United States of America, Plaintiff-appellee, v. Jaime Enrique Wheelock, Defendant-appellant, 1 F.3d 1248 (9th Cir. 1993)

MEMORANDUM^** 

Wheelock appeals his conviction and sentence. A jury convicted him of eight counts of armed bank robbery (in violation of 18 U.S.C. § 2113(a), (d)) and eight counts of using or carrying a firearm during a crime of violence (in violation of 18 U.S.C. § 924(c)). He contends that an enhanced sentence under 18 U.S.C. § 924(c) is inappropriate where all the counts used to enhance his sentence were charged in the same indictment.¹  He also argues that civil unrest in Los Angeles following state court verdicts in the Rodney King beating trial denied him a fair trial. We affirm.

Wheelock's argument that we should adopt the Tenth Circuit's analysis on the Sec. 924(c) issue in United States v. Abreu, 962 F.2d 1447, 1450 (10th Cir. 1992) (en banc), cert. denied, 113 S. Ct. 220 (1992), cert. granted, judgment vacated, remanded, 113 S. Ct. 2405-06 (1993),²  has been explicitly rejected by this court and implicitly overruled by the Supreme Court. In United States v. Neal, 976 F.2d 601 (9th Cir. 1992), we held that

the meaning of "second or subsequent conviction" is plain in the context of this statute. There is nothing in the simple wording of this statute that requires that an offense underlying a second conviction occur after the conviction for the first offense. The only requirement is that a conviction be second or subsequent, not that any offense underlying that conviction follow a first conviction.

... [T]he enhanced penalties of section 924(c) apply for repeat offenses contained in a single indictment.

Id. at 602-03. We expressly declined to follow Abreu. Id. at 603.

The Supreme Court in Deal v. United States, 113 S. Ct. 1993 (1993), implicitly agreed with the majority in Neal and determined that the petitioner's "second through sixth convictions under Sec. 924(c) (1) in [a] single proceeding" did amount to a "second or subsequent conviction" for purposes of enhancement under Sec. 924(c). Id. at 1996, 1999. The Neal and Deal decisions are dispositive as to Wheelock's Sec. 924 argument.³ 

Wheelock's trial commenced shortly before the King rioting broke out, and the court suspended proceedings on at least two days in the middle of the trial for various riot-connected reasons (e.g., jurors unable to get to the courtroom). In all, there was a five-day gap, including a weekend, between the fourth and fifth days of trial. The district court denied Wheelock's motion for a mistrial, a decision that we review for abuse of discretion. United States v. Homick, 964 F.2d 899, 906 (9th Cir. 1992).

When trial resumed, the court instructed the jury that its verdict, if any, "will be based upon the facts presented in this courtroom," and that "nothing outside of this courtroom should be in any way used to [a]ffect your verdict in this case. If it becomes a problem to any one of you that there was such a long break, certainly write me a note and I'll take it up with you individually." GER 204-05. Those appropriate instructions, coupled with Wheelock's failure to show prejudice, compels a finding that the district court did not abuse its discretion in denying the motion for mistrial.

AFFIRMED.