U.S. v. Nelson, 77-5086

• Decision Date: 02 June 1978
• Docket Number: No. 77-5086,77-5086
• Citation: 574 F.2d 277
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesse Louis NELSON and Benny Lee White, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 277

574 F.2d 277

UNITED STATES of America, Plaintiff-Appellee, v. Jesse Louis NELSON and Benny Lee White, Defendants-Appellants.

No. 77-5086.

United States Court of Appeals Fifth Circuit.

June 2, 1978.

John T. Mulvehill, Federal Public Defender, Richard T. Simmons, Jr., Asst. Federal Public Defender, New Orleans, La., for defendants-appellants.

John P. Volz, U. S. Atty., Mary Williams Cazalas, Daniel A. Bent, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, Circuit Judge, SKELTON, Senior Judge, ^* and HILL, Circuit Judge.

THORNBERRY, Circuit Judge:

Defendants-appellants Jesse Louis Nelson and Benny Lee White were charged with bank robbery in a two-count indictment. The government's theory of the case was that appellant Nelson was the principal, and that he alone entered the bank with a handgun and by using it robbed the bank and put the lives of the bank employees in jeopardy, while appellant White aided and abetted Nelson in the crime by waiting for him in the getaway car outside of the bank.

Nelson and White were apprehended after a high-speed chase during which the police fired at the tires of their car. The car in which they were riding stopped only when it struck a police car blocking the road. Officers found a bag of money in the car, including bait money stolen in the robbery, and also a .22 caliber revolver. Appellants explained their circumstances by stating, in testimony at their trial, that while they had gone to the victim bank earlier in the day, appellant White had forgotten his bank book and saw no reason to stop at the bank. They then proceeded with a planned fishing expedition and while looking for a likely spot they picked up a hitchhiker who sat in the back seat of the car. Appellants testified that after the hitchhiker left the car at New Sarpy, Louisiana, Nelson discovered the money and gun in the back seat. They also asserted that until the collision occurred they did not know who was chasing them because they could not see that the pursuing cars were marked as police cars. ¹

In this appeal ² both appellants assert that the district court erred in allowing the prosecutor, over defense objection, to elicit an impeaching statement during prosecution rebuttal without laying a proper foundation for the statement and without a hearing outside the jury's presence. They also contend that the impeaching statement was inadmissible under Rule 11(e)(6) of the Federal Rules of Criminal Procedure. Appellant White complains that the trial court's erroneous instructions to the jury resulted in an inconsistent verdict, entitling him to a new trial or alternatively to have his conviction under 18 U.S.C. § 2113(d) set aside and to be re-sentenced under 18 U.S.C. § 2113(a). We find no merit in the contentions relating to impeaching statements. Appellant White's complaint on inconsistent verdicts is another matter. We find that White's conviction under 18 U.S.C. § 2113(d) is inherently inconsistent with this acquittal under 18 U.S.C. § 924(c)(1). Under the limited circumstances of this case there is no need for a new trial and we therefore reverse the 18 U.S.C. § 2113(d) conviction with directions that White be re-sentenced under 18 U.S.C. § 2113(a).

One other problem must be resolved on this appeal. After the panel heard oral argument in this case but prior to its decision, the Supreme Court decided Simpson v. United States, --- U.S. ----, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) relating to sentencing under both 18 U.S.C. § 2113(d) and 18 U.S.C. § 924(c) (1). We must determine Simpson's effect on this appeal.

Nelson's Prior Statement

Both appellants attack the introduction of a prior statement allegedly made by Nelson, after his arrest, to detective Edward Steward. Nelson allegedly told Steward that he found the money along Highway 61 while looking for a place to fish. Testimony relating to that statement was elicited during cross-examination of Nelson. ³ Nelson and White claim that its admission violates Rule 11(e)(6) of the Federal Rules of Criminal Procedure, that it was admitted without sufficient foundation and that no determination was made of the voluntariness of the statement.

Rule 11(e)(6) deals with the admissibility of guilty pleas and of nolo contendere, later withdrawn; with offers to plead guilty and of nolo contendere, to the crime charged or any other crime; and, with statements made in connection with, and relevant to, any of the foregoing pleas or offers. It provides that such evidence is not admissible in any civil or criminal proceeding against the person who made the plea or offer. The statement of the appellant Nelson was entirely exculpatory. Its obvious and only purpose was to deny and avoid guilt. Thus, even, if it were technically inadmissible under Rule 11(e)(6), United States v. Herman, 544 F.2d 791, 796 (5 Cir. 1977), its consideration could not have had impact on the jury's decision and its admission was harmless error. United States v. Martinez, 536 F.2d 1107 (5 Cir. 1976), cert. denied, 429 U.S. 985, 97 S.Ct. 505, 50 L.Ed.2d 597 (1977).

Appellants' second complaint concerning the statement, that it was elicited without sufficient foundation, is equally without merit. Nelson squarely stated in cross-examination that if Steward claimed that he had first been told by Nelson that the money was discovered alongside of the highway, that statement would be incorrect. His testimony clearly implied that he had not told the story. That was sufficient foundation for the government to introduce Steward as a rebuttal witness and prove the prior inconsistent statement by his testimony.

Finally appellants argue that the statement was admitted in violation of the "voluntariness standard". The point was raised for the first time before this court. There was no mention nor questioning of the voluntariness of the statement at the time counsel for appellants sought the protective order nor in the objection made prior to the admission of the rebuttal testimony. Nothing in the record before us indicates such plain error that we are required to grant appellants relief on this basis.

The Effect of Simpson v. United States

The Supreme Court held in Simpson that petitioners convicted of two separate aggravated bank robberies and of using firearms to commit the robberies and sentenced to consecutive sentences under 18 U.S.C. § 2113(d) and 18 U.S.C. § 924(c)(1) were entitled to have their 18 U.S.C. § 924(c) convictions vacated. The Simpson brothers received consecutive sentences; Nelson's sentences were concurrent. The government argued that this difference precluded Simpson's application to Nelson. We disagree. In Simpson the Court eschewed a constitutional analysis and based its decision upon statutory interpretation. The Court determined that both congressional intention, as established by the legislative history, and the established rule of construction that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity mandated that defendants not be sentenced under both statutes. The Supreme Court's holding stated:

(I)n a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced under both § 2113(d) and § 924(c).

It made no reference to the distinction between consecutive and concurrent sentences. Moreover the application of the concurrent sentence doctrine is discretionary. United States v. Evans, 572 F.2d 455 (5 Cir. 1978); United States v. Ashley, 569 F.2d 975 (5 Cir. 1978). Adherence to Supreme Court interpretation of federal criminal statutes is not. We hold that appellant Nelson is entitled to have his § 924(c) conviction vacated and we so order. Simpson is of no aid to appellant White because he was not convicted of the § 924(c) offense. We therefore consider his problem separately.

White's Claim of Erroneous Jury Instructions

With regard to appellant White's claim of erroneous instruction to the jury, we reach a different result. The defendants-appellants were charged with bank robbery in a two-count indictment. Count I charged Nelson and White with bank robbery under 18 U.S.C. § 2113(a), 18 U.S.C. § 2113(d), and 18 U.S.C. § 2. Count II charged the appellants with the use of a firearm to commit a felony under 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2. In a jury trial appellant Nelson was convicted on both counts while appellant White was convicted on Count I and acquitted on Count II. He now complains that, as applied to him, the trial court gave erroneous instructions to the jury that resulted in inconsistent verdicts, with the result that he is entitled to either a new trial or a remand for resentencing.

We agree that the court's instructions to the jury were erroneous and resulted in White's improper conviction for the 18 U.S.C. § 2113(d) offense. Count I charged the appellants with violations of 18 U.S.C. §§ 2113(a) and 2113(d). ⁴ Broadly speaking a violation of § 2113(a) requires that a defendant forcefully or violently take from the person or presence of another money or property that belongs to or is in the possession of a bank or savings and loan. Section 2113(d) requires that a defendant commit the offense described in Section 2113(a) and that he additionally assault or put in jeopardy the life of any person by the use of a dangerous weapon or device. ⁵ Count II of the indictment charged a violation of 18 U.S.C. § 924(c)(1), the use of a firearm to commit a felony for which the defendant may be prosecuted in a United States court.

During their deliberations the jury asked the trial court the following questions:

There is a discussion of one person not using a firearm. Can one person be convicted on Count One and not Count Two? If one had knowledge of a weapon, would this constitute use of a weapon?

The district judge responded by writing the following:

1. Yes,...