75 F.3d 552 (9th Cir. 1996), 94-10250, United States v. Andrews

Docket Nº:94-10250, 94-10251.
Citation:75 F.3d 552
Party Name:D.A.R. 1177 UNITED STATES of America, Plaintiff-Appellee, v. Paula ANDREWS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ivan ANDREWS, Defendant-Appellant.
Case Date:February 02, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 552

75 F.3d 552 (9th Cir. 1996)

D.A.R. 1177

UNITED STATES of America, Plaintiff-Appellee,

v.

Paula ANDREWS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ivan ANDREWS, Defendant-Appellant.

Nos. 94-10250, 94-10251.

United States Court of Appeals, Ninth Circuit

February 2, 1996

Argued and Submitted March 17, 1995.

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Ronald C. Rachow, Assistant United States Attorney, Reno, Nevada, for plaintiff-appellee.

John C. Lambrose, Las Vegas, Nevada; Fred Hill Atcheson, Reno, Nevada, for defendants-appellants.

Appeals from the United States District Court for the District of Nevada.

Before: GOODWIN, CANBY and T.G. NELSON, Circuit Judges.

CANBY, Circuit Judge:

Ivan Andrews and his sister Paula Andrews appeal their convictions for murder, attempted voluntary manslaughter, and using a firearm in relation to a violent crime, in violation of 18 U.S.C. §§ 1111, 1113, and 924(c)(1). Ivan maintains that there is insufficient evidence to support his convictions for aiding and abetting Paula in the crimes in which she was the principal. Paula contends that she received ineffective assistance of counsel. Both argue that the court improperly applied 18 U.S.C. § 924(c) by treating their underlying substantive convictions as separate predicate offenses. We have jurisdiction

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under 28 U.S.C. § 1291. We reverse Ivan's aiding and abetting convictions and the related section 924(c) convictions. We affirm Paula's convictions and sentences.

BACKGROUND

Early in the morning of August 22, 1993, Ivan shot and killed Stephen Lowery ("Lowery") at close range with a shotgun. Seconds later, Ivan's sister, Paula, fired into the car that had been driven by Lowery. Three people were inside the car; one was killed and two were injured. 1

The events leading to this tragedy began even earlier that morning when Paula, along with Stephanie Collins, Will Bushyhead, and Matt John and James Thomas (two of the victims), went to buy beer and then drove toward a lake. On the way to the lake, the group stopped their truck when they came across a Geo automobile occupied by Lowery, Steve Williams, and Waylon Johns.

Once out of their vehicles, Collins and Waylon Johns began arguing. Lowery intervened and allegedly pushed Collins to the ground. Paula tried to help Collins, but Lowery would not let her pass. Paula then struck Lowery, and Lowery punched Paula in the jaw. The others stood by during the scuffle.

After the conflict, Paula, Collins and Bushyhead jumped in Collins' truck and drove away, leaving Matt John and James Thomas behind. With Collins driving, the three of them headed to Paula's house to wake up her brother, Ivan, and tell him about the incident.

When Ivan heard that Paula and Collins had been in a fight with Lowery, he became angry and grabbed a rifle. Paula and Ivan's father tried to talk the others out of returning to the scene of the altercation, but failed. Paula then asked her father for guns, which he provided both to Paula and Ivan. Meanwhile, Collins and Bushyhead went across the street to Collins' house to get crowbars.

The four of them (Ivan, Paula, Collins, and Bushyhead) got back into Collins' truck and returned to the area of the altercation to "get" Lowery and "trash" the car. Collins drove, Ivan rode in the passenger's seat, and Paula and Bushyhead rode in the back of the truck. Before long, they reencountered the Geo. Both vehicles faced each other and came to a complete stop. With the headlights on, Ivan stepped out of the truck carrying a shotgun, while Collins, Paula, and Bushyhead remained in the truck. Lowery stepped out of the driver's side of the Geo with his hands partially raised. Ivan approached Lowery and shot him. At that point, Waylon Johns jumped out of the Geo and ran. Paula, having stepped out of the truck, then approached the car and--despite seeing something moving in the back of the car that she later admitted was obviously a person--began firing into it. Inside the Geo were James Thomas, Matt John, and Steven Williams. Steven Williams was killed, and Matt John and James Thomas (both of whom were with Paula earlier that morning) were injured. 2

After the shootings, the group of four drove to Paula's and Ivan's house. Paula hid the shotguns near the house under some brush. Sometime later, F.B.I. agents arrived. Paula and Ivan waived their rights, and admitted to participating in the shootings.

A jury found Ivan guilty of second degree murder of Lowery (Count One), aiding and abetting in the second degree murder of Steven Williams (Count Two), aiding and abetting in the attempted voluntary manslaughter of the two injured individuals in the Geo (Counts Three and Four), and using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) for each of the previous four predicate offenses (Counts Nine through Twelve). The jury found Paula guilty of second degree murder for killing Steven Williams (Count Two), aiding and abetting in the second degree murder of

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Lowery (Count One), attempted voluntary manslaughter of the injured individuals in the Geo (Counts Three and Four), and using a firearm in relation to a crime of violence for each of the previous four predicate offenses (Counts Five through Eight).

Ivan challenges all but his murder conviction (Count One) on the ground that there was insufficient evidence to support the conclusion that he aided and abetted in the other crimes. Paula argues that she suffered from ineffective assistance of counsel. Both challenge the application of section 924(c) to all of their acts because they occurred so close together in time.

ANALYSIS

I. IVAN'S AIDING AND ABETTING CONVICTIONS

Ivan argues that the evidence is insufficient to support his convictions for aiding and abetting Paula in the murder of Williams and the attempted voluntary manslaughter of Matt John and James Thomas. We review the sufficiency of the evidence to determine 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. Atkinson, 990 F.2d 501, 502 (9th Cir.1993) (en banc ) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). 3

In order for Ivan to be guilty of aiding and abetting Paula in the murder of Williams and the attempted voluntary manslaughter of Matt John and James Thomas, the evidence must have established: (1) that Ivan specifically intended to facilitate the commission of Paula's crimes, (2) that Ivan "had the requisite intent" for those crimes, (3) that Ivan "assisted or participated" in the crimes, and (4) that Paula committed the crimes. United States v. Gaskins, 849 F.2d 454, 459 (9th Cir.1988). Thus, Ivan must have "knowingly and intentionally aided and abetted" Paula in each essential element of the crimes. United States v. Dinkane, 17 F.3d 1192, 1196 (9th Cir.1994).

Unlike the typical aiding and abetting case, this case offers no evidence that Ivan knowingly and intentionally aided, counselled, commanded, induced, or procured Paula to shoot the people in the car. Cf. Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.7, at 139 (1986) (discussing the "easier" class of cases "in which the liability of the accomplice is based upon the fact that he actually did 'aid,' 'abet,' or 'assist' in the commission of the crime") [hereinafter LaFave & Scott]. Ivan did not give Paula the shotgun, drive her to the scene, encourage her to shoot, or in any other obvious way assist her in shooting the victims in the car. It is thus difficult to see how Ivan could have had the requisite intent. Cf. id. § 6.7, at 138 ("one does not [generally] become an accomplice by refusing to intervene in the commission of a crime ... [and so] courts have experienced considerable difficulty in cases where the defendant was present at the time of the crime and the circumstances of his presence suggest that he might be there pursuant to a prior agreement to give aid if needed").

The government insists, however, that the circumstantial evidence sufficiently supports the jury's inference that Ivan had the requisite intent. While mere presence at the scene is insufficient to support a conviction of aiding and abetting, United States v. Weaver, 594 F.2d 1272, 1275 (9th Cir.1979), the jury can infer intent from circumstantial evidence. United States v. Vaccaro, 816 F.2d 443, 455 (9th Cir.), cert. denied sub nom. Alvis v. United States, 484 U.S. 914, 108 S.Ct. 262, 98 L.Ed.2d 220 and cert. denied, 484 U.S. 928, 108 S.Ct. 295, 98 L.Ed.2d 255 (1987). We have been unable, however, to find in the record circumstantial evidence of the requisite intent on Ivan's part. The evidence shows that Ivan, along with Collins and Bushyhead, accompanied Paula to the

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scene of the crime. There is no evidence that Ivan shared Paula's intent to hurt anyone other than Lowery. The testimony as to what was discussed among Ivan and the others shows that any agreement or understanding between Paula and Ivan involved only "getting" Lowery and "trashing" his car.

Neither are we convinced that a rational jury could infer Ivan's intent under the "natural and probable consequences" doctrine. The jury may infer that Ivan intended the natural and probable consequences of his actions. See United States v. McInnis, 976 F.2d 1226, 1234 (9th Cir.1992). Paula's actions, however, went beyond that scope. Paula did not shoot the victims in the car in the course of getting Lowery; she acted impulsively and on her own. Her actions were thus akin to those of a robber who, as part of...

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