                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 01-3395
           ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *
      v.                                *
                                        *
Justin J. Allee,                        *
                                        *
             Appellant.                 *
           ___________
                                             Appeals from the United States
           No. 01-3535                       District Court for the
           ___________                       District of Nebraska.

United States of America,               *
                                        *
             Appellant,                 *
                                        *
      v.                                *
                                        *
Justin J. Allee,                        *
                                        *
             Appellee.                  *

                                  ___________

                             Submitted: June 11, 2002

                                 Filed: August 22, 2002
                                  ___________
Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

       Justin J. Allee appeals his convictions for conspiracy, bank robbery, carjacking,
and weapons violations. The government cross appeals the district court’s decision
to run Allee’s sentence for a second violation of 18 U.S.C. § 924(c)(1) concurrently
with his sentence for his first violation of that section. We affirm Allee’s convictions
but reverse his sentence and remand to the district court for resentencing.

                                           I.

       On March 14, 2000, Allee, his brother James Allee, and Sue Bryant robbed the
West Gate Bank in Lincoln, Nebraska. While the Allees were carrying out the
robbery, Sue Bryant waited with the switch car in an apartment complex a short
distance from the bank. After fleeing the bank in the white Jeep Cherokee that they,
along with Bryant, had earlier stolen, the Allees drove to the apartment complex
where they joined Bryant in the switch car, a blue Mazda Navajo that belonged to the
Allees’ sister. Police observed and followed the Mazda on Interstate 80. When the
officers pulled the Mazda over and approached the vehicle, Bryant sped off, left the
highway, and drove across a field.

      Shortly thereafter, the Allees entered a home in Greenwood, Nebraska, and
demanded the keys to a pickup truck that was parked in the driveway. After taking
the keys, James Allee shot the residents, Leslie and Retha Debrie. Bryant and the
Allees fled the scene in the Debries’ pickup truck. They subsequently abandoned and
burned the truck in Iowa.

      On March 16, 2000, all three defendants were arrested, Bryant in the morning,
James Allee in the afternoon, and Allee in the evening. Police read Allee his Miranda

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rights and placed him in a Chevrolet Suburban for transport to the Omaha police
station. After being placed in an interview room, Allee consented to answer
questions from the police. In a short interview, he asserted that he was not involved
in the robbery or the shooting. He stated that he hoped the Debries would recover,
but denied having shot them.1

       During his pretrial incarceration in the Douglas County, Nebraska, Correctional
Facility, Allee made a number of phone calls to various people wherein he made
statements that the prosecution argued were attempts to create an alibi, instructions
to individuals to keep silent, and attempts to implicate others in the crimes.

        Both Bryant and James Allee pleaded guilty. James Allee entered his guilty
plea on March 6, 2001. On March 12, 2001, James Allee escaped from jail, but was
recaptured some four hours later. There was substantial news coverage of the crimes,
the search for the perpetrators, the arrests, James Allee’s escape and recapture, the
DeBries’ recovery from the extensive injuries they had suffered in the shooting, and
the related court proceedings. Additionally, on March 6 and 7, 2001, the Omaha
World-Herald reported that the Assistant United States Attorney announced that
initially both Allees accepted plea agreements, but that Justin Allee had withdrawn
from the plea deal.

        Allee was convicted of conspiracy to commit bank robbery in violation of 18
U.S.C. § 2113(a) and (d); bank robbery in violation of 18 U.S.C. §§ 2113(a), (d), and
2; car jacking in violation of 18 U.S.C. §§ 2119(2) and 2; displaying and brandishing
a firearm during a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and
2; using and discharging a firearm during a crime of violence in violation of 18
U.S.C. §§ 924(c)(1)(A)(iii), (C)(ii), and 2; and being a felon in possession of a


      1
       Allee has not appealed the ruling denying his motion to suppress these
statements.

                                         -3-
firearm in violation of 18 U.S.C. § 922(g)(1). Allee was sentenced to concurrent 235
month sentences on each count except the two § 924(c)(1) offenses. He was
sentenced to 84 months’ imprisonment on the first § 924(c)(1) charge and 300
months’ imprisonment on the second. At sentencing, the district court found that §
924(c)(1)(D)(ii) required that it impose the § 924 sentences consecutively to the
sentences for the underlying offenses but that it had the discretion to run the § 924
sentences concurrently with each other. Hence, Allee was sentenced to a total of 535
months’ imprisonment.

                                           II.

       Allee appeals his conviction on three grounds. First, he asserts that the district
court wrongfully denied his motion for a change of venue based on excessive pretrial
publicity. Second, he contends that the court impermissibly allowed testimony about
his post-Miranda silence. Last, he argues that the court erred in admitting tapes of
telephone calls made while he was awaiting trial because their prejudice outweighed
their probative value and because they were inadmissible character evidence. The
government cross appeals Allee’s sentence, asserting that the district court had no
discretion to run the sentences for the § 924 violations concurrently with each other.

                                           A.

      We review a denial of a motion for a change of venue for abuse of discretion.
United States v. Blom, 242 F.3d 799, 803 (8th Cir. 2001). We employ a two-tiered
analysis when the motion is based on pretrial publicity. Id. The tier-one analysis
involves a determination of whether the pretrial publicity was so extensive and
corrupting that unfairness of constitutional magnitude must be presumed. Id. If no
such determination is made, we move to the second tier of the analysis, which is a
determination “whether the jury-selection process established an inference of actual
prejudice.” Id. at 804. In making this determination, “[w]e must ‘independently

                                          -4-
evaluate the voir dire testimony of the impaneled jury in order to determine whether
an impartial jury was selected, thus obviating the necessity for a change of venue.’”
Id. (quoting United States v. McNally, 485 F.2d 398, 403 (8th Cir. 1973)). Thus,
under either tier of the analysis, we will reverse only if a change of venue would have
been necessary to protect the defendant’s right to a fair trial.

       Allee contends that his is a tier-one case. He points to over two hundred local
news items that pertained to the crimes, the search for and arrests of the perpetrators,
the recovery of the victims, the guilty pleas of James Allee and Sue Bryant, James
Allee’s escape from jail, and the announcement of Allee’s withdrawn guilty plea.

       The mere existence of press coverage, however, is not sufficient to create a
presumption of inherent prejudice and thus warrant a change of venue. To create a
presumption, the coverage must be inflammatory or accusatory. See Id. Allee
documents incidents in which less-than-objective language was used in the news
media. Some examples include statements that the perpetrators “should pay forever,”
engaged in a “series of ‘Bonnie and Clyde’ getaways,” were “very dangerous
individuals who do not have regard for life,” and were “linked to [a] long list of
crimes.” Isolated incidents of intemperate commentary about the crimes and
perpetrators, however, do not rise to the level of inflammatory or accusatory where
for the most part, the reporting appears to have been objective and unemotional. See
McNally, 485 F.2d at 401 (finding no inherent prejudice in press coverage despite
“understandable emotionalism concerning hijacking” in community).

       Although the press coverage of the events in question was extensive, the time
frames in which the bulk of the coverage occurred were limited to the period of the
crimes and arrests and the period that encompassed James Allee’s guilty plea and
jailbreak. The first events occurred in March 2000, more than one year before trial,
and the second incidents occurred in March 2001, approximately two months before
trial. Moreover, because Allee’s trial originally was scheduled for the end of March

                                          -5-
2001, the district court granted Allee’s request for a continuance in order to guard
against any prejudice that might have arisen from the coverage of James Allee’s
guilty plea, escape, and recapture. Thus, the year-long time span between the press
accounts of the robbery, shooting, and capture, and the two-month time span between
the accounts regarding James Allee’s plea, escape, and recapture worked to eliminate
the risk of presumed prejudice.

       Allee’s claim also fails under tier-two analysis. Allee directs our attention to
four venire members who were dismissed from the panel because they asserted that
they could not set aside what they had heard in the press and decide the case only on
the evidence presented in court. In determining whether Allee’s jury was fair and
impartial, we must focus on the jury that was actually seated. Blom, 242 F.3d at 804-
05; McNally, 485 F.2d at 403. “The existence of prejudice among prospective jurors
does not necessarily mean that an impartial jury cannot be impaneled.” United States
v. Mercer, 853 F.2d 630, 633 (8th Cir. 1988). Each of the potential jurors Allee
identifies was replaced with a venire member who either had no recollection of the
events or affirmatively asserted the ability to decide the case impartially and only on
the evidence presented. Additionally, five venire members who had stated that they
had some recollection of the events ultimately were struck from the panel. Our
independent review of the voir dire record satisfies us that the district court’s careful
exercise of its discretion in the manner in which it conducted the voir dire resulted in
the seating of a fair and impartial jury. See Blom, 242 F.3d at 804. Accordingly, we
find no abuse of discretion in the district court’s denial of the motion for change of
venue.

                                           B.

      Allee also argues that the district court erred in permitting the government to
inquire into his post-Miranda silence in violation of Doyle v. Ohio, 426 U.S. 610
(1976). “Doyle rests on the fundamental unfairness of implicitly assuring a suspect

                                          -6-
that his silence will not be used against him and then using his silence to impeach an
explanation subsequently offered at trial.” Greer v. Miller, 483 U.S. 756, 763 (1987)
(citations and internal quotes omitted). Accordingly, a Doyle violation constitutes
trial error, Brecht v. Abrahamson, 507 U.S. 619, 629 (1993), and we must analyze
the questioning as it developed at trial to determine whether a violation occurred. See
Greer, 483 U.S. at 764 n.5 (holding that “sequence of events at trial” indicated that
defendant’s post-arrest silence was not used against him in violation of Doyle);
Anderson v. Charles, 447 U.S. 404, 409 (1980).

      Allee points to the following inquiry by the prosecutor:

      Q.     You were brought down to the police station and you were
             brought to an interview room, weren’t you?
      A.     Yes, I was.
      Q.     You were given your Miranda rights at that time? In other words,
             they advised you of what the charges are and they tell you about
             your rights, your right to remain silent and everything else,
             correct?
             Mr. Courtney: Your Honor, I’ll object to this and renew the
             motion filed, pretrial motion that was filed, with respect to any
             statements as these are the subject matter statements that – I mean
             pretrial motions that were filed earlier.
             The Court:       Overruled.
             The Witness: Took place in the Suburban.
      Q.     You were read your rights in the Suburban?
      A.     The whole interview took place in the Suburban.
      Q.     No matter where it took place, whether at the police station, or
             whether it took place en route in the Suburban, you were given an
             opportunity, were you not, to tell them who you were with and
             what you had been doing that day, and you didn’t [do] so, did
             you?
      A.     They didn’t ask me –
      ***
      A.  They didn’t ask me who I was with.


                                         -7-
      Q.     They didn’t have to ask you; you could have told them, right?
      A.     I just told them what I was asked –
      ***
      Q.     You didn’t tell them, did you?
      A.     No.
      Q.     You didn’t tell them anything about what you have just told this
             jury?
      A.     No.
      Q.     You didn’t tell them anything about an alibi at that time, did you?
             Mr. Pfeffer: Objection, Your Honor. This is irrelevant and he
             has a constitutional right not to say anything outside the presence
             of an attorney.
             The Court: Overruled.
      ***
      Q.  You didn’t tell the officers during the time period, the relevant
          time period in which they were asking you, either in the Suburban
          or at central police station after you were given your rights
          anything about an alibi, did you?
      ***
      A.  Had nothing to say without an attorney present.

        The Supreme Court has held that Doyle is not implicated where “questions
were not designed to draw meaning from silence, but to elicit an explanation for a
prior inconsistent statement.” Anderson, 447 U.S. at 409. It is clear from this record
that Allee and the prosecutor were discussing the statements made to police by Allee
after he had waived his Miranda rights. In fact, defense counsel’s first objection was
a renewal of Allee’s pretrial suppression motion. Moreover, the prosecutor and Allee
discussed the “interview,” the fact that the police “didn’t ask” him questions about
alibi, and that Allee “just told them what [he] was asked.” The jury heard testimony
about a verbal exchange, not silence.

       At oral argument, Allee attempted to distinguish between the interview that he
now concedes took place in an interview room at the Omaha police station and what
he alleges was the prosecution’s at-trial commentary on his silence in the Suburban.

                                         -8-
As we stated, our focus must be on what occurred during trial. The fact that Allee
asserted at trial that the events occurred in the Suburban rather than in the interview
room does not lead to a conclusion that there was a period of silence upon which the
government impermissibly commented. The government’s questioning was not
designed to elicit testimony about silence, nor was that the result. Thus, there was no
Doyle violation.

                                          C.

       Allee also contends that the district court erred in permitting the introduction
of portions of telephone calls made by Allee from jail while he was awaiting trial. He
objects on the grounds that the tapes were unfairly prejudicial under Rule 403 and
that they were impermissible character evidence under Rule 404. We review
decisions regarding the admissibility of evidence under an abuse of discretion
standard. United States v. Fuller, 887 F.2d 144, 147 (8th Cir. 1989) (citing United
States v. Marshall, 683 F.2d 1212, 1215 (8th Cir. 1982)). "In balancing the
prejudicial effect and probative value, great deference is given to the district judge's
determination . . . ." United States v. DeLuna, 763 F.2d 897, 913 (8th Cir. 1985)
(citing United States v. Wagoner, 713 F.2d 1371, 1375 (8th Cir. 1983)).

       Allee advanced an alibi defense at trial. From each of the tape excerpts, the
jury could have inferred that Allee’s statements were attempts to create an alibi, to
implicate others in the crimes, or to persuade witnesses to remain quiet about his role
in the crimes. Thus, the excerpts were not only relevant but were particularly
probative on the issue of the veracity of his alibi defense. Accordingly, the district
court did not abuse its discretion by admitting the tapes over Allee’s Rule 403
objection.

     Allee also contends that the district court erred in admitting the taped
conversations because they were inadmissible character evidence. Rule 404(a)

                                          -9-
prohibits the introduction of a person’s character “for the purpose of proving action
in conformity therewith on a particular occasion.” Allee argues that because the
telephone calls were placed from jail, they would tend to indicate to the jury that he
has a criminal character and that he acted in conformity with that criminal character
in regard to the crimes with which he was charged.

       There is no indication in the record that the tapes were introduced for the
purpose of establishing criminal character. Rather, they were introduced as evidence
from which the jury could evaluate the truthfulness of Allee’s alibi. Accordingly, the
district court did not abuse its discretion by admitting the tapes over Allee’s Rule 404
objection.

                                           D.

       The government contends that the district court erred in concluding that it had
the discretion to run Allee’s two sentences under 18 U.S.C. § 924(c)(1) concurrently
with each other. We agree. The language of the statute and the cases explaining its
application clearly indicate that the sentences must run consecutively.

       Section 924(c)(1) sets out the penalties for a violator who “during and in
relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm . . . .” For a first conviction under the
subsection, minimum terms are imposed. 18 U.S.C. § 924(c)(1)(A)(i)-(iii). “In the
case of a second or subsequent conviction under this subsection, the person shall . . .
be sentenced to a term of imprisonment of not less than 25 years.” 18 U.S.C. §
924(c)(1)(C)(i). The statute further provides that “no term of imprisonment imposed
on a person under this subsection shall run concurrently with any other term of
imprisonment imposed on the person . . . .” 18 U.S.C. § 924(c)(1)(D)(ii).




                                          -10-
      Allee was convicted of two violations of § 924(c)(1)(A). For the first violation,
brandishing a firearm during the bank robbery, he was sentenced to the mandatory
minimum sentence of seven years, or 84 months, under § 924(c)(1)(A)(ii). Because
the second violation, discharge of a firearm during the carjacking, was a second
conviction, Allee was sentenced to 300 months’ imprisonment under the §
924(c)(1)(C)(i) enhancement.

       Allee argues that because the underlying offenses were part of a single criminal
transaction, the district court was not constrained by the mandatory language of §
924(c)(1)(D)(ii) to run the sentences consecutively. Allee analogizes his situation to
that of the defendant in United States v. Freisinger, 937 F.2d 383 (8th Cir. 1991). In
Freisinger, we concluded that “where multiple section 924(c)(1) convictions are
based upon the carrying (or use) of more than one firearm during a single underlying
offense, the sentencing court should impose” sentences to run concurrently. Id. at
392. Freisinger was convicted of four § 924(c)(1) violations, one each for carrying
three handguns and one rifle during his commission of the single underlying offense
of possession with intent to distribute cocaine. Allee’s case is substantially different,
however, and thus Freisinger is inapposite. Allee was convicted of two distinct
underlying offenses, bank robbery and carjacking, during each of which he employed
a firearm. Although for some purposes the incidents might be viewed as a single
criminal transaction (for joinder purposes under Rule 8(a) for instance), they do not
constitute a single underlying offense.

      Allee’s situation is more similar to that of the defendant in United States v.
Davis, 103 F.3d 660 (8th Cir. 1996). Davis committed three bank robberies; two of
them within five minutes of each other. He was convicted of three § 924(c)(1)
offenses. For the first violation he was sentenced to 60 months’ imprisonment. For
each of the two subsequent convictions, he was sentenced under the enhancement to




                                          -11-
terms of 240 months’ imprisonment.2 The district court ran the sentences
consecutively, and in affirming we stated: “The express language of the statute
prohibits the district court from allowing the firearms terms of imprisonment to run
concurrently with each other.” Id. at 677. Although Allee seeks to distinguish Davis
on the ground that Davis committed three separate acts, we are not persuaded for
Allee also committed separate acts – bank robbery and carjacking.

       Accordingly, we affirm Allee’s conviction, vacate his sentence, and remand to
the district court for resentencing consistent with the views set forth in this opinion.

      A true copy.

               Attest:

                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
          The enhancement has since been raised to its present level of 300 months.

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