United States v. Brice ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5180
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JIMMY BRICE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00218-RJC-1)
Submitted: February 17, 2010 Decided: March 5, 2010
Before KING, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, Charlotte,
North Carolina, for Appellant. Edward R. Ryan, Acting United
States Attorney, Matthew Martens, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmy Brice was convicted of bank robbery, armed bank
robbery, possession of a firearm during a crime of violence, and
possession of a firearm by a convicted felon. He received an
aggregate sentence of 480 months in prison. Brice now appeals,
raising three issues. We affirm.
I
At trial, the district court overruled Brice’s
objections to the testimony of several witnesses about their and
others’ reactions during the robbery. Among other things, the
witnesses testified that they were “scared,” “nervous,” and
“shocked,” and a customer appeared “terrified.” Brice contends
that the introduction of such testimony was irrelevant and that,
given its cumulative and repetitive nature, the evidence was so
prejudicial and inflammatory as to warrant reversal. We review
the district court’s evidentiary ruling for abuse of discretion.
United States v. Blake, 571 F.3d 331, 346 (4th Cir. 2009), cert.
denied, --- S. Ct. ---, 2010 WL 58699 (U.S. Jan. 11, 2010) (No.
09-7788).
In a prosecution for bank robbery, the Government must
prove that the defendant took money or property from a bank “by
force and violence, or by intimidation.” 18 U.S.C. § 2113(a)
(2006). We have stated:
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The intimidation element of § 2113(a) is satisfied if
an ordinary person in the teller’s position reasonably
could infer a threat of bodily harm from the
defendant’s acts, whether or not the defendant
actually intended the intimidation. Under this test,
the subjective courageousness or timidity of the
victim is irrelevant; the acts of the defendant must
constitute intimidation to an ordinary, reasonable
person.
United States v. Ketchum, 550 F.3d 363, 367 (4th Cir. 2008)
(internal quotation marks and citations omitted).
We conclude that the district court did not abuse its
discretion in permitting the testimony at issue. Courts
routinely admit such testimony as probative of intimidation
under § 2113(a). See, e.g., United States v. Burnley, 533 F.3d
901, 903 (7th Cir. 2008) (“How the teller who encountered the
defendant felt . . . is probative of whether a reasonable person
would have been afraid under the same circumstances, even though
the ultimate standard is an objective one.”) (internal quotation
marks and citations omitted); United States v. Caldwell, 292
F.3d 595, 596 (8th Cir. 2002) (“Whether the defendant’s actions
did induce fear . . . is not conclusive, but is probative of
whether his actions were objectively intimidating.”). We agree
with this reasoning and conclude that the testimony in question
was properly admitted as probative of intimidation.
Nor was the testimony unduly prejudicial or
inflammatory. Other testimony at trial presented objective
evidence of possible intimidation: Brice wore a ski mask,
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carried a weapon, and shouted and used profanity and abusive
language. The evidence to which Brice objects — that certain
persons were “terrified” — is nonetheless relevant in
demonstrating subjective intimidation. Both forms of evidence
assist the jury in determining whether a reasonable person would
likely be intimidated, and the exclusion of either form would
impede the jury’s determination. We find the presentation of
such evidence to be neither unduly prejudicial nor inflammatory.
II
Brice next contends that a supplemental instruction on
Count Three (possession of a firearm during a crime of violence)
constructively amended the indictment.
Count Three charged that Brice,
during and in relation to a crime of violence, that
is, bank robbery, . . . did use, carry, and brandish a
firearm, and in furtherance of said crime, did
knowingly possess said firearm, that is, a handgun, in
violation of Title 18, United States Code Section
924(c)(1).
When the court instructed the jury on this count, the court read
the charge verbatim, read the pertinent portion of the statute,
and instructed on the elements of the offense. During
deliberations, the jury asked for clarification of the phrase
“and in furtherance of said crime” and asked if this applied
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only to occurrences inside the bank. In response, the district
court gave the following supplemental instruction:
[T]he definition that I gave you earlier was that, to
prove the defendant possessed a firearm in furtherance
of a crime of violence, the Government must prove that
the defendant possessed the firearm that furthers,
advances, or helps forward the crime of violence.
You asked a secondary question; does this only apply
to what occurred inside the bank?
The short answer to that is “no.” . . . [T]he escape
phase . . . is part of the crime of bank robbery.
“A constructive amendment to an indictment occurs when
. . . the government (usually during its presentation of
evidence and/or its argument), the district court (usually
through its instructions to the jury), or both, broadens the
possible bases for conviction beyond those presented to the
grand jury.” United States v. Floresca, 38 F.3d 706, 710 (4th
Cir. 1994). “A constructive amendment is a fatal variance
because the indictment is altered to change the elements of the
offenses charged, such that the defendant is actually convicted
of a crime other than that charged in the indictment.” United
States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999) (internal
quotation marks and citation omitted). A constructive amendment
is error per se, and, given the Fifth Amendment right to be
indicted by a grand jury, “must be corrected on appeal even when
not preserved by objection.” Floresca, 38 F.3d at 714.
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When considering a constructive amendment claim, “it
is the broadening [of the bases for a defendant’s conviction]
that is important - nothing more.” Id. at 711. The key inquiry
is whether the defendant has been tried on charges other than
those made in the indictment. See id.In United States v. McCaskill, 676 F.2d 995 (4th Cir.
1982), we determined that a defendant who was unarmed but who
drove the getaway car was properly convicted of armed robbery as
an aider and abettor in part because “[t]he escape phase of a
crime is not . . . an event occurring after the robbery. It is
part of the robbery.” Id. at 1000 (internal quotation marks and
citation omitted). More recently, the Third Circuit observed
that case law within the courts of appeals consistently treats
escape as part of bank robbery. United States v. Williams, 344
F.3d 365, 372-73 (3rd Cir. 2003).
Brice was charged in Count Three with possession of a
firearm in furtherance of a crime of violence. Because the
crime of violence — the bank robbery — continued during Brice’s
escape, the supplemental instruction did not constructively
amend the indictment by changing the elements of the offense
against which he had to defend.
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III
Brice’s final claim is that the Government
consistently advanced the theory that he possessed the firearm
while in the bank, thereby constructively narrowing the
indictment, so that he was forced to forego any defenses he
might otherwise have asserted. In United States v. San Juan,
545 F.2d 314 (2nd Cir. 1976), the jury instruction permitted a
broader theory of guilt than the theory unequivocally advocated
for and defended against at trial. Here, the Government did not
unequivocally advance one theory of guilt to the exclusion of
all others. Indeed, in both opening and closing arguments, the
Government referred to Brice’s possession of the gun both inside
the bank and during the escape phase of the robbery. Similarly,
the Government elicited testimony that Brice displayed the gun
while in the bank and that the gun was discovered inside a
backpack Brice was carrying when he was captured. We hold that
there was no constructive narrowing of the indictment.
IV
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not
significantly aid the decisional process.
AFFIRMED
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