United States v. Willis

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 12/17/96
TENTH CIRCUIT

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) No. 95-3311
)
ROBERT LEE WILLIS, )
)
Defendant-Appellant. )

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 95-CR-20013)

Michael L. Harris, Assistant Federal Public Defender, Kansas City, Kansas, for
Defendant-Appellant.

Robert S. Streepy, Assistant United States Attorney, (Jackie N. Williams, United States
Attorney, with him on the brief), Kansas City, Kansas, for Plaintiff-Appellee.

Before EBEL, LOGAN and BRISCOE, Circuit Judges.

LOGAN, Circuit Judge.
 Defendant Robert Lee Willis appeals following a mistrial because of a hung jury

and conviction after a second trial, on a two-count superseding indictment for conspiracy

to commit bank larceny, in violation of 18 U.S.C. § 371 and § 2113(b) (Count 1), and for

assault while attempting bank larceny, in violation of 18 U.S.C. § 2113(b) and (d) (Count

2). He received a sixty-month sentence on Count 1 and a mandatory life sentence on

Count 2, to run concurrently. He appeals his conviction on the assault count contending

that (1) the second trial violated his double jeopardy rights because the district court

should have granted his motion for acquittal at the end of his first trial for insufficient

evidence; and (2) Count 2 failed to sufficiently allege an offense. He also contends that

the district court erred in (3) not granting his motion for judgment of acquittal at the end

of his second trial, (4) instructing the jury on vicarious liability for acts of his co-conspir-

ators in furtherance of a conspiracy, and (5) enhancing his sentence under 18 U.S.C.

§ 3559(c).

Defendant was one of four men who attempted to remove an ATM machine from a

shopping center in Overland Park, Kansas in January 1995. Disguised as maintenance

workers, the men entered the mall through unlocked doors that allowed mall walkers to

use the mall for exercise before regular store business hours. Several mall walkers

observed the men and became suspicious. When mall employees approached them, the

four men fled and ran toward their parked van. The last to leave pulled a gun from his

jacket and fired shots through double glass doors into the mall. No one suffered injuries.

2
Defendant did not escape in the getaway van and eventually reentered the mall. Police

arrested him shortly thereafter as he exited a restroom in the mall.

Defendant was first tried in April 1995, on a two-count indictment alleging

conspiracy to commit bank larceny, in violation of 18 U.S.C. § 371, and assault while

attempting bank larceny, in violation of 18 U.S.C. § 2113(b) and (d) and 18 U.S.C. § 2.

The district court declared a mistrial after the jury failed to reach a unanimous verdict.

The government then filed a superseding indictment, returned by a grand jury, that was

identical except it omitted the reference to 18 U.S.C. § 2 (aiding and abetting), and

included instead the allegation that the assault occurred “in furtherance of the conspiracy

as alleged in Count 1.” I R. doc. 58 at 2.1

1
Counts one and two of the superseding indictment charged:

Count 1
That on or about the 25th day of January, 1995, in the District of
Kansas, ROBERT LEE WILLIS, did unlawfully conspire, confederate,
combine, and agree with others unknown to the Grand Jury to take and
carry away, with intent to steal and purloin, any property or money or any
other thing of value exceeding $100.00 belonging to, or in the care, custody,
control, management or possession of the First National Bank of Kansas, a
bank the deposits of which were then insured by the Federal Deposit
Insurance Corporation, a violation of Title 18, United States Code, Section
2113(b), all in violation of Title 18, United States Code, Section 371.

. . . [listing overt acts]

Count 2
That on or about the 25th day of January, 1995, in the District of
Kansas, ROBERT LEE WILLIS, while attempting to commit bank larceny,
(continued...)

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 The second trial in June 1995 resulted in the conviction defendant now appeals. In

both trials, defendant’s identity was the only contested issue. The government’s evidence

at both trials focused on establishing defendant’s identity, and did not attempt to show

that he actually fired the shots supporting the assault.

I

Defendant first contends the district court erred in denying his motion for acquittal

at the close of the first trial. He asserts that this issue is appealable following the verdict

in his second trial because of the double jeopardy implications. Whether defendant may

now appeal the denial of his motion for acquittal in the first trial is a legal question that

we review de novo. See United States v. Maher, 919 F.2d 1482, 1485 (10th Cir. 1990).

Defendant relies on United States v. Balano, 618 F.2d 624 (10th Cir.), cert. denied,

449 U.S. 840 (1980), in which we stated that because of double jeopardy concerns a

defendant could appeal after a second trial from the denial of a motion for acquittal raised

at the first trial. Id. at 632 n.13. The United States Supreme Court’s later decision in

Richardson v. United States, 468 U.S. 317 (1984), effectively overruled this aspect of

1
(...continued)
an offense defined in Title 18, United States Code, Section 2113(b), and in
furtherance of the conspiracy as alleged in Count 1 of this Indictment, did
unlawfully assault David Veh and John Veh and put in jeopardy the life of
David Veh and John Veh by the use of a dangerous weapon, that is, a
firearm, in violation of Title 18, United States Code, Section 2113(b) and
(d).

I R. doc. 58 at 1-2.

4
Balano. Richardson concluded “that the protection of the Double Jeopardy Clause by its

terms applies only if there has been some event, such as an acquittal, which terminates the

original jeopardy.” Id. at 325. The opinion then “reaffirm[ed] the proposition that a trial

court’s declaration of a mistrial following a hung jury is not an event that terminates the

original jeopardy.” Id. at 326. Richardson did not examine the sufficiency of the

evidence presented in the defendant’s first trial because “[r]egardless of the sufficiency of

the evidence at [the defendant’s] first trial, he has no valid double jeopardy claim to

prevent his retrial.” Id. See also United States v. Holland, 956 F.2d 990, 992-93 (10th

Cir. 1992) (mistrial does not terminate jeopardy, and “[r]eindictment . . . is equivalent to a

retrial under the original indictment”). We therefore hold that defendant may not

resurrect his motion for acquittal at his first trial.

II

Next defendant argues that Count 2 of the superseding indictment fails to charge

an offense. Defendant did not raise this issue before trial. Although we generally review

the sufficiency of an indictment de novo, when a defendant fails to raise a timely chal-

lenge, “we will liberally construe an indictment in favor of validity.” United States v.

Bolton, 68 F.3d 396, 400 (10th Cir. 1995), cert. denied, 116 S. Ct. 966 (1996). To

determine the sufficiency of an indictment we look to see if it contains the elements of the

offense charged, provides the defendant with fair notice of what he must defend against,

and affords protection from double jeopardy. Id.

5
 Defendant raises several related arguments in challenging Count 2 of the indict-

ment. The most important is that 18 U.S.C. § 2113(d) is merely a sentence enhancement

which does not create a substantive offense.

In considering this argument we quote not only § 2113(b) and (d), but § 2113(a)2

as well, omitting words not relevant to our analysis:

§ 2113. Bank robbery and incidental crimes

(a) Whoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another, or obtains or
attempts to obtain by extortion any property or money . . . in the . . . posses-
sion of, any bank, . . .; or

Whoever enters or attempts to enter any bank . . . with intent to
commit in such bank . . . any felony affecting such bank . . .or any larceny--

Shall be fined under this title or imprisoned not more than twenty
years, or both.

(b) Whoever takes and carries away, with intent to steal or purloin,
any property or money . . . belonging to, or in the . . . possession of any
bank . . . shall be fined under this title or imprisoned not more than ten
years, or both; or

2
Count 1 of the indictment charged a conspiracy to violate § 2113(b). See
Pinkerton v. United States, 328 U.S. 640, 643 (1946) (“the commission of the substantive
crime and a conspiracy to commit it are separate and distinct offenses”). That was done
no doubt because the robbers’ lack of success in taking or carrying away the ATM
machine made it impossible to charge a substantive crime under § 2113(b). That
subsection, unlike subsection (a), contains no “attempt” language. The government could
not indict defendant under § 2113(a) because there was no taking, or attempt to take, from
“the person or presence of another,” the crime did not involve extortion, and there was no
entry or attempted entry of a bank. Because of the shots fired, when mall workers were
nearby, Count 2 sought the higher punishment set out in § 2113(d) for assault.

6
 Whoever takes and carries away, with intent to steal or purloin, any
property or money . . . belonging to, or in the . . . possession of any bank . . .
shall be fined not more than $1,000 or imprisoned not more than one year,
or both.

....

(d) Whoever, in committing, or in 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, shall be fined under this title or imprisoned not more
than twenty-five years, or both.

18 U.S.C. § 2113(a), (b) and (d). The legal question before us is whether subsection (d)

states a separate crime for an assault while “attempting to commit, any offense defined in

subsection[] . . . (b).”

Defendant relies on case law stating or holding that subsection (d) (or its equiva-

lent under a predecessor statute) is only a sentence enhancement provision. There are a

number of cases in the Supreme Court and this circuit to the effect that convictions under

subsections (a) and (d) merge and only one sentence is permissible. See Green v. United

States, 365 U.S. 301, 305-06 (1961); Prince v. United States, 352 U.S. 322, 329 & n.11

(1957) (by inference); Holliday v. Johnston, 313 U.S. 342, 349 (1941) (predecessor

statute); Brown v. United States, 34 F.3d 990, 991 (10th Cir. 1994); Peeler v. United

States, 163 F.2d 823, 824-25 (10th Cir. 1947) (predecessor statute); Holbrook v. Hunter,

149 F.2d 230, 231-32 (10th Cir. 1945) (predecessor statute). We are certain the courts

would hold to the same effect if there were a conviction of a substantive crime under

7
§ 2113(b)--as opposed to a conspiracy to violate that subsection--and a conviction under

subsection (d).

The difference in the instant case--which has not been considered previously by an

appellate court--is that unlike under subsection (a), under subsection (b) there is no crime

of an attempt to take or carry away the bank’s property. Yet subsection (d), by its plain

language, makes an assault or putting a life in jeopardy by the use of a gun while

“attempting to commit any offense defined in subsection[] . . . (b)” punishable by fine

and/or lengthy imprisonment. In the absence of a definitive holding by the Supreme

Court or this circuit to the contrary, we believe the plain language of subsection (d)

creates a substantive crime in the narrow circumstance before us. See United States v.

Ray, 21 F.3d 1134, 1139-40 (D.C. Cir. 1994) (noting conviction under § 2113(d) is a

separate offense from conviction under § 2113(a)), cert. denied, 116 S. Ct. 246 (1995);

United States v. McKenzie, 414 F.2d 808, 811 (3d Cir. 1969) (same), cert. denied, 396

U.S. 1019 (1970).

We also reject defendant’s contention that Count 2 of the indictment should have

recited the elements of § 2113(b). Our concern is whether, after reading the counts of an

indictment together, a defendant has “a clear understanding of each of the charges against

him.” United States v. Edmonson, 962 F.2d 1535, 1542 (10th Cir. 1992) (reading all

three counts of an indictment together, it stated all essential elements of the statute).

Count 1 of the superseding indictment parrots the language of § 2113(b) in the context of

8
the conspiracy charged. Count 2 includes the language of § 2113(d) and then incorpo-

rates Count 1 and references § 2113(b). See Fed. R. Crim. P. 7(c)(1). An indictment

need not quote the statute to adequately place a defendant on notice of the charges against

him. United States v. Bullock, 914 F.2d 1413, 1414 (10th Cir. 1990) (discussing

untimely challenge to sufficiency of indictment) (citing Hamling v. United States, 418

U.S. 87 (1974)); see also Kienlen v. United States, 379 F.2d 20, 23 (10th Cir. 1967)

(rejecting challenge to single sentence indictment that failed “to allege the [defendant]

assaulted and put lives in danger by the use of a dangerous weapon ‘while committing an

offense in violation of 18 U.S.C. § 2113(a)’”).

Defendant has not shown that he could not adequately prepare his defense or that

the charge or the record at the second trial is so lacking that it provided him no protection

against double jeopardy. Defendant evidently received all required access to the prosecu-

tion’s discovery and concedes that the evidence in both trials was nearly identical.

Appellant’s Brief at 34. See United States v. Dyba, 554 F.2d 417, 420 (10th Cir.)

(upholding imperfect indictment because not substantially prejudicial to defendant), cert.

denied, 434 U.S. 830 (1977); United States v. Mason, 440 F.2d 1293, 1296 (10th Cir.)

(upholding indictment that was “not a model of clarity”), cert. denied, 404 U.S. 883

(1971).

Finally, defendant argues that Count 2 does not state the elements of § 2113(b) and

the jury instructions setting out those elements impermissibly broadened the indictment.

9
Because we have already held that the indictment was not deficient for failing to list the

elements of § 2113(b), the jury instructions did not broaden the indictment.

III

Defendant next contends that the district court erred in denying his motion for

acquittal at the close of the second trial. See Fed. R. Crim. P. 29(a). A motion for

judgment of acquittal fundamentally challenges the sufficiency of the evidence. United

States v. Urena, 27 F.3d 1487, 1490 (10th Cir.), cert. denied, 115 S. Ct. 455 (1994). We

review the evidence to determine whether, if taken in the light most favorable to the

prosecution, it is sufficient for a reasonable jury to find the defendant guilty beyond a

reasonable doubt. United States v. Hook, 780 F.2d 1526, 1531 (10th Cir.), cert. denied,

475 U.S. 1128 (1986); see also Burks v. United States, 437 U.S. 1, 16-17 (1978) (appel-

late court must uphold verdict if record contains substantial evidence, when viewed in

light most favorable to the government, to sustain verdict).

Defendant asserts that the conspiracy to steal the ATM machine did not reasonably

encompass the assault charged in Count 2, thus he may not be held vicariously liable

under Pinkerton v. United States, 328 U.S. 640 (1946). He asserts that the evidence did

not show he knew a co-conspirator was armed and the intent necessary to support the

conspiracy agreement does not support the substantive offense of assault. Defendant also

contends that the conspiracy ended when the security guards and mall walkers discovered

the attempted larceny, and the conspiracy members “abandoned their illegal plan.”

10
Appellant’s Brief at 35. He argues that the government effectively conceded that the

gunfire that supported the § 2113(d) charge so surprised defendant, who believed the

shots were fired at him, that he panicked and failed to board the getaway vehicle.

Defendant asserts this conduct is inconsistent with vicarious liability. He also notes that

the evidence established that the last person to leave the mall, not defendant, fired the

shots.

Our case law generally supports treating escape as part of the overall conspiracy to

commit bank robbery. See United States v. Von Roeder, 435 F.2d 1004, 1010 (10th Cir.

1970) (escape phase is not “an event occurring ‘after the robbery.’ It is part of the

robbery.”), vacated on other grounds, 404 U.S. 67 (1971); Balano, 618 F.2d at 631

(“escape phase doctrine was developed to deal with those who are entangled in the

consummation of the crime itself, such as getaway car drivers”).

Pinkerton does not require a co-conspirator to have actual knowledge of the

underlying crime (here, the aggravated assault) in order to impose criminal liability. To

the contrary, the co-conspirator has criminal responsibility unless “the substantive offense

committed by one of the conspirators was not in fact done in furtherance of the conspir-

acy, did not fall within the scope of the unlawful project, or was merely a part of the

ramifications of the plan which could not be reasonably foreseen as a necessary or natural

consequence of the unlawful agreement.” Pinkerton, 328 U.S. at 647-48.

11
 The record contains ample evidence to support the jury’s finding that the conspir-

acy continued through defendant’s flight from the crime scene. It contains no suggestion

that the conspiracy was abandoned or otherwise terminated by some affirmative act, such

as withdrawal by defendant. See United States v. Russell, 963 F.2d 1320, 1322 (10th Cir.

1992) (in the context of sufficiency of the evidence to establish defendant’s continued

participation in the conspiracy, record did not show co-conspirators had terminated

conspiracy). Defendant is no less culpable because he is unaware that his co-conspirator

carried a concealed weapon while attempting to commit this inherently dangerous and

violent crime. United States v. Young, 954 F.2d 614, 619 (10th Cir. 1992).

IV

Defendant argues that the district court should not have given a vicarious liability

instruction, but if such an instruction was proper the court erred by not including a

12
foreseeability requirement.3 We review de novo whether the jury instructions are legally

sufficient. United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995).

We have already dealt with some aspects of the foreseeability issue. The instruc-

tion given was essentially the same as pattern jury instructions adopted in other circuits.

We believe the district court correctly interpreted Pinkerton, 328 U.S. at 648, and Nye &

Nissen v. United States, 336 U.S. 613, 681 (1949), by concluding that the jury did not

need to be instructed to consider whether the assault was reasonably foreseeable, as long

as the jury was required to find defendant criminally liable as a member of the conspiracy.

See United States v. Aramony, 88 F.3d 1369, 1379-81 (4th Cir. 1996) (approving

instruction allowing for conviction of co-conspirators’ crimes, without requiring

foreseeability), petition for cert. filed, 65 U.S.L.W. 3381 (U.S. Nov. 12, 1996) (No. 96-

3
The instruction in question is No. 19, which reads as follows:

A conspirator is guilty of the illegal acts that are done as part of and
in furtherance of the conspiracy even though those acts are done solely by
co-conspirators. Therefore, if you are satisfied beyond a reasonable doubt
that, at the time the assault by the use of a dangerous weapon while
attempting to commit bank larceny alleged in Count 2 was committed, the
defendant had entered into and continued to be a member of an unlawful
conspiracy as charged in Count 1 of the indictment, and if you further find
beyond a reasonable doubt that the alleged act charged in Count 2 was
committed while the conspiracy continued to exist, was in furtherance of
the conspiracy, and was a natural consequence of the conspiracy, then you
may find the defendant guilty of the offense charged in Count 2 as a co-
conspirator even though he was not the person who actually committed the
offense charged in Count 2.

I Supp. R. Instr. 19.

13
752); United States v. Gonzalez, 933 F.2d 417, 443 (7th Cir. 1991) (to the same effect);

United States v. Troop, 890 F.2d 1393, 1399-1400 (7th Cir. 1989) (same); but see United

States v. Broadwell, 870 F.2d 594, 603-05 (11th Cir.) (finding error but holding lack of

foreseeability language was not prejudicial), cert. denied, 493 U.S. 840 (1989).

Defendant also asserts a fatal variance between Count 2 and the court’s instruc-

tion: Count 2 of the indictment charged him personally with committing the assault, but

the jury instruction allowed him to be convicted for the acts of a co-conspirator. The

government argues that this is a simple variance that did not prejudice defendant.

Our cases recognize two types of variance between proof and the indictment.

A fatal variance denies a defendant this fundamental guarantee because it
destroys his right to be on notice of the charge brought in the indict-
ment. . . . A simple variance occurs when the charging terms are
unchanged, but the evidence at trial proves facts materially different from
those alleged in the indictment.

Hunter v. State, 916 F.2d 595, 598 (10th Cir. 1990) (en banc) (citations and quotations

omitted), cert. denied, 500 U.S. 909 (1991); United States v. Williamson, 53 F.3d 1500,

1512-14 (10th Cir.) (simple variance generally allows upholding conviction because the

proof at trial “corresponds to an offense clearly charged in the indictment,” but a fatal

variance is prejudicial because a defendant cannot anticipate the evidence to be presented

against him or be protected from double jeopardy), cert. denied, 116 S. Ct. 218 (1995);

see also United States v. Haddock, 956 F.2d 1534, 1548-49 (10th Cir.), cert. denied, 506

U.S. 828 (1992).

14
 The government’s evidence did not attempt to establish that defendant personally

committed the assault and the government’s affidavit originally filed with the informa-

tion, I R. doc. 1, does not assert that defendant personally committed the assault. The

superseding indictment charged the assault occurred “in furtherance of the conspiracy.”

Defendant acknowledged at the close of the government’s case that Count 2 liability

depended upon Pinkerton, underscoring for defendant the vicarious liability theory. We

do not see how defendant suffered any surprise or prejudice. That the government’s

proof ultimately rested on vicarious liability did not “effectively alter the substance of the

indictment.” Hunter v. State, 916 F.2d at 599.

V

Finally, defendant challenges the enhanced sentence given him pursuant to 18

U.S.C. § 3559(c)(1) on the basis that the government did not refile the required informa-

tion before his second trial. See 18 U.S.C. § 3559(c)(4) and 21 U.S.C. § 851(a). We

review de novo challenges to the legality of a sentence. United States v. Gonzalez-

Lerma, 14 F.3d 1479, 1484 (10th Cir.), cert. denied, 114 S. Ct. 1862 (1994).

Under 18 U.S.C. § 3559(c)(1), a mandatory life sentence may be imposed on

persons convicted of serious violent felonies who have been convicted on separate prior

occasions of two or more serious violent felonies. Section 3559(c)(4), referencing 21

U.S.C. § 851(a), incorporates a notice provision: the government must file, before trial or

entry of a guilty plea, a listing of the prior convictions relied upon to support a mandatory

15
life sentence. In the instant case, the government’s notice requested that defendant

receive a life sentence if convicted on Count 2 and listed the supporting prior convictions.

The government filed the request before the first trial, but did not refile after the mistrial

and superseding indictment. Defendant contends that we should view the notice as

jurisdictional, and hold that the government’s failure to refile its notice deprived the

district court of jurisdiction to impose an increased sentence.

The purpose of the notice filing is to give the defendant an opportunity to establish

either that he had not been convicted of the crimes the government relies upon for the

sentence enhancement or that the convictions do not qualify as the type satisfying the

enhancement requirements. Here defendant had that opportunity. In an analogous case

involving 21 U.S.C. § 851(a), we held the government is not required to refile its notice

after return of a superseding indictment. United States v. Wright, 932 F.2d 868, 882

(10th Cir.), cert. denied, 502 U.S. 962 (1991); see also United States v. Williams, 59 F.3d

1180, 1185 (11th Cir. 1995) (rejecting the need to refile 21 U.S.C. § 851 notice after a

consecutive trial in the same court), cert. denied, 116 S. Ct. 1546 (1996).

Defendant also argues that by dropping the reference to the aider and abettor

statute, 18 U.S.C. § 2, the superseding indictment fundamentally changed the crime

charged in Count 2. Defendant argues, “[w]hen the superseding indictment changes the

nature of the allegation from direct participation to a theory of vicarious liability, the

prosecution should be required to announce its belief before trial that the amended charge

16
remains a ‘serious violent felony’ under 18 U.S.C. § 3559(c).” Appellant’s Brief at 49.

He also argues that the Count 2 conviction is not such a felony justifying enhancement

because § 3559(c)(2)(F)(ii) does not mention conspiracy. Id. We are not impressed with

either argument.

The “serious violent felony” that exposed defendant to the mandatory life sentence

was the underlying assault, which was charged in both indictments. In both indictments

Count 2 charged a substantive crime, not the crime of conspiracy. The first indictment

read in a light most favorable to defendant, charged defendant in Count 2 as both

principal and aider and abettor. An aider and abettor under 18 U.S.C. § 2 is “punishable

as a principal.” Dropping that § 2 reference, if anything, benefitted defendant. The

addition of the “in furtherance of the conspiracy” language we believe added nothing that

was not inherent in the first indictment.

Defendant’s § 3559(c)(2)(F)(ii) argument was never raised in the district court. In

any event, a substantive crime punishable by ten years or more imprisonment which “by

its nature, involves a substantial risk that physical force against the person of another may

be used in committing the offense,” id. § 3559(c)(2)(F)(ii), qualifies as a “serious violent

felony” under § 3559. Although defendant never fired the shots his participation in the

attempted ATM robbery satisfies the statutory requirement. We therefore reject defen-

dant’s argument that his sentence was improperly enhanced.

AFFIRMED.

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