Parker v. U.S.

• Decision Date: 17 September 1986
• Docket Number: No. 85-6161,85-6161
• Citation: 801 F.2d 1382
• Parties: Floyd D. PARKER, Appellant, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1382

801 F.2d 1382

255 U.S.App.D.C. 343

Floyd D. PARKER, Appellant, v. UNITED STATES of America.

No. 85-6161.

United States Court of Appeals, District of Columbia Circuit.

Argued May 16, 1986.

Decided Sept. 17, 1986.

Appeal from the United States District Court for the District of Columbia (Criminal No. 85-325-01).

Charles B. Wayne, Washington, D.C., appointed by the Court, for appellant.

David Schertler, Asst. U.S. Atty., a member of the Bar of the District of Columbia Court of Appeals, pro hac vice, by special leave of the Court, with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Thomas J. Tourish, Jr., Asst. U.S. Attys Washington, D.C., were on the brief, for appellee.

Before MIKVA, SCALIA and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

This is an appeal from a conviction of armed bank robbery, 18 U.S.C. Sec. 2113(a) & (d) (1982), and of carrying a firearm during commission of a crime of violence, 18 U.S.C. Sec. 924(c) (Supp. III 1985). It presents the issue of the nature of proof necessary to establish that the instrument carried by the defendant was a "firearm" within the meaning of the statute, and the issue of prejudicial effect of the so-called "falsus in uno" jury instruction regarding witness credibility.

I

On June 27, 1985, Sallie Dozier, the assistant manager of a downtown branch of Capital City Savings and Loan (now Meritor Savings Bank), arrived for work shortly before 8:30 a.m. A few minutes later, Dozier unlocked an outside door to admit Hirut Menkir, one of the bank's tellers. As Menkir entered the bank, a man appeared behind her, showed Dozier and Menkir a gun stuck in his waistband, and ordered the women further inside the bank. After forcing Dozier to open a safe containing keys to the teller drawers, the man robbed the bank of $6,356 before fleeing on foot. Defendant Floyd Parker was arrested and charged with the robbery two months later.

At trial, Parker testified that on the morning of the robbery he was alone at his sister's home recuperating from a shoulder injury. His sister and fiancee also testified and corroborated his alibi. A jury found Parker guilty on both counts and he was sentenced to five to fifteen years imprisonment for robbery and five years for carrying a firearm. He appeals.

II

18 U.S.C. Sec. 924(c) provides that those convicted of using or carrying a "firearm" while committing a violent federal crime shall receive, in addition to the punishment prescribed for the underlying offense, a mandatory, consecutive prison term of five years. The definition of "firearm," which applies not only to the firearm crime provision but also to the extensive dealer registration and gun control provisions of the same title (for which it was obviously primarily designed), states that a "firearm" is

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

18 U.S.C. Sec. 921(a)(3) (1982). Read literally, the statute would punish one who robbed a bank carrying nothing but a harmless silencer, but would not reach a robber brandishing a deadly antique firearm. Parker's complaint, however, is not with this inelegance, but with what he contends was the government's failure to prove its case.

At trial, the government neither produced the weapon carried by Parker nor offered any evidence that the gun was fired. Rather, it offered the testimony of Dozier and Menkir that Parker carried a "gun" with which he threatened to "[b]low [their] ... head[s] off." Dozier testified that the gun was "silver" with a "vinyl-looking" brown handle, while Menkir testified that she saw the brown handle of "a pistol, [a] small one, like the policemen use."

Parker argues that this evidence was insufficient to convict him of carrying a "firearm"--i.e., a "weapon ... which will ... expel a projectile by the action of an explosive." (He does not contend that the gun was an antique.) Parker concedes that the government was not required to produce the weapon or to show that it had been fired, but argues that for eyewitness testimony to suffice, it must be given by persons knowledgeable about firearms who had an opportunity to examine the weapon closely. Because no such witness testified, Parker argues, the District Court erred in denying the motion for judgment of acquittal he made at the close of the prosecution's case-in-chief. We must decide whether, taking into account only the evidence offered by the government in its case-in-chief, ¹ but viewing it in the light most favorable to the prosecution, Parker's motion should have been granted because the evidence "[was] such that a reasonable juror must have [had] a reasonable doubt," United States v. Bethea, 442 F.2d 790, 792 (D.C.Cir.1971), as to whether the object carried by Parker was a "firearm." See United States v. Foster, 783 F.2d 1087, 1088 (D.C.Cir.1986).

In United States v. Harris, 792 F.2d 866 (9th Cir.1986), the court upheld a Sec. 924(c) conviction although the government did not produce the weapon at trial or prove that it had been fired. The jury could infer that the defendant carried a "firearm," the court found, where the employees of the robbed bank testified that he carried a "gun," surveillance photographs showed him holding what appeared to be a gun, and a customer familiar with guns testified that the weapon "was gunmetal" and "appeared to be either a .38 or .45 automatic." Id. at 868. Courts have relied upon the testimony of witnesses with firearms expertise in upholding convictions under 18 U.S.C. app. Sec. 1202(a)(1) (1982), which prohibits the receipt, possession, or transport by convicted felons of any "firearm" (defined in 18 U.S.C. app. Sec. 1202(c)(3) almost precisely as in 18 U.S.C. Sec. 921(a)(3)). See, e.g., United States v. Turner, 565 F.2d 539, 541 (8th Cir.1977) (per curiam); United States v. Liles, 432 F.2d 18, 19-20 (9th Cir.1970). In none of these cases, however, is there any indication that the courts viewed testimony by "expert" witnesses as necessary; rather, the courts simply described why the evidence in the record of the particular case was sufficient to prove the existence of a "firearm."

More instructive are cases reviewing convictions under the postal robbery statute, 18 U.S.C. Sec. 2114 (1982), and the federal bank robbery statute, 18 U.S.C. Sec. 2113(d), both of which provide enhanced sentences for those convicted of jeopardizing the life of any person "by the use of a dangerous weapon," but do not define "dangerous weapon." Typical of these cases is United States v. Marshall, 427 F.2d 434 (2d Cir.1970), in which two bank robbers were convicted on the basis of testimony that one of them brandished a silver revolver while the other carried a sawed-off shotgun. The defendants argued that the government had failed to prove that the guns were loaded and therefore "dangerous" weapons. While the court agreed that the prosecution was required to show that the guns were in fact loaded, ² it held

that the jury may infer that a gun used during a robbery was loaded in the absence of direct proof that the chambers contained bullets. The act of threatening others with a gun is tantamount to saying that the gun is loaded and that the gun wielder will shoot unless his commands are obeyed. Furthermore, the use of an unloaded gun to rob a bank would be a very hazardous venture for the robber. ... In our opinion, it is so unlikely that a bank robber who purports to be armed would undertake this risk that an inference that the gun was loaded is justified.

Id. at 437. Accord, United States v. Love, 746 F.2d 477, 479-80 (9th Cir.1984) (Sec. 2114); United States v. DePalma, 414 F.2d 394, 396 (9th Cir.1969), cert. denied, 396 U.S. 1046 (1970) (Sec. 2113(d)); Lewis v. United States, 365 F.2d 672, 674 (10th Cir.1966), cert. denied, 386 U.S. 945, 87 S.Ct. 978, 17 L.Ed.2d 875 (1967) (Sec. 2113(d)); United States v. Roach, 321 F.2d 1, 4-5 (3d Cir.1963) (Sec. 2113(d)); Wagner v. United States, 264 F.2d 524, 530-31 (9th Cir.), cert. denied, 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548 (1959) (Sec. 2114).

It seems to us that this eminently sensible approach is equally appropriate in the Sec. 924(c) context, and that the testimony of Dozier and Menkir is...