                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 01 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50264

              Plaintiff - Appellee,              2:04-cr-00732-RSWL-6

  v.
                                                 MEMORANDUM *
DENISE ANN FOWLER,

              Defendant - Appellant.



                  Appeal from the United States District Court
                      for the Central District of California
                Ronald S.W. Lew, Senior District Judge, Presiding

                      Argued and Submitted October 13, 2011
                               Pasadena, California

Before: PREGERSON and BYBEE, Circuit Judges, and DAVIDSON, Senior
District Judge.**

       Defendant Denise Ann Fowler (“Fowler”) was indicted on charges of

conspiracy to commit bank robbery in violation of 18 U.S.C. § 371 (Count 1);

armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) (Count 6); and

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Glen H. Davidson, Senior District Judge for the
Northern District of Mississippi, sitting by designation.
brandishing a firearm during a crime of violence in violation of 18 U.S.C. §

924(c)(1)(A)(ii) (Count 7). A jury found Fowler guilty on all three counts, and the

district court imposed a sentence of 130 months’ imprisonment. Fowler appeals

her convictions and sentence. We affirm Fowler’s conviction for conspiracy to

commit bank robbery (Count 1), but reverse Fowler’s convictions for armed bank

robbery and brandishing a firearm during a crime of violence (Counts 6 & 7). We

address her arguments in turn.

      1. Fowler’s claim under Batson v. Kentucky, 476 U.S. 79 (1986), fails

because comparative juror analysis shows that the prosecution’s race-neutral

reasons for its peremptory strike of juror J.M. were not pretexts for purposeful

discrimination. See Cook v. LaMarque, 593 F.3d 810, 822 (9th Cir. 2010).

      2. Sufficient evidence supports Fowler’s conviction for conspiracy to

commit bank robbery (Count 1). Fowler was a minor participant in the conspiracy.

Her involvement, however, was sufficient for a rational jury to find that she was a

knowing participant in the bank robbery conspiracy. See United States v. Alvarez,

358 F.3d 1194, 1201 (9th Cir. 2004) (“When the evidence establishes that a

conspiracy exists, there is sufficient evidence to support a conviction for knowing

participation in that conspiracy if the government is able to establish, beyond a

reasonable doubt, ‘even a slight connection’ between the defendant and the


                                          2
conspiracy.”) (quoting United States v. Wiseman, 25 F.3d 862, 865 (9th Cir.

1994)).

      3. The evidence was insufficient to support Fowler’s convictions for armed

bank robbery and brandishing a firearm during a crime of violence (Counts 6 & 7),

though it was sufficient to prove that she was vicariously liable for bank robbery

under 18 U.S.C. § 2113(a). The evidence was insufficient to prove, beyond a

reasonable doubt, that it was reasonably foreseeable to Fowler that a gun—or any

“dangerous weapon or device,” § 2113(d)—would be used or brandished during

the robbery. See United States v. Castaneda, 9 F.3d 761, 767–68 (9th Cir. 1993),

overruled on other grounds by United States v. Nordby, 225 F.3d 1053, 1059 (9th

Cir. 2000). Fowler was not present at the bank robbery nor at the meeting of the

other conspirators shortly before the bank robbery. Moreover, there is no evidence

that Fowler ever met or knew the co-conspirators who entered the bank, including

the one who brandished a firearm. Indeed, the government failed to produce any

evidence that she knew of the nature of Maxwell’s past bank robberies or of the

nature of the planned bank robbery, including how it would be accomplished. In

light of these facts, any rational jury would have had a reasonable doubt as to

whether Fowler could have reasonably foreseen that a gun would be brandished

during the robbery. See United States v. Zelaya, 114 F.3d 869, 871 (9th Cir. 1997)


                                          3
(“[A] finding of reasonable foreseeability must be based upon something more

than . . . observations about bank robberies in general.”). It was, however, entirely

foreseeable that a bank robbery conspiracy would result in a bank robbery being

committed (in violation of § 2113(a))—that was the object of the conspiracy. See

Pinkerton v. United States, 328 U.S. 640, 647 (1946) (“The unlawful agreement

contemplated precisely what was done. It was formed for the purpose.”).

Accordingly, we vacate Fowler’s conviction for violating § 2113(a), (d), and direct

the district court upon remand to enter a new judgment of conviction against her

for violating § 2113(a), see United States v. Vasquez-Chan, 978 F.2d 546, 554 (9th

Cir. 1992), overruled on other grounds by United States v. Nevils, 598 F.3d 1158,

1166–67 (9th Cir. 2010); we also reverse Fowler’s conviction for violating

§ 924(c).

      4. The district court did not abuse its discretion when it denied the jury’s

request for a readback of a witness’s testimony. District courts have “great latitude

to address requests for readbacks.” United States v. Medina Casteneda, 511 F.3d

1246, 1249 (9th Cir. 2008).

      5. Because Fowler did not object to the playback of Maxwell’s recorded

phone calls during jury deliberations, we review this issue for plain error. United

States v. Olano, 507 U.S. 725, 731-37 (1993). Even if the district court erred when


                                          4
it permitted playback of Maxwell’s phone calls without also admonishing the jury

to refrain from giving undue weight to this evidence, Fowler has not shown that

she suffered any prejudice. See United States v. Stinson, 647 F.3d 1196, 1217-18

(9th Cir. 2011); United States v. Newhoff, 627 F.3d 1163, 1167-69 (9th Cir. 2010).

      6. Because we reverse Fowler’s conviction for brandishing a firearm during

a crime of violence (Count 7), Fowler’s challenge to her sentence is moot.




      In summary, Fowler’s conviction for conspiracy to commit bank robbery, as

alleged in Count 1, is AFFIRMED. Fowler’s conviction for armed bank robbery,

as alleged in Count 6, is REVERSED; however, Fowler stands convicted on Count

6’s lesser included offense of bank robbery. Fowler’s conviction for brandishing a

firearm, as alleged in Count 7, is REVERSED.

      Fowler has fully served her 46 month concurrent sentences for Count 1’s

conspiracy offense and Count 6’s lesser included bank robbery offense. On

remand, the district court shall order Fowler’s release from custody forthwith.




AFFIRMED in part, REVERSED in part, and REMANDED.




                                          5
