November 14, 1995 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-1958
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFREY W. SPINNEY,
Defendant, Appellant.
ERRATA SHEET
ERRATA SHEET
The opinion of this court issued on September 19, 1995, is
corrected as follows:
On page 2, line 3 change "(count 1)" to "(count 2)".
On page 2, line 4 change "(count 2)" to "(count 3)".
On page 2, line 6 (footnote 1) change "All references are to
the superseding indictment." to "Count 1, which charged appellant
with conspiring to commit bank robbery, see 18 U.S.C. 371, was
dismissed on the government's motion."
On page 5, line 10 insert the following text before the words
"aiding and abetting": "counts of conspiracy to commit bank
robbery, see 18 U.S.C. 371 (which count was later dismissed),
".
On page 5, line 14 change "each count." to "each remaining
count."
On page 5, line 20 change "count 1" to "count 2".
On page 7, line 10 change "count 1" to "count 2".
On page 11, lines 24-25 (footnote 5) change "The grand jury did
not lodge a conspiracy charge against Spinney and the government
has not tried" to "Having moved for the dismissal of the
conspiracy count against appellant, the government did not try ".
On page 16, line 24 change "(11th Cir. 1986)" to (11th Cir.)".
On page 21, line 12 change "count 1" to "count 2".
On page 21, line 13 change "count 2" to "count 3".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1958
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFREY W. SPINNEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Selya and Boudin, Circuit Judges,
and Lisi,* District Judge.
Diana L. Maldonado, Federal Defender Office, for appellant.
Timothy Q. Feeley, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief, for
appellee.
September 19, 1995
*Of the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Jeffrey W.
SELYA, Circuit Judge.
Spinney challenges his convictions for aiding and abetting an
armed bank robbery (count 2) and aiding and abetting the use of a
firearm during and in relation to a crime of violence (count
3).1 In our view, the two crimes, despite superficial
1Count 1, which charged appellant with conspiring to commit
bank robbery, see 18 U.S.C. 371, was dismissed on the
government's motion. The implicated portions of the applicable
statutes are as follows:
Whoever, by force and violence, or by
intimidation, takes, or attempts to take,
from the person or presence of another . . .
any property or money or any other thing of
value belonging to, or in the care, custody,
control, management, or possession of, any
[federally insured] bank . . . [shall be
punished as provided by law].
18 U.S.C. 2113(a) (1988).
Whoever, in committing, or in attempting to
commit, any offense defined in [ 2113(a)],
puts in jeopardy the life of any person by
the use of a dangerous weapon or device,
shall be . . . [punished as provided by law].
18 U.S.C. 2113(d) (1988).
Whoever, during and in relation to any crime
of violence . . . for which he may be
prosecuted in a court of the United States,
uses or carries a firearm, shall . . . be
[subjected to additional punishment].
18 U.S.C. 924(c)(1) (1988).
Whoever commits an offense against the United
States or aids, abets, counsels, commands,
induces or procures its commission, is
punishable as a principal.
18 U.S.C. 2(a) (1988).
As the text indicates, a conviction for armed bank
robbery, 18 U.S.C. 2113(d), necessarily signifies that the
4
similarities, require the application of dissimilar legal
standards. Because the evidence amassed by the government falls
between these stools, we affirm the first conviction but reverse
the second.
I. BACKGROUND
I. BACKGROUND
We limn the pertinent facts in the light most favorable
to the government, see United States v. Ortiz, 966 F.2d 707, 710-
11 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993), paying
particular heed to those details that arguably reflect what
appellant knew and when he knew it.
On August 20, 1991, at around 3:00 p.m., Gerald Mohan,
a conscientious FBI agent, noticed appellant (a person previously
known to him) sitting on the steps of the Federal Building in
Lowell, Massachusetts. Mohan decided to mount an impromptu
surveillance. As he was positioning his vehicle, a blue
Oldsmobile arrived at the scene. After appellant entered the
Oldsmobile, it made several quick turns and then pulled to the
curb. The driver (subsequently identified as Paul Kirvan) moved
into the front passenger seat and appellant took the wheel.
Kirvan and appellant proceeded to criss-cross the streets around
the Lowell Institution for Savings (the Bank). Mohan testified
that the pair's driving pattern appeared to be part of a process
of careful scrutiny.
Roughly fifteen minutes after beginning surveillance,
government has proved the elements of the lesser included offense
of unarmed bank robbery, 18 U.S.C. 2113(a).
5
Mohan followed the Oldsmobile to Academy Drive. There he
observed a classic getaway "switch site" on a dead end
approximately 0.3 miles from the Bank. Appellant and Kirvan next
returned to the vicinity of the Federal Building. On Fayette
Street, Kirvan alighted from the Oldsmobile (which he owned),
entered a parked Chevrolet Monte Carlo (later ascertained to have
been stolen some distance away), and began driving toward the
Bank. Appellant followed him in the Oldsmobile, and Mohan
followed both of them, caravan-style, in his own vehicle. When
the two drivers veered in separate directions, Mohan lost sight
of both cars. He circled in the general vicinity and, some four
minutes later, glimpsed the Chevrolet at a standstill in the
Bank's parking lot.
Mohan made a U-turn and headed back to the Bank. His
efforts were unavailing; at that precise moment, the Chevrolet
accelerated rapidly out of the parking lot and passed him (going
in the opposite direction). Kirvan was alone in the car. Mohan
made yet another U-turn and unsuccessfully gave chase.
At approximately 3:25 p.m., ostensibly during the brief
interval in which Mohan lost track of his quarry, a masked Kirvan
entered the Bank, instructed those present not to move, jumped
over the tellers' counter, stuffed the contents of several cash
drawers into a garbage bag, leapt back over the counter, and
fled. Although Kirvan brandished a handgun at the height of the
robbery, a teller testified that the weapon was not visible when
he entered the Bank.
6
Other percipient witnesses reported that, mid-afternoon
of the same day, they saw a Chevrolet Monte Carlo speed down
Academy Drive. Two men, one holding a bag, emerged from the
vehicle, crossed through two gates, and drove away in a waiting
blue car. The witnesses were unable to identify either suspect
positively, although one of the men "looked like" appellant. The
Lowell police recovered the Chevrolet that afternoon. They found
Kirvan's blue Oldsmobile the next morning, abandoned not far from
the switch site.
The government established that appellant and Kirvan
had been close friends for many years. Telephone toll records
reflected seventy-three calls between the men's residences in the
nineteen days preceding the robbery, including eleven calls on
August 19.
A federal grand jury indicted appellant on counts of
counts of conspiracy to commit bank robbery, see 18 U.S.C. 371
(which count was later dismissed), aiding and abetting an armed
bank robbery, see 18 U.S.C. 2113(d), and aiding and abetting
the use of a firearm during and in relation to a crime of
violence, see 18 U.S.C. 924(c). A jury trial eventuated.
After appellant unsuccessfully moved for judgment of acquittal,
the jurors returned a guilty verdict on each remaining count.2
2In a separate proceeding before a different judge and jury,
Kirvan was convicted of armed bank robbery and use of a firearm
during and in relation to a crime of violence. Notwithstanding
the verdict, the judge ordered an acquittal on the latter count.
We affirmed the armed bank robbery conviction and reinstated the
firearms conviction. See United States v. Kirvan, 997 F.2d 963
(1st Cir. 1993).
7
The court sentenced appellant to serve 262 months in prison for
armed robbery and imposed a mandatory sixty-month consecutive
sentence in respect to the firearms charge. This appeal
followed.
II. ARMED BANK ROBBERY
II. ARMED BANK ROBBERY
Appellant challenges the sufficiency of the evidence
supporting his conviction on count 2. Our task is
straightforward. We must ascertain whether, "after assaying all
the evidence in the light most amiable to the government, and
taking all reasonable inferences in its favor, a rational
factfinder could find, beyond a reasonable doubt, that the
prosecution successfully proved the essential elements of the
crime." United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.
1994). In performing this task, we do not pass upon the
credibility of witnesses, see id., nor do we demand that the
government disprove every hypothesis consistent with the
defendant's innocence, see United States v. Echeverri, 982 F.2d
675, 677 (1st Cir. 1993).
The jury reached its verdict in this case on the basis
of circumstantial evidence. Reliance on indirect, as opposed to
direct, evidence in a criminal case is both permissible and
commonplace. See O'Brien, 14 F.3d at 706 (observing that "the
criminal law does not place a special premium on direct
evidence"). In making such judgments, "juries are not required
to examine the evidence in isolation, for `individual pieces of
evidence, insufficient in themselves to prove a point, may in
8
cumulation prove it.'" Ortiz, 966 F.2d at 711 (quoting Bourjaily
v. United States, 483 U.S. 171, 179-80 (1987)). Thus, when a
jury draws inferences from circumstantial evidence, a reviewing
court should refrain from second-guessing the ensuing conclusions
as long as (1) the inferences derive support from a plausible
rendition of the record, and (2) the conclusions flow rationally
from those inferences. See id.
We add a cautionary note. Despite the deference that
characterizes appellate review of jury verdicts, juries do not
have carte blanche. The appellate function, properly understood,
requires the reviewing court to take a hard look at the record
and to reject those evidentiary interpretations and illations
that are unreasonable, insupportable, or overly speculative.
See, e.g., United States v. Valerio, 48 F.3d 58, 64 (1st Cir.
1995); United States v. Loder, 23 F.3d 586, 589-92 (1st Cir.
1994). This function is especially important in criminal cases,
given the prosecution's obligation to prove every element of an
offense beyond a reasonable doubt.
In this instance, the jury convicted the appellant on
count 2 as an aider and abettor. See 18 U.S.C. 2(a). Under
this theory of accomplice liability, Spinney would be guilty only
if the government proved (1) that Kirvan (the principal)
committed the substantive offense (armed bank robbery), and (2)
that Spinney (the accomplice) became associated with the endeavor
and took part in it, intending to ensure its success. See Nye &
Nissen v. United States, 336 U.S. 613, 619 (1949); Ortiz, 966
9
F.2d at 711 n.1. Because the jury heard plethoric evidence from
which it rationally could conclude that Kirvan committed armed
bank robbery, we direct our analysis to the second of these two
elements.
The central requirement of the second element is "a
showing that the defendant consciously shared the principal's
knowledge of the underlying criminal act, and intended to help
the principal." United States v. Taylor, 54 F.3d 967, 975 (1st
Cir. 1995). In a prosecution for armed bank robbery, this shared
knowledge requirement is binary; it extends both to awareness of
the robbery and to comprehension that a weapon would likely be
used. See United States v. Jones, 678 F.2d 102, 106 (9th Cir.
1982) (explaining that, to convict under 2113(d), the
prosecution must "show that the defendant aided and abetted the
principal both in the act of bank robbery and in the principal's
use of `a dangerous weapon or device' during the act") (citing
other cases). Appellant maintains that neither finding is
justified here. In the first place, he claims that the evidence
does not adequately show that he knew Kirvan aspired to rob the
Bank and nonetheless endeavored to help him. In the second
place, he claims that the record is devoid of any proof that he
knew about the actual or intended use of a gun.3
3If both arguments succeed, then the conviction must be
reversed. Conversely, if both arguments fail, then the
conviction must be affirmed. However, if the first argument
fails, but the second succeeds, then, since the jury necessarily
found all the elements of unarmed bank robbery, 18 U.S.C.
2113(a), and since the trial court charged on that statute as a
lesser included offense under 2113(d), we would remand for
10
1. Shared Knowledge of the Robbery. The first
1. Shared Knowledge of the Robbery.
challenge need not occupy us for long. Appellant does not assert
that he was "merely present" at the scene. See Ortiz, 966 F.2d
at 711 ("Mere association between the principal and those accused
of aiding and abetting is not sufficient to establish guilt; . .
. nor is mere presence at the scene and knowledge that a crime
was to be committed sufficient to establish aiding and
abetting.") (internal quotation marks omitted). Rather, he
focuses on the lack of direct evidence placing him at the switch
site, in or near the Bank, or in Kirvan's company at any time
except immediately prior to the commission of the crime, thereby
attempting to raise doubts about whether he had any specific
intent to assist in the enterprise.
This argument is flawed in its presumption that a
dearth of direct evidence somehow precludes jurors from drawing
logical inferences based on available circumstantial evidence.
Contrary to the burden of appellant's thesis, it is precisely
those situations that involve an absence of direct evidence in
which circumstantial evidence must be most closely analyzed. See
O'Brien, 14 F.3d at 706 (explaining that a lack of direct
evidence spurs examination of indirect evidence). In the last
analysis, the persuasive power of circumstantial evidence is
attributable more to its relevance and probative force than to
the presence of complementary direct evidence.
resentencing on that basis. See, e.g., United States v. Dinkane,
17 F.3d 1192, 1198 (9th Cir. 1994).
11
Having in mind Mohan's observations, the events that
transpired on Academy Drive, the vehicles abandoned in close
proximity to the Bank, and the telephone logs, a completely
rational juror need make only modest inferential leaps to arrive
at a founded conclusion that the two long-time friends planned
the crime, the flight, and the car switch. See United States v.
Olbres, F.3d , (1st Cir. 1995) [No. 94-2123, slip op.
at 10] (finding a "sturdy infrastructure," provided by
"circumstantial and suggestive" evidence, for making sound
rational inferences); Taylor, 57 F.3d at 975 (similar); see also
Ortiz, 966 F.2d at 711 (remarking that "[t]he sum of an
evidentiary presentation may be greater than its constituent
parts") (quoting Bourjaily, 483 U.S. at 180). Since every
necessary inference is adequately rooted in the record, we reject
as meritless appellant's assignment of error based on a supposed
lack of proof that he knew of, and helped to further, Kirvan's
desire to rob the Bank.4
2. Shared Knowledge of the Weapon. Appellant's
2. Shared Knowledge of the Weapon.
stronger challenge is directed at the jury's finding of shared
knowledge, prior to the commission of the crime, that Kirvan
would use a firearm. See United States v. Dinkane, 17 F.3d 1192,
1197 (9th Cir. 1994) (holding that, for purposes of 2113(d),
aiding and abetting requires prior knowledge of weapon); see
4To the extent that appellant also seeks to impugn the
jury's decision about who and what to believe, we decline to
"usurp the jury's province," O'Brien, 14 F.3d at 707, by
superseding either its rational factfinding or its credibility
choices.
12
generally United States v. de la Cruz-Paulino, F.3d ,
(1st Cir. 1995) [No. 94-1985, slip op. at 28-30] (stating, in
aiding and abetting case, that shared knowledge must be prior
knowledge).
A participant in the holdup of a bank will be found to
be an aider and abettor of an armed robbery only if the
government can provide an additional piece of the puzzle: proof
that the accomplice "knew a dangerous weapon would be used [in
the robbery] or at least . . . was on notice of the likelihood of
its use," United States v. Sanborn, 563 F.2d 488, 491 (1st Cir.
1977); accord United States v. Ferreira, 625 F.2d 1030, 1032 (1st
Cir. 1980). Refined to bare essence, appellant's asseveration on
this point is that the evidence, taken as a whole, is so sparse
that it does not satisfy the Sanborn standard; there are simply
no facts, he tells us, from which a reasonable juror could
extrapolate to a finding of shared knowledge.5 We do not agree.
In terms, the Sanborn rubric requires only proof of
"notice of . . . likelihood" to satisfy this prong of the shared
knowledge element in connection with a charge of aiding and
abetting an armed bank robbery. This phrase is not self-
defining. Hence, it is important to search out its meaning.
We start from the premise that the Sanborn court's
formulation of the shared knowledge requirement is not merely an
5Having Moved for the dismissal of the conspiracy count
against appellant, the government did not try to hang his
criminal liability on the reasonably foreseeable act of a
coconspirator. Compare Pinkerton v. United States, 328 U.S. 640,
647-48 (1946).
13
awkward locution. Other courts have adopted it, see, e.g.,
United States v. McCaskill, 676 F.2d 995, 998 (4th Cir.), cert.
denied, 459 U.S. 1018 (1982); United States v. Ingram, 592 A.2d
992, 1003 (D.C. App.), cert. denied, 502 U.S. 1017 (1991), and it
stands in marked contrast almost as point and counterpoint to
the "practical certainty" formulation that courts have developed
for assessing the shared knowledge requirement applicable to
aiding and abetting firearms charges brought under 18 U.S.C.
924(c). See infra Part III. The glaring linguistic difference
between the two formulations guides our inquiry.
Knowledge is a concept, not an absolute. In the law,
as in life, "knowledge" means different things in different
contexts. Accordingly, we believe it is useful to view the
concept as a continuum.
At one end of the continuum is what the law commonly
calls "constructive knowledge." Constructive knowledge is the
law's way of recognizing that, given an awareness of certain
subsidiary facts, a person is quite likely to know, can be
expected to know, or at least should know that a further fact
exists. See Black's Law Dictionary 314 (6th ed. 1990) ("If one
by exercise of reasonable care would have known a fact, he is
deemed to have had constructive knowledge of said fact . . . .").
By way of illustration, if an easily visible foreign object is on
a staircase for an appreciable length of time, the law accepts
the reasonableness of a conclusion that the occupier of the
premises "knew" of its presence (even though there is no evidence
14
that the occupier actually knew, by observation or report, of the
object's whereabouts).
At the other end of the continuum is what the law
commonly calls "actual knowledge." Actual knowledge, as the term
implies, reduces the need for inference; it suggests the presence
of particular evidence which, if credited, establishes
conclusively that the person in question knew of the existence of
the fact in question. See id. at 873 (defining actual knowledge
as "positive, in contrast to imputed or inferred, knowledge of a
fact"). To carry our example forward, if witnesses testify that
the occupier himself placed the foreign object on the stair, or
remarked its location, that testimony, if believed, establishes
that the occupier actually knew of its presence.
The concepts of constructive and actual knowledge do
not occupy the entire span of the continuum. Knowledge varies in
origin, degree, and an array of other respects. These gradations
are best visualized as way stations that dot the length of the
hypothetical knowledge continuum. Notice of likelihood fits into
the poorly charted area that stretches between the poles of the
continuum. While we believe that, in a criminal case, the
reasonable doubt standard requires that notice of likelihood
comprise more than constructive knowledge simpliciter, its
articulation evokes echoes of constructive knowledge and places
the proof requirement closer to that end of the continuum.
Actual knowledge, after all, is certain knowledge, see id., and
likelihood is not the stuff of certainty.
15
Logically, then, the Sanborn rubric implies, in a
section 2113(d) case, that the defendant's shared knowledge need
not amount to actual knowledge that his cohort intended to use a
gun or other dangerous weapon in robbing the bank; indeed,
Sanborn's disjunctive phraseology, 563 F.2d at 491 ("knew . . .
or at least . . . was on notice of the likelihood"), leaves no
doubt that a conviction can be grounded on something less than
actual knowledge. We conclude that an enhanced showing of
constructive knowledge will suffice. See United States v.
Grubczak, 793 F.2d 458, 463 (2d Cir. 1986).
While this is a very close case, we think that the
evidence clears the notice of likelihood hurdle. Our analysis
builds on the human condition. Jurors are "not expected to
ignore what is perfectly obvious," Echeverri, 982 F.2d at 679,
but, rather, "to take full advantage of their collective
experience and common sense." O'Brien, 14 F.3d at 708. In this
case, the scheme called for a lone robber to enter a bank during
business hours with the intent of looting it. One would expect
tellers, guards, customers, and other persons unsympathetic to an
unauthorized withdrawal of funds to be on the premises. Under
those circumstances, not even the most sanguine criminal would
expect clear sailing without some menace in the wind. In short,
the circumstances gave rise to constructive knowledge beforehand
that the intruder would need a gun or some other dangerous device
to accomplish the felons' agreed goal. See United States v.
Powell, 929 F.2d 724, 727 (D.C. Cir. 1991) (stating, in dictum,
16
that "possession of a gun . . . is virtually essential in
[perpetrating a bank robbery]").
Here, moreover, Spinney was not merely a bit player
(say, a lookout or a getaway driver), but a leading man. A jury
could reasonably infer from the totality of the attendant
circumstances, particularly from the host of telephone calls
between Spinney and Kirvan and from Spinney's participation in
the elaborate reconnaissance mission, that he had a major role in
planning the heist. Even assuming that there was no specific
discussion of the use of a gun, evidence of a defendant's
substantial involvement over the course of several days in
planning and orchestrating a robbery, when coupled with actual
participation in carrying it out, permits a compelling inference
that the defendant knew the salient details of the plot (e.g.,
the timing of the robbery, the bank's identity and location, the
planned entry by a lone robber). These circumstances seem to us
to sustain a finding that Spinney was on notice that Kirvan
likely would tote a gun in the course of the upcoming robbery.
See Grubczak, 793 F.2d at 464 (relying on evidence of a
defendant's substantial involvement as a planner of and a
"principal player[] in the robbery" to help ground "the inference
that he had to have been aware of the likely use of a gun"); see
also United States v. DeMasi, 40 F.3d 1306, 1316 (1st Cir. 1994)
(inferring knowledge that weapons would be employed from
accomplice's awareness of the conspirators' overall plan), cert.
denied, 115 S. Ct. 947 (1995).
17
Appellant decries this approach, claiming that it
necessitates the stacking of inference upon inference. In one
sense, at least, this may be so but "[t]he rule is not that an
inference, no matter how reasonable, is to be rejected if it, in
turn, depends upon another reasonable inference; rather, the
question is merely whether the total evidence, including
reasonable inferences, when put together is sufficient to warrant
a jury to conclude that defendant is guilty beyond a reasonable
doubt." Dirring v. United States, 328 F.2d 512, 515 (1st Cir.),
cert. denied, 377 U.S. 1003 (1964). Chains of inference are a
familiar, widely accepted ingredient of any process of
ratiocination. This method of reasoning, commonly called logic,
is regularly relied upon in the realm of human endeavor, and
should not be forbidden to a criminal jury.
Of course, the inferential chain must be strong6 but
here, the hypothesis upon which Spinney's section 2113(d)
conviction rests is not at all dubious. On this record, despite
the lack of direct evidence and the uncertainties associated with
that lack, the jury rationally could find Spinney to have been an
architect of, and an active participant in, the robbery. Given
these available findings, and the persuasive force of the other
permissible inferences supported by the overall circumstances, we
6As we recently wrote: "Guilt beyond a reasonable doubt
cannot be premised on pure conjecture. But a conjecture
consistent with the evidence becomes less and less a conjecture,
and moves gradually toward proof, as alternative innocent
explanations are discarded or made less likely." Stewart v.
Coalter, 48 F.3d 610, 615-16 (1st Cir. 1995), petition for cert.
filed (U.S. June 19, 1995) (No. 94-9742).
18
cannot say that the jury exceeded its proper province in
concluding that Spinney was on notice of the likelihood that
Kirvan would use a gun.7 See Sanborn, 563 F.2d at 490.
III. THE FIREARMS CHARGE
III. THE FIREARMS CHARGE
Appellant also challenges the sufficiency of the
evidence in regard to his conviction under 18 U.S.C. 924(c).
Although here, too, appellant is charged as an aider and abettor,
his assignment of error raises a somewhat different question. To
prove that a defendant aided and abetted a violation of section
924(c), the government must establish that the defendant knew "to
a practical certainty that the principal would be [using] a gun."
United States v. Torres-Maldonado, 14 F.3d 95, 103 (1st Cir.)
(quoting Powell, 929 F.2d at 728), cert. denied, 115 S. Ct. 193
(1994); accord DeMasi, 40 F.3d at 1316.
The government strives to collapse the linguistically
different standards for aiding and abetting liability under 18
7We acknowledge that two other courts, on somewhat analogous
facts, have found that a defendant's participation in planning
will not support a conviction for aiding and abetting under
2113(d). See Dinkane, 17 F.3d at 1197; United States v.
Pendergraph, 791 F.2d 1462, 1466 (11th Cir. 1986), cert. denied,
479 U.S. 869 (1986). But every case is different and must be
judged on its particular array of facts. Moreover, in this case,
unlike in Dinkane, 17 F.3d at 1195, the district court properly
instructed the jury as to the elements of aiding and abetting,
and unlike in Pendergraph, 791 F.2d at 1464-65, the court did not
erroneously admit evidence that would have allowed the jury
improperly to convict. At any rate, to the extent our holding
today contradicts Dinkane and/or Pendergraph, we stand our
ground. In the final analysis, we cannot reject as irrational
the jury's "conclu[sion] that an accomplice so closely associated
with the venture could not fail to know what would be the central
question in any robbery: how the robbers were to force the
bank's employees to part with the money." Sanborn, 563 F.2d at
490.
19
U.S.C. 2113(d) and 924(c), respectively, at the less taxing
end of the knowledge continuum. We are uncomfortable with this
esemplastic approach. Particularly when juxtaposed with "notice
of . . . likelihood," we believe that "practical certainty" is a
rubric that calls for proof verging on actual knowledge, see
Model Penal Code 2.02 at 236 n.13 (1985) ("With respect to
result elements, one cannot of course `know' infallibly that a
certain result will follow from engaging in conduct, and thus to
some extent `knowledge,' when applied to result elements,
includes a contingency factor as well. This is expressed
definitionally in terms of whether the actor is `practically
certain' that the result will follow."), and, thus, presents a
considerably higher hurdle for the prosecution to overcome. Nor
do we think that we are free to cut this hurdle down to size
either by reading significantly dissimilar articulations to
denote a single meaning or by treating one of them as a
linguistic accident. Courts invite error when they try to weigh
meaning only after placing a thumb on the scale, or when they too
freely write off as malapropos words carefully chosen in the
past. If principle is to prevail, we must give effect to the
obvious difference in standards of knowledge.8
8There are, moreover, policy reasons why courts might wish
to adopt divergent standards for an accomplice's knowledge under
the two statutes. While possession of a gun or other dangerous
instrumentality will likely facilitate a bank robbery, many of
the felonies that underlie 924(c) can be and often are
completed unarmed. Furthermore, defendants convicted of
violating 924(c), unlike defendants convicted of violating
2113(d), must be given an additional sentence of at least five
years, to run consecutively to the term of incarceration imposed
20
In this case, the difference is dispositive. The
government's argument boils down to an assertion that the jury
could infer that Spinney was practically certain of Kirvan's
anticipated use of a gun based on the evidence we have just
reviewed, principally the confederates' joint design of the
robbery. Yet, the government adduced no evidence suggesting that
firearms were actually contemplated in the planning stages, or
that Spinney had any actual knowledge that Kirvan would be armed.
Under the circumstances, we conclude that the government's best
evidence (that Spinney helped to mastermind the robbery), taken
in the light most favorable to the verdict, even when coupled
with the jury's ability to make intuitive judgments, is
insufficient to support the requisite inference of practical
certainty.9 See, e.g., Powell, 929 F.2d at 729; United States
v. Hamblin, 911 F.2d 551, 558-59 (11th Cir.), cert. denied, 500
U.S. 943 (1991).
In a last-ditch effort to save the day, the government
directs our attention to a series of drug cases in which
for the underlying crime. See 18 U.S.C. 924(c)(1). Both of
these considerations suggest that a higher threshold of knowledge
may well be appropriate in the 924(c) milieu.
9Although courts sometimes have distinguished between
prosecutions under the two statutes with which we are concerned,
see, e.g., United States v. Medina, 32 F.3d 40, 47 (2d Cir. 1994)
(narrowly directing its holding to cases brought under 924(c),
and distinguishing cases brought under 2113(d)), our research
has revealed no reported case in which the evidence has been
found sufficient to sustain an aiding and abetting conviction for
armed bank robbery, but insufficient to sustain a charge of
aiding and abetting the commission of a firearms offense based on
the same incident. To that extent, our decision today breaks new
ground.
21
knowledge of a vessel's cargo was imputed to crew members. See,
e.g., United States v. Guerrero-Guerrero, 776 F.2d 1071 (1st Cir.
1985), cert. denied, 475 U.S. 1029 (1986); United States v.
Quejada-Zurique, 708 F.2d 857 (1st Cir.), cert. denied, 464 U.S.
885 (1983). But these scenarios are readily distinguishable from
the case at bar. In those cases, guilty knowledge was inferred
from the crew members' close proximity to detectable quantities
of drugs over an extended period of time.10 See Guerrero-
Guerrero, 776 F.2d at 1074-75; Quejada-Zurique, 708 F.2d at 859-
60. Here, Spinney did not even enter the bank, and there was no
evidence that Kirvan had the weapon in his possession while he
and Spinney were together before the robbery, let alone that it
was visible or otherwise detectable at that juncture. Put
bluntly, even though Spinney may have spent much time with Kirvan
devising the plan, and was on notice of the likelihood that a gun
would be used in the course of the robbery, there is simply no
evidence to support a reasoned conclusion that Spinney was
practically certain that Kirvan would be armed.
In sum, "likelihood" and "practical certainty" are not
equivalent terms. Applying the practical certainty rubric, we
10These situations involve what we have termed "culpable
presence." Ortiz, 966 F.2d at 712. They must be distinguished
from ones in which a defendant is "merely present" on a drug
vessel. Such presence, without more (i.e., absent "circumstances
where presence itself implies participation," id.), is
insufficient to ground criminal liability. See, e.g., United
States v. Hyson, 721 F.2d 856, 863 (1st Cir. 1983); United States
v. Mehtala, 578 F.2d 6, 9 (1st Cir. 1978). Spinney's situation
does not fit within the integument of the genuine "mere presence"
cases.
22
hold that the jury reached its verdict on the section 924(c)
count without an adequate evidentiary foundation.
IV. CONCLUSION
IV. CONCLUSION
This is the rare case in which the evidence, viewed
most congenially to the government, passes muster under the
notice of likelihood test and, therefore, justifies the
appellant's conviction for aiding and abetting an armed bank
robbery, 18 U.S.C. 2113(d), but, nevertheless, fails the
practical certainty test and, therefore, does not justify the
appellant's conviction for aiding and abetting the principal's
use of a firearm during and in relation to a crime of violence,
18 U.S.C. 924(c). This result, though it is unusual, does not
strike us as strange. See, e.g., Model Penal Code 2.02 at 236-
37 n.13 (suggesting that, where knowledge is in issue, it is
sometimes "meaningful to draw a line between practical certainty
and awareness of substantial risk"). So it is here: though
notice of likelihood must be proven beyond a reasonable doubt,
the government can meet this burden by an evidentiary showing
less than is required to prove that the defendant knew to a
practical certainty that a gun would be used.
We need go no further. The law is full of
complexities, and language is, at best, an imperfect device for
capturing the energy of ideas. Here, interpreting the words used
by the Sanborn court ("notice of . . . likelihood"), on the one
hand, and by the Powell court ("practical certainty"), on the
other hand, "in the light of the tacit assumptions upon which it
23
is reasonable to suppose that the language was used," Ohio v.
Agler, 280 U.S. 379, 383 (1930) (Holmes, J.), it is unsurprising
to discover a fork in the road.
The appellant's conviction on count 2 is affirmed and
The appellant's conviction on count 2 is affirmed and
the appellant's conviction on count 3 is reversed.
the appellant's conviction on count 3 is reversed.
24