United States of America, Plaintiff/appellee, v. James A. Lackey, Defendant/appellant, 47 F.3d 1176 (9th Cir. 1995)

Before: BRUNETTI and KOZINSKI, Circuit Judges, and SHADUR,^**  Senior District Judge

MEMORANDUM^*** 

James Lackey ("Lackey") appeals his convictions for armed bank robbery and use of a firearm during the commission of a violent felony. It was not an abuse of discretion (United States v. Hinton, 31 F.3d 817, 822 (9th Cir. 1994)) for the District Court to admit evidence of two prior robberies to prove identity, where identity was a crucial issue and similarities between the offenses were striking. Fed.R.Evid. 404(b) and 403; United States v. Quinn, 18 F.3d 1461, 1466 (9th Cir. 1994). Nor did the District Court abuse its discretion in finding that no hearing was required to investigate allegations of juror misconduct and in denying Lackey's motion for a new trial, where the alleged misconduct concerned matters internal to jury deliberations. Fed.R.Evid. 606(b); Tanner v. United States, 483 U.S. 107, 116-27 (1987); Hard v. Burlington Northern R.R., 870 F.2d 1454, 1460-62 (9th Cir. 1989). Viewing the evidence in the light most favorable to the prosecution (including eyewitness testimony that Lackey was seen driving the getaway vehicle, the cash with red bank dye on it, found in Lackey's pocket after the robbery, and Rule 404(b) evidence of earlier robberies committed by Lackey in a similar manner), a "rational trier of fact"--here the jury--surely could have found Lackey guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

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AFFIRMED.