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United States v. Pope

United States Court of Appeals, Eighth Circuit

August 14, 2019

United States of America, Plaintiff - Appellee,
v.
Preston Pope, Defendant-Appellant.

          Submitted: May 15, 2019

          Appeal from United States District Court for the District of Nebraska - Omaha

          Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

          COLLOTON, CIRCUIT JUDGE

         A jury 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[1] 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.

         I.

         The 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 green van.

         Pope 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.

         The 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 charges.

         II.

         Pope 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.

         The 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."

         Pope 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).

         Pope's 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 ...


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