# United States v. Leo Bishop

> Court of Appeals for the Ninth Circuit · March 25, 1992 · 959 F.2d 820

URL: https://www.frixlaw.com/law-library/cases/9482745

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Leo BISHOP, Defendant-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 25, 1992
- **Citations:** 959 F.2d 820; 92 Daily Journal DAR 4059; 92 Cal. Daily Op. Serv. 2552; 1992 U.S. App. LEXIS 5141; 1992 WL 55078
- **Precedential status:** Published
- **Opinion:** Concurring in part by Browning
- **Judges:** Browning, Nelson, Reinhardt
- **Cited by:** 322 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by United States v. Nevils, 598 F.3d 1158 (2010).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9482745

## How later opinions describe it (automated extraction)

- holding that the prosecutor’s statement that a prospective juror was likely to have negative feelings about police because she lived in a poor, black neighborhood was not race-neutral because the prosecutor used residence as a “surrogate for racial stereotypes” rather than as …
- finding that peremptory challenge based 17 upon residency in Compton, a predominately black neighborhood, “reflected and conveyed 18 deeply ingrained and pernicious stereotypes” about African-Americans
- finding that peremptory challenge based upon residency in Compton, a predominately black neighborhood, “reflected and conveyed deeply ingrained and pernicious stereotypes” about African-Americans
- holding on direct appeal that the prosecutor failed to meet his burden to provide a racially-neu *339 tral explanation for a peremptory challenge
- concluding that the reason offered — that the juror lived in a high crime area plagued by uneasy police relations — was really a proxy for race

## Opinion text

JAMES R. BROWNING,
Circuit Judge, concurring in part and dissenting in part:
I concur with the majority except in its holding that the evidence was not sufficient to support the jury’s verdict that Bishop was guilty of assault on Agent Jordan. The majority has erred, in my view, by restricting its analysis to a portion of the evidence before the jury and by assuming the jury’s function of determining what inference to draw from the evidence as a whole.
The majority does not dispute there was sufficient evidence to convict the driver, Dwight Weisner, of assault. The jury heard testimony that Weisner accelerated the Blazer toward Agent Jordan as the agent stood in its path and forced the agent to dive between two parked cars to avoid being hit. Bishop was charged with aiding and abetting this assault. 1
“To convict a defendant of aiding and abetting a crime, a jury must find beyond a reasonable doubt that the defendant ‘willingly associated himself with a criminal venture and participated therein as something he wished to bring about.’ ” United States v. Castro, 887 F.2d 988, 995 (9th Cir.1989) (quoting United States v. Cloud, 872 F.2d 846, 850 (9th Cir.1989)). “[T]he government must prove only that the abettor intended to assist the perpetrator of the crime.” Castro, 887 F.2d at 996 (citing United States v. Zemek, 634 F.2d 1159, 1174 (9th Cir.1980).
As the majority notes, our task on appellate review is to determine “whether, after viewing the evidence 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.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2788 , 61 L.Ed.2d 560 (1979) (emphasis in original). It is settled law that “[t]he abettor’s criminal intent may be inferred from circumstantial evidence,” Castro, 887 F.2d at 995 -96 (citing Zemek, 634 F.2d at 1174 ; United States v. Groomer, 596 F.2d 356, 358 (9th Cir.1979).
From the circumstantial evidence presented in the case, a rational juror could conclude beyond a reasonable doubt, as these jurors did, that Bishop intended to and did assist Weisner in his assault upon Jordan.
The evidence showed that DEA agent Jordan, posing as a drug dealer, arranged to purchase a large quantity of cocaine from Bishop. Bishop went to the parking *832 lot where the transaction was to occur, was led to Jordan’s car, and introduced himself to Jordan. Bishop told Jordan he would sell Jordan a pound of cocaine. Jordan counted out the purchase price in front of Bishop. Bishop told Jordan he had the cocaine in his car. Bishop walked with Jordan to Bishop’s Blazer, where Weisner was sitting in the driver’s seat. At Bishop’s direction Weisner retrieved the cocaine from the center console, and Bishop showed the cocaine to Jordan. Bishop told Jordan to return to his car, drive it to Bishop’s Blazer, pay Bishop and get the cocaine. Bishop took the front passenger seat in the Blazer.
As Jordan walked away in the direction of his own car, he gave the prearranged arrest signal. Back-up officers who had accompanied Jordan to the parking lot moved to surround Weisner and Bishop in the Blazer. Their attempt to escape ensued.
Bishop was apparently in charge, and the jury reasonably could infer Weisner would be receptive to his direction. Agent Jordan testified that after Bishop pointed to Jordan, Weisner drove the Blazer directly at Jordan rather than turning away. Another agent testified that after Bishop pointed at Jordan, the Blazer accelerated toward Jordan rather than reducing speed. The jury could consider it significant that, only moments before, Bishop had negotiated a drug deal with Jordan, who represented himself to be a drug dealer. When Jordan confronted the Blazer, he revealed himself to be the undercover agent who had just set Bishop up and now sought to block his escape. The jury could also consider it significant that although Bishop and Weis-ner were confronted by six officers as they fled — two before the encounter with Jordan, three after — Bishop pointed only at Jordan. I believe the jury reasonably could conclude from these circumstances that Bishop pointed to Jordan to identify Jordan to Weisner as a target to attack. 2
The majority holds the evidence insufficient because Bishop’s pointing “is entirely consistent with a number of reasonable explanations other than” guilt. At 830 (emphasis in original). Indeed, the majority concludes that “no rational jury could prefer the incriminating explanation for Bishop's actions over the equally logical but non-incriminating explanations for his conduct.” At 831. The majority suggests three non-incriminating explanations: Jordan “was telling Weisner, ‘Look out, he’s got a gun!’, ‘Look out you're going to hit him!’ or ‘Look out, you’re going to hit that car!’ ” At 830. 3
A rational jury could reasonably reject the notion that Bishop was simply warning *833 Weisner that Jordan had a gun — both of the officers who had just confronted the Blazer had fired at the vehicle, as did two of the three officers who followed, and Bishop had pointed at none of them. A rational jury could also reject the suggestion that Bishop was expressing concern that Weisner might inadvertently strike Jordan — who was the source of their trouble; or expressing concern that Weisner might collide with another vehicle — when Weisner had just collided with at least three others, two of them deliberately.
Assuming one or more of the inferences suggested by the majority might be reasonable, as the majority itself notes, “the government’s evidence need not exclude every reasonable hypothesis consistent with innocence.” United States v. Miller, 688 F.2d 652, 663 (9th Cir.1982); United States v. Nelson, 419 F.2d 1237, 1240 (9th Cir.1969). See also United States v. Mares, 940 F.2d 455, 460 (9th Cir.1991) (“[w]hile one can certainly conjure hypothetically plausible explanations of the appellants’ behavior that are consistent with innocence, that is not the appropriate standard”); United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.1982) (“[t]he question to ask is not whether the evidence excludes every hypothesis except guilt, but whether the trier of fact could reasonably arrive at its conclusion”).
Conceding the government’s evidence need not exclude every hypothesis consistent with guilt, the majority suggests the evidence in this case was “perfectly consistent” with innocence. At 831. The majority can be referring only to the isolated fact that Bishop pointed at Jordan, for obviously Bishop’s behavior as a whole was not “perfectly consistent” with innocence: he arranged a substantial sale of drugs and when detected fled, throwing the drugs away, ignoring the officers’ commands to halt, and seeking to escape in a manner that threatened the lives and property of others. It is axiomatic that when evaluating sufficiency of the evidence it must be considered as a whole. Considering the evidence as a whole, it was sufficient, in my opinion, to permit a rational juror to conclude beyond a reasonable doubt that Bishop participated in the assault upon Jordan by marking Jordan as its target.
The majority has confined its analysis to the single fact that Bishop pointed at Jordan on the premise that only this evidence differed from that available against Bishop on the charges of assault against other officers, charges which the government had chosen to drop. The majority’s premise is mistaken. The evidence that Bishop had a particular reason for participating in the assault against Jordan, because Jordan was the undercover agent who had set Bishop up, was evidence applicable only to the assault on Jordan. Moreover, the government’s decision not to proceed against the other officers cannot justify ignoring the evidence common to those charges and the charge against Jordan, as the majority apparently holds.
It is probably of little significance even to Bishop whether his conviction on Count 6 is reversed for insufficiency of evidence. I dissent only because the approach taken by the majority may have an unsettling effect upon review of convictions based on circumstantial evidence. Jury instructions that circumstantial evidence must be such as to exclude every reasonable hypothesis other than guilt were rejected by the Supreme Court in Holland v. United States, 348 U.S. 121, 139-40 , 75 S.Ct. 127, 137-38 , 99 L.Ed. 150 (1954), as “confusing and incorrect.” In Nelson , we noted that such formulations can be confusing to appellate courts as well, leading them to fragment the evidence rather than consider it as a whole, 419 F.2d at 1245 , and to invade the “exclusive function of the jury to ... draw reasonable inferences from proven facts.” Id. at 1241 . Both of these consequences, in my opinion, are reflected in the majority’s approach to the case.
. 18 U.S.C. § 2 (a) provides that
Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
“Aiding and abetting is implied in every federal indictment for a substantive offense.” United States v. Armstrong, 909 F.2d 1238, 1241 (9th Cir.1990).
. The prosecutor made this point in his closing argument stating:
BISHOP ONLY POINTED AT ONE PERSON, AND THE ONLY PERSON THE DEFENDANT BISHOP POINTED AT IS UNDERCOVER AGENT JORDAN. AND THAT’S THE ONE PERSON IN THE PARKING LOT, AS THEY DROVE SOUTH, THAT THE DEFENDANT BISHOP KNEW FOR A FACT HAD BEEN THE CULPRIT, THE ONE TO DOUBLE-CROSS HIM AND WAS EITHER AN INFORMANT OR A COP. RIGHT.
HE WAS POINTING AT DEFENDANT — AT JORDAN AS WEISNER WAS DRIVING STRAIGHT FOR HIM AND WOULD HAVE CONTINUED TO DRIVE AT HIM HAD JORDAN NOT JUMPED OUT OF THE WAY. [R.T. 4-107].
. Defense counsel also offered these alternative explanations to the jury.
WHAT EVIDENCE IS THERE ABOUT WHY LEO WAS POINTING? IMAGINE ALL THE POSSIBILITIES, LADIES AND GENTLEMEN. MAYBE HE’S NOT POINTING EXACTLY AT MR. JORDAN, BUT HE’S POINTING AT ALL THE CARS THEY’RE ABOUT TO HIT. OR IS HE SAYING — REMEMBER, AGENT JORDAN PULLED OUT A GUN? IS HE SAYING, "LOOK, THAT GUY HAS A GUN. LET’S GET OUT OF HERE. LOOK, THAT GUY HAS A GUN. STEER AWAY FROM HIM,’’ OR IS HE JUST SAYING, “LOOK, THERE’S THE GUY. YOU WERE TALKING TO HIM EARLIER," WITHOUT SAYING ANYTHING ABOUT WANTING MR. WEISNER TO DRIVE AT HIM?
IS THAT PROOF BEYOND A REASONABLE DOUBT,\ LADIES AND GENTLEMEN? I MEAN I GAVE YOU ABOUT FOUR OR FIVE DIFFERENT ALTERNATIVES ABOUT WHAT THE POINTING COULD BE ABOUT; ALL OF THEM, I SUBMIT, PERFECTLY REASONABLE. ARE YOU GOING TO CONVICT A MAN OF ATTEMPTED MURDER OR ASSAULT WITH A CAR BASED ON THAT? [R.T. 4-68-69].

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482745. Public record. Not legal advice.