U.S. v. Price

• Decision Date: 12 January 1996
• Docket Number: No. 95-3333,95-3333
• Parties: UNITED STATES of America v. Thomas PRICE, Appellant. . Submitted Under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 526

76 F.3d 526

UNITED STATES of America v. Thomas PRICE, Appellant.

No. 95-3333.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit LAR 34.1(a)

January 12, 1996.

Decided Feb. 15, 1996.

Paul J. Brysh, Bonnie R. Schlueter, Office of United States Attorney, Pittsburgh, PA, for Appellee.

Charles J. Porter, Brucker, Zappala, Schneider & Porter, Pittsburgh, PA, for Appellant.

Before: SCIRICA, ALITO and SAROKIN, Circuit Judges.

OPINION OF THE COURT

SAROKIN, Circuit Judge:

On September 12, 1994, two masked men entered a branch of the Mellon Bank in Pittsburgh, Pennsylvania. One of them pointed a gun at a teller, while the other jumped over the counter and removed money from the bank drawers. Their deed done, the two men fled the bank, hopped in a waiting car and sped from the scene of the crime. Thomas Price was convicted in the United States District Court for the Western District of Pennsylvania of armed bank robbery, in violation of 18 U.S.C. §§ 2113(d) and 2, and knowingly and willfully carrying and using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2. Mr. Price now appeals his conviction on various grounds.

I.

Mr. Price first challenges the district court's instruction to the jury regarding the "use and carry" count.

Section 924 of Title 18 of the United States Code states, inter alia, that "[w]hoever, during and in relation to any crime of violence ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentenced to imprisonment for five years...." 18 U.S.C. § 924(c)(1).

Mr. Price was charged with violating this provision in the district court. At the end of the trial, the district court gave the jury the following instruction:

The indictment also charges that on or about September 12, 1994, in the western district of Pennsylvania, defendant Thomas Price used a firearm, a .45 caliber Norinco pistol, during a crime of violence, armed bank robbery.

In order to sustain its burden of proof for the crime of using a firearm during a crime of violence, the government must prove the following two essential elements beyond a reasonable doubt:

One, Defendant Thomas Price committed the crime of armed robbery as charged in the indictment; and

Two, during and in relation to the commission of that crime, the defendant knowingly used a firearm.

The government has charged Thomas Price with aiding and abetting this crime as well. All of the instructions that I previously gave you about aiding and abetting also apply to this charge.

. . . . .

The phrase uses or carries a firearm means having a firearm available to assist in the commission of the alleged armed bank robbery.

In determining whether defendant Thomas Price used or carried a firearm, you may consider all the factors received in evidence in the case, including the nature of the underlying crime of violence, the proximity of defendant to the firearm in question, the usefulness of the firearm to the crime alleged and the circumstances surrounding the presence of the firearm.

The government is not required to show that the defendant actually displayed or fired the weapon. The government is required, however, to prove beyond a reasonable doubt that the firearm was under defendant's control at the time the crime of violence was committed.

As I stated before, you must also consider whether the defendant aided or abetted the use or carrying of a firearm in arriving at your verdict.

If you find beyond a reasonable doubt that Thomas Price aided and abetted Charles Stubbs in the use of a firearm during the commission of the armed bank robbery, then you may find Mr. Price guilty of using a firearm during the commission of a felony, even though there is no proof that he actually had the firearm in his physical possession.

You may find that Mr. Price aided and abetted Mr. Stubbs in the use of a firearm during the commission of a felony only if you find beyond a reasonable doubt that Mr. Price knowingly joined in, aided or assisted in the bank robbery, that his action was willful and voluntarily taken and that he had knowledge that a firearm was to be used in the bank robbery.

Appendix at 451A-453A.

The two issues regarding this instruction are, first, whether having a firearm available to assist is sufficient to meet the second element of "using a firearm," and, second, whether one can be convicted under 18 U.S.C. § 924(c) on an "aiding and abetting" theory.

A.

Mr. Price argues that the district court erred when it instructed the jury that "[t]he phrase uses or carries a firearm means having a firearm available to assist in the commission of the alleged armed robbery" because that sentence "is an incorrect statement of the law in this Circuit." Appellant's Brief at 34. Specifically, he argues that under our holding in United States v. Theodoropoulos, 866 F.2d 587, 597 (3d Cir.1989), "availability alone [is] insufficient to establish a use in relation to a crime of violence." Appellant's Brief at 34. The government, in response, argues that "appellant Price's position is based upon a misreading of Theodoropoulos." Government's Brief at 17.

In Theodoropoulos, this Court held that

possession of a firearm constitutes use under section 924(c) if there is:

i) Proof of a transaction in which the circumstances surrounding the presence of a firearm suggest that the possessor of the firearm intended to have it available for possible use during the transaction....

866 F.2d at 597 (quoting U.S. v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988)) (emphasis added); see also U.S. v. Hill, 967 F.2d 902, 905 (3d Cir.1992) (holding that "[p]ossession of a firearm constitutes use under 18 U.S.C. § 924(c) where there is evidence 'that the defendant intended to have the firearm available for use or possible use during a crime of violence ... and that the firearm was placed in a spot where it was readily accessible at that time.' "); United States v. Reyes, 930 F.2d 310, 312 (3d Cir.1991) (same). This language closely parallels that used by the district court in the instant case. Accordingly, if Theodoropoulos did govern our construction of section 924(c)(1), we would hold that the district court properly instructed the jury.

Theodoropoulos, however, no longer governs. The United States Supreme Court recently issued an opinion in which it clarified the meaning of the term "use" in section 924(c)(1). Bailey v. United States, --- U.S. ----, ----, 116 S.Ct. 501, 505, 133 L.Ed.2d 472 (1995). In Bailey, the Court rejected the holding of Theodoropoulos and held that the "proximity and accessibility standard provides almost no limitation on the kind of possession that would be criminalized...." Id. at ----, 116 S.Ct. at 506. Rather, the Court held, "[Section] 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Id. at ----, 116 S.Ct. at 505. The Court further explained that "[t]he active-employment understanding of 'use' certainly includes brandishing, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at ----, 116 S.Ct. at 508. However, "[i]f the gun is not disclosed or mentioned by the offender, it is not actively employed and it is not 'used.' " Id.

Bailey's interpretation of the "use and carry" provision demands a different inquiry from that required under Theodoropoulos. It is no longer enough that the weapon be available to the defendant; rather, it must have played an active role in the perpetration of the predicate offense beyond emboldening the perpetrator. Therefore, we hold that the district court's instruction to the jury, while accurately reflecting the law of the Third Circuit at the time, was erroneous in light of Bailey. Furthermore, to the extent that our holding in Theodoropoulos conflicts with the Supreme Court's interpretation of "use" in Bailey, Theodoropoulos is overruled.

B.

Mr. Price was also charged with the section 924 count under an aiding and abetting theory, an instruction which he also disputes. He contends that "aiding and abetting liability is inapplicable to a charge of carrying and using a firearm during and in relation to a crime of violence." Appellant's Brief at 34.

We reject this argument. Under 18 U.S.C. § 2(a), "[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal." This section has been routinely applied in conjunction with section 924(c) to convict individuals of "aiding and abetting in using or carrying a firearm" in violation of 18 U.S.C. § 924(c). See, e.g., United States v. Wacker, 72 F.3d 1453 (10th Cir.1995); United States v. Pipola, No. 95-1264 (2d Cir. Dec. 22, 1995); United States v. Buchanan, 70 F.3d 818, 825 (5th Cir.1995); Dillon v. United States, 69 F.3d 537, 1995 WL 631434 (6th Cir.1995); United States v. Rivera, 68 F.3d 5, 7 (1st Cir.1995); United States v. Easter, 66 F.3d 1018, 1023-24 (9th Cir.1995), cert. denied sub nom. Jemerigbe v. United States, --- U.S. ----, 116 S.Ct. 547 (1995), and cert. denied sub nom. Ronnie O. Lea v. United States, --- U.S. ----, 116 S.Ct. 742, 133 L.Ed.2d 691 (1996); United States v. Warren, 42 F.3d 647, 651 (D.C.Cir.1994); United States v. Martin, 25 F.3d 211, 213 (4th Cir.1994); United States v. Chandler, 996 F.2d 1073, 1105 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2724, 129 L.Ed.2d 848 (1994); United States v. Travis, 993 F.2d 1316, 1321 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 229, 126 L.Ed.2d 184 (1993), and cert. denied, --- U.S. ----, 114 S.Ct. 245, 126 L.Ed.2d 198 (1993); United States v. Reiswitz, 941 F.2d 488, 492 (7th Cir.1991); see also United States v. Mathis, No. 93-454-01,...