U.S. v. Wolfe

Decision Date29 March 2001
Docket NumberNo. 00-1942,00-1942
Parties(3rd Cir. 2001) UNITED STATES OF AMERICA, v. RICHARD ALLEN WOLFE, APPELLANT
CourtU.S. Court of Appeals — Third Circuit

On Appeal from the United States District Court for the Middle District of Pennsylvania District Judge: Hon. William J. Nealon (D.C. Criminal No. 99-CR-00256-1) [Copyrighted Material Omitted]

Daniel I. Siegel, Esq. Office of Federal Public Defender 100 Chestnut Street, Suite 306 Harrisburg, PA 17101, Patrick A. Casey, Esq. (Argued) Office of Federal Public Defender 116 North Washington Avenue Kane Professional Building, Suite 2C Scranton, PA 18503, Counsel for Appellant

Barbara K. Whitaker, Esq. (Argued) Office of United States Attorney 235 North Washington Avenue William J. Nealon Federal Building Scranton, PA 18501, Counsel for Appellee

Before: Barry and Cowen, Circuit Judges and WARD,* District Judge

OPINION OF THE COURT

Cowen, Circuit Judge.

I.

On April 9, 1999, Richard Allen Wolfe robbed the Penn Security Bank and Trust Company. He walked into the bank, approached the teller with his hand in his jacket, handed her a bag and instructed her to fill it with money. He then told her he had a gun and would shoot. When the teller did not produce enough hundred dollar bills to satisfy him, he repeated the threat. He repeated the threat a third time to induce her to produce yet more money. Based on his words and actions the teller believed he had a gun and that he would shoot. She complied with his demands and he fled the bank with $4518.00. The bank teller did not see a weapon, nor is there any additional evidence, aside from his threats and actions, that he possessed a weapon at the time of the robbery.

Wolfe was charged with one count of armed bank robbery in violation of 18 U.S.C. § 2113(d), to which he entered a plea of not guilty. To sustain a conviction for armed robbery one of the elements the prosecutor must prove is that the defendant "assaulted any person, or put in jeopardy the life of any person by the use of a dangerous weapon or device." 18 U.S.C. § 2113(d) (emphasis added). The evidence presented at trial focused almost exclusively on whether the witnesses had correctly identified Wolfe as the bank robber.1 Other than the teller's testimony regarding his repeated threats, no evidence or arguments were presented on the issue of whether Wolfe possessed a dangerous weapon at the time he committed the robbery. With respect to this element of the offense, the District Court charged the jury, without objection, as follows:

The fourth essential element that the government must prove beyond a reasonable doubt is that in committing the crime, the defendant deliberately and intentionally assaulted [the teller] or put her life in jeopardy by the use of a dangerous weapon....

***

The government must prove beyond a reasonable doubt that the defendant, during the commission of a bank robbery, committed acts or said words that would have caused an ordinary person to reasonably expect to die or face serious injury by the defendant's use of a dangerous weapon.

This charge permitted the jury to convict if they concluded that Wolfe's words or actions could have reasonably led the teller to believe that he might use a dangerous weapon, regardless of whether the jury believed he actually had a weapon. The jury reached a guilty verdict that same day. The District Court imposed a sentence of 21 years and 10 months.

II.

The defendant now stipulates that there was sufficient evidence at trial to prove that he committed the lesser offense of bank robbery by intimidation, in violation of 18 U.S.C. § 2113(a). However, he appeals his conviction for the greater offense of armed bank robbery on the ground that there was insufficient evidence to prove the "use of a dangerous weapon" as required for a conviction under § 2113(d). Wolfe argues there was insufficient evidence for a jury to conclude beyond a reasonable doubt that he actually possessed a dangerous weapon during the commission of the robbery. This appeal cannot, however, be analyzed as a simple sufficiency of the evidence claim because the jury charge allowed a conviction if the jury concluded that the teller reasonably believed Wolfe had a weapon and that he might use it. That is, the charge allowed the jury to convict regardless of whether they concluded he actually possessed a weapon when he robbed the bank. Therefore, we must review both the sufficiency of the evidence to convict Wolfe under § 2113(d) and the propriety of the jury instructions that allowed conviction based solely on the teller's reasonable belief that Wolfe had a weapon.

Because Wolfe did not raise an objection at trial to either the sufficiency of the evidence or the jury charge we will reverse only if we find "plain error." Fed.R.Crim. P. Rule 52(b); United States v. Turcks, 41 F.3d 893, 897 (3d Cir. 1994); United States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997) (where the defendant does not preserve insufficiency issue by filing a timely motion for a judgment of acquittal, sufficiency of the evidence is reviewed under a plain error standard). This standard is met when there is an "error" that is "plain" and that "affects substantial rights." United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993); Turcks, 41 F.3d at 897. A court's deviation from a legal rule constitutes "error". Olano, 507 U.S. at 732, 113 S.Ct. at 1777, 123 L.Ed.2d 508; Turcks, 41 F.3d at 897. A "plain" error is one that is "clear" or "obvious." Id. An error is deemed to have "affected substantial rights" if it was prejudicial in that it affected the outcome of the District Court proceedings. Olano, 507 U.S. at 733, 113 S.Ct. at 1778, 123 L.Ed.2d 508; Turcks, 41 F.3d at 897. Under plain error review, the defendant bears the burden of establishing that the error prejudiced the jury's verdict. Turcks, 41 F.3d at 898. Even if the defendant establishes the existence of plain error, Rule 52(b) leaves to the sound discretion of the Court of Appeals the decision whether to correct the error. While the Court of Appeals has the authority to order correction when these elements are met, it is not required to do so. Id. Instead, "we [ ] exercise our discretion `where the defendant is actually innocent, or where, regardless of the defendant's innocence or guilt, the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " Turcks, 41 F.3d at 897. See also Olano, 507 U.S. at 732, 113 S.Ct. at 1777, 123 L.Ed.2d 508.

A defendant must move for a judgment of acquittal at the conclusion of the evidence to properly preserve for appeal issues regarding the sufficiency of the evidence. United States v. Wright-Barker, 784 F.2d 161, 170-71 (3d Cir. 1986). Wolfe failed to so move. Nonetheless, we will review the sufficiency of the evidence under the plain error standard because, as we have previously held, the prosecution's failure to prove an essential element of the offense constitutes plain error under Rule 52(b) of the Federal Rules of Criminal Procedure. Gaydos, 108 F.3d at 509. We review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

A conviction for armed bank robbery under 18 U.S.C. S 2113(d) requires proof that, while robbing a federally insured bank, the defendant put in jeopardy the life of another "by the use of a dangerous weapon or device." The Court of Appeals for the Third Circuit has not yet addressed the application of this statute in a case where the defendant stated he had a weapon, appeared to have his hand on a weapon, and threatened to use that weapon, but never actually displayed a weapon during a robbery. The government argues that words and gestures that lead a victim to believe a robber is armed constitute the "use of a dangerous weapon or device" within the meaning of the statute regardless of whether the defendant actually possesses a weapon. In other words, the dangerous device being employed in the robbery was Wolfe's threat to shoot. Were we to adopt this interpretation of the statute the prosecution would be relieved of the burden to prove that the defendant actually had a weapon and would only have to prove that the defendant said he had a weapon. Wolfe not only argues that threatening words and gestures are not a dangerous device, but also that, absent some corroborating evidence, threats and gestures alone are insufficient evidence to establish beyond a reasonable doubt that a robber actually possessed a dangerous weapon. We decline to adopt either interpretation and instead conclude that, while threats themselves are not a "dangerous device" within the meaning of the statute, these same threats may be considered by the jury as evidence that a defendant actually had a dangerous device or weapon. It is a subtle, but important, distinction.

Threatening words and gestures do not, in and of themselves, constitute a dangerous device within the meaning of 18 U.S.C. § 2113(d). The crime of bank robbery occurs when a person obtains or attempts to obtain money or valuables from a federally insured bank "by force and violence, or by intimidation." 18 U.S.C. § 2113(a). The commission of bank robbery under § 2113(a) carries a penalty of not more than twenty years imprisonment and/or a fine of not more than $5,000. The much more serious offense of aggravated bank robbery occurs when a person, "in committing, or attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device." 18 U.S.C. § 2113(d). This offense carries a steeper maximum penalty of twenty-five years imprisonment and/or a...

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