United States v. Lindsey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50459
Plaintiff-Appellee, D.C. No.
v.  2:08-cr-00186-
JAMONN LAMONT LINDSEY, GAF-1
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding

Argued and Submitted
October 5, 2010—Pasadena, California

Filed January 14, 2011

Before: Harry Pregerson, Dorothy W. Nelson and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge D.W. Nelson;
Concurrence by Judge Pregerson

761
 UNITED STATES v. LINDSEY 765

COUNSEL

Thomas P. Sleisenger, Los Angeles, California, for the
defendant-appellant.

April A. Christine, Assistant United States Attorney, Criminal
Appeals Section; Mark R. Yohalem, Assistant United States
Attorney, Los Angeles, California, for the plaintiff-appellee.

OPINION

D.W. NELSON, Senior Circuit Judge:

This case concerns the proper remedy for a good faith,
erroneous denial of a defendant’s peremptory challenge. Due
to the district court’s error in counting, Appellant Jamonn
Lamont Lindsey (“Lindsey”) received just nine out of the ten
peremptory challenges afforded him by the Federal Rules of
766 UNITED STATES v. LINDSEY
Criminal Procedure. Our circuit precedent provides for auto-
matic reversal under these circumstances. United States v.
Annigoni, 96 F.3d 1132, 1134 (9th Cir. 1996) (en banc). We
conclude, however, that Annigoni was effectively overruled
by the Supreme Court in Rivera v. Illinois, 129 S. Ct. 1446
(2009). Accordingly, we reject Annigoni’s automatic reversal
rule and review the denial of Lindsey’s peremptory challenge
under a more deferential standard of review. Finding no
reversible error, we affirm Lindsey’s conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Lindsey appeals his conviction and sentence for conspiracy,
armed bank robbery, and brandishing a firearm during a crime
of violence. On May 23, 2008, a grand jury returned a second
superseding indictment against Lindsey, charging one count
of conspiracy, 18 U.S.C. § 371; one count of armed bank rob-
bery, 18 U.S.C. § 2113(a), (d); one count of brandishing a
firearm during a crime of violence, 18 U.S.C.
§ 924(c)(1)(A)(ii); and one count of forfeiture, 21 U.S.C.
§ 853, 18 U.S.C. § 981(a)(1)(C), and 28 U.S.C. § 2461(c).
The indictment charged that Lindsey and two accomplices
took approximately $132,464 during their robbery of Banco
Popular, located in Wilmington, California. A three-day jury
trial was held beginning on February 24, 2009.

At trial, the facts established that Lindsey and two co-
conspirators, Jeffrey Gibson and a man known only as “Lil
Ball,” discussed the robbery in a park the day before the rob-
bery occurred. The three men, masked and armed, entered
Banco Popular the next day. Lindsey forced a bank employee,
Jorge Padilla, to take him to the vault at gunpoint. At the
vault, Lindsey took a large amount of cash, stuffed it in a bag,
and fled with his accomplices. The three men left the bank in
a stolen gray Toyota and drove to a nearby alley. They then
abandoned that vehicle and entered a white SUV, driven by
a fourth person. They drove to an apartment to split the pro-
ceeds from the robbery. Lindsey bought a Lexus with his
 UNITED STATES v. LINDSEY 767
share of the money. The car was later found at his sister’s
home.

Lindsey’s accomplice, Jeffrey Gibson, testified in detail
about Lindsey’s involvement in the bank robbery. Addition-
ally, a DNA profile from a nylon cap found in the abandoned
getaway vehicle matched Lindsey’s DNA profile.

The jury returned a verdict of guilty on counts one through
three.

Lindsey subsequently filed a motion for new trial, which
was denied on May 4, 2009. On September 14, 2009, Lindsey
was sentenced to a term of 204 months. This appeal followed.

II. PEREMPTORY CHALLENGE

Due to the district court’s error, Lindsey received one fewer
peremptory challenge than he was due under Rule 24 of the
Federal Rules of Criminal Procedure.1 When the time came
for the parties to exercise peremptory challenges, the district
court engaged them in the following colloquy:

COURT: Okay, we were talking about the mechan-
ics of jury selection. I think I’ve described we’ve got
12 in the box, six out front. Peremptory is exercised
against those in the box. The low-numbered juror out
front, whoever is left, goes in to replace the person
who has been excused.

When we get to the point where we’ve only got 11
in the box, then we call seven more names. First
name called goes in the box, next six go out front.
1
Rule 24 provides that, in a non-capital felony case such as this one,
“[t]he government has 6 peremptory challenges and the defendant or
defendants jointly have 10 peremptory challenges.” FED. R. CRIM. P.
24(b)(2).
768 UNITED STATES v. LINDSEY
If a party passes—obviously if you both pass, we’re
done; we have a jury. If one passes and then the
other side continues to exercise peremptories, the
question becomes what happens with respect to pass.
And as I started to say, there are two ways of han-
dling it. I confer with counsel as to which way they
prefer; if you want to preserve the peremptory then
future peremptories are only used against newly
seated jurors. In other words, so if you want to hoard
peremptories, you can hoard them, but you are stuck
with whoever was in the jury box then you exercised
your pass.

If—the other way and the way I prefer and the way
all counsel have wanted it in prior trials—is you lose
—the [pass] is a use or lose. So if you pass, you
don’t have that peremptory any more. Counsel has
lost a peremptory, but you can use any other peremp-
tory that [is] left against anyone in the box.

Just before jury selection, defense counsel chose the “use or
lose” option. He stated that the other option had been “a little
more confusing” to him.

The parties proceeded to exercise their peremptory chal-
lenges when voir dire and challenges for cause had been com-
pleted. After Lindsey was allowed nine peremptory
challenges, the government was given an opportunity to exer-
cise its last peremptory challenge. The government passed,
and the district judge stated, “All right. And the defense has
no further peremptories.” He then instructed the clerk to
swear in the jury panel. Defense counsel did not object.

Lindsey argues that this error requires automatic reversal.
He contends that the denial of a peremptory challenge falls
within the limited class of errors for which there can be no
harmless-error review, citing United States v. Annigoni, 96
F.3d 1132 (1996) (en banc).
 UNITED STATES v. LINDSEY 769
[1] In Annigoni, the district court had improperly denied
defendant his use of a peremptory challenge to strike a juror.
Id. at 1136. The defense counsel there attempted to exercise
a peremptory challenge against an Asian juror. The district
court denied the challenge because it believed the challenge
was racially motivated and therefore ran afoul of Batson v.
Kentucky, 476 U.S. 79 (1986). Because the district court
based its decision only on “the bare fact of a male juror of
Asian heritage,” it erred in denying the defendant’s peremp-
tory challenge. Annigoni, 96 F.3d at 1136 (internal quotations
omitted). On en banc review, the issue before us was whether
a harmless-error analysis was the appropriate standard of
review for the erroneous deprivation of a defendant’s right of
peremptory challenge. Id.

We began our analysis by noting that, although peremptory
challenges are not guaranteed by the Constitution, “the right
of peremptory challenge is nonetheless an important statutory
right that courts have considered vital to an impartial jury
trial.” Id. at 1137. Given this importance, we noted, the
Supreme Court “has long maintained that ‘[t]he denial or
impairment of the right is reversible error without a showing
of prejudice.’ ” Id. at 1141 (quoting Swain v. Alabama, 380
U.S. 202, 219 (1965)). We observed that our court had long
followed Swain’s remedial principle. Id. (citing United States
v. Turner, 558 F.2d 535, 538 (9th Cir. 1977)). Two recent
developments in the law, however, warranted a revisiting of
the issue. First, the government argued that “Batson and sub-
sequent cases [had] effectively eroded the right of peremptory
challenge.” Id. at 1142. We disagreed, concluding that Batson
and its progeny merely limited the right of peremptory chal-
lenge; they did not evince an intent to abolish it altogether. Id.
In fact, we noted, “post-Batson decisions by the Supreme
Court confirm the continuing viability and importance of
peremptory challenges as a means of achieving an impartial
jury.” Id. We did not believe that a rule of automatic reversal
would punish district courts who were zealous in their
enforcement of Batson. Finally, we stated that Batson had
770 UNITED STATES v. LINDSEY
“left intact that portion of Swain” that provided for automatic
reversal when the right of peremptory challenge was denied
or impaired. Id. at 1143.

The second development in the law was the adoption of
harmless-error review for trial errors. We also disagreed that
this development compelled us to abandon our automatic
reversal rule. We gave a number of reasons that, in our view,
made the peremptory challenge error ill-suited for harmless
error analysis, including that the error does not occur during
the presentation of the case to a jury, that it may not be “quan-
titatively assessed” in the context of other evidence presented,
that peremptory challenges could be made in a highly subjec-
tive and arbitrary fashion without a litigant being able to
prove any bias or hostility, and that a dearth of information
concerning jury room events presented an obstacle to such
review. Id. at 1144-45.

Finally, we rejected the idea that the denial of the right of
peremptory challenge had to be categorized as a classic trial
error or structural error. Generally, “[i]n determining whether
an error is subject to harmless-error analysis, a reviewing
court must determine whether the error is a ‘classic trial
error,’ such as the improper admission of evidence.” Id. at
1143 (internal quotations omitted) (quoting Arizona v. Fulmi-
nante, 499 U.S. 279, 309 (1991)). A trial error is properly
subject to harmless-error analysis. Id. “Structural” errors, by
contrast, “affect ‘the framework within which the trial pro-
ceeds, rather than simply an error in the trial process itself.’ ”
Id. at 1143 (quoting Fulminante, 499 U.S. at 310). Such errors
defy harmless-error analysis and require automatic reversal.
We did not believe that the case law established a rigid
dichotomy between trial and structural errors, but instead con-
cluded that the errors fall on a spectrum. Id. at 1144. We
determined that we were not obligated to decide whether the
peremptory challenge error rose to the level of structure error
in order to apply the automatic reversal rule. Id.
 UNITED STATES v. LINDSEY 771
As our circuit reaffirmed its adherence to the automatic
reversal rule in Annigoni, the Supreme Court moved steadily
in the opposite direction. In Ross v. Oklahoma, 487 U.S. 81
(1988), and United States v. Martinez-Salazar, 528 U.S. 304
(2000), the Supreme Court held that a defendant’s use of a
peremptory challenge to cure the trial court’s erroneous denial
of a for-cause challenge did not warrant reversal at the state
or federal level. Because no individuals on the actual jury
were removable for cause, the Supreme Court found no viola-
tion of the defendants’ right to an impartial jury or to due pro-
cess. Ross, 487 U.S. at 86-91; Martinez-Salazar, 528 U.S. at
307, 316-17. Martinez-Salazar hastened the Supreme Court’s
retreat further by explicitly disavowing Swain. See 528 U.S.
at 317 n.4 (“[T]he oft-quoted language in Swain was not only
unnecessary to the decision in that case . . . but was founded
on a series of our early cases decided long before the adoption
of harmless-error review.”).

Last year, the Supreme Court decided Rivera v. Illinois, the
central opinion in our inquiry here. In Rivera, defense counsel
sought to use a peremptory challenge against a prospective
juror in state trial court. 129 S. Ct. 1446, 1451 (2009). The
trial court denied the peremptory challenge on Batson
grounds, and the challenged juror was seated. The Illinois
high court, finding that the record failed to support a prima
facie case of Batson discrimination, determined that the trial
judge erred in denying the defendant’s peremptory challenge.
Id. at 1452. Nevertheless, that court held that the error did not
require automatic reversal. It “saw no indication that Rivera
had been tried before a biased jury, or even one biased juror.”
Id. (emphasis in original) (internal quotations omitted).
Applying a harmless-error standard of review, the court found
that the challenged juror’s presence on the jury did not harm
Rivera because any rational trier of fact would have found
Rivera guilty of murder on the evidence presented at trial. Id.

The Supreme Court affirmed the Illinois high court’s deci-
sion. The Supreme Court stated that if “a defendant is tried
772 UNITED STATES v. LINDSEY
before a qualified jury composed of individuals not challenge-
able for cause, the loss of a peremptory challenge due to a
state court’s good-faith error is not a matter of federal consti-
tutional concern.” Id. at 1453. Such an error also does not
require reversal as a matter of federal law. Id. at 1455. The
Supreme Court specifically rejected the appellant’s reliance
on Swain’s language in arguing for reversal under federal law,
finding that it had “disavowed [Swain’s] statement” advocat-
ing automatic reversal in its earlier decision in Martinez-
Salazar. Id. (citing Martinez-Salazar, 528 U.S. at 317 n.4).

[2] Finally, the Supreme Court explained that its recent
decisions clarified that an error is “ ‘structural,’ therefore
‘requir[ing] automatic reversal,’ only when ‘the error neces-
sarily render[s] a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence.’ ” Id.
(quoting Washington v. Recuenco, 548 U.S. 212, 218-19
(2006)). It held that the mistaken denial of a state-provided
peremptory challenge did not constitute an error of that mag-
nitude under the circumstances of the case. Id.

[3] Because no constitutional violation occurred, the
Supreme Court noted that states “retain[ed] the prerogative to
decide whether such errors deprive a tribunal of its lawful
authority and thus require automatic reversal.” Id. at 1456.
Thus, a state may decide, as a matter of state law, that a trial
court’s mistaken denial of a peremptory challenge is revers-
ible error per se. However, they may conclude, as the state
court did in Rivera, that the improper denial of a peremptory
challenge was harmless error under state law. Id.

***

[4] A three-judge panel must decline to follow circuit pre-
cedent when it has been, in effect, overturned by the decision
of a higher court. In order to be controlling on the panel, a
higher court’s decision “need not be identical” to our prece-
dent, but must instead “undercut the theory or reasoning
 UNITED STATES v. LINDSEY 773
underlying the prior circuit precedent in such a way that the
cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (en banc). In cases of clear irrecon-
cilability, “a three-judge panel of this court . . . should con-
sider [itself] bound by the intervening higher authority and
reject the prior opinion of this court as having been effectively
overruled.” Id.

In Miller v. Gammie, we examined the effect of an inter-
vening Supreme Court decision on a three-judge panel of this
Court. In that case, the Supreme Court had taken an “ap-
proach that [was] fundamentally inconsistent with the reason-
ing of our earlier circuit authority involving immunity for
family-service social workers.” Id. at 892 (citations omitted).
Nevertheless, on appeal, a three-judge panel felt itself bound
by our prior circuit precedent and chose to follow our own
analysis on the absolute immunity question instead of follow-
ing the Supreme Court’s analysis. Sitting en banc, we clari-
fied that, “in circumstances . . . where the reasoning or theory
of our prior circuit authority is clearly irreconcilable with the
reasoning or theory of intervening higher authority, a three-
judge panel should consider itself bound by the later and con-
trolling authority, and should reject the prior circuit opinion
as having been effectively overruled.” Id. at 893. We went on
to hold that the Supreme Court’s absolute immunity analysis
was inconsistent with this circuit’s analysis, and it therefore
overruled our precedent. Id.

After careful consideration, we conclude that we must
decline to apply Annigoni here and should instead follow the
reasoning set forth in Rivera. We therefore reject the auto-
matic reversal rule. We come to this conclusion for three rea-
sons.

First, Annigoni explicitly relied on Swain’s pronouncement
that the denial of the right to exercise a peremptory challenge
is reversible error without a showing of prejudice. 96 F.3d
1132, 1141 (1996) (quoting Swain v. Alabama, 380 U.S. at
774 UNITED STATES v. LINDSEY
219). Rivera disavowed that language because it was unneces-
sary to the decision in Swain and was decided long before the
Supreme Court’s adoption of harmless-error review. Rivera,
129 S. Ct. at 1455. We may therefore no longer rely on
Swain’s pronouncement of an automatic reversal rule.

[5] Second, the Rivera Court directly undercuts our prece-
dent by determining that the erroneous denial of a peremptory
challenge may indeed be subject to harmless-error review.
Because the erroneous denial of a peremptory challenge did
not offend federal law, the Supreme Court found that states
were free to decide that the “improper seating of a competent
and unbiased juror . . . could rank as harmless under state
law.” Id. at 1456. This cuts against our conclusion in Anni-
goni that the erroneous denial of a peremptory challenge, by
its very nature, was not reviewable under a harmless-error
standard.

Third, Rivera appears to adhere to the structural error anal-
ysis that Annigoni declined to undertake with respect to
peremptory challenges. Rivera specifically states that the mis-
taken denial of a state-provided peremptory challenge does
not, in the circumstances of that case, constitute a structural
error. Such a denial therefore did not warrant automatic rever-
sal. Id. at 1455.

Lindsey advances three points in favor of following circuit
law and applying Annigoni’s automatic reversal rule here.
First, he contends that Lindsey’s case is factually distinguish-
able from Rivera because he was actually deprived of a
peremptory challenge rather than limited in how he could use
it. Second, he observes that Rivera reviewed a state trial
court’s ruling and did not pass at all on the question of denial
of peremptory challenges in federal court. Third, he argues
that the Rivera Court ultimately determined that states were
free to decide the appropriate remedy for the erroneous denial
of a peremptory challenge. Just as states retain the discretion
to determine the proper remedy for this error, Lindsey argues,
 UNITED STATES v. LINDSEY 775
so too have we exercised our discretion in deciding that this
error is subject to automatic reversal. Lindsey argues that
nothing in Rivera disturbed our ultimate holding in Annigoni.

Ultimately, we do not believe that these three points weigh
in favor of following Annigoni. There is no basis for Lind-
sey’s claim that Annigoni controls but Rivera is inapposite
because the two cases are factually the same: in both Rivera
and Annigoni, the defendants were denied a peremptory chal-
lenge on Batson grounds and the challenged juror was subse-
quently seated on the jury. Further, we cannot see how
Lindsey’s situation—in which the district court simply mis-
counted and gave him only nine peremptory challenges—
somehow mandates a different outcome from the Rivera
defendant’s fate. Although the defendant in Rivera was
allowed the full number of peremptory challenges, he was not
allowed to use one challenge against the person he chose.
That determination was an error. Therefore, his right to use
his peremptory challenges was impaired in the same way as
Lindsey’s, because Lindsey similarly did not have an opportu-
nity to use one challenge in a way he saw fit. Finally, in
Rivera, too, the defendant attempted to argue that his factual
posture was somehow different from the Supreme Court’s
prior decisions in Ross and Martinez-Salazar. The Supreme
Court did not agree that these distinctions counseled a differ-
ent outcome for the defendant, emphasizing that the para-
mount concern was whether the defendant had been denied
due process or tried before a biased jury. That common thread
ran through all the cases, and made the Supreme Court’s prior
decisions relevant to the Rivera defendant’s arguments. For
these reasons, we believe that Rivera is not materially distin-
guishable from Lindsey’s case and should apply here.

As to Lindsey’s second argument, the fact that the Rivera
Court reviewed a state court decision, rather than a federal
court decision, does not undercut its reasoning. It held specifi-
cally that a good faith, erroneous denial of a peremptory chal-
lenge does not require automatic reversal, and that holding
776 UNITED STATES v. LINDSEY
conflicts squarely with Annigoni. Rivera’s reasoning is not
unique to the state court system, nor does its holding suggest
that the Supreme Court would come to a different conclusion
regarding the federal system. It does not matter that the two
decisions are not identical. For the reasons explained above,
Rivera’s reasoning in the state court context applies to this
federal case.

[6] As to Lindsey’s third argument, although Rivera left
the states free to decide the proper remedy for the error at
issue, we cannot in good faith apply Annigoni’s holding here.
We are not a separate sovereign that may freely prescribe
remedies to our own laws absent a federal constitutional vio-
lation. Instead, we are an intermediate court within the federal
system, and as such, we must take our cue from the Supreme
Court. We refer once again to our decision in Miller v. Gam-
mie, which instructs us to focus on the reasoning and analysis
in support of a holding, rather than the holding alone. 335
F.3d at 900 (noting that lower courts are “bound not only by
the holdings of higher courts’ decisions but also by their
‘mode of analysis’ ” (quoting Antonin Scalia, The Rule of
Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1177
(1989)). Setting Annigoni’s holding aside for a moment, in
our estimation the case’s reasoning has been fatally undercut
by the Supreme Court. Annigoni’s conclusion that the denial
of a peremptory challenge requires reversal, while technically
a conclusion not foreclosed by Rivera, is not supported for the
reasons stated in Annigoni. We therefore decline to apply
Annigoni’s holding and conclude that the peremptory chal-
lenge error in Lindsey’s trial does not require automatic rever-
sal.

[7] That leads us, then, to the question of what standard of
review should apply here. The Supreme Court decided simply
that the erroneous denial of a peremptory challenge is not a
per se reversible error. We take that to mean that a court may
apply the standard of review that is appropriate under the cir-
cumstances of the district court’s error. We understand the
 UNITED STATES v. LINDSEY 777
Illinois high court to have applied harmless-error review in
Rivera because an objection was made at the time the trial
court denied Rivera’s peremptory challenge. At Lindsey’s
trial, by contrast, the judge simply miscounted and told Lind-
sey his challenges were exhausted. Importantly, Lindsey
failed to object, placing the review of his peremptory chal-
lenge denial in the well-settled class of errors—forfeited
errors—for which plain-error review is appropriate. See
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)
(“Failure to abide by [the] contemporaneous-objection rule
ordinarily precludes the raising on appeal of the unpreserved
claim of trial error. [The plain error rule], however, recog-
nizes a limited exception to that preclusion.”). We see nothing
in the Rivera opinion that leads us to believe that plain-error
review is not appropriate for the error at issue here.

[8] Plain error requires (1) an error, (2) that was plain, and
(3) that affected the defendant’s substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). If these factors are
met, relief should be granted only if the error seriously
affected the fairness, integrity, or public reputation of judicial
proceedings. Id. We have little difficulty concluding that
Lindsey cannot establish plain error. Though the district court
committed an error that was plain, Lindsey has provided no
evidence to establish that his substantial rights were affected.
He advances no serious argument of prejudicial error. He does
not claim that his jury was biased in any way. “[W]ithout
more, ‘the loss of a peremptory challenge [does not] consti-
tute[ ] a violation of the constitutional right to an impartial
jury.” United States v. Martinez-Salazar, 528 U.S. 304, 313
(2000) (quoting Ross v. Oklahoma, 487 U.S. 81, 88 (1988)).
Neither does it rank as an automatically reversible statutory
error. We conclude that Lindsey’s substantial rights were not
affected when he was denied the opportunity to exercise his
tenth peremptory challenge and that the error did not seriously
affect the fairness, integrity, or public reputation of judicial
proceedings. The district court did not commit plain error in
denying Lindsey’s last peremptory challenge.
778 UNITED STATES v. LINDSEY
III. SUFFICIENCY OF THE EVIDENCE

Lindsey brings a sufficiency of the evidence challenge to
his conviction. He argues that no rational jury could have
found, beyond a reasonable doubt, that he participated in the
armed bank robbery of Banco Popular for two reasons. First,
Lindsey notes that the only physical evidence produced to
link him to the bank robbery was a DNA match to a nylon cap
found in the vicinity of the bank. Second, he contends that
Jeffrey Gibson’s testimony, which identified Lindsey as one
of the robbers, was unreliable.

[9] In reviewing a challenge to the sufficiency of evidence
in support of a criminal conviction, we must consider
whether, “after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing
Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). “Jackson
thus establishes a two-step inquiry for considering a challenge
to a conviction based on sufficiency of the evidence.” United
States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en
banc). First, we must view the evidence considered at trial in
the light most favorable to the prosecution. Id. (citing Jack-
son, 443 U.S. at 319). Second, after viewing the evidence in
the light most favorable to the prosecution, we “must deter-
mine whether this evidence, so viewed, is adequate to allow
‘any rational trier of fact [to find] the essential elements of the
crime beyond a reasonable doubt.’ ” Id. (quoting Jackson, 443
U.S. at 319). At this phase, an appellate court may not “ ‘ask
itself whether it believes that the evidence at the trial estab-
lished guilt,’ ” but instead must consider whether any rational
trier of fact could have made that finding. Id. (quoting Jack-
son, 443 U.S. at 318-19).

A. Gibson’s Testimony

[10] Lindsey argues that the only witness called to identify
him as a robber was Gibson, his accomplice, whose testimony
 UNITED STATES v. LINDSEY 779
was so unreliable that no rational juror could have found it to
be credible. Defense counsel cross-examined Gibson in detail
about his incentives to cooperate with the government. He
also discussed Gibson’s lengthy criminal history, his untruth-
ful letters to Lindsey and other individuals, and his inconsis-
tent statements to FBI agents about the crime. Even with these
weaknesses, the jury was entitled to believe Gibson’s recount-
ing of Lindsey’s involvement in the robbery. We “cannot
second-guess the jury’s credibility assessments; rather, ‘under
Jackson, the assessment of the credibility of witnesses is gen-
erally beyond the scope of review.’ ” Id. at 1170 (quoting
Schlup v. Delo, 513 U.S. 298, 330 (1995)). Viewing the evi-
dence in the light most favorable to the government, Gibson’s
testimony provided a detailed account of Lindsey’s role in the
Banco Popular robbery. He testified as to the planning and
execution of the robbery. Gibson further provided evidence as
to Lindsey’s actions after the robbery, including his purchase
of a Lexus that was discovered at Lindsey’s sister’s home. We
conclude that this evidence was sufficient for a rational jury
to conclude that Lindsey conspired to rob Banco Popular.

B. Physical Evidence

Lindsey also argues that no physical evidence was pro-
duced to link Lindsey to the crime other than a DNA match
to a nylon cap found inside the abandoned getaway vehicle
close to the bank. He observes that the government failed to
produce the stolen money, firearms, or any additional scien-
tific evidence in support of the criminal conviction.

“Under [a] sufficiency of the evidence inquiry,
‘[c]ircumstantial evidence and inferences drawn from it may
be sufficient to sustain a conviction,’ but ‘mere suspicion or
speculation cannot be the basis for creation of logical infer-
ences.’ ” United States v. Bennett, ___ F.3d ___, 2010 WL
3516438, at *7 (9th Cir. Sept. 10, 2010) (quoting Walters v.
Maass, 45 F.3d 1355, 1358 (9th Cir. 1995)). Therefore, the
fact that no physical evidence is presented in support of a
780 UNITED STATES v. LINDSEY
criminal conviction does not, by itself, render the evidence
insufficient per se. Here, of course, the government did intro-
duce physical evidence—the DNA extracted from a nylon cap
in an abandoned car that matched Lindsey’s DNA profile.

The jurors heard testimony that a gray Toyota was used as
the getaway car and abandoned in an alley. Marcello Aguallo
testified that he saw a gray Toyota parked in an alley as he
played with his daughter on the day of the robbery. He also
saw an SUV leaving the alley. Sergeant Howard testified that
he found the gray Toyota, which matched the description of
the getaway car, in an alley close to the bank on the day the
robbery was committed. Detective Stubbs testified that he
recovered a black nylon cap from that same car, and Michael
Mastrocovo, a criminalist, testified that the DNA profile from
the cap matched Lindsey’s DNA profile. Mastrocovo further
testified that the probability of a random match was one in ten
quadrillion.

[11] This evidence, when construed in the light most
favorable to the government, raises a reasonable inference
that the physical evidence connected Lindsey to the Banco
Popular robbery. Lindsey’s alternative explanations for the
DNA match—that the cap could have been worn during
another robbery, by Lindsey’s twin at an earlier occasion,2 or
by an actual robber whose partial DNA profile was found on
the cap—are unavailing. Viewing evidence in the light most
favorable to the government mandates that we not consider
the plausibility of “exculpatory constructions” advanced by
the defendant. Nevils, 598 F.3d at 1167.

[12] The DNA evidence presented, in addition to the loca-
tion of the black nylon cap in the getaway car, reasonably
supports the conclusion that Lindsey wore the cap during the
robbery and discarded it in the vehicle immediately afterward.
2
Lindsey had an identical twin who died several years before the rob-
bery.
 UNITED STATES v. LINDSEY 781
Moreover, this evidence was produced in conjunction with
Gibson’s testimony and the testimony of several other wit-
nesses. We conclude that a rational jury could convict on this
basis.

Lindsey’s sufficiency of the evidence challenge is without
merit.

IV. AGENT ARBUTHNOT’S TESTIMONY

Lindsey argues next that the district court erred in admit-
ting FBI Special Agent Erik Arbuthnot’s testimony for two
reasons. First, Lindsey contends that Agent Arbuthnot’s testi-
mony regarding Gibson’s description of the robbery violated
the Confrontation Clause.

[13] Although Gibson’s statements to Agent Arbuthnot
qualify as testimonial statements, they do not offend the Con-
frontation Clause because Gibson himself testified at trial and
was cross-examined by Lindsey’s counsel. United States v.
Allen, 425 F.3d 1231, 1235 (9th Cir. 2005); Crawford v.
Washington, 541 U.S. 36, 59 n.9 (2004) (“[W]e reiterate that,
when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of
his prior testimonial statements.”). Agent Arbuthnot’s testi-
mony concerning Gibson’s testimonial statements therefore
did not offend the Confrontation Clause.

Second, Lindsey argues that the district court erred under
the Federal Rules of Evidence in admitting Agent Arbuthnot’s
statements about his interviews of Gibson as non-hearsay. A
district court’s decision to admit evidence as non-hearsay is
reviewed for abuse of discretion. United States v. Alvarez, 358
F.3d 1194, 1214 (9th Cir. 2004) (citing United States v. Olaf-
son, 213 F.3d 435, 441 (9th Cir. 2000)).

Even assuming that the district court made an error in
admitting Agent Arbuthnot’s statements, the error was harm-
782 UNITED STATES v. LINDSEY
less. Other witnesses, most significantly Gibson himself, testi-
fied to the same points that Agent Arbuthnot had discussed
with Gibson, including the getaway car and the identity of the
robbers. We hold the error, if any, harmless because we do
not harbor any “ ‘grave doubt’ ” over whether any “ ‘errone-
ously admitted evidence substantially affected the verdict.’ ”
Id. (quoting United States v. Ellis, 147 F.3d 1131, 1134 (9th
Cir. 1998)).

V. DISMISSING JURORS FOR CAUSE

Lindsey contends that the district court committed revers-
ible error in dismissing two jurors for cause. The district court
dismissed prospective jurors 8 and 10. A district court’s deci-
sion to excuse a juror under these circumstances is reviewed
for abuse of discretion. United States v. Gonzalez, 214 F.3d
1109, 1112 (9th Cir. 2000) (citing United States v. Alexander,
48 F.3d 1477, 1484 (9th Cir. 1995)).

[14] We need not reach the issue of whether the district
court abused its discretion because the error, if any, does not
warrant reversal. Even if the district court had abused its dis-
cretion, the dismissal of two jurors did not result in a preju-
diced jury panel. In United States v. Mendoza, we held that
the district court had abused its discretion by making no effort
to determine whether excluded jurors’ beliefs regarding the
state of the law at issue would impair their performances on
the jury. 157 F.3d 730, 733 (9th Cir. 1998). Nevertheless,
defining the “core question” as “whether defendant’s constitu-
tional right to an impartial jury ha[d] been violated,” id. at
734, we found that the dismissal of two jurors did not result
in a presumptively partial jury panel. Because the defendant
presented no evidence that any of the seated jurors were “un-
able or unwilling to properly perform their duties,” the dis-
missals did not warrant reversal. Id. Similarly, Lindsey has
presented no evidence that the seated jurors in his case were
partial or otherwise failed to perform their duties in any way.
His claim fails.
 UNITED STATES v. LINDSEY 783
VI. SUBSTITUTING COUNSEL

Lindsey contends that the district court abused its discretion
in denying his request for new appointed counsel, which was
made by motion after Lindsey’s counsel had already begun
his investigation and representation in the case. We review a
district court’s decision to deny a substitution motion for
abuse of discretion. United States v. Prime, 431 F.3d 1147,
1154 (9th Cir. 2005).

When reviewing a district court’s denial of a substitution
motion, we consider three elements: “(1) the timeliness of the
motion; (2) the adequacy of the district court’s inquiry into
the defendant’s complaint; and (3) whether the asserted con-
flict was so great as to result in a complete breakdown in
communication and a consequent inability to present a
defense.” Id. (citing United States v. Castro, 972 F.2d 1107,
1109 (9th Cir. 1992)).

The second and third factors favor affirming the district
court’s decision. The district court engaged in a detailed
inquiry into the problem. The judge had a closed hearing on
the matter to speak with both Lindsey and his counsel. He
allowed the attorney to speak about any conflicts with his cli-
ent, and then “patiently and exhaustively” spoke to Lindsey
about the specific problems with the representation he was
receiving. United States v. Smith, 282 F.3d 758, 763 (9th Cir.
2002).

[15] Under our precedent, the district court conducted a
sufficient inquiry into the problems between Lindsey and his
counsel. See Prime, 431 F.3d at 1155-56; Smith, 282 F.3d at
763-64. The judge also properly exercised his discretion on
the third factor. Although Lindsey and his attorney both testi-
fied that they had difficulty communicating, nothing sug-
gested a “serious breach of trust” or “significant breakdown
in communication that substantially interfered with the
attorney-client relationship.” United States v. Adelzo-
784 UNITED STATES v. LINDSEY
Gonzalez, 268 F.3d 772, 779 (9th Cir. 2001). Instead, Lindsey
displayed a general dissatisfaction with his situation and also
appeared to be upset by inquiries that any competent lawyer
would undertake, such as questions as to Lindsey’s where-
abouts on the day of the robbery. We hold that the district
court did not abuse its discretion in denying Lindsey’s motion
to substitute counsel.

VII. JURY INSTRUCTIONS

The parties agree that the district court committed an error
by reading incorrect jury instructions on the conspiracy count.
The parties disagree as to whether the error requires reversal.
Where no objection is made to the omission of an essential
element of the offense in the charge to the jury, review is for
plain error. United States v. Alghazouli, 517 F.3d 1179, 1188
(9th Cir. 2008).

Because Lindsey himself proposed the jury instruction he
now challenges, the government argues that review should be
denied under the invited error doctrine. Our precedent holds
that, in order for the invited error doctrine to apply, a defen-
dant must both invite the error and relinquish a known right.
United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997).
Although Lindsey did stipulate to the erroneous jury instruc-
tion, the record does not show that there was ever a discussion
about the instruction in any court proceedings or filings. We
therefore find that Lindsey did not “affirmatively act[ ] to
relinquish a known right,” id. at 845, and decline to review
this challenge under the invited error doctrine. We proceed
with plain-error review.

To prove conspiracy, the government must show “(1) an
agreement to engage in criminal activity; (2) one or more
overt acts taken to implement the agreement, and (3) the req-
uisite intent to commit the substantive crime.” United States
v. Sullivan, 522 F.3d 967, 976 (9th Cir. 2008) (internal quota-
 UNITED STATES v. LINDSEY 785
tions omitted). Here, the district court failed to instruct the
jury on the overt act element.

[16] We find harmless “an instructional error in omitting
an element of the offense ‘if no rational jury could have made
[its] findings without also finding the omitted or presumed
fact to be true.’ ” United States v. Garza, 980 F.2d 546, 554
(9th Cir. 1992) (quoting Martinez v. Borg, 937 F.2d 422, 425
(9th Cir. 1991)). Here, the jury found Lindsey guilty of armed
bank robbery and brandishing a firearm during a crime of vio-
lence. These guilty verdicts were “functionally equivalent” to
finding the existence of the overt act element in the conspir-
acy charge. Id. We therefore hold that the district court’s error
was harmless and did not rise to the level of plain error.

VIII. CUMULATIVE EFFECT OF ERRORS

As the last point of error for his trial, Lindsey argues that
because the evidence in this case was not overwhelming, the
cumulative effect of multiple errors warrants reversal. See
United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir.
1996) (“In some cases, although no single trial error examined
in isolation is sufficiently prejudicial to warrant reversal, the
cumulative effect of multiple errors may still prejudice a
defendant.”). We disagree, noting that many of Lindsey’s
alleged errors are not errors at all. Lindsey’s argument is
without merit.

IX. SENTENCING

Finally, Lindsey objects to three aspects of his sentence.
First, he argues that the sentence was unreasonable generally.
Second, he argues that the district court wrongly interpreted
“physical restraint” in increasing his base offense by two
levels. Third, he argues that brandishing a firearm is an
offense element that must be proven by a jury, rather than
found by a judge as a sentencing factor. Because Lindsey did
not raise these errors at the district court, review is for plain
786 UNITED STATES v. LINDSEY
error. United States v. Knows His Gun, III, 438 F.3d 913, 918
(9th Cir. 2006).

A. Reasonableness

[17] Lindsey proffers generalized arguments on his reason-
ableness claim, complaining only that the district court
imposed a sentence greater than necessary to meet the
requirements of 18 U.S.C. § 3553(a)(2) and that the court
failed to give an adequate explanation of its sentencing deci-
sion. Lindsey’s argument is unavailing. The district court
gave explicit and detailed reasons that supported the sentence
imposed. The judge stated that he incorporated and included
by reference the findings of the recommendation letter pro-
vided by the probation office. The recommendation letter con-
tains a detailed analysis of the Section 3553(a) factors and
how they apply to this case. Further, the court supplemented
the letter with its own reasoning as to the proper sentence in
Lindsey’s case. It reviewed testimony and concluded that
Lindsey’s crime was sophisticated, violent, and put many
innocent lives at risk. The district court’s explanation was
adequate and supported the sentence imposed. See Rita v.
United States, 551 U.S. 338, 347 (2007); United States v.
Carty, 520 F.3d 987, 992 (9th Cir. 2008) (en banc).

B. Physical Restraint

[18] Lindsey argues that the district court erred in increas-
ing his base offense by two levels because he physically
restrained the branch manager during the robbery. The bank
manager testified that he was forced to walk to the vault at
gunpoint and felt the gun barrel on his back several times. In
United States v. Thompson, we concluded that forcing a bank
employee to walk from the teller area to a vault at gunpoint
amounted to physical restraint of a victim. 109 F.3d 639, 641
(9th Cir. 1997); see also United States v. Parker, 241 F.3d
1114, 1118 (9th Cir. 2001). The circumstances in this case are
indistinguishable.
 UNITED STATES v. LINDSEY 787
Lindsey’s alternative argument that the two-point enhance-
ment constitutes double-counting has been foreclosed by
United States v. Nelson, 137 F.3d 1094, 1112 (9th Cir. 1998).

C. Brandishing

[19] Based on its finding that Lindsey brandished a firearm
during the robbery, the district court imposed a seven-year
mandatory minimum consecutive sentence. Lindsey argues
that brandishing is an offense element to be proven by a jury,
rather than a sentencing factor within the judge’s purview.
The Supreme Court recently reaffirmed, however, that
enhancements for brandishing or discharging a firearm are
“sentencing factors to be found by a judge.” United States v.
O’Brien, 130 S. Ct. 2169, 2179 (2010) (citations omitted).
The district court properly treated brandishing as a sentencing
factor rather than as an element of the offense.

X. CONCLUSION

In sum, we find that the Supreme Court’s decision in
Rivera effectively overruled our circuit precedent. Following
Rivera and applying a plain-error standard of review here, we
conclude that the district court’s erroneous denial of Lind-
sey’s last peremptory challenge did not constitute reversible
error. We also find Lindsey’s other points of error to be
unfounded. For the reasons stated in the opinion, Lindsey’s
conviction and sentence are AFFIRMED.

AFFIRMED.

PREGERSON, Circuit Judge, concurring:

I write separately because, unlike the majority, I believe
this case can be resolved without deciding whether Rivera v.
Illinois, 129 S. Ct. 1446 (2009), overrules United States v.
788 UNITED STATES v. LINDSEY
Annigoni, 96 F.3d 1132, 1134 (9th Cir. 1996) (en banc). Anni-
goni is inapposite to Lindsey’s case: Annigoni concerned a
defendant who was actively prevented by the district court
from exercising a peremptory challenge, whereas Lindsey
simply failed to exercise a peremptory challenge to which he
was entitled.

Annigoni re-affirmed the principle in this circuit that the
erroneous denial or impairment of a defendant’s right of
peremptory challenge requires automatic reversal. 96 F.3d at
1141. In that case, the defendant attempted to exercise a
peremptory challenge but the district court prevented him
from doing so, erroneously concluding that the challenge was
racially motivated. Id. at 1135-36.

No such circumstance exists in this case. Unlike the defen-
dant in Annigoni, Lindsey made no attempt to exercise his
final peremptory challenge. When the district court stated,
“the defense has no further peremptories,” the defense was
silent and raised no objection. Presumably, had Lindsey’s
counsel reminded the court that he had one peremptory chal-
lenge left, the court would have allowed him to exercise that
challenge. Thus, the district court did not deny or impair
Lindsey’s right to exercise peremptory challenges, but simply
made a counting error that the defense failed to correct.

It is reasonable to assume that the defense had no objection
to any of the remaining jurors, and had no need to exercise the
final peremptory challenge. Even on appeal, Lindsey raises no
objection to any of the seated jurors.

Thus, unlike in Annigoni, the defendant does not claim that
the jury would have been differently constituted if not for the
court’s innocent error. Because Annigoni is inapplicable to
this case, Lindsey is entitled to nothing more than the level of
appellate review we apply to any claim not raised before the
district court: plain-error review.
 UNITED STATES v. LINDSEY 789
Because the majority agrees that plain-error is the appropri-
ate standard, and agrees that under that standard Lindsey’s
claim fails, I concur in the result of the majority opinion.
There is no need for us to consider whether Rivera has
upended Annigoni.