USA v. BANKS
The Ninth Circuit Court of Appeals today released an amended order in USA v. BANKS, No. 05-10053, a criminal appeal. The panel consisted of J. Clifford Wallace, Andrew J. Kleinfeld, and Jay S. Bybee, Circuit Judges.
BYBEE, Circuit Judge:
Leland Devine Banks was convicted of violence in aid of a racketeering enterprise (”VICAR”), use of a firearm in a crime of violence, and possession of a firearm by a convicted felon. He was sentenced to a total of 450 months in prison. Banks appeals his conviction and sentence, raising five alleged errors by the district court. First, he argues that the district court gave erroneous instructions for the VICAR counts. Second, he argues that the evidence was insufficient to convict him on the VICAR and use of firearm counts. Third, he argues that the district court erred in giving a “de facto Allen charge.” Fourth, he argues that the district court erred in admitting into evidence the underlying facts of a prior felony conviction. Finally, he argues that cumulative error produced a miscarriage of justice. We have jurisdiction under 28 U.S.C. § 1291, and we REVERSE his VICAR convictions and sentences on the basis that the district court’s instructions to the jury were erroneous. We REVERSE his convictions for use of a firearm in furtherance of a crime of violence because his VICAR convictions were essential elements of those crimes. We AFFIRM the district court in all other respects. I A. Factual Background Leland Banks had issues with Kenny Gilmore. For starters, they belonged to rival Crips gangs in Las Vegas: Banks was a member of the Rolling 60s, and Gilmore belonged to the Valley View Crips. But Banks also had, or thought he had, a personal score to settle with Gilmore. Banks had once overheard Gilmore’s girlfriend use the word “crab,” apparently one of the most disrespectful names a Crips member can be . . .
The opinion, filed on October 25, 2007, slip opinion 14183, and appearing at 506 F.3d 756 (9th Cir. 2007), is amended as follows:
1. At slip op. 14187, second full paragraph; 506 F.3d at 759, second full paragraph, replace:
“We have jurisdiction under 28 U.S.C. § 1291, and we REVERSE his VICAR convictions and sentences on the basis that the district court’s instructions to the jury were erroneous. We AFFIRM the district court in all other respects.” with “We have jurisdiction under 28 U.S.C. § 1291, and we REVERSE his VICAR convictions and sentences on the basis that the district court’s instructions to the jury were erroneous. . . .