United States v. Andrews, Todd ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1974
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TODD ANDREWS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:01-CR-93—Theresa L. Springmann, Judge.
____________
ARGUED FEBRUARY 22, 2006—DECIDED MARCH 30, 2006
____________
Before FLAUM, Chief Judge, and WILLIAMS and SYKES,
Circuit Judges.
FLAUM, Chief Judge. A jury found Todd Andrews guilty
of bank robbery, 18 U.S.C. § 2113(a) and (d), and the use of
a firearm during a crime of violence, 18 U.S.C. § 924(c).
During his trial, the district court denied Andrews’ motion
to suppress evidence seized from his home without a search
warrant. After the close of evidence, Andrews moved for a
judgment of acquittal on the firearms charge. The district
court denied Andrews’ motion.
Andrews now appeals the district court’s decision to allow
the government to introduce evidence seized at his home.
He also appeals his conviction for the use of a firearm
during a crime of violence.
2 No. 05-1974
For the following reasons we affirm the judgment of the
district court.
I. Background
On the morning of November 28, 2001, two men entered
the Midwest America Federal Credit Union, West Jefferson
Street Branch, a federally insured credit union. The two
men carried guns and waved them at the employees. One
man stayed in the lobby area with the tellers, while another
demanded that the credit union manager, Susan Bolden,
remove money from the vault. In all, the suspects took over
$100,000.00 in cash. Immediately after the men left the
bank, Bolden called the police.
Members of the Federal Bank Robbery Task Force arrived
within a few minutes of the call. While being interviewed by
Detective Michael Vaughn, Bolden overheard a police radio
call stating that individuals matching the suspects’ descrip-
tion had been seen moving bags and clothing from a red
Cadillac to a white car. This prompted Bolden to tell Vaugh
about a red or maroon Cadillac she remembered. She
recalled that two black males would sometimes cruise
around the credit union parking lot early in the morning
before making transactions. Credit union employees
recorded their names. One of the named individuals was
incarcerated, and the other was Todd Andrews. Further
investigation revealed Todd Andrews was the registered
owner of a maroon Cadillac.
Bolden also stated that a previous manager, Faye Thomp-
son, had taken note of the red Cadillac. Bolden called
Thompson. Thompson recalled that in June 2001, two
individuals came into the credit union. One man went to a
teller and the other appeared to be counting the number of
surveillance cameras. Although both men were members of
the credit union, Thompson was concerned enough that she
wrote down the portion of the license plate she could
No. 05-1974 3
observe, “2305,” and a description of the red Cadillac. The
piece of paper on which Thompson wrote this information
was produced at trial. During the trial, Thompson identified
a picture of the automobile she had seen in June 2001. The
automobile identified was Andrews’ and its license plate
number was 2FE305.
Teller Alicia Jailor also remembered the red Cadillac. At
trial, she identified Andrews’ car as a vehicle she had
observed several times circling the building without making
a transaction. She also testified that two days before the
robbery, at around 5:00 in the evening, the same red
Cadillac conducted a transaction, then circled around the
building while an individual inside the vehicle pointed
towards a fence behind the building.
Detective Vaughn drove to 4220 Alverado Drive in Fort
Wayne, the registration address for Andrews’ red Cadillac.
Detective Vaughn observed Andrews leaving his house and
approaching the suspect vehicle. Andrews appeared nervous
and started his car. Detective Vaughn asked him to step out
of the vehicle. When Andrews exited the car, Detective
Vaughn noticed a large stack of money underneath the
armrest of the front seat and a large bulge in Andrews’
pocket. Vaughn asked Andrews what the bulge was and
Andrews produced a bundle five and ten dollar bills.
Detective Vaughn informed Andrews he was under
investigation in connection with a robbery and asked if
the detectives could interview him. Andrews was told he
was not under arrest, and at 10:30 a.m., he signed a written
Miranda waiver. Detectives Craig Wise, Mike Bennington,
and Mark Heffelfinger were also present. These three
detectives secured the outside of Andrews’ residence.
Detective Vaughn asked Andrews how he came to be in
possession of the cash in his pocket and in his car. His
initial response was that he came home from work at about
4 No. 05-1974
6:30 a.m. that morning and then left for the gym. Andrews
claimed that on the way to the gym he discovered his tire
was going flat and called a friend for help. Andrews told
Detective Vaughn that his friend met him and gave him two
stacks of money and a white plastic bag in payment for a
debt.
While Andrews was speaking to Detective Vaughn, the
other detectives proceeded toward the house. They rang the
bell, but no one answered the door. Detectives Heffelfinger
and Wise went around the back of the house and observed
smoke rising from a grill on Andrews’ second story balcony.
Detective Heffelfinger returned to Andrews and asked him
if anyone was home. Andrews told the detectives that no
one was in the house. Heffelfinger then asked if Andrews
was cooking something and if Andrews wanted him to put
out the fire. Andrews responded, “No, just don’t worry about
it, let it go.”
Heffelfinger and Wise became concerned that Andrews
might be destroying evidence. Wise climbed on top of a
fence surrounding Andrews’ backyard in order to look up
onto the balcony.1 From this vantage point, Wise observed
burning paper on an open grill. Wise then climbed onto
the balcony and realized that the burning papers had dollar
symbols on them and were actually money bands. The paper
was very fragile and badly burnt.
It was raining outside and the fire and water were
contributing to the rapid deterioration of the evidence.
Detectives Wise and Heffelfinger entered the balcony and
took a picture of the items on the grill, using a Polaroid
camera. In addition, they covered the grill with an umbrella
1
According to testimony, the fence surrounds the property and
is about six feet high. The balcony in question is also about
six feet off the ground.
No. 05-1974 5
and eventually decided to place the lid on the grill to protect
the evidence until crime scene technicians arrived.
During this time, Detective Vaughn continued to question
Andrews. In Andrews’ second version of events, his friend,
one Rusty James,2 brought another person to help with his
flat tire. Andrews claimed these two men fixed his tire and
then asked to use his car. He agreed and these two individ-
uals left in his automobile. Andrews claimed that when the
two men returned, they give him two stacks of money and
a bag full of money straps, which they told him to destroy.
This alleged exchange occurred at an apartment complex
near the credit union. Andrews also admitted that the two
individuals had several firearms in their car and were
armed when they borrowed his car.
Detective Vaughn confronted Andrews about a pair of
shoes that had been seen on the roof of a carport at the
same apartment complex where the alleged vehicle ex-
change had occurred. In response, Andrews gave a third
story. In this story, Andrews admitted that he had been in
contact with a Rusty James previously and had arranged to
meet him and another man at the apartment complex and
lend James his red Cadillac. Andrews claimed these men
told him they wanted to rob a bank, and he agreed to lend
them his car and his shoes. Andrews admitted that he knew
the car would be used to rob a bank. The two individuals
left with Andrews’ car and shoes, and when they returned
they gave him two stacks of paper money, a paper bag with
money straps, and his shoes. Andrews told Vaughn that he
no longer wanted the shoes and threw them onto the roof.
The other men left in a white car and Andrews went home,
placed the white bag full of money straps on the grill,
sprayed it with lighter fluid, and lit it on fire.
2
The police were unable to locate any individual named Rusty
James.
6 No. 05-1974
Andrews agreed to give a formal, taped interview. In his
fourth and final version of events, Andrews admitted that
he had arranged with said Rusty James and another man
to meet at a designated location. These two men would take
Andrews’ car and his shoes, rob the credit union, and then
come back. On the morning of the robbery, Rusty James
called him on the phone and they met at the designated
spot, transferred the shoes and the car, and Andrews waited
for the two men to return. Andrews also admitted that he
had seen firearms in the hands of the two men when they
entered his car. When the two men returned, they gave
Andrews some money, his shoes, and the money straps to
destroy. Andrews admitted he threw the shoes on the
carport because he thought they had been used in a rob-
bery.
The government charged Andrews with one count of bank
robbery, 18 U.S.C. § 2113(a) and (d) and one count of
unlawfully using a firearm during a crime of violence, 18
U.S.C. § 924(c). Andrews was prosecuted under an aiding
and abetting theory on both counts. The jury convicted him
of both counts. The district court sentenced Andrews to
57 months for the bank robbery and a consecutive term of
84 months on the firearm count.
II. Discussion
A. Motion to Suppress
Andrews moved to suppress any evidence related to the
money wrappers found on the grill. The district court denied
this motion, finding that the potential for the evidence to be
destroyed by either fire or rain constituted exigent circum-
stances justifying an exception to the warrant requirement.
When reviewing a district court’s denial of a motion to
suppress, this Court reviews factual findings for clear error
and legal questions de novo. United States v. Fields, 371
No. 05-1974 7
F.3d 910, 914 (7th Cir. 2004) (citing United States v.
Breland, 356 F.3d 787, 791 (7th Cir. 2004)). The question of
whether exigent circumstances, justifying a warrant-
less search, were present is a mixed question of fact and
law, reviewed under a de novo standard. United States v.
Richardson, 208 F.3d 626, 629 (7th Cir. 2000).
Although warrantless entries into a home are con-
sidered presumptively unreasonable and a violation of the
Fourth Amendment, a search based upon exigent circum-
stances may be constitutionally permissible.
[Warrantless] searches are constitutionally permis-
sible . . . where there is probable cause and exigent
circumstances create a compelling need for official
action and insufficient time to secure a warrant. United
States v. Marshall, 157 F.3d 477, 481-82 (7th Cir. 1998).
The government has the burden of proving that its
officers had an objectively reasonable basis for believing
such exigent circumstances existed at the time of the
warrantless entry. Id. at 482. Exigent circumstances
have been found where officers had an objectively
reasonable fear that evidence was about to be destroyed
or removed. Id.; Mincey v. Arizona, 437 U.S. 385, 394
(1978). The relevant focus is whether the facts, as they
appeared at the moment of entry, would lead a reason-
able, experienced agent to believe that evidence might
be destroyed or removed before a warrant could be
secured. Marshall, 157 F.3d at 482.
United States v. Rivera, 248 F.3d 677, 680-81 (7th Cir.
2001).
When reviewing a warrantless search to determine if
exigent circumstances existed, this Court conducts an
objective review, analyzing whether the government met its
burden to demonstrate that a reasonable officer had a
“reasonable belief that there was a compelling need to
act and no time to obtain a warrant.” United States v.
8 No. 05-1974
Saadeh, 61 F.3d 510, 516 (7th Cir. 1995) (citing United
States v. Foxworth, 8 F.3d 540, 544 (7th Cir. 1993), cert.
denied, 511 U.S. 1025 (1994)).
The district court found the following facts:
—The detectives knew that Andrews was a suspect in
the robbery of the Midwest America Federal Credit
Union earlier that morning and that his car may have
been involved.
—The detectives knew a “wad of bills” was found in
Andrews’ car.
—The detectives had seen “flames and smoke” coming
from a grill in the back of Andrews’ house.
—They had rung the doorbell and had been told by
Andrews that no one was home at his house.
—Andrews was asked if he wanted the fire to be put
out, to which he responded, “No, just don’t worry about
it, let it go.”
—While Detective Wise was on top of the fence, with his
hands on the railing of the balcony, he could observe
that paper was being burned on the grill.
—After climbing on the balcony to get a closer look,
Detective Wise could see that the papers being burned
were money wrappers.
The district court did not commit clear error in making
these factual findings. Each finding was well-supported
by testimonial evidence.
A reasonable officer, given this situation, would have had
probable cause to believe evidence would be de-
stroyed before a warrant could be obtained if the officers on
the scene did not intervene. “We repeatedly have held that
the potential that evidence . . . will be destroyed gives rise
No. 05-1974 9
to exigent circumstances.” Saadeh, 61 F.3d at 516 (citing
United States v. Robles, 37 F.3d 1260, 1263 (7th Cir. 1994);
United States v. Talkington, 843 F.2d 1041, 1044 (7th Cir.
1988)). Even ignoring the observations of Detective Wise,
the detectives had probable cause and a reasonable basis to
believe evidence was being destroyed.
In this case, the evidence was literally burning. The
warrant requirement does not compel police officers to
stand idly by while evidence is destroyed in front of them.
The exigent circumstances exception was created to avoid
just such a scenario.
B. Motion for a Directed Verdict
At the close of the government’s case, Andrews moved
for a judgment of acquittal as to the allegation that he aided
and abetted the use of a firearm during a crime of violence
in violation of 18 U.S.C. § 924(c). The district court denied
the motion. Andrews renewed his motion at the close of the
trial, and the district court again denied the motion.
Andrews appeals these denials, alleging that the govern-
ment did not present sufficient evidence for a jury to have
convicted him of this charge.
When evaluating the sufficiency of evidence presented
at trial to support a conviction, this Court inquires whether
“any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
States v. Tanner, 941 F.2d 574, 586 (7th Cir. 1991) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States
v. Garrett, 903 F.2d 1105, 1109 (7th Cir.), cert. denied, 498
U.S. 905 (1990)); see also United States v. Wallace, 212 F.3d
1000, 1003 (7th Cir. 2000). The record is reviewed in the
light most favorable to the government and all reasonable
inferences are drawn in the government’s favor. United
States v. Jones, 371 F.3d 363, 365 (7th Cir. 2004) (citing
10 No. 05-1974
United States v. Senffner, 280 F.3d 755, 760 (7th Cir.
2002)).
Although Andrews alleges that the evidence tying him
to the use of the firearm was “thin at best,” such evidence
is sufficient to uphold a jury’s verdict. A jury’s verdict
will only be reversed “if the record is devoid of evidence
from which the jury could reach a finding of guilt.” United
States v. Taylor, 226 F.3d 593, 596 (7th Cir. 2000) (citing
United States v. Johnson-Dix, 54 F.3d 1295, 1302 (7th Cir.
1995); United States v. Rosalez-Cortez, 19 F.3d 1210, 1215
(7th Cir. 1994)).
This Court has defined the elements necessary to be
held liable for a violation of 18 U.S.C. § 924(c) under an
aiding and abetting theory.
[T]he jury must find that the defendant knowingly and
intentionally assisted the principal’s use of a dangerous
weapon in a violent felony. See United States v. Woods,
148 F.3d 843, 848 (7th Cir. 1998). This requires finding
that (1) the defendant knew, either before or during the
crime, of the principal’s weapon possession or use; and
(2) the defendant intentionally facilitated that weapon
possession or use once so informed. See id. However,
“[m]erely aiding the underlying crime and knowing that
a gun would be used or carried cannot support a convic-
tion under 18 U.S.C. § 924(c).” Id.; see also United
States v. Bancalari, 110 F.3d 1425, 1430 (9th Cir. 1997);
United States v. Medina, 32 F.3d 40, 45 (2d Cir. 1994).
Taylor, 226 F.3d at 596-97; see also United States v.
Daniels, 370 F.3d 689, 691 (7th Cir. 2004).
This standard leaves the Court with two questions in the
instant case: (1) could a rationale trier of fact have found
that Andrews knew the men who borrowed his car to rob
the credit union possessed a weapon; and (2) could a
rationale trier of fact have found that Andrews facilitated
No. 05-1974 11
the use, carrying, or possession of the weapon after he
was informed of its existence?3
During a taped interrogation, which was presented to the
jury, Andrews admitted that he had seen the two
men holding guns in their hands prior to the robbery and
before they drove away in his car. We believe a rational jury
could find that this statement demonstrates Andrews’
knowledge that the two men who borrowed his car pos-
sessed firearms.
As to the second question, Andrews claims that he
did nothing to facilitate the use of the weapon and did
not know that James planned to use it in the robbery.
Taking the evidence in the light most favorable to the
government, a reasonable jury could certainly have found
that Andrews facilitated the use of a firearm by provid-
ing armed individuals transportation to and from a
bank robbery.
Escape is considered part of a robbery and the use of a
firearm during an escape is a violation of 18 U.S.C. § 924(c).
See United States v. Smith, 415 F.3d 682, 689 (7th Cir.
2005). Even if Andrews did not know that the individuals to
whom he lent his vehicle planned on using their weapons
while robbing the credit union (a dubious proposition at
best), ample evidence supports the conclusion that Andrews
was aware that firearms would be present in the car during
the getaway. This alone could serve as the basis for An-
drews’ conviction. See id.Although Andrews did not personally transport the
principals to the scene or provide them with their weapons,
he provided the vehicle to transport the principals and their
firearms. A reasonable jury could infer that the purpose of
Andrews’ vehicle was to provide a car that could not be
3
These questions closely parallel Jury Instruction 29 in the
instant case.
12 No. 05-1974
traced to the principals, thus aiding in the facilitation of the
crime. “An aider presumptively intends the natural and
probable consequences of his actions, and in this case, the
probable consequences of knowingly providing aid to an
armed bank robbery is the commission of an armed bank
robbery, not an unarmed bank robbery.” Woods, 148 F.3d at
847 (citation omitted); cf. Taylor, 226 F.3d at 597 (“a
reasonable jury could infer from the inherently violent
character of carjackings that [the defendant] either antici-
pated or knew that [his accomplice] was going to use a
weapon”). While James may never have directly told
Andrews that he intended to use a gun to rob the bank, a
specific declaration by James is unnecessary for a reason-
able jury to have found that Andrews facilitated the armed
robbery. Andrews’ assertion that he “had no reason to know
that James planned to take the gun with him when he
robbed the bank” defies logic.
Viewing the evidence in the light most favorable to the
government, a rational trier of fact could have believed that
Andrews was aware of the principals’ possession of firearms
and their intent to commit a bank robbery. This knowledge,
coupled with his decision to lend the principals his car and
shoes, thereby making the successful completion of the
crime more likely, is sufficient to support a conviction as an
aider and abettor. See United States v. Ortega, 44 F.3d 505,
508 (7th Cir. 1995).
III. Conclusion
For the above stated reasons, we AFFIRM the judgment of
the district court.
No. 05-1974 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-30-06