U.S. v. Moore, s. 93-3213 and 93-3214

• Decision Date: 01 June 1994
• Docket Number: Nos. 93-3213 and 93-3214,s. 93-3213 and 93-3214
• Citation: 25 F.3d 563
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nicholas T. MOORE and Scott A. Anderson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 563

25 F.3d 563

UNITED STATES of America, Plaintiff-Appellee, v. Nicholas T. MOORE and Scott A. Anderson, Defendants-Appellants.

Nos. 93-3213 and 93-3214.

United States Court of Appeals, Seventh Circuit.

Argued April 13, 1994.

Decided June 1, 1994.

Richard N. Cox, Asst. U.S. Atty. (argued), Danville, IL, for U.S.

Kevin Colombo, Danville, IL, for Nicholas T. Moore.

Gregory G. Lietz (argued), Hutton, Laury, Hesser, Lietz & Wilcox, Danville, IL, for Scott A. Anderson.

Before BAUER, WOOD, Jr. and CUDAHY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

On July 16, 1992, Nicholas Moore and Scott Anderson entered the Wagner Credit Union in Decatur, Illinois. Brandishing handguns, they removed over $4,600 from a teller's drawer and swiftly made their escape. They were ultimately indicted for armed robbery of a credit union, in violation of 18 U.S.C. Sec. 2113(a), (d), and using or carrying a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 924(c). Following a jury trial both men were convicted on both counts. Moore received a sentence of 46 months imprisonment for the armed robbery and 60 months for the firearm violation. Anderson received a sentence of 51 months imprisonment for the armed robbery as well as 60 months for the firearm offense. Both defendants appeal their convictions. Moore alone appeals his sentence.

I.

The Wagner Credit Union is a small building with three teller areas at one end of its lobby. On the wall behind the teller area is a video surveillance camera, focused on the teller and lobby areas. Opposite the teller area is a door to the loan office. On the morning of July 16, 1992, Corliss Heckwine, a teller at the Credit Union, was working at the middle teller area. The area to her left was also open but unattended at that time. At approximately 9:15 a.m., two men entered the credit union. They were carrying guns and wearing hoods on their heads, which partially covered their faces. The first robber approached Heckwine and pointed a black gun at her face. She placed her hands in the air and said "Please don't shoot me." He then jumped onto the counter of the unattended teller window to Heckwine's left, reached into the teller drawer and removed some money. The other robber at this time was standing at the loan office door. He had one hand on the door knob and used the other to point a gun at the teller area. After removing the cash, the first robber jumped down from the counter. Both men then left the credit union, having stolen over $4,600.

The video surveillance camera recorded this entire event. The video tape showed that both robbers were carrying objects that resembled handguns, and were not wearing gloves. The tape also showed that the first robber placed his left hand on the counter top at the teller window. The second robber placed his left hand on the loan office door knob. The police used this video tape to help them locate possible areas to search for fingerprints. They took five fingerprints from the loan office door, the counter top, and the front door of the credit union. The Federal Bureau of Investigation examined these prints and compared them to known prints of the defendants. The investigator concluded that the prints from the counter top and the front door were made by Anderson, and the print on the loan office door knob was made by Moore.

For several months before and after the robbery, Moore's "girlfriend" was Julie Jackson. She was at Moore's residence on the morning of the robbery. Moore had asked her to stay to wait for a repairman while he went out. About one and one half hours later Moore returned with Anderson. Jackson saw them counting money which was laid out in small stacks. When Jackson asked where the money had come from, Moore replied that "they had robbed Wagner's Credit Union." Both men indicated that they wanted to watch the news to see if the police had any leads in the robbery. While they waited for the news to come on, Moore instructed Jackson to go to a friend's house to pick up a bag of charcoal. She drove to the friend's house. Anderson's car was parked there. She picked up the bag of charcoal and returned to Moore's home. The friend followed in Anderson's car. When she returned Moore and Anderson took two guns from the bag, emptied the bullets from the guns and cleaned the guns.

Both Moore and Anderson had been in the Wagner Credit Union before the robbery, although neither of them had accounts there. Anderson was in the day before with his brother, who does have an account there. His brother made some transactions at the window where the robbery occurred. Anderson was standing next to his brother during these transactions. Moore had been in the Credit Union the morning of the robbery. He came in at approximately 8:30 a.m., forty-five minutes prior to the robbery. He approached the teller who was at the window where the robbery occurred and requested a job application. This was recorded by the surveillance cameras. The video tape showed Moore looking around the lobby area. It also showed Moore watching as the head teller placed $3,000 in the teller drawer. After five minutes, Moore left the Credit Union without obtaining the requested application.

Both defendants were convicted of the charged offenses.

II.

Each defendant was charged with the offenses of: 1) robbery of a credit union by use of a dangerous weapon, in violation of 18 U.S.C. Sec. 2113(a), (d); and 2) using or carrying a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 924(c). Conviction of the second offense requires proof that the defendants possessed a "firearm" as that term is defined in the statute. That definition provides, in relevant part, that a firearm is "[a]ny weapon ... which will or is designed to or may readily be converted to expel a projectile by the action of an explosive." Conviction under the first statute requires proof of the use of a dangerous weapon, but that weapon need not meet the strict definition of "firearm" from section 921. In fact the dangerous weapon for purposes of the first statute need not be genuine or operable; it may even be a toy. See United States v. Martinez-Jimenez, 864 F.2d 664, 666 (9th Cir.), cert. denied, 489 U.S. 1099, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989). This distinction is crucial to many of the defendants' arguments.

A.

Two witnesses, Corliss Heckwine and Julie Jackson, both testified that they saw the defendants with guns or handguns on the day of the robbery. The defendants raise three points of error with respect to this testimony. First, they contend the witnesses lacked proper foundation to testify that the objects the defendants were holding were firearms. Essentially they claim that the witnesses were not sufficiently knowledgeable in the area of firearms to know, merely by looking, if the objects were capable of expelling projectiles by the action of an explosive. The witnesses, however, never testified expressly that the objects met the statutory definition of a firearm. They never even referred to the objects as firearms. They each testified only to what they personally saw, guns. Heckwine saw guns pointed at her, one of them only a few feet from her face. Jackson also saw the defendants cleaning the guns and removing bullets. Furthermore both witnesses had seen and fired a handgun before. Heckwine had also been robbed before. Jackson had grown up around her father's guns. Therefore both witnesses had a proper foundation to testify that what they saw were handguns. One need not be a firearm expert to testify that he or she has seen somebody carrying a gun, particularly not when that gun is pointed in the witness's face. See Parker v. United States, 801 F.2d 1382 (D.C.Cir.1986) (rejecting the argument that testimony concerning a Sec. 924(c) charge must be given by persons knowledgeable about firearms), cert. denied, 479 U.S. 1070, 107 S.Ct. 964, 93 L.Ed.2d 1011 (1987).

Prior to trial the defendants filed a motion in limine seeking to exclude any testimony regarding a firearm "that did not comport with the statutory definition of section 921(a)(3)." The district court properly denied that motion. The statutory definition of a firearm in section 921 was only relevant to Counts II and III. Count I of the indictment charged the defendants with robbery of a credit union by means of a dangerous weapon. This crime did not require any proof that the dangerous weapon involved met the statutory definition of a "firearm." Therefore barring any testimony relating to guns simply because it could not meet the definition of a firearm would have precluded the government from proving its case under Count I and would have been inappropriate.

As their third point of error regarding the testimony, the defendants argue that the jury could have been confused by the witnesses and government attorneys using the terms "guns," "handguns," and "firearms" interchangeably. We find that no such confusion could have occurred. First, the witnesses never used the term firearm, only guns and handguns. Second, although the prosecutor referred to the objects as firearms in the opening statement, the jury was properly instructed that those statements were not evidence. Finally, each party clearly articulated the difference between handguns for purposes of Count I and firearms for purposes of Counts II and III. The district court's instructions to the jury also clearly and correctly advised the jury of the definition of a firearm.

B.

Anderson and Moore both challenge the sufficiency of the evidence supporting their convictions on the armed robbery and firearm charges. This court will uphold a jury verdict if "any rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt, viewing the evidence and every reasonable inference in the light most favoring the prosecution." United States v. Colonia, 870 F.2d 1319, 1326 (7th Cir.1989). The government presented...