U.S. v. Olson, 00-3905

• Decision Date: 14 May 2001
• Docket Number: No. 00-3905,00-3905
• Citation: 262 F.3d 795
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. KENT DAVID OLSON, DEFENDANT - APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 795

262 F.3d 795 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. KENT DAVID OLSON, DEFENDANT - APPELLANT.

No. 00-3905

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: May 14, 2001

Filed: August 21, 2001

Appeal from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted] Before Loken, John R. Gibson, and Murphy, Circuit Judges.

Loken, Circuit Judge

In November 1999, two men stole $11,000 from the First National Bank of Stacy, Minnesota and the Moose Lake Federal Credit Union of Sandstone, Minnesota. Following a tip received two days later, officers stopped a van driven by Kent Olson and found over $2000 in cash. Olson was arrested, waived his rights, and confessed to participating in the two robberies. The district court denied his motion to suppress, and a jury convicted him of violating 18 U.S.C. § 2113(a) by aiding and abetting the robbery of the Stacy bank (Count 1), and of violating 18 U.S.C. §§ 2113(a) and (d) by aiding and abetting the armed robbery of the Sandstone credit union. The district court sentenced Olson to concurrent prison terms, 240 months on Count 1 and 262 months on Count 2. He appeals, arguing the district court erred in denying his motion to suppress because the tip did not provide officers with reasonable suspicion justifying an investigative stop, and in denying his motion for acquittal on Count 1 because the indictment failed to allege an essential element of a § 2113(a) violation. We agree with Olson's second contention, vacate his conviction on Count 1, and remand for resentencing.

I. The Suppression Issue.

Three days after the Stacy bank robbery, a man carrying a handgun robbed the Sandstone credit union of approximately $8300. Two days later, Pine County Deputy Sheriff Gerald Wedell received a telephone call from a woman who said she had information about the credit union robbery. The caller asked to meet Deputy Wedell in Sandstone but agreed at his request to speak over the phone.¹ She stated that on the day of the Sandstone robbery, two men that she knew told her they had stolen guns the night before and were going to Sandstone to do their laundry. Shortly after they left, the caller heard a police broadcast of the robbery. When she saw these men the next day, one had shaved his head, the other had shaved his beard, and they had a large amount of cash which she estimated to be about $8000. The caller then told Deputy Wedell that one of the men was currently heading southbound on I-35 from Banning Junction to the Twin Cities, driving a white van with a brown stripe with license number 500 HIG. She identified the other man as Corey and said he lived in the Banning Trailer Court, just off the I-35 Banning Junction exit, and drove a 1992 gold Cadillac that may have weapons in the trunk.

Deputy Wedell broadcast the description and suspected location of the van over the dispatcher's radio and requested an investigative stop. State Trooper Jerry Trott observed a van matching the caller's description traveling southbound on I-35 near Hinckley. Deputy Wedell and other officers joined Trott, and they stopped the van. The officers ordered Olson out of the van, escorted him to a squad car, and frisked him, recovering two knives, a birth certificate, and $2296 in cash. Routine inquiries revealed that Olson had no valid driver's license or proof of insurance. During the discussion, Olson commented, "this must be about the bank robbery." He was arrested and later confessed that he drove the getaway car during the Stacy bank robbery, and that he robbed the Sandstone credit union while his co-defendant, Corey Jeffrey, drove the getaway car.

Olson moved to suppress the evidence obtained during the stop of his van, arguing that the caller's anonymous tip did not provide the officers with reasonable suspicion justifying an investigative stop. Alabama v. White, 496 U.S. 325, 331 (1990), held that a sufficiently corroborated anonymous tip may establish reasonable suspicion justifying an investigative stop. Following an evidentiary hearing, the district court denied the motion, concluding that the caller's information, with corroboration, bore sufficient indicia of reliability to support the investigative stop. Olson argues that the caller's tip offered no basis for the information conveyed and was not sufficiently corroborated to establish reasonable suspicion justifying the stop. Having reviewed the district court's findings of fact for clear error and the Fourth Amendment seizure issue de novo, we disagree. See Ornelas v. United States, 517 U.S. 690, 699 (1996) (standard of review).

The caller in this case was not a completely anonymous informant. She asked to meet with Deputy Wedell in person and provided her name and address. Her willingness to meet and be identified indicated reliability. Moreover, the detailed information she provided strongly suggested firsthand knowledge. She described conversations with the two men and noted their changed appearances the day after the robbery. She said they had a large sum of cash, approximately the amount of the credit union robbery proceeds. She provided detailed information about their current whereabouts and their motor vehicles. Finally, the officers corroborated much of this information when they observed a van matching the caller's description driving on I-35 in the area and direction the caller had described. "[I]t is immaterial that the details corroborating an informant's tip are as consistent with innocent conduct as with illegal activity." United States v. McBride, 801 F.2d 1045, 1047 (8th Cir. 1986), cert. denied, 479 U.S. 1100 (1987). With this corroboration, the officers had reasonable suspicion that the driver of the van had been involved in the credit union robbery, and that justified their investigative stop. See United States v. Bell, 183 F.3d 746, 749 (8th Cir. 1999).

II. The Indictment Issue.

Count 1 of the indictment charged Olson and his co-defendant with the Stacy bank robbery in the following manner:

each [defendant,] aiding and abetting the other, did take from the person and presence of a victim teller approximately $2,736 in money belonging to and in the care, custody, control, and possession of the First National Bank, Stacy, Minnesota, the deposits of which were then insured by the Federal Deposit Insurance Corporation; all in violation of Title 18, United States Code, Section 2113(a).

At the close of the government's case, Olson moved for judgment of acquittal on Count 1 on the ground that the indictment failed to allege a violation of 18 U.S.C. § 2113(a). His attorney explained:

[Count 1] does not allege that the taking [from the teller] was by force, violence or intimidation, and the defendant is of the position that this count charges no crime whatsoever.... At best this count alleges [a violation of] 2113(b).... If it alleges anything it alleges that and I don't concede that it alleges that.

In response, counsel for the government argued that the post-trial objection was untimely and Count 1 gave Olson fair notice of the charge. "I think all we need to do is, if anything, just add in the language... force, violence and intimidation." The court refused to amend the indictment but denied Olson's motion because Count 1 cited § 2113(a) and the statute clearly states the elements of the offense. The court then instructed the jury in the language of the statute, including use of force and violence or intimidation in the elements of the offense. Olson appeals that ruling.

To be sufficient, an indictment must "contain[] the elements of the offense charged." Hamling v. United States, 418 U.S. 87, 117 (1974); see FED. R. CRIM. P. 7(c)(1). The government intended to charge Olson with violating the following subpart of the first paragraph of § 2113(a):

§ 2113 Bank robbery and incidental crimes

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another... any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association... [s]hall be fined under this title or imprisoned not more than twenty years, or both.

The parties agree that the use of force or intimidation is an essential element of this offense. Count 1 contains no clear...