U.S. v. Simpson

• Decision Date: 05 November 1992
• Docket Number: No. 92-1369,92-1369
• Citation: 979 F.2d 1282
• Parties: UNITED STATES of America, Appellee, v. Sharon Kay SIMPSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1282

979 F.2d 1282

UNITED STATES of America, Appellee, v. Sharon Kay SIMPSON, Appellant.

No. 92-1369.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 11, 1992.

Decided Nov. 5, 1992.

James E. Ostgard, Minneapolis, Minn., argued, for appellant.

Kenneth W. Saffold, Asst. U.S. Atty., Minneapolis, Minn., argued, for appellee.

Before MAGILL, Circuit Judge, LAY, Senior Circuit Judge, and BEAM, Circuit Judge.

MAGILL, Circuit Judge.

Sharon Kay Simpson was convicted of aiding and abetting an armed bank robbery, in violation of 18 U.S.C. § 2113(d) and 18 U.S.C. § 2(a), and of aiding and abetting the use of a firearm in the commission of a violent felony, in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2(a). In this appeal, she challenges (1) the application of 18 U.S.C. § 924(c) to an aider and abettor; (2) the imposition of the mandatory five-year minimum sentence on the firearms charge; (3) the district court's ¹ refusal to grant a continuance following a superseding indictment adding the firearms charge; and (4) the sufficiency of evidence to support the convictions in light of her defense of coercion. Simpson also requests on appeal that this court exercise its supervisory powers and dismiss the § 924(c) charge because of prosecutorial abuse. We affirm.

I.

On February 27, 1991, Mark Grotte awoke and told Sharon Kay Simpson, his live-in girlfriend, that they were going to rob the First Bank Northtown in Coon Rapids, Minnesota. Grotte had discussed robbing a bank with Simpson for some time. He initially raised the matter when he and Simpson were on vacation in Florida, and renewed these discussions upon their return to Minnesota. In January 1991, Grotte told Simpson that he planned to rob the First Bank Northtown, and that he intended to do so when there was snow on the ground.

On the morning of February 27, Grotte, who had worn a beard for most of the time Simpson had known him, told Simpson to warm up the car while he shaved. The two then left for the bank, a trip of about four miles, with Simpson driving. Grotte brought with him a .357 magnum pistol loaded with hollow-point bullets and a suitcase containing a trench coat, stocking cap, and a woman's nylon stocking.

Upon reaching the bank, Grotte told Simpson to wait, with the car running, while he feigned making a telephone call to better view the bank. Grotte then entered the bank and, brandishing the pistol, robbed it of approximately $28,000. Simpson and Grotte drove to a Budgetel motel, where Simpson rented a room. Grotte remained at the hotel for the remainder of the day and night to count the money, while Simpson went home and returned to pick him up the next day.

Acting on a confidential tip, the FBI and local police executed a search warrant for the Grotte and Simpson home on May 3, 1991. They discovered a loaded .357 magnum, 400 rounds of live ammunition and approximately $6000 cash.

Simpson was arrested later that day and confessed to driving the getaway car. She stated that she had received approximately $4000 of the proceeds from the robbery.

Simpson was charged under 18 U.S.C. § 2 and 18 U.S.C. § 2113(d) with aiding and abetting the bank robbery, but was not initially charged on the firearms count. The prosecution offered her a plea bargain with a recommendation of no prison time if she would testify against Grotte. The prosecution also warned her that she could be charged with aiding and abetting the firearms charge if she refused to cooperate. Simpson refused to testify. On August 21, 1991, the government secured a superseding indictment charging Simpson with aiding and abetting the use of a firearm in the commission of a violent felony.

The defendant sought a thirty-day continuance under the Speedy Trial Act or, in the alternative, a four-day continuance to secure the testimony of an expert concerning battered woman's syndrome. The court denied this request, but did allow the defense a one-half-day continuance. The court later granted a second one-half-day continuance at the close of the government's case.

At trial, Simpson claimed that she was coerced into driving the getaway car. She claimed that Grotte had beat her throughout their relationship, and had threatened to kill her or her daughter and parents if she did not drive the getaway car. Testimony at trial revealed that Simpson had testified at Grotte's detention hearing that Grotte never had beaten her and that she did not fear him. She also signed an affidavit to that effect.

Sharon Kay Simpson was convicted on both counts. On the bank robbery count, the court reduced her offense level by two, determining that she had been a "minor participant" in the robbery. On the firearms count, however, the court determined that it had no discretion, and sentenced her to the five-year mandatory minimum. This appeal followed.

II.

A. Application of Section 924(c) to Aider and Abettor

This difficult issue involves the interrelationship between the federal aiding and abetting statute, 18 U.S.C. § 2, and the use of a firearm in the commission of a violent felony under 18 U.S.C. § 924(c)(1). The latter statute imposes a consecutive five-year mandatory minimum sentence. The sentencing court departed downward approximately three years on the bank robbery charge, imposing a twelve-month sentence; however, finding no discretion to depart under § 924(c), the court imposed the five-year mandatory minimum. This consecutive sentence resulted in a total sentence of approximately six years of imprisonment for Simpson, as opposed to the eight-year sentence her co-defendant, the bank robber, received.

Simpson contends that she cannot be punished as an aider and abettor under both the robbery statute and the firearms statute because Congress has not clearly stated an intention to allow such "double punishment."

The Supreme Court has held that "[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). Thus, the Double Jeopardy Clause does not prohibit the government from proving violations of two criminal statutes with the same course of conduct if Congress clearly intended to subject defendants to such "double punishment." Hunter, 459 U.S. at 367, 103 S.Ct. at 678; Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978).

Simpson contends that the government may not prosecute her for both the bank robbery and the firearms charge when all she did was drive the getaway car. She claims that although Congress clearly intended to subject those who "use or carry" a firearm to double punishment, she did not do so. Furthermore, she argues that § 924(c) does not explicitly require enhanced liability for one who "aids and abets" another who uses or carries a firearm.

We disagree. Our analysis proceeds in two steps. First, the aider and abettor statute, 18 U.S.C. § 2, clearly states that the actions of the aider and abettor become those of a principal violation. Second, 18 U.S.C. § 924(c) explicitly states that one convicted as a principal of using a firearm to commit a violent crime may be punished both for the underlying crime and for the § 924(c) charge. Because the actions of the principal here involve use of a gun falling within § 924(c)'s prohibitions, an aider and abettor, chargeable as a principal, is also clearly liable for the use of the gun.

18 U.S.C. § 2 provides that one who "aids, abets, counsels, commands, induces or procures" a crime against the United States "is punishable as a principal." This statute does not create a separate crime; instead, it makes the listed actions a primary violation of another, specific crime. United States v. Pino-Perez, 870 F.2d 1230, 1236-37 (7th Cir.), cert. denied, 493 U.S. 901, 110 S.Ct. 260, 107 L.Ed.2d 209 (1989); Londono-Gomez v. Immigration & Naturalization Serv., 699 F.2d 475, 476 (9th Cir.1983). Under § 2, the acts of the principal become those of the aider and abettor as a matter of law. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949) ("Aiding and abetting ... states a rule of criminal responsibility for acts which one assists another in performing."). Finally, § 2 applies to the entire criminal code. United States v. Jones, 678 F.2d 102, 105 (9th Cir.1982).

Here, Mark Grotte robbed a bank using a firearm. Simpson's conduct was integral to the crime. She provided the transportation and the means of concealment. Simpson also knew that Grotte possessed a firearm and planned to use it in committing the robbery. Because Simpson's actions aided the commission of the armed bank robbery, Grotte's actions, and his gun, became hers in the eyes of the law. See United States v. Archie, 656 F.2d 1253, 1259 (8th Cir.1981) (getaway car driver guilty of bank robbery under 18 U.S.C. § 2113(a) and 18 U.S.C. § 2); United States v. Moore, 936 F.2d 1508, 1526 (7th Cir.1991) (conviction of firearm under 18 U.S.C. § 2 upheld on a theory of "constructive possession" where defendant was an integral part of the armed robbery, was aware of co-defendant's possession of gun, and knew that the weapon would be used to commit the crime).

Our conclusion is supported by the Supreme Court's discussion in Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980). In Busic, the Supreme Court considered the application of the former version of § 924(c) ² to one who aided and abetted the armed assault of a federal officer under 18 U.S.C. § 111. With respect to the aider and abettor, the Court stated: "Through the combination of § 111 and 18 U.S.C. § 2, he was found guilty as a principal of using a firearm to assault the undercover agents. LaRocca's gun, in other words, became Busic's...