge

under a more deferential standard of review. Finding no

reversible error, we affirm Lindsey’s conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Lindsey appeals his conviction and sentence for conspiracy,

armed bank robbery, and brandishing a firearm during a crime

of violence. On May 23, 2008, a grand jury returned a second

superseding indictment against Lindsey, charging one count

of conspiracy, 18 U.S.C. § 371; one count of armed bank rob-

bery, 18 U.S.C. § 2113(a), (d); one count of brandishing a

firearm during a crime of violence, 18 U.S.C.

§ 924(c)(1)(A)(ii); and one count of forfeiture, 21 U.S.C.

§ 853, 18 U.S.C. § 981(a)(1)(C), and 28 U.S.C. § 2461(c).

The indictment charged that Lindsey and two accomplices

took approximately $132,464 during their robbery of Banco

Popular, located in Wilmington, California. A three-day jury

trial was held beginning on February 24, 2009.

At trial, the facts established that Lindsey and two co-

conspirators, Jeffrey Gibson and a man known only as “Lil

Ball,” discussed the robbery in a park the day before the rob-

bery occurred. The three men, masked and armed, entered

Banco Popular the next day. Lindsey forced a bank employee,

Jorge Padilla, to take him to the vault at gunpoint. At the

vault, Lindsey took a large amount of cash, stuffed it in a bag,

and fled with his accomplices. The three men left the bank in

a stolen gray Toyota and drove to a nearby alley. They then

abandoned that vehicle and entered a white SUV, driven by

a fourth person. They drove to an apartment to split the pro-

ceeds from the robbery. Lindsey bought a Lexus with his

UNITED STATES v. LINDSEY 767

share of the money. The car was later found at his sister’s

home.

Lindsey’s accomplice, Jeffrey Gibson, testified in detail

about Lindsey’s involvement in the bank robbery. Addition-

ally, a DNA profile from a nylon cap found in the abandoned

getaway vehicle matched Lindsey’s DNA profile.

The jury returned a verdict of guilty on counts one through

three.

Lindsey subsequently filed a motion for new trial, which

was denied on May 4, 2009. On September 14, 2009, Lindsey

was sentenced to a term of 204 months. This appeal followed.

II. PEREMPTORY CHALLENGE

Due to the district court’s error, Lindsey received one fewer

peremptory challenge than he was due under Rule 24 of the

Federal Rules of Criminal Procedure.1 When the time came

for the parties to exercise peremptory challenges, the district

court engaged them in the following colloquy:

COURT: Okay, we were talking about the mechan-

ics of jury selection. I think I’ve described we’ve got

12 in the box, six out front. Peremptory is exercised

against those in the box. The low-numbered juror out

front, whoever is left, goes in to replace the person

who has been excused.

When we get to the point where we’ve only got 11

in the box, then we call seven more names. First

name called goes in the box, next six go out front.

1

Rule 24 provides that, in a non-capital felony case such as this one,

“[t]he government has 6 peremptory challenges and the defendant or

defendants jointly have 10 peremptory challenges.” FED. R. CRIM. P.

24(b)(2).

768 UNITED STATES v. LINDSEY

If a party passes—obviously if you both pass, we’re

done; we have a jury. If one passes and then the

other side continues to exercise peremptories, the

question becomes what happens with respect to pass.

And as I started to say, there are two ways of han-

dling it. I confer with counsel as to which way they

prefer; if you want to preserve the peremptory then

future peremptories are only used against newly

seated jurors. In other words, so if you want to hoard

peremptories, you can hoard them, but you are stuck

with whoever was in the jury box then you exercised

your pass.

If—the other way and the way I prefer and the way

all counsel have wanted it in prior trials—is you lose

—the [pass] is a use or lose. So if you pass, you

don’t have that peremptory any more. Counsel has

lost a peremptory, but you can use any other peremp-

tory that [is] left against anyone in the box.

Just before jury selection, defense counsel chose the “use or

lose” option. He stated that the other option had been “a little

more confusing” to him.

The parties proceeded to exercise their peremptory chal-

lenges when voir dire and challenges for cause had been com-

pleted. After Lindsey was allowed nine peremptory

challenges, the government was given an opportunity to exer-

cise its last peremptory challenge. The government passed,

and the district judge stated, “All right. And the defense has

no further peremptories.” He then instructed the clerk to

swear in the jury panel. Defense counsel did not object.

Lindsey argues that this error requires automatic reversal.

He contends that the denial of a peremptory challenge falls

within the limited class of errors for which there can be no

harmless-error review, citing United States v. Annigoni, 96

F.3d 1132 (1996) (en banc).

UNITED STATES v. LINDSEY 769

[1] In Annigoni, the district court had improperly denied

defendant his use of a peremptory challenge to strike a juror.

Id. at 1136. The defense counsel there attempted to exercise

a peremptory challenge against an Asian juror. The district

court denied the challenge because it believed the challenge

was racially motivated and therefore ran afoul of Batson v.

Kentucky, 476 U.S. 79 (1986). Because the district court

based its decision only on “the bare fact of a male juror of

Asian heritage,” it erred in denying the defendant’s peremp-

tory challenge. Annigoni, 96 F.3d at 1136 (internal quotations

omitted). On en banc review, the issue before us was whether

a harmless-error analysis was the appropriate standard of

review for the erroneous deprivation of a defendant’s right of

peremptory challenge. Id.

We began our analysis by noting that, although peremptory

challenges are not guaranteed by the Constitution, “the right

of peremptory challenge is nonetheless an important statutory

right that courts have considered vital to an impartial jury

trial.” Id. at 1137. Given this importance, we noted, the

Supreme Court “has long maintained that ‘[t]he denial or

impairment of the right is reversible error without a showing

of prejudice.’ ” Id. at 1141 (quoting Swain v. Alabama, 380

U.S. 202, 219 (1965)). We observed that our court had long

followed Swain’s remedial principle. Id. (citing United States

v. Turner, 558 F.2d 535, 538 (9th Cir. 1977)). Two recent

developments in the law, however, warranted a revisiting of

the issue. First, the government argued that “Batson and sub-

sequent cases [had] effectively eroded the right of peremptory

challenge.” Id. at 1142. We disagreed, concluding that Batson

and its progeny merely limited the right of peremptory chal-

lenge; they did not evince an intent to abolish it altogether. Id.

In fact, we noted, “post-Batson decisions by the Supreme

Court confirm the continuing viability and importance of

peremptory challenges as a means of achieving an impartial

jury.” Id. We did not believe that a rule of automatic reversal

would punish district courts who were zealous in their

enforcement of Batson. Finally, we stated that Batson had

770 UNITED STATES v. LINDSEY

“left intact that portion of Swain” that provided for automatic

reversal when the right of peremptory challenge was denied

or impaired. Id. at 1143.

The second development in the law was the adoption of

harmless-error review for trial errors. We also disagreed that

this development compelled us to abandon our automatic

reversal rule. We gave a number of reasons that, in our view,

made the peremptory challenge error ill-suited for harmless

error analysis, including that the error does not occur during

the presentation of the case to a jury, that it may not be “quan-

titatively assessed” in the context of other evidence presented,

that peremptory challenges could be made in a highly subjec-

tive and arbitrary fashion without a litigant being able to

prove any bias or hostility, and that a dearth of information

concerning jury room events presented an obstacle to such

review. Id. at 1144-45.

Finally, we rejected the idea that the denial of the right of

peremptory challenge had to be categorized as a classic trial

error or structural error. Generally, “[i]n determining whether

an error is subject to harmless-error analysis, a reviewing

court must determine whether the error is a ‘classic trial

error,’ such as the improper admission of evidence.” Id. at

1143 (internal quotations omitted) (quoting Arizona v. Fulmi-

nante, 499 U.S. 279, 309 (1991)). A trial error is properly

subject to harmless-error analysis. Id. “Structural” errors, by

contrast, “affect ‘the framework within which the trial pro-

ceeds, rather than simply an error in the trial process itself.’ ”

Id. at 1143 (quoting Fulminante, 499 U.S. at 310). Such errors

defy harmless-error analysis and require automatic reversal.

We did not believe that the case law established a rigid

dichotomy between trial and structural errors, but instead con-

cluded that the errors fall on a spectrum. Id. at 1144. We

determined that we were not obligated to decide whether the

peremptory challenge error rose to the level of structure error

in order to apply the automatic reversal rule. Id.

UNITED STATES v. LINDSEY 771

As our circuit reaffirmed its adherence to the automatic

reversal rule in Annigoni, the Supreme Court moved steadily

in the opposite direction. In Ross v. Oklahoma, 487 U.S. 81

(1988), and United States v. Martinez-Salazar, 528 U.S. 304

(2000), the Supreme Court held that a defendant’s use of a

peremptory challenge to cure the trial court’s erroneous denial

of a for-cause challenge did not warrant reversal at the state

or federal level. Because no individuals on the actual jury

were removable for cause, the Supreme Court found no viola-

tion of the defendants’ right to an impartial jury or to due pro-

cess. Ross, 487 U.S. at 86-91; Martinez-Salazar, 528 U.S. at

307, 316-17. Martinez-Salazar hastened the Supreme Court’s

retreat further by explicitly disavowing Swain. See 528 U.S.

at 317 n.4 (“[T]he oft-quoted language in Swain was not only

unnecessary to the decision in that case . . . but was founded

on a series of our early cases decided long before the adoption

of harmless-error review.”).

Last year, the Supreme Court decided Rivera v. Illinois, the

central opinion in our inquiry here. In Rivera, defense counsel

sought to use a peremptory challenge against a prospective

juror in state trial court. 129 S. Ct. 1446, 1451 (2009). The

trial court denied the peremptory challenge on Batson

grounds, and the challenged juror was seated. The Illinois

high court, finding that the record failed to support a prima

facie case of Batson discrimination, determined that the trial

judge erred in denying the defendant’s peremptory challenge.

Id. at 1452. Nevertheless, that court held that the error did not

require automatic reversal. It “saw no indication that Rivera

had been tried before a biased jury, or even one biased juror.”

Id. (emphasis in original) (internal quotations omitted).

Applying a harmless-error standard of review, the court found

that the challenged juror’s presence on the jury did not harm

Rivera because any rational trier of fact would have found

Rivera guilty of murder on the evidence presented at trial. Id.

The Supreme Court affirmed the Illinois high court’s deci-

sion. The Supreme Court stated that if “a defendant is tried

772 UNITED STATES v. LINDSEY

before a qualified jury composed of individuals not challenge-

able for cause, the loss of a peremptory challenge due to a

state court’s good-faith error is not a matter of federal consti-

tutional concern.” Id. at 1453. Such an error also does not

require reversal as a matter of federal law. Id. at 1455. The

Supreme Court specifically rejected the appellant’s reliance

on Swain’s language in arguing for reversal under federal law,

finding that it had “disavowed [Swain’s] statement” advocat-

ing automatic reversal in its earlier decision in Martinez-

Salazar. Id. (citing Martinez-Salazar, 528 U.S. at 317 n.4).

[2] Finally, the Supreme Court explained that its recent

decisions clarified that an error is “ ‘structural,’ therefore

‘requir[ing] automatic reversal,’ only when ‘the error neces-

sarily render[s] a criminal trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence.’ ” Id.

(quoting Washington v. Recuenco, 548 U.S. 212, 218-19

(2006)). It held that the mistaken denial of a state-provided

peremptory challenge did not constitute an error of that mag-

nitude under the circumstances of the case. Id.

[3] Because no constitutional violation occurred, the

Supreme Court noted that states “retain[ed] the prerogative to

decide whether such errors deprive a tribunal of its lawful

authority and thus require automatic reversal.” Id. at 1456.

Thus, a state may decide, as a matter of state law, that a trial

court’s mistaken denial of a peremptory challenge is revers-

ible error per se. However, they may conclude, as the state

court did in Rivera, that the improper denial of a peremptory

challenge was harmless error under state law. Id.

***

[4] A three-judge panel must decline to follow circuit pre-

cedent when it has been, in effect, overturned by the decision

of a higher court. In order to be controlling on the panel, a

higher court’s decision “need not be identical” to our prece-

dent, but must instead “undercut the theory or reasoning

UNITED STATES v. LINDSEY 773

underlying the prior circuit precedent in such a way that the

cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d

889, 900 (9th Cir. 2003) (en banc). In cases of clear irrecon-

cilability, “a three-judge panel of this court . . . should con-

sider [itself] bound by the intervening higher authority and

reject the prior opinion of this court as having been effectively

overruled.” Id.

In Miller v. Gammie, we examined the effect of an inter-

vening Supreme Court decision on a three-judge panel of this

Court. In that case, the Supreme Court had taken an “ap-

proach that [was] fundamentally inconsistent with the reason-

ing of our earlier circuit authority involving immunity for

family-service social workers.” Id. at 892 (citations omitted).

Nevertheless, on appeal, a three-judge panel felt itself bound

by our prior circuit precedent and chose to follow our own

analysis on the absolute immunity question instead of follow-

ing the Supreme Court’s analysis. Sitting en banc, we clari-

fied that, “in circumstances . . . where the reasoning or theory

of our prior circuit authority is clearly irreconcilable with the

reasoning or theory of intervening higher authority, a three-

judge panel should consider itself bound by the later and con-

trolling authority, and should reject the prior circuit opinion

as having been effectively overruled.” Id. at 893. We went on

to hold that the Supreme Court’s absolute immunity analysis

was inconsistent with this circuit’s analysis, and it therefore

overruled our precedent. Id.

After careful consideration, we conclude that we must

decline to apply Annigoni here and should instead follow the

reasoning set forth in Rivera. We therefore reject the auto-

matic reversal rule. We come to this conclusion for three rea-

sons.

First, Annigoni explicitly relied on Swain’s pronouncement

that the denial of the right to exercise a peremptory challenge

is reversible error without a showing of prejudice. 96 F.3d

1132, 1141 (1996) (quoting Swain v. Alabama, 380 U.S. at

774 UNITED STATES v. LINDSEY

219). Rivera disavowed that language because it was unneces-

sary to the decision in Swain and was decided long before the

Supreme Court’s adoption of harmless-error review. Rivera,

129 S. Ct. at 1455. We may therefore no longer rely on

Swain’s pronouncement of an automatic reversal rule.

[5] Second, the Rivera Court directly undercuts our prece-

dent by determining that the erroneous denial of a peremptory

challenge may indeed be subject to harmless-error review.

Because the erroneous denial of a peremptory challenge did

not offend federal law, the Supreme Court found that states

were free to decide that the “improper seating of a competent

and unbiased juror . . . could rank as harmless under state

law.” Id. at 1456. This cuts against our conclusion in Anni-

goni that the erroneous denial of a peremptory challenge, by

its very nature, was not reviewable under a harmless-error

standard.

Third, Rivera appears to adhere to the structural error anal-

ysis that Annigoni declined to undertake with respect to

peremptory challenges. Rivera specifically states that the mis-

taken denial of a state-provided peremptory challenge does

not, in the circumstances of that case, constitute a structural

error. Such a denial therefore did not warrant automatic rever-

sal. Id. at 1455.

Lindsey advances three points in favor of following circuit

law and applying Annigoni’s automatic reversal rule here.

First, he contends that Lindsey’s case is factually distinguish-

able from Rivera because he was actually deprived of a

peremptory challenge rather than limited in how he could use

it. Second, he observes that Rivera reviewed a state trial

court’s ruling and did not pass at all on the question of denial

of peremptory challenges in federal court. Third, he argues

that the Rivera Court ultimately determined that states were

free to decide the appropriate remedy for the erroneous denial

of a peremptory challenge. Just as states retain the discretion

to determine the proper remedy for this error, Lindsey argues,

UNITED STATES v. LINDSEY 775

so too have we exercised our discretion in deciding that this

error is subject to automatic reversal. Lindsey argues that

nothing in Rivera disturbed our ultimate holding in Annigoni.

Ultimately, we do not believe that these three points weigh

in favor of following Annigoni. There is no basis for Lind-

sey’s claim that Annigoni controls but Rivera is inapposite

because the two cases are factually the same: in both Rivera

and Annigoni, the defendants were denied a peremptory chal-

lenge on Batson grounds and the challenged juror was subse-

quently seated on the jury. Further, we cannot see how

Lindsey’s situation—in which the district court simply mis-

counted and gave him only nine peremptory challenges—

somehow mandates a different outcome from the Rivera

defendant’s fate. Although the defendant in Rivera was

allowed the full number of peremptory challenges, he was not

allowed to use one challenge against the person he chose.

That determination was an error. Therefore, his right to use

his peremptory challenges was impaired in the same way as

Lindsey’s, because Lindsey similarly did not have an opportu-

nity to use one challenge in a way he saw fit. Finally, in

Rivera, too, the defendant attempted to argue that his factual

posture was somehow different from the Supreme Court’s

prior decisions in Ross and Martinez-Salazar. The Supreme

Court did not agree that these distinctions counseled a differ-

ent outcome for the defendant, emphasizing that the para-

mount concern was whether the defendant had been denied

due process or tried before a biased jury. That common thread

ran through all the cases, and made the Supreme Court’s prior

decisions relevant to the Rivera defendant’s arguments. For

these reasons, we believe that Rivera is not materially distin-

guishable from Lindsey’s case and should apply here.

As to Lindsey’s second argument, the fact that the Rivera

Court reviewed a state court decision, rather than a federal

court decision, does not undercut its reasoning. It held specifi-

cally that a good faith, erroneous denial of a peremptory chal-

lenge does not require automatic reversal, and that holding

776 UNITED STATES v. LINDSEY

conflicts squarely with Annigoni. Rivera’s reasoning is not

unique to the state court system, nor does its holding suggest

that the Supreme Court would come to a different conclusion

regarding the federal system. It does not matter that the two

decisions are not identical. For the reasons explained above,

Rivera’s reasoning in the state court context applies to this

federal case.

[6] As to Lindsey’s third argument, although Rivera left

the states free to decide the proper remedy for the error at

issue, we cannot in good faith apply Annigoni’s holding here.

We are not a separate sovereign that may freely prescribe

remedies to our own laws absent a federal constitutional vio-

lation. Instead, we are an intermediate court within the federal

system, and as such, we must take our cue from the Supreme

Court. We refer once again to our decision in Miller v. Gam-

mie, which instructs us to focus on the reasoning and analysis

in support of a holding, rather than the holding alone. 335

F.3d at 900 (noting that lower courts are “bound not only by

the holdings of higher courts’ decisions but also by their

‘mode of analysis’ ” (quoting Antonin Scalia, The Rule of

Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1177

(1989)). Setting Annigoni’s holding aside for a moment, in

our estimation the case’s reasoning has been fatally undercut

by the Supreme Court. Annigoni’s conclusion that the denial

of a peremptory challenge requires reversal, while technically

a conclusion not foreclosed by Rivera, is not supported for the

reasons stated in Annigoni. We therefore decline to apply

Annigoni’s holding and conclude that the peremptory chal-

lenge error in Lindsey’s trial does not require automatic rever-

sal.

[7] That leads us, then, to the question of what standard of

review should apply here. The Supreme Court decided simply

that the erroneous denial of a peremptory challenge is not a

per se reversible error. We take that to mean that a court may

apply the standard of review that is appropriate under the cir-

cumstances of the district court’s error. We understand the

UNITED STATES v. LINDSEY 777

Illinois high court to have applied harmless-error review in

Rivera because an objection was made at the time the trial

court denied Rivera’s peremptory challenge. At Lindsey’s

trial, by contrast, the judge simply miscounted and told Lind-

sey his challenges were exhausted. Importantly, Lindsey

failed to object, placing the review of his peremptory chal-

lenge denial in the well-settled class of errors—forfeited

errors—for which plain-error review is appropriate. See

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)

(“Failure to abide by [the] contemporaneous-objection rule

ordinarily precludes the raising on appeal of the unpreserved

claim of trial error. [The plain error rule], however, recog-

nizes a limited exception to that preclusion.”). We see nothing

in the Rivera opinion that leads us to believe that plain-error

review is not appropriate for the error at issue here.

[8] Plain error requires (1) an error, (2) that was plain, and

(3) that affected the defendant’s substantial rights. United

States v. Olano, 507 U.S. 725, 732 (1993). If these factors are

met, relief should be granted only if the error seriously

affected the fairness, integrity, or public reputation of judicial

proceedings. Id. We have little difficulty concluding that

Lindsey cannot establish plain error. Though the district court

committed an error that was plain, Lindsey has provided no

evidence to establish that his substantial rights were affected.

He advances no serious argument of prejudicial error. He does

not claim that his jury was biased in any way. “[W]ithout

more, ‘the loss of a peremptory challenge [does not] consti-

tute[ ] a violation of the constitutional right to an impartial

jury.” United States v. Martinez-Salazar, 528 U.S. 304, 313

(2000) (quoting Ross v. Oklahoma, 487 U.S. 81, 88 (1988)).

Neither does it rank as an automatically reversible statutory

error. We conclude that Lindsey’s substantial rights were not

affected when he was denied the opportunity to exercise his

tenth peremptory challenge and that the error did not seriously

affect the fairness, integrity, or public reputation of judicial

proceedings. The district court did not commit plain error in

denying Lindsey’s last peremptory challenge.

778 UNITED STATES v. LINDSEY

III. SUFFICIENCY OF THE EVIDENCE

Lindsey brings a sufficiency of the evidence challenge to

his conviction. He argues that no rational jury could have

found, beyond a reasonable doubt, that he participated in the

armed bank robbery of Banco Popular for two reasons. First,

Lindsey notes that the only physical evidence produced to

link him to the bank robbery was a DNA match to a nylon cap

found in the vicinity of the bank. Second, he contends that

Jeffrey Gibson’s testimony, which identified Lindsey as one

of the robbers, was unreliable.

[9] In reviewing a challenge to the sufficiency of evidence

in support of a criminal conviction, we must consider

whether, “after viewing the evidence in the light most favor-

able to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing

Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). “Jackson

thus establishes a two-step inquiry for considering a challenge

to a conviction based on sufficiency of the evidence.” United

States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en

banc). First, we must view the evidence considered at trial in

the light most favorable to the prosecution. Id. (citing Jack-

son, 443 U.S. at 319). Second, after viewing the evidence in

the light most favorable to the prosecution, we “must deter-

mine 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.’ ” Id. (quoting Jackson, 443

U.S. at 319). At this phase, an appellate court may not “ ‘ask

itself whether it believes that the evidence at the trial estab-

lished guilt,’ ” but instead must consider whether any rational

trier of fact could have made that finding. Id. (quoting Jack-

son, 443 U.S. at 318-19).

A. Gibson’s Testimony

[10] Lindsey argues that the only witness called to identify

him as a robber was Gibson, his accomplice, whose testimony

UNITED STATES v. LINDSEY 779

was so unreliable that no rational juror could have found it to

be credible. Defense counsel cross-examined Gibson in detail

about his incentives to cooperate with the government. He

also discussed Gibson’s lengthy criminal history, his untruth-

ful letters to Lindsey and other individuals, and his inconsis-

tent statements to FBI agents about the crime. Even with these

weaknesses, the jury was entitled to believe Gibson’s recount-

ing of Lindsey’s involvement in the robbery. We “cannot

second-guess the jury’s credibility assessments; rather, ‘under

Jackson, the assessment of the credibility of witnesses is gen-

erally beyond the scope of review.’ ” Id. at 1170 (quoting

Schlup v. Delo, 513 U.S. 298, 330 (1995)). Viewing the evi-

dence in the light most favorable to the government, Gibson’s

testimony provided a detailed account of Lindsey’s role in the

Banco Popular robbery. He testified as to the planning and

execution of the robbery. Gibson further provided evidence as

to Lindsey’s actions after the robbery, including his purchase

of a Lexus that was discovered at Lindsey’s sister’s home. We

conclude that this evidence was sufficient for a rational jury

to conclude that Lindsey conspired to rob Banco Popular.

B. Physical Evidence

Lindsey also argues that no physical evidence was pro-

duced to link Lindsey to the crime other than a DNA match

to a nylon cap found inside the abandoned getaway vehicle

close to the bank. He observes that the government failed to

produce the stolen money, firearms, or any additional scien-

tific evidence in support of the criminal conviction.

“Under [a] sufficiency of the evidence inquiry,

‘[c]ircumstantial evidence and inferences drawn from it may

be sufficient to sustain a conviction,’ but ‘mere suspicion or

speculation cannot be the basis for creation of logical infer-

ences.’ ” United States v. Bennett, ___ F.3d ___, 2010 WL

3516438, at *7 (9th Cir. Sept. 10, 2010) (quoting Walters v.

Maass, 45 F.3d 1355, 1358 (9th Cir. 1995)). Therefore, the

fact that no physical evidence is presented in support of a

780 UNITED STATES v. LINDSEY

criminal conviction does not, by itself, render the evidence

insufficient per se. Here, of course, the government did intro-

duce physical evidence—the DNA extracted from a nylon cap

in an abandoned car that matched Lindsey’s DNA profile.

The jurors heard testimony that a gray Toyota was used as

the getaway car and abandoned in an alley. Marcello Aguallo

testified that he saw a gray Toyota parked in an alley as he

played with his daughter on the day of the robbery. He also

saw an SUV leaving the alley. Sergeant Howard testified that

he found the gray Toyota, which matched the description of

the getaway car, in an alley close to the bank on the day the

robbery was committed. Detective Stubbs testified that he

recovered a black nylon cap from that same car, and Michael

Mastrocovo, a criminalist, testified that the DNA profile from

the cap matched Lindsey’s DNA profile. Mastrocovo further

testified that the probability of a random match was one in ten

quadrillion.

[11] This evidence, when construed in the light most

favorable to the government, raises a reasonable inference

that the physical evidence connected Lindsey to the Banco

Popular robbery. Lindsey’s alternative explanations for the

DNA match—that the cap could have been worn during

another robbery, by Lindsey’s twin at an earlier occasion,2 or

by an actual robber whose partial DNA profile was found on

the cap—are unavailing. Viewing evidence in the light most

favorable to the government mandates that we not consider

the plausibility of “exculpatory constructions” advanced by

the defendant. Nevils, 598 F.3d at 1167.

[12] The DNA evidence presented, in addition to the loca-

tion of the black nylon cap in the getaway car, reasonably

supports the conclusion that Lindsey wore the cap during the

robbery and discarded it in the vehicle immediately afterward.

2

Lindsey had an identical twin who died several years before the rob-

bery.

UNITED STATES v. LINDSEY 781

Moreover, this evidence was produced in conjunction with

Gibson’s testimony and the testimony of several other wit-

nesses. We conclude that a rational jury could convict on this

basis.

Lindsey’s sufficiency of the evidence challenge is without

merit.

IV. AGENT ARBUTHNOT’S TESTIMONY

Lindsey argues next that the district court erred in admit-

ting FBI Special Agent Erik Arbuthnot’s testimony for two

reasons. First, Lindsey contends that Agent Arbuthnot’s testi-

mony regarding Gibson’s description of the robbery violated

the Confrontation Clause.

[13] Although Gibson’s statements to Agent Arbuthnot

qualify as testimonial statements, they do not offend the Con-

frontation Clause because Gibson himself testified at trial and

was cross-examined by Lindsey’s counsel. United States v.

Allen, 425 F.3d 1231, 1235 (9th Cir. 2005); Crawford v.

Washington, 541 U.S. 36, 59 n.9 (2004) (“[W]e reiterate that,

when the declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on the use of

his prior testimonial statements.”). Agent Arbuthnot’s testi-

mony concerning Gibson’s testimonial statements therefore

did not offend the Confrontation Clause.

Second, Lindsey argues that the district court erred under

the Federal Rules of Evidence in admitting Agent Arbuthnot’s

statements about his interviews of Gibson as non-hearsay. A

district court’s decision to admit evidence as non-hearsay is

reviewed for abuse of discretion. United States v. Alvarez, 358

F.3d 1194, 1214 (9th Cir. 2004) (citing United States v. Olaf-

son, 213 F.3d 435, 441 (9th Cir. 2000)).

Even assuming that the district court made an error in

admitting Agent Arbuthnot’s statements, the error was harm-

782 UNITED STATES v. LINDSEY

less. Other witnesses, most significantly Gibson himself, testi-

fied to the same points that Agent Arbuthnot had discussed

with Gibson, including the getaway car and the identity of the

robbers. We hold the error, if any, harmless because we do

not harbor any “ ‘grave doubt’ ” over whether any “ ‘errone-

ously admitted evidence substantially affected the verdict.’ ”

Id. (quoting United States v. Ellis, 147 F.3d 1131, 1134 (9th

Cir. 1998)).

V. DISMISSING JURORS FOR CAUSE

Lindsey contends that the district court committed revers-

ible error in dismissing two jurors for cause. The district court

dismissed prospective jurors 8 and 10. A district court’s deci-

sion to excuse a juror under these circumstances is reviewed

for abuse of discretion. United States v. Gonzalez, 214 F.3d

1109, 1112 (9th Cir. 2000) (citing United States v. Alexander,

48 F.3d 1477, 1484 (9th Cir. 1995)).

[14] We need not reach the issue of whether the district

court abused its discretion because the error, if any, does not

warrant reversal. Even if the district court had abused its dis-

cretion, the dismissal of two jurors did not result in a preju-

diced jury panel. In United States v. Mendoza, we held that

the district court had abused its discretion by making no effort

to determine whether excluded jurors’ beliefs regarding the

state of the law at issue would impair their performances on

the jury. 157 F.3d 730, 733 (9th Cir. 1998). Nevertheless,

defining the “core question” as “whether defendant’s constitu-

tional right to an impartial jury ha[d] been violated,” id. at

734, we found that the dismissal of two jurors did not result

in a presumptively partial jury panel. Because the defendant

presented no evidence that any of the seated jurors were “un-

able or unwilling to properly perform their duties,” the dis-

missals did not warrant reversal. Id. Similarly, Lindsey has

presented no evidence that the seated jurors in his case were

partial or otherwise failed to perform their duties in any way.

His claim fails.

UNITED STATES v. LINDSEY 783

VI. SUBSTITUTING COUNSEL

Lindsey contends that the district court abused its discretion

in denying his request for new appointed counsel, which was

made by motion after Lindsey’s counsel had already begun

his investigation and representation in the case. We review a

district court’s decision to deny a substitution motion for

abuse of discretion. United States v. Prime, 431 F.3d 1147,

1154 (9th Cir. 2005).

When reviewing a district court’s denial of a substitution

motion, we consider three elements: “(1) the timeliness of the

motion; (2) the adequacy of the district court’s inquiry into

the defendant’s complaint; and (3) whether the asserted con-

flict was so great as to result in a complete breakdown in

communication and a consequent inability to present a

defense.” Id. (citing United States v. Castro, 972 F.2d 1107,

1109 (9th Cir. 1992)).

The second and third factors favor affirming the district

court’s decision. The district court engaged in a detailed

inquiry into the problem. The judge had a closed hearing on

the matter to speak with both Lindsey and his counsel. He

allowed the attorney to speak about any conflicts with his cli-

ent, and then “patiently and exhaustively” spoke to Lindsey

about the specific problems with the representation he was

receiving. United States v. Smith, 282 F.3d 758, 763 (9th Cir.

2002).

[15] Under our precedent, the district court conducted a

sufficient inquiry into the problems between Lindsey and his

counsel. See Prime, 431 F.3d at 1155-56; Smith, 282 F.3d at

763-64. The judge also properly exercised his discretion on

the third factor. Although Lindsey and his attorney both testi-

fied that they had difficulty communicating, nothing sug-

gested a “serious breach of trust” or “significant breakdown

in communication that substantially interfered with the

attorney-client relationship.” United States v. Adelzo-

784 UNITED STATES v. LINDSEY

Gonzalez, 268 F.3d 772, 779 (9th Cir. 2001). Instead, Lindsey

displayed a general dissatisfaction with his situation and also

appeared to be upset by inquiries that any competent lawyer

would undertake, such as questions as to Lindsey’s where-

abouts on the day of the robbery. We hold that the district

court did not abuse its discretion in denying Lindsey’s motion

to substitute counsel.

VII. JURY INSTRUCTIONS

The parties agree that the district court committed an error

by reading incorrect jury instructions on the conspiracy count.

The parties disagree as to whether the error requires reversal.

Where no objection is made to the omission of an essential

element of the offense in the charge to the jury, review is for

plain error. United States v. Alghazouli, 517 F.3d 1179, 1188

(9th Cir. 2008).

Because Lindsey himself proposed the jury instruction he

now challenges, the government argues that review should be

denied under the invited error doctrine. Our precedent holds

that, in order for the invited error doctrine to apply, a defen-

dant must both invite the error and relinquish a known right.

United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997).

Although Lindsey did stipulate to the erroneous jury instruc-

tion, the record does not show that there was ever a discussion

about the instruction in any court proceedings or filings. We

therefore find that Lindsey did not “affirmatively act[ ] to

relinquish a known right,” id. at 845, and decline to review

this challenge under the invited error doctrine. We proceed

with plain-error review.

To prove conspiracy, the government must show “(1) an

agreement to engage in criminal activity; (2) one or more

overt acts taken to implement the agreement, and (3) the req-

uisite intent to commit the substantive crime.” United States

v. Sullivan, 522 F.3d 967, 976 (9th Cir. 2008) (internal quota-

UNITED STATES v. LINDSEY 785

tions omitted). Here, the district court failed to instruct the

jury on the overt act element.

[16] We find harmless “an instructional error in omitting

an element of the offense ‘if no rational jury could have made

[its] findings without also finding the omitted or presumed

fact to be true.’ ” United States v. Garza, 980 F.2d 546, 554

(9th Cir. 1992) (quoting Martinez v. Borg, 937 F.2d 422, 425

(9th Cir. 1991)). Here, the jury found Lindsey guilty of armed

bank robbery and brandishing a firearm during a crime of vio-

lence. These guilty verdicts were “functionally equivalent” to

finding the existence of the overt act element in the conspir-

acy charge. Id. We therefore hold that the district court’s error

was harmless and did not rise to the level of plain error.

VIII. CUMULATIVE EFFECT OF ERRORS

As the last point of error for his trial, Lindsey argues that

because the evidence in this case was not overwhelming, the

cumulative effect of multiple errors warrants reversal. See

United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir.

1996) (“In some cases, although no single trial error examined

in isolation is sufficiently prejudicial to warrant reversal, the

cumulative effect of multiple errors may still prejudice a

defendant.”). We disagree, noting that many of Lindsey’s

alleged errors are not errors at all. Lindsey’s argument is

without merit.

IX. SENTENCING

Finally, Lindsey objects to three aspects of his sentence.

First, he argues that the sentence was unreasonable generally.

Second, he argues that the district court wrongly interpreted

“physical restraint” in increasing his base offense by two

levels. Third, he argues that brandishing a firearm is an

offense element that must be proven by a jury, rather than

found by a judge as a sentencing factor. Because Lindsey did

not raise these errors at the district court, review is for plain

786 UNITED STATES v. LINDSEY

error. United States v. Knows His Gun, III, 438 F.3d 913, 918

(9th Cir. 2006).

A. Reasonableness

[17] Lindsey proffers generalized arguments on his reason-

ableness claim, complaining only that the district court

imposed a sentence greater than necessary to meet the

requirements of 18 U.S.C. § 3553(a)(2) and that the court

failed to give an adequate explanation of its sentencing deci-

sion. Lindsey’s argument is unavailing. The district court

gave explicit and detailed reasons that supported the sentence

imposed. The judge stated that he incorporated and included

by reference the findings of the recommendation letter pro-

vided by the probation office. The recommendation letter con-

tains a detailed analysis of the Section 3553(a) factors and

how they apply to this case. Further, the court supplemented

the letter with its own reasoning as to the proper sentence in

Lindsey’s case. It reviewed testimony and concluded that

Lindsey’s crime was sophisticated, violent, and put many

innocent lives at risk. The district court’s explanation was

adequate and supported the sentence imposed. See Rita v.

United States, 551 U.S. 338, 347 (2007); United States v.

Carty, 520 F.3d 987, 992 (9th Cir. 2008) (en banc).

B. Physical Restraint

[18] Lindsey argues that the district court erred in increas-

ing his base offense by two levels because he physically

restrained the branch manager during the robbery. The bank

manager testified that he was forced to walk to the vault at

gunpoint and felt the gun barrel on his back several times. In

United States v. Thompson, we concluded that forcing a bank

employee to walk from the teller area to a vault at gunpoint

amounted to physical restraint of a victim. 109 F.3d 639, 641

(9th Cir. 1997); see also United States v. Parker, 241 F.3d

1114, 1118 (9th Cir. 2001). The circumstances in this case are

indistinguishable.

UNITED STATES v. LINDSEY 787

Lindsey’s alternative argument that the two-point enhance-

ment constitutes double-counting has been foreclosed by

United States v. Nelson, 137 F.3d 1094, 1112 (9th Cir. 1998).

C. Brandishing

[19] Based on its finding that Lindsey brandished a firearm

during the robbery, the district court imposed a seven-year

mandatory minimum consecutive sentence. Lindsey argues

that brandishing is an offense element to be proven by a jury,

rather than a sentencing factor within the judge’s purview.

The Supreme Court recently reaffirmed, however, that

enhancements for brandishing or discharging a firearm are

“sentencing factors to be found by a judge.” United States v.

O’Brien, 130 S. Ct. 2169, 2179 (2010) (citations omitted).

The district court properly treated brandishing as a sentencing

factor rather than as an element of the offense.

X. CONCLUSION

In sum, we find that the Supreme Court’s decision in

Rivera effectively overruled our circuit precedent. Following

Rivera and applying a plain-error standard of review here, we

conclude that the district court’s erroneous denial of Lind-

sey’s last peremptory challenge did not constitute reversible

error. We also find Lindsey’s other points of error to be

unfounded. For the reasons stated in the opinion, Lindsey’s

conviction and sentence are AFFIRMED.

AFFIRMED.

PREGERSON, Circuit Judge, concurring:

I write separately because, unlike the majority, I believe

this case can be resolved without deciding whether Rivera v.

Illinois, 129 S. Ct. 1446 (2009), overrules United States v.

788 UNITED STATES v. LINDSEY

Annigoni, 96 F.3d 1132, 1134 (9th Cir. 1996) (en banc). Anni-

goni is inapposite to Lindsey’s case: Annigoni concerned a

defendant who was actively prevented by the district court

from exercising a peremptory challenge, whereas Lindsey

simply failed to exercise a peremptory challenge to which he

was entitled.

Annigoni re-affirmed the principle in this circuit that the

erroneous denial or impairment of a defendant’s right of

peremptory challenge requires automatic reversal. 96 F.3d at

1141. In that case, the defendant attempted to exercise a

peremptory challenge but the district court prevented him

from doing so, erroneously concluding that the challenge was

racially motivated. Id. at 1135-36.

No such circumstance exists in this case. Unlike the defen-

dant in Annigoni, Lindsey made no attempt to exercise his

final peremptory challenge. When the district court stated,

“the defense has no further peremptories,” the defense was

silent and raised no objection. Presumably, had Lindsey’s

counsel reminded the court that he had one peremptory chal-

lenge left, the court would have allowed him to exercise that

challenge. Thus, the district court did not deny or impair

Lindsey’s right to exercise peremptory challenges, but simply

made a counting error that the defense failed to correct.

It is reasonable to assume that the defense had no objection

to any of the remaining jurors, and had no need to exercise the

final peremptory challenge. Even on appeal, Lindsey raises no

objection to any of the seated jurors.

Thus, unlike in Annigoni, the defendant does not claim that

the jury would have been differently constituted if not for the

court’s innocent error. Because Annigoni is inapplicable to

this case, Lindsey is entitled to nothing more than the level of

appellate review we apply to any claim not raised before the

district court: plain-error review.

UNITED STATES v. LINDSEY 789

Because the majority agrees that plain-error is the appropri-

ate standard, and agrees that under that standard Lindsey’s

claim fails, I concur in the result of the majority opinion.

There is no need for us to consider whether Rivera has

upended Annigoni.