United States v. Gruber

O’BRIEN, J. dissenting.

Does a tree falling beyond human earshot make a sound? Has a fleeing felon who removes a deadly weapon from his waistband during a violent encounter with the police used the weapon, even though it was not seen by the police until he was incapacitated? The Majority says such conduct is not use of a weapon in violation of 18 U.S.C. § 111(b). I respectfully disagree.

A jury convicted Frederick Gruber of assaulting a federal officer with a dangerous weapon. Today, the Majority vetoes the jury’s decision. Its requirement for “use” of a weapon (actively brandishes, strikes with, fires or attempts to fire a gun) relates to a different statute, is too narrow and is not warranted by these facts.

The Majority relies on Bailey v. United States in reaching its decision. 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Bailey did not involve 18 U.S.C. § 111(b), with its “use” provision. Rather, Bailey construed the “use and carry” provision of 18 U.S.C. § 924(c)(1). That statute, the Court decided, “requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.” Id. at 143, 116 S.Ct. 501.

Bailey actually involved two consolidated cases testing the application of § 924(c)(1), which penalizes the use of a firearm during the commission of a violent or drug trafficking offense. Roland Bailey’s conviction rested on a loaded pistol found inside a bag in his locked car trunk after he was arrested. Id. at 139-40, 151, 116 S.Ct. 501. Candisha Robinson’s conviction was based on an unloaded, holstered firearm found locked in a trunk in a bedroom closet of her apartment. Id. at 140,151,116 S.Ct. 501. The weapons were *780not accessible to the defendants. On those facts the Supreme Court held the government failed to prove that either defendant was “using” a firearm to further drug trafficking activities, noting “that ‘use’ must connote more than mere possession of a firearm by a person who commits a drug offense.” Id. at 143,116 S.Ct. 501.

The Court discussed the ambiguity of the word “use” resulting from its various connotations. It was particularly concerned, based upon the facts before it and the specific statutory language, with equating possession and use, saying:

Under [the government’s] reading, mere possession of a firearm by a drug offender, at or near the site of a drug crime or its proceeds or paraphernalia, is a “use” by the offender, because its availability for intimidation, attack, or defense would always, presumably, embolden or comfort the offender. But the inert presence of a firearm, without more, is not enough to trigger § 924(c)(1). Perhaps the nonactive nature of this asserted “use” is clearer if a synonym is used: storage. A defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds. Storage of a firearm, without its more active employment, is not reasonably distinguishable from possession.

Id. at 149,116 S.Ct. 501.

Bailey is distinctly different from this case in two respects: its facts and the relevant statute. In Bailey, the defendants’ “use” of weapons consisted of having them locked away, but nearby. Here Gruber had a loaded firearm in his waistband and was reaching for it when he was shot. His reach was at least partially successful, as he had removed the weapon from his waistband. After Gruber was subdued it was found on the ground directly beneath him — and where his hands had been tucked under his belly. Unlike Bailey, where the weapons were not accessible to the defendants, Gruber’s weapon was not only on his person, but deployed.1

Furthermore, § 924(c)(1), the statute analyzed in Bailey, differs from this one, § 111(b), in a critical way. Section 924(c)(1) mandates certain penalties if a defendant “during and in relation to any crime of violence or drug trafficking crime ..., uses or carries a firearm.” (Emphasis added.) In order to give effect to the “or carries” language of the statute, the Court in Bailey chose a “limited, active interpretation of ‘use’ ”: “brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm.” Bailey, 516 U.S. at 146,148, 116 S.Ct. 501; see Muscarello v. United States, 524 U.S. 125, 136, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (“In Bailey, however, we limited ‘use’ of a firearm to ‘active employment’ in part because we assumed ‘that Congress ... intended each term to have a particular, nonsuperfluous meaning.’ A broader interpretation of ‘use,’ we said, would have swallowed up the term ‘carry.’ ”) (internal citation omitted). The actual holding of Bailey is “that the language, context, and history of § 924(c)(1) indicate that the Government must show active employment of the firearm” to “establish ‘use’ for the purposes of the statute[.]” Bailey, 516 U.S. at 144, 116 S.Ct. 501.

*781Section § 111(b) makes no distinction between using and carrying a weapon. It simply provides that “[w]hoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon” shall be subject to an enhanced penalty. Thus, just as the Court in Bailey gave effect to Congress’ use of two separate terms in § 924(c)(1) — use and carry— so, too, should we give effect to the use of a single term in § 111(b) — use. A broader reading of “use” in this case is consistent with the statute’s language and supports the jury’s verdict.

This jury was instructed on the elements of assaulting a federal officer with a dangerous weapon:

One: The defendant forcibly assaulted, resisted, opposed, impeded, intimidated or interfered with an officer or employee of the United States, Craig Overby[.]
Two: At the time, Craig Overby was engaged in official duties.
Three: The defendant used a deadly or dangerous weapon.

“Forcibly” means by use of force. A “deadly and dangerous weapon” is an object used in a manner likely to endanger life or inflict serious bodily harm. The term “forcibly assaults” means any deliberate and intentional attempt or threat to inflict physical injury upon another with force or strength when that attempt or threat is coupled with an apparent ability to do so. Although a “forcible assault” may be committed by a defendant without actually touching, striking or doing bodily harm to another, the government must prove that the actions of the defendant were of such a nature to put the person against whom they were directed in fear of immediate bodily harm. There is a use of force when one person intentionally wounds another, or when one person intentionally makes a display of force which reasonably causes a person to fear immediate bodily harm.

(R.Vol. 1, Doc. 38 at 21-23.)

The jury was also instructed that it could draw “reasonable inferences” from the evidence in the case:

While you should consider only the evidence in the case, you are permitted to draw such reasonable inferences from the evidence as you feel are justified in light of common experience. In other words, you may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which have been established by the testimony and the evidence in this case.

(Id. at 7.) The defense did not object to these instructions.

We review a sufficiency of the evidence challenge only to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our method of review is also restricted.

In conducting [a sufficiency of the evidence] review this Court may neither weigh conflicting evidence nor consider the credibility of witnesses. It is for the jury, as the fact finder, to resolve conflicting testimony, weigh the evidence, and draw inferences from the facts presented.

United States v. Zabriskie, 415 F.3d 1139, 1144 (10th Cir.2005) (internal citation and quotations omitted).

We do not examine the evidence in “bits and pieces,” but instead “evaluate the sufficiency of the evidence by considering the collective inferences to be drawn from the evidence as a whole.” United States v. Wilson, 107 F.3d 774, 778 (10th Cir.1997) (quotations omitted). We may overturn a *782guilty verdict on sufficiency grounds only if no reasonable jury could have reached such a verdict on the evidence presented. United States v. Shepard, 396 F.3d 1116, 1119 (10th Cir.2005).

The jury considered evidence in three key areas: Gruber’s actions; Agent Over-by’s actions, knowledge and thoughts; and Gruber’s admissions. With respect to Gruber’s actions, it heard the following testimony: On December 7, 2003, Gruber said “he was going to go out in a blaze of glory.” (R. Vol. 6 at 444.) On December 8, Richard Eidson reported to the police that Gruber had robbed a bank in Ardmore and was going to shoot him. That same day, local law enforcement officers and FBI agents formulated a plan to look for Gruber in Marietta, Oklahoma. For good reason, Gruber was considered armed and dangerous. Gruber drove past the area where the officers were gathered, and after ignoring efforts to stop him, took off at a high rate of speed, with the officers in pursuit. The vehicle pursuit ended when Gruber drove his car off the road and up against an abandoned house. Overby pursued Gruber on foot. The two men eventually confronted each other from opposite sides of a parked vehicle. Overby trained his weapon on Gruber, identified himself as an FBI agent, and ordered Gruber not to move. Gruber momentarily complied, raising his clenched fists up to, but not over, his head. When Gruber suddenly dropped his hands out of Over-by’s sight, the agent shot Gruber in the neck. Gruber dropped to his knees and began screaming “I’m shot, I’m shot.” (Id. at 478.) He did not put his hands to his neck (as one might expect) but instead lay on the ground on his stomach with his hands and most of his arms tucked under his body, moving “like he was reaching for something.” (Id.) Despite his injuries and the shouted orders from several officers to put his hands behind his back, Gruber kept his hands tucked underneath his belly until forced at gunpoint to comply. When Gruber was finally handcuffed and rolled on his side, a handgun was found on the ground beneath him. It was not only loaded, but a live round was in the chamber, ready to fire with a squeeze of the trigger.

In addition, the jury heard Overby testify about what he knew prior to his confrontation with Gruber: Gruber was considered armed and dangerous, he was wanted for bank robbery, and he had made threats about going out “in a blaze of glory.” (Id. at 499.) Overby told the jury he donned a bulletproof vest in response to the 911 call made on December 8 and he drew his weapon as soon as he got out of his car to pursue Gruber on foot. The jury saw Overby demonstrate the way in which Gruber put his hands up to his head, “close to [his] ears, the hands were shaking and they were clenched, kind of like a body builder flexing his muscles.” (Id. at 475.) The jury watched Overby demonstrate how — and how quickly — Gruber dropped his hands out of sight. Overby also testified that once he saw Gruber on the ground, he “was concerned that, that he was going for the weapon again and was going to shoot, try to shoot [him] again.” (Id. at 478) (emphasis added).

Finally, Agent Bob Horn of the Oklahoma State Bureau of Investigation testified about Gruber’s statements to him on December 8:

When he got out of the car, he was surrounded by approximately ten police officers or officers and he heard one officer tell him to freeze and that he reached for his weapon, indicating to me when I was talking to him using his right hand reached to the front of his pants that he was wearing indicating that he was reaching to his waistband for his weapon.

*783(Id. at 591-92.) The jury heard Horn’s testimony that Gruber said “[h]e was reaching for his weapon” or “had his hand on the pistol” when Overby shot him. (Id. at 592-93.) Gruber also told Horn, “It’s possible that I was just reaching for the weapon to take it out and throw it on the ground and give myself up.” (Id. at 593.) The jury could thus evaluate whether Gruber attempted to shoot, surrender his weapon, or merely find solace in its cold, cozy grip.

Gruber does not argue the evidence was insufficient to show an assault on a federal officer, only that his weapon was not used in the process.2 The Majority accepts this argument, concluding there was insufficient evidence to demonstrate “use” of Gruber’s .45 caliber semi-automatic weapon, primarily because no one saw it until he had been subdued and handcuffed.3 That narrow view of the evidence does not allow for reasonable inferences.4 The assaulted officer does not have to see the weapon,5 particularly when he is reliably aware of its presence.

Evidence that Gruber reached for and even touched his concealed weapon is a sufficient “use” under 18 U.S.C. § 111(b). It would even be sufficient under Bailey’s § 924(c)(1) definition, which “includes brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm.” Bailey, 516 U.S. at 148, 116 S.Ct. 501 (emphasis added). The jury could reasonably have found a thwarted attempt to fire the weapon — a “use” explicitly within the Bailey definition. In any event, Gruber’s conduct is sufficient “to show an active employment of the firearm.” Id. at 143, 116 S.Ct. 501. But even short of an attempt to shoot, Gruber’s acute connection with his firearm was light years away from the “inert presence” the Bailey court faced — having a gun locked in the trunk of a car or inside a locked footlocker in a bedroom. Id. at 149, 116 S.Ct. 501. Beyond doubt it was not “storage” (the Court’s synonym for “the nonactive nature of this asserted ‘use’ ”). Id. at 149, 116 S.Ct. 501. It was dramatically more than placement for later active use. It was more than a display for intimidation, which Bailey considers a “use.” Id. at 148-49, 116 S.Ct. 501. It was part of the assault.

*784The jury was correctly told an assault is an attempt to inflict injury coupled with an apparent ability to do so.6 The jury apparently considered the assault on Overby complete when Gruber reached for his weapon. Without more, the weapon was “used” during the assault. But there was more. Gruber grabbed the weapon and removed it from his waistband — a patent “use.”

The evidence — not considered in “bits and pieces” but as a whole, Wilson, 107 F.3d at 778 (quotations omitted) — demonstrated an active use of a firearm by Gruber sufficient to affirm the jury’s verdict. I dissent from the reversal and remand. However, I join the majority opinion affirming the other aspects of the district court’s judgment and sentence.

. A more benign interpretation of the facts is possible. Gruber offered one, which the Majority apparently accepts. (Majority Op. at 10.) But, if we respect the jury’s role, as we frequently say, then we must consider the facts and the inferences to be drawn therefrom in a manner consistent with the verdict, if we can reasonably do so. The evidence here would permit a reasonable jury to find that Gruber reached for and retrieved the weapon from his waistband and continued to avail himself of it until forcibly disarmed.

. I will not dwell upon the assault except to note: 1) the jury was properly instructed (without objection) on the issue; 2) the jury could have concluded Gruber was attempting to get his weapon (and did) when he dropped his hands below eye level; 3) the jury could have concluded Gruber would have used his weapon against the federal agent had his actions not been thwarted by a bullet to the neck; and 4) the federal officer was put in fear of bodily harm.

. The Majority notes:

Without any evidence or testimony, it is only speculation to say that Mr. Gruber actually "used” the gun during the assault. The circumstantial evidence presented cannot shed light on whether or not Mr. Gruber "used” the gun during the assault on Overby, especially in light of the fact that Agent Overby admitted to having never seen Mr. Gruber’s gun. While this evidence may be enough to prove that Mr. Gruber "carried” and "possessed” the gun, it does not prove "use,” an essential element of 18 U.S.C. § 111(b).

(Majority Op. at 779.)

. The “no one saw me do it” argument has a dieting corollary — the food no one sees you eat doesn't count. It is a comfortable diet but you don’t lose weight.

. Would there be any question about Gruber’s “use” of his weapon if it had been in his hand, behind the car and below eye level, when Overby first confronted him? Similarly, would it not also have been a "use” if another officer, but not Overby, saw the weapon in Gruber's hand after the unexpected and aggressive move — when Gruber dropped his hands out of Overby’s sight?

. The district court may have unduly increased the government's burden of proof. The instructions defined forcible assault as “any deliberate and intentional attempt or threat to inflict physical injury upon another with force or strength when that attempt or threat is coupled with an apparent ability to do so.” (R. Vol. 1, Doc. 38 at 22.) With respect to a different, but similar, assault statute we recently concluded "that recklessness is a culpable mens rea with respect to assault resulting in serious bodily injury under [18 U.S.C.] § 113(a)(6).” United States v. Zunie, 444 F.3d 1230, 1233 (10th Cir.2006).