FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-50205 Plaintiff-Appellee,

D.C. No.

v.  CR-02-00904-WJRKORAN MCKINLEY ALLEN, a/k/a 04

Sinbad, OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

William J. Rea, District Judge, Presiding

Argued and Submitted

August 1, 2005—Pasadena, California

Filed October 18, 2005

Before: William C. Canby, Jr., Alex Kozinski, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson

14319
COUNSEL

Phillip I. Bronson, Encino, California, for defendant-appellant

Koran McKinley Allen. 

Dorothy C. Kim and Jason de Bretteville, Assistant United

States Attorneys, Los Angeles, California, for plaintiffappellee United States of America. 

OPINION

RAWLINSON, Circuit Judge: 

A jury convicted Koran McKinley Allen of conspiracy to

commit armed bank robbery, armed bank robbery, and using,

carrying, or possessing a firearm during a crime of violence.

On appeal, Allen maintains that there was insufficient evidence to support his firearm conviction; that the admission of

a co-conspirator’s statement violated his Sixth Amendment

right of confrontation; that a government witness’s allusion to

Allen’s previous incarceration warranted a mistrial; that the

district court failed to appreciate that it had discretion to

depart downward on Allen’s sentence based on a tragic personal history and the disproportionate impact of a prior con14322 UNITED STATES v. ALLEN
viction; and that the enhancement of his sentence using judgefound facts violated the Sixth Amendment. We affirm the

convictions and, because the sentencing judge is no longer

available, we order a remand for resentencing pursuant to

United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en

banc), and United States v. Sanders, 421 F.3d 1044, 1052 (9th

Cir. 2005). 

I

BACKGROUND

Allen and his co-conspirators robbed the Community Bank

in Pasadena, California, of $21,619. The plan was organized

by Larry Washington and his longtime friend, Derrick

O’Neal. The two of them, along with co-conspirator Edward

Warren, drove to Pasadena the day before the robbery and

selected Community Bank as the target. O’Neal recruited

three co-conspirators to assist with the robbery, and Washington told O’Neal that Washington “was going to bring a crew

that he had used in another robbery.” According to FBI Special Agent Taglioretti’s testimony, he was informed by

O’Neal of Washington’s prior statement to O’Neal that Washington recruited Jerry Hughes, Allen, and another individual.1

On the morning of the robbery, all involved, including

Allen, met in front of Warren’s home to organize and discuss

the logistics of the robbery. The use of firearms was discussed, and Washington took a bag full of guns out of his

Pathfinder truck, around which all the participants had gathered. Hughes also displayed his gun during the meeting. The

meeting ended when Warren’s mother began looking out the

window of the home. 

1Telephone records indicate that Washington called Allen on the evening before the robbery. 

UNITED STATES v. ALLEN 14323
The robbers drove to Pasadena in four vehicles: a maroon

van that O’Neal had stolen to use as a getaway car; Washington’s white Pathfinder; a gray Escort; and a rental car. Allen,

who was designated as a getaway driver, drove the maroon

van. When they arrived in Pasadena, all four cars met behind

the bank in a parking area. Eventually, five members of the

crew entered the bank. Allen remained behind. 

During the robbery, Hughes and another co-conspirator displayed their firearms. Hughes also used his gun to strike two

bank employees. One of these employees was knocked

unconscious and taken to the emergency room for a CAT

scan. Upon exiting the bank, the robbers walked toward the

maroon van, but Allen was not in it. As a result, the five robbers drove away in the Escort. 

Warren and O’Neal remained in O’Neal’s car during the robbery.2

 They were planning to drive away from the bank, turn

around, and drive back. As they were heading back toward the

bank, Washington called O’Neal, explaining that he needed a

ride because his truck would not start. At approximately the

same time, O’Neal and Warren saw Allen walking down the

street and summoned him into the vehicle. Washington

phoned O’Neal a second time, and, as the two were speaking,

O’Neal spotted Washington on the corner. Washington

entered the backseat of the car and attempted to lie down to

hide himself from view. 

Officer Shannon Reece of the Pasadena Police Department

was on patrol when she heard over the police radio that the

Community Bank had been robbed. While Reece was at an

intersection, a car stopped on the opposite side of the traffic

light drew her attention. When she proceeded through the

intersection, she noticed a passenger in that car attempting to

hide in the backseat, so she made a U-turn and initiated a traf2

It appears that Washington also remained in his vehicle during the robbery. 

14324 UNITED STATES v. ALLEN
fic stop of the vehicle. The four individuals in the car—

O’Neal, Warren, Washington, and Allen—were taken into

custody later that day.

All those involved in the robbery were charged with one

count of conspiracy to commit bank robbery in violation of 18

U.S.C. § 371, one count of armed bank robbery in violation

of 18 U.S.C. § 2113(a) and (d), and one count of using, carrying, or possessing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Allen was convicted on all

counts, and sentenced to 319 months imprisonment after the

district court applied several enhancements to Allen’s base

offense level. This appeal followed.

II

DISCUSSION

A. Sufficiency of the Evidence

Allen’s motion for a judgment of acquittal was denied by

the district court. Allen contends that there is insufficient evidence to support his conviction for using, carrying, or possessing a firearm because the evidence failed to establish that

he could reasonably foresee the use of firearms during the

robbery. 

The denial of a motion for a judgment of acquittal is

reviewed de novo. United States v. Bello-Bahena, 411 F.3d

1083, 1087 (9th Cir. 2005). “We must view the evidence in

the light most favorable to the government and determine

whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.

(citation omitted). 

[1] Under § 924(c), it is a crime to use or carry a firearm

during a crime of violence or to possess a firearm in furtherance of such a crime. 18 U.S.C. § 924(c)(1)(A) (2000 & Supp.

UNITED STATES v. ALLEN 14325
2005). Although Allen did not himself use, carry, or possess

a gun in furtherance of the robbery,3 he could be convicted as

a co-conspirator. See Pinkerton v. United States, 328 U.S.

640, 647 (1946). The Pinkerton rule holds “a conspirator

criminally liable for the substantive offenses committed by a

co-conspirator when they are reasonably foreseeable and

committed in furtherance of the conspiracy.” United States v.

Long, 301 F.3d 1095, 1103 (9th Cir. 2002) (citing Pinkerton,

328 U.S. at 645-48). Thus, the government “is not required to

establish that [Allen] had actual knowledge of the gun[s]”;

rather, “[t]he touchstone is foreseeability.” United States v.

Hoskins, 282 F.3d 772, 776 (9th Cir. 2002) (citation omitted).

[2] The district court committed no error in denying Allen’s

motion for a judgment of acquittal. Allen was present at the

“morning of” meeting where guns were present and their use

was discussed; he had a longstanding friendship with coconspirator O’Neal who had participated in previous armed

bank robberies; and, it is reasonable to infer from the nature

of the plan—the overtaking of a bank by force and

intimidation—that guns would be used. See id. at 777

(upholding a conviction under § 924(c) premised on coconspirator liability where the defendant participated in two

meetings at which the robbery was planned, was involved

romantically with one of the co-conspirators who had participated in similar armed robberies, and because the nature of

the plan, which required the use of force or intimidation to

overtake the cash room at a K-Mart, made the use of a gun

reasonably foreseeable.).

B. Confrontation Clause Claim

Relying on Crawford v. Washington, 541 U.S. 36 (2004),

Allen contends that Washington’s statement to O’Neal about

whom Washington was recruiting into the conspiracy was

3Robbery is a crime of violence. See United States v. Mendez, 992 F.2d

1488, 1491 (9th Cir. 1993). 

14326 UNITED STATES v. ALLEN
inadmissible hearsay, and its introduction violated Allen’s

right of confrontation. Allen cites two instances where Washington’s statement was impermissibly allowed into evidence:

O’Neal’s testimony that Washington told him he was bringing

in his “crew”; and Agent Taglioretti’s testimony that O’Neal

told him whom Washington had recruited. 

Because Allen failed to object to Washington’s statement

on Confrontation Clause grounds, we review for plain error.

See United States v. Huber, 772 F.2d 585, 588 (9th Cir. 1985).4

Confrontation Clause violations are also subject to harmless

error analysis. United States v. Nielsen, 371 F.3d 574, 581

(9th Cir. 2004). 

[3] In Crawford, the Court held that “[w]here testimonial

evidence is at issue, . . . the Sixth Amendment demands what

the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68. However, co-conspirator statements are not testimonial and

therefore beyond the compass of Crawford’s holding. See id.

at 56 (describing “statements in furtherance of a conspiracy”

as “statements that by their nature [are] not testimonial”); see

also United States v. Delgado, 401 F.3d 290, 299 (5th Cir.

2005); United States v. Rashid, 383 F.3d 769, 777 (8th Cir.

2004). 

[4] Therefore, Washington’s statement to O’Neal, as a

statement made in furtherance of the conspiracy, was not testimonial, and its introduction did not violate the Confrontation

Clause. Additionally, although O’Neal’s statement to Agent

Taglioretti was “testimonial” under Crawford, see Crawford,

541 U.S. at 53 (holding that statements made to law enforcement “fall squarely within that class” of testimonial hearsay

covered by the Sixth Amendment), because O’Neal was avail4Allen does not challenge the admission of Washington’s statement on

hearsay grounds. Rather, he asserts that the hearsay nature of the statement

violated his rights under the Confrontation Clause. 

UNITED STATES v. ALLEN 14327
able as a witness and cross-examined by Allen, the admission

of O’Neal’s out-of-court statement did not violate Allen’s

Sixth Amendment rights under Crawford.

5

See id. at 59 n.9

(“[W]e reiterate that, when the declarant appears for crossexamination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”)

(citation omitted). 

Finally, even if the statements complained of were improperly admitted, any error was harmless, as there was overwhelming evidence connecting Allen to the conspiracy. See

United States v. Bowman, 215 F.3d 951, 961-62 (9th Cir.

2000) (holding that Confrontation Clause violation, if any,

was harmless beyond a reasonable doubt, as there was other

evidence linking defendant to the conspiracy beyond a reasonable doubt.). Allen was arrested in the same vehicle as three

other conspirators as they attempted to flee the scene of the

robbery, and both O’Neal and Alexander identified Allen as

a participant in the conspiracy. 

C. Denial of Requested Mistrial

During his cross-examination of O’Neal, Allen’s counsel

asked O’Neal how often he had seen Allen, and O’Neal

responded “When he got out of jail.” Allen immediately made

5Nor does the admission of these statements implicate Bruton v. United

States, 391 U.S. 123 (1968). Bruton precludes the admission of a defendant’s confession implicating a co-defendant during a joint trial. Id. at

123-24, 135-37. However, that is not the situation before us. Washington,

having pled guilty, was not a co-defendant in Allen’s trial, and Washington’s statement to O’Neal about whom Washington had recruited was not

a confession; rather, it was a statement made by a co-conspirator during

and in furtherance of the conspiracy and thus not barred by Bruton. See

United States v. McCown, 711 F.2d 1441, 1448 (9th Cir. 1983) (finding

Bruton inapplicable to statements made by a co-conspirator in furtherance

of a conspiracy.). Additionally, to the extent that O’Neal’s statement to

Taglioretti occurred during O’Neal’s confession, O’Neal was not a codefendant, having pled guilty, and was also subjected to cross-examination

at Allen’s trial. 

14328 UNITED STATES v. ALLEN
a motion for a mistrial. The government agreed that O’Neal’s

answer should be stricken and insisted that the court admonish the jury to disregard it. The court did so and denied

Allen’s motion. Allen appeals the denial of his motion. We

review the district court’s denial of the motion for an abuse

of discretion. United States v. Allen, 341 F.3d 870, 891 (9th

Cir. 2003). 

[5] We conclude that the district court acted within its discretion. O’Neal’s isolated reference to Allen’s prior incarceration did not warrant a mistrial. See United States v.

Yarbrough, 852 F.2d 1522, 1540 (9th Cir. 1988) (“[I]solated

references to [defendant’s] prior prison record did not warrant

a mistrial.”), and any resulting prejudice dissipated when the

district court immediately gave a curative instruction to the

jury. See United States v. Parks, 285 F.3d 1133, 1141 (9th

Cir. 2002) (finding no abuse of discretion when the district

court denied defendant’s motion for a mistrial because the

district court “admonished the jury to disregard the statement.”). Moreover, there was overwhelming evidence of

Allen’s guilt, so any error was harmless. See, e.g., Allen, 341

F.3d at 892 (affirming the denial of a motion for a mistrial

because there was ample evidence of defendant’s guilt.). 

D. Allen’s Sentence

[6] Allen argues that the district court erred in failing to

grant him a downward departure to his sentence based on a

tragic personal history and the disproportionate impact of a

prior conviction. Because the district court appeared to be

aware of its authority to depart downward, denial of Allen’s

request is not reviewable. See United States v. Berger, 103

F.3d 67, 69 (9th Cir. 1996). However, Allen and the government agree that a remand is appropriate under Ameline.

Because the sentencing judge is no longer available, the sentence is vacated and this case is remanded “for a full resentencing hearing.” Sanders, 421 F.3d at 1052. 

UNITED STATES v. ALLEN 14329
III

CONCLUSION

There was sufficient evidence presented during the trial to

enable a rational jury to conclude that the use of firearms during the bank robbery was reasonably foreseeable to Allen.

The admission of a co-conspirator’s statement made during

and in furtherance of the conspiracy did not violate Allen’s

right to confront adverse witnesses, and no mistrial was warranted for a brief, isolated reference to Allen’s prior incarceration. Although the district court’s denial of Allen’s request to

depart downward is not reviewable, the parties agree that a

remand of Allen’s sentence is appropriate. Because the sentencing judge is no longer available, resentencing is warranted. 

CONVICTION AFFIRMED; SENTENCE VACATED;

REMANDED FOR RESENTENCING. 

14330 UNITED STATES v. ALLEN