FILED
NOT FOR PUBLICATION
AUG 18 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-15097
Plaintiff-Appellee, DC Nos. 2:16 cv-1448 RCJ
2:06 cr-0239 RCJ
v.
HARLON B. JORDAN, AKA Harlan MEMORANDUM*
Brett Jordan,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-15100
Plaintiff-Appellee, DC Nos. 2:16 cv-1454 RCJ
2:06 cr-0239 RCJ
v.
DOMINIC A. DAVIS, AKA Dominic
Anthony Davis,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted July 17, 2020**
San Francisco, California
Before: TASHIMA and HURWITZ, Circuit Judges, and MARSHALL,***
District Judge.
In these consolidated appeals, Harlon Jordan and Dominic Davis appeal the
order of the district court denying their motions under 28 U.S.C. § 2255 to set
aside their 18 U.S.C. § 924(c) convictions in light of United States v. Davis, 139 S.
Ct. 2319 (2019). We have jurisdiction under 28 U.S.C. § 1291, we review de
novo, United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and
we affirm.
1. We reject the defendants’ contention that the alternative-theory
instructional error at issue should be evaluated under the modified categorical
approach—reviewing only the charging papers, jury instructions, and verdict to
determine whether their convictions necessarily rested on a valid theory of guilt.
Rather, “a reviewing court finding such error should ask whether the flaw in the
instructions ‘had substantial and injurious effect or influence in determining the
jury’s verdict.’” Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per curiam)
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Consuelo B. Marshall, United States District Judge for
the Central District of California, sitting by designation.
2
(quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). This prejudice inquiry
“must encompass ‘the record as a whole.’” Pulido v. Chrones, 629 F.3d 1007,
1016 (9th Cir. 2010) (quoting Hedgpeth, 555 U.S. at 62 n.*). The modified
categorical approach applies “when a defendant was convicted of violating a
divisible statute,” Descamps v. United States, 570 U.S. 254, 263
(2013)—something that did not occur here. Accordingly, we review the error for
harmlessness under Hedgpeth.
2. Under our case law, an alternative-theory instructional error is
harmless if “we can discern with reasonable probability that the jury . . . convicted
[the defendants] on a valid . . . theory,” or “it is reasonably probable that the jury
would still have convicted the petitioner on the proper instructions.” Babb v.
Lozowsky, 719 F.3d 1019, 1034 (9th Cir. 2013), overruled on other grounds as
stated in Moore v. Helling, 763 F.3d 1011, 1021 (9th Cir. 2014); see also Smith v.
Baker, 960 F.3d 522, 544 (9th Cir. 2020).1
Here, the instructional error was harmless because a properly instructed jury
almost certainly would have convicted the defendants of the § 924(c) offense
charged in Count 3. The jury found each of the defendants guilty of armed bank
1
In light of Neder v. United States, 527 U.S. 1, 17, 19 (1999), we reject
the defendants’ contention that applying harmless error review in this manner
violates their Sixth Amendment right to trial by jury.
3
robbery, which required the jury to conclude either that each defendant personally
employed a firearm during the robbery or aided and abetted a co-defendant in
doing so. Thus, it is difficult to see how a jury could have failed to find each
defendant guilty on Count 3, especially in light of the district court’s Pinkerton
instruction.2
The government’s theory of the case, as reflected in closing arguments, was
that all three defendants personally participated in the robbery inside the bank; the
evidence showed that these three masked robbers brandished weapons during the
robbery. Kurt Myrie, who was charged with the same offenses as Davis and
Jordan, pleaded guilty and testified for the defense that he committed the crime
with two others, but not Jordan and Davis. The defense theory, based on Myrie’s
testimony, was not that some of the robbers did not brandish weapons, but that
Jordan and Davis were not involved at all. By finding Jordan and Davis guilty on
Counts 1 and 2, the jury necessarily rejected Myrie’s testimony and the defense
theory that Jordan and Davis were not personally involved in the robbery. Under
these circumstances, we have no doubt that a properly instructed jury would have
2
“Under Pinkerton v. United States, 328 U.S. 640, 647–48 (1946), a
co-conspirator is vicariously liable for reasonably foreseeable substantive crimes
committed by a co-conspirator in furtherance of the conspiracy.” United States v.
Fonseca-Caro, 114 F.3d 906, 907 (9th Cir. 1997) (per curiam).
4
found the defendants guilty on the § 924(c) charge. Accordingly, the alternative-
theory instructional error did not have “substantial and injurious effect or influence
in determining the jury’s verdict.” Hedgpeth, 555 U.S. at 58 (quoting Brecht, 507
U.S. at 623).
3. As the defendants acknowledge, their contentions that federal armed
bank robbery does not qualify as a crime of violence under the elements clause, 18
U.S.C. § 924(c)(3)(A), are foreclosed by United States v. Watson, 881 F.3d 782
(9th Cir. 2018) (per curiam).
AFFIRMED.
5