Submitted: May 15, 2019
from United States District Court for the District of
Nebraska - Omaha
COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
COLLOTON, CIRCUIT JUDGE
convicted Preston Pope of bank robbery, Hobbs Act robbery,
two counts of brandishing a firearm during those crimes of
violence, and unlawful possession of a firearm as a
previously convicted felon. See 18 U.S.C.
§§ 1951(a), 2113(a), 924(c), 922(g). On appeal,
Pope argues that the district court abused its discretion in
denying his motion for a mistrial based on remarks of a
prospective juror during voir dire. Pope also raises
for the first time a Fifth Amendment due process challenge to
testimony that mentioned his post-arrest silence. We conclude
that there was no reversible error, and therefore affirm.
charges against Pope arose from armed robberies in Omaha at a
Walgreens pharmacy and a branch of U.S. Bank inside a grocery
store on August 11, 2015. Witnesses reported that two
suspects wearing sweatshirts, covering their faces with a ski
mask or bandana, and brandishing handguns committed both
crimes. A bank employee placed a tracking device into one
robber's bag, and police traced the device to an
abandoned white car that had been stolen. A witness there
reported seeing two men park a white car and drive off in a
was apprehended a few days later after an Omaha police
officer attempted to stop a green minivan with a broken
taillight. Pope fled the van through yards in a residential
neighborhood until he was detained. Police found a loaded
firearm, bearing Pope's DNA, in the path of his flight.
The day before his arrest, Pope accompanied his sister when
she bought a Ford Expedition with cash; one piece of the
currency used in the purchase turned out to be a bait bill
taken in the bank robbery.
case proceeded to trial. After jury selection, Pope moved for
a mistrial based on remarks by a prospective juror during
voir dire. The district court denied the motion, and
the jury eventually found Pope guilty on all counts. The
district court imposed a total sentence of 747 months'
imprisonment, consisting of two concurrent terms of 240
months for the robbery counts and three consecutive terms of
87 months, 300 months, and 120 months on the three firearms
first challenges the district court's denial of his
motion for a mistrial. During voir dire, a
prospective juror stated that he was "related to all the
Popes that are in town," that he has "a side of the
family that has kind of like . . . reoccurring run-ins with
the law," and that family members "have been
arrested for using firearms during multiple different
things." He opined that these relatives "generally
had what was coming to them." The prospective juror also
described his own troubles with the law, and admitted that he
would discount the testimony of a police officer due to his
negative experiences with law enforcement.
district court ultimately struck this prospective juror, but
Pope moved for a mistrial after jury selection based on the
venireman's comments in front of the other prospective
jurors. The district court denied the motion, reasoning that
"there's no indication that this Mr. Pope is, in
fact, related to any of the Popes that [the venireman] may be
acquainted with," and that "the side of [the
venireman's] family that gets into trouble was not
specifically identified as the Pope side of the family."
argues on appeal that it is "highly probable and
reasonably certain" that the prospective juror's
comments negatively affected the trial jury's perceptions
of Pope. According to Pope, the impact of the venireman's
statements on the jurors who were selected violated his right
under the Sixth Amendment to a fair and impartial jury. We
review the district court's ruling for abuse of
discretion. United States v. Pendleton, 832 F.3d
934, 943 (8th Cir. 2016).
assertion that these comments rendered the entire venire
biased against him is too speculative to warrant a new trial.
As the district court observed, although the venireman said
that he was related to "all the Popes" in town, he
did not specify which side of his family had
"run-ins" with the law, never said that Pope
himself had prior legal problems, and clarified that he did
not even know Pope. That the prospective juror himself had a