United States Court of Appeals,
Eleventh Circuit.
No. 95-4389
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
James Francis CORNILLIE, Defendant-Appellant.
Aug. 28, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-6129CR-WJZ), William J. Zloch, Judge.
Before ANDERSON, EDMONDSON and BIRCH, Circuit Judges.
PER CURIAM:
James Francis Cornillie appeals his conviction and sentence
for bank robbery in violation of 18 U.S.C. § 2113(a). Cornillie
claims the district court erred by (1) refusing Cornillie's request
for an instruction on bank larceny as a lesser included offense,
and (2) instructing the jury that Cornillie could be found guilty
if he had used force and violence or intimidation when Cornillie
had been accused in the indictment of having used force, violence
and intimidation. We affirm.
Cornillie claims the district court erred by refusing to
charge the jury on the lesser included offense of bank larceny. We
review a district court's refusal to give a particular jury
instruction for abuse of discretion. United States v. Morris, 20
F.3d 1111, 1114 (11th Cir.1994). An abuse of discretion may occur
where the evidence would permit a rational jury to find the
defendant guilty of the lesser offense and not the greater. United
States v. Catchings, 922 F.2d 777, 780 (11th Cir.1991).
The essential elements of bank larceny under 18 U.S.C. §
2113(b) are (1) the defendant took and carried away money, (2) the
money was worth more than $100, (3) the money was in the care,
custody, control, management or possession of the bank; and (4)
the defendant intended to steal or purloin the money. United
States v. Falcone, 934 F.2d 1528, 1547 (11th Cir.1991). Bank
larceny lacks the element of force or intimidation.
Cornillie claims that the jury could have rationally found
that he never knowingly and willfully intended to use force and
violence or intimidation. Cornillie says the evidence showed that
he merely passed non-threatening letters to the bank tellers and
that he appeared to be under the influence of drugs. Cornillie
claims that if the jury believed he was under the influence of
drugs, the jury could have found he lacked the ability to form the
requisite intent to intimidate.
Under 18 U.S.C. § 2113(a), intimidation occurs "when an
ordinary person in the teller's position reasonably could infer a
threat of bodily harm from the defendant's acts." See United
States v. Higdon, 832 F.2d 312, 315 (5th Cir.1987); United States
v. Graham, 931 F.2d 1442, 1443 (11th Cir.1991). The evidence
showed that Cornillie presented demand letters to the bank tellers
and that the bank tellers complied with his demands out of fear.
That Cornillie appeared to be under the influence of drugs could
very well have made Cornillie even more intimidating. The district
court did not abuse its discretion in denying Flynn's request for
a lesser included instruction.
During deliberations, the jury twice asked whether they should
follow the language of the indictment, which charged Cornillie with
having used force, violence and intimidation, or the court's jury
charge which, tracking the language of the statute, instructed the
jury that Cornillie could be found guilty if he had used force and
violence, or intimidation. After the second request, the district
court instructed the jury that the government could charge
Cornillie in the conjunctive, that is, using the words by force,
violence and intimidation, but that the government was allowed to
attempt to prove its case at trial in the disjunctive, that is by
showing force and violence or intimidation.
Cornillie claims it was error for the district court to
instruct the jury that Cornillie could be found guilty if he used
only intimidation because he was accused of having used force and
violence. Cornillie says the court's instructions confused the
jury—as evidenced by their two questions—and that the court's
response to the jury's question prejudiced his case.
Where the language of a statute proscribes several means by
which the defendant might have committed a violation, the
government may plead the offense conjunctively and satisfy its
burden of proof by any one of the means. See United States v.
Burton, 871 F.2d 1566, 1573 (11th Cir.1989). However, the court's
charge to the jury should track the language of the statute. See
United States v. Brooks, 670 F.2d 148, 152-53 (11th Cir.1982). The
district court correctly instructed the jury. And, by referring
the jury back to its original instruction, the district court
exercised its affirmative duty to clear up the juror's confusion.
See United States v. Anderton, 629 F.2d 1044, 1049 (5th Cir.1980).
AFFIRMED.