U.S. v. Dittrich, 96-1913SI

• Decision Date: 07 November 1996
• Docket Number: No. 96-1913SI,96-1913SI
• Citation: 100 F.3d 84
• Parties: UNITED STATES of America, Appellee, v. Warren Allen DITTRICH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 84

100 F.3d 84

UNITED STATES of America, Appellee, v. Warren Allen DITTRICH, Appellant.

No. 96-1913SI.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 21, 1996.

Decided Nov. 7, 1996.

Keith E. Uhl, Des Moines, IA, argued, for appellant.

Ed Kelly, Asst. U.S. Atty., Des Moines, IA, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and BEAM, Circuit Judges.

RICHARD S. ARNOLD, Chief Judge.

This is a prosecution for armed robbery of a United States Postal Substation, in violation of 18 U.S.C. § 2114(a). The defendant, Warren Allen Dittrich, was convicted after a jury trial. The government then proceeded against him at sentencing under 18 U.S.C. § 3559(c), which requires a mandatory sentence of life in prison for certain violent felons. The District Court ¹ found that Dittrich had been convicted of three "serious violent felonies" within the meaning of that statute, including the instant offense and two previous convictions, and, therefore, imposed a sentence of life in prison. Dittrich appeals from his conviction and sentence, contending, among other things, that the evidence was insufficient to justify convicting him of the predicate offense, and that the two previous convictions on which the District Court relied do not qualify as "serious violent felonies" for purposes of the statute imposing a mandatory life sentence. We affirm.

On April 28, 1995, the Jubilee Foods supermarket in Council Bluffs, Iowa, was robbed. A man entered the store and walked up to the service desk. A sign above the desk stated that the store was a location of a United States Postal Substation. The man pulled a gun and demanded money, and the store clerk gave him money and money orders contained in the drawer assigned to the Postal Substation. The man then left.

The defendant Dittrich meets the general description of the robber given by the store clerk. In addition, a surveillance video tape shows a person of the same general appearance, though neither the testimony of the store clerk nor the tape could be the basis of a positive identification, the robber having disguised himself with a hat, sunglasses, and band-aids on his face. Two people fled from the scene of the crime in a red Nissan truck, stipulated to be the vehicle regularly operated by Dittrich. Beginning on the night of that same day, Dittrich caused three postal money orders, positively identified as having been taken in the robbery, to be cashed. And, after being arrested, Dittrich offered money and other inducements to one Roger Light, a fellow inmate, to confess to the robbery. In order to aid Light in committing this perjury, Dittrich wrote out, in his own hand, an account of the crime, in which the actions of the robber were referred to in the first person. Light was called as a witness in the government's case in chief, and during his testimony the handwritten account prepared by Dittrich, which could reasonably be understood as amounting to a confession, was introduced into evidence.

We have no difficulty in holding that this evidence was sufficient to make a jury issue of Dittrich's guilt. Defendant suggests that the evidence makes it equally likely that he was the driver of the getaway car, and not the actual robber, and some of the evidence, to be sure, would be consistent with a conclusion that Dittrich was merely one of the two people involved in the crime, perhaps not himself the actual robber. Other evidence points strongly to Dittrich as having committed the robbery himself, notably his actions in attempting to bribe Light to commit perjury, and in furnishing Light with an account of the crime that could reasonably be understood to portray Dittrich as the man who entered the store, pointed the gun at the clerk, and took the money and money orders.

It is our duty to consider the evidence in the light most favorable to the government when evaluating a contention that the evidence was insufficient, and this evidence was ample to justify a reasonable jury in concluding beyond a reasonable doubt that Dittrich was the robber. We therefore reject Dittrich's first contention on appeal.

Defendant argues that the two previous convictions used against him in the District Court do not qualify under the statute, the so-called three-strikes-and-you're-out law. The first conviction was one for assault with intent to inflict bodily injury in Nebraska. This offense was a felony, punishable by up to twenty years in prison. The statute, 18 U.S.C. § 3559(c)(2)(F)(ii), includes among the qualifying felonies "any ... offense punishable by a maximum term of imprisonment of 10 years or more that has...