United States v. Williams ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
9-18-2003
USA v. Williams
Precedential or Non-Precedential: Precedential
Docket No. 02-2928
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PRECEDENTIAL
Filed September 18, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-2928 and 02-3109
UNITED STATES OF AMERICA
v.
GEORGE KEITH WILLIAMS, JR.,
a/k/a KEVIN RICHARDSON
Appellant No. 02-2928
UNITED STATES OF AMERICA
Appellant No. 02-3109
v.
GEORGE KEITH WILLIAMS, JR.,
a/k/a KEVIN RICHARDSON
Appeals from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 00-cr-00164)
District Judge: Honorable William L. Standish
Argued May 13, 2003
Before: RENDELL, SMITH and ALDISERT, Circuit Judges
(Filed September 18, 2003)
2
Karen S. Gerlach [ARGUED]
Office of the Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant/Cross Appellee
Bonnie R. Schlueter [ARGUED]
James H. Love
Office of the United States Attorney
633 U.S. Post Office and Courthouse
Pittsburgh, PA 15219
Counsel for Appellee/Cross Appellant
OPINION OF THE COURT
RENDELL, Circuit Judge.
George Keith Williams appeals his conviction for carrying
a firearm in violation of 18 U.S.C. § 924(c). The Government
produced evidence that Williams threw the firearm from his
vehicle during a police chase following a bank robbery.
Williams challenges both the sufficiency of the evidence
supporting his conviction and the District Court’s
instructions to the jury. The Government cross-appeals,
challenging the District Court’s decision to grant Williams
an offense-level reduction for acceptance of responsibility as
to a separate count. We will affirm the District Court in all
respects.
I. Background
The facts established at trial, taken in the light most
favorable to the Government, are straightforward. On
August 16, 2000, Williams, dressed as a woman, entered
the Parkvale Savings Bank in North Huntingdon,
Pennsylvania, and handed a brown bag to the bank teller
together with a note that read: “Give me your money. I
don’t want to hurt you.” The teller gave Williams $822,
including “bait” money, which triggered an alarm. Williams
then fled from the scene in a stolen car and led police on
a seven-mile high-speed chase through residential
3
neighborhoods. After colliding with multiple vehicles,
Williams ultimately jumped out of the moving car just
before it crashed into the side of an apartment building.
Before he exited the car, Williams threw a black metallic
object out of the window. Williams fled on foot, but was
apprehended by police shortly thereafter. While
investigating the scene, police officers found a loaded gun
ten feet from the getaway car.
Although Williams initially denied involvement in the
bank robbery — and explained his flight from the police as
a reaction to having an illegal gun in the car — he was
apprehended with a paper bag containing $822, including
the “bait” money. The police found a wig and other clothing,
in the car, matching the description of that worn by the
robber, and they also found Williams’s fingerprints on the
bank demand note. Regarding the gun, an investigating FBI
agent testified that “[Williams] had said he had bought the
gun on the street obviously before and that he carried it for
protection . . . . [H]e was in another neighborhood other
than his own so he had carried it the night before so he
had had it with him.”
A grand jury indicted Williams on two counts, charging
him with (1) bank robbery by force and intimidation in
violation of 18 U.S.C. § 2113(a), and (2) carrying a firearm
during and in relation to a crime of violence and possessing
a firearm in furtherance of that crime of violence in
violation of 18 U.S.C. § 924(c). Williams pled guilty to the
§ 2113(a) charge, but went to trial on the § 924(c) charge.
The first trial ended in a mistrial due to a hung jury, but
on retrial the jury found Williams guilty. At sentencing, the
District Court, over the objection of the Government,
granted Williams’s request for an offense-level reduction for
acceptance of responsibility. The Court sentenced Williams
to 66 months on count one, and a consecutive term of 60
months on count two.
The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231, and we have jurisdiction pursuant to 18 U.S.C.
§ 1291. Williams makes four arguments on appeal: (1) the
evidence was insufficient to sustain a conviction under
§ 924(c); (2) the District Court incorrectly instructed the
jury that a gun is “carried” in violation of § 924(c) if it
4
merely “emboldens” the defendant during the escape;
(3) the District Court incorrectly instructed the jury that a
gun is “possessed” in violation of § 924(c) if it merely
“emboldens” the defendant during the escape; and (4) the
District Court incorrectly instructed the jury as to what
satisfies the “carry” elements under § 924(c). As noted, the
Government cross-appeals, arguing that the District Court
erred in granting Williams an offense-level reduction for
acceptance of responsibility under § 3E1.1 of the
Sentencing Guidelines.
II. Sufficiency of the Evidence
We first consider whether there is sufficient evidence to
sustain a conviction under 18 U.S.C. § 924(c). When
reviewing whether the evidence was sufficient to convict,
“[w]e must consider the evidence in the light most favorable
to the government and affirm the judgment if there is
substantial evidence from which any rational trier of fact
could find guilt beyond a reasonable doubt.” United States
v. Brown, 3 F.3d 673, 680 (3d Cir. 1993) (internal quotation
marks and citation omitted).
Section 924(c) provides in pertinent part:
[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the
person may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime of
violence or drug trafficking crime — [be sentenced to a
certain number of years depending on the facts of the
crime] . . . .
18 U.S.C. § 924(c) (emphasis added). Courts have noted
that § 924(c) has three alternative prongs: the “use” prong,
the “carry” prong, and the “possession” prong. See
Muscarello v. United States, 524 U.S. 125, 136 (1998)
(discussing the “use” and “carry” prongs); United States v.
Loney, 219 F.3d 281, 287 (3d Cir. 2000) (discussing the
“use,” “carry,” and “possession” prongs). The District Court
charged the jury in the alternative, under the “carry” and
5
“possession” prongs. The jury returned a general guilty
verdict.
Williams presents various technical arguments based on
the elements of § 924(c). His main argument is that there
was not sufficient evidence for the jury to find that he
either “carried” or “possessed” a gun. In the alternative, he
urges that there was not sufficient evidence to find that he
either carried a gun “during and in relation to” a crime of
violence or possessed a gun “in furtherance of ” a crime of
violence as required by the statute. We will first address his
arguments as to the “carry” prong.
We have little difficulty rejecting Williams’s argument that
there was not sufficient evidence for the jury to have
concluded that Williams “carried” a gun. In Muscarello, the
Supreme Court explained that “carries” in § 924(c) is not
limited to the carrying of firearms directly on the person. Id.
at 126-27. Rather, the Court held that, “[the term] also
applies to a person who knowingly possesses and conveys
firearms in a vehicle, including in the locked glove
compartment or trunk of a car, which the person
accompanies.” Id.; see also United States v. Eyer, 113 F.3d
470, 476 (3d Cir. 1997) (stating that the presence of a
loaded gun in a car’s front console constituted “carrying”
under § 924(c)). This explication certainly encompasses the
situation here, where there was sufficient evidence from
which the jury could find that Williams carried a gun in the
getaway car during his flight from the bank. Not only did he
tell police officers that he ran from them because he had an
illegal gun, but a pursuing police officer testified to seeing
Williams throw a black metallic object from his car, and a
gun was subsequently found ten feet away from the car.
Williams’s alternative argument as to the “carry” prong,
however, cannot be rejected so easily. He contends that,
even if he “carried” the firearm, the evidence did not
establish that he carried it “during and in relation to” a
crime of violence — as further required by § 924(c) — given
that there is no evidence that he had the gun with him in
the bank when he committed the robbery. Understanding
that the underlying crime to which Williams pled guilty,
bank robbery under the first paragraph of § 2113(a),1 is a
1. Section 2113(a) provides:
Whoever, by force and violence, or by intimidation, takes or
6
crime of violence, we must only determine whether
Williams’s carrying of the firearm was “during and in
relation to” the bank robbery. See United States v. Johnson,
962 F.2d 1308, 1312 (8th Cir. 1992).
We begin with the “in relation to” requirement of the
“carry” prong. See 18 U.S.C. § 924(c). As the Supreme Court
noted in Smith v. United States, 508 U.S. 223, (1993),
regarding § 924(c), “[t]he phrase ‘in relation to’ is
expansive.” Id. at 237. In Smith, the Court used the
dictionary to define “in relation to” as: “ ‘with reference to’
or ‘as regards.’ ” Id. Though the Court declined to chart the
specific boundaries of that definition, it stated that, in order
to be carried “in relation to” the offense, the presence of the
gun could not be the result of accident or coincidence, and
the gun must have had “some purpose or effect” as to, and
must have at least “ ‘facilitate[d], or [had] the potential of
facilitating,’ ” the underlying offense. Id. at 238 (quoting
United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985)
(Kennedy, J.)).
In United States v. Warwick, 167 F.3d 965 (6th Cir.
1999), the Court of Appeals for the Sixth Circuit examined
the breadth of the phrase “in relation to” in light of Smith.
The court stated that, because of the broad interpretation
attempts to take, from the person or presence of another, or obtains
or attempts to obtain by extortion any property or money or any
other thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any
savings and loan association; or
Whoever enters or attempts to enter any bank, credit union, or any
savings and loan association, or any building used in whole or in
part as a bank, credit union, or as a savings and loan association,
with intent to commit in such bank, credit union, or in such savings
and loan association, or building, or part thereof, so used, any
felony affecting any such bank or such savings and loan association
and in violation of any statute of the United States, or any larceny
—
Shall be fined under this title or imprisoned not more than twenty
years, or both.
18 U.S.C. § 2113(a).
7
afforded to § 924(c) by the Supreme Court, instead of
focusing on the defendant’s intentions in pursuing the
underlying offense, a court should
examine the ‘totality of the circumstances surrounding
the commission of the crime: the emboldened sallying
forth, the execution of the transaction, the escape, and
the likely response to contingencies that might have
arisen during the commission of the crime’. . . . Thus,
a conviction under § 924(c)(1) will withstand appellate
review if the evidence is sufficient to support a finding
that the defendant intended to have the firearm
available for use during or immediately following the
transaction, or if it facilitated the crime . . . .
Id. at 971 (quoting and citing United States v. Brown, 915
F.2d 219, 226 (6th Cir. 1990)). We find this assessment
persuasive.
In light of the broad reading afforded to § 924(c) by the
courts, the requirements of the “in relation to” clause are
clearly satisfied in this case. Williams admitted to putting a
firearm in his car the night before the robbery; the gun was
within reach during his flight from the bank; and he
undoubtedly was aware of its presence in the car. Even
crediting Williams’s explanation that he had put the gun in
the car for protection in a strange neighborhood the night
before the robbery, the jury could have concluded that the
presence of the gun was not the result of accident or
coincidence, and that it had the “potential of facilitating”
the bank robbery. Although Williams did not actively
engage the firearm, there are sufficient facts from which the
jury could infer that his carrying of a loaded gun within
reach in the getaway car occurred “in relation to” the bank
robbery.
Williams next contends that, even if the firearm was
“carried in relation to” the bank robbery, it was not carried
“during” the bank robbery as § 924(c) also requires,
because the escape or the “taking away” was not part of the
bank robbery itself.2 As noted, there was sufficient evidence
2. As we discuss more fully later below, Williams also challenges the
District Court’s charge to the jury that escape is part of bank robbery.
8
only for the jury to have found at trial that Williams
“carried” the gun while escaping in the getaway car.
Therefore, the issue of whether that part of the incident
occurred “during” the bank robbery is dispositive.
Our case law has consistently treated escape as part and
parcel of a bank robbery, including federal bank robbery as
defined in 18 U.S.C. § 2113 (the offense that underlies
Williams’s § 924(c) charge). For instance, in United States v.
Bamberger, 460 F.2d 1277 (3d Cir. 1972), we found that a
shooting that occurred a few blocks away from a bank
robbery was “sufficiently related in time and circumstances
to the actual robbery” to be part of the robbery itself. Id. at
1278. Although the defendant in that case was charged
with aiding and abetting, the language of our opinion
regarding the duration of the offense swept broadly and was
not restricted to an aiding and abetting scenario.3 We later
relied on Bamberger in Government of the Virgin Islands v.
Dowling, 633 F.2d 660 (3d Cir. 1980), where we concluded
that assaults occurring during “hot pursuit” of a robbery
occur “in committing” the crime. Id. at 668-69.
Consequently, we indicated that the assaults involved in
that case — “three or more bursts of gunfire [issued from
the getaway car after leaving the bank], separated in time,
[which] occurred almost immediately after the robbery in
the course of a ‘hot pursuit’ ” fell “within the scope of the
federal Bank Robbery Act, 18 U.S.C. § 2113(d),” and thus
within § 2113(a) as well.4 Id. at 668-69.
3. The “aiding and abetting” statute provides in pertinent part:
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).
4. Section 2113(d) provides:
Whoever, in committing, or in attempting to commit, any offense
defined in subsections (a) and (b) of this section, assaults any
person, or puts in jeopardy the life of any person by the use of a
dangerous weapon or device, shall be fined under this title or
imprisoned not more than twenty-five years, or both.
18 U.S.C. § 2113(d). Though Bamberger and Dowling referred to
§ 2113(d) — and not § 2113(a), the offense underlying Williams’s § 924(c)
charge — the distinction is of no consequence here. Section 2113(a) is a
lesser-included offense of § 2113(d). United States v. Beckett, 208 F.3d
140, 149 (3d Cir. 2000); see also Dowling, 633 F.2d at 668.
9
The other courts of appeals that have considered whether
escape is a part of the bank robbery also have determined
that it is. See, e.g., United States v. Ashburn, 20 F.3d 1336,
1341 (5th Cir. 1994) (noting, with approval, that “many
courts . . . have found that the escape phase of the robbery
can be considered part of the offense of bank robbery under
various circumstances.”), relevant part reinstated, 38 F.3d
803 (en banc); United States v. Dinkane, 17 F.3d 1192,
1200 (9th Cir. 1994) (noting that the escape phase is a part
of bank robbery); United States v. Muhammad, 948 F.2d
1449, 1456 (6th Cir. 1991) (“As the crime of bank robbery
cannot be completed without some form of flight or
attempted flight, the crime is more naturally understood to
include the act of fleeing and the immediate consequences
of such flight.”); United States v. McCaskill, 676 F.2d 995,
1000 (4th Cir. 1982) (concluding that the escape phase is
a part of the bank robbery); United States v. Willis, 559
F.2d 443, 444 (5th Cir. 1977) (“[T]he robbery is not a
consummate transaction until the immediate removal
phase comes to a halt . . . .”); United States v. Von Roeder,
435 F.2d 1004, 1010 (10th Cir. 1970) (“[T]he escape phase
of a crime is not . . . an event occurring ‘after the robbery.’
It is part of the robbery.” (internal quotation marks and
citation omitted)), vacated on other grounds, Schreiner v.
United States, 404 U.S. 67 (1971); see also United States v.
Barlow, 470 F.2d 1245, 1252-53 (D.C. Cir. 1972) (“The
crime of larceny obviously continues as long as the
asportation continues . . . .”).
In fact, in considering the specific issue before us, the
Courts of Appeals for the Second and Eighth Circuits have
determined that flight from a bank robbery is part of the
bank robbery crime for the purposes of upholding a § 924(c)
conviction. As the Eighth Circuit reasoned:
A bank robbery does not necessarily begin or end at
the front doors of the bank . . . . It simply cannot be
gainsaid that reasonable jurors could conclude that the
presence of a loaded shotgun in the getaway car from
a bank robbery in some way effectuates the escape and
thereby the robbery — if by nothing more than the
emboldening of the perpetrators.
10
United States v. Pate, 932 F.2d 736, 738 (8th Cir. 1991);
see also United States v. Reid, 517 F.2d 953, 965 (2d Cir.
1975) (concluding that the “escape phase” is part of the
bank robbery for purposes of § 924(c)).
Against this backdrop of overwhelming consensus, we
note that, as the Government advised at oral argument, in
United States v. Carter, 530 U.S. 255 (2000), the Supreme
Court held that the strict elements of a federal bank
robbery offense under 18 U.S.C. § 2113(a) do not include
“taking away.” Id. at 262. In Carter, the Supreme Court
examined whether 18 U.S.C. § 2113(b) was a lesser
included offense of § 2113(a) and thus whether Carter was
entitled to a jury instruction on the lesser included offense.
Id. at 258-59. The Court concluded that § 2113(b) was not
a lesser included offense for a number of reasons, one of
which was that § 2113(b) included “taking away” as an
element, but § 2113(a) did not. Id. Given that Williams
carried the gun only as the stolen property was being
“taken away” during the escape phase of the bank robbery,
does Carter dictate that we conclude that the gun here was
not carried “during” the bank robbery?
Were we to take a “categorical approach” to the “during”
requirement of § 924(c) here, we might find Carter, albeit
addressing a different issue, controlling because it
articulates the elements of the underlying conduct — bank
robbery under 18 U.S.C. § 2113(a) — to which Williams
pled guilty. “The categorical approach requires the court to
look only to the fact of conviction and the statutory
definition of the prior offense” and not to the facts of the
case. United States v. Jones, 332 F.3d 688, 691 (3d Cir.
2003). Thus, because the elements of § 2113(a) do not
include the “taking away,” it could be argued that the
categorical approach would require us to conclude that the
carrying of the gun did not occur “during” the bank
robbery.
But we think resort to the categorical approach is not
necessary or advisable here. In the statutory context, use of
a categorical approach has been confined mainly to
predicate offenses for purposes of determining whether the
offense qualifies for a sentencing enhancement provision.
For instance, in Taylor v. United States, 495 U.S. 575, 589,
11
600-02 (1990), the Court applied the categorical approach
to determine whether the defendant’s prior convictions for
“burglary” under state law qualified as a “violent felony”
under 18 U.S.C. § 924(e)(2)(B) and thus could be used for
sentencing-enhancement purposes under 18 U.S.C.
§ 924(e)(1). In United States v. Richardson, 313 F.3d 121,
122 (3d Cir. 2002), we applied it to determine whether the
defendant had used a weapon in prior juvenile offenses,
also for the purposes of determining whether those offenses
could be used to enhance a sentence. This is consistent
with how we have employed the approach elsewhere. See,
e.g., Jones, 332 F.3d at 693-94 (applying the categorical
approach to determine whether a prior juvenile
adjudication constituted a “violent felony” under the Armed
Career Criminal Act, 18 U.S.C. § 924(e)); Francis v. Reno,
269 F.3d 162, 171 (3d Cir. 2001) (using the categorical
approach to determine if a conviction for vehicular
homicide fell within the meaning of a “crime of violence”
under 18 U.S.C. § 16(b)). Likewise, in Carter, the analysis of
whether 18 U.S.C. § 2113(b) was a lesser included offense
of 18 U.S.C. § 2113(a) necessitated and turned on a
matching of the elements of each offense. 530 U.S. at 260-
62 (citing the holding of Schmuck v. United States, 489 U.S.
705, 716 (1989)). Thus, the Court focused on the elements
needed to prove bank robbery under § 2113(a). Id. at 267-
74.
The issue here is altogether different. In Carter, the Court
did not speak to, let alone anticipate, this issue, and there
is no indication that the Court meant to extend its holding
in Carter beyond the scope of the precise question before it.
The Court was concerned with what § 2113(a) “required”
and determined that it did not require taking away; it was
not concerned with the duration of the offense or with
whether the taking away may be considered a part of the
robbery. Id. at 258, 261, 272. Here, we are not called upon
to determine whether a crime “fits” within a category of
offenses, or within the definition of a specific word or
phrase. Rather, we must decide if, under the
circumstances, a gun was carried “during and in relation
to” a crime of violence. We view a reasonable reading of
“during and in relation to” a crime of violence as requiring
a common sense, temporal approach to the specific facts,
12
rather than a categorical approach. Therefore, we decline to
look only at the offense under § 2113(a) to determine
whether Williams carried the gun “during” the crime.
That § 924(c) should be interpreted to encompass acts
committed during the escape phase of a bank robbery is
also supported by the legislative history of § 924(c), other
Supreme Court precedent, the ordinary meaning of
“robbery,” leading treatises, and the Model Penal Code.
First, the provision’s chief legislative sponsor indicated the
broad scope of the statute. Specifically, he stated that the
purpose of the provision was to “persuade the man who is
tempted to commit a Federal felony to leave his gun at
home.” 114 Cong. Rec. 22231 (1968) (Rep. Poff) (cited in
Muscarello, 524 U.S. at 132). And, in discussing the scope
of the “carry” prong, the Supreme Court has noted that,
although the “during and in relation to” phrase would
provide a limiting effect to that prong, “Congress added
[the] words [during and in relation to] in part to prevent
prosecution where guns ‘played’ no part in the crime.”
Muscarello, 524 U.S. at 137. Here, the jury could have
inferred from the presence of a loaded firearm within
Williams’s reach in the getaway car that he at least carried
the gun in the car to protect the proceeds of the bank
robbery. It follows that the jury could have found that the
firearm had a “part” in the bank robbery, even though there
is no evidence that Williams had it with him in the bank.
Moreover, just as the Supreme Court in Muscarello
looked at the ordinary meaning of the word “carry” in
determining its scope, we look to the ordinary meaning of
the word “robbery.” See Muscarello, 524 U.S. at 127-28. We
believe that, under its ordinary meaning, a bank robbery is
not concluded when the offender pockets the goods, but
continues to the point where the robber has removed and
relocated the goods. This “ordinary meaning” is not only
consistent with the overwhelming agreement of courts of
appeals, as we discussed above, but is also consistent with
at least two of the leading criminal law treatises, both of
which note that the “taking away” or the “carrying away” is
normally considered to be a part of robbery. See Charles E.
Torcia, Wharton’s Criminal Law § 469 (14th ed. & Supp.
1995); Wayne R. LaFave, 3 Substantive Criminal Law § 20.3
13
(2d ed. 1999). Likewise, the Model Penal Code states that
an individual commits robbery if “in the course of
committing a theft” he inflicts or threatens injury, or
commits or threatens to commit a felony, which the Code
clarifies by stating that: “[a]n act shall be deemed ‘in the
course of committing a theft’ if it occurs in an attempt to
commit theft or in flight after the attempt or commission.”
Model Penal Code § 222.1(1) (2002) (emphasis added).
Lastly, we note that our interpretation avoids undesirable
results that would flow from finding that flight is not part
of a robbery. For instance, if flight were not included, we
would have to find an arbitrary point delineating when and
where the crime ends. Would the crime end the instant the
bank robber took the money from the teller’s hands? Would
it end the instant the robber stepped outside the door of
the bank? Or, rather, would it end when he stepped into
the getaway car or began running? It would defy common
sense to suggest that Congress meant to provide that an
individual who quietly and peacefully demands money at a
bank counter, but has a gun hidden on his person, is
covered under § 924(c), but an individual who goes on a
shooting spree after leaving the bank in order to effectuate
the robbery is not. Obviously, escape does end at some
point, such that the concept of “during and in relation to”
will have some boundaries as a matter of common sense.
But we believe that it is a fact-based inquiry, and, in light
of the immediacy of Williams’s apprehension and the
weapon’s discovery, we need not draw that line here. See
Bamberger, 460 F.2d 1277, 1278-79 (“While there must of
course come a point when the statute no longer covers the
activities of a bank robber, we think that point was not
reached here.”).
Accordingly, we conclude that flight may be considered a
part of a bank robbery under § 924(c), under certain
circumstances, and that this is one of those circumstances.
Even though Williams “had committed all elements
necessary to constitute an indictable offense insofar as he
personally was concerned[,] . . . he apparently considered
that further asportation was necessary in order to secure
the fruits of the crime.” Barlow, 470 F.2d at 1251-52.
Therefore, “[t]he crime itself was incomplete in the sense
14
that the actual offense set in motion by [him] was still
progressing and had not been terminated or finished.” Id. at
1252. Under these facts, there is sufficient evidence from
which the jury could have found beyond a reasonable doubt
that Williams’s flight in this case — which was temporally
and proximately related to the bank robbery — was
sufficiently related to the robbery so that Williams was
carrying the gun “during” the robbery.5
Because we find the evidence sufficient to affirm his
conviction under the “carry” prong of § 924(c), we need not
address the merits of his argument with regard to the
“possession” prong. See Griffin v. Turner, 502 U.S. 46, 60
(1991) (concluding that a reviewing court does not have
grounds to reverse a conviction where the evidence is
insufficient to support a conviction on one count, but is
sufficient with regard to an alternative count, and it is
unclear on which one the jury convicted); United States v.
Morris, 977 F.2d 617, 620 (D.C. Cir. 1992) (stating that
where the jury is charged under two prongs of § 924(c) and
“the jury returned a general verdict, we must affirm if the
evidence was sufficient to support either theory”).
III. Jury Instructions
We next address Williams’s arguments regarding the
District Court’s instructions to the jury. He argues that the
District Court incorrectly instructed the jury that: (1) a gun
is “carried” in violation of § 924(c) if it merely “emboldens”
5. Williams also argues that the District Court incorrectly instructed the
jury that escape is part of bank robbery. The jury instruction provided
in pertinent part:
[A] bank robbery does not necessarily begin or end at the front doors
of the bank. The escape phase of a bank robbery is not an event
occurring after the bank robbery. Rather, the escape phase of a
bank robbery is part of the robbery. The escape phase of a bank
robbery extends at least to the immediate pursuit of a defendant
following his or her physical departure from the bank.
Given our conclusion that the escape phase may be considered a part of
the crime of bank robbery for the purposes of § 924(c), it follows that we
find there was no error in the trial judge’s instruction regarding the
duration of the bank robbery.
15
the defendant during his escape; (2) a gun is “possessed” in
violation of § 924(c) if it merely “emboldens” the defendant
during his escape; and (3) the “carry” prong of § 924(c) can
be satisfied by “constructive possession.”6 We conclude that
the District Court did not commit reversible error.
We review de novo the District Court’s interpretation of
the statutory requirements and whether the District Court
correctly charged the jury. United States v. Urban, 140 F.3d
6. While in Part II we were only required to address the “carry” prong of
§ 924(c), given that there we were dealing with a claim of insufficiency of
the evidence, we must now deal with claims of legal error, and thus, we
will address Williams’s arguments with regard to both prongs. See
Griffin, 502 U.S. at 55-56. In Griffin, the Supreme Court declined to
overrule Yates v. United States, 354 U.S. 298 (1957), in which the Court
had refused to uphold convictions of conspiracy where one of the
possible bases of conviction was legally inadequate. 502 U.S. at 55-56.
The Court in Griffin explained the distinction in treatment between
insufficient evidence and legal error by stating:
Jurors are not generally equipped to determine whether a particular
theory of conviction submitted to them is contrary to law . . . .
When, therefore, jurors have been left the option of relying upon a
legally inadequate theory, there is no reason to think that their own
intelligence and expertise will save them from that error. Quite the
opposite is true, however, when they have been left the option of
relying upon a factually inadequate theory, since jurors are well
equipped to analyze the evidence.
502 U.S. at 59. In United States v. Syme, 276 F.3d 131 (3d Cir. 2002),
we concluded that “neither the indictment nor the District Court’s
instructions contained a ‘mistake about the law’ . . . that, under Griffin,
would require reversing the counts in question.” Id. at 148. As we stated:
[I]f the evidence is insufficient to support a conviction on one
alternative theory in a count but sufficient to convict on another
alternative theory that was charged . . . in the same count, then a
reviewing court should assume that the jury convicted on the
factually sufficient theory and should let the jury verdict stand . . . .
However, under Griffin, if one of two or more alternative theories
supporting a count of conviction is either (1) unconstitutional, or (2)
legally invalid, then the reviewing court should vacate the jury
verdict and remand for a new trial without the invalid or
unconstitutional theory.
Id. at 144 (citations omitted).
16
229, 231-32 (3d Cir. 1998). We review a court’s choice of
wording for abuse of discretion. United States v. Goldblatt,
813 F.2d 619, 623 (3d Cir. 1987). As we stated in Goldblatt:
It is well settled that a single jury instruction may not
be evaluated in artificial isolation; rather, it must be
evaluated in the context of the overall charge . . . . A
trial which culminates in a judgment of conviction is
the combined result of witnesses’ testimony, counsels’
arguments, entry of exhibits into evidence and the
judge’s instructions to the jury. Thus, ‘the process of
instruction itself is but one of several components of
the trial which may result in a judgment the
conviction.’
Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
Williams’s first argument is that a gun is not carried in
violation of 18 U.S.C. § 924(c) if it merely “emboldens” an
individual during an escape. The charge to the jury
provided in pertinent part:
It is not sufficient to prove that the defendant carried
the weapon if all the government has proven is that the
firearm was transported in a vehicle in which the
defendant was riding. There must be proof that he
knew of the weapon’s presence and had the power and
intention to exercise control of the weapon so that it
was available for his use in the commission of the
crime if the need arose. A firearm is available for such
use in [sic] the defendant keeps the firearm available to
provide security for the robbery, its fruits or proceeds,
or to aid or embolden the defendant in making his
escape.
In all, the charge to the jury with regard to the “carry”
prong constituted more than two pages of the District
Court’s instruction to the jury, and did not rest solely on
the word “emboldening.” In the instruction, the District
Court closely tracked the language invoked by the Supreme
Court in Smith. 508 U.S. at 237-38. Importantly, the trial
judge also instructed the jury that:
If you find that the defendant carried a firearm, you
must determine whether the carrying of the firearm
17
was during and in relation to the unarmed bank
robbery. During and in relation to means that the
firearm must have had some purpose or effect with
respect to the unarmed bank robbery. The firearm
must have at least facilitated or had the potential of
facilitating the unarmed bank robbery.
Given our standard of review, we need not determine
specifically whether “emboldening” standing alone would
have been reversible error. We look at the totality of the
District Court’s instruction, see Goldblatt, 813 F.2d at 623,
and in doing so here, find no reversible error. The trial
judge’s use of the word “emboldening” was included as part
of a thorough instruction that sufficiently tracked language
used by the Supreme Court.
Williams next argues that the trial judge incorrectly
charged the jury that “emboldening” satisfies the
“possession” prong of § 924(c). The instruction provided in
pertinent part:
In order to prove that the defendant possessed a
firearm in furtherance of the unarmed bank robbery,
the government must prove beyond a reasonable doubt
that the defendant had possession of the firearm and
that such possession was in furtherance of the
unarmed bank robbery. Possession means that the
defendant either had physical possession of the firearm
on his person or that he had dominion and control over
the place where the firearm was located and had the
power and intention to exercise control over the place
where the firearm was located. To possess a firearm in
furtherance of the unarmed bank robbery means that
the firearm helped forward, advance or promote the
commission of the crime. A firearm is possessed in
furtherance of an unarmed bank robbery if it is
possessed to provide security for the robbery, its fruits
or proceeds, or to aid or embolden the defendant in
making his escape.
As with the instruction surrounding the “carry” prong, the
charge further provided detailed direction that “[t]he mere
possession of the firearm at the scene of the crime is not
sufficient under this definition,” and that “[t]he firearm
18
must have played some part in furthering the crime in
order for this element to be satisfied.”
As there is little case law detailing the scope of the “in
furtherance of ” requirement of the “possession” prong, we
will follow the approach taken by the Supreme Court in
Smith and Muscarello, and look to the relevant dictionary
definitions. See Smith, 508 U.S. at 237-38; Muscarello, 524
U.S. at 128. Black’s Law Dictionary defines “furtherance” as
“act of furthering, helping forward, promotion,
advancement, or progress.” Black’s Law Dictionary 675 (6th
ed. 1990). Webster’s defines it as “a helping forward:
advancement, promotion.” Webster’s Third New
International Dictionary 924 (1993). And Webster’s defines
“embolden” as, “to impart boldness or courage to: instill
with boldness, bravery . . . .” Id. at 739. Given that in some
instances, “instill[ing] with boldness” could “help forward,”
“promote,” or “advance” a bank robbery — as the District
Court instructed — and given the overall instruction
provided by the District Court, we, again, find no reversible
error in this regard.
Williams’s third argument regarding the jury instructions
is that the District Court incorrectly instructed the jury
that the “carry” prong of § 924(c) can be satisfied based on
what is commonly termed “constructive possession.” See
United States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999) (“A
person who, although not in actual possession, knowingly
has both the power and the intention at a given time to
exercise dominion or control over a thing, either directly or
through another person or persons, is then in constructive
possession.”). The relevant part of the court’s charge stated:
Possession means that the defendant either had
physical possession of the firearm on his person or
that he had dominion and control over the place where
the firearm was located and had the power and
intention to exercise control over the place where the
firearm was located.
As Williams did not object to this part of the instruction, we
review the charge for plain error, which requires that we
must find an error that is plain and that “affects
substantial rights” in order to grant relief.7 See United
7. Moreover, Fed.R.Crim.P. 52(b) leaves the decision to correct the
forfeited error within the sound discretion of the Court of Appeals, and
19
States v. Gambone, 314 F.3d 163, 183 (3d Cir. 2003); Fed.
R. Crim. P. 52. “ ‘Affected substantial rights’ in the context
of plain error review ‘in most cases . . . means that the
error must have been prejudicial: It must have affected the
outcome of the district court proceedings.’ ” United States v.
Knobloch, 131 F.3d 366, 370 (3d Cir. 1997) (quoting Olano,
507 U.S. at 734 (1993)). In light of the fact that, if the
Government’s version of events is credited, the obvious
location of the gun — namely, within his reach inside the
car — fit squarely within the “carry” prong under
Muscarello, we cannot conceive of how the charge given by
the District Court could have prejudiced Williams. We thus
no find no plain error in this aspect of the District Court’s
instruction.
IV. Cross-Appeal
The Government cross-appeals, arguing that the District
Court erred in granting Williams an offense-level reduction
for acceptance of responsibility under § 3E1.1 of the
Sentencing Guidelines. Williams received the acceptance of
responsibility reduction for pleading guilty to the bank
robbery charge under § 2113(a), in spite of the fact that he
contested the § 924(c) charge. The District Court’s “tentative
findings” are somewhat cursory, merely noting that the
Court came to that conclusion “[a]fter considering the
totality of the circumstances.”
The District Court referenced the applicable approach,
noting that where, as here, a defendant pleads guilty to
some counts but goes to trial on others, the Court must
assess the “totality of the circumstances” in deciding
whether to grant a reduction for acceptance of
responsibility. United States v. Cohen, 171 F.3d 796, 806
the court should not exercise that discretion unless “ ‘the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.’ ” United States v. Retos, 25 F.3d 1220, 1229 (3d Cir. 1994)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). “[I]t is the
rare case in which an improper instruction will justify reversal of a
criminal conviction when no objection has been made in the trial court.”
Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
20
(3d Cir. 1999). While we review findings of fact for clear
error, and legal conclusions de novo, Cohen, 171 F.3d at
802, we are especially deferential to the sentencing court’s
assessment of whether the defendant accepted
responsibility. See U.S. Sentencing Guidelines Manual
§ 3E1.1, cmt. n.5 (2002) (“The sentencing judge is in a
unique position to evaluate a defendant’s acceptance of
responsibility. . . [,] the determination of the sentencing
judge is entitled to great deference on review.”).
The Government presents three arguments as to why the
District Court erred in granting an offense-level reduction,
which we address in turn. First, the Government contends
that District Court failed to take the totality of the
circumstances into account, but, instead, focused entirely
on the fact that Williams had pled guilty to the bank
robbery. Specifically, the Government argues that the
District Court failed to take into account that Williams
denied “relevant conduct” as defined in Application Note
1(a) of § 3E1.1, which provides in pertinent part that “a
defendant who falsely denies, or frivolously contests,
relevant conduct that the court determines to be true has
acted in a manner inconsistent with acceptance of
responsibility.” U.S. Sentencing Guidelines Manual § 3E1.1
cmt. n.1(a). The Government claims that the relevant
conduct Williams denied was that he carried a loaded gun
in the getaway car.
The Government’s reasoning is problematic both in its
interpretation of Application Note 1(a) and in its definition
of “relevant conduct.” The Government wrongly treats the
quoted language of Application Note 1(a) as establishing a
per se bar to the grant of a reduction for acceptance of
responsibility. Even if Williams “falsely denie[d], or
frivolously contest[ed], relevant conduct” as the Guidelines
requires, the Guidelines make clear that this is an
“appropriate consideration[ ]” for a court to take into
account “[i]n determining whether a defendant qualifies” for
the reduction, id., but not the only consideration. See U.S.
Sentencing Guidelines Manual § 3E1.1 cmt. n. 1(a) (stating
that a court is “not limited to” the listed considerations).
Further, it is a close question as to whether Williams’s
conduct even amounted to a “false denial” or a “frivolous
21
contest” as Application Note 1(a) requires. In addition, the
Government seems to ignore the fact that the District Court
specifically mentioned Williams’s “timely notification of [sic]
authorities of his intention to enter a plea of guilty on
Count One” — clearly an “appropriate consideration” under
the Application Note — as an additional factor it took into
consideration. See U.S. Sentencing Guidelines Manual
§ 3E1.1 cmt. n. 1(h).
What is more, it could be argued that the gun activity on
which Williams proceeded to trial was not “relevant
conduct” as that term is defined under the Guidelines. One
of the considerations in determining “relevant conduct” is
that it is conduct that affects the Guideline range. See U.S.
Sentencing Guidelines Manual § 3E1.1 cmt. n. 1(a) (stating
that “relevant conduct” is defined in § 1B1.3); see also
United States v. Wilson, 106 F.3d 1140, 1144 (3d Cir. 1997)
(referring to § 1B1.3(a) as the “standard of relevant conduct
. . . which applies to an offense requiring the grouping of
multiple counts”); United States v. Stephenson, 895 F.2d
867, 876 (2d Cir. 1990). But § 924(c) specifies a minimum
five-year term of imprisonment to run consecutively to any
other term. See 18 U.S.C. § 924(c)(1)(A)(I) & (D)(2). Under
§ 3D1.1,8 this made the § 924(c) charge not subject to
8. Section 3D1.1 reads:
(a) When a defendant has been convicted of more than one count,
the court shall:
(1) Group the counts resulting in conviction into distinct Groups
of Closely Related Counts (“Groups”) by applying the rules
specified in § 3D1.2.
(2) Determine the offense level applicable to each Group by
applying the rules specified in § 3D1.3.
(3) Determine the combined offense level applicable to all Groups
taken together by applying the rules specified in § 3D1.4.
(b) Exclude from the application of § § 3D1.2-3D1.5 any count for
which the statute (1) specifies a term of imprisonment to be
imposed; and (2) requires that such term of imprisonment be
imposed to run consecutively to any other term of imprisonment.
Sentences for such counts are governed by the provisions of
§ 5G1.2(a).
U.S. Sentencing Guidelines Manual § 3D1.1 (emphasis added).
22
grouping, which, in turn, rendered it not “relevant conduct”
for purposes of establishing Williams’s sentence. See U.S.
Sentencing Guidelines Manual § 3D1.1; see also
Stephenson, 895 F.2d at 876 (stating that an offense not
subject to grouping “is excluded from ‘relevant conduct’
under Section 1B1.3”).
Cohen is not to the contrary. In that opinion, we
discussed a situation similar to that presented here, calling
it an “unusual situation” where “the defendant has pleaded
guilty to some of the charges against him . . . while going
to trial on others.” Id. at 806. We stated that, in such a
case, “the trial judge ‘has the obligation to assess the
totality of the situation in determining whether the
defendant accepted responsibility.’ ” Id. at 806 (quoting
United States v. McDowell, 888 F.2d 285, 293 n.2 (3d Cir.
1989)). There, we determined that the District Court in
assessing the totality of the situation erred in granting an
acceptance of responsibility reduction because the
defendant had gone to trial on some of the counts that were
grouped for sentencing purposes. The District Court could
not have granted acceptance credit based on the guilty
pleas to some counts because the counts were grouped
before consideration of such credit, thus eliminating the
availability of the reduction for acceptance responsibility.
Id. (“Were the District Court able to grant a credit for . . .
the three . . . charges separately, then we would see no
error. However, the Guidelines do not allow for this because
multiple counts of conviction must be grouped before an
adjustment can be made for acceptance of responsibility.”).
That situation is not present here.
Next, the Government argues that the District Court
disregarded Application Note 2 of § 3E1.1 of the Sentencing
Guidelines, which states that a reduction should not be
granted for a defendant who proceeds to trial, denies
factual elements of guilt, and only admits guilt after a
conviction. U.S. Sentencing Guidelines Manual § 3E1.1
cmt. n.2. However, the District Court adjusted the offense
level only as to count one, and Williams only put the
Government to its burden of proof on count two. As noted
in Cohen, where the counts are not grouped and credit may
be granted to them separately, there is no error when the
23
District Court grants the reduction as to a count that the
defendant did not challenge. 171 F.3d at 806 (“Were the
District Court able to grant a credit for . . . the three . . .
charges separately, then we would see no error.”).
Therefore, Application Note 2 was inapplicable.
The Government’s third argument is equally unavailing.
It contends that, because the District Court erred in not
applying the obstruction of justice enhancement, it erred in
granting the acceptance of responsibility adjustment. That
is, in looking at the totality of the situation regarding
Williams’s acceptance of responsibility, the Government
asks us to consider Williams’s alleged efforts to obstruct
justice. This argument fails because the District Court
specifically found there was no obstruction of justice, and
the Government has not appealed that finding. We will not
now allow the Government to revisit that issue disguised in
a “totality of the circumstances” argument.
In sum, we find that, because Williams pled guilty to the
bank robbery charge, the reduction in his sentence for
acceptance of responsibility with regard to that count was
not improper, and, thus, we defer to the District Court.
* * *
Accordingly, we will affirm Williams’s conviction and not
disturb the sentence meted out by the District Court.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit