U.S. v. Ferreira

• Decision Date: 22 July 1980
• Docket Number: No. 79-1487,79-1487
• Citation: 625 F.2d 1030
• Parties: UNITED STATES of America, Appellee, v. William Lloyd FERREIRA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1030

625 F.2d 1030

UNITED STATES of America, Appellee, v. William Lloyd FERREIRA, Defendant, Appellant.

No. 79-1487.

United States Court of Appeals First Circuit.

Argued April 10, 1980.

Decided July 22, 1980.

Harry C. Mezer, Boston, Mass., with whom John Wall, Boston, Mass., by appointment of the Court, and Cullen & Wall, Boston, Mass., were on brief, for appellant.

Robert B. Collings, First Asst. U. S. Atty., Chief, Criminal Division, Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and LOUGHLIN, ^* District Judge.

LOUGHLIN, District Judge.

The instant action is an appeal from a conviction in the United States District Court for the District of Massachusetts for armed robbery, in violation of 18 U.S.C. § 2113. The case was heard by Judge Robert E. Keeton upon remand of the case from this Court's reversal of the judgment of conviction. See United States v. Hickey, 596 F.2d 1082 (1st Cir. 1979), cert. denied 444 U.S. 853, 100 S.Ct. 107, 62 L.Ed.2d 70. Two issues are presented to this Court on appeal: 1. whether the District Court erred in instructing the jury, over defense counsel's objection, concerning the lesser included offense of unarmed bank robbery and 2. whether the District Court erred in denying the defendant's motion to dismiss on the grounds of alleged failure to provide Jencks Act material and exculpatory evidence.

I. Defendant-appellant contends that the Court erred in instructing the jury concerning the lesser included offense of unarmed robbery in that the element distinguishing the two offenses, that is the use a weapon or the knowledge that a weapon would be used, was not in dispute. Appellant states that in the instant case, there was no impeachment or contradiction of the testimony that a weapon was used. The appellee contends that there was a disputed factual element which the jury was required to resolve which was not required for a conviction of the lesser-included offense. It is the appellee's contention that the jury could have rationally determined that the Government proved beyond a reasonable doubt that the defendant-appellant was one of the robbers, but failed to prove beyond a reasonable doubt either that he knew that a gun would be used or that it was likely that a gun would be used or that the gun was in fact a dangerous weapon.

The basic principles controlling whether or not a lesser-included offense charge should be given in a particular case were outlined by the Supreme Court in Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965):

Rule 31(c) of the Federal Rules of Criminal Procedure provides, in relevant part, that the "defendant may be found guilty of an offense necessarily included in the offense charged". Thus, "(i)n a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifie(s) it . . . (is) entitled to an instruction which would permit a finding of guilt of the lesser offense." supra, 349, 85 S.Ct. 1009.

This court has stated that there are two prerequisites necessary for the giving of a lesser-included offense instructions: one, that a factual dispute exists and, two, that a finding contrary to the only evidence on the issue would not be irrational. Driscoll v. United States, 356 F.2d 324, 327 (1st Cir. 1966). The questions before the Court today then are: was there a disputed factual element which the jury was required to resolve which was not required for conviction of the lesser-included offense. And, could the jury rationally have reached a finding contrary to the only evidence on the disputed issue of fact? It is clear that if on the facts of this case there are disputed issues of fact which would enable the jury rationally to find that although all the elements of the greater offense, 18 U.S.C. § 2113(d), armed bank robbery, have not been proved, but all the elements of the lesser offense of 18 U.S.C. § 2113(a), of unarmed bank robbery have been proved then a lesser-included offense instruction was proper. See Sansone v. United States 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965). This Court holds that a disputed factual element existed based on the evidence; a finding by the jury that defendant Ferreira either did not know that a gun would be used or that it was likely that a gun would be used would not be irrational. For the defendant to be found guilty of armed as opposed to unarmed robbery, it must be shown that he knew that the sawed-off shotgun would be used or that he at least had knowledge of the likelihood of its use. See United States v. Sanborn, 563 F.2d 488, 491 (1st Cir. 1977).

In the instant case, witnesses to the robbery testified that:

two men entered the Hancock Bank wearing ski masks. One of them was wearing high-topped white sneakers and the other a dark jacket; one carried a sawed-off shotgun; the other jumped over the tellers' counter and stuffed money from the drawers into a blue hockey-type bag with white lettering. One of the men called out, "have a Merry Christmas" as they left the bank; they escaped in a yellow car with Massachusetts registration number 966-668.

United States v. Hickey, 596 F.2d 1082, 1084 (1st Cir. 1979). The Government's evidence proved or tended to prove that while three persons participated in the robbery only two entered the bank while the third person remained in the car. There was undisputed evidence that only one weapon was used and that this weapon was carried by the robber who remained in the lobby area while the second robber jumped over the counter and took money from the drawers. Evidence was presented from which the jury could find that defendant Ferreira was the person who vaulted the counter unarmed while Robert Hickey held the shotgun and an accomplice named Lynch drove the getaway car. The defendant's liability for conviction of the greater offense, then, was based on his conviction in the acts of Hickey. In order for the jury to convict appellant of the greater offense it had to find that the appellant was aware that one of his accomplices would be likely to use a dangerous weapon.

The appellant who was here convicted of the greater offense, is in the unusual position for a defendant of complaining of the giving of a lesser-included offense instruction. The evidence that appellant knew that a dangerous weapon would be used was entirely circumstantial; the jury was presented with two competing rational inferences which could be drawn from the events that occurred on the bank floor. The district court, therefore, had to instruct the jury that in order to convict on 18 U.S.C. § 2113(d), they must be satisfied that the government proves beyond a reasonable doubt that the defendant knew that his accomplice was going to use or was likely to use a dangerous weapon. Once this was given, the charge as to the lesser included offense was necessary. A similar position was adopted by the defendant Methvin in United States v. Methvin, 441 F.2d 584 (5th Cir. 1971). In Methvin, however, the defendant was found not guilty on the 18 U.S.C. § 2113(d) charge, but was convicted of the 18 U.S.C. § 2113(a) charge, that is the lesser included offense of bank robbery without the use of a dangerous weapon. As in the instant case, there was no factual dispute that Methvin's partner utilized a pistol to rob the bank. The Court stated in Methvin:

While it may be true, then, that there existed no factual dispute that McEwen took the money at gunpoint, it is clear that Methvin's knowledge of that fact was in dispute. Consequently, the jury could rationally have determined that while Methvin, who waited in the car while McEwen stepped into the bank, did participate in the robbery, his intent to participate was formed and the offense completed without his knowing that a pistol would be used in the process. In light of this disputed fact we believe the judge was warranted in giving the lesser-included offense instruction. Accordingly, we affirm. supra, 586.

We find in the instant case that as in Methvin, appellant's knowledge of the use of a dangerous weapon by Hickey was in dispute and that the jury on the basis of the evidence could rationally have determined that the defendant-appellant did not know that the shotgun would be used or did not have knowledge of the likelihood of its use. The District Court did...