Unpublished Disposition, 869 F.2d 1499 (9th Cir. 1989)

MEMORANDUM^** 

Defendant Gill Quinton McDonald appeals his conviction under 18 U.S.C. §§ 924 and 2113 for armed bank robbery, for using a firearm in a dangerous felony, and for conspiracy to commit those crimes. For those violations, he was sentenced to consecutive terms of 25, five, and five years, respectively. He assigns error to a jury instruction by the district court that combined the elements of armed bank robbery and illegal use of a fire arm into a single instruction listing three propositions the Government had to prove for conviction of both crimes. He also assigns error to the district court's declaration of the Sentencing Reform Act as unconstitutional and the court's refusal to sentence him under the Act's Sentencing Guidelines. This court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the conviction but remand for resentencing.

McDonald contends the instruction mixing the elements of bank robbery and illegal use of a firearm violated due process. He maintains the instruction encouraged simultaneous consideration of both charges, potentially causing a vote for conviction on both charges without unanimity among the jurors on each charge. According to McDonald's theory, the district court should have separated the elements of the crimes into different instructions as his proposed instructions would have done.

Whether the instruction caused a Fifth Amendment due process violation presents a mixed question of fact and constitutional law reviewable de novo. See Bateson v. Geisse, 857 F.2d 1300, 1303 (9th Cir. 1988). Review should include the instructions as a whole, United States v. Espinosa, 827 F.2d 604, 614 (9th Cir. 1987), cert. denied, 108 S. Ct. 1243 (1988), as well as the verdict form submitted to the jury, Boggs v. Lewis, No. 87-4073 slip op. at 15257-258 (9th Cir. Dec. 15, 1988). "The Due Process Clause of the Fourteenth Amendment 'protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [he or she] is charged.' " Francis v. Franklin, 471 U.S. 307, 313 (1985) (citation omitted). Thus, instructions should "require [the jury] to find each element of the crime [s] under the proper standard of proof." Cabana v. Bullock, 474 U.S. 376, 384 (1986) (citation omitted).

Although the district court presented the elements of two crimes in a single instruction, the conclusion that a compromise verdict in violation of due process was threatened does not follow. The first and second propositions in the disputed instruction¹  cover all the elements of bank robbery under 18 U.S.C. § 2113(a): (a) the taking (b) by force or violence (c) from the presence or person of another (d) of money or property in the care, custody, or control of a bank. The third proposition, added to the first and second propositions, sets out the required elements of proof for illegal use of a firearm under 18 U.S.C. § 924(c): (a) the use of a firearm (b) in the commission of a felony for which prosecution may be had in a United States court.

The disputed instruction directed the jury to find each of the three propositions before finding guilt on either of the charged crimes, and the jury is presumed to have followed this direction. United States v. Brady, 579 F.2d 1121, 1127 (9th Cir. 1978), cert. denied, 439 U.S. 1074 (1979). By finding that the government had proven all three propositions, the jury necessarily found that McDonald had committed all the elements of both crimes. Furthermore, the verdict form required the jury to record its findings separately as to each charged offense. The requirement that the jury find proof of all three propositions and the structure of the verdict form preclude an argument that compromise in the verdict was threatened.

Following McDonald's conviction and sentencing, the Supreme Court upheld the constitutionality of the Sentencing Reform Act and the Act's Guidelines. Mistretta v. United States, 1989 W.L. 1832 (Jan. 18, 1989). Consequently, we must vacate his sentence, imposed without consideration of the Guidelines, and remand to the district court for resentencing.

The conviction is AFFIRMED, the sentence is VACATED, and the case is REMANDED to the district court for resentencing.