United States Court of Appeals
For the First Circuit
No. 97-1069
UNITED STATES,
Appellee,
v.
ANTHONY M. SHEA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Chief Judge,
Aldrich, Senior Circuit Judge,
and Boudin, Circuit Judge.
David H. Mirsky, by appointment of the Court, for appellant.
Ben T. Clements, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
July 24, 1998
TORRUELLA, Chief Judge. Defendant Anthony M. Shea
appeals his four-count conviction stemming from an attempted
bank robbery involving two other co-defendants, John Schurko
and Nicolas DiMartino. Schurko had pled guilty prior to trial,
and Shea and DiMartino were tried together and convicted on all
counts before a jury. Shea was sentenced to 382 months of
imprisonment.
Shea challenges the district court's denial of his
motion to suppress several statements he made after his arrest
and of his motion for discovery of any rewards provided to FBI
agents who were assigned to investigate him. He also claims
that the district court erred in its jury instructions
regarding 18 U.S.C. 924(c), which prohibits the use and
carrying of firearms during a crime of violence, and contests
the sufficiency of the indictment for the 924(c) count.
Finally, the defendant argues that the government is precluded
from asserting that he used and carried a certain semiautomatic
weapon which the government had previously attributed to his
co-defendant Schurko. We affirm.
I. BACKGROUND On an appeal from a criminal conviction, we summarize
the facts in the light most favorable to the jury's verdict.
See United States v. Gonzlez-Maldonado, 115 F.3d 9, 12 (1st
Cir. 1997).
On August 11, 1995, after several days of planning,
Shea, Schurko, and DiMartino attempted to rob the Wakefield
Savings Bank in Wakefield, Massachusetts. Their preparations
included an initial stakeout of the bank, the theft of the
robbery and switch cars, and a dry run of the getaway route
from the bank. At about 4:15 p.m. on August 11, Shea, wearing
a Halloween mask and driving a Jeep Cherokee, with Schurko in
the backseat, approached the bank. When the Cherokee was about
60 to 65 yards from the bank, several cars containing FBI
agents confronted Shea, who then attempted to flee. However,
Shea's car was forced into a telephone pole.
Agents removed Shea, who was carrying a police
scanner and was armed with a fully-loaded Smith & Wesson
revolver tucked in his pants, from the driver's seat and
Schurko from the rear passenger seat of the Cherokee. In the
rear seat, agents recovered a Halloween mask, an Intratec 9-
millimeter semiautomatic assault weapon, which was loaded with
42 rounds of ammunition including one round in the chamber, and
a magazine full of ammunition to which an additional clip full
of ammunition had been attached. DiMartino, who had remained
waiting in Shea's Ford Bronco at a parking area about a half
mile away from the savings bank, was also apprehended by FBI
agents.
Shea was charged in a three-defendant, four-count
indictment with conspiracy to commit armed bank robbery under
18 U.S.C. 371 ("Count One"); attempted bank robbery under 18
U.S.C. 2113(a) & 2 ("Count Two"); use and carrying of
firearms during and in relation to a crime of violence, here,
attempted bank robbery, under 18 U.S.C. 924(c)(1) & 2
("Count Three"); and felon in possession of ammunition under 18
U.S.C. 922(g)(1) ("Count Four"). While Schurko pled guilty
prior to trial, Shea and DiMartino were tried together before
a jury. The jury found Shea guilty of all counts, and he was
sentenced to a total of 382 months of imprisonment.
II. DISCUSSION A. Post-Arrest Statements
Shea contests the district court's denial of his
pretrial motion requesting that the court suppress the
following post-arrest utterances of Shea, which were later
admitted at trial:
"How did you know I was here?"
"Where did you come from?"
"I should have gone home."
"What do you got me for, a stolen jeep?"
"What am I going to get for bank robbery, forty
years? I'll be out when I'm seventy."
The basis for the suppression motion was that these statements
were made while Shea was in custody but prior to his being
advised of his Miranda rights. We review de novo the district
court's application of Miranda jurisprudence to the challenged
statements. See United States v. Ventura, 85 F.3d 708, 710
(1st Cir. 1996). For the first time on appeal, Shea also
objects to the admission of his responses to questions
regarding his name and whether he had any weapons. As to these
utterances, "we review for plain error and reverse only if an
'obvious' or 'clear' error exists that affects 'substantial
rights.'" United States v. Guerrero, 114 F.3d 332, 341 (1st
Cir. 1997).
All of the statements at issue were elicited under
the following circumstances. As Shea was being arrested,
Special Agent Mark Little asked him his name and whether he had
any weapons or needles. Shea provided his name and stated that
he only had a scanner. While he was being arrested, Shea was
also heard saying that he should have gone home and asking how
the agents knew he was there. After Shea was secured and his
guns seized, he was turned over to Special Agent Todd Richards
to be transported to the FBI office. As Richards was placing
Shea in the car, Shea stated: "What am I going to get for bank
robbery, forty years? I'll be out when I'm seventy." On route
back to the FBI office, Shea asked the agents, "What do you got
me for, a stolen jeep?"
Law enforcement officers must inform suspects of
their Miranda rights prior to "custodial interrogation." SeeVentura, 85 F.3d at 710. It is essentially undisputed that
Shea was in the custody of FBI agents at the time he made the
challenged statements. Thus, we focus our inquiry on whether
the defendant was subjected to interrogation. The Supreme
Court has determined that the term "interrogation" refers not
only to direct questioning, "but also to any words or actions
on the part of the police (other than those normally attendant
to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the
suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). In
other words, Miranda warnings are required "whenever a person
is subjected to either express questioning or its functional
equivalent." Id. at 300-301.
We understand Shea's argument to be that the number
of FBI agents and degree of force used to arrest Shea somehow
amounted to the functional equivalent of interrogation.
Therefore, Shea contends that he should have been informed of
his Miranda rights immediately upon his arrest. We disagree.
As to the statements at issue in his motion to
suppress, the defendant fails to identify any specific acts or
statements by FBI agents which were "reasonably likely to
elicit an incriminating response from [him]." Innis, 446 U.S.
at 301. No evidence suggests that the FBI coerced Shea into
making these statements. Indeed, the record shows that all of
these statements were spontaneous utterances, which we deem to
be admissible. See United States v. Rogers, 41 F.3d 25, 31
(1st Cir. 1994) (affirming admission of statements that were
"voluntary and spontaneous"); United States v. Taylor, 985 F.2d
3, 7 (1st Cir. 1993) (allowing admission of statements made
from conversation "spontaneously initiated" by suspect); United
States v. Voice, 627 F.2d 138, 144 (8th Cir. 1980) (finding no
Miranda violation where officer did "no more than record
defendant's spontaneous responses"). Accordingly, we affirm
the district court's denial of the suppression motion.
We also rule that the district court did not clearly
err in admitting Shea's answers to questions regarding his name
and whether he had any weapons. The FBI agent's inquiry about
the suspect's name falls squarely within the exception
established in Pennsylvania v. Muiz, 496 U.S. 582 (1990), for
routine booking questions. See id. at 601 (questions regarding
suspect's name, address, height, weight, eye color, date of
birth and current age did not qualify as custodial
interrogation). Furthermore, Shea's answer to the agent's
question whether he had any weapons is admissible under the
public safety exception to Miranda established in New York v.
Quarles, 467 U.S. 649, 659 (1984) (finding exception to Mirandafor "questions [by police] necessary to secure their own safety
or the safety of the public").
Shea responds that the question was not motivated by
a concern for public safety because Agent Little's testimony
suggests that he would have searched the defendant completely
regardless of Shea's answer. However, we note the context in
which the question was asked: the agent had just apprehended an
individual suspected of attempting to commit a violent crime,
armed bank robbery. The arresting agent's question would have
facilitated the securing of any weapons on Shea's person
whether or not the agent intended to conduct a search of the
suspect. Finding no clear error, we affirm the admission of
Shea's response.
B. Merit Awards to FBI Agents
Shea asserts that the district court erroneously
denied his motion for the discovery of money or rewards
provided to certain FBI agents, who were assigned to
investigate the defendant. Relying on Brady v. Maryland, 373
U.S. 83, 87 (1963), Shea contends that since the requested
information was materially exculpatory, the government violated
his Fifth Amendment due process rights by failing to disclose
such information. We review a district court's denial of a
discovery motion for abuse of discretion. See United States v.
Phaneuf, 91 F.3d 255, 260 (1st Cir. 1996).
In Brady, the Supreme Court held "that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment . . . ." 373 U.S. at
87. Exculpatory evidence is "material" only if "there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceedings would have been
different." United States v. Bagley, 473 U.S. 667, 682 (1985).
In turn, a "reasonable probabilty" is one that is "sufficient
to undermine confidence in the outcome." Id. Shea argues that
the requested information would have been relevant to show bias
on the part of the government's FBI witnesses. Since the
government's case depended almost completely on the testimony
of these witnesses, he asserts that, if this information had
been disclosed, it would have altered the jury's conviction.
The defendant has failed to articulate a theory as to
how the requested information would exculpate him. The
pretrial discovery motion requests that the district court
"order the government to make available the amounts of money or
other rewards, e.g., promotion, step raises, transfers to
office of choice, provided to the special agents assigned to
the matters pertaining to [him]" (emphasis added). It is
important to note that Shea's motion does not seek information
regarding awards that were contingent on any agent's testimony.
In our view, the fact that FBI agents may have received merit
awards for the arrest of Shea would not have changed the
outcome of the trial. The jury was well aware that law
enforcement officers are paid to investigate crimes and make
arrests. Absent particularized allegations of agent
misconduct, the most reasonable inference a jury might make
from the existence of a merit award program is that Shea was a
particularly dangerous suspect worthy of special attention.
Shea also argues that the district court's denial of
his discovery motion violated his Sixth Amendment right to
confront witnesses by limiting his ability to uncover witness
bias. We reject this argument outright. Even without the
sought-after information, defense counsel could have questioned
testifying agents about this issue. Moreover, we find no
evidence in the record that the district court foreclosed
cross-examination by the defense on FBI merit awards. At
trial, Shea's counsel asked one agent, Agent Little, whether
the FBI had "a program whereby agents who make good
[surveillance] pictures or get convictions, get rewarded by
transfers, promotions or cash awards." The government did not
object to this question. When the agent testified that he did
not know because he had "never gotten one," defense counsel
responded, "I can see why." The record reflects that the
government objected to this last retort, and the judge properly
sustained the objection. We do not adopt Shea's reading of the
trial transcript that the district court, in effect, foreclosed
an inquiry into FBI merit awards by sustaining this objection.
Therefore, we rule that the district court did not abuse its
discretion in denying Shea' discovery motion.
C. Pinkerton Theory of Liability
Shea avers that the district court erred in
instructing the jury on Count Three, which charged him with the
use and carrying of firearms during and in relation to a crime
of violence, here, attempted bank robbery, in violation of 18
U.S.C. 924(c). We engage in de novo review of an alleged
jury instruction error "involv[ing] the interpretation of the
elements of a statutory offense." See United States v.
Pitrone, 115 F.3d 1, 4 (1st Cir. 1997). The district court
instructed the jury as to three alternative theories of
liability on this charge: direct principal liability; aider and
abettor liability; and liability for the foreseeable acts of
co-conspirators in furtherance of the conspiracy, pursuant to
Pinkerton v. United States, 328 U.S. 640 (1946). In its
Pinkerton charge, the district court instructed the jury that
it could find Shea guilty of violating 924(c), if it found,
inter alia, "that the defendant could reasonably have foreseenthat the crime of using a firearm during or in relation to the
attempted bank robbery might be committed by one or more of his
co-conspirators" (emphasis added).
Shea asserts that the Pinkerton instruction
improperly permitted the jury to convict him on the 924(c)
charge without satisfying the more stringent knowledge
requirement for 924(c) aider and abettor liability. Indeed,
conviction under an aider and abettor theory of liability calls
for a higher mens rea requirement than that required for
Pinkerton liability. In Pinkerton, the Supreme Court ruled
that a co-conspirator may be held vicariously liable for the
reasonably foreseeable substantive offenses committed by other
co-conspirators in furtherance of the conspiracy. See 328 U.S.
at 647-48. In contrast, for aider and abettor liability to
attach, the government must prove that Shea knew to a
"practical certainty" that the principal would be using a
weapon during the commission of the armed bank robbery. United
States v. Spinney, 65 F.3d 231, 239 (1st Cir. 1995). However,
Shea's assertion that the more strict knowledge requirement for
aider and abettor liability somehow negates the lower mens rea
requirement for an alternative Pinkerton charge has no support
in case law or common sense.
Shea's argument relies primarily on this court's
decision in Spinney. We find Spinney, which reversed a
defendant's conviction on a 924(c) charge because the
government failed to establish that the defendant knew to a
"practical certainty" that the principal would be using a
weapon during a bank robbery, see id. at 239, to be inapposite.
In Spinney, the defendant, Jeffrey Spinney, was indicted for
conspiracy to commit armed bank robbery, aiding and abetting an
armed bank robbery, and aiding and abetting the use of a
firearm during and in relation to a crime of violence.
However, because the conspiracy count was dismissed, the
district court never issued a Pinkerton instruction for the
924(c) offense. Thus, in Spinney, we simply stated the
requisite knowledge requirement for an aider and abettor theory
of liability without addressing the applicability of a
Pinkerton instruction to a 924(c) violation.
We agree with a number of our sister circuits that
Pinkerton liability attaches to the use-or-carrying-of-a-
firearm offense proscribed in 924(c). See, e.g., United
States v. Wilson, 135 F.3d 291, 305 (4th Cir. 1998); United
States v. Washington, 106 F.3d 983, 1011 (D.C. Cir. 1997);
United States v. Masotto, 73 F.3d 1233, 1240 (2d Cir. 1996);
United States v. Myers, 102 F.3d 227, 237 (6th Cir. 1996),
cert. denied, U.S. , 117 S. Ct. 1720 (1997); United Statesv. Wacker, 72 F.3d 1453, 1464 (10th Cir. 1995). We cannot
"attribute to Congress an intent to punish other [violent
criminal] activity where a gun is carried while exempting
conspiracy, a situation that is traditionally considered more
dangerous." United States v. Daz, 864 F.2d 544, 548 (7th Cir.
1988).
While this court has yet to address a direct
challenge to the applicability of a Pinkerton instruction to a
924(c) charge, we assumed its applicability in United Statesv. DeMasi, 40 F.3d 1306, 1319-20 (1st Cir. 1994). In that
case, the district court instructed the jury on Pinkertonliability for a 924(c) charge stemming from an attempted
robbery of an armored truck, but failed to include the
"reasonably foreseeable" qualification to the instruction.
This court found that "the use of firearms during and in
relation to the attempted robbery . . . was part and parcel to
the object of the conspiracy itself." DeMasi, 40 F.3d at 1319.
Accordingly, the court held that "no rational jury could have
found that [the defendant] conspired to rob the Brink's truck
. . . without also finding that the use of firearms in that
robbery would be reasonably foreseeable." Id. at 1319-20.
Thus, in DeMasi, this circuit sustained a 924(c) conviction
under a Pinkerton theory of liability. Here, we make explicit
our view that a jury may be instructed on Pinkerton liability
in connection with a charged violation of 924(c) either as
the sole or as an alternative theory of liability.
D. Knowledge of Features of Assault Weapon
Shea alleges that the district court erred in failing
to instruct the jury that he must have knowledge of the
features of the Intratec 9-millimeter weapon which brought it
within the scope of the assault weapons provision of
924(c)(1). Section 924(c)(1) provides in pertinent part:
Whoever, during and in relation to any crime
of violence . . . uses or carries a firearm,
shall . . . be sentenced to imprisonment for
five years, and if the firearm is a short-
barreled rifle, short-barreled shotgun, orsemiautomatic assault weapon, to
imprisonment for ten years, and if the
firearm is a machinegun, or a destructive
device, or is equipped with a firearm
silencer or muffler, to imprisonment for
thirty years.
18 U.S.C. 924(c)(1) (emphasis added). The defendant argues
that the semiautomatic assault weapon clause of this section is
a separate offense, which requires the jury to make a finding
that Shea knew of the gun's features. Shea presents a question
of first impression for this circuit.
We rule that the assault weapon provision is not an
element of the 924(c)(1) offense, but instead, a sentencing
enhancement. "When deciding how a particular statutory
allusion should be construed, an inquiring court must mull the
language and structure of the statute, and, when necessary, its
legislative history." United States v. Rivera-Gmez, 67 F.3d
993, 1000 (1st Cir. 1995) (finding "death results" provision of
18 U.S.C. 2119 (3) to be sentence enhancer rather than
separate offense). The language and structure of 924(c)(1)
suggest that Congress intended the assault weapon clause to
serve as a sentence enhancer. The section begins by
criminalizing the use and carrying of a firearm during the
commission of a predicate offense, a crime of violence, and
establishes a base sentence of 5 years for a violation. The
weapons clauses that follow, including the assault weapon
provision, are not structurally independent, but rather are
integrated into the main use-and-carrying offense. "Ripped
from their textual moorings, [these clauses] would be little
more than gibberish . . . ." Rivera-Gmez, 67 F.3d at 1000.
Traditional indicia that a provision is a sentence
enhancer include an explicit reference to a prior conviction
under the statutory section at issue; special sentencing
procedures; a penalty which is a multiplier of the sentence for
the underlying crime; or a title denoting it as a sentence
enhancer. See United States v. Rumney, 867 F.2d 714, 718 (1st
Cir. 1989). The 10-year sentence for using and carrying an
assault weapon (as well as the 30-year sentence under the
machinegun provision) are multipliers of the 5-year base
sentence, providing further evidence of congressional intent to
enhance sentences under certain aggravating circumstances.
The statute's legislative history confirms our
interpretation of the section. Congress initially created
924(c) without distinguishing among types of firearms. SeeUnited States v. Branch, 91 F.3d 699, 739 (5th Cir. 1996)
(citing Gun Control Act of 1968, Pub. L. No. 90-618, 102, 82
Stat. 1213 (1968) (prohibiting use or carrying of "firearm"
during commission of "any felony")). Then, in 1986, Congress
added the machinegun clause to the statute. See Firearms
Owners' Protection Act, Pub. L. No. 99-308, 104, 100 Stat.
449, 456 (1986). "Noticeably absent from both the House Report
and floor debates [accompanying the 1986 Act] was any
discussion suggesting the creation of a new offense." Branch,
91 F.3d at 739. In 1990, Congress appended the short-barreled
rifle, short-barreled shotgun and destructive device provisions
to the section, again without evincing an intent to create new
offenses for these weapons. See Crime Control Act of 1990,
Pub. L. No. 101-647, 1101, 104 Stat. 4789, 4829 (1990).
Finally, the semiautomatic assault weapon clause was added in
1994 to the list of weapons in 924(c)(1) without creating a
separate section. See Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, 110102(c)(2),
as amended, Pub. L. No. 104-294, 603 (p)(1), 108 Stat. 2015
(1994).
Shea asserts that Staples v. United States, 511 U.S.
600 (1994), in which the Supreme Court held that the government
needs to prove knowledge of the type of firearm for a
conviction under 26 U.S.C. 5861(d), compels us to make a
similar determination for 924(c)(1). However, we can easily
distinguish the situation in Staples from the present case
because, unlike 924(c)(1), the statute in Staples prohibited
possession of certain types of firearms but was silent as to
the mental state required for the commission of the offense.
As the Eleventh Circuit noted in United States v. Brantley, 68
F.3d 1283, 1289 (11th Cir. 1995), the Staples court wished to
avoid dispensing with a mens rea requirement "where doing so
would 'criminalize a broad range of apparently innocent
conduct.'" Id. at 1289 (quoting Staples, 511 U.S. at 609).
Such concerns are absent here because "the 924(c) defendant
whose sentence is enhanced based on the type of weapon he
carried has demonstrated a 'vicious will' by committing the
principal offense." Brantley, 68 F.3d at 1290. Accordingly,
we reject Shea's argument that a conviction under the statute
required the government to prove knowledge of the features of
the Intratec 9-millimeter weapon.
Shea also argues that the district court's imposition
of a 10-year sentence for the 924(c) violation constituted a
constructive amendment to the original indictment because the
indictment failed to charge the assault weapon in Count Three
either directly or by incorporation. This argument rests
entirely upon the assumption that the assault weapon clause
creates a separate offense. Having determined that the clause
acts as a sentence enhancer, see supra, we reject Shea's
constructive amendment claim without further comment.
E. Judicial Estoppel
Shea alleges that the government is judicially
estopped from asserting that he used or carried the Intratec 9-
millimeter weapon because during the detention hearing of his
co-defendant Schurko, the government linked the gun to Schurko
rather than to Shea. At Schurko's detention hearing, the
government stated in closing argument that, "[t]he notion . .
. that somehow that gun should be linked to Shea, who was in
the front seat, rather than [Schurko], who was sitting on it
when he was arrested, is simply absurd." As this court
observed in United States v. Kattar, 840 F.2d 118 (1st Cir.
1988),
The doctrine of judicial estoppel . . .
prevents a party from asserting a position
contrary to the position taken by the
party in an earlier proceeding. In this
circuit, the doctrine is only applied when
a litigant is "'playing fast and loose
with the courts.'"
Id. at 129-30 n.7 (citations omitted). We choose not to apply
this "obscure doctrine," id. at 130 n.7, here. The
government's closing argument at Schurko's detention hearing is
not inconsistent with its position in the prosecution of Shea
where it pursued accomplice as well as principal theories of
liability for the use and carrying of the Intratec 9-millimeter
weapon. Therefore, we see no ground for reversal on this
point.
III. CONCLUSION
For the foregoing reasons, we affirm the defendant's
conviction.