U.S. v. Bindley

• Decision Date: 13 October 1998
• Docket Number: No. 97-3250,97-3250
• Citation: 157 F.3d 1235
• Parties: 98 CJ C.A.R. 5262 UNITED STATES of America, Plaintiff-Appellee, v. Gary Joseph BINDLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1235

157 F.3d 1235

98 CJ C.A.R. 5262

UNITED STATES of America, Plaintiff-Appellee, v. Gary Joseph BINDLEY, Defendant-Appellant.

No. 97-3250.

United States Court of Appeals Tenth Circuit.

Oct. 13, 1998.

Charles D. Dedmon, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the brief), Topeka, KS, for defendant-appellant.

Randy M. Hendershot, Assistant United States Attorney (Jackie N. Williams, United

States Attorney, with him on the brief), Topeka, KS, for plaintiff-appellee.

Before EBEL, HENRY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Gary Joseph Bindley was convicted of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), (d), and 2, use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1), and 2, and conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371. Bindley challenges his convictions and sentence on appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

Bindley, his roommate Jerry Penner, Jr., and a mutual friend Michael Walters, drove around the outskirts of Topeka, Kansas, on the morning of June 1, 1996, looking for psychedelic mushrooms to pick and ingest. After having no success, they stopped briefly at Walters' house where, according to Bindley, Bindley and Walters smoked a marijuana cigarette. When the three men left the house in Penner's car, Walters was carrying a .22 caliber semi-automatic pistol.

Later that morning the men drove to the Kaw Valley State Bank and, after driving away from the Bank to devise an escape route, they returned and parked the car approximately one block north of the Bank. Bindley took the pistol from Walters and walked into the Bank, but he returned approximately five minutes later and told Penner and Walters, "I'm sorry, I couldn't do it. I punked out." Record V at 114.

Walters told Bindley and Penner he intended to rob the Bank because he "already had the money spent." Id. at 115. He put on the baseball hat and flannel shirt Bindley had been wearing and took the pistol. At Walters' direction, Penner drove around the block several times and parked the car in a different location. Walters got out of the car and walked into the Bank. He approached teller Sally Ann Hudson, handed her a plastic sack, pointed the pistol at her, and told her to put money in the sack. Hudson cooperated and filled the sack with approximately $5,034 in cash from her counter and drawer. Walters left the Bank, ran toward the car where Bindley and Penner were waiting, and jumped into the front passenger seat. The men drove to the west edge of town where they threw out the pistol, the baseball cap, and the flannel shirt. They also threw out a rifle Penner had been carrying in his car. The men then returned to Walters' house where they divided the money, with Penner and Bindley each receiving $1,000 and Walters receiving the remainder.

Penner and Walters were indicted on three counts in connection with the bank robbery and they pleaded guilty to two of the three counts. Bindley was charged with the same three counts. Count 1 charged Bindley with armed bank robbery, count 2 charged him with use of a firearm during and in relation to a crime of violence, and count 3 charged him with conspiring with Penner and Walters to commit bank robbery. After a jury trial, Bindley was found guilty of all counts. He was sentenced to concurrent terms of forty-one months on the armed bank robbery and conspiracy convictions, and to a consecutive term of sixty months on the use of a firearm conviction, for a total sentence of 101 months' imprisonment. He was also ordered to pay $5,034 in restitution.

II.

Sufficiency of the evidence

Bindley contends the evidence at trial was insufficient to support his convictions for armed bank robbery (Count 1) and use of a firearm (Count 2). More specifically, he argues neither his presence at the scene of the criminal activity, nor his knowledge of the occurrence of criminal activity, demonstrates "he in any way knowingly acted for the purpose of aiding and abetting the commission of" the charged offenses. Opening Br. at 11.

We review de novo the question of whether the evidence at trial was sufficient. United States v. Ivy, 83 F.3d 1266, 1284 (10th Cir.1996). Viewing the evidence and the reasonable inferences therefrom in the light most favorable to the government, we ask whether a reasonable jury could find defendant guilty beyond a reasonable doubt. We will reverse only if we conclude no reasonable jury could have reached the disputed verdict. Id.

Count 1 of the information charged Bindley with armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d). ¹ The jury was instructed in Instruction 8 that to convict Bindley of armed bank robbery, the government had to prove (1) money was taken from the care, custody, or possession of the Bank; (2) the taking was by force and violence or intimidation; (3) during the taking, employees of the Bank were either assaulted or their lives were put in jeopardy by use of a dangerous weapon or device; and (4) the deposits of the Bank were insured by the Federal Deposit Insurance Corporation.

Count 2 of the information charged Bindley with use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1). In accordance with the language of the statute, the jury was instructed in Instruction 14 that to convict Bindley of this charge, the government had to prove (1) a crime of violence was committed for which Bindley could be prosecuted in a court of the United States; and (2) during and in relation to commission of that crime, Bindley knowingly used a firearm.

We note Bindley does not dispute the evidence presented at trial demonstrates Walters' actions inside the Bank satisfied the essential elements of Counts 1 and 2. Instead, his challenge is focused on whether the evidence pertaining to his own conduct satisfied the necessary elements for aiding and abetting liability. The district court instructed the jury in Instruction 17 that Bindley could be found guilty of Counts 1 and 2 as an aider and abetter if the government proved (1) Bindley knew the crimes charged were to be committed or were being committed; (2) Bindley knowingly and willfully did some act for the purpose of aiding commission of the crimes; and (3) Bindley acted with the intention of causing the crimes to be committed. This instruction is consistent with the language of the aiding and abetting statute, 18 U.S.C. § 2(a), as well as with the law of this circuit. See, e.g., United States v. Jones, 44 F.3d 860, 869 (10th Cir.1995) ("To be guilty of aiding and abetting, a defendant must willfully associate with the criminal venture and aid such venture through affirmative action.").

Viewing the record on appeal in the light most favorable to the government, we conclude the evidence presented at trial was clearly sufficient to allow the jury to find Bindley aided and abetted the charged crimes. Penner was the government's key witness and he testified that Bindley and Walters directed him to drive by the Bank on the morning of the robbery, that Bindley told him Bindley and Walters planned to rob the Bank, that Bindley purchased a compact disc at a store near the Bank so they would have a plastic bag for the money, that all three men were involved in planning an escape route, that Bindley helped Walters put the money away after the robbery while Penner was driving, that Bindley took $1,000 of the robbery proceeds, that the men verbally agreed not to talk about the crimes or tell anyone what had happened, and that the men agreed to go to Lawrence on the afternoon following the robbery in an apparent attempt to avoid detection. Although Bindley denied his involvement in the charged offenses and testified he was under the influence of marijuana and some other unknown substance at the time Walters robbed the Bank, Penner testified none of the men had smoked marijuana and that Bindley was fully aware of what was happening. The evidence is sufficient to establish Bindley aided and abetted the charged crimes in that he was involved in planning the crimes, he was contemporaneously aware of commission of the crimes, he knowingly and willfully performed numerous acts to aid commission of the crimes, he acted with the intention of causing the crimes to be committed, and he knowingly and willfully performed acts after the crimes were committed to avoid their detection.

Proof of FDIC insurance

Bindley contends his convictions must be reversed because the government failed to prove the Bank was insured by FDIC at the time of the robbery. ² Although Bindley acknowledges the bank teller who was robbed testified the Bank was federally insured by FDIC on the date of the robbery, he challenges her ability to testify as to this matter. According to Bindley, her "duties were at most counting money," and her testimony alone, without a certificate of insurance or some other proof of FDIC insurance, was insufficient to satisfy the insurance element.

Contrary to Bindley's arguments, no circuit appears to require that the FDIC insurance element be satisfied by a particular type of witness or a particular piece of evidence. For example, the Ninth Circuit has expressly rejected the argument that a bank official's testimony is necessary to prove the federally insured status of a bank, United States v. Chapel, 41 F.3d 1338, 1340 (9th Cir.1994), and has instead held any bank employee's uncontradicted testimony of a bank's insured status is sufficient to support a jury's finding on this element. United States v. Corbin, 972 F.2d 271, 272 (9th Cir.1992). This circuit has previously held the FDIC jurisdictional element can be satisfied by testimony from a bank auditor. See United States v. Sterling, 103 F.3d 145 (10th Cir.1996) (table), cert. denied --- U.S. ----, 118 S.Ct. 209, 139 L.Ed.2d 144 (1997); ...