U.S. v. Burdeau

• Decision Date: 09 February 1999
• Docket Number: No. 97-30388,97-30388
• Parties: 99 Cal. Daily Op. Serv. 1068, 99 Daily Journal D.A.R. 1333 UNITED STATES of America, Plaintiff-Appellee, v. Herbert Louis BURDEAU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 352

168 F.3d 352

99 Cal. Daily Op. Serv. 1068, 99 Daily Journal

D.A.R. 1333

UNITED STATES of America, Plaintiff-Appellee, v. Herbert Louis BURDEAU, Defendant-Appellant.

No. 97-30388.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1998.

Decided Feb. 9, 1999.

Daniel Donovan, Assistant Federal Defender, Great Falls, Montana, for the defendant-appellant.

Lori A. Harper, Assistant United States Attorney, Great Falls, Montana, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Fred Van Sickle, District Judge, Presiding. D.C. No. CR-96-00042-DWM.

Before: BOOCHEVER, REINHARDT, and GRABER, Circuit Judges.

Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge GRABER.

REINHARDT, Circuit Judge:

Herbert Louis Burdeau, a Native American, was visibly intoxicated when he committed an armed robbery of a store located within the Blackfeet Indian Reservation and was apprehended for his crime. Probably realizing that the evidence would clearly establish that he had committed the act, Burdeau entered a conditional plea agreement that limited his sentence to a ten-year maximum. At the last minute, however, he changed his mind and withdrew the plea. By so doing, he preserved his opportunity to argue that he should be permitted to raise a legal defense that appeared to provide the only hope of avoiding conviction: that, because he was intoxicated, he could not have formed the intent required by the robbery statute. During subsequent pretrial proceedings, however, the district court rejected that argument and granted the state's motion to preclude the defense. Following that decision, which foreclosed the only realistic defense that Burdeau could offer, Burdeau sought to reinstate his guilty plea under the original plea agreement. The prosecutor objected, the court denied his request, and the prosecution commenced. After a two-day trial, Burdeau was convicted of robbery and use of a gun in the commission of a felony, and sentenced to 210 months in prison.

Burdeau's decision to withdraw his initial plea, a decision that was in all likelihood based on his counsel's failure to appreciate the type of intent required for a robbery conviction, will thus cost him seven and one-half additional years in prison. Because the district court did not commit legal error at any stage of these proceedings, we are without power to do anything other than affirm Burdeau's conviction. We note, however, that the seven and one-half year addition to Burdeau's sentence, which serves to almost double his time in prison, does not appear to be a fair or proportionate penalty for his effort to explore the question whether a particular defense was legally available. We therefore encourage the United States Attorney's office to consider utilizing its authority under Federal Rule of Criminal Procedure 48(a) to move to dismiss one of the counts of conviction so that the sentence Burdeau receives

will be one that is consistent with the purposes and objectives of our sentencing statutes.

BACKGROUND

This case arises out of an incident on September 4, 1996, when an obviously intoxicated Burdeau robbed a grocery store in St. Mary, Montana. Burdeau, a member of the Blackfeet tribe, entered the St. Mary's Park Cafe and Grocery and told one of the clerks that he wanted to buy some bullets. Upon being informed that the store did not carry bullets, he swore and slammed his hand on the glass countertop. He then approached the other clerk and repeated the request for bullets. Upon receiving the same answer, he requested cigarettes. The clerk asked him what kind he wanted. Burdeau replied by asking how much money was in the cash register. The clerk responded that this information was none of Burdeau's business; Burdeau then displayed a gun and told the clerk to give him the money. The clerk handed over approximately $700 to $800. Burdeau, making no apparent effort to hide his destination, walked next door to Kip's Beer Garden.

Once at Kip's, Burdeau asked a friend for a ride home. By this time, the clerks had reported the robbery, and a tribal police officer followed the car in which Burdeau rode to a nearby ranch located on the reservation. As he followed the car, the tribal officer observed its occupants throw a Budweiser box out the car window. After the car arrived at the ranch, the tribal police arrested Burdeau and a few other individuals, and searched the car and the nearby area. They discovered cash inside the car and in the Budweiser box, which was found along the private road that led to the ranch. The next day, the police also recovered a .38 caliber revolver along the private road and more cash under a rock next to the ranch.

The two store clerks both identified Burdeau from a photographic array. At trial, one clerk also identified the clothing that had been taken from Burdeau as the clothing that the robber had worn. Other witnesses linked Burdeau to the Budweiser box and to the gun discovered near the ranch. However, no identifiable fingerprints were found on the gun, and none of the identifiable fingerprints on the countertop matched Burdeau's.

Burdeau was indicted on two felony counts, robbery and use of a firearm during commission of a crime of violence. He filed a number of pretrial motions, including a motion to suppress the pretrial identification and a motion for an in-court lineup. The motions were all denied.

Trial was set for June 24, 1997. At a pretrial conference held on June 23, 1997, the parties discussed their disagreement as to whether robbery was a crime of specific or general intent. Only a defense of diminished capacity to a specific intent crime offered Burdeau any practical opportunity to avoid conviction. The court advised the parties to file an in limine motion before trial.

Instead of filing the motion, however, Burdeau entered into a conditional plea agreement which limited his sentence to a maximum of ten years in return for his guilty plea to the robbery count and dismissal of the gun count. The court accepted the plea. Then, on September 24, 1997, the judge held a sentencing hearing. He initially indicated that he was not inclined to abide by the limitation of the sentence to ten years and instructed Burdeau that he had the right to withdraw his plea. After further discussion of the matter with the United States Attorney, however, the court decided to accept the conditional plea's sentence recommendation. Although the judge was therefore no longer obligated to offer Burdeau the opportunity to withdraw his plea, he asked him whether he wanted to do so. Burdeau spoke with his attorney, family members, and others who were present at the hearing, and then stated that he did want to withdraw his plea. The court granted his request.

Burdeau then gave formal notice that he planned to offer a diminished capacity/intoxication defense. On October 27, the government filed a motion in limine objecting to the defense. The court granted that motion on October 31, ruling that the crime of robbery required only general intent and that the defense was therefore unavailable. Burdeau then made a motion to reinstate his guilty plea under the conditional plea agreement.

The prosecution objected and the court denied the motion. The case proceeded to trial on November 3.

After two days, the jury returned a verdict convicting Burdeau on both counts. The district judge sentenced him to 150 months for robbery and 60 months for use of a gun in the commission of a felony, the sentences to run consecutively, and three years of supervised release. This appeal followed.

INTENT REQUIREMENT

Burdeau raises a number of challenges to his conviction. Primarily, in reliance on United States v. Lilly, 512 F.2d 1259 (9th Cir.1975), he argues that under federal law robbery is a crime of specific, rather than general, intent and that he therefore should have been allowed to raise a voluntary intoxication defense. A defense based on voluntary intoxication is available only for a specific intent crime. See United States v. Oliver, 60 F.3d 547, 551 (9th Cir.1995) (citing United States v. Sneezer, 983 F.2d 920, 922 (9th Cir.1992)).

The statute proscribing robbery in special maritime or territorial jurisdictions, including Indian reservations, 18 U.S.C. § 2111, defines the offense as follows: "Whoever ... by force and violence, or by intimidation, takes or attempts to take from the person or presence of another anything of value...." Prior to its amendment in 1948, § 2111 had required specific intent through inclusion of the word "feloniously." That term was deleted, however, by the 1948 amendment. In Lilly, this court held that robbery as an element of felony murder under the felony murder statute, 18 U.S.C. § 1111, required specific intent, not because of anything contained in § 2111 but because otherwise an individual could be convicted of first-degree murder without having the specific intent to commit any crime. Id. at 1261. We expressly confined our ruling in Lilly to the felony murder statute, and did not reach the question whether robbery as defined in the amended § 2111 required specific intent. Indeed, we warned, "it may be that specific intent is no longer required by § 2111.... That question we do not reach. We confine our ruling to robbery as the term is used in § 1111." Id. The fact that the Lilly dissent misread our holding as applying also to § 2111 (see Lilly, 512 F.2d at 1264 (Real, J., dissenting)) does not change the fact that the holding was in fact a much narrower one.

While Lilly therefore does not resolve the question, two factors compel us to interpret § 2111 as requiring only general intent. First, "[w]hen a statute does not contain any reference to intent, general intent is ordinarily implied." United States v. Martinez, 49 F.3d 1398, 1401 (9th Cir.1995) (citations omitted). This presumption is strengthened by the fact...