United States v. Price ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
2-15-1996
United States v. Price
Precedential or Non-Precedential:
Docket 95-3333
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IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 95-3333
___________
UNITED STATES OF AMERICA
v.
THOMAS PRICE,
Appellant
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 94-221-04)
___________
Submitted Under Third Circuit LAR 34.1(a)
January 12, 1996
Before: SCIRICA, ALITO, SAROKIN, Circuit Judges
(Opinion Filed: February 15, 1996)
_____________
Paul J. Brysh, Esquire
Bonnie R. Schlueter, Esquire
Office of United States Attorney
633 United States Post Office & Courthouse
Pittsburgh, PA 15219
Counsel for Appellee
Charles J. Porter, Esquire
Brucker, Zappala, Schneider & Porter
Suite 2230 Grant Building
Pittsburgh, PA 15219
Counsel for Appellant
__________________
OPINION OF THE COURT
__________________
1
SAROKIN, Circuit Judge:
On September 12, 1994, two masked men entered a branch of
the Mellon Bank in Pittsburgh, Pennsylvania. One of them pointed
a gun at a teller, while the other jumped over the counter and
removed money from the bank drawers. Their deed done, the two
men fled the bank, hopped in a waiting car and sped from the
scene of the crime. Thomas Price was convicted in the United
States District Court for the Western District of Pennsylvania of
armed bank robbery, in violation of 18 U.S.C. §§ 2113(d) and 2,
and knowingly and willfully carrying and using a firearm during
and in relation to a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1) and 2. Mr. Price now appeals his conviction on
various grounds.
I.
Mr. Price first challenges the district court's instruction
to the jury regarding the "use and carry" count.
Section 924 of Title 18 of the United States Code states,
inter alia, that "[w]hoever, 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, in addition
to the punishment provided for such crime of violence . . . be
sentenced to imprisonment for five years . . . ." 18 U.S.C.
§924(c)(1).
2
Mr. Price was charged with violating this provision in the
district court. At the end of the trial, the district court gave
the jury the following instruction:
The indictment also charges that on or about
September 12, 1994, in the western district of
Pennsylvania, defendant Thomas Price used a firearm, a
.45 caliber Norinco pistol, during a crime of violence,
armed bank robbery.
In order to sustain its burden of proof for the
crime of using a firearm during a crime of violence,
the government must prove the following two essential
elements beyond a reasonable doubt:
One, Defendant Thomas Price committed the crime of
armed robbery as charged in the indictment; and
Two, during and in relation to the commission of
that crime, the defendant knowingly used a firearm.
The government has charged Thomas Price with
aiding and abetting this crime as well. All of the
instructions that I previously gave you about aiding
and abetting also apply to this charge.
. . .
The phrase uses or carries a firearm means having
a firearm available to assist in the commission of the
alleged armed bank robbery.
In determining whether defendant Thomas Price used
or carried a firearm, you may consider all the factors
received in evidence in the case, including the nature
of the underlying crime of violence, the proximity of
defendant to the firearm in question, the usefulness of
the firearm to the crime alleged and the circumstances
surrounding the presence of the firearm.
The government is not required to show that the
defendant actually displayed or fired the weapon. The
government is required, however, to prove beyond a
reasonable doubt that the firearm was under defendant's
control at the time the crime of violence was
committed.
3
As I stated before, you must also consider whether
the defendant aided or abetted the use or carrying of a
firearm in arriving at your verdict.
If you find beyond a reasonable doubt that Thomas
Price aided and abetted Charles Stubbs in the use of a
firearm during the commission of the armed bank
robbery, then you may find Mr. Price guilty of using a
firearm during the commission of a felony, even though
there is no proof that he actually had the firearm in
his physical possession.
You may find that Mr. Price aided and abetted Mr.
Stubbs in the use of a firearm during the commission of
a felony only if you find beyond a reasonable doubt
that Mr. Price knowingly joined in, aided or assisted
in the bank robbery, that his action was willful and
voluntarily taken and that he had knowledge that a
firearm was to be used in the bank robbery.
Appendix at 451A-453A.
The two issues regarding this instruction are, first,
whether having a firearm available to assist is sufficient to
meet the second element of "using a firearm," and, second,
whether one can be convicted under 18 U.S.C. § 924(c) on an
"aiding and abetting" theory.
A.
Mr. Price argues that the district court erred when it
instructed the jury that "[t]he phrase uses or carries a firearm
means having a firearm available to assist in the commission of
the alleged armed robbery" because that sentence "is an incorrect
statement of the law in this Circuit." Appellant's Brief at 34.
Specifically, he argues that under our holding in United States
v. Theodoropoulos, 866 F.2d 587, 597 (3d Cir. 1989),
"availability alone [is] insufficient to establish a use in
relation to a crime of violence." Appellant's Brief at 34. The
government, in response, argues that "appellant Price's position
4
is based upon a misreading of Theodoropoulos." Government's
Brief at 17.
In Theodoropoulos, this Court held that
possession of a firearm constitutes use under section
924(c) if there is:
i) Proof of a transaction in which the
circumstances surrounding the presence of a
firearm suggest that the possessor of the
firearm intended to have it available for
possible use during the transaction. . . .
866 F.2d at 597 (quoting Feliz-Cordero, 859 F.2d at 254)
(emphasis added); see also Hill, 967 F.2d at 905 (holding that
"[p]ossession of a firearm constitutes use under 18 U.S.C.
§924(c) where there is evidence 'that the defendant intended to
have the firearm available for use or possible use during a crime
of violence . . . and that the firearm was placed in a spot where
it was readily accessible at that time.'"); United States v.
Reyes, 930 F.2d 310, 312 (3d Cir. 1991) (same). This language
closely parallels that used by the district court in the instant
case. Accordingly, if Theodoropoulos did govern our construction
of section 924(c)(1), we would hold that the district court
properly instructed the jury.
Theodoropoulos, however, no longer governs. The United
States Supreme Court recently issued an opinion in which it
clarified the meaning of the term "use" in section 924(c)(1).
Bailey v. United States, 116 S. Ct. 501, 505 (1995). In Bailey,
the Court rejected the holding of Theodoropoulos and held that
the "proximity and accessibility standard provides almost no
limitation on the kind of possession that would be criminalized .
. . ." Id. at 506. Rather, the Court held, "[Section] 924(c)(1)
5
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
505. The Court further explained that "[t]he active-employment
understanding of 'use' certainly includes brandishing, bartering,
striking with, and most obviously, firing or attempting to fire,
a firearm." Id. at 508. However, "[i]f the gun is not disclosed
or mentioned by the offender, it is not actively employed and it
is not 'used.'" Id.
Bailey's interpretation of the "use and carry" provision
demands a different inquiry from that required under
Theodoropoulos. It is no longer enough that the weapon be
available to the defendant; rather, it must have played an active
role in the perpetration of the predicate offense beyond
emboldening the perpetrator. Therefore, we hold that the
district court's instruction to the jury, while accurately
reflecting the law of the Third Circuit at the time, was
erroneous in light of Bailey. Furthermore, to the extent that
our holding in Theodoropoulos conflicts with the Supreme Court's
interpretation of "use" in Bailey, Theodoropoulos is overruled.
B.
Mr. Price was also charged with the section 924 count under
an aiding and abetting theory, an instruction which he also
disputes. He contends that "aiding and abetting liability is
inapplicable to a charge of carrying and using a firearm during
and in relation to a crime of violence." Appellant's Brief at
34.
6
We reject this argument. Under 18 U.S.C. § 2(a), "[w]hoever
commits an offense against the United States or aids, abets,
counsels, commands, induces, or procures its commission, is
punishable as a principal." This section has been routinely
applied in conjunction with section 924(c) to convict individuals
of "aiding and abetting in using or carrying a firearm" in
violation of 18 U.S.C. § 924(c). See, e.g., United States v.
Wacher, No. 93-3372, 1995 WL 757876 (10th Cir. Dec. 26, 1995);
United States v. Pipola, No. 95-1264, 1995 WL 760560 (2d Cir.
Dec. 22, 1995); United States v. Buchanan, 70 F.3d 818, 825 (5th
Cir. 1995); Dillon v. United States, 69 F.3d 537 (6th Cir. 1995);
United States v. Rivera, 68 F.3d 5, 7 (1st Cir. 1995); United
States v. Easter, 66 F.3d 1018, 1023-24 (9th Cir. 1995), cert.
denied sub nom. Jemerigbe v. United States, 116 S. Ct. 547
(1995), and cert. denied sub nom. Ronnie O. Lea v. United States,
1995 WL 698897 (U.S. 1996) ; United States v. Warren, 42 F.3d
647, 651 (D.C. Cir. 1994); United States v. Martin, 25 F.3d 211,
213 (4th Cir. 1994); United States v. Chandler, 996 F.2d 1073,
1105 (11th Cir. 1993), cert. denied, 114 S. Ct. 2724 (1994);
United States v. Travis, 993 F.2d 1316, 1321 (8th Cir.), cert.
denied, 114 S. Ct. 229 (1993), and cert. denied, 114 S. Ct. 245
(1993); United States v. Reiswitz, 941 F.2d 488, 492 (7th Cir.
1991); see also United States v. Mathis, No. 93-454-01, 1994 WL
413142 (E.D. Pa. Aug. 5, 1994).
It appears that no case in the Third Circuit has considered
a conviction for violation of 18 U.S.C. § 924(c) on an "aiding
and abetting" theory. We see no reason, however, why we should
7
rule differently from every other circuit in the country, and our
own district courts, and Mr. Price offers none, beyond a
conclusory argument that the theory is "inapplicable." Therefore,
we reject Mr. Price's argument and hold that the district court
correctly instructed the jury on the "aiding and abetting"
theory.
C.
We must now determine whether the district court's error in
instructing the jury was harmless or requires reversal of Mr.
Price's conviction on the section 924(c)(1) count. The error was
one of statutory interpretation, not constitutional in nature.
"We have held that non-constitutional error is harmless when 'it
is highly probable that the error did not contribute to the
judgment.'" United States v. Zehrbach, 47 F.3d 1252, 1265 (3d
Cir.) (quoting Government of Virgin Islands v. Toto, 529 F.2d
278, 284 (3d Cir. 1976)), cert. denied, 115 S. Ct. 1699 (1995).
Because we conclude that the error was harmless, we will affirm.
The section 924 charge against Thomas Price was based on two
alternative theories: first, that Mr. Price himself "used" the
weapon under the Theodoropoulos standard and, second, that Mr.
Price aided and abetted the "use" or "carrying" of the weapon by
his accomplice, Charles Stubbs. Under either theory, it is
highly probable -- indeed, inevitable -- that the jury found that
Mr. Price was one of the masked men who robbed the bank and, more
specifically, that he was the man who jumped over the counter and
collected the money while Mr. Stubbs was brandishing the gun.
8
That Mr. Stubbs both "used" and "carried" the firearm within
the statutory meaning is perfectly clear, and therefore, the only
remaining question is whether Mr. Price aided and abetted that
use and carrying. Because the jury had to conclude that Mr.
Price was the man who entered the bank with Mr. Stubbs, we think
the evidence supporting this conclusion is overwhelming,
whichever theory the jury utilized to convict. First, Mr. Stubbs
testified that Mr. Price knew beforehand that a gun would be
used, and the nature of the offense seems to strongly support
that testimony. Second, the use of the gun did not occur in one
instant; rather, according to the evidence, Mr. Stubbs pointed
the gun while Mr. Price gathered the money. Even if Mr. Price
had not known in advance that Mr. Stubbs was going to use a gun
during the robbery, it seems perfectly clear that Mr. Price was
aware that the gun was being used while he continued to
participate in the robbery.
In other words, Mr. Stubbs was plainly using and carrying a
firearm in connection with a crime of violence; Mr. Price
probably knew in advance, and most certainly knew at the time,
what Mr. Stubbs was doing; yet Mr. Price continued to participate
in the offense. In light of these facts, we find that it is
highly probable that the error did not contribute to the judgment
of the jury, and therefore we will affirm.
II.
9
Mr. Price raises several other claims in this appeal. First,
he contends that the evidence was insufficient as a matter of law
to sustain his conviction. Specifically, Mr. Price argues that
the evidence fails to demonstrate that Mr. Price had any prior
knowledge that his accomplice would be utilizing a firearm in the
robbery. Appellant's Brief at 21, 24. However, Mr. Price's
accomplice, Charles Stubbs, did offer testimony to this effect.
Appendix at 260A. This testimony was sufficient evidence to
support a finding of prior knowledge on Mr. Price's part, and
therefore sufficient evidence to find him guilty of armed bank
robbery and carrying or using a firearm during the armed robbery.
Second, Mr. Price argues that the court improperly charged
the jury concerning the existence of Mr. Stubbs's plea agreement.
Appellant's Brief at 36-37. The court charged the jury that
"[t]he Stubbs plea agreement was not marked as an exhibit and was
not admitted into evidence during the course of the trial."
Appendix at 487A. This instruction was correct, and certainly
was not an "abuse of discretion." United States v. Price, 13
F.3d 711, 724 (3d Cir.), cert. denied sub nom. Reaves v. United
States, 114 S. Ct. 1863 (1994), and cert. denied sub nom. Long
v. United States, 114 S. Ct. 2754 (1994), and cert. denied sub
nom. Jackson v. United States, 114 S. Ct. 2754 (1994), and cert.
denied sub nom. Reaves v. United States, 115 S. Ct. 155 (1994).
Finally, Mr. Price claims that the prosecutor engaged in
"forensic misconduct" by improperly vouching for certain
witnesses, disparaging Mr. Price's counsel, casting aspersions at
the defendant and arguing facts not of record. Because Mr.
10
Price's counsel did not object to these statements at trial, we
review these statements for "plain error," that is, "egregious
error or a manifest miscarriage of justice." United States v.
Thame, 846 F.2d 200, 204 (3d Cir.), cert. denied, 488 U.S. 928
(1988). The statements singled out by Mr. Price fall far short
of violating this exacting standard.
IV.
For the reasons outlined above, we will affirm the judgment
of the district court.
11