United States v. Blacknell

U.S. Court of Appeals for the Fourth Circuit
United States v. Blacknell, 27 F. App'x 154 (4th Cir. 2001)

United States v. Blacknell

Opinion

OPINION

PER CURIAM.

In these consolidated appeals, Aaron Keith Blaeknell appeals his convictions and sentence for two counts of bank robbery, two counts of bank robbery by use of a dangerous weapon, and two counts of carrying and using a firearm during a crime of violence. Blaeknell argues that: (1) the district court erred in the preliminary instructions given to the potential jury and the instructions on reasonable doubt given to the jury at the end of the first trial; (2) the evidence at both trials was insufficient to sustain the convictions; (3) the district court gave the jury a modified Allen * charge prematurely during the first trial; (4) the district court improperly denied a motion for a continuance at the second trial; (5) the district court erred by admitting evidence of the first bank robbery at the second trial; and (6) the district court erred by allowing a Government rebuttal witness to testify out of order. Finding no reversible error we affirm.

Because Blaeknell did not object to the challenged jury instructions, we review for plain error. Under the plain error standard, Blaeknell must show that: (1) there was error; (2) the error was plain; and (3) the error affected substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If the three elements are met, we may exercise our discretion to notice the error only if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). We find there was no error in the challenged instructions, much less plain error.

We have reviewed the record in the light most favorable to the Government to determine if there is substantial evidence to support the convictions. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Circumstantial as well as direct evidence is considered, and the Government is allowed the benefit of all reasonable inferences from the facts proven to those sought to be established. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). We do not review the credibility of witnesses and we assume the jury resolved all contradictions in the evidence in the Government’s favor. United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). The testimony of a defendant’s accomplices, standing alone and uncorroborated, can provide an adequate basis for conviction. United States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993). We find there was sufficient evidence to support the convictions.

We further find the district court did not give the jury a premature Allen charge. See, e.g., United States v. Martinez, 446 F.2d 118, 120 (2d Cir. 1971) (“we [will] not place an arbitrary time limit on how long a jury must deliberate before an Allen charge is appropriate”). Nor did the court abuse its discretion by denying Blacknell’s motion for a continuance in or *156 der to substitute counsel. United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994); United States v. Gallop, 838 F.2d 105, 107-08 (4th Cir. 1988).

In addition, we find the district court did not abuse its discretion by admitting evidence regarding the first bank robbery at the second trial. United States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990). Finally, we find the court did not abuse its discretion by permitting a Government rebuttal witness to testify out of order.

Accordingly, we affirm the convictions and sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.

*

Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Aaron Keith BLACKNELL, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Aaron Keith Blacknell, Defendant-Appellant
Status
Unpublished