U.S. v. Ruiz

• Decision Date: 15 March 1993
• Docket Number: No. 92-8033,92-8033
• Citation: 986 F.2d 905
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricardo RUIZ and Tyrone Michael Crawford, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 905

986 F.2d 905

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo RUIZ and Tyrone Michael Crawford, Defendants-Appellants.

No. 92-8033.

United States Court of Appeals, Fifth Circuit.

March 15, 1993.

John H. Whitaker, El Paso, TX, for Ruiz.

Henry J. Bemporad, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, and Robert J. Perez, Asst. Federal Public Defender, San Antonio, TX, for Crawford.

LeRoy Morgan Jahn, Richard L. Durbin, Jr., Joan E.T. Stearns, Asst. U.S. Attys., and Ronald F. Ederer, U.S. Atty., San Antonio, TX, for the U.S.

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

Before WISDOM, JOLLY, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

I. Facts and Procedural History

On August 25, 1991, Ricardo Ruiz and Tyrone Michael Crawford went in Ruiz's truck to the Military Clothing Sales Store at Fort Bliss in El Paso, Texas. After arriving at the store, Ruiz waited with the truck engine running, while Crawford, who had a gun in his pocket, went to the back door of the store.

After hearing Crawford at the back door, the shift supervisor at the store, Martha Garner, opened the door thinking Crawford was an employee's spouse. Crawford then attempted to force his way inside the store, and Garner believing that Crawford was going to harm her, struggled to escape. Crawford grabbed her arm and tried to drag her back into the store, however, he did not display a gun nor did he tell Garner that he had a gun.

Garner eventually pulled away from Crawford and ran to a Military Police guard shack located 30-40 yards from the store, and told the guards to stop the truck. In the meantime, Crawford jumped back into the truck and Ruiz sped out of the parking lot. While still on the fort, Crawford threw away the gun, and got out of the truck and started walking. After Crawford got out, a guard stopped Ruiz's truck whereon Ruiz told the guard that Crawford had thrown the gun from the truck. The gun, fully loaded, was found about two blocks from where Ruiz told the guard Crawford had tossed it. The gun was later proved to be inoperable because its firing pin had been filed down; but, it was, however, functional in every other respect.

Ruiz agreed to talk to the guards and did not request a lawyer. He drove around the fort with the guards and identified Crawford as he was attempting to leave the fort. At the MP station, Special Agent Steven Malkiewitcz of the FBI interviewed Ruiz, who first denied that he knew about the robbery, but later admitted to having helped plan the robbery and to having known prior to the attempted robbery that Crawford would have a gun with him.

Crawford waived his right to a lawyer. He first gave Malkiewitcz a false name and said that Ruiz had not known about the robbery. He later admitted his true identity, that he had attempted to rob the store, that Ruiz knew about the robbery, and that Ruiz knew Crawford would be carrying a gun. Crawford told Malkiewitcz that he took the gun to threaten the employees of the store, and had loaded it in case someone in the store started firing at him.

Ruiz and Crawford were charged in a three-count indictment that stated: (1) Ruiz and Crawford assaulted a person having charge of money and other property of the United States with the intent to rob, and in so doing put the life of the victim in jeopardy by the use of a dangerous weapon, in violation of 18 U.S.C. § 2114 (count one); (2) Ruiz and Crawford used and carried a firearm during and in relation to a crime of violence, i.e., the assault with intent to rob described in count one, in violation of 18 U.S.C. § 924(c)(1) (count two); and (3) Crawford, as a convicted felon, possessed a firearm which had been shipped in interstate commerce, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2) (count three). After a trial, a jury by general verdicts found Crawford "guilty" on all three counts. It found Ruiz "not guilty" on count one, but found him "guilty" on count two. The district court sentenced Ruiz to a five-year term of imprisonment and a three-year term of supervised release, and ordered him to pay a $1,000 fine and a $50 special assessment. The court sentenced Crawford to 63-month terms of imprisonment on counts one and three and to a 60 month term of imprisonment on count two, ordered the terms for counts one and three to be served concurrently, and the term for count two to be served consecutively to the term for counts one and three. It also ordered Crawford to serve three years of supervised release, pay a $50.00 special assessment on each count, and pay $982.77 in restitution to Garner. Ruiz and Crawford appeal.

II. Analysis

A. 18 U.S.C. § 2114

In his first issue, Crawford contends that the evidence was insufficient as a matter of law to support his conviction under 18 U.S.C. § 2114. Crawford contends that the jury could not have found that he put Garner's life in jeopardy by the use of a dangerous weapon in that there was no evidence that he "used" the gun when he attempted to enter and rob the Military Store. It is undisputed that Crawford never displayed the gun and Garner, his victim, never knew of its existence.

The burden of proof is on the government to prove each element of the offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). In determining whether this burden has been met, the evidence and all reasonable inferences that may be drawn from the evidence must be viewed in the light most favorable to the government. United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir.1986). When reviewing the evidence to determine whether it is sufficient, this Court decides whether a "rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt." United States v. Juarez-Fierro, 935 F.2d 672, 677 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 402, 116 L.Ed.2d 351 (1991). ¹

The district court (USDC) instructed the jury that "for the weapon to have been used, it must be proved that the defendant not only possessed the weapon, but that he intentionally displayed it in some manner." Crawford contends because he never displayed the gun, and, indeed, the government concedes he did not, there is insufficient evidence that he "used" the gun, and therefore the facts in the present case are insufficient as a matter of law to support his conviction. Crawford points out that he never removed the gun from his pocket, and Garner had no idea that Crawford had a gun as he neither referred to the gun nor otherwise implied that he possessed a gun. The only other person who knew that Crawford possessed the gun was Ruiz. After the attempted robbery, Crawford threw the gun away before being arrested.

This Court has not yet decided whether a dangerous weapon is "used" within the meaning of Section 2114 if a defendant possessed a weapon when he committed a crime, but never displayed or mentioned the weapon. The Seventh Circuit, however, recently affirmed a defendant's conviction under Section 2114 when a gun was present at a robbery, but was not taken out of the defendant's pocket until after the robbery had been completed. United States v. Rodriquez, 925 F.2d 1049, 1051-53 (7th Cir.1991). The court reasoned that "the ready availability of the gun likely emboldened ... [the defendants] even if, at first, the gun was not drawn." Id. at 1052-53. Likewise, in an analogous statute--18 U.S.C. § 924 ²--this court has liberally interpreted the "use" provision. Section 924 provides for enhancement when the defendant "uses or carries" a firearm. In United States v. Coburn, 876 F.2d 372 (5th Cir.1989), this court held that a defendant "uses" a firearm under Section 924, if the firearm had the effect of "emboldening an actor who had the opportunity or ability to display or discharge the weapon to protect himself or intimidate others, whether or not such display or discharge in fact occurred...." Id. (quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985)). This court stated "the government need not prove an actual use or brandishing of the weapon" for possession of the weapon to constitute the proscribed "use." Id. In United States v. Contreras, 950 F.2d 232 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2276, 119 L.Ed.2d 202 (1992), this court held that the "government does not have to show ... a defendant actually used or brandished the firearm to prove 'use' within the meaning of Section 924(c)."

Therefore, while we find Crawford's contention that he did not "use" the gun initially appealing, ultimately we reject it in favor of the reasoning espoused by the Seventh Circuit in Rodriquez and this court in Coburn and Contreras and hold a defendant need not display a gun to be convicted of "using" a dangerous weapon under Section 2114. We so hold because it would be inconsistent to interpret "use" one way in Section 2114 and another way in Section 924. Having so held, there was sufficient evidence showing that the ready availability of the gun emboldened Crawford in that by his own admission, he took the gun to the store to threaten the store's employees, and loaded it in case someone started firing at him. Emboldened by the gun, Crawford "used" a dangerous weapon within the meaning of Section 2114 and, by so using, placed Garner's life in danger.

However, the USDC instructed the jury that defendants could only be convicted under Count one (the Section 2114 charge) if "he intentionally displayed ... [the gun] in some manner." The government objected to this instruction which had been requested by defense counsel. We are faced therefore with a unique situation in which the court's instruction was not raised by the evidence, and for the reasons discussed in the preceding paragraph, was not legally correct; but the jury proceeded to find Crawford guilty under this count in spite of the instruction. Under these circumstances,...