U.S. v. McCaskill

• Decision Date: 28 May 1982
• Docket Number: No. 81-5110,81-5110
• Citation: 676 F.2d 995
• Parties: UNITED STATES of America, Appellee, v. Milton L. McCASKILL, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 995

676 F.2d 995

UNITED STATES of America, Appellee, v. Milton L. McCASKILL, Appellant.

No. 81-5110.

United States Court of Appeals Fourth Circuit.

Argued Nov. 6, 1981.

Decided April 15, 1982.

Rehearing Denied May 28, 1982.

George R. Hodges, Charlotte, N. C. (Moore & Van Allen, Charlotte, N. C., on brief), for appellant.

Harold J. Bender, Asst. U. S. Atty., Charlotte, N. C. (Harold M. Edwards, U. S. Atty., Asheville, N. C., on brief), for appellee.

Before RUSSELL, ERVIN and CHAPMAN, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This appeal arises out of the defendant's conviction under three counts of an indictment charging him under § 2, 18 U.S.C. with aiding and abetting in violations of Sections (a), (b) and (d), of the federal bank robbery statute, § 2113, 18 U.S.C. The defendant has appealed only from his conviction under count three of the indictment relating to the charge under §§ 2113(d) and 2. He raises as his single ground of appeal the district court's alleged failure properly to instruct the jury.

At trial the defendant's counsel submitted a request for certain instructions among which was one that, in a prosecution for aiding and abetting a bank robbery under §§ 2113(d) and 2, the jury should be instructed that "the government must prove not only that the Defendant knew that a bank was to be robbed and (that the defendant) became associated with and participated in that crime, but also that the Defendant knew that the criminals were armed and intended to use their weapons, and that he intended to aid them in that respect." He cited United States v. Short, 493 F.2d 1170 (9th Cir. 1974), as authority for the quoted requested instruction. The district judge stated that the requested instructions, including those not in dispute here, would be given in substance by him in his instructions to the jury. ¹ After the completion of the testimony and arguments of counsel, the district judge instructed the jury.

In his instructions the district court set forth the elements of an offense under § 2113(d). He very specifically instructed the jury that the charge required proof that the robbers had "enter(ed) a bank carrying a weapon or something which appear(ed) to be a weapon saying that if you don't give me your money, I'll inflict serious harm upon you or making any reference at all to the use of force ...." The district judge then instructed the jury that, if you find that the robbers in the course of this robbery had "assaulted (the) bank employees by putting their lives in jeopardy by the use of or the threatened use of deadly weapons," it should proceed to determine "whether or not the defendant aided and abetted (the actual robbers) in the commission of such acts." He thereupon stated the circumstances under which it could be said the defendant had aided and abetted the robbers under § 2, 18 U.S.C.: "The Court instructs you that in order to aid and abet another to commit a crime it is necessary that the accused, that is, the defendant in this case, willfully associated himself in some way with the criminal venture, that is, the bank robbery, and willfully participated in it as he would in something he wishes to bring about, that is to say that he willfully seeks by some act or omission of his own to make the criminal venture succeed and that an act is willfully done if done voluntarily and intentionally and with specific intent to do something the law forbids ...." ²

At the conclusion of the charge, in which was included an extremely fair statement of the defendant's own contentions, the district judge addressed counsel for the defendant, inquiring whether there were "(a)ny requests for additional instructions to the jury from the defendant?" The defendant's counsel replied, "No, sir." The district judge went on to inquire whether the defendant had "(a)ny objections to the instructions?" Again, counsel for the defendant responded, "No, sir." However, the defendant now contends in this appeal that the district judge should have instructed the jury as requested in his proposed instruction that the Government had to prove that the defendant knew that his co-defendants (the actual robbers) "were armed and that they" intended to use their weapons, and that he intended to aid them in that respect. Since he did not raise this objection properly at the conclusion of the district judge's charge, the defendant concedes that such failure to charge will support reversal only if that failure is held to be clear error. ³ The defendant, however, claims that this failure to instruct was clear error citing United States v. Short, supra, and United States v. Sanborn, 563 F.2d 488 (1st Cir. 1977) as authority for such contention. This claim of error is the sole issue on appeal.

We may assume for purposes of this appeal that under both Short and Sanborn, one charged as an aider and abettor under § 2113(d) should be entitled, if the point be timely raised, and if the essential facts be in dispute, to an instruction that the defendant knew that his co-defendants who perpetrated the actual robbery were armed, thereby putting the defendant on notice of the likelihood that in the common criminal enterprise a gun or other dangerous weapon would be used. While it may appear somewhat unreasonable to assume that any one would undertake to rob a bank without a gun or other intimidating weapon, it is the rule as stated in Short and Sanborn that one charged as an aider and abettor under § 2113(d) should be shown to have known that his confederates in crime were armed and thus likely to jeopardize lives in the course of the robbery by the use of their weapons. ⁴ But all this reasoning rests upon the assumption that there is a genuine dispute in the record whether the one charged with being an aider and abettor had knowledge that his co-defendants, the robbers, were armed when they embarked upon their act of "sticking up" the bank. That this is the necessary predicate upon which the rule in these two cases rests is manifest in the analysis used by the court in both cases and in the statement by the court of the actual question decided in those cases.

In Short the court charged the jury that a defendant, indicted as an aider and abettor in an armed bank robbery, need only know "that a bank robbery was going to be attempted or accomplished" by his co-defendant to be guilty and this is so "whether or not he knew that (the actual robber) was armed or what he was armed with" since this latter fact "is not necessary, not a necessary element to the crime." 493 F.2d at 1172. It was that instruction which the defendant, under the facts of that case claimed to be, and the court found, erroneous. In Sanborn, the court, at two points in its opinion, made clear that this was the specific question it was addressing: First, the court said explicitly that the question before it was "whether the court erred in declining Sanborn's requested instruction that his knowledge of the gun had to be proven." Later in the same paragraph, the court again identified the specific question it was answering by its decision:

"Still, if the accomplice's knowledge of the weapon forms part of the Government's burden of proof in establishing the aiding and abetting of an armed robbery, it would be error for the trial court not to so advise the jury upon request. We must, therefore, decide that question." (Italics added) 563 F.2d at 490.

In answering the question as phrased by the court in these two statements, the court in Sanborn said that the Government must show that the defendant "was on notice of the likelihood that a gun or other dangerous weapon would be used in the robbery." But it suggests that such "notice of the likelihood" of the use of the gun may be inferred from knowledge of the possession of the gun by the confederate robber. And it adds that had there been an instruction along this line, it "would have no hesitancy whatever in affirming the present conviction" but, "(a)bsent any such instruction following upon defendant's explicit request," it felt obliged to reverse. 563 F.2d 491.

As this review of the facts in those cases shows, the ruling in both Short and Sanborn arose only because the evidence was in dispute in those cases as to whether the one charged as an aider and abettor was aware that his robber confederate was armed and thus likely to use his weapon in connection with the robbery. If the evidence is not in dispute on the knowledge of the aider and abettor, the question resolved in those cases does not arise. ⁵

Contrary to the facts in Short and Sanborn, however, there is no dispute in this case that the defendant did know that his confederates who perpetrated the robbery were armed. For several days before the bank robbery, the defendant had been riding around with his co-defendants Jackson and Tijuan McCaskill in Jackson's Cadillac Eldorado. In the course of these rides, these co-defendants-Jackson, in particular-discussed, in the presence and hearing of the defendant, their prior ventures in crime, including bank robbery. The defendant so testified. Thus, Jackson and Tijuan McCaskill were known to the defendant to be persons with criminal experience. The talk among the three related at times to a criminal venture in which the three would engage and in which the three would share equally. That venture discussed among the three was one "to stick up a bank." Such a venture certainly would contemplate the use of some weapon with which "to stick up" the bank. And the defendant's co-defendants had such weapons. Both were armed, one with a 38 Smith & Wesson gun and the other with a 6 millimeter automatic. ⁶ The defendant knew his co-defendants had these guns or, as he said, were "carrying the guns." He so admitted to the FBI investigator and has never contradicted this admission. Not only did the defendant know of the plan "to stick up a bank" and of the ability of his co-defendants, with their guns, to do this but, in...