U.S. v. Spedalieri

• Citation: 910 F.2d 707
• Decision Date: 07 August 1990
• Docket Number: No. 89-2181,89-2181
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro V. SPEDALIERI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 707

910 F.2d 707

UNITED STATES of America, Plaintiff-Appellee, v. Pedro V. SPEDALIERI, Defendant-Appellant.

No. 89-2181.

United States Court of Appeals, Tenth Circuit.

Aug. 7, 1990.

William D. Fry, Asst. Federal Defender, Las Cruces, N.M., for defendant-appellant.

Robert J. Gorence, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before LOGAN, BALDOCK and BRORBY, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant-appellant, Pedro V. Spedalieri, was convicted of armed robbery in violation of 18 U.S.C. Sec. 2113(a) and (d), and sentenced to fifty-seven months imprisonment. On appeal, Spedalieri argues that the district court erred in 1) denying his motion for a judgment of acquittal on armed robbery (Sec. 2113(d)) because an actual bomb was not involved, 2) misapprehending its authority to depart downward from the Sentencing Guidelines, and 3) not granting a two-level downward adjustment for acceptance of responsibility. We reject Spedalieri's contentions and affirm.

I.

Viewing the evidence and its inferences in the light most favorable to the government, we summarize the facts. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979). On April 8, 1988, a red and white Chevrolet Impala approached a drive-up window at the Bank of the Rio Grande in Las Cruces, New Mexico. The driver, later identified as the defendant, passed two handwritten notes to the teller, Irma Jo Schunior. She testified:

Okay, the first note I read was very--it was a small one, and it said, this is a robbery and I want all your money. The second note was a little larger, and it also said that this is a robbery and I want all your money, and that I had ten minutes to open the side-door [of the drive-up facility] so that he can get in to take the money and that he had a bomb.

. . . . .

Well, after I read the notes, I was terrified. I couldn't move for a minute or two.

Rec. vol. II at 61. Sent along with the two notes was Spedalieri's New Mexico driver's license. Schunior then noticed a device on the front seat of the Impala. Spedalieri picked the device up and waved it at her. She described the device as follows:

Okay, it was a brown tube about ten to twelve inches tall. It was brown with--somewhat a grey lid on top. It all looked like electrical tape to me.

. . . . .

It was just a big round tube, brown, all the way. It was all brown except for the top.

Id. at 65. Schunior believed the object to be a real bomb and felt threatened by it. Id. at 71. Schunior then pulled the "bait money" in her money box which activates the silent alarm. She placed some cash in a canvas bag and sent the bag to Spedalieri via the mechanical bank drawer. Upon receipt, Spedalieri asked for his notes back. Schunior complied, but kept Spedalieri's driver's license.

Two weeks later, Spedalieri crossed the border from Mexico into the United States. Because a warrant had been issued for his arrest, the license number of Spedalieri's vehicle was entered in the NCIC (National Crime Information Center) database. When Spedalieri entered the port of entry, his car license activated a Customs alarm. Upon hearing the alarm, Spedalieri threw his arms into the air and was arrested. Spedalieri had changed the color of his vehicle and had bleached his hair. His pockets contained numerous dog-racing tickets; however, none of the $19,001 taken in the robbery was recovered.

Spedalieri has a history of mental illness, but was found competent to stand trial after treatment at Springfield, Missouri. He functions just above the level of a retarded person, with an I.Q. of 75. Rec. vol. II at 165-66.

At the close of the government's evidence, Spedalieri moved for a judgment of acquittal. See Fed.R.Crim.P. 29(a). Spedalieri conceded the sufficiency of the evidence for bank robbery, Sec. 2113(a), but argued that the evidence was insufficient to support armed bank robbery, Sec. 2113(d). ¹ Rec. vol. II at 122-23. Relying upon United States v. Crouthers, 669 F.2d 635 (10th Cir.1982), the district court denied the motion.

After conviction, but prior to sentencing, Spedalieri filed objections to the presentence report. See Fed.R.Crim.P. 32(c)(3)(D). Spedalieri objected to the failure of the probation office to recommend the two-level downward adjustment for acceptance of responsibility and to set out factors which would warrant a downward departure from the Guidelines because Spedalieri suffered from a diagnosable mental illness. Rec. vol. I, doc. 37 at 2.

II.

Spedalieri first argues that the district court erred in denying his judgment of acquittal on armed robbery (Sec. 2113(d)) because the government did not prove that the device used in perpetrating the robbery was a dangerous weapon. According to defendant, "Spedalieri's conviction must fail because the evidence is insufficient to sustain a finding that the 'device' he waved at Schunior was in fact capable of being readily operated or wielded to inflict serious bodily injury or injury upon another person." Appellant's Brief at 7. Spedalieri argues in favor of a test which would require the government to prove that "the device was objectively capable of putting Schunior's life in danger." Id. at 9.

The district judge was bound to and did indeed follow Tenth Circuit precedent, ² which is to the contrary. We have held that a fake bomb, as a matter of law, may constitute a dangerous weapon, regardless of its actual capabilities, when a victim confronted with it is placed in reasonable expectation of danger. United States v. Marx, 485 F.2d 1179, 1185 (10th Cir.1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974); accord United States v. Beasley, 438 F.2d 1279, 1282 (6th Cir.), cert. denied, 404 U.S. 866, 92 S.Ct. 124, 30 L.Ed.2d 110 (1971). The same is true of an unloaded gun used in the commission of a bank robbery. McLaughlin v. United States, 476 U.S. 16, 17, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986); Crouthers, 669 F.2d at 639.

In Crouthers, 669 F.2d at 639, we reaffirmed our adoption of the reasonable person standard concerning the elements of armed robbery under Sec. 2113(d). To sustain a conviction on Sec. 2113(d), there must be proof beyond a reasonable doubt that the defendant:

"... created an apparently dangerous situation, (b) intended to intimidate his victim to a degree greater than the mere use of language, (c) which does, in fact, place his victim in reasonable expectation of death or serious bodily injury."

Crouthers, 669 F.2d at 639 (quoting Beasley, 438 F.2d at 1282). In adopting the Beasley reasonable person standard, we rejected the objective test of Bradley v. United States, 447 F.2d 264, 274-75 (8th Cir.1971), vacated due to abatement, 404 U.S. 567, 92 S.Ct. 746, 30 L.Ed.2d 722 (1972), which would require that the instrumentality used by a bank robber be objectively capable of causing actual physical harm. Crouthers, 669 F.2d at 639; see also United States v. Shannahan, 605 F.2d 539, 542 (10th Cir.1979) (section 2113(d) does not require proof that the dangerous weapon or device "be actually capable of putting the life of a person in jeopardy").

Spedalieri urges that we reevaluate our adoption of the reasonable person standard and decide this case on the basis of an objective test like that in Bradley. Numerous problems exist with this suggestion. We are persuaded that the Supreme Court implicitly has rejected such a test, at least in the circumstances of an unloaded gun used in the commission of a bank robbery. McLaughlin, 476 U.S. at 17-18, 106 S.Ct. at 1678-79 (listing three reasons why an unloaded gun is a dangerous weapon). "[T]he display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue." Id. Moreover, "[i]t would be unreasonable to expect the victim of a crime, ... to risk [her] life in order to positively ensure that [her] assailant did indeed have a [bomb] and that [bomb] was [able to be detonated]." See Crouthers, 669 F.2d at 639. The objective test is not consistent with the dangerous response which may be evoked by armed robbery, whether the instrumentality is functional or not. ³ McLaughlin, 476 U.S. at 17-18, 106 S.Ct. at 1678-79.

III.

Spedalieri next contends that the district court erred by not granting a downward departure in sentence. Spedalieri asserts that the trial judge refused to exercise his discretion to consider the downward departure "because the jury returned a verdict of armed robbery, and, thus had determined that Spedalieri's defense of insanity was untenable." Appellant's Brief at 10. We think the record tells a different story.

Spedalieri's first obstacle is that the discretionary failure to depart downward from the Sentencing Guidelines is not subject to appellate review under 18 U.S.C. Sec. 3742. United States v. Richardson, 901 F.2d 867, 870 (10th Cir.1990); United States v. Davis, 900 F.2d 1524, 1529-30 (10th Cir.1990). Here, however, Spedalieri argues that the district court never exercised its discretion because the jury had returned a verdict rejecting Spedalieri's insanity defense. According to Spedalieri, the district court not only felt bound by the jury's verdict rejecting the insanity defense, but also refused to consider any evidence indicating diminished capacity, though short of insanity. We plainly have jurisdiction under 18 U.S.C. Sec. 3742(e)(2) to review a district court's refusal to exercise discretion or its decision that it lacks discretion as a matter of law to depart downward. Davis, 900 F.2d at 1530 n. 7.

A trial court's discretionary power to impose a sentence not within the range established by the guidelines is derived from 18 U.S.C. Sec. 3553(b). ⁴ Departure is permissible only when the Sentencing Commission did not adequately consider aggravating or mitigating circumstances in formulating the Guidelines. Id. Section 5H1.3, policy...