                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 15 2010

                                                                       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. 08-50353

             Plaintiff - Appellee,               D.C. No. 2:06-cr-00812-CBM-1

  v.
                                                 MEMORANDUM *
JAMES ERNEST DAVIS,

             Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                  Consuelo B. Marshall, District Judge, Presiding

                           Submitted January 12, 2010 **
                              Pasadena, California

Before: CANBY, HALL and O’SCANNLAIN, Circuit Judges.

       James Davis appeals his jury conviction of two counts of bank robbery in

violation of 18 U.S.C. § 2113(a). He advances three arguments for vacating the

conviction, each of which is defeated by well-established precedent. The first


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
argument—that the district court abused its discretion by declining to instruct the

jury as to the consequences of a verdict of not guilty by reason of insanity—is

foreclosed by United States v. Shannon, in which the United States Supreme Court

cautioned that an instruction concerning the consequences of such a verdict “is not

to be given as a matter of general practice.” 512 U.S. 573, 587 (1994). The second

argument—that the district court abused its discretion by declining to instruct the

jury to consider the “perspective” of the bank tellers—is foreclosed by United

States v. Alsop, in which we held that a jury must “focus its attention on the

conduct of the defendant and not on the reaction of the victim.” 479 F.2d 65, 67

(9th Cir. 1973). The third argument—that there was insufficient evidence of a

taking by intimidation—is defeated by uncontested evidence that Davis presented

the tellers with demand notes. See United States v. Hopkins, 703 F.2d 1102, 1103

(9th Cir. 1983) (“[T]hreats implicit in . . . written and verbal demands for money

provide sufficient evidence of intimidation to support [a] jury’s verdict.”).

      The judgment of the district court is

      AFFIRMED.




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