Whiteside

dissenting.

I concur in Part I of the panel’s memorandum disposition, but dissent from Parts II and III. As the panel recognizes, there was sufficient evidence to convict Stinson for armed bank robbery by conspiracy. Submission to the jury of an alternative legal theory for which there is insufficient evidence does not provide an independent basis for reversing an otherwise valid conviction. See Griffin v. United States, 502 U.S. 46, 60 , 112 S.Ct. 466 , 116 L.Ed.2d 371 (1991). As we said in Keating v. Hood (which oddly enough is the case cited by the panel in support of reversal), ‘When two theories are presented to a jury and one is factually insufficient, a conviction may be upheld ‘because a jury is equipped to analyze the evidence’ and so a court may assume that it rested its verdict on the ground the facts supported.” Keating v. Hood, 191 F.3d 1053, 1062 (9th Cir.1999) (quoting Griffin v. United States, 502 U.S. 46, 59 , 112 S.Ct. 466 , 116 L.Ed.2d 371 (1991)). I would affirm Stinson’s conviction for armed bank robbery.

MEMORANDUM *

This is a consolidated appeal from defendant Whiteside’s convictions for armed bank robbery, conspiracy and use or carrying of a firearm during and in relation to a crime of violence, and defendant Stinson’s convictions and sentencing for armed bank robbery and conspiracy. Because the parties are familiar with the facts and the procedural history of this case, we will not recount them here. We affirm all of Whiteside’s convictions. We reverse Stinson’s armed bank robbery conviction and five-level sentencing enhancement for use of a firearm, vacate and remand his sentence on the conspiracy conviction, and otherwise affirm.

I

We find no error with respect to the statement Whiteside gave to the police. United States v. Doe, 219 F.3d 1009, 1016 (9th Cir.2000) (waiver of Miranda right is voluntary if confession was the product of free and deliberate choice, and knowing and intelligent if made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it); Pennsylvania v. Muniz, 496 U.S. 582, 601-02 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990) (routine biographical questions do not require Miranda warning); United…