U.S. v. Lloyd

• Decision Date: 18 August 2006
• Docket Number: No. 04-4014.,04-4014.
• Citation: 462 F.3d 510
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Lawrence W. LLOYD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 510

462 F.3d 510

UNITED STATES of America, Plaintiff-Appellee v.Lawrence W. LLOYD, Defendant-Appellant.

No. 04-4014.

United States Court of Appeals, Sixth Circuit.

Argued June 8, 2006.

Decided and Filed August 18, 2006.^*

COPYRIGHT MATERIAL OMITTED

ARGUED: Shawn T. Kelly, Office of the Federal Public Defender, Dayton, Ohio, for Appellant.Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

ON BRIEF:

Shawn T. Kelly, Office of the Federal Public Defender, Dayton, Ohio, for Appellant.Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before MARTIN, NORRIS, and McKEAGUE, Circuit Judges.

McKEAGUE, J., delivered the opinion of the court, in which NORRIS, J., joined.MARTIN, J.(pp. 519-21), delivered a separate opinion concurring in part and dissenting in part.

McKEAGUE, Circuit Judge.

AMENDED OPINION

A jury convicted Lawrence W. Lloyd of armed bank robbery and using a firearm during a crime of violence.Lloyd was sentenced to consecutive terms of forty-six and eighty-four months.Lloyd filed a timely appeal arguing that the second count of the indictment was insufficient or duplicitous, certain evidentiary rulings made during his trial were an abuse of discretion, and the district court improperly denied his motion to inquire of a juror.For the following reasons, we affirm the district court's rulings and uphold the conviction.

I.BACKGROUND

At around 11:15 a.m. on November 6, 2003, a man wearing a black ski mask over his face entered a branch of the National City Bank located in Datyon, Ohio.Brandishing a small, black gun, the man yelled "get down" as he ran toward the teller line.He then vaulted the teller counter and picked up the head teller by her shoulder.He told her to take him to the vault and warned: "It's only money.Don't do anything stupid."She complied, taking him inside the main vault and into an interior one, which she accessed with a key.At gunpoint the head teller entered a code on the key pad that unlocked the bank branch's cash supply.The suspect then told her to get down; she did; and he reached inside the vault, emptying its cash, which was strapped together in 100-bill bunches, into a blue pillowcase he was carrying.After trying and failing to jump back over a counter, the gunman left through a door.

Dayton police officers, responding quickly to the 911 calls from the bank, spotted Lloyd, sitting alone at a bus stop near the bank shortly after the robbery.Based on their initial investigation, the police determined that Lloyd was a suspect and apprehended him.In the course of the arrest the police found a black gun in the waistband of Lloyd's pants.They also found a shopping bag containing a blue pillowcase, filled with nearly $35,000 in strapped cash, sitting at Lloyd's feet.In the course of the investigation, the police recovered a shoe impression from the bank's counter.When Lloyd was taken into custody his shoes and clothes were secured as evidence.

The grand jury for the Southern District of Ohio returned a two-count indictment against Lloyd.Count one charged him with armed bank robbery and count two alleged that he carried or used a firearm during and in relation to a crime of violence (bank robbery), and that he possessed the firearm in furtherance of the bank robbery.A jury convicted Lloyd on both counts.The district court sentenced Lloyd to a forty-six-month term of imprisonment on the first count and a consecutive, eighty-four-month term of imprisonment on the second count, to be followed by five years of supervised release.Lloyd filed a timely appeal.

II.ANALYSIS

A.Count Two of the Indictment

1.Sufficiency

Lloyd argues on appeal that the second count of the indictment failed to charge a crime.The sufficiency of an indictment is reviewed de novo.United States v. Gatewood,173 F.3d 983, 986(6th Cir.1999).However, Lloyd did not challenge the sufficiency of count two of the indictment until this appeal.Where an indictment goes unchallenged until appeal, it must be liberally construed in favor of its sufficiency.Id.Under such circumstances, a conviction must not be reversed unless the indictment cannot be reasonably construed to charge a crime.Id.

The second count of the indictment charges Lloyd with violating 18 U.S.C. § 924(c)(1)(A).This subsection creates two distinct criminal offenses.United States v. Combs,369 F.3d 925, 933(6th Cir.2004).The first is using or carrying a firearm "during and in relation to any crime of violence or drug trafficking crime."The second distinct offense is possessing a firearm "in furtherance of any such crime."The "in furtherance of" standard of participation related to the possession crime is a higher standard than the "during and in relation to" standard of participation related to the use or carrying crime.Id. at 932(citingH.R.Rep. No. 105-344, at 11(1997)).Therefore, this circuit has held that where an indictment applies the wrong standard of participation and charges a person with "possess[ing] a firearm during and in relation to" a drug trafficking crime, the indictment fails to charge any codified federal crime.¹Combs,369 F.3d at 934.

Lloyd contends that the second count of the indictment failed to charge a crime because it suffered from the same defect present in the Combs indictment.The government argues that, unlike in Combs, the indictment in this case did not charge Lloyd with possession of a firearm during and in relation to a crime of violence.The government points out that the second count of the indictment charged Lloyd with both using or carrying a firearm during and in relation to an armed robbery and with possession of a firearm in furtherance of an armed robbery.The language of the indictment demonstrates that the government's position is correct.The second count of the indictment charged that "during and in relation to" an armed robbery Lloyd "did knowingly use and carry, and in furtherance of such armed bank robbery did knowingly possess a firearm, that is, a semi-automatic handgun, and in the course of committing said armed bank robbery offense."(JA 9-10.)This language does not fail to charge any crime, but in fact charges two separate crimes.

2.Duplicity

Lloyd argues in the alternative that his conviction on count two of the indictment must be overturned because it is impermissibly duplicitous.As discussed above, count two does charge two separate crimes.However, although "a duplicitous charge calls into questions the unanimity of a verdict of guilty ... such a charge is not prejudicial per se, because proper jury instructions can mitigate the risk of jury confusion and alleviate the doubt that would otherwise exist as to whether all members of the jury had found the defendant guilty of the same offense."United States v. Savoires,430 F.3d 376, 380(6th Cir.2005).Moreover, Lloyd did not seek to dismiss the duplicitous count of the indictment before trial or challenge the jury instructions.Consequently, this court may overturn the conviction on count two only if there was plain error which affected Lloyd's substantial rights.Fed. R.Crim.P. 52(b);United States v. Olano,507 U.S. 725, 731-36, 113 S.Ct. 1770, 123 L.Ed.2d 508(1993).

Lloyd's argument primarily relies upon a recent case which found plain error in a similar situation.United States v. Savoires,430 F.3d 376(6th Cir.2005).The Savoires case, like this case, addressed a count in an indictment which was plainly duplicitous because it charged both the use and possession offenses outlined in 18 U.S.C. 924(c)(1)(A).²However, the Savoires court pointed out that "proper jury instructions can mitigate the risk of jury confusion and alleviate the doubt that would otherwise exist as to whether all members of the jury had found the defendant guilty of the same offense."430 F.3d at 380.The jury instructions in Savoires required the jury to find that "during and in relation to the commission of that crime, the defendant knowingly used or carried or possessed a firearm."Id. at 379.The court held that this did not obviate the confusion created by the indictment.Instead the instructions compounded the problem by authorizing a conviction if the jury found that the defendant had only possessed a firearm during and in relation to the commission of a crime of violence.As the Combs court pointed out, such actions would not constitute any codified federal crime.369 F.3d at 934.The Savoires court concluded that the duplicitous charge in the indictment combined with the problematic jury instructions affected the defendant's substantial rights.430 F.3d at 381.

The government argues that this case is distinguishable from Savoires for a number of reasons.Foremost among these reasons is the fact that the jury instructions in this case were materially different than those given in Savoires.In this casethe district court explained to the jury that it is an offense to either(1) use or carry a firearm during and in relation to a crime of violence or(2) possess a firearm in furtherance of a crime of violence.(JA 357.)Moreover, in setting forth the third element necessary to a guilty verdict on count two, the district court instructed that the jury must find "that during and in relation to the commission of that crime, the Defendant, Lawrence W. Lloyd, knowingly used or carried a firearm or, in furtherance of the crime, possessed a firearm."(JA 367, emphasis added).Consequently, these instructions did not suffer from the same defect as those in the Savoires case of authorizing a conviction based on actions which do not constitute a federal crime.

Although the district court explained the separate use and possession offenses properly to the jury, that does not dispense with the concern that different members of the jury might have convicted based on different offenses without a unanimous verdict on either offense.The district...