United States v. Smith, Virgil ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1771
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
VIRGIL SMITH,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:03-CR-6—Theresa L. Springmann, Judge.
____________
ARGUED OCTOBER 28, 2004—DECIDED JULY 18, 2005
____________
Before RIPPLE, WOOD, and EVANS, Circuit Judges.
WOOD, Circuit Judge. On December 9, 2002, Virgil Smith
and a number of his associates decided to rob a bank.
Before too long, he was caught, indicted, and convicted by
a jury on one count of aiding and abetting an armed bank
robbery, in violation of 18 U.S.C. § 2113(a) and (d) and 18
U.S.C. § 2, and one count of aiding and abetting in the use
of a firearm, during and in relation to the bank robbery, in
violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. In this
appeal, he challenges both the conviction and the 221-
month sentence he received. We affirm the conviction, but
2 No. 04-1771
we order a limited remand of Smith’s sentence in accor-
dance with United States v. Paladino, 401 F.3d 471, 483-84
(7th Cir. 2005).
I
On the fateful day, Smith, along with Rashien Chiles,
Melvin Woods, Jernard Freeman, and DeMarcus White,
decided to rob the Bank One on Lima Road in Fort Wayne,
Indiana. According to Smith’s accomplices, Smith outlined
exactly how the group should conduct the robbery. He also
provided a Desert Eagle handgun and a stolen vehicle to
use to drive to the bank. The group met at a prearranged
location near the bank just before the robbery. Smith pro-
vided masks for Woods and White. When the group arrived
at the bank, Smith and Freeman waited outside, while the
other three entered the bank, equipped with a .45 caliber
handgun, to steal the money. Freeman’s job was to serve as
getaway driver for the actual robbers; Smith’s was to
distract and obstruct the police from reaching the getaway
car.
The heist did not go as planned, in large ways and small.
Chiles wound up in Smith’s car with him; those two initially
eluded capture. The police quickly apprehended Freeman,
Woods, and White. During a search of their getaway car,
the officers found a Desert Eagle handgun in the trunk; the
.45 caliber handgun used during the robbery never turned
up. Ultimately, Freeman, Woods, and White pointed a finger
at Smith, claiming that he had recruited them, formulated
the robbery plan, provided the stolen blue car, the masks,
and both of the guns—the .45 used during the robbery and
the Desert Eagle that was in the trunk of the car.
II
Smith presents four arguments for our consideration: (1)
the district court violated his right to a speedy trial as
No. 04-1771 3
guaranteed in the Speedy Trial Act, 18 U.S.C. § 3161; (2)
the court erred when it refused to allow him to change his
plea of not guilty on count one and instead to plead guilty
to the lesser included offense of unarmed bank robbery; (3)
the court abused its discretion in admitting a Desert Eagle
handgun into evidence; and (4) the court improperly in-
structed the jury that “[e]scape is part and parcel of bank
robbery.” We find no reversible error on any of these points.
A
Logically, the first question is whether Smith’s rights
under the Speedy Trial Act were violated and if so, whether
any such error affected Smith’s substantial rights. If so,
then the indictment would have to be dismissed and the
government would have to start over again, if it can. See 18
U.S.C. § 3162(a)(2). We review a district court’s interpreta-
tion of the Speedy Trial Act de novo and its factual findings
for clear error. United States v. Saleno, 108 F.3d 730, 734
(7th Cir. 1997). The Speedy Trial Act requires that a
defendant be brought to trial within 70 days from the date
the indictment is filed or the date when the defendant
appears before a judicial officer where the charge is pend-
ing, whichever is later. 18 U.S.C. § 3161(c)(1); see also
United States v. Henderson, 476 U.S. 321, 322 (1986). The
statute excludes various delays from the calculation of the
70- day period, including any delays that result from filing
pretrial motions, § 3161(h)(1)(F), and time, not to exceed 30
days, when a proceeding concerning the defendant is
“actually under advisement by the court,” § 3161(h )(1)(J).
This case implicates the latter of these exclusions: when
a proceeding concerning Smith was under advisement. After
some time had elapsed that counted against the clock,
Smith filed a motion to plead guilty to unarmed bank
robbery on July 22, 2003. At that point, the district court
set a briefing schedule on the motion, under which the
4 No. 04-1771
government was required to respond to Smith’s motion by
August 22, Smith had until September 8 to reply, and the
government had until September 19 to file a sur-reply.
Smith missed his deadline by one day, filing his reply on
September 9; the government filed its sur-reply brief a week
late, on September 26. The district court denied the motion
on November 17. Four days later, on November 21, Smith
moved to dismiss the indictment for speedy trial violations
and to continue the trial. The court denied that motion on
December 10, and the trial began on December 16.
Our first question is whether the court erred in finding
that the statutory speedy trial standards were not violated
here. As we have reconstructed it, the periods were as
follows (all dates are in 2003):
Feb. 26: Indictment: clock starts
Feb. 28: Arraignment; pretrial motions due Mar. 31
April 1: Clock resumes (1 day)
April 8: Smith motion to extend discovery (+7 days)
June 9: New deadline for motions; clock resumes
July 22: Smith motion to plead guilty (+42 days)
Sept. 9: Smith reply, 1 day late
Sept. 18: Government sur-reply due; not filed
Sept 26: Government sur-reply filed
Nov. 17: Court denies Smith’s motion; government
files pretrial motion in limine, stopping clock
Nov. 21: Smith files motion to dismiss on Speedy Trial
ground
Up until July 22, when 50 countable days had elapsed,
the parties basically agree on the proper way to count the
time. They part company over the question whether the
clock started running on the day after the government’s sur-
No. 04-1771 5
reply brief was due, or if it started running again on the day
after the brief was actually filed. After the briefing was
complete on Smith’s motion, the statute gave the court 30
non-countable days in which to issue its decision. 18 U.S.C.
§ 3161(h)(1)(J). Under Smith’s view, that date was October
18 (30 days after the government’s brief was due), and the
clock started running again on October 19. Under the
government’s view, that date was October 26, and the clock
started running again on October 27. Once the clock
resumed, only 20 days remained. According to Smith, that
period expired on November 8. According to the govern-
ment, that period expired on November 17 (because Novem-
ber 15, which would otherwise have been the date, fell on a
Saturday in 2003), which was the date when the court ruled
on the motion. The remainder of the time between Novem-
ber 17 and the start of the trial was properly excluded
because the motion in limine was under advisement.
If Smith is correct, and the 30-day period for the court’s
consideration of the motion began the day after the gov-
ernment’s sur-reply brief was due, then he is also correct
that time ran out for his trial. If the government is correct
that the actual date of its filing is the critical one, then it
avoided a speedy trial violation by the skin of its teeth. The
question of the proper date of reference is one that this
court has already considered in United States v. Thomas,
788 F.2d 1250 (7th Cir. 1986). In that case, we held, on
more extreme facts than we face here (because delays
caused by the defendant were partly responsible for the
prosecutor’s late filing) that the period of advisement begins
“as soon as the prosecutor’s response is due, no matter
when the prosecutor filed.” Id. at 1259; see also
United States v. Baskin-Bey, 45 F.3d 200, 203 (7th Cir.
1995) (“[T]ime the judge gives for the government’s re-
sponse is automatically excludable up to the scheduled date
of the response.”). Smith is therefore correct that the speedy
trial clock ran out well before the court ruled on his motion.
6 No. 04-1771
Smith faces one more hurdle, however, before he can
obtain relief on this ground. Even though district courts
have an unconditional obligation to enforce the Speedy Trial
Act, if the district court errs and the case proceeds to
judgment, then the harmless error rule applies at the
appellate level. See United States v. Zedner, 401 F.3d 36, 47
(2d Cir. 2005); see generally Neder v. United States, 527
U.S. 1 (1999); 28 U.S.C. § 2111 (“On the hearing of any
appeal or writ of certiorari in any case, the court shall give
judgment after an examination of the record without regard
to errors or defects which do not affect the substantial rights
of the parties.”). As the Second Circuit explained in Zedner,
“[t]here are excellent reasons to distinguish between errors
under the Speedy Trial Act that are harmless and those
that are harmful.” 401 F.3d at 47. The Speedy Trial Act
serves an important purpose, and we have no doubt that a
violation could prejudice a defendant in certain circum-
stances. Nevertheless, Smith has pointed to no prejudicial
event that occurred aside from the passage of six extra
days, or a little more than an extra month, depending on
one’s perspective. He was able to present evidence and
defend the government’s accusations at his trial without
any discernible problems caused by this minor delay. We
find that the Speedy Trial Act violation did not affect
Smith’s substantial rights.
B
We now turn to Smith’s claim that the court should have
allowed him to change his plea from “not guilty” on count
one to “guilty” on the lesser included offense of unarmed
bank robbery. In its order denying Smith’s motion to this
effect, the court reasoned that FED. R. CRIM. P. 10(a)(3),
which governs arraignments, requires the defendant “to
plead to the indictment or information.” (alteration in orig-
inal). The court concluded that “[t]he rule explicitly states
No. 04-1771 7
that a defendant must plead to the charge in the indictment
or information. He does not have the option of pleading to a
lesser included offense.” (alteration in original). In addition,
the court observed that FED. R. CRIM. P. 11, which governs
pleas, allows for only “three types of pleas—not guilty,
guilty, or (with the court’s consent) nolo contendre— all of
which must be in response to the actual charges brought by
the government.” Smith believes that had he been allowed
to change his plea to guilty for unarmed bank robbery and
then to proceed to trial on the charge for armed bank
robbery, he would have received a two-point reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1 to his
guideline calculation.
We put to one side Smith’s optimistic assumption about
his chances for an acceptance of responsibility adjustment
under those circumstances and focus on his argument about
the plea. “A defendant has no absolute right to have a court
accept his guilty plea, and a court ‘may reject a plea in [the]
exercise of sound judicial discretion.’ ” United States v. Kelly,
312 F.3d 328, 330 (7th Cir. 2002) (quoting Santobello v. New
York, 404 U.S. 257, 262 (1971)). “Nevertheless, a court
cannot act arbitrarily in rejecting a plea . . . and must
articulate on the record a ‘sound reason’ for the rejection.”
Id. (internal citations omitted).
The government opposed Smith’s motion in the district
court “because it d[id] not wish to be barred from proceed-
ing against the defendant on the greater included offense of
[armed bank robbery].” It feared that Brown v. Ohio, 432
U.S. 161 (1977), which held that “[w]hatever the sequence
may be, the Fifth Amendment forbids successive prosecu-
tion and cumulative punishment for a greater and lesser
included offense,” id. at 169, would bar it from proceeding
on the greater charge here once Smith pleaded to the lesser
charge. On appeal, the government continues to assert that
if the charge for armed robbery had been dismissed without
prejudice (say for a violation of the Speedy Trial Act) it
8 No. 04-1771
would be barred from proceeding in a second prosecution if
Smith had already pleaded guilty to the lesser included
offense. Smith (in an odd role reversal) argues that no such
problem would arise. He relies on Ohio v. Johnson, 467 U.S.
493 (1984), which held that when a defendant pleads guilty
over the government’s objection to the lesser included
offense, the defendant is considered voluntarily to have
severed the charges and is not at that point free to use
double jeopardy “as a sword to prevent the State from
completing its prosecution,” id. at 502.
Interesting as this double jeopardy debate is, we have no
need to resolve it here. The district court was well within its
discretion to insist that Smith enter a plea to the charges he
was facing, not to a lesser included offense. This is so even
if after a full trial Smith might have been entitled to
request a jury instruction on lesser included offenses,
depending on the evidence that was offered. See
FED. R. CRIM. P. 31(c); Keeble v. United States, 412 U.S. 205,
208 (1973). Furthermore, Smith’s assumption that splitting
the baby in the way he proposed would have entitled him to
an acceptance of responsibility adjustment borders on the
frivolous. The commentary to § 3E1.1 of the Guidelines
explains that “[t]his adjustment is not intended to apply to
a defendant who puts the government to its burden of proof
at trial by denying the essential factual elements of guilty,
is convicted, and only then admits guilt and expresses
remorse.” Cmt. 2. We therefore reject his challenge to the
court’s decision on his motion to plead guilty to the lesser
offense.
C
Smith’s next argument relates to the admission of
evidence at the trial—in particular to the district court’s
decision to admit the Desert Eagle handgun into evidence.
That was the gun that was found in the trunk of one of the
No. 04-1771 9
getaway cars. Smith correctly points out that the Desert
Eagle was not the gun that was used inside the bank. He
argues that it was therefore not used, possessed, or carried
during the commission of the crime. Going further, he also
asserts that it “was not available for use during the geta-
way” because it was located at all times in the trunk of one
of the getaway cars and thus was not immediately accessi-
ble. Taken together, he argues, these facts show that the
Desert Eagle had no relevance to the crime and thus
inadmissible, FED. R. EVID. 402, or at least that whatever
relevance it may have had was far outweighed by its preju-
dicial impact, FED. R. EVID. 403. We review the district
court’s evidentiary rulings for an abuse of discretion. United
States v. Thompson, 359 F.3d 470, 475 (7th Cir. 2004).
According to John Phinney, one of the ATF agents who
testified at trial, Smith admitted that he provided the
Desert Eagle for the bank robbery and instructed his co-
defendants on how to use it. Even though the gun was lo-
cated in the trunk of one of the getaway cars, its presence
was part of their plan for escape, and with a simple stop of
the car it could have been used to ward off the police.
United States v. Wilkins, 659 F.2d 769, 773 (7th Cir. 1981)
(stating that “[t]he getaway is part of the robbery . . .”). See
also United States v. Williams, 344 F.3d 365, 375-76 (3d Cir.
2003), cert. denied 124 S. Ct. 1184 (2004) (defendant
violated § 924(c) when the gun was not brought into the
bank but was left in the getaway car).
In this case, Smith carried the Desert Eagle in the course
of his preparations for the robbery. It was therefore rele-
vant to the crime of aiding and abetting in armed robbery
for which Smith was convicted, as well as his § 924(c)
charge. Whether, as Rule 403 inquires, its probative value
outweighed any prejudice that its admission might cause
was a question for the district judge in the first instance.
We see no abuse of discretion in the decision to admit the
gun.
10 No. 04-1771
D
Smith’s last challenge to his conviction relates to one of
the court’s instructions to the jury. In his view, instruction
number 29 misled the jury by oversimplifying the elements
required for the jury to convict him of armed bank robbery.
The court told the jury that: “Escape is part and parcel of a
bank robbery.” Smith suggests that the jury may have
erroneously inferred from this statement the notion that
escape was the only element needed to convict him of bank
robbery.
We review a district court’s instructions to the jury for an
abuse of discretion, United States v. Messino, 382 F.3d 704,
711 (7th Cir. 2004) (citation and internal quotation marks
omitted), unless the instructions are based on an error of
law in which case our review is de novo, United States v.
Smith, 308 F.3d 726, 740 (7th Cir. 2002). “To win a new
trial based on an erroneous jury instruction,” Smith “must
show both that the instructions did not adequately state the
law and that the error was prejudicial to [him] because the
jury was likely to be confused or misled.” Boyd v. Illinois
State Police, 384 F.3d 888, 894 (7th Cir. 2004).
To determine whether Smith suffered prejudice, we “con-
sider[ ] the instructions as a whole, along with all of the
evidence and arguments,” to see whether “the jury was mis-
informed about the applicable law.” Id. In our review, we
assume that juries follow the instructions they were given.
Weeks v. Angelone, 528 U.S. 225, 234 (2000).
Perhaps the most important point to make in response to
this argument is the well-worn one that jury instructions
must be evaluated as a whole. If the district court had
limited its instructions to the one sentence Smith high-
lights, we might have had a problem. But, not surprisingly,
it did no such thing. Instead, immediately before the in-
struction Smith criticizes, the court gave two instructions
laying out the elements required for the offense of aiding
No. 04-1771 11
and abetting an armed bank robbery, in violation of 18
U.S.C. § 2113(d) and the offense of unarmed bank robbery,
in violation of 18 U.S.C. § 2113(a). We presume that juries
follow their instructions, and thus we are confident that the
jury’s instructions were not objectionable.
There was also no problem in the court’s decision to
inform the jury that the escape phase of the robbery was
relevant to its deliberations. We have previously upheld the
convictions of defendants whose only participation in a
bank robbery was to assist in the getaway. See, e.g., United
States v. Rawlings, 341 F.3d 657, 659 (stating that the
driver of the getaway car “was a full-fledged member of the
conspiracy [to commit bank robbery]”); Wilkins, 659 F.2d at
773 (stating that “[t]he getaway is part of the robbery;
therefore, the driver of the getaway car is a principal in the
crime of robbery and not a mere accomplice after the fact.”);
see also United States v. Donaby, 349 F.3d 1046, 1054 (7th
Cir. 2003) (commenting favorably on other courts’ decisions
that found the “factual and temporal interconnectedness of
bank robbery and flight” in a case affirming a district
court’s order of restitution for damage to a police car that
was damaged during the defendant’s escape). Other circuits
have explicitly found that the escape phase of a bank
robbery is a continuation of the crime. See, e.g., Williams,
344 F.3d at 372 (“Our case law has consistently treated
escape as part and parcel of a bank robbery.”); United
States v. Taylor, 322 F.3d 1209, 1212 (9th Cir. 2003) (“We
have held [ ]that the escape phase of a crime is still part of
the commission of the crime.”).
This does not mean that proof of getaway efforts is a
distinct element of the crime of bank robbery. Many bank
robbers are caught red-handed and never have the chance
to escape, and they are rightly convicted of violating the
law. It merely means that as a matter of fact, other rob-
beries do have an escape phase, and defendants are ac-
12 No. 04-1771
countable for actions they take at that point. The Third
Circuit put it well in the opinion on which the district court
was relying:
[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 rob-
bery. 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 defen-
dant following his or her physical departure from the
bank.
Williams, 344 F.3d. at 376 n.5. Perhaps an instruction that
had captured more of the detail of this passage would have
been better. Nevertheless, even without a more complete
explanation of how escape relates to the crime of bank
robbery, Smith was not prejudiced by the court’s instruction
that “[e]scape is part and parcel of a bank robbery.” Escape
can be such a part, and the instructions taken as a whole
correctly told the jury what it had to find to convict.
III
Last, we address the question of Smith’s sentence. The
sentencing proceedings here took place before the Supreme
Court handed down its decision in United States v. Booker,
125 S. Ct. 738 (2005). The district court calculated Smith’s
Guidelines offense level at a Level 26 with a Criminal
History Category V. This yielded a sentencing range be-
tween 110 and 137 months. The district court sentenced
Smith at the top of the range to 137 months’ imprisonment
on count one and a mandatory consecutive term of 84
months’ imprisonment for his conviction on count two,
which is the statutory minimum for his § 924(c) violation,
for a total of 221 months. Although the court had no
discretion over the 84-month component of the sentence, the
137-month part was calculated on the assumption that the
No. 04-1771 13
Guidelines were mandatory. Smith did not preserve any
objection to this procedure at trial, and thus our review is
for plain error only. We therefore are ordering a LIMITED
REMAND to the district court under the procedures detailed
in Paladino, so that it can let us know whether it is inclined
to change the 137-month part of the sentence now that the
Sentencing Guidelines are advisory. We retain jurisdiction
over the appeal pending this inquiry. In all other respects,
we AFFIRM Smith’s conviction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-18-05