United States v. Short, 73-2748.

• Decision Date: 18 March 1974
• Docket Number: No. 73-2748.,73-2748.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Dean SHORT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

493 F.2d 1170 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Larry Dean SHORT, Defendant-Appellant.

No. 73-2748.

United States Court of Appeals, Ninth Circuit.

March 18, 1974.

Steven M. Kipperman (argued) Kipperman, Shawn & Keker, San Francisco, Cal., for defendant-appellant.

Brian B. Denton, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before KOELSCH and DUNIWAY, Circuit Judges, and GRAY,^* District Judge.

OPINION

DUNIWAY, Circuit Judge:

Short was convicted under both counts of an indictment and sentenced to three years on each count. The sentences are concurrent. Count One charged bank robbery, under 18 U.S.C. § 2113(a); Count Two charged that, in committing the offense, Short assaulted or put in jeopardy the life of a teller by the use of a dangerous weapon, a handgun, 18 U.S.C. § 2113(d).

Under our decision in United States v. Faleafine, 9 Cir., 1974, in bane, 492 F.2d 18 (1974), the two counts charged but one offense, the Count One offense, aggravated by the conduct charged in Count Two. See the cases cited in Faleafine, supra, and United States v. Stroud, 9 Cir., 1973, 474 F.2d 737, 739. The sentence under Count One is void, and must be vacated.

Short makes but one claim of error that has merit.

Viewed in the light most favorable to the government the facts are as follows: A federally insured bank in San Francisco was robbed by one John Seymour who used a gun during the robbery. Short drove Seymour to the vicinity of the bank and parked his car a block from the bank. During the robbery the hood of Short's car was up and he was apparently repairing it. While he was waiting for Seymour, Short met one Gloria Qualls, who became the key government witness, and offered her a ride. After the robbery Seymour returned to the car, whereupon Short closed the hood and drove off with Seymour and Qualls in the car.

Short dropped Seymour off at Seymour's residence and shortly thereafter Short and Qualls returned to the residence. After a short stay at the house during which Short and Seymour conferred privately with a third person, all four persons in the house went to a bar. Later, Short and Qualls left the bar and drove to a parking lot where they waited until the time that Short was to meet with Seymour again. At the parking lot Short complained to Qualls that he knew that he had not gotten his fair share of the money that was taken. There was no direct evidence that Short knew that Seymour had a gun or that Seymour intended to use it.

Although Short was charged as a principal, the evidence showed that he was an aider and abettor, and the case was tried and the jury was instructed on that theory.

After a period of deliberation the jury returned to the courtroom and asked the judge if "the defendant had to know Seymour had a gun to be guilty on the second indictment." The judge responded in pertinent part:

"Now, in light of the instructions and the government\'s case and status of the evidence here that Short\'s participation, if any, was as an aider and abettor, I would further instruct you that it is not necessary that Mr. Short had to have known the exact or precise details by which Mr. Seymour was going to accomplish the bank robbery or what methods he was going to use. What is necessary is that Mr. Short knew that a bank robbery was going to be attempted or accomplished by Mr. Seymour and then that Mr. Short did some affirmative act to attempt to help, attempt to carry that conduct out with the intent that the bank robbery should be successfully accomplished and so, therefore, whatever occurred in the bank, whether or not he knew that Mr. Seymour was armed or what he was armed with or not, is not necessary, not a necessary element to the crime, if in fact Seymour did use, commit the bank robbery by the use of a weapon which would put it in the classification of being an armed bank robbery and so it is essential that you bear in mind that Seymour had to have done these acts." (emphasis added)

This instruction is erroneous because it fails to require the jury to find an essential element of the crime of armed bank robbery as a prerequisite to conviction. It is the aider and abettor's state of mind, rather than the state of mind of the principal, that determines the former's liability. R. Perkins, Perkins on Criminal Law 662 (2 ed. 1969); 1 R. Anderson, Wharton's Criminal Law and Procedure 247 (1957). It is true that the prosecution is not required to prove that the aider and abettor was aware of all of the details of the planned offense, Weedin v. United States, 9 Cir., 1967, 380 F.2d 657, 660. It is also true that the aider and abettor may be liable for the natural and probable consequences of the crime that he aided and abetted.

However, here Congress has specifically provided for an increased penalty for aggravated forms of bank robbery. An essential element of armed bank robbery as charged here is that the principal was armed and used the weapon to jeopardize the life of the teller. It is this conduct that...