UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4322
DION THOMAS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 01-4328
RUHULLAH AS-SADIQ,
Defendant-Appellee.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4467
RUHULLAH AS-SADIQ,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(CR-00-176-F)
Argued: September 24, 2002
Decided: January 22, 2003
2 UNITED STATES v. THOMAS
Before MICHAEL, Circuit Judge, HAMILTON, Senior Circuit
Judge, and Claude M. HILTON, Chief United States District Judge
for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished opinion. Chief Judge Hilton wrote the opin-
ion, in which Judge Michael and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Gregory John Ramage, Raleigh, North Carolina; George
Alan DuBois, Assistant Federal Public Defender, Raleigh, North Car-
olina, for Appellants. Thomas B. Murphy, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas P. McNamara, Federal Public Defender, Jane E. Pearce,
Research and Writing Attorney, Raleigh, North Carolina, for Appel-
lants. John Stuart Bruce, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
HILTON, Chief District Judge:
This matter comes before the Court on appeal by Appellants
Ruhullah As-Sadiq and Dion Thomas challenging their convictions,
as well as on cross-appeal by the government challenging the district
court’s decision to partially grant As-Sadiq’s motion for judgment of
acquittal.
On July 10, 2000, As-Sadiq and Thomas went to the College
Heights Credit Union in Fayetteville, North Carolina. As-Sadiq was
UNITED STATES v. THOMAS 3
both a customer and frequent visitor to the credit union. As-Sadiq
introduced Thomas to the tellers as his cousin. The two men were at
the credit union for fifteen to twenty minutes.
As-Sadiq asked the tellers when the slow times occurred during the
day and whether any men worked there. During this visit, As-Sadiq
went down the hallway toward the room where the surveillance
equipment was kept; when he returned he asked whether the single
camera was the only piece of surveillance equipment. After this visit,
a teller became nervous and reported to her supervisor that she
believed the men were casing the credit union.
The next day, As-Sadiq parked a getaway car across the street and
entered the credit union with his girlfriend Queenetta Galbreath and
their infant son. For ten to fifteen minutes, As-Sadiq stayed in the
credit union lobby talking with the tellers, passing the baby to the tell-
ers, and eventually deposited $25.00 into an account. The baby then
needed to be changed, and As-Sadiq changed the baby in the credit
union lobby; afterwards both As-Sadiq and Galbreath sat in the lobby
chairs.
Two armed men entered the credit union, yelling for everyone to
get down and asking where the safe was located. Both men’s faces
were painted black and one wore a yellow scarf over his face and car-
ried a sawed-off shotgun. The tellers also testified that the other man
had a gun shoved in his pants. The robbers were later identified as
Dion Thomas and Marcus Jackson (a.k.a. "Safiq"). The two robbers
jumped over the teller line, grabbed the manager from the floor, and
ordered her to go down the line and empty the teller drawers into a
plastic bag. During the robbery, the robbers did not speak to As-Sadiq
or Galbreath.
After the robbers left, As-Sadiq said to the tellers "I bet you’ve
never been through nothing like that before." J.A. 118. He also
remarked that this was his child’s first robbery. Throughout, As-Sadiq
was very calm. The doors were locked and As-Sadiq and Galbreath
waited for the police to arrive. When the police arrived, As-Sadiq
claimed he was unable to describe the robbers. When told that Gal-
breath had identified the robbers as Thomas and Jackson, As-Sadiq
denied knowing them. Galbreath stated that both Thomas and Jackson
4 UNITED STATES v. THOMAS
were guests at As-Sadiq’s home and had been present the morning of
the robbery.
After the credit union was locked up, Thomas returned to the credit
union and asked for As-Sadiq. Two tellers recognized him as one of
the robbers. After being told that the credit union was closed, Thomas
left and drove to As-Sadiq’s house. He and Jackson packed a car
rented under As-Sadiq’s name and left for New York City. The police
subsequently searched As-Sadiq’s home and found a shotgun in a gar-
bage can outside similar to the one used in the robbery. The police
also found face paint similar to that worn by the robbers.
On September 19, 2000, As-Sadiq, Thomas and Jackson were
named in a two-count indictment. Count One charged them with
armed robbery in violation of 18 U.S.C. §§ 2113(a) and (d) and aiding
and abetting the same. Count Two charged them with brandishing a
firearm during a crime of violence in violation of 18 U.S.C. § 924(c)
and aiding and abetting the same. Because Jackson was a fugitive at
the time of the indictment, the case proceeded with As-Sadiq and
Thomas as the only two defendants. Both men pled not guilty to these
charges on January 22, 2001, and their cases were tried before a jury
beginning on February 8, 2001.
At the close of the government’s case, both As-Sadiq and Thomas
made motions pursuant to Federal Rule of Criminal Procedure 29 for
judgments of acquittal. The district court denied Thomas’ motion and
As-Sadiq’s motion, but reserved the right to revisit As-Sadiq’s motion
after the jury reached its verdict.
The court then held a conference and finalized the instructions it
would give the jury after closing arguments. Neither the defendants
nor the government had any objections to the court’s proposed
instructions. The parties presented their closing arguments. As-
Sadiq’s counsel subsequently requested that the jury be instructed (1)
to first find whether As-Sadiq had the specific intent and knowledge
that a firearm would be used during the robbery and (2) as to a lesser
included offense of unarmed bank robbery. The court found that it
was too late to incorporate these instructions into the charge because
closing arguments were already made. The court gave As-Sadiq the
UNITED STATES v. THOMAS 5
option to either move for a mistrial or continue with the trial; As-
Sadiq chose to continue.
The court charged the jury and did not give As-Sadiq’s proposed
instruction. At the conclusion of the charge, As-Sadiq objected to the
district court’s failure to instruct on these matters. The jury convicted
As-Sadiq and Thomas of both counts. As-Sadiq and Thomas filed
post-verdict motions for judgment of acquittal under Rule 29, chal-
lenging the sufficiency of the evidence. The government filed a
motion in opposition. On April 13, 2001, the district court partially
granted As-Sadiq’s motion and set aside his § 924(c) conviction.
On April 16, 2001, the district court sentenced Thomas to a term
of 262 months on Count One and 84 months on Count Two to be
served consecutively for a total term of 346 months in prison fol-
lowed by a five-year term of supervised release. Thomas filed a notice
of appeal on April 24, 2001. On April 30, 2001, the government
appealed the district court’s dismissal of As-Sadiq’s § 924(c) convic-
tion. On June 13, 2001, As-Sadiq was sentenced on the remaining
armed bank robbery conviction to 300 months in prison to be fol-
lowed by a five-year term of supervised release. On June 18, 2001,
As-Sadiq filed a timely notice of appeal.
The issues before this court are as follows: (1) was there sufficient
evidence to convict As-Sadiq of aiding and abetting armed bank rob-
bery; (2) did the district court err in refusing to give As-Sadiq’s pro-
posed jury instructions; (3) did Thomas receive effective assistance of
counsel; (4) was there sufficient evidence to convict Thomas of both
armed bank robbery and brandishing a firearm; and (5) did the district
court err by granting As-Sadiq’s motion for judgment of acquittal as
to Count Two. For reasons stated below, we affirm.
I.
In reviewing the sufficiency of the evidence, "the relevant question
is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt." Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979) (emphasis in original). Moreover, the
government is entitled to the benefits of all reasonable inferences that
6 UNITED STATES v. THOMAS
can be drawn from the facts proven. United States v. Tresvant, 677
F.2d 1018, 1021 (4th Cir. 1982). Reversal for insufficient evidence is
reserved for the case "where the prosecution’s failure is clear." Burks
v. United States, 437 U.S. 1, 17 (1978).
As-Sadiq was charged in Count One of the indictment with aiding
and abetting armed bank robbery under 18 U.S.C. §§ 2113(a) and (d),
which state, in pertinent part:
Whoever, by force and violence, or by intimidation, takes,
. . . from the person or presence of another, . . . money . . .
belonging to, or in the . . . possession of, any bank, . . . shall
be . . . imprisoned . . . .
18 U.S.C. § 2113(a).
Whoever, in committing, . . . any offense defined in subsec-
tion[ ] (a) . . . assaults any person, . . . by the use of a dan-
gerous weapon . . . shall be . . . imprisoned. . . .
18 U.S.C. § 2113(d).
To support As-Sadiq’s conviction as an aider and abetter, the gov-
ernment must prove that he:
knowingly associated himself with and participated in the
criminal venture. In order to prove association, the Govern-
ment must establish that the defendant participated in the
principal’s criminal intent and the unlawfulness of his activ-
ity . . . . Participation in every stage of an illegal venture is
not required, only participation at some stage accompanied
by knowledge of the result and intent to bring about that
result.
United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (internal
quotations and citations omitted), cert. denied, 519 U.S. 1151 (1997).
As-Sadiq contends that the government failed to prove that he
knew his confederates intended to use firearms to rob the credit union.
UNITED STATES v. THOMAS 7
However, the evidence produced at trial is to the contrary. To prove
As-Sadiq aided and abetted armed bank robbery, the government was
required to show that As-Sadiq "‘was on notice of the likelihood that
a gun or other dangerous weapon would be used in the robbery.’"
United States v. McCaskill, 676 F.2d 995, 998 (4th Cir.), cert. denied,
459 U.S. 1018 (1982) (quoting United States v. Sanborn, 563 F.2d
488, 491 (1st Cir. 1977)); see also United States v. Spinney, 65 F.3d
231, 236-37 (1st Cir. 1995) (determining that substantial likelihood is
equivalent to constructive knowledge and thus a defendant who is
substantially involved in planning and orchestrating a robbery is
likely on notice that one or more guns will be used).
In this case, As-Sadiq engaged in active planning to commit the
robbery. As-Sadiq also provided a headquarters at his house for the
armed robbers, gave the armed robbers two different getaway cars,
and acted as a diversion prior to and throughout the robbery. As-
Sadiq’s extensive involvement in the planning and perpetration of the
robbery leads to the logical inference that he was aware guns would
be used to commit the crime.
Additionally, As-Sadiq’s conviction can also be affirmed because
he had actual knowledge of the use of the firearms during the robbery
and before the escape phase of the robbery. As-Sadiq did nothing to
prevent the robbery from proceeding and willfully aided his co-
defendants’ escape. "[O]ne who assists in the escape phase of a bank
robbery is an aider and abetter of that robbery." United States v.
James, 998 F.2d 74, 80 (2d Cir.), cert. denied, 510 U.S. 958 (1993)
(citing McCaskill, 676 F.2d at 1000).
As-Sadiq was present during the bank robbery, and he acknowl-
edged that he saw a gun brandished. Despite his relationship with the
bank robbers, As-Sadiq told investigators that he could not describe
them and later denied even knowing them. Through this conduct, As-
Sadiq actively and knowingly assisted his co-defendants in the escape
phase of the robbery. As-Sadiq’s refusal to aid the police permitted
both Thomas and Jackson to escape to New York in a getaway car
rented under As-Sadiq’s name. Because the evidence proven at trial
was sufficient to find that As-Sadiq had constructive knowledge guns
would be used, as well as actual knowledge that guns were used dur-
ing the commission of the robbery and Thomas and Jackson’s subse-
8 UNITED STATES v. THOMAS
quent escape, his conviction for aiding and abetting armed bank
robbery is affirmed.
II.
As-Sadiq claims that the district court’s jury instructions were defi-
cient because (1) the district court failed to instruct the jury that in
order to convict him of aiding and abetting armed bank robbery, it
must find beyond a reasonable doubt that he knew his co-defendants
were going to use firearms and that he intended to aid them in this
behavior and (2) the district court refused to instruct the jury on the
lesser included offense of unarmed bank robbery.
Jury instructions are reviewed in their entirety as part of the whole
trial; the inquiry is "whether the court adequately instructed the jury
on the elements of the offense and the accused’s defenses." United
States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995), cert. denied, 516
U.S. 1121 (1996) (internal citation omitted). The decision to give or
not give a jury instruction and the content of that instruction are
reviewed for abuse of discretion. United States v. Russell, 971 F.2d
1098, 1107 (4th Cir. 1992), cert. denied, 506 U.S. 1066 (1993).
Refusal to grant a requested instruction only constitutes reversible
error if (1) the instruction was correct; (2) the requested instruction
was not substantially covered by the court’s charge to the jury; and
(3) failure to give the requested instruction seriously impaired the
defendant’s ability to conduct his defense. United States v. Patterson,
150 F.3d 382, 388 (4th Cir. 1998), cert. denied, 525 U.S. 1086
(1999).
The contents of the requested jury instruction sought by As-Sadiq
were substantially covered by the instructions given to the jury. The
district court adequately instructed the jurors on the important
requirement of finding every element of the offense charged beyond
a reasonable doubt. The court instructed the jurors that they could
consider both direct and circumstantial evidence, as well as draw rea-
sonable inferences from the testimony. The district court defined
"knowingly" and "willfully," and gave the elements of both the spe-
cific charges and instructions concerning aiding and abetting.
The district court instructed that the government must prove As-
Sadiq "knew that a crime charged in the indictment was to be com-
UNITED STATES v. THOMAS 9
mitted or was being committed and knowingly did some act for the
purpose of aiding, commanding, and encouraging the commission of
that crime, and acted with the intention of causing a crime charged in
the indictment to be committed . . . ." J.A. 594-95. Finally, the district
court instructed the jury to find whether As-Sadiq "knowingly associ-
ated himself with the crime charged in some way as a participant, that
is someone who wanted the crime to be committed and not as a mere
spectator." J.A. 595. These instructions adequately informed the jury
that As-Sadiq could not be found guilty unless he had the requisite
knowledge of his co-defendants’ intentions concerning the use of the
firearms.
Additionally, failure to give the requested instruction as to As-
Sadiq’s knowledge of the intention to use firearms did in no way
impair his ability to present a defense. As-Sadiq did not put forth evi-
dence that he was unaware of his co-defendants’ use or intended use
of firearms during the robbery. Because As-Sadiq failed to raise this
argument throughout the trial, the failure to grant his requested
instruction as to knowledge did not affect his ability to present his
defense. Thus, the district court did not abuse its discretion by declin-
ing to give his proposed instruction.
As-Sadiq also challenges the district court’s failure to instruct the
jury concerning the lesser included offense of unarmed robbery. To
establish an entitlement to an instruction on a lesser included offense,
the defendant must show that the evidence would permit a rational
jury to find him guilty of the lesser offense and acquit him of the
greater. United States v. Baker, 985 F.2d 1248, 1258 (4th Cir. 1993),
cert. denied, 510 U.S. 1040 (1994) (citing Keeble v. United States,
412 U.S. 205, 208 (1973)). There is no basis in the evidence to sup-
port the lesser included offense because all evidence introduced at
trial proved an armed bank robbery; as such, As-Sadiq cannot show
he was entitled to the instruction.
III.
Thomas alleges that trial counsel was ineffective in his representa-
tion because he failed to recognize and pursue an alibi defense raised
by the government’s evidence. Specifically, he argues that he could
not have been an armed robber because the evidence establishes that
10 UNITED STATES v. THOMAS
he was at As-Sadiq’s house when the robbery occurred. Thomas relies
on the testimony of Angel Price, a government witness whom he
threatened to kill if she would not lie for him, as well as cross-
examination of the bank tellers as to his identity as a robber.
A defendant can raise the issue of ineffective assistance of counsel
on direct appeal only when it "conclusively appears from the record
that his counsel did not provide effective assistance." United States v.
Martinez, 136 F.3d 972, 979 (4th Cir.), cert. denied, 524 U.S. 960
(1998), and 525 U.S. 849 (1998). The standard for deciding whether
a defendant received adequate assistance of counsel is one of reason-
ably effective assistance. Strickland v. Washington, 466 U.S. 668, 687
(1984). The purpose of the Sixth Amendment guarantee of counsel is
to ensure a fair trial; thus, at issue is "whether counsel’s conduct so
undermined the proper function of the adversarial process that the
trial cannot be relied on as having produced a just result." Id. at 686.
Under Strickland, to sustain an ineffective assistance claim, the defen-
dant must demonstrate that (1) counsel’s performance fell below "an
objective standard of reasonableness" under "prevailing professional
norms," and (2) "there is reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different." Id. at 684-88.
Defense counsel could have reasonably determined that he could
not present a viable alibi defense based on discrepancies in testimony
concerning the timing of events. Other witnesses positively identified
Thomas as one of the armed robbers, and the testimony of another
witness as to the timing of events would have been fully consistent
with Price’s testimony. Because of the compelling evidence of
Thomas’ participation in the robbery, his attorney could have reason-
ably concluded that conflicting testimony about the timing of events
did not provide a sound basis for an alibi defense. A review of the
record does not conclusively show that trial counsel was ineffective.
IV.
Thomas complains that there was insufficient eyewitness evidence
to convict him of either armed bank robbery or brandishing a firearm
during the bank robbery because the evidence did not establish his
identity as one of the robbers. This claim is without merit.
UNITED STATES v. THOMAS 11
The facts set forth at trial establish that the day before the robbery,
Thomas went into the credit union with As-Sadiq for approximately
twenty minutes; during that time he sat directly across from the tellers
and spoke to them. Immediately after the robbery, Queenetta Gal-
breath identified Thomas as one of the robbers, and stated that he had
been at As-Sadiq’s house that morning. Two credit union tellers and
the manager also identified Thomas as the armed robber wearing a
yellow scarf and carrying a gun, and each testified that he was the
same man present with As-Sadiq the day before the robbery. This evi-
dence was sufficient to establish that Thomas was one of the armed
robbers.
V.
As-Sadiq was charged as an aider and abetter under 18 U.S.C.
§ 924(c) for brandishing a firearm during and in relation to a crime
of violence. The district court granted As-Sadiq’s post-verdict motion
for judgment of acquittal on this count because the government failed
to prove that As-Sadiq was aware his co-defendants intended to use
firearms to rob the credit union.
The standard of knowledge required to convict and aider and abet-
ter is greater for brandishing a firearm than armed bank robbery. A
defendant can be convicted of aiding and abetting armed robbery if
he has notice of the likelihood that a dangerous weapon will be used.
See McCaskill, 676 F.2d at 998. Thus, a defendant can be convicted
upon a showing that he should have or was likely to have known that
his co-defendant was going to use firearms.
However, a conviction of aiding and abetting § 924(c) requires a
much higher standard of knowledge; proof of constructive knowledge
will not suffice. "To prove that a defendant aided and abetted a viola-
tion of section 924(c), the government must establish that the defen-
dant knew ‘to a practical certainty that the principal would be [using]
a gun.’" United States v. Spinney, 65 F.3d 231, 238 (1st Cir. 1995)
(internal quotation omitted). The government must, in other words,
prove the defendant had actual knowledge that a gun would be used.
The government’s proof of As-Sadiq’s knowledge falls short of
this standard. There was no direct proof of As-Sadiq’s knowledge put
12 UNITED STATES v. THOMAS
forth at trial; the government only offered circumstantial evidence to
show that he knew a gun would be used to commit the robbery.
AFFIRMED