U.S. v. Willis

• Decision Date: 17 December 1996
• Docket Number: No. 95-3311,95-3311
• Citation: 102 F.3d 1078
• Parties: 96 CJ C.A.R. 2048 UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee WILLIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1078

102 F.3d 1078

96 CJ C.A.R. 2048

UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee WILLIS, Defendant-Appellant.

No. 95-3311.

United States Court of Appeals Tenth Circuit.

Dec. 17, 1996.

Michael L. Harris, Assistant Federal Public Defender, Kansas City, KS, for Defendant-Appellant.

Robert S. Streepy, Assistant United States Attorney, (Jackie N. Williams, United States Attorney, with him on the brief), Kansas City, KS, for Plaintiff-Appellee.

Before EBEL, LOGAN and BRISCOE, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Robert Lee Willis appeals following a mistrial because of a hung jury and conviction after a second trial, on a two-count superseding indictment for conspiracy to commit bank larceny, in violation of 18 U.S.C. § 371 and § 2113(b) (Count 1), and for assault while attempting bank larceny, in violation of 18 U.S.C. § 2113(b) and (d) (Count 2). He received a sixty-month sentence on Count 1 and a mandatory life sentence on Count 2, to run concurrently. He appeals his conviction on the assault count contending that (1) the second trial violated his double jeopardy rights because the district court should have granted his motion for acquittal at the end of his first trial for insufficient evidence; and (2) Count 2 failed to sufficiently allege an offense. He also contends that the district court erred in (3) not granting his motion for judgment of acquittal at the end of his second trial, (4) instructing the jury on vicarious liability for acts of his co-conspirators in furtherance of a conspiracy, and (5) enhancing his sentence under 18 U.S.C. § 3559(c).

Defendant was one of four men who attempted to remove an ATM machine from a shopping center in Overland Park, Kansas in January 1995. Disguised as maintenance workers, the men entered the mall through unlocked doors that allowed mall walkers to use the mall for exercise before regular store business hours. Several mall walkers observed the men and became suspicious. When mall employees approached them, the four men fled and ran toward their parked van. The last to leave pulled a gun from his jacket and fired shots through double glass doors into the mall. No one suffered injuries. Defendant did not escape in the getaway van and eventually reentered the mall. Police arrested him shortly thereafter as he exited a restroom in the mall.

Defendant was first tried in April 1995, on a two-count indictment alleging conspiracy to commit bank larceny, in violation of 18 U.S.C. § 371, and assault while attempting bank larceny, in violation of 18 U.S.C. § 2113(b) and (d) and 18 U.S.C. § 2. The district court declared a mistrial after the jury failed to reach a unanimous verdict. The government then filed a superseding indictment, returned by a grand jury, that was identical except it omitted the reference to 18 U.S.C. § 2 (aiding and abetting), and included instead the allegation that the assault occurred "in furtherance of the conspiracy as alleged in Count 1." I R. doc. 58 at 2. ¹

The second trial in June 1995 resulted in the conviction defendant now appeals. In both trials, defendant's identity was the only contested issue. The government's evidence at both trials focused on establishing defendant's identity, and did not attempt to show that he actually fired the shots supporting the assault.

I

Defendant first contends the district court erred in denying his motion for acquittal at the close of the first trial. He asserts that this issue is appealable following the verdict in his second trial because of the double jeopardy implications. Whether defendant may now appeal the denial of his motion for acquittal in the first trial is a legal question that we review de novo. See United States v. Maher, 919 F.2d 1482, 1485 (10th Cir.1990).

Defendant relies on United States v. Balano, 618 F.2d 624 (10th Cir.), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980), in which we stated that because of double jeopardy concerns a defendant could appeal after a second trial from the denial of a motion for acquittal raised at the first trial. Id. at 632 n. 13. The United States Supreme Court's later decision in Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), effectively overruled this aspect of Balano. Richardson concluded "that the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy." Id. at 325, 104 S.Ct. at 3086. The opinion then "reaffirm[ed] the proposition that a trial court's declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy." Id. at 326, 104 S.Ct. at 3086. Richardson did not examine the sufficiency of the evidence presented in the defendant's first trial because "[r]egardless of the sufficiency of the evidence at [the defendant's] first trial, he has no valid double jeopardy claim to prevent his retrial." Id. See also United States v. Holland, 956 F.2d 990, 992-93 (10th Cir.1992) (mistrial does not terminate jeopardy, and "[r]eindictment ... is equivalent to a retrial under the original indictment"). We therefore hold that defendant may not resurrect his motion for acquittal at his first trial.

II

Next defendant argues that Count 2 of the superseding indictment fails to charge an offense. Defendant did not raise this issue before trial. Although we generally review the sufficiency of an indictment de novo, when a defendant fails to raise a timely challenge, "we will liberally construe an indictment in favor of validity." United States v. Bolton, 68 F.3d 396, 400 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996). To determine the sufficiency of an indictment we look to see if it contains the elements of the offense charged, provides the defendant with fair notice of what he must defend against, and affords protection from double jeopardy. Id.

Defendant raises several related arguments in challenging Count 2 of the indictment. The most important is that 18 U.S.C. § 2113(d) is merely a sentence enhancement which does not create a substantive offense.

In considering this argument we quote not only § 2113(b) and (d), but § 2113(a) ² as well, omitting words not relevant to our analysis:

§ 2113. Bank robbery and incidental crimes

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money ... in the ... possession of, any bank, ...; or

Whoever enters or attempts to enter any bank ... with intent to commit in such bank ... any felony affecting such bank ... or any larceny--

Shall be fined under this title or imprisoned not more than twenty years, or both.

(b) Whoever takes and carries away, with intent to steal or purloin, any property or money ... belonging to, or in the ... possession of any bank ... shall be fined under this title or imprisoned not more than ten years, or both; or Whoever takes and carries away, with intent to steal or purloin, any property or money ... belonging to, or in the ... possession of any bank ... shall be fined not more than $1,000 or imprisoned not more than one year, or both.

....

(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.

18 U.S.C. § 2113(a), (b) and (d). The legal question before us is whether subsection (d) states a separate crime for an assault while "attempting to commit, any offense defined in subsection[ ] ... (b)."

Defendant relies on case law stating or holding that subsection (d) (or its equivalent under a predecessor statute) is only a sentence enhancement provision. There are a number of cases in the Supreme Court and this circuit to the effect that convictions under subsections (a) and (d) merge and only one sentence is permissible. See Green v. United States, 365 U.S. 301, 305-06, 81 S.Ct. 653, 655-56, 5 L.Ed.2d 670 (1961); Prince v. United States, 352 U.S. 322, 329 & n. 11, 77 S.Ct. 403, 407 & n. 11, 1 L.Ed.2d 370 (1957) (by inference); Holiday v. Johnston, 313 U.S. 342, 349, 61 S.Ct. 1015, 1017, 85 L.Ed. 1392 (1941) (predecessor statute); Brown v. United States, 34 F.3d 990, 991 (10th Cir.1994); Peeler v. United States, 163 F.2d 823, 824-25 (10th Cir.1947) (predecessor statute); Holbrook v. Hunter, 149 F.2d 230, 231-32 (10th Cir.1945) (predecessor statute). We are certain the courts would hold to the same effect if there were a conviction of a substantive crime under § 2113(b)--as opposed to a conspiracy to violate that subsection--and a conviction under subsection (d).

The difference in the instant case--which has not been considered previously by an appellate court--is that unlike under subsection (a), under subsection (b) there is no crime of an attempt to take or carry away the bank's property. Yet subsection (d), by its plain language, makes an assault or putting a life in jeopardy by the use of a gun while "attempting to commit any offense defined in subsection[ ] ... (b)" punishable by fine and/or lengthy imprisonment. In the absence of a definitive holding by the Supreme Court or this circuit to the contrary, we believe the plain language of subsection (d) creates a substantive crime in the narrow circumstance before us. See United States v. Ray, 21 F.3d 1134, 1139-40 (D.C.Cir.1994) (noting conviction under § 2113(d) is a separate offense from conviction under § 2113(a)), cert. denied, --- U.S. ----, 116 S.Ct. 246, 133 L.Ed.2d 172 (1995); United States v. McKenzie, 414 F.2d 808, 811 (3d Cir.1969) (same), cert. denied, 396 U.S. 1019, 90 S.Ct. 586, 24 L.Ed.2d 510 (1970).

We also reject defendant's contention that Count 2 of the indictment...