U.S. v. Shores, 90-3462

• Decision Date: 22 July 1992
• Docket Number: No. 90-3462,90-3462
• Citation: 966 F.2d 1383
• Parties: 36 Fed. R. Evid. Serv. 653 UNITED STATES of America, Plaintiff-Appellee, v. Charles Wayne SHORES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1383

966 F.2d 1383

36 Fed. R. Evid. Serv. 653

UNITED STATES of America, Plaintiff-Appellee, v. Charles Wayne SHORES, Defendant-Appellant.

No. 90-3462.

United States Court of Appeals Eleventh Circuit.

July 22, 1992.

Andrea Wilson, Asst. Federal Public Defender, Tampa, Fla., for defendant-appellant.

Monte C. Richardson, Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON and COX, Circuit Judges, and RONEY, Senior Circuit Judge.

PER CURIAM:

Following a jury trial, Charles Wayne Shores was convicted of attempted bank robbery. 18 U.S.C. § 2113(a). He was sentenced to imprisonment for ninety-seven months, to be followed by three years of supervised release. Shores appeals both his conviction and sentence. We affirm his conviction, but vacate his sentence and remand for resentencing.

I. FACTS AND PROCEDURAL HISTORY

In October 1989, Shores lived in St. Petersburg, Florida. During that time, he met Robert Lyle, who unbeknownst to Shores, was a confidential informant for the police. The two men began to plan a bank robbery. Lyle introduced Shores to police detective Leo Cordero as if Cordero were one of Lyle's drug dealing friends. The three subsequently agreed to rob a bank.

In preparation for the robbery, Shores purchased a toy gun at a local K-Mart. On the morning of November 3, 1989, the three men set out to rob a bank. Upon arriving at the Florida Federal Savings Bank, Shores and Lyle exited the vehicle and walked toward the main entrance. The police intercepted and arrested Shores within ten feet of the bank entrance. The police retrieved the toy gun from Shores's right pocket. The toy gun was never drawn, nor did Shores ever go inside the bank.

Following his arrest, Shores initially told police that his name was Chuck Richards. However, Shores revealed his true identity a short time after his arrest, prior to his booking.

At trial, the Government offered into evidence an admission by Shores that he had previously robbed a bank. Evidence offered by the Government also showed that Shores had admitted being knowledgeable about bank security procedures and internal operations, as well as the use of dye-packs. Shores's admission about the previous bank robbery was admitted without objection. Shores did object to the court's jury instruction on how to consider the evidence.

Shores also objected to the Pre-sentencing Investigation Report (PSI), which the court relied on for sentencing. Specifically, Shores challenged the court's (1) imposition of a three-level increase in his base offense level for use of a dangerous weapon; (2) assessment of a two-level increase for obstruction of justice based on Shores's use of a false name; and (3) denial of Shores's request for a two-level reduction due to his acceptance of responsibility.

II. ISSUES

(1) Whether the district court erred in instructing the jury on how to consider similar act evidence under Rule 404(b) of the Federal Rules of Evidence.

(2) Whether the district court erred in assessing Shores a three-level adjustment for possession of a dangerous weapon.

(3) Whether the district court erred in assessing Shores a two-level adjustment for obstruction of justice.

(4) Whether the district court erred in refusing to credit Shores a two-level reduction for acceptance of responsibility.

III. STANDARDS OF REVIEW

A district court's decision to admit similar act evidence will be disturbed on review only if the decision was a clear abuse of discretion. United States v. Russell, 703 F.2d 1243, 1249 (11th Cir.1983); United States v. Edwards, 696 F.2d 1277 1280 (11th Cir.), cert. denied, 461 U.S. 909, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1983).

Alleged errors in a jury instruction are reviewed by this court to determine whether the court's charge, " 'considered as a whole, sufficiently instructs the jury so that the jurors understand the issues involved and are not misled.' " Mark Seitman & Associates, Inc. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1531 (11th Cir.1988) (citation omitted); Johns v. Jarrard, 927 F.2d 551, 554 (11th Cir.1991).

In reviewing a district court's application of the sentencing guidelines, this court examines findings of fact under a clearly erroneous standard. 18 U.S.C. § 3742(e); United States v. Forbes, 888 F.2d 752, 754 (11th Cir.1989). Questions of law, however, are reviewed by this court de novo.

IV. DISCUSSION

1. Similar Act Evidence Instruction

Shores contends that the district court erred in admitting statements made by him to the effect that he had previously robbed a bank. He argues that allowing the statements into evidence violates Rule 404(b) and United States v. Beechum, 582 F.2d 898 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). ¹

Shores did not object to this evidence when it was offered; rather, he objected to the jury instruction. Yet on appeal he argues that the court erred in both admitting the evidence and in instructing the jury on how to consider it. We will not become entangled in procedural issues, however, because the evidence was properly admitted and the jury was properly instructed on how to consider it.

Rule 404(b) provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Fed.R.Evid. 404(b).

In United States v. Beechum, the former Fifth Circuit interpreted Rule 404(b) to require that the evidence be (1) "relevant to an issue other than the defendant's character" and (2) "possess probative value that is not substantially outweighed by its undue prejudice." Beechum, 582 F.2d at 911.

We, in turn, have interpreted Beechum's first prong as also requiring "a finding of sufficient evidence to prove that the defendant committed the offense." Edwards, 696 F.2d at 1280. In other words, Beechum requires a finding that the jury could find that the defendant committed the offense. Id.

Shores argues that the lack of detail concerning the alleged prior robbery, coupled with the fact that there was no corroboration of the event, renders the statements insufficient under Beechum. We believe, however, that the jury could find that Shores committed the robbery based solely on his admission, despite both the lack of detail present in the admission and absence of corroboration. See United States v. Pollard, 509 F.2d 601, 604 (5th Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2419, 44 L.Ed.2d 681 (1975); Edwards, 696 F.2d at 1280.

A juror is free to disbelieve the proffered testimony based on its lack of detail and corroboration; however, this does not mean that there is not sufficient evidence for a reasonable juror to find that the defendant could have indeed committed the offense. Furthermore, in this case Shores admitted, among other things, knowledge about how to rob a bank, the internal operation of banks, and how a dye-pack is put together. R-66-15. A juror could certainly infer from all the evidence presented that Shores could have committed the prior robbery that he had previously admitted to others.

As for the court's instruction to the jury, the court explained that the similar act evidence was admitted solely for the purpose of proving Shores's state of mind, not to prove that Shores committed the charged bank robbery. This instruction was proper.

In summary, the statements were relevant to an issue other than character. The district court did not err in finding that the evidence's probative value substantially outweighed its prejudicial value. And, there was sufficient evidence to prove that Shores committed the prior offense. Accordingly, we hold that it was not an abuse of discretion for the district court to admit the statements under Rule 404(b), and further, to properly instruct the jury on how to consider the evidence.

2. Possession of a Dangerous Weapon

Shores challenges the court's assessment of a three-level increase in his base offense score under the sentencing guidelines for possession of a dangerous weapon.

Section 2B3.1(b)(2)(C) of the sentencing guidelines provides for a three-level increase "if a dangerous weapon (including a firearm) was brandished, displayed, or possessed." United States Sentencing Commission, Guidelines Manual, § 2B3.1 (Nov.1989). Shores directs our attention to § 1B1.1's commentary which further provides that "[w]here an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon." U.S.S.G. § 1B1.1, comment. (n. 1(d)).

Shores contends that possession of a toy gun that is not displayed does not satisfy § 2B3.1's language. He argues that a toy gun is not "per se dangerous in the way that a genuine gun is." Brief for Appellant at 14. It only becomes dangerous when other people become aware of it. He concludes, therefore, that his possession of the toy gun, which never "appeared" to any one, cannot be considered possession of a dangerous weapon under the guidelines. We disagree.

Shores concedes that a toy gun can be considered a dangerous weapon under § 2B3.1 if displayed or brandished. See United States v. Faulkner, 934 F.2d 190, 196 (9th Cir.1991) ("The current Guidelines make clear ... that a toy gun is a 'dangerous weapon,' the use of which requires enhancement under the robbery guideline."); see also United States v. Medved, 905 F.2d 935, 939 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 997, 112 L.Ed.2d 1080 (1991). Rather, Shores argues a much narrower issue concerning construction: Assuming that a court can characterize a toy gun as a dangerous weapon if displayed or brandished, it cannot so characterize a toy gun if it is merely possessed.

There are good reasons for punishing a defendant who...