U.S. v. Wardy, s. 147

• Decision Date: 20 November 1985
• Docket Number: 64,Nos. 147,D,s. 147
• Parties: UNITED STATES of America, Appellee, v. Richard Victor WARDY, Harvey Foulks, Defendants-Appellants. ockets 85-1105, 85-1110.
• Court: U.S. Court of Appeals — Second Circuit

Page 101

777 F.2d 101

UNITED STATES of America, Appellee, v. Richard Victor WARDY, Harvey Foulks, Defendants-Appellants.

Nos. 147, 64, Dockets 85-1105, 85-1110.

United States Court of Appeals, Second Circuit.

Argued Sept. 4, 1985.

Decided Nov. 20, 1985.

Nanette Dembitz, New York City, for defendant-appellant Richard Victor wardy.

Gary E. Divis, New York City (David H. Gendelman, New York City, of counsel), for defendant-appellant Harvey Foulks.

Anne T. Vitale, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Stuart E. Abrams, Asst. U.S. Atty., of counsel), for appellee.

Before FRIENDLY, PIERCE and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Defendants appeal from judgments of conviction entered after a jury trial in the United States District Court for the Southern District of New York, Robert J. Ward, Judge. Both defendants appeal from their convictions for conspiracy to retaliate against a witness. Defendant Wardy also appeals from his conviction for aiding and abetting retaliation against a government witness, and for aiding and abetting armed bank robbery. We reject all of their claims except their challenge to the sufficiency of the evidence to support their convictions for conspiracy to retaliate against a witness. Finding insufficient evidence of a conspiratorial agreement, we reverse on that count, but affirm as to the other convictions.

BACKGROUND

Richard Wardy and Harvey Foulks were close friends. In early June 1984, while visiting Foulks and Foulks's girlfriend, Sally Denise Fauntleroy, at their apartment, Wardy told Foulks he intended to rob Barclays Bank, that the robbery was an inside job, and that it involved a payroll. Foulks apparently agreed to help with the scheme.

Another friend of Wardy's, Harold Keith Burton, had a half-brother, James Taylor, who worked as a security guard at Barclays Bank on Water Street in Manhattan. Taylor was familiar with Barclays' practice of transferring cash for payroll checks from the Water Street office to other branches on the 15th and at the end of each month. He knew that on these days a teller carried a bag containing thousands of dollars in cash through the vestibule of the bank into a waiting taxi.

Wardy reviewed the preparations for the robbery with three men on the evening of June 14, 1984 at a meeting that took place in Burton's Cadillac. The government contended at trial that one of the men was Burton.

At approximately 3:00 a.m. on June 15, 1984, the day of the robbery, Wardy hailed a gypsy cab. A short time later, Wardy pulled out his .45 caliber automatic pistol, and told the driver that he needed to borrow the cab for five hours. When the driver protested, Wardy told him to write the name "Peaches" and a phone number on a piece of paper. Peaches is the nickname for Wardy's friend Lydia Romero. He also told the cab driver to write his own name and address on the same piece of paper. The driver tore the piece of paper in half and gave Wardy the portion with the driver's name and address, keeping for himself Peaches' name and phone number. Wardy then ordered the driver out of the cab and drove off.

Shortly before 9:30 a.m. on June 15, two men drove the stolen gypsy cab to the vicinity of Barclays Bank. After parking the cab, they entered the bank and sat in the vestibule, pretending to deliver coffee to a bank employee. While they were waiting, an unarmed bank security guard, assigned to escort a teller carrying approximately $46,000 of payroll money to another branch of the bank, walked through the vestibule to hail a cab. Once he had done so, he returned to the vestibule and met the teller in the lobby. He then escorted her through the lobby to the vestibule.

As the guard started to open the outer door leading from the vestibule to the street, one of the robbers struck him on the head with a gun, spun the guard around, struck him again with the gun, and then ordered him to get behind the door. At that point, the guard noticed a black revolver in the robber's hand. The man ordered the guard to put his hands up and then struck him again on the head. The other robber grabbed the money bag from the teller, and both men fled from the bank to the gypsy cab.

By 10:00 a.m. they had abandoned the cab on the FDR Drive. Police officers located the cab shortly thereafter; two fingerprints from the inside front window were later identified as Wardy's.

Sometime later that day, Wardy, in the company of another man, arrived at Romero's apartment carrying a black .38 revolver and a brown paper bag containing money The name and phone number Wardy had given the cab driver led police to Romero. The information she had provided about Wardy's role in the robbery led to his arrest on June 28. At the time of his arrest Wardy was standing near his car, in which the police found an unloaded black .38 revolver and a slip of paper bearing the cab driver's name and address.

in $20 and $50 denominations. While Wardy was there, the driver of the gypsy cab called; Wardy told him that his cab was on the FDR Drive. Foulks also stopped by the apartment while Wardy was still there.

After his arrest, Wardy was remanded in lieu of bail, and remained in custody throughout his trial, conviction, and sentence. While in custody, he phoned Foulks's residence. Although Foulks was not at home, Wardy told Foulks's girlfriend, Fauntleroy, that "Peaches squealed" on him and that he "wanted Harvey to take care of Peaches". In September 1984 Wardy mailed Foulks a copy of an affidavit filed in support of a search warrant for Wardy's car. The affidavit identified Romero as a source of information against Wardy. Wardy attached a note to the affidavit stating something to the effect of "see how your girl is." Foulks showed the papers to two of his friends, stating to one that the papers proved that Romero was responsible for putting Wardy in jail.

On the night of September 22, 1984, Romero was working as a dancer at a nightclub. A coworker, Shirlee Robinson, saw Romero in the ladies room and told her that Foulks had said to tell Romero that he had proof that she had put his friend in jail and that he wanted to talk to her. Romero told Robinson that she didn't have anything to say to Foulks.

Romero then left the ladies room and began to dance on stage. Foulks climbed on the stage and began hitting Romero, saying "your ass is mine", and telling her that "everybody in [her] family was going to die [she] and [her] kids" because she had "squealed" on Wardy and put him in jail. Patrons and other employees eventually separated Foulks and Romero, and took Foulks outside. Romero later went to the hospital and was released after treatment for her injuries.

A grand jury issued a seven-count indictment against Wardy, Foulks, and their codefendants Burton and Taylor. Count 1 charged all four with conspiring to participate in the robbery in violation of 18 U.S.C. Sec. 371; count 2 charged Wardy, Burton, and Taylor with bank robbery in violation of 18 U.S.C. Sec. 2113(a); count 3 charged Wardy and Burton with assaulting persons and placing their lives in jeopardy, by use of a dangerous weapon or device, during the course of a robbery, in violation of 18 U.S.C. Sec. 2113(d); count 4 charged Foulks with receiving the proceeds of the bank robbery in violation of 18 U.S.C. Sec. 2113(c); count 5 charged Wardy and Foulks with conspiring to retaliate against a witness, in violation of 18 U.S.C. Sec. 371; and count 6 charged Wardy and Foulks with retaliating against a witness, in violation of 18 U.S.C. Sec. 1513. Only three of these counts, counts 3, 5, and 6, are relevant on this appeal. Following trial, the jury returned guilty verdicts against Wardy and Foulks on all counts charged. Judge Ward declared a mistrial as to Burton and Taylor about whom the jury was unable to reach a verdict.

Judge Ward sentenced Wardy to concurrent terms of imprisonment of 5 years and 20 years on counts 1 and 3, respectively; additionally, he sentenced Wardy to consecutive terms of 5 years and 10 years on counts 5 and 6, respectively. The sentences on counts 5 and 6 were consecutive to the sentences on counts 1 and 3. Thus, Wardy received a total of 35 years' imprisonment.

Judge Ward sentenced Foulks to concurrent 5 and 10 year terms on counts 1 and 4, respectively, and 5 and 10 year terms on counts 5 and 6, respectively, consecutive to each other and to the sentences imposed on counts 1 and 4. Thus, Foulks received a total of 25 years' imprisonment.

Wardy appeals from his conviction on count 3 on several grounds; he also appeals from his conviction on count 6 on the ground of insufficient evidence to support the jury's verdict. Both defendants challenge the sufficiency of the evidence to support their convictions on count 5.

DISCUSSION

A. The Armed Bank Robbery Conviction.

Wardy raises several arguments to support his claim that his conviction on count 3 of armed bank robbery under Sec. 2113(d) is invalid. First, he argues that the "use" of the revolver during the bank robbery does not satisfy Sec. 2113(d)'s requirement of "use of a dangerous weapon".

Section 2113(d) provides that whoever while committing a bank robbery "assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both." 18 U.S.C. Sec. 2113(d). Wardy argues that the robber who brought the gun into the bank did not point it, brandish it, or display it threateningly, but merely carried the gun visibly, and reasons that Sec. 2113(d) should not be construed to encompass such "mere carriage".

This distinction has merit. For example, if the police apprehended a bank robber during the course of a robbery and subsequently discovered that he had carried a gun concealed in his belt or in a shoulder holster, a conviction under Sec. 2113(d) would probably be unwarranted. But that is...