US v. Dixon

• Decision Date: 31 July 1990
• Docket Number: Crim. No. MJG-90-0128.
• Citation: 743 F. Supp. 1211
• Parties: UNITED STATES of America, Plaintiff, v. Willie Lee DIXON, et al., Defendants.
• Court: U.S. District Court — District of Maryland

743 F. Supp. 1211

UNITED STATES of America, Plaintiff, v. Willie Lee DIXON, et al., Defendants.

Crim. No. MJG-90-0128.

United States District Court, D. Maryland.

July 31, 1990.

COPYRIGHT MATERIAL OMITTED

Breckinridge L. Willcox, U.S. Atty., Carmina S. Hughes and Robert Thomas, Asst. U.S. Attys., Baltimore, Md., for plaintiff.

Steven Dunn, for defendant Dixon.

Michael Marr, for defendant O'Dell.

James K. Fowley, for defendant Brown.

Fred Warren Bennett, Federal Public Defender, for defendant Hawkins.

GARBIS, District Judge.

On March 29, 1990, the United States indicted defendants Willie Lee Dixon, Aubrey Bernard Brown, Clarence Mann Hawkins, and Billy Carmen O'Dell for attempted bank robbery in violation of 18 U.S.C. § 2113(a), and for the use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). After joint motions to suppress were filed and denied all defendants waived their Sixth Amendment right to a jury trial. Consequently, this case was tried to the Court without a jury on June 12 and 13, 1990. Pursuant to Fed.R. Crim.P. 23(c), the Court now renders findings of fact and judgments.

I. FACTUAL FINDINGS

There are few basic factual disputes in this case. The issues arise over the conclusions to be reached by applying the governing legal standard to largely undisputed facts. On March 28, 1990, at approximately 11:00 a.m., the employees of the Maryland National Bank at 6800 Harford Road in Baltimore ("the bank") were notified by a customer that three men were acting suspiciously outside the bank. The bank manager spoke to the customer who explained that she had seen three black middle-aged males walking out of an alley behind the bank, and that one of them carried a blue duffel-type bag, possibly concealing a weapon. The manager promptly notified the Federal Bureau of Investigation (FBI), which dispatched several agents to investigate.

Upon their arrival at the bank, the FBI agents debriefed several employees, spoke with the customer and awaited the return of the suspects for a while. Eventually, at approximately 1:40 p.m. or so, the agents left. Just a few minutes later the three black males returned. Several bank employees noticed them and all felt that they were clearly "casing" the bank. The manager again called the FBI, which told her to lock the front doors of the bank. As the three men began to move toward the bank entrance, the assistant manager locked the doors. Shortly thereafter, the three men came to the door and tried to enter, pulling on the doors, but to no avail. They then left. One of these three men was later identified as defendant Willie Lee Dixon. Mr. Dixon was carrying the blue bag with his hand held in a manner which indicated that he was carrying a gun inside the bag. Shortly after Dixon and the others left, the FBI agents returned.

Based on these events, as well as a series of recent bank robberies by unidentified black males in the area, FBI Special Agents Hedges, Wichner, Dougher, and O'Hara decided to stake out the Maryland National Bank branch at 6800 Harford Road on the morning of March 29, 1990. Before leaving for the bank on March 29, Agent Wichner reviewed surveillance photographs of recent bank robberies. On arrival at the area of the bank, the FBI agents set up surveillance posts in automobiles and were in position prior to the 9:00 a.m. bank opening.

On the morning of March 29, 1990, defendant Hawkins met defendants Dixon and O'Dell at the corner of Broadway and Eager Streets in Baltimore several miles from the bank. Mr. O'Dell was driving a brown Thunderbird that bore improper license plates, i.e. plates that belonged on another vehicle.¹ Hawkins got into the car, at which point they proceeded to pick up defendant Brown and drive up Harford Road toward the bank. The Thunderbird drove past the bank, turned left on the first street, made two more left turns and ended up stopping on Berwick Avenue, less than a block from the bank (at the corner of Berwick Avenue and Harford Road). Agent Wichner, who had been parked on Berwick Avenue, drove past the Thunderbird, recognized the driver (later identified as defendant O'Dell) as being the same person or very similar to the one he had seen earlier that morning in his review of bank robbery surveillance photographs.

Wichner notified the other agents of his observation by radio and circled the block, ending up parked on Berwick Avenue somewhat behind the Thunderbird. Other FBI agents moved in response to this radio message. After Agent Wichner, undetected by the defendants, drove past the brown Thunderbird, defendant Dixon exited the car from the front passenger seat, and walked east on Berwick Avenue, on through the bank parking lot and toward the front (Harford Road) side of the bank. Believing that he had been "made" (i.e. spotted as a law enforcement officer), FBI agent Dougher arrested Dixon and notified the other agents by radio. At this point, Agent Wichner, already back on Berwick Avenue, drove to the rear of the Thunderbird, got out armed with a shotgun and ordered the three defendants in the car to freeze and put their hands on the roof of the car. As the defendants complied, Agent Wichner observed surgical gloves on their hands. Agent Hedges, also armed with a shotgun, was on the scene to assist. The defendants were then ordered out of the car. They came out wearing pulled-up ski masks, gloves, and extra layers of clothing. Defendant Brown was found to have a 12-gauge sawed-off shotgun in his pants. A subsequent search revealed an additional weapon, a .38 handgun, under the front passenger seat, as well as additional surgical gloves, empty nylon bags, and, in the trunk, the proper set of license plates for the car.

II.

A. Count One: Attempted Bank Robbery

All defendants were indicted under 18 U.S.C. § 2113(a), which provides in relevant part that "whoever, by force and violence, or by intimidation, takes, or attempts to take ... money or any thing of value belonging to, ... any bank ... shall be fined not more than $5,000 or imprisoned not more than twenty years, or both." The Fourth Circuit, in United States v. McFadden, 739 F.2d 149 (4th Cir.), cert. denied, 469 U.S. 920, 105 S.Ct. 302, 83 L.Ed.2d 236 (1984), defined the elements of attempt in Section 2113(a). Quoting from the Fifth Circuit decision in United States v. Mandujano, 499 F.2d 370 (5th Cir.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975), Judge Chapman, writing for a unanimous panel, adopted a two-part standard: "Initially, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime he is charged with attempting. Then, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime, conduct strongly corroborative of the firmness of the defendant's criminal intent." 739 F.2d at 152 (quoting Mandujano, 499 F.2d at 377). Drawing on the Model Penal Code's definition of attempt, the Fourth Circuit outlined the "substantial steps" that would tend to corroborate criminal purpose:

lying in wait, reconnoitering the place contemplated for the commission of the crime, possession of materials to be employed in the commission of the crime, and possession and collection of materials to be employed in the commission of the crime at or near the place contemplated for its commission, where such possession and collection serve no lawful purpose of the actor under the circumstances.

Id. at 152.

In McFadden, the government possessed direct evidence of the intent of the defendants from secretly recorded conversations, which clearly demonstrated their intention to rob the bank in question. On appeal, the McFadden defendants argued that their convictions were invalid because their actions toward the bank lacked any force or violence. Rejecting that contention, the panel found both intent and substantial steps corroborative of that intent: "the defendants discussed their plans to rob the banks, they reconnoitered the banks in question, they assembled the weapons and disguises necessary for use in the robbery and they proceeded to the area of the bank with a vehicle and a driver to be used in the getaway." Id.

Recognizing that the result in McFadden is unfavorable, the defendants maintain that in this case the government lacks sufficient evidence of specific intent to rob the bank. Although admitting to casing the bank and contemplating a robbery, the defendants maintain that they were scared off during their first drive-by and so lacked the requisite culpable intent. For support, they cite for this Court's consideration two decisions of the United States Court of Appeals for the Ninth Circuit. In United States v. Buffington, 815 F.2d 1292 (9th Cir.1987), the court found an absence of proof of intent to commit the substantive offense. There, the defendants had assembled disguises and weapons, visited the federally insured bank in question twice, and drove into a parking lot where several stores were located. Although the defendants had driven slowly around the bank and stared into it, the Ninth Circuit reversed the conviction, concluding that "if intent to rob existed at all, it could easily have been directed against another store, or the nearby state bank." 815 F.2d at 1302. Distinguishing Buffington's situation from other cases which involved testimony by informants or co-conspirators, the court emphasized that "no defendant came within 50 yards of the bank.... The evidence is focused no more on the bank than other nearby institutions." Id.

Applying Buffington, the Ninth Circuit recently reversed another attempted bank robbery conviction in United States v. Still, 837 F.2d 871 (9th Cir.1988). Because Still admitted to the police his intent to rob the subject bank immediately after his arrest some 200 feet away, the court found that intent was clearly established. However, the court found a lack of substantial...