Revised July 19, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-10017
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK LENARD SMITH; TERNARD ANTOINE POLK,
Defendants-Appellants.
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Appeals from the United States District Court
For the Northern District of Texas
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June 26, 2002
Before HIGGINBOTHAM and CLEMENT, Circuit Judges.*
CLEMENT, Circuit Judge:
Defendants-Appellants Derrick Lenard Smith ("Smith") and
Ternard Antoine Polk ("Polk") appeal from their convictions for
three counts of attempted murder. They argue that the jury’s
verdict lacks evidentiary support and that the district court
improperly enhanced their sentences. We disagree and affirm the
Appellants’ convictions.
*
Judge Politz was a member of the panel that heard oral
arguments. However, due to his death on May 25, 2002, he did not
participate in this decision. This case is being decided by a
quorum pursuant to 28 U.S.C. § 46(d)(1996).
I. FACTS AND PROCEEDINGS
On the morning of June 19, 2000, Smith and Polk robbed the
Chase Bank in Irving, Texas, escaping with more than $10,000. A
bank customer witnessed the robbery from the drive-through lane,
followed the Appellants as they fled the scene, and reported their
location to the police. Shortly thereafter, Irving Police
Department Officer John Lancaster ("Lancaster") began pursuing the
suspects. Officer Lancaster followed Smith and Polk as they headed
towards Dallas, and he approached the suspects’ vehicle on foot
when it appeared to be stopped in heavy traffic. As Lancaster drew
near, Smith exited from the passenger side, fired at Lancaster, and
fled with Polk driving. Lancaster retreated to a convenience store
parking lot, and Dallas Police Officers Thomas Jump ("Jump") and
Ronald Hubner ("Hubner") took over the pursuit.
Smith fired between 20 and 30 rounds at Jump and Hubner’s
vehicle, eventually disabling it. With Jump and Hubner
incapacitated, Dallas Police Officers Kenney Lopez ("Lopez") and
Percy Trimble ("Trimble") led the chase, which was now proceeding
towards downtown Dallas on Interstate 35. Also in pursuit were FBI
agents D. Richard Burkhead ("Burkhead") and Christy Jones
("Jones"), who were in charge of the federal investigation into the
robbery. On the interstate, Smith began firing upon innocent
motorists in an attempt to cause a crash. The Appellants exited
2
the interstate, ambushed Trimble and Lopez in a residential
neighborhood, and disabled that squad car as well. Shortly after
the ambush, Smith jumped from the moving car, and Dallas Police
Officer Mike Walton ("Walton") pursued him on foot. Smith was
eventually captured hiding in a doghouse, and Polk was arrested
when his car broke down a short time later.
After a jury trial, Smith and Polk were each convicted of one
count of conspiracy to commit bank robbery, one count of bank
robbery, and one count of using and carrying a firearm during the
bank robbery. They were also each convicted of three counts of
attempted murder for shooting at Walton, Trimble and Lopez; three
counts of using and carrying a firearm during the attempted
murders; and one count of being a felon in possession of a firearm.
Smith and Polk do not contest their bank robbery convictions on
appeal. However, they challenge their convictions for attempted
murder and the imposition of a 25 year minimum sentence for using
and carrying a firearm during those crimes. In addition, Smith
challenges his sentence enhancement for discharging a firearm
during a crime of violence.
II. ANALYSIS
A. Sufficiency of the Evidence: the Attempted Murder Convictions
For shooting at Officers Lopez, Trimble and Walton, Smith and
Polk were convicted of attempted murder under 18 U.S.C. § 1114. §
1114 imposes penalties on:
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Who[m]ever kills or attempts to kill any officer or
employee of the United States or of any agency in any
branch of the United States Government (including any
member of the uniformed services) while such officer or
employee is engaged in or on account of the performance
of official duties, or any person assisting such an
officer or employee in the performance of such duties or
on account of that assistance. . . .
18 U.S.C. § 1114 (2001). The Appellants contend that their
convictions under § 1114 must be vacated because there is no
evidence that the Dallas police were assisting a federal officer.
The standard of review in assessing a challenge to the
sufficiency of the evidence in a criminal case is whether a
"reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt." United States v.
Bell, 678 F.2d 547, 549 (5th Cir. 1982)(en banc), aff’d on other
grounds, 462 U.S. 356 (1983). "In evaluating the sufficiency of
the evidence, a court views all evidence and all reasonable
inferences drawn from it in the light most favorable to the
government." United States v. Mergerson, 4 F.3d 337, 341 (5th Cir.
1993).
We find that the evidence, viewed in the light most favorable
to the government, supports the jury’s conclusion that Lopez,
Trimble and Walton were assisting FBI Agent Burkhead in a federal
bank robbery investigation. Agent Burkhead learned about the
robbery within a half-hour of its occurrence and immediately left
his office for the bank. En route to the scene, Burkhead heard a
radio report that the Dallas police were chasing the suspected
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robbers, and he and his partner joined in the pursuit. At this
point, a federal investigation was clearly underway; and by
pursuing the bank robbery suspects, the Dallas police were
assisting the FBI.
In addition, throughout the pursuit the Dallas Police
Department ("DPD") was acting pursuant to a joint bank robbery task
force with the FBI. DPD Sergeant James Smith ("Sergeant Smith"),
the supervisor in charge of the car chase, knew that the pursuit
began with a bank robbery and that the DPD and the FBI regularly
work together on bank robbery cases. Sergeant Smith testified:
We worked with the FBI. We have a task force that works
with the FBI on bank robberies. Anytime there’s a bank
robbery, a supervisor [objection by both defendants
overruled by the district court] – When there’s a bank
robbery in Dallas, a Dallas sergeant or above responds to
ensure that all the crime scene investigation and
cooperation between the people, the witnesses and the
officers and the FBI is coordinated and everything goes
smoothly. We have an officer with the task force that
works with the city robberies to assist and work with
them and our goal is to assist and work with them in any
way we can.
Smith and Polk argue that because Dallas police officers Jump,
Trimble, and Lopez responded to a report about shots being fired at
Irving police officers, not a reported bank robbery, they were not
cooperating with the FBI’s investigation. It is sufficient,
however, that the supervising officer knew that the pursuit began
with a bank robbery and was aware that his department often
cooperated with the FBI on bank robbery cases, given his
supervisory role in the pursuit.
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Finally, Smith and Polk were only charged for attempted murder
in connection with the shootings that occurred after the FBI became
involved in the pursuit. They did not face federal charges for
firing on Officers Lancaster, Jump or Hubner.
Since the Dallas police officers and the FBI agents were
jointly pursuing a suspect in a federally-investigated bank
robbery, Smith and Polk attempted to kill three individuals who
were assisting a federal officer. Accordingly, we find the jury’s
determination that the assaulted officers were assisting FBI agent
Burkhead is sufficiently supported by the evidence.
Our conclusion in the instant case comports with Fifth Circuit
precedent. In United States v. Hooker, 997 F.2d 57 (5th Cir.
1993), the defendant attacked a state narcotics agent who was
assisting the federal Drug Enforcement Administration with an
investigation. Adverting to the Fifth Circuit’s "expansive view"
of § 1114, the Hooker court held that the attack on the state agent
fell within the statute’s coverage because the agent was "acting in
cooperation with federal officers in a federal operation when he
was assaulted." Id. at 74.1 Similarly, in the instant case we
1
We note the Appellants’ argument that § 1114 has been
rewritten since Hooker was decided. In 1996, Congress substituted
"a general reference to killing or attempting to kill any officer
or employee of any agency in any branch of the United States
Government for more specific references to killing or attempting to
kill certain enumerated officers and employees of the United
States." 18 U.S.C. § 1114 (2001) (Historical and Statutory Notes).
In our view, the statute in its current form provides even broader
coverage.
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find that Officers Lopez, Trimble and Walton were cooperating with
the FBI in a federal bank robbery investigation.
B. Improper Prosecutorial Remarks
Appellant Smith next argues that the government improperly
explained the elements of an offense under § 1114 to the jury. We
review alleged improper prosecutorial remarks to determine whether
they are "inappropriate and harmful." United States v. Lowenberg,
853 F.2d 295, 301 (5th Cir. 1988)(quoting United States v. Chase,
838 F.2d 743, 749 (5th Cir.)).
Smith contends that the government erroneously told the jury
that it could base a conviction under § 1114 on the federal nature
of the bank robbery, rather than on a determination of whether the
assaulted officers were assisting the FBI. In other words, Smith
argues that the government mislead the jury into believing that §
1114 applies whenever a federal crime has been committed. During
closing arguments, the government asked the jury "How can you say
these officers were not assisting in the apprehension of a federal
offender?" Smith characterizes this question as an improper
instruction that § 1114 applies to anyone who attempts to apprehend
a federal offender, instead of to anyone who assists a federal
officer. We disagree, and we find that the question properly
informs the jury that the officers are protected by § 1114 if they
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were "assisting [the FBI] in the apprehension of a federal
offender."
Smith also complains that the government repeatedly emphasized
that his offense began as a bank robbery: "This offense. . .started
out as a bank robbery. . .[i]t all started as a bank robbery and
ended as a bank robbery. . . . Those officers were attempting to
apprehend a bank robber." Although a federal offense, standing
alone, is insufficient to support a conviction under § 1114, we do
not find that emphasizing the bank robbery constitutes a
misstatement of law. Smith has inferred an improper instruction
from otherwise innocuous remarks, and it is far from clear that the
jury interpreted the government’s statements in the same way as
Smith. Moreover, the judge’s instructions to the jury make clear
that the court, not the government, is the only source for
instructions on the law.2 Accordingly, we do not find that the
government inappropriately instructed the jury.
C. Sentence Enhancements
1. Standard of Review
Finally, the Appellants object to the district court’s
enhancement of their sentences. The Court reviews de novo whether
2
The jury charge includes statements such as the following:
“It is... my duty at the end of the trial to explain the rules of
law that you must follow and apply in arriving at your verdict.”;
“[I]t is your sworn duty to follow all the rules of law as I
explain them to you.”; “It is your duty to apply the law as I give
it to you....”; “[W]hat the lawyers say is not binding on you.”
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a fact is an element of an offense or merely a penalty enhancer.
See United States v. Chandler, 125 F.3d 892, 894-95 (5th Cir.
1997).
2. Subsequent Conviction under 18 U.S.C. § 924(c)(1)(A)
Both Appellants were convicted of four counts of possession of
a firearm during and in relation to a crime of violence. 18 U.S.C.
§ 924(c)(1)(A) imposes a minimum sentence of five years for this
offense. For a second or subsequent conviction under § 924, the
minimum sentence increases to 25 years. See 18 U.S.C. §
924(c)(1)(C)(i)(2001). In the instant case, both defendants were
convicted of Count Three, which charged them with using a firearm
during the bank robbery. The defendants were also convicted of
Counts Five, Seven and Nine, which charged them with using a
firearm during the attempted murders. Accordingly, the district
court imposed the mandatory minimum sentence of 25 years for Counts
Five, Seven and Nine under 18 U.S.C. § 924(c)(1)(C)(i). On appeal,
Smith and Polk argue that the jury should have been required to
make specific findings on whether Counts Five, Seven and Nine were
subsequent offenses.
The Appellants’ argument is foreclosed by McMillan v.
Pennsylvania, 477 U.S. 79 (1986). In McMillan, the Supreme Court
upheld a statute that permitted a sentencing court, rather than a
jury, to find facts that raised the mandatory minimum sentence.
See id. at 88. The Supreme Court, although divided in its
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reasoning, recently held that McMillan survives Apprendi v. New
Jersey, 530 U.S. 466 (2000):
When a judge sentences the defendant to a mandatory
minimum, no less than when the judge chooses a sentence
within the range, the grand and petit juries already have
found all the facts necessary to authorize the Government
to impose the sentence. The judge may impose the minimum,
the maximum, or any other sentence withing the range
without seeking further authorization from those juries-
and without contradicting Apprendi.
See Harris v. United States, No. 00-10666, 2002 WL 1357277, at __
(U.S. June 24, 2002) (plurality).3
Furthermore, in Deal v. United States, 508 U.S. 129 (1993),
the Supreme Court affirmed a sentence under § 924(c)(1) almost
identical to the sentences imposed in the instant case. Because
Apprendi does not apply to increases of the mandatory minimum,
Harris, Deal and McMillan preclude the Appellants’ argument.
3. Discharge of a Firearm
Finally, the district court enhanced Smith’s sentence on the
firearm charges because he discharged the weapon. Smith contends
that discharging the firearm was a separate offense from using and
carrying a firearm, and should have been submitted to the jury.
However, this Circuit has rejected Smith’s argument in United
States v. Barton, 257 F.3d 433, 443 (5th Cir. 2001), which held:
3
Justice Breyer disagreed with the four-justice plurality’s
reasoning distinguishing Apprendi, but he joined the court’s
judgement affirming Harris’ sentence and joined the plurality
opinion “to the extent that it holds that Apprendi does not apply
to mandatory minimums.” Harris 2002 WL at __.
10
"In light of the language, structure, context, and legislative
history of § 924(c)(1)(A), we join the vast majority of circuits
that have reviewed this or a similar issue to conclude that
subsections (i), (ii), and (iii) set forth sentencing factors, not
separate elements of different offenses."
III. CONCLUSION
For the foregoing reasons, the Appellants’ convictions under
18 U.S.C. § 1114 are adequately supported by the evidence, the
government did not make improper remarks to the jury, and the
district court did not err in enhancing the Appellants’ sentences.
AFFIRMED.
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