17 F.3d 1192 (9th Cir. 1994), 93-50165, United States v. Dinkane

Docket Nº:93-50165.
Citation:17 F.3d 1192
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Darweshi DINKANE, Defendant-Appellant.
Case Date:March 01, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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17 F.3d 1192 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Darweshi DINKANE, Defendant-Appellant.

No. 93-50165.

United States Court of Appeals, Ninth Circuit

March 1, 1994

Argued and Submitted Dec. 9, 1993.

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[Copyrighted Material Omitted]

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Patricia L. Reber, Los Angeles, California, for the defendant-appellant.

Robert T. Scott, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: HUG, SCHROEDER, and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

Darweshi Dinkane appeals his jury conviction of armed bank robbery in violation of 18 U.S.C. Sec. 2113(a)(d) (1988). During his trial, the jury heard evidence that Dinkane helped plan the robbery and that he drove the getaway car. The government, however, presented no evidence from which a jury could conclude that Dinkane knew the robbery was armed prior to the robbers' exit from the bank. The jury was instructed that the government was not required to show that Dinkane actually knew that a dangerous weapon would be used in the robbery to convict him of aiding and abetting the armed bank robbery. We hold that Dinkane's conviction for armed bank robbery must be reversed because the jury instruction was erroneous, and that retrial on this charge is barred because the government failed to present sufficient evidence to support the conviction. Judgment should be entered on the lesser included offense of unarmed bank robbery.

BACKGROUND

Viewing the evidence in the light most favorable to the government, the facts are as follows: On the afternoon of May 29, 1992, a white Monte Carlo Super Sport and a burgundy-red Stanza drove into a parking lot adjacent to a Security Pacific Bank in Highland Park, California.

Dinkane was in the Stanza. A security guard at the neighboring swap meet saw him get out of the car, walk toward and enter the bank. When he returned, he was carrying some pamphlets. The two drivers and Dinkane spoke in the parking lot for about five minutes before driving away. Broderick Carmichael, who pled guilty to armed bank robbery and testified for the government, stated that it was the responsibility of the person who went into the bank to locate the security cameras so that they could easily be obscured during the robbery. 1

About fifteen minutes after driving away, the Stanza pulled up in front of the Security Pacific Bank. Three men got out of the car and headed toward the bank. Two went to the back entrance and one went to the front. They had guns, shower caps, a trash bag, and spray paint to cover security camera lenses. As they entered the bank, they pulled out their guns and put on the shower caps. They then entered the bank and announced that they were taking over.

During the robbery, Dinkane remained outside the bank, behind the wheel of the

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Stanza. After five to ten minutes, the robbers ran out of the bank with their guns drawn, and returned to the Stanza. One man carried a bag. As they got into the car, bait money in the bag exploded, filling the Stanza with tear gas and red dye. Dinkane, directed by Carmichael, quickly drove away from the bank.

The getaway car was followed by a man who had been watching the car while it was parked in front of the bank. After a short drive, the Stanza stopped in a parking lot, where one robber jumped into a white car and drove off. The other three occupants of the Stanza, including Dinkane, fled on foot. They left two guns near the Stanza, and police later found a can of spray paint and Security Pacific Bank pamphlets inside the abandoned car. Fingerprint analysis revealed Dinkane's fingerprints on the pamphlets.

Dinkane ran up to a car stopped at a traffic light and asked for a ride to Los Angeles. The driver, Deano Campa, noticed Carmichael and another man, Roderick Strong, approaching the other side of his car. The three men were all sweating heavily, and two had removed their shirts. Campa was not threatened by the men and saw no weapons during this encounter with the three men. Campa drove off and sought out the police to report what he had seen. He agreed to help the police search for the robbers.

The three men, Dinkane, Carmichael, and Strong, fled into a nearby park. Shortly thereafter, Campa and the police spotted them hiding in the bushes. All three were arrested. The police found a loaded handgun partly hidden in the leaves near their hiding place.

Dinkane was charged with one count of armed bank robbery, in violation of 18 U.S.C. Sec. 2113(a)(d). The government's theory was that Dinkane, although concededly not in the bank at the time of the robbery, aided and abetted the robbery by driving the getaway car.

At the close of the jury trial, the court gave an instruction to the jury on the required level of knowledge for aiding and abetting armed bank robbery. The instruction, which the government now concedes was incorrect, stated in part: "The government is not required to show that the defendant actually knew that a dangerous weapon would be used."

Dinkane was convicted of armed bank robbery on October 14, 1992. He was sentenced on February 18, 1993 and filed a timely notice of appeal, claiming that his conviction must be reversed (1) because of the erroneous jury instruction; (2) because the evidence was insufficient to support a conviction for either armed or unarmed bank robbery; and (3) because the trial court refused to instruct the jury on the lesser included offense of accessory after the fact. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1988).

DISCUSSION

I. The Erroneous Jury Instruction

Dinkane's conviction for armed bank robbery must be reversed because, as the government has conceded, the court, over Dinkane's objection, improperly instructed the jury on the requisite knowledge for conviction as an aider and abettor. In order to convict a defendant for armed bank robbery under an aiding and abetting theory, this circuit requires the government to show beyond a reasonable doubt both that the defendant knew that the principal had and intended to use a dangerous weapon during the robbery, and that the defendant intended to aid in that endeavor. United States v. Jones, 592 F.2d 1038, 1042 (9th Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179, 60 L.Ed.2d 1056 (1979); United States v. Short, 493 F.2d 1170, 1172 (9th Cir.), modified, 500 F.2d 676, cert. denied, 419 U.S. 1000, 95 S.Ct. 317, 42 L.Ed.2d 275 (1974). Dinkane's jury was not so instructed; instead the knowledge requirement was virtually eliminated by the proffered instruction. Improper instruction of the jury on this issue constitutes reversible error. Short, 493 F.2d at 1172.

II. Sufficiency of the Evidence

Dinkane asserts that he was erroneously convicted of armed bank robbery because the

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evidence was insufficient to establish that he knew prior to the robbery that a robbery was planned and that his companions would use weapons. He also argues that the evidence was insufficient to support an unarmed bank robbery conviction, again because he had no knowledge of the robbery before it occurred.

In considering a challenge to the sufficiency of the evidence, this court considers " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Bautista-Avila, 6 F.3d 1360, 1362 (9th Cir.1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Circumstantial evidence "can be used to prove any fact," although "mere suspicion or speculation does not rise to the level of sufficient evidence." United States v. Stauffer, 922 F.2d 508, 514 (9th Cir.1990) (quotations omitted). "The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict." United States v. Mares, 940 F.2d 455, 458 (9th Cir.1991) (citing United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982)).

A. Armed Bank Robbery

Because the erroneous jury instruction requires reversal of the armed bank robbery conviction, our inquiry regarding that charge concerns only whether the evidence supporting the conviction is sufficient to allow the government to retry the armed robbery charge on remand. See Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978) (defendant cannot be retried when reviewing court has determined that the evidence was insufficient to sustain the jury's verdict). We conclude that the evidence was insufficient to sustain a conviction and that retrial is therefore prohibited.

One who aids and abets a bank robbery can be convicted as a principal. Short, 493 F.2d at 1172. To be convicted as an aider and abettor, the defendant must have knowingly and intentionally aided and abetted the principals in each essential element of the crime. Id. This assistance must be rendered while the crime is still in progress. See United States v. Barlow, 470 F.2d 1245, 1252-53 (D.C.Cir.1972) (if assistance is rendered while the felony is in progress, individual is guilty as a principal; if felony is no longer in progress, then individual can only be guilty as an accessory after the fact).

Armed bank robbery under 18 U.S.C. Sec. 2113(d) is an aggravated form of unarmed bank robbery, under Sec. 2113(a). United States v. Burnette, 698 F.2d 1038, 1044 n. 9 (9th Cir.) (citing United States v. Faleafine, 492 F.2d 18, 23-25 (9th Cir.1974)), cert. denied, 461 U.S. 936, 103 S.Ct. 2106, 77 L.Ed.2d 312 (1983). Conviction under Sec. 2113(d) therefore requires that the defendant have committed a violation of Sec. 2113(a) 2, and then, in addition, have...

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