UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-1776
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL FRED BUCHNER,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas
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(November 10, 1993)
( )
Before GARWOOD, DAVIS and SMITH, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Daniel F. Buchner (Buchner) appeals his
bank robbery conviction asserting that the district court erred in
its jury instruction on a lesser included offense and in its denial
of his motion to suppress evidence obtained as a result of a
warrantless search. We affirm.
Facts and Proceedings Below
On the morning of January 10, 1992, a Bank One branch in
Dallas, Texas, was robbed. The robber was described as a 35-year-
old white male with a mustache and graying dark hair wearing an
oversized sweater, casual pants, and black shoes. The robber was
said to have displayed an automatic pistol and ordered bank tellers
to place money in a tan-colored shoulder bag. During the robbery
one of the tellers placed a tracking device on bands of money given
to the robber.
Officer Todd Wellhouse (Wellhouse) heard about the robbery
through a radio dispatch. Within fifteen minutes of the dispatch,
Wellhouse, using the tracking device, traced the stolen money to a
LaQuinta motel. Upon reaching the motel, Wellhouse parked directly
behind a white Oldsmobile, which had been rented earlier that day
to Buchner's girlfriend, Maria Farris. As he exited the police
car, Wellhouse observed Buchner walking on a second floor balcony
at the motel. After seeing Wellhouse, Buchner suddenly retreated
into his motel room. Wellhouse, noting Buchner fit the description
of the bank robber, proceeded up the motel stairway towards
Buchner's room. After reaching the second floor, Wellhouse looked
down and noticed that the Oldsmobile had a black shoulder bag
sitting on the front seat. Wellhouse went back downstairs to the
car and saw a toy gun lying on the floor and something green
visible through an inch long opening in the shoulder bag.
Wellhouse then opened the door of the car, unzipped the bag and saw
a large amount of money inside. The police later confirmed that
the money found had been stolen from Bank One. Thereafter Buchner
was later indicted for bank robbery in violation of 18 U.S.C. §
2113(a).
During the trial Buchner requested that the jury be charged on
what he claimed was the lesser included offense of possession of
2
stolen bank property contrary to 18 U.S.C. § 2113(c), and that the
following instruction be given in that connection:
"We have just talked about what the government has to
prove for you to convict the Defendant of bank robbery,
as charged herein. Your first task is to decide whether
the Government has proved, beyond a reasonable doubt,
that the Defendant committed that crime. If your verdict
on that is guilty, you are finished. But if your verdict
is not guilty, or if you are unable to reach a verdict as
to the Defendant's guilt of the offense of bank robbery,
as charged herein, you should go on to consider whether
the Defendant is guilty beyond a reasonable doubt of
possession of stolen bank property, as will be defined
for you."1 (Emphasis added).
The district court agreed to Buchner's request that the jury be
charged on possession of stolen bank property as an included
offense, but denied Buchner's requested form of instruction and
gave instead the following jury instruction:
"[I]f you should find the Defendant Daniel Fred Buchner
not guilty of the offense charged in the indictment, then
you must proceed to determine his guilt or innocence as
the lesser included offense of possession of stolen bank
property, here money." (Emphasis added).
The jury was instructed shortly thereafter that its "verdict must
be unanimous; that is all of you must agree to each answer."
On June 5, 1992, the jury found Buchner guilty of bank
robbery. The jury also found Buchner guilty of possession of
stolen bank property.2 Buchner argued that the verdict was
1
The instructions requested by Buchner were essentially the
same as those contained in the Fifth Circuit pattern jury
instructions. U.S. FIFTH CIRCUIT DISTRICT JUDGES ASSOCIATION, PATTERN
JURY INSTRUCTIONS - CRIMINAL CASES §1.32 (1990). These pattern
instructions were developed by district judges in this Circuit to
serve as a guideline. The pattern instructions, while
persuasive, are not binding on this Court.
2
The jury, on its verdict form, found Buchner guilty of both
bank robbery and possession of stolen money even though the judge
only instructed the jury to consider Buchner's guilt under the
3
inconsistent and requested that the jury be allowed to deliberate
further. The court denied the request, but confirmed the jury's
guilty verdict of bank robbery by conducting a poll of the jurors.
The district court disregarded the jury's verdict of guilty of
possession of stolen bank property. Buchner was sentenced to 240
months' imprisonment and 3 years of supervised release.
On appeal, Buchner asserts that the trial court's refusal to
give his requested lesser included offense instruction constituted
reversible error because the instruction given did not allow the
jury to consider the defendant's guilt of possession of stolen bank
property unless it first unanimously acquitted him of bank robbery.
He asserts that the jury should have been told to also consider the
possession offense if it was unable to agree on the robbery charge.
Buchner also argues that the district court's characterization of
possession of stolen bank property as a "lesser" offense improperly
injected an element of punishment into the jury's deliberations.3
In addition, Buchner argues that Wellhouse's warrantless search of
his shoulder bag was unlawful, and therefore its fruits should have
been suppressed.
lesser offense if they found Buchner not guilty of the greater
offense.
3
On appeal Buchner makes no complaint respecting the court's
acceptance of the verdict of guilty of robbery while disregarding
the verdict of guilty of possession of stolen bank property; nor
is any appellate complaint made as to not returning the jury for
further deliberations or not instructing them further after the
verdict was returned. Nor does Buchner complain on appeal that
possession of stolen bank property was submitted as an included
offense.
4
Discussion
I. Lesser Included Offense Instruction
The Supreme Court in United States v. Gaddis held that receipt
or possession of stolen bank property in violation of 18 U.S.C. §
2113(c) is not a lesser included offense of bank robbery under
sections 2113 (a), (b), and (d). 96 S.Ct. 1023, 1026 (1976).
Therefore, under Gaddis Buchner was never entitled to have the
offense of possession of stolen bank property submitted to the jury
in any form. Buchner contends, however, that Gaddis is not
controlling here because the term "lesser included offense" in
Gaddis was used in the context of a discussion about the doctrine
of merger, not included offense jury instructions. We reject this
contention.
Most courts have applied one of three tests to determine when
an offense not specifically charged may be deemed a lesser included
offense of another, greater charged offense. See generally United
States v. Browner, 937 F.2d 165, 167-68 (5th Cir. 1991). The first
and most expansive of these three tests is the inherent
relationship test. Under this test, a lesser included offense
instruction may be appropriate when the lesser offense is
established by the evidence presented at trial in proof of the
greater offense. Under this approach there must be "'an "inherent"
relationship between the greater and the lesser offenses, i.e.,
they must relate to the protection of the same interests, and must
be so related that in the general nature of these crimes, . . .
proof of the lesser offenses is necessarily presented as part of
the showing of the commission of the greater offense.'" Id. at 167
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(citing United States v. Whittaker, 447 F.2d 314, 319 (D.C. Cir.
1971).
The second test is the pleading or indictment theory test.
Under this test a jury is generally allowed to consider a lesser
offense if that offense is contained within the language of the
indictment or information as the means by which the charged greater
offense was committed. Browner at 168.
The third and most restrictive test is the statutory elements
test. Under this approach an offense is not a lesser included
offense unless each statutory element of the lesser offense is also
present in the greater offense. Id. at 168. This Court in
Browner interpreted the Supreme Court decision in Schmuck v. United
States, 109 S.Ct. 1443 (1989), as adopting the statutory "elements"
test for purposes of determining when a federal criminal defendant
is entitled to a lesser included offense instruction. 937 F.2d at
168 (stating Supreme Court adopted the elements test for purposes
of evaluating "necessarily included" offense under Federal Rule of
Criminal Procedure 31(c)). Therefore, in accordance with the
"elements" theory test, Buchner is only entitled to a lesser
offense instruction if the elements of the lesser offense are a
subset of the elements of the charged offense. Schmuck, 109 S.Ct.
at 1450.
Bank robbery, pursuant to 18 U.S.C. § 2113(a), requires as an
element of the offense that property or money be taken from the
bank. Receipt or possession of stolen bank proceeds, pursuant to
section 2113(c) requires the knowing possession, receipt, or
concealment of property or money "which has been taken or stolen
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from a bank." (Emphasis added). Buchner asserts that as a bank
robber knowingly possesses the money stolen from a bank, the
elements required to prove possession of stolen bank proceeds
necessarily is a subset of the elements of bank robbery.
Buchner's interpretation of section 2113(c) is not consistent
with its purpose. The Supreme Court in Gaddis stated that section
2113(c) was intended for those persons who receive the stolen
property from the bank robber. 96 S.Ct. at 1026. The Court in
Gaddis noted that "'Congress was trying to reach a new group of
wrongdoers, not to multiply the offense of the bank robbers
themselves.'" Id. at 1026 (quoting Heflin v. United States, 79
S.Ct. 451 (1959)). Under the Supreme Court's interpretation, to be
convicted under section 2113(c) the defendant's possession or
receipt of the stolen bank proceeds must occur after the robbery
has taken place. That is consistent with the wording of section
2113(c), which requires that the property possessed be that which
"has been" taken or stolen. Therefore, the act of bank robbery
under section 2113(a) cannot be a subset of receipt or possession
of stolen bank proceeds under section 2113(c).
Buchner's own story is illustrative of the type of wrongdoers
at which section 2113(c) is aimed. Buchner testified at trial that
he had received the money found in his black shoulder bag from a
person named Tony Shannon as payment on a debt. Buchner stated
that he did not know the money was stolen from the bank until after
he noticed large numbers of one and five dollar bills in the bag.
He argues that if the jury found he knew the money had been stolen
from the bank, he could be found guilty under section 2113(c).
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However, under Buchner's own story his possession of the stolen
bank proceeds was clearly separate from and subsequent to the bank
robbery, and was not encompassed in the language of the one-count
indictment charging robbery of the bank.
Buchner was not entitled to any lesser included offense
instruction. In fact, as Buchner was indicted under only section
2113(a), the court should not have submitted the section 2113(c)
offense to the jury at all.4 Therefore, we decline to resolve the
question whether the language used in the district court's lesser
included offense jury instruction was erroneous in the respects
complained of by Buchner.5 Even if Buchner's is the preferred form
4
However, Buchner invited this error at trial and does not
complain of it on appeal; indeed, on appeal he urges it was not
error. There was no miscarriage of justice. The evidence
against Buchner was overwhelming. The jury was told to first
consider Buchner's guilt or innocence for the greater, charged
offense of bank robbery. After deliberating about the greater
offense, the jury found Buchner guilty of it. In addition, the
jury was polled and each juror said that his verdict on bank
robbery was guilty. The lesser included offense instruction did
not affect the judgment. Buchner was properly convicted of the
indicted offense.
5
Buchner's argument respecting the wording of the lesser
included offense charge is based on two other circuit court
decisions, United States v. Tsanas, 572 F.2d 340, 345-46 (2d Cir.
1978), cert. denied, 435 U.S. 995 (1978) (if the defendant
expresses a choice between the two forms of instructions, similar
to that requested by Buchner and that given by the district
court, the court should give the form of instruction the
defendant seasonably elects), and United States v. Jackson, 726
F.2d 1466, 1469 (9th Cir. 1984) (reversible error for the
district court to give an instruction that did not allow the jury
to consider the lesser offense at all unless the jury first
unanimously acquitted the defendant of the greater offense).
This Circuit has never addressed this precise issue. We note,
however, that to give the form of instruction requested by
Buchner may as a practical matter remove some of the district
court's discretionary control in deciding how long a deadlocked
jury should deliberate in a given case. Under a Buchner-type
instruction, the jury might only briefly deliberate about a
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of charge where it is proper to submit a lesser included offense to
the jury, the failure to use that form is neither error nor
prejudicial where, as here, the alternative offense is not a lesser
included offense and should not be submitted to the jury in any
form.
For the same reason, we reject Buchner's argument that the
district court's characterization of possession of stolen bank
property as a "lesser" offense improperly injected the element of
punishment into the jury deliberations.
The jury is not allowed to consider a defendant's potential
sentence as part of its deliberations. United States v. Del Toro,
426 F.2d 181, 184, (5th Cir. 1970), cert. denied, 400 U.S. 829
(1970) (noting that the jury's function is to find guilt or
innocence and the judge's function is to impose the sentence).
However, knowledge on the part of jurors that one crime is more
serious than another does not necessarily infuse punishment into
their deliberations. The district court specifically informed the
jury that the court was responsible for the imposition of the
penalty and that the jury should not consider or discuss the
defendant's possible punishment. The jury's awareness that one
crime is more serious than another does not imply that a
defendant's potential sentence was used as part of the jury
greater charge and, because of initial disagreement among the
jurors, move relatively quickly to deliberations about the lesser
included charge. Here, the district court, in refusing Buchner's
requested instruction, stated "if they're having trouble in
reaching a verdict then we'll know that and this is without
prejudice to giving them an additional clarification if they ask
for it."
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deliberations. Buchner's argument that the use of the term
"lesser" offense improperly injected an element of punishment into
the jury deliberations is without merit.
II. Suppression of Evidence
Buchner argues that the district court erred in denying his
motion to suppress the evidence found as a result of Wellhouse's
warrantless search of the shoulder bag found in Maria Farris'
rental car. Buchner challenges the district court ruling that (1)
he lacked standing to object to the search of the shoulder bag and
(2) that the search was proper based on the facts.6
A district court's ruling on a motion to suppress is reviewed
under a clearly erroneous standard as to the facts and de novo for
questions of law. United States v. Seals, 987 F.2d 1102, 1106 (5th
Cir. 1993), cert. denied, 62 U.S.L.W. 3247.
A. Standing
The owner of a suitcase located in another's car may have a
legitimate expectation of privacy with respect to the contents of
his suitcase. United States v. Kelley, 981 F.2d 1464, 1467 n.1
(5th Cir. 1993), cert. denied, 113 S.Ct. 2427. Buchner testified
that he was the owner of the shoulder bag searched by Wellhouse.
As the owner of the shoulder bag, Buchner had a legitimate
expectation of privacy with respect to the contents of the bag and
standing to object to any governmental search of the bag.
6
The district court ruled that Farris consented to the search
of the vehicle. This issue is not addressed, however, as the
government concedes that Farris' consent was subsequent to
Wellhouse's search of the shoulder bag. In addition, the
district court upheld the search based on the plain view
doctrine.
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Therefore, the district court erred in finding that Buchner did not
have standing to challenge the search.
B. Probable Cause
Except for a few specifically established exceptions,
warrantless searches are per se unreasonable. Katz v. United
States, 88 S.Ct. 507, 514 (1967). However, under the automobile
exception police may conduct a warrantless search of an automobile
and any containers therein if they have probable cause to believe
that it contains contraband or evidence of crime. California v.
Acevedo, 111 S.Ct. 1982, 1991. Thus, Wellhouse's search of the
shoulder bag must be supported by probable cause though a warrant
was not necessary.
A probable cause determination should be based on the totality
of the circumstances. Illinois v. Gates, 103 S.Ct. 2317, 2332
(1983). The evidence in support of probable cause "must be viewed
in light of the observations, knowledge, and training of the law
enforcement officers involved in the warrantless search." United
States v. Muniz-Melchor, 894 F.2d 1430, 1438 (5th. Cir.), cert.
denied, 495 U.S. 923 (1990).
The district court credited the testimony of Wellhouse. Under
the district court's findings, at the time of the search Wellhouse
was aware of the following: (1) the tracking device that had led
Wellhouse to the motel continued to beep; (2) a man fitting the
physical description of the robber but wearing different clothes
had been on the balcony and had retreated into a motel room upon
seeing Wellhouse; (3) the robber was reported as having had a tan
leather shoulder bag and an automatic pistol; (4) there was a toy
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revolver on the floor of the Farris car; and (5) a black leather
bag with a "spot of green" seen through an inch-long opening in the
bag was on the front seat of the Farris car. Wellhouse further
stated that he suspected that the bag was the robber's because of
the presence of the gun,7 the type of bag (a shoulder bag), and the
fact the tracker continued to beep. Based on the totality of the
circumstances and Wellhouse's experience and observations, a
determination that sufficient probable cause existed to conduct a
warrantless search of the bag inside of the vehicle is supported.
As probable cause is supported by the determined facts, it is
essentially established as a matter of law.8
Conclusion
Buchner's appeal presents no reversible error. His conviction
and sentence are accordingly
AFFIRMED.
7
It is unclear if Wellhouse knew whether the gun was a toy.
However, regardless of whether the gun was real, its presence
along with the shoulder bag increases suspicion that it was used
in the bank robbery.
8
United States v. Muniz-Melchor, 894 F.2d 1430, 1439 n.9 (5th
Cir. 1991) ("The ultimate determination as to probable cause for
a warrantless search seems to be a question of law for this Court
to decide."). Cf. United States v. Basey, 816 F.2d 980, 988 (5th
Cir. 1987) ("[t]he ultimate determination of reasonableness in
investigatory stop cases is [] a conclusion of law").
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