United States v. Whitfield

• Decision Date: 22 August 2012
• Docket Number: No. 10–5217.,10–5217.
• Citation: 695 F.3d 288
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Larry WHITFIELD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

695 F.3d 288

UNITED STATES of America, Plaintiff–Appellee,

v.Larry WHITFIELD, Defendant–Appellant.

No. 10–5217.

United States Court of Appeals, Fourth Circuit.

Argued: May 18, 2012.

Decided: Aug. 22, 2012.

ARGUED:Thomas Norman Cochran, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. ON BRIEF:Angela G. Parrott, Acting Executive Director, Matthew R. Segal, Allison Wexler, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina; Kevin A. Tate, Erin K. Taylor, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge KING wrote the opinion, in which Judge WILKINSON and Judge NIEMEYER joined.

OPINION

KING, Circuit Judge:

Larry Whitfield appeals his convictions and aggregate life-plus-sixty-month sentence in the Western District of North Carolina for his role in a botched bank robbery and a mid-escape home intrusion, which ended tragically in the death of an innocent elderly woman. Whitfield asserts four appellate contentions, only one of which has merit—that the district court erred in instructing the jury on an offense not charged in the indictment. As explained below, we are constrained to vacate Whitfield's conviction and mandatory life sentence on the uncharged offense and remand for an amendment of the judgment and resentencing, while affirming the balance of his convictions.

I.

A.

On the morning of September 26, 2008, Whitfield and his partner-in-crime Quanterrious McCoy—armed with a .357 handgun and an AK–47 assault rifle—entered the front door of the Fort Financial Credit Union in Gastonia, North Carolina.¹ As they crossed the threshold into the credit union's small vestibule, a metal detector triggered an automatic locking mechanism on the inside lobby doors. Whitfield shook the bulletproof doors, but the lock held fast, preventing entry into the lobby of the credit union. As a result, Whitfield and McCoy fled in their car in an eastwardly direction towards Charlotte on Interstate 85. Alerted to the attempted bank robbery, a Gastonia police officer began pursuing a white Ford Crown Victoria with two occupants matching the culprits' descriptions. Because it was raining and the Gastonia officer was fearful of an accident, he withdrew from the high-speed pursuit. The officer was about to exit the interstate when he noticed that the Crown Victoria had left the highway and was stuck in the median. Whitfield and McCoy had fled the vehicle on foot into the woods, ditched their firearms, made their way to nearby Belmont, North Carolina, and separated from one another.

McCoy was apprehended after being found hiding under a van. Whitfield opted to forcibly enter the residence of a woman named Tina Walden, who soon thereafter returned from work. When Walden sought to unlock her door and enter her home, she realized the lock was jammed and noticed a footprint on the door. While Walden was attempting to call her husband by cell phone, Whitfield opened the door from inside the residence, brandished a kitchen knife, and instructed Walden to “shut up and come in.” J.A. 532.² Instead, Walden turned and ran. Whitfield then fled from Walden's home, discarding the knife along his escape route to the nearby home of Herman and Mary Parnell. He entered the Parnell residence through the unlocked front door and encountered Mrs. Parnell, who was home alone. Mrs. Parnell immediately became very upset and began to cry. Meanwhile, Whitfield used his cell phone to text message a friend, Tamecia Sanders, notifying her that he was in trouble and asking for a ride. Sanders spoke on the phone with Whitfield several times during the approximate twenty-mile drive from her location on the east side of Charlotte to the Parnell residence. During their final conversation, Sanders informed Whitfield that she needed directions in order to find him. At that time, Sanders overheard Whitfield tell Mrs. Parnell, “[M]a'am, just calm down. I'm probably more scared than you are, and I'm actually just trying to leave.” See id. at 673. Sanders also spoke on the phone directly with Mrs. Parnell. According to Sanders, Mrs. Parnell sounded afraid, though she calmed herself enough to give Sanders directions.

When Whitfield got back on the phone with Sanders, he said that “it looked like [Mrs. Parnell] wasn't breathing.” J.A. 680. Sanders also overheard Mrs. Parnell say that she was short of breath, to which Whitfield inquired whether she had “any aspirin or anything that she usually takes [and] if he could get her a glass of water.” Id. at 753. Sanders suggested that Whitfield “step outside in the hallway,” “give [Mrs. Parnell] a minute,” and call an ambulance. Id. at 680. Whitfield did not call the ambulance, but remained on the phone with Sanders, remarking to her sporadically that Mrs. Parnell appeared to be unconscious and may have died. Between 3:30 and 4:00 p.m., a neighbor of the Parnells, Joshua Smith, an off-duty police officer with the nearby Town of Cramerton, called the Parnells to warn that one of the bank robbers had been seen in the area. After repeatedly receiving a busy signal or no answer, Smith walked to the Parnell house, knocked, and rang the door bell. When no one answered, he returned home. Smith's efforts nonetheless prompted Whitfield to end his phone call with Sanders and flee the Parnell home through its back door. Whitfield was soon discovered hiding nearby, and he was arrested.

When Herman Parnell returned home through the back door that Whitfield had left ajar, he found his wife motionless, sitting in a chair at his desk in the computer room. Although Mr. Parnell sought to resuscitate Mrs. Parnell and called 911 for assistance, she was never revived and was pronounced dead, having suffered a heart attack. During Whitfield's questioning by the police on the evening of September 26 and the early morning of September 27, he signed two statements confessing to the Belmont home break-ins and another statement confessing to the attempted robbery of the credit union.

B.

1.

On January 23, 2009, the grand jury in Charlotte returned a four-count indictment against Whitfield and McCoy, charging them with attempted bank robbery, in contravention of 18 U.S.C. §§ 2113(a) and 2 (Count One); conspiracy to carry a firearm during an attempted bank robbery, in violation of 18 U.S.C. § 924( o ) (Count Two); and carrying a firearm during an attempted bank robbery, in contravention of 18 U.S.C. §§ 924(c) and 2 (Count Three). Count Four, naming Whitfield only, charged him with violating 18 U.S.C. § 2113(e), which provides, in relevant part, that

[w]hoever, ... in avoiding or attempting to avoid apprehension for the commission of [any] offense [defined in this section], ... kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.

18 U.S.C. § 2113(e).

As discussed further infra, § 2113(e) encompasses three alternative offenses pertinent to this case—penalizing a defendant who, in evading apprehension for an attempted bank robbery: (1) “kills any person” (the “killing offense”); or (2) “forces any person to accompany him without the consent of such person” (the “forced accompaniment offense”); or (3) “forces any person to accompany him without the consent of such person” and “death results” (the “death results offense”).³ Count Four of the indictment, however, alleged only two of the three alternative offenses, charging:

LARRY WHITFIELD did knowingly enter and attempt to enter Fort Financial Credit Union ... with intent to commit therein a felony affecting that credit union, in violation of 18 U.S.C. § 2113(a), ... as set forth in COUNT ONE of this Indictment; and in avoiding or attempting to avoid apprehension for said offense, forced M.P. to accompany him without her consent, and killed M.P.J.A. 14. Thus, the allegations of Count Four were limited to the first and second alternative § 2113(e) offenses—the killing offense and the forced accompaniment offense—and failed to include the third, the death results offense.

On September 16, 2009, Whitfield moved to dismiss Count Four of the indictment, asserting that § 2113(e) was unconstitutionally vague and that the killing offense could only be properly charged if the prosecution were required to prove that Whitfield intentionally caused the death of Mrs. Parnell. The government opposed the dismissal motion and argued the elementary principle that it had “charged ‘killing’ and ‘forced accompaniment’ in the conjunctive, but [was entitled to] prove them in the disjunctive.” See J.A. 23. The government also proposed that the word “kills” in § 2113(e) be understood from its basic dictionary definition, which does not require specific intent, and invoked the statute's (unindicted) “if death results” provision as reinforcement of such a meaning. See id. at 30–31. On October 21, 2009, the district court validated the constitutionality of § 2113(e) and denied Whitfield's motion to dismiss Count Four.

2.

On October 9, 2009, about five weeks before trial, Whitfield moved to suppress his post-arrest confessions to the two Belmont home break-ins and the attempted bank robbery. Whitfield's confessions to the Belmont home break-ins had been elicited during what the district court would designate as the “first part” of the police interview, while the attempted bank robbery confession had been obtained at the conclusion of the “second part” of the interview.

On November 9, 2009, the court conducted an evidentiary hearing on the suppression motion, receiving...