Unpublished Disposition, 900 F.2d 263 (9th Cir. 1990)

MEMORANDUM^* 

OVERVIEW

Appellant Deborah Herron was indicted by a federal grand jury on four counts of bank robbery, bank larceny, and conspiracy to commit each of these offenses. A jury convicted Herron of the lesser included offense of aiding and abetting a bank robbery as well as conspiracy to commit bank robbery. Herron timely appeals. We affirm.

ANALYSIS

I. Admission of Statements under Rule 801(d) (2) (E)

Herron argues that the district court should not have admitted evidence of Deon Knox's statements to Tyrone and Aretha Youngs because they were made prior to the existence of any conspiracy, and prior to the time that the government proved that the appellant was a member of a conspiracy. We reject both contentions.

Statements made by a co-conspirator during the course and in furtherance of a conspiracy are not hearsay and are admissible against other conspirators. Fed.R.Evid. 801(d) (2) (E); United States v. Crespo de Llano, 838 F.2d 1006, 1017 (9th Cir. 1987). A conspirator who joins a preexisting conspiracy is bound by all that has gone on before in the conspiracy. United States v. DiCesare, 765 F.2d 890, 900 (9th Cir.), amended on other grounds, 777 F.2d 543 (1985).

Whether a conspiracy exists, however, is a preliminary question which must be proved by a preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171, 175-76 (1987). In making this preliminary determination, a trial court is free to examine the putative hearsay statements of a coconspirator; i.e., the court is not obligated to look only at independent evidence in support of a showing that a conspiracy existed. Id. at 181; United States v. Layton, 855 F.2d 1388, 1401 (9th Cir. 1988), cert. denied, 109 S. Ct. 1178 (1989).

The preponderance of the evidence was to the effect that Knox and Herron were involved in a conspiracy. Knox told Tyrone in a telephone conversation that Knox and "the lady from the bank" would be over to discuss a deal that would be profitable to Tyrone. Knox arrived fifteen minutes later, accompanied by Herron. Knox spoke with Tyrone within three feet of the car where Herron sat with the window open. Knox referred to Herron as the lady from the bank who would hand over the money during the robbery. Knox then described a well-defined plan to accomplish the robbery, including the time of the robbery, Tryone's role, the means of escape, and how and where the proceeds would be divided. Knox's subsequent discussion with Aretha was similar to his conversation with Tyrone, and provided further support for the trial court's determination that a conspiracy existed.

Evidence independent of Tyrone's statements also corroborated the existence of a conspiracy and of Herron's involvement in it. When Tyrone declined to participate in the robbery, Herron herself asked him why, and inquired as to the whereabouts of Tyrone's brother Eric, who ultimately performed the robbery. Herron later confessed to the police that the plan to meet in a hotel to divide the money after the crime had not been followed. Finally, Herron rented the car used in the hold-up.

It is unclear whether a district court's determination that a conspiracy exists for purposes of Rule 801(d) (2) (E) is reviewed de novo or for clear error. See United States v. Schmit, 881 F.2d 608, 610 n. 2 (9th Cir. 1989). In view of the overwhelming evidence of the conspiracy, we need not decide the applicable standard of review, because it is clear that the district court's determination was correct under either standard. There was therefore no error in the district court's decision to admit Knox's statements to Tyrone and Aretha under Fed.R.Evid. 801(d) (2) (E).

During the course of the arresting officers' testimony concerning the facts surrounding Herron's arrest and subsequent incriminating statements, one of the policemen testified that the other officer told Herron that Eric Youngs had already made a complete statement about Herron's involvement in the conspiracy. Defense counsel objected to this testimony and the court sustained the objection. The court, however, denied defense counsel's motion for a mistrial and instead cautioned the jury to disregard the testimony.

A district court's decision to deny a motion for a mistrial is reviewed for an abuse of discretion. United States v. Feldman, 853 F.2d 648, 664 (9th Cir. 1988), cert. denied, 109 S. Ct. 1164 (1989).

There is a strong presumption that appropriate jury instructions cure any taint of inadmissible evidence and that a jury will follow such instructions. United States v. Yarbrough, 852 F.2d 1522, 1540 (9th Cir.), cert. denied, 109 S. Ct. 171 (1988). Thus, a mistrial is appropriate only where a cautionary instruction is unlikely to cure the prejudicial effect of an error. United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985). "Prejudice" in this context means that the error so pervades the trial as to render it unfair. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986).

We conclude that Herron is unable to show prejudice. The district court's cautionary instruction immediately followed the sustained objection. Further, the probative force of the inadmissible statement is clearly outweighed by the overwhelming admissible evidence of Herron's role in the conspiracy. See United States v. Morris, 827 F.2d 1348, 1351 (9th Cir. 1987) (probative force of inadmissible evidence to be compared with that of admissible evidence supporting verdict to determine degree of prejudice), cert. denied, 484 U.S. 1017 (1988).

Herron argues that there was insufficient evidence to support her conviction. This court will reverse a guilty verdict for insufficient evidence only when, after reviewing the evidence in a light most favorable to the government, it determines that no rational trier of fact could have found the elements of the crime beyond a reasonable doubt. United States v. Harden, 846 F.2d 1229, 1232 (9th Cir.), cert. denied, 109 S. Ct. 264 (1988).

Contrary to the appellant's assertion, all three elements¹  of the crime of bank robbery were proven at trial. The bank's money was knowingly taken by intimidation and in the presence of another, viz., Kimberly Warner. See 18 U.S.C. § 2113(a).

AFFIRMED.