U.S. v. Reed

• Decision Date: 06 July 1994
• Docket Number: No. 93-8305,93-8305
• Citation: 26 F.3d 523
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Steven REED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 523

26 F.3d 523

UNITED STATES of America, Plaintiff-Appellee, v. John Steven REED, Defendant-Appellant.

No. 93-8305.

United States Court of Appeals, Fifth Circuit.

July 6, 1994.

M. Carolyn Fuentes and Philip J. Lynch, Asst. Federal Public Defenders, Lucien B. Campbell, Federal Public Defender, San Antonio, TX, for appellant.

Joseph H. Gay, Jr., and Richard L. Durbin, Jr., Asst. U.S. Attys., James H. DeAtley, U.S. Atty., San Antonio, TX, for appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD and EMILIO M. GARZA, Circuit Judges, and HEAD ^*, District Judge.

HAYDEN W. HEAD, Jr., District Judge:

John Steven Reed appeals from his conviction and sentencing on a two-count indictment charging him with bank robbery under 18 U.S.C. Secs. 2113(a), (d), and (e), and with using and carrying a firearm during a crime of violence. He argues the evidence was insufficient to establish a violation of 18 U.S.C. Sec. 2113(e); the district court erred in denying defendant's motion to suppress the fruits of the warrantless search and seizure of evidence from defendant's car; at sentencing, the district court erred in adjusting defendant's offense severity level upwards based on a finding that the victim suffered from post-traumatic stress disorder; and the district court's finding at sentencing that defendant's testimony at the suppression hearing constituted an obstruction of justice misapplied the law of perjury. We affirm.

FACTS AND PROCEEDINGS BELOW

At 6:45 a.m. on September 4, 1992, Sherrie Mack, an employee of the Public Employees' Credit Union in Austin, Texas, arrived at work. After she unlocked the first of two locks on the rear door of the credit union, she felt a gun in her back and a hand on her shoulder. When she turned around, she saw a tall man wearing an "old man's mask," black clothing and gloves, and a black "cape-like" garment.

Following the man's directions, she finished unlocking the door of the credit union, walked inside, and turned off the alarm system. She then led him to the vault and opened it. The robber gave her a bag and told her to put the money from the vault in the bag. She did so, also placing a pack of bills containing a tracking device ¹ in the bag. When she finished, the robber ordered her to lie face down on the floor and to place her hands behind her back. He then handcuffed her, tied her feet with a cord, and tried to blindfold her with duct tape. He missed her eyes, however, and wrapped the tape around her forehead.

The robber left the credit union in Mack's car. After he left, she managed to free herself and called the police. Several police cars equipped with tracking devices, along with a helicopter, followed the radio signal to the residence of Reed and his wife. Using a hand-held tracking device, the police followed the signal to a Honda parked in the driveway of the house. They saw nothing in the passenger compartment of the car, and the strongest source of the signal was the trunk. Upon checking, the officers learned the car was registered to Mathew Jeanette Reed with an address different from that of the house. Further, the officers checked the utilities for the house, and discovered they were registered under a different name.

Two officers knocked on the front door of the house and announced "Austin Police." Defendant answered the door, and the officers pulled him out onto the porch to insure their own safety, where defendant identified himself as John Reed. Reed was then placed in the custody of one officer, and two other officers entered the house, where they encountered Reed's wife. One officer saw a set of car keys on a table and asked Mrs. Reed if they were the keys to the Honda. She replied they were. Using the keys, the police opened the trunk of the Honda, finding the stolen money, an "old man" mask, black sweatpants, a black windbreaker, gloves, a roll of duct tape, and a loaded handgun. The police did not obtain a warrant before opening the trunk, though both the Reeds were handcuffed and in custody, and the police had the keys to the car.

While police were searching the house and the car, an officer handcuffed Reed, took him to a police car, and read him a Miranda warning. He then questioned Reed about the location of Mack's car, but Reed denied knowledge of the car. Another officer approached and stated the money taken from Reed was indicted in a two-count indictment: (1) bank robbery in violation of 18 U.S.C. Secs. 2113(a), (d), and (e); and (2) using and carrying a firearm during a crime of violence in violation of 18 U.S.C. Sec. 924(c). Before trial, he moved to suppress his statements and the evidence seized as a result of the warrantless search of his car. The district court denied the motion, holding the warrantless search was proper because exigent circumstances existed. Additionally, the court found the search came within the "plain view" exception to the warrant requirement. Further, the court held Reed's statements were voluntary. After a jury trial, he was convicted on both counts of the indictment.

the credit union and clothing worn by the robber was found in the trunk of Reed's car. Eventually, Reed agreed to take the police to Mack's car. After driving around Austin, they located the car in an apartment parking lot.

The district court sentenced Reed to 160 months' imprisonment on count one and a consecutive 60-month term of imprisonment on count two. At sentencing, the presentence investigation report recommended the court enhance Reed's offense level based on Mack's post-traumatic stress disorder resulting from the robbery. The court found Mack's disorder to be a "severe bodily injury" and enhanced Reed's offense level by four levels pursuant to U.S.S.G. Sec. 2B3.1(b)(3)(B). Further, the court assessed a two-level obstruction of justice adjustment for perjury during Reed's testimony at the suppression hearing pursuant to U.S.S.G. Sec. 3C1.1.

DISCUSSION

A. Insufficient Evidence to Support Conviction Under 18 U.S.C. Sec. 2113(e)

Title 18, U.S.C. Sec. 2113(e) makes it an aggravated circumstance of the crime of bank robbery for the robber to force any person to accompany him without the consent of that person. ² Upon conviction, the minimum sentence is ten years. The scope of the phrase "to accompany him" is at issue here. Section 2113(e) does not expressly set forth how extensive accompaniment must be to prove this aggravated form of bank robbery, nor has this Circuit decided this issue.

Reed argues the evidence that he forced Mack to walk the short distance from the bank's door to the vault is insufficient, as a matter of law, to support his conviction under 18 U.S.C. Sec. 2113(e). He argues Congress enacted Sec. 2113(e) with the intent to punish the distinct crime of kidnapping that often accompanies the crime of bank robbery, rather than forced movement that is incidental to the crime of bank robbery. Accordingly, he argues, the government should be required to prove a more significant asportation than that involved here. The government should have to prove an asportation similar to that required to sustain a conviction under common law kidnapping or under the federal kidnapping statute, 18 U.S.C. Sec. 1201. Because the movement in this case was incidental to the commission of the robbery itself, and did not amount to the separate crime of kidnapping, Reed argues the Court should reverse his conviction under Sec. 2113(e). Reed cites United States v. Marx, 485 F.2d 1179 (10th Cir.1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974) ³ and United States v. Sanchez, 782 F.Supp. 94 (C.D.Cal.1992) ⁴, as support for the proposition that Sec. 2113(e) is intended to punish kidnapping, in the sense of the common law crime or the federal kidnapping statute, rather than forced movement that is incidental to the crime of bank robbery.

In response, the government argues the record belies Reed's argument that the asportation was insubstantial and incidental to the commission of the crime. Further, the government argues Reed's argument is contrary to the express language of the statute and interpretive case law. The government argues that case law establishes that the asportation element of Sec. 2113(e) is satisfied when the defendant forces any person to accompany him without the consent of such person while committing an armed bank robbery. Finally, the government attempts to distinguish the facts at hand from those in Marx and Sanchez by arguing the facts in those cases constituted a much lower degree of violence and danger than the actions of Reed. The government's position is that Reed's threatening of Mack with a gun outside the credit union, and his forcing her to enter with him constituted a significant change in her environment and served to increase the risk of danger to which she was exposed.

The government cites United States v. Bauer, 956 F.2d 239 (11th Cir.) cert. denied, --- U.S. ----, 113 S.Ct. 469, 121 L.Ed.2d 376 (1992), as support for its argument. In Bauer, the defendant chose two women bank employees as hostages to accompany him in his escape from the bank. He did not, however, execute his plan of escape; he released the women before leaving the bank when he realized the police presence outside the bank was overwhelming. The defendant claimed there was insufficient evidence to convict him under Sec. 2113(e) because the government did not prove that defendant ever left the premises with his hostages. The Eleventh Circuit held the statute does not require "that the hostages traverse a particular number of feet, that the hostages be held against their will for a particular time period, or that the hostages be placed in a certain quantum of danger.... [T]he government need not prove that the defendant took his hostages off the bank premises. In this case, the government's proof was more than sufficient to convict under Sec. 2113(e)." Id. at 241-42.

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