65 F.3d 231 (1st Cir. 1995), 94-1958, United States v. Spinney

Docket Nº:94-1958.
Citation:65 F.3d 231
Party Name:UNITED STATES of America, Appellee, v. Jeffrey W. SPINNEY, Defendant, Appellant.
Case Date:September 19, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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65 F.3d 231 (1st Cir. 1995)

UNITED STATES of America, Appellee,


Jeffrey W. SPINNEY, Defendant, Appellant.

No. 94-1958.

United States Court of Appeals, First Circuit

September 19, 1995

Heard Aug. 4, 1995.

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Diana L. Maldonado, Federal Defender Office, Boston, MA, for appellant.

Timothy Q. Feeley, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief, for appellee.

Before SELYA and BOUDIN, Circuit Judges, and LISI, [*] District Judge.

SELYA, Circuit Judge.

Defendant-appellant Jeffrey W. Spinney challenges his convictions for aiding and abetting an armed bank robbery (count 2)

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and aiding and abetting the use of a firearm during and in relation to a crime of violence (count 3). 1 In our view, the two crimes, despite superficial similarities, require the application of dissimilar legal standards. Because the evidence amassed by the government falls between these stools, we affirm the first conviction but reverse the second.


We limn the pertinent facts in the light most favorable to the government, see United States v. Ortiz, 966 F.2d 707, 710-11 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993), paying particular heed to those details that arguably reflect what appellant knew and when he knew it.

On August 20, 1991, at around 3:00 p.m., Gerald Mohan, a conscientious FBI agent, noticed appellant (a person previously known to him) sitting on the steps of the Federal Building in Lowell, Massachusetts. Mohan decided to mount an impromptu surveillance. As he was positioning his vehicle, a blue Oldsmobile arrived at the scene. After appellant entered the Oldsmobile, it made several quick turns and then pulled to the curb. The driver (subsequently identified as Paul Kirvan) moved into the front passenger seat and appellant took the wheel. Kirvan and appellant proceeded to criss-cross the streets around the Lowell Institution for Savings (the Bank). Mohan testified that the pair's driving pattern appeared to be part of a process of careful scrutiny.

Roughly fifteen minutes after beginning surveillance, Mohan followed the Oldsmobile to Academy Drive. There he observed a classic getaway "switch site" on a dead end approximately 0.3 miles from the Bank. Appellant and Kirvan next returned to the vicinity of the Federal Building. On Fayette Street, Kirvan alighted from the Oldsmobile (which he owned), entered a parked Chevrolet Monte Carlo (later ascertained to have been stolen some distance away), and began driving toward the Bank. Appellant followed him in the Oldsmobile, and Mohan followed both of them, caravan-style, in his own vehicle. When the two drivers veered in separate directions, Mohan lost sight of both cars. He circled in the general vicinity and, some four minutes later, glimpsed the Chevrolet at a standstill in the Bank's parking lot.

Mohan made a U-turn and headed back to the Bank. His efforts were unavailing; at that precise moment, the Chevrolet accelerated rapidly out of the parking lot and passed him (going in the opposite direction). Kirvan was alone in the car. Mohan made yet another U-turn and unsuccessfully gave chase.

At approximately 3:25 p.m., ostensibly during the brief interval in which Mohan lost track of his quarry, a masked Kirvan entered the Bank, instructed those present not to move, jumped over the tellers' counter, stuffed the contents of several cash drawers into a garbage bag, leapt back over the counter, and fled. Although Kirvan brandished a handgun at the height of the robbery, a teller testified that the weapon was not visible when he entered the Bank.

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Other percipient witnesses reported that, mid-afternoon of the same day, they saw a Chevrolet Monte Carlo speed down Academy Drive. Two men, one holding a bag, emerged from the vehicle, crossed through two gates, and drove away in a waiting blue car. The witnesses were unable to identify either suspect positively, although one of the men "looked like" appellant. The Lowell police recovered the Chevrolet that afternoon. They found Kirvan's blue Oldsmobile the next morning, abandoned not far from the switch site.

The government established that appellant and Kirvan had been close friends for many years. Telephone toll records reflected seventy-three calls between the men's residences in the nineteen days preceding the robbery, including eleven calls on August 19.

A federal grand jury indicted appellant on counts of conspiracy to commit bank robbery, see 18 U.S.C. Sec. 371 (which count was later dismissed), aiding and abetting an armed bank robbery, see 18 U.S.C. Sec. 2113(d), and aiding and abetting the use of a firearm during and in relation to a crime of violence, see 18 U.S.C. Sec. 924(c). A jury trial eventuated. After appellant unsuccessfully moved for judgment of acquittal, the jurors returned a guilty verdict on each remaining count. 2 The court sentenced appellant to serve 262 months in prison for armed robbery and imposed a mandatory sixty-month consecutive sentence in respect to the firearms charge. This appeal followed.


Appellant challenges the sufficiency of the evidence supporting his conviction on count 2. Our task is straightforward. We must ascertain whether, "after assaying all the evidence in the light most amiable to the government, and taking all reasonable inferences in its favor, a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime." United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.1994). In performing this task, we do not pass upon the credibility of witnesses, see id., nor do we demand that the government disprove every hypothesis consistent with the defendant's innocence, see United States v. Echeverri, 982 F.2d 675, 677 (1st Cir.1993).

The jury reached its verdict in this case on the basis of circumstantial evidence. Reliance on indirect, as opposed to direct, evidence in a criminal case is both permissible and commonplace. See O'Brien, 14 F.3d at 706 (observing that "the criminal law does not place a special premium on direct evidence"). In making such judgments, "juries are not required to examine the evidence in isolation, for 'individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it.' " Ortiz, 966 F.2d at 711 (quoting Bourjaily v. United States, 483 U.S. 171, 179-80, 107 S.Ct. 2775, 2780-81, 97 L.Ed.2d 144 (1987)). Thus, when a jury draws inferences from circumstantial evidence, a reviewing court should refrain from second-guessing the ensuing conclusions as long as (1) the inferences derive support from a plausible rendition of the record, and (2) the conclusions flow rationally from those inferences. See id.

We add a cautionary note. Despite the deference that characterizes appellate review of jury verdicts, juries do not have carte blanche. The appellate function, properly understood, requires the reviewing court to take a hard look at the record and to reject those evidentiary interpretations and illations that are unreasonable, insupportable, or overly speculative. See, e.g., United States v. Valerio, 48 F.3d 58, 64 (1st Cir.1995); United States v. Loder, 23 F.3d 586, 589-92 (1st Cir.1994). This function is especially important in criminal cases, given the prosecution's obligation to prove every element of an offense beyond a reasonable doubt.

In this instance, the jury convicted the appellant on count 2 as an aider and abettor. See 18 U.S.C. Sec. 2(a). Under this theory of accomplice liability, Spinney would be guilty only if the government proved (1)

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that Kirvan (the principal) committed the substantive offense (armed bank robbery), and (2) that Spinney (the accomplice) became associated with the endeavor and took part in it, intending to ensure its success. See Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769-70, 93 L.Ed. 919 (1949); Ortiz, 966 F.2d at 711 n. 1. Because the jury heard plethoric evidence from which it rationally could conclude that Kirvan committed armed bank robbery, we direct our analysis to the second of these two elements.

The central requirement of the second element is "a showing that the defendant consciously shared the principal's knowledge of the underlying criminal act, and intended to help the principal." United States v. Taylor, 54 F.3d 967, 975 (1st Cir.1995). In a prosecution for armed bank robbery, this shared knowledge requirement is binary; it extends both to awareness of the robbery and to comprehension that a weapon would likely be used. See United States v. Jones, 678 F.2d 102, 106 (9th Cir.1982) (explaining that, to convict under Sec. 2113(d), the prosecution must "show that the defendant aided and abetted the principal both in the act of bank robbery and in the principal's use of 'a dangerous weapon or...

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