United States v. Larry Whitfield , 695 F.3d 288 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 10-5217
LARRY WHITFIELD,
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.
(3:09-cr-00009-RJC-1)
Argued: May 18, 2012
Decided: August 22, 2012
Before WILKINSON, NIEMEYER, and KING,
Circuit Judges.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge King wrote the opinion, in which Judge
Wilkinson and Judge Niemeyer joined.
2 UNITED STATES v. WHITFIELD
COUNSEL
ARGUED: Thomas Norman Cochran, FEDERAL DEFEND-
ERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee. ON BRIEF: Angela G. Parrott, Act-
ing Executive Director, Matthew R. Segal, Allison Wexler,
FEDERAL DEFENDERS OF WESTERN NORTH CARO-
LINA, INC., Asheville, North Carolina; Kevin A. Tate, Erin
K. Taylor, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Char-
lotte, North Carolina, for Appellee.
OPINION
KING, Circuit Judge:
Larry Whitfield appeals his convictions and aggregate life-
plus-sixty-month sentence in the Western District of North
Carolina for his role in a botched bank robbery and a mid-
escape home intrusion, which ended tragically in the death of
an innocent elderly woman. Whitfield asserts four appellate
contentions, only one of which has merit — that the district
court erred in instructing the jury on an offense not charged
in the indictment. As explained below, we are constrained to
vacate Whitfield’s conviction and mandatory life sentence on
the uncharged offense and remand for an amendment of the
judgment and resentencing, while affirming the balance of his
convictions.
UNITED STATES v. WHITFIELD 3
I.
A.
On the morning of September 26, 2008, Whitfield and his
partner-in-crime Quanterrious McCoy — armed with a .357
handgun and an AK-47 assault rifle — entered the front door
of the Fort Financial Credit Union in Gastonia, North Carolina.1
As they crossed the threshold into the credit union’s small
vestibule, a metal detector triggered an automatic locking
mechanism on the inside lobby doors. Whitfield shook the
bulletproof doors, but the lock held fast, preventing entry into
the lobby of the credit union. As a result, Whitfield and
McCoy fled in their car in an eastwardly direction towards
Charlotte on Interstate 85. Alerted to the attempted bank rob-
bery, a Gastonia police officer began pursuing a white Ford
Crown Victoria with two occupants matching the culprits’
descriptions. Because it was raining and the Gastonia officer
was fearful of an accident, he withdrew from the high-speed
pursuit. The officer was about to exit the interstate when he
noticed that the Crown Victoria had left the highway and was
stuck in the median. Whitfield and McCoy had fled the vehi-
cle on foot into the woods, ditched their firearms, made their
way to nearby Belmont, North Carolina, and separated from
one another.
McCoy was apprehended after being found hiding under a
van. Whitfield opted to forcibly enter the residence of a
woman named Tina Walden, who soon thereafter returned
from work. When Walden sought to unlock her door and enter
her home, she realized the lock was jammed and noticed a
footprint on the door. While Walden was attempting to call
her husband by cell phone, Whitfield opened the door from
inside the residence, brandished a kitchen knife, and
1
We recite the relevant facts in the light most favorable to the govern-
ment, as the prevailing party at trial. See United States v. Jefferson, 674
F.3d 332, 341 n.14 (4th Cir. 2012).
4 UNITED STATES v. WHITFIELD
instructed Walden to "shut up and come in." J.A. 532.2
Instead, Walden turned and ran. Whitfield then fled from
Walden’s home, discarding the knife along his escape route
to the nearby home of Herman and Mary Parnell. He entered
the Parnell residence through the unlocked front door and
encountered Mrs. Parnell, who was home alone. Mrs. Parnell
immediately became very upset and began to cry. Meanwhile,
Whitfield used his cell phone to text message a friend, Tame-
cia Sanders, notifying her that he was in trouble and asking
for a ride. Sanders spoke on the phone with Whitfield several
times during the approximate twenty-mile drive from her
location on the east side of Charlotte to the Parnell residence.
During their final conversation, Sanders informed Whitfield
that she needed directions in order to find him. At that time,
Sanders overheard Whitfield tell Mrs. Parnell, "[M]a’am, just
calm down. I’m probably more scared than you are, and I’m
actually just trying to leave." See id. at 673. Sanders also
spoke on the phone directly with Mrs. Parnell. According to
Sanders, Mrs. Parnell sounded afraid, though she calmed her-
self enough to give Sanders directions.
When Whitfield got back on the phone with Sanders, he
said that "it looked like [Mrs. Parnell] wasn’t breathing." J.A.
680. Sanders also overheard Mrs. Parnell say that she was
short of breath, to which Whitfield inquired whether she had
"any aspirin or anything that she usually takes [and] if he
could get her a glass of water." Id. at 753. Sanders suggested
that Whitfield "step outside in the hallway," "give [Mrs. Par-
nell] a minute," and call an ambulance. Id. at 680. Whitfield
did not call the ambulance, but remained on the phone with
Sanders, remarking to her sporadically that Mrs. Parnell
appeared to be unconscious and may have died. Between 3:30
and 4:00 p.m., a neighbor of the Parnells, Joshua Smith, an
off-duty police officer with the nearby Town of Cramerton,
called the Parnells to warn that one of the bank robbers had
2
Citations herein to "J.A.___" refer to the contents of the Joint Appen-
dix filed by the parties in this appeal.
UNITED STATES v. WHITFIELD 5
been seen in the area. After repeatedly receiving a busy signal
or no answer, Smith walked to the Parnell house, knocked,
and rang the door bell. When no one answered, he returned
home. Smith’s efforts nonetheless prompted Whitfield to end
his phone call with Sanders and flee the Parnell home through
its back door. Whitfield was soon discovered hiding nearby,
and he was arrested.
When Herman Parnell returned home through the back
door that Whitfield had left ajar, he found his wife motionless,
sitting in a chair at his desk in the computer room. Although
Mr. Parnell sought to resuscitate Mrs. Parnell and called 911
for assistance, she was never revived and was pronounced
dead, having suffered a heart attack. During Whitfield’s ques-
tioning by the police on the evening of September 26 and the
early morning of September 27, he signed two statements
confessing to the Belmont home break-ins and another state-
ment confessing to the attempted robbery of the credit union.
B.
1.
On January 23, 2009, the grand jury in Charlotte returned
a four-count indictment against Whitfield and McCoy, charg-
ing them with attempted bank robbery, in contravention of 18
U.S.C. §§ 2113(a) and 2 (Count One); conspiracy to carry a
firearm during an attempted bank robbery, in violation of 18
U.S.C. § 924(o) (Count Two); and carrying a firearm during
an attempted bank robbery, in contravention of 18 U.S.C.
§§ 924(c) and 2 (Count Three). Count Four, naming Whitfield
only, charged him with violating 18 U.S.C. § 2113(e), which
provides, in relevant part, that
[w]hoever, . . . in avoiding or attempting to avoid
apprehension for the commission of [any] offense
[defined in this section], . . . kills any person, or
forces any person to accompany him without the
6 UNITED STATES v. WHITFIELD
consent of such person, shall be imprisoned not less
than ten years, or if death results shall be punished
by death or life imprisonment.
18 U.S.C. § 2113(e).
As discussed further infra, § 2113(e) encompasses three
alternative offenses pertinent to this case — penalizing a
defendant who, in evading apprehension for an attempted
bank robbery: (1) "kills any person" (the "killing offense"); or
(2) "forces any person to accompany him without the consent
of such person" (the "forced accompaniment offense"); or (3)
"forces any person to accompany him without the consent of
such person" and "death results" (the "death results offense").3
Count Four of the indictment, however, alleged only two of
the three alternative offenses, charging:
LARRY WHITFIELD did knowingly enter and
attempt to enter Fort Financial Credit Union . . . with
intent to commit therein a felony affecting that credit
union, in violation of 18 U.S.C. § 2113(a), . . . as set
forth in COUNT ONE of this Indictment; and in
avoiding or attempting to avoid apprehension for
said offense, forced M.P. to accompany him without
her consent, and killed M.P.
J.A. 14. Thus, the allegations of Count Four were limited to
the first and second alternative § 2113(e) offenses — the kill-
ing offense and the forced accompaniment offense — and
failed to include the third, the death results offense.
On September 16, 2009, Whitfield moved to dismiss Count
3
In these circumstances, the forced accompaniment offense is a lesser
included offense of the death results offense, in that the elements of the
former "must be included within but not, on the facts of the case, be com-
pletely encompassed by the greater" death results offense. See Sansone v.
United States, 380 U.S. 343, 350 (1965).
UNITED STATES v. WHITFIELD 7
Four of the indictment, asserting that § 2113(e) was unconsti-
tutionally vague and that the killing offense could only be
properly charged if the prosecution were required to prove
that Whitfield intentionally caused the death of Mrs. Parnell.
The government opposed the dismissal motion and argued the
elementary principle that it had "charged ‘killing’ and ‘forced
accompaniment’ in the conjunctive, but [was entitled to]
prove them in the disjunctive." See J.A. 23. The government
also proposed that the word "kills" in § 2113(e) be understood
from its basic dictionary definition, which does not require
specific intent, and invoked the statute’s (unindicted) "if death
results" provision as reinforcement of such a meaning. See id.
at 30-31. On October 21, 2009, the district court validated the
constitutionality of § 2113(e) and denied Whitfield’s motion
to dismiss Count Four.
2.
On October 9, 2009, about five weeks before trial, Whit-
field moved to suppress his post-arrest confessions to the two
Belmont home break-ins and the attempted bank robbery.
Whitfield’s confessions to the Belmont home break-ins had
been elicited during what the district court would designate as
the "first part" of the police interview, while the attempted
bank robbery confession had been obtained at the conclusion
of the "second part" of the interview.
On November 9, 2009, the court conducted an evidentiary
hearing on the suppression motion, receiving evidence from
Gastonia Police Detective Tony Wilson and Gaston County
Police Detective Michael Sumner. Following argument from
counsel, the court orally denied Whitfield’s motion. In so rul-
ing, the court observed that it had reviewed the video record-
ing of the two-part interview and listened carefully to the
evidence of the detectives, which it found "credible." See J.A.
172. From the evidence, the court perceived that Whitfield,
though "very young, and less experienced," was "conversa-
tional," "comfortable," and "intelligent" enough to be "capa-
8 UNITED STATES v. WHITFIELD
ble of deciding when to provide information and when not
to." Id. at 173. Accordingly, the court concluded that, based
on "the totality of circumstances," Whitfield’s "will was not
overborne," and "[t]hat the statements he made were not in
violation of the Constitution." Id. at 173-74. An order denying
Whitfield’s motion to suppress was entered the day of the
hearing.
Whitfield’s jury trial began a week later, on November 16,
2009, in Charlotte. The prosecution presented several wit-
nesses on the first day thereof, including credit union tellers
and codefendant McCoy, who testified to his and Whitfield’s
involvement in the attempted bank robbery and getaway.4 The
second-day witnesses included Gaston County Police Detec-
tive William Sampson and other investigating officers. During
its examination of Sampson regarding the first part of Whit-
field’s post-arrest interview, the prosecution introduced Whit-
field’s confessions to the two Belmont home break-ins, as
well as a transcript primarily consisting of the first part of the
interview. Before Sampson could testify concerning the sec-
ond part of the interview, however, the trial court elected to
begin the defense’s cross-examination of Sampson — defer-
ring Sampson’s direct testimony about Whitfield’s confession
to the attempted bank robbery. The second day of trial con-
cluded after the prosecution’s examination of Tamecia Sand-
ers.
When the trial commenced the next morning, the district
court explained that Sampson’s trial testimony warranted fur-
ther analysis of whether Whitfield had voluntarily confessed
to the attempted bank robbery. The court then delayed the
trial proceedings to conduct another suppression hearing —
outside the presence of the jury — regarding the second part
of Whitfield’s post-arrest interview. After hearing further evi-
4
Pursuant to a plea agreement, McCoy had pleaded guilty to Counts
One and Three on May 26, 2009. He was sentenced on February 19, 2010,
to eighty-four months in prison.
UNITED STATES v. WHITFIELD 9
dence and argument, the court suppressed Whitfield’s confes-
sion to the attempted bank robbery because it had been
"coerced," such that his "will was overborne, and his capacity
for self-determination [was] critically impaired." J.A. 738.
Memorializing the ruling made at the second suppression
hearing, the district court, nearly a year thereafter, entered an
order confirming that the attempted bank robbery confession
was inadmissible and so amending its contrary November 9,
2009 order. See United States v. Whitfield, No. 3:09-cr-00009
(W.D.N.C. Oct. 27, 2010) (the "Suppression Order").5 The
court’s findings of fact relating to Whitfield’s confessions to
the home break-ins and the attempted bank robbery are sum-
marized below — supplemented to a limited extent by the
interview transcript.
a.
After Whitfield’s arrest on September 26, 2008, which
occurred at approximately 6:00 p.m., he was detained at the
Gastonia Police Department. Gaston County Detectives Sum-
ner and Sampson questioned Whitfield initially, beginning at
approximately 7:30 p.m. As Whitfield had been outside in the
rain, he "was cold, wet, and visibly shaking for some of the
interview." Suppression Order 2. Before questioning Whit-
field, Sampson gave Miranda warnings, explaining "that it
was ‘no big deal’" and would be "just like [Whitfield] had
‘seen on T.V.’" Id. Consistent with established procedure,
Sampson provided Whitfield a copy of the Miranda warnings
and requested that he initial each of them. Sampson directed
Whitfield to initial the sheet without inquiring whether he
understood his rights, except for the right to remain silent.
Sampson read Whitfield a concluding summary of his
Miranda rights and, instructing Whitfield to sign, asked, "‘Is
that cool, Larry?’" See id. at 3.
5
The Suppression Order is found at J.A. 1370-82.
10 UNITED STATES v. WHITFIELD
At the outset, "Detectives Sampson and Sumner led [Whit-
field] to believe that their interest in questioning him was lim-
ited to [the two Belmont home break-ins]." Suppression Order
2. The detectives explained that, as members of the Gaston
County Police, "their jurisdiction only covered the break-ins,"
and they were not concerned with what happened in another
jurisdiction, i.e., the attempted bank robbery in Gastonia. Id.
at 3. Or, as one of the detectives put it, they were interested
in the "‘lesser of the evils.’" Id. "In reality," however, the
detectives aimed to acquire enough information "to charge
[Whitfield] with attempted bank robbery, kidnapping of [Mrs.
Parnell], and, because she had subsequently died of a heart
attack, first degree felony-murder." Id. at 2. After the detec-
tives questioned Whitfield "aggressively," he confessed to the
two break-ins, explaining that he had entered the Parnell
home from its back door, but had not interacted with Mrs.
Parnell because she was asleep in the computer room. See id.
at 3. At approximately 8:35 p.m., Whitfield signed a written
statement to that effect. Both detectives expressed their appre-
ciation for Whitfield’s "forthrightness," and they took a brief
break. See id.
When Detectives Sampson and Sumner returned, they con-
tinued questioning Whitfield about the break-in at the Parnell
home. The detectives were at times joined by Gaston County
Police Sergeant Chris Reynolds. At one point, Sergeant Reyn-
olds encouraged Whitfield, advising him that "you’re doing
nothing but helping yourself" by volunteering information,
and falsely stating that Mrs. Parnell had "ID’d" Whitfield. See
J.A. 1296. Eventually, Whitfield admitted that he had entered
the Parnell home through its front door — rather than the
back door — and that Mrs. Parnell was awake when he
encountered her inside the home. Whitfield emphasized that
he told Mrs. Parnell that he had "no weapons and [was] not
[t]here to hurt [her]," but "just need[ed] somewhere to stay."
Id. at 1312.
With respect to why Mrs. Parnell was later found in the
computer room, Whitfield initially admitted that he had
UNITED STATES v. WHITFIELD 11
"guide[d] her to the . . . office" but then appeared to retract
that statement, explaining:
[L]ike I didn’t, no. I didn’t . . . . I just know, she, she
was in front of me and she went into the computer
room. I don’t remember to-, I really don’t remember
touching her. Like come on ma’am . . . . I was coop-
erative with her and she was cooperative with me. I
didn’t put my hands on her.
J.A. 1312-13. Whitfield stated that he "asked her . . . where
[they] could go where [the police] wouldn’t . . . see," and that
he and Mrs. Parnell "just took . . . the first room [i.e., the com-
puter room]. . . . I was like right here." Id. at 1315. When Mrs.
Parnell later emerged from the computer room insisting that
Whitfield leave, he "asked her to go into the computer room,"
and also asked "where could [they] go in the house where the
police couldn’t see," at which point "[Mrs. Parnell] sat down
in the chair [in the computer room]." Id. at 1317.
At 9:07 p.m., Whitfield signed a second written statement,
correcting his first statement by admitting that he had entered
the Parnell home through the front door and had interacted
with Mrs. Parnell. In its Suppression Order, the district court
confirmed its previous ruling of November 9, 2009, that the
"inculpatory statements made by [Whitfield regarding the two
Belmont home break-ins were] knowingly and voluntarily
made." Suppression Order 1 n.2.
b.
After Whitfield signed his statements confessing to the Bel-
mont home break-ins, "the tone of the interrogation suddenly
changed." Suppression Order 3. During the first part of their
interview of Whitfield, neither Detective Sumner nor Detec-
tive Sampson asked Whitfield about his reasons for fleeing
from the police. Following "[Whitfield’s] initial cooperation,
however, Sampson and Sumner began to focus on the bank
12 UNITED STATES v. WHITFIELD
robbery, telling [him] they wanted to ‘[g]et everything
together, stack it up . . . [and] get it all over with.’" Id. As the
district court found, "Sumner and Sampson’s questioning
became leading, mounting an assault on [Whitfield’s]
repeated denials of his involvement in the attempted bank
robbery with an arsenal of both real and fabricated evidence."
Id. Despite the detectives’ warnings to Whitfield that his case
would be "hopeless if it were ever brought before a jury" and
that "his charges could be mitigated if he would only cooper-
ate instead of holding out and acting like a ‘thug,’" Whitfield
continued to deny any involvement in the attempted bank rob-
bery. Id. at 4.
At approximately 9:55 p.m., Detectives Sumner and Samp-
son notified Whitfield that he would be transported to a Gas-
ton County detention facility and then formally charged.
Gastonia Detectives Wilson and McSwain, however, then
questioned Whitfield for another hour or so. According to the
court, Wilson and McSwain followed Sumner and Sampson’s
tack, "intend[ing] to convince [Whitfield] that his only chance
to salvage his otherwise ‘bright future’ was to confess to the
attempted bank robbery." Suppression Order 4. Whitfield,
however, refused to admit he had been involved in that
offense, finally prompting Wilson to urge Whitfield to "‘be
righteous. . . . Tell me what happened today and we both walk
out of here.’" Id. at 5. Whitfield "attempted to end the interro-
gation by saying ‘I can’t say no more. But I’m gonna plead,
just plead my case that I got against me.’" Id. Detective Wil-
son persisted, however, until he realized that Whitfield was
unlikely to confess. Whitfield was then transported to the
Gaston County jail.
After arriving at the jail at approximately 12:15 a.m. on
September 27, 2008, Detective Sampson read Whitfield the
arrest warrant that had been issued against him, which
charged kidnapping, breaking and entering, and first degree
murder. Realizing he was being charged with murder, Whit-
field "looked at [Sampson and Sumner] and asked, ‘What can
UNITED STATES v. WHITFIELD 13
I do to help myself?’" Suppression Order 6. At that point,
Sampson believes that "he clarified [Whitfield’s] intent to
reinitiate the interrogation by asking if [Whitfield] was sure
that he wanted to talk." Id. Sampson and Sumner again "Mi-
randized" Whitfield, who wrote "yes" beside each statement
of his rights. Thereafter, Whitfield signed his confession to
the attempted bank robbery.
In its Suppression Order, the district court explained that
"the coercive nature of the preceding interrogation, Samp-
son’s mediocre reading of [Whitfield’s] Miranda rights, and
the fact that the presentation of [Whitfield’s] charges was an
attempt to elicit his confession rather than a standard booking
procedure," inevitably led to the conclusion that Whitfield did
not "re-initiate[ ] questioning at the presentment of his charge
by asking "‘What can I do to help myself?’" Suppression
Order 11-12. Nor did the "break in time and location resulting
from [Whitfield’s] transport to the Gaston County Jail" dissi-
pate the coercion. Id. at 12. "Based upon the totality of cir-
cumstances," therefore, the court suppressed Whitfield’s
attempted bank robbery confession, finding that it was "invol-
untary" and "inadmissible under 18 U.S.C. § 3501." Id.
3.
After the district court’s mid-trial evidentiary hearing and
suppression of Whitfield’s confession to the attempted bank
robbery, the proceedings resumed. Although the prosecution
had not completed its case by the end of the third day of trial,
the court conducted a charge conference. Much of that confer-
ence dealt with the issues relating to 18 U.S.C. § 2113(e) and
Count Four’s allegations. Notably, the government’s proposed
instruction on Count Four tracked the language of the indict-
ment, referencing only the killing offense and the forced
accompaniment offense, as follows:
COUNT FOUR requires you to determine whether
the defendant killed the victim, M.P., or whether the
14 UNITED STATES v. WHITFIELD
defendant forced the victim, M.P., to accompany
him, while the defendant was attempting to avoid
apprehension for the bank robbery charged in
COUNT ONE.
J.A. 207. Acting sua sponte, the court presented an instruction
directing the jury to consider the unalleged third alternative
offense, i.e., the death results offense. In objecting to the
court’s instruction on Count Four, Whitfield pointed out that
the grand jury had failed to allege the death results offense —
charging only that Whitfield had forced Mrs. Parnell to
accompany him without her consent and killed her. Therefore,
according to Whitfield, the court’s instruction and the Count
Four allegations "do not match." See id. at 932. The court
overruled the objection, explaining that the "death results"
language did not need to be alleged because "the general ref-
erence of 2113(e) [in Count Four] triggers the instruction in
. . . the [two] ways 2113(e) can be violated," i.e., "either by
killing Mary Parnell or[ ] by knowingly forcing her to accom-
pany him." Id. at 932-33. Moreover, the court explained that
"if it’s the latter," i.e., forced accompaniment, there would be
"two different ramifications. . . . One is forced accompani-
ment without death, and [the other is] forced accompaniment
with death, and those have sentencing implications." Id. at
934-35.
The prosecution rested its case on the fourth day of trial
after calling experts to testify about the nature and cause of
Mrs. Parnell’s death. Whitfield then moved for judgment of
acquittal on Count Four, asserting that there was insufficient
evidence to support a finding of guilt on that charge, because
there was no evidence that he had killed Mrs. Parnell and
there was no way to exclude other possible causes of her
death. Whitfield also maintained that there was insufficient
proof that he had "forced Mrs. Parnell to accompany him any-
where, or that such forced accompaniment caused her death."
J.A. 1087. The court promptly denied the motion for acquittal,
and, after calling a single witness — his own medical expert
UNITED STATES v. WHITFIELD 15
— Whitfield also rested. There was no rebuttal evidence. At
that point, Whitfield renewed his motion for judgment of
acquittal on Count Four, contending again that there was
insufficient evidence to prove that his conduct proximately
caused Mrs. Parnell’s death. The court again denied the
motion.
After the parties made their closing arguments, the district
court charged the jury. As to Count Four, the court instructed
that, in order for the jury to find Whitfield guilty, it had to be
convinced beyond a reasonable doubt that:
One, the defendant committed the offense alleged in
Count One; that is attempted robbery of a credit
union.
Two, in avoiding or attempting to avoid apprehen-
sion for that offense, the defendant
A, killed Mary Parnell.
Or B, knowingly forced Mary Parnell to accompany
him without her consent.
J.A. 1241. The court explained to the jury that Whitfield was
"charged with violating this statute in two ways," and that the
jury "must consider both whether the defendant killed Mary
Parnell and/or whether he forced her to accompany him in
avoiding or attempting to avoid apprehension for the
attempted robbery." Id. at 1241-42. Significantly, the court
then instructed the jury that,
[w]ith respect to the second way of violating this
statute, if you find that the defendant forced Mary
Parnell to accompany him, you must also decide
whether that forced accompaniment resulted in Mary
Parnell’s death.
16 UNITED STATES v. WHITFIELD
Id. at 1242 (emphasis added).
Other Count Four instructions advised the jury that "the
term ‘forced accompaniment’ includes[ ] forcing a person to
move from one part of a building to another against her will"
and "does not require . . . that the defendant crossed a prop-
erty line, moved a person a particular number of feet, held a
person for a particular period of time, or placed the person at
a certain level of danger." J.A. 1242-43. Regarding the terms
"‘killed’" and "‘resulted in death,’" the court clarified that the
government was "not required to prove that the defendant
intended to kill Mary Parnell," but that the evidence was
required to "prove that the defendant’s actions in avoiding or
attempting to avoid apprehension, were the proximate cause
of her death," i.e., that Whitfield’s conduct played "a substan-
tial part in bringing about or actually causing the death of
[Mrs. Parnell]." Id. at 1243.
During its deliberations, the jury asked several questions
concerning Count Four, including inquiries concerning the
issue of forced accompaniment and the definitions of "killed"
and "resulted in death." When the court convened to discuss
the jury’s inquiries, Whitfield’s counsel repeated his objection
to the "entirety of the instruction[s]" on Count Four and spe-
cifically objected to the proposed "proximate cause instruc-
tion" on the "resulted in death" jury question. See J.A. 1259,
1265. The court responded that Whitfield had "not waiv[ed]
any [earlier] objection," and that the court’s rulings were "the
law of the case now." See id. at 1259. Nevertheless, the court
overruled Whitfield’s objections and, in response to the jury’s
inquiries, referred it to the earlier instructions.
On November 20, 2009, the jury returned a verdict of guilty
against Whitfield on Counts One through Three. On Count
Four, the jury answered the verdict form’s three-part inquiry
as follows:
• Paragraph 4.a: "Not Guilty" on the 28 U.S.C.
§ 2113(e) charge of "killing Mary Parnell in
UNITED STATES v. WHITFIELD 17
avoiding or attempting to avoid apprehension for
[the attempted bank robbery] alleged in Count
One";
• Paragraph 4.b: "Guilty" on the § 2113(e) charge
of "forcing Mary Parnell to accompany him in
avoiding or attempting to avoid apprehension for
[the attempted bank robbery] alleged in Count
One"; and
• Paragraph 4.c: "Yes" to the question "did the
forced accompaniment result in Mary Parnell’s
death?"
See J.A. 1270, 1340.6 Following the jury’s return of its ver-
dict, Whitfield renewed his "earlier objection made during the
charge conference, in that the language given to the jury is
inconsistent with the charging documents, and that resulted in
prejudice." See id. at 1274-75. The court overruled the objec-
tion.
On November 10, 2010, the district court sentenced Whit-
field to life imprisonment on Count Four, which the court
deemed to be "statutorily required." See J.A. 1625-26.7 The
court also imposed concurrent 240-month sentences on
Counts One and Two, plus a consecutive sixty-month sen-
tence on Count Three. The court entered judgment on Novem-
ber 29, 2010, providing that, with respect to Count Four,
Whitfield had been found guilty and was sentenced on the
death results offense — that is, as the judgment recited,
6
As the verdict form somewhat confusingly recited, a response to Para-
graph 4.c was only necessary if the answer to Paragraph 4.b was "yes."
The only possible answers to Paragraph 4.b, however, were "Guilty" and
"Not Guilty." See J.A. 1340.
7
Section 2113(e) of Title 18 authorizes a mandatory life sentence or the
death penalty as punishment for the killing offense (on which the verdict
was "Not Guilty"), as well as for the unindicted death results offense. The
government, however, elected prior to trial not to seek the death penalty.
18 UNITED STATES v. WHITFIELD
"[f]orced accompaniment while attempting to avoid apprehen-
sion for an attempted bank robbery resulting in death." Id. at
1632. Whitfield has timely appealed, and we possess jurisdic-
tion pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II.
On appeal, Whitfield presents four contentions of error.
First, Whitfield faults the district court for declining to sup-
press his confessions to the two Belmont home break-ins,
which he argues were the product of coercive interrogations
and thus involuntary. Second, he posits that two aspects of the
jury instructions on Count Four regarding the forced accom-
paniment offense were plainly erroneous, in that they failed
to instruct on a lesser-included offense and permitted the jury
to convict on Count Four for a mere confinement (as opposed
to a forced accompaniment). Third, Whitfield maintains that
the court erred in instructing the jury on the death results
offense not alleged in Count Four. Finally, Whitfield asserts
that there was insufficient evidence to support his conviction
on the forced accompaniment offense. We assess Whitfield’s
contentions in turn.
A.
Whitfield first contends that the district court erred by
declining to suppress his confessions to the two Belmont
home break-ins, especially the statements about his encounter
with Mrs. Parnell. Whitfield agrees, of course, that the court
properly suppressed his confession to the attempted bank rob-
bery (a ruling not challenged by either party on appeal). He
nevertheless maintains that his other two confessions should
have been suppressed because the officers used coercive tac-
tics in the interview process. In particular, Whitfield points
out that, at the outset of the interview, "Detectives Sampson
and Sumner led [Whitfield] to believe that their interest in
questioning him was limited to [the two Belmont home break-
ins]" — the "‘lesser of the evils’" — not the forced accompa-
UNITED STATES v. WHITFIELD 19
niment and death of Mrs. Parnell or the attempted bank rob-
bery. See Suppression Order 2-3. Indeed, the court found that
Whitfield "was misled throughout his interrogation regarding
the seriousness of the charges against him." Id. at 8. Whitfield
also emphasizes that he was "especially vulnerable to the
[detectives’] coercive interrogation tactics," because, as the
court observed, "[w]hen his questioning began, [Whitfield]
was cold, wet, only 20 years’ old, and had never before faced
any serious charges." Id. at 9-10.
In considering whether a defendant’s inculpatory statement
was voluntary, we "must make an independent determination
on the issue of voluntariness, [and accept] the district court’s
findings of fact on the circumstances surrounding the confes-
sion . . . unless clearly erroneous." United States v. Khan, 461
F.3d 477, 497 (4th Cir. 2006) (internal quotation marks omit-
ted). In undertaking that review, we must specifically "deter-
mine whether the confession was extracted by any sort of
threats or violence, or obtained by any direct or implied prom-
ises, however slight, or by the exertion of any improper influ-
ence." United States v. Holmes, 670 F.3d 586, 591 (4th Cir.
2012) (alterations and internal quotation marks omitted).
"Even where threats, violence, implied promises, improper
influence, or other coercive police activity exist," however, a
confession may yet be voluntary unless "the defendant’s will
has been overborne or his capacity for self-determination crit-
ically impaired." Id. (internal quotation marks omitted). In
that regard, we examine "the totality of the circumstances,
including the characteristics of the defendant, the setting of
the interview, and the details of the interrogation." Id. at 592(internal quotation marks omitted).
To begin with, we are struck by the district court’s percep-
tive and sensible differentiation between the two parts of the
post-arrest interview of Whitfield. In stark contrast to the sec-
ond part — which the court deemed "embarrassing to law
enforcement" and "extremely coercive," J.A. 731 — "the first
part of that interview was [the] kind of police conduct that . . .
20 UNITED STATES v. WHITFIELD
is entirely appropriate, aggressive, trying to ferret out the truth
of evidence of criminal activity," id. at 730. Although there
were some "fairly minor discrepancies" in the detectives’ tes-
timony, the court specifically found them to be "credible" and
their evidence "consistent[ ] and corroborated by the DVD of
the interview." Id. at 172. Moreover, the court found that, dur-
ing the first part of the interview, Whitfield was "conversa-
tional"; was "comfortable," though wet and cold; and, despite
his youth and inexperience, generally "seemed intelligent"
enough to decide "when to provide information and when not
to." Id. at 173. Notably, Whitfield has not argued — nor do
we perceive — that any of the court’s factual findings were
clearly erroneous. We are therefore bound to accept those
findings. See United States v. Braxton, 112 F.3d 777, 781 (4th
Cir. 1997) (observing that we "accept[ ] the district court’s
findings of fact on the circumstances surrounding the confes-
sion . . . unless clearly erroneous" (internal quotation marks
omitted)).
Whitfield’s chief complaint is that the police officers
deceived him about the offenses they were investigating, par-
ticularly those involving the forced accompaniment and death
of Mrs. Parnell. Nevertheless, Whitfield concedes that the
officers "had no duty to advise [him] of the identity of the
specific offense under investigation" or "inform [him] of
every potential theory of liability related to [his] conduct."
Braxton, 112 F.3d at 784. Although Detectives Sampson and
Sumner led Whitfield to believe that their only interest at the
start of the interview was the Belmont home break-ins, Whit-
field obviously knew that his interactions with Mrs. Parnell
were the result of his breaking and entering of her home.
Whitfield persists, however, that he could not have rationally
assessed the consequence of confessing to the break-ins
because Sergeant Reynolds had indicated that Mrs. Parnell
was alive and had "ID’d" Whitfield. See J.A. 1296. Because
of Reynolds’ misrepresentations, Whitfield contends that he
mistakenly believed that he was being investigated for only a
minor crime.
UNITED STATES v. WHITFIELD 21
As the Supreme Court has explained, "[p]loys to mislead a
suspect or lull him into a false sense of security that do not
rise to the level of compulsion or coercion to speak are not
within Miranda’s concerns." Illinois v. Perkins, 496 U.S. 292,
297 (1990). Indeed, "misrepresentations are insufficient, in
and of themselves, to render a confession involuntary." John-
son v. Pollard, 559 F.3d 746, 755 (7th Cir. 2009) (collecting
cases); accord Braxton, 112 F.3d at 782-83 (concluding that
investigator’s statement "that you can do five years because
you’re not coming clean," did not result in involuntary con-
fession). The determinative factor remains the question of
whether such misrepresentations overbore the defendant’s
will. See Frazier v. Cupp, 394 U.S. 731, 739 (1969) ("[T]he
fact that the police misrepresented the statements that [the co-
defendant] had made is, while relevant, insufficient . . . to
make this otherwise voluntary confession inadmissible."). Put
simply, we are satisfied — as was the district court — that
Whitfield’s capacity for self-determination was not critically
impaired by Sergeant Reynolds’s misrepresentations.8
As a result, the totality of the circumstances support the
district court’s denial of suppression. During the first part of
the police interview, Whitfield’s statements pertaining to the
two Belmont home break-ins — including his statements
about interacting with Mrs. Parnell — were voluntarily made.
Cf. United States v. Byers, 649 F.3d 197, 216 (4th Cir. 2011)
8
We are also satisfied that Whitfield’s will was not overborne by Ser-
geant Reynolds encouraging him to talk, suggesting that Whitfield would
do "nothing but help[ ] [himself]." See J.A. 1296. Contrary to Whitfield’s
assertions, Reynolds’ vague, nondescript encouragement did not misrepre-
sent the legal effect of confessing to his interactions with Mrs. Parnell. See
Rose v. Lee, 252 F.3d 676, 686 (4th Cir. 2001) ("declin[ing] to hold that
the cryptic promise that ‘things would go easier’ on [defendant] if he con-
fessed amounts to unconstitutional coercion"); see also United States v.
Rutledge, 900 F.2d 1127, 1128 (7th Cir. 1990) (concluding that confession
was voluntary where police made "not quite truthful" statement that "‘all
cooperation is helpful,’" though confession actually exposed defendant to
heavier sentence).
22 UNITED STATES v. WHITFIELD
(ruling that defendant’s confession was not coerced, even
though "detective’s statements were somewhat equivocal,"
because, inter alia, defendant received Miranda warnings and
police never told defendant he would not be charged with
murder); United States v. Gray, 137 F.3d 765, 771 (4th Cir.
1998) (same, where defendant "initialed his understanding of
each of his [Miranda] rights and signed a form indicating that
he understood"; no law enforcement officer made "assur-
ances, promises or inducements" to convince defendant that
he "would in any way be immunized"; and there was no evi-
dence that the officers had "engaged in any threats, violence,
or improper suggestions about how [defendant’s] testimony
would be used").
B.
Whitfield next contends that the instructions on the forced
accompaniment offense were plainly erroneous in two
respects. First, he argues that the district court failed to
instruct on a lesser-included offense, and, second, that the
instructions permitted the jury to convict on a theory of mere
confinement as opposed to an actual forced accompaniment.
As Whitfield acknowledges, we must review these conten-
tions for plain error because they are raised for the first time
on appeal. See United States v. Robinson, 627 F.3d 941, 953
(4th Cir. 2010). To satisfy the plain error standard, a defen-
dant "must establish that the district court erred, that the error
was plain, and that it ‘affected his substantial rights.’" Id. at
954 (quoting United States v. Olano, 507 U.S. 725, 734
(1993)) (alterations omitted). Even if those three prerequisites
are met, "we retain discretion to deny relief; plain errors
should only be corrected where not doing so would result in
a miscarriage of justice, or would otherwise seriously affect
the fairness, integrity or public reputation of judicial proceed-
ings." Id. (alterations, citations, and internal quotation marks
omitted). In any event, "[w]e review for abuse of discretion
both the district court’s decision to offer an instruction and the
UNITED STATES v. WHITFIELD 23
content of that instruction." United States v. Jinwright, 683
F.3d 471, ___ (4th Cir. 2012).
1.
First, Whitfield asserts that the district court plainly erred
in failing to instruct the jury that a conviction under § 2113(e)
for forced accompaniment (with or without a resulting death)
requires proof of a predicate § 2113(d) violation.9 We have
recognized § 2113(d) as a "lesser included offense" of the
§ 2113(e) offenses, such that "[a]ll of the elements required
under § 2113(d) are elements under § 2113(e)." United States
v. Turner, 389 F.3d 111, 121 (4th Cir. 2004); accord United
States v. Whitley, 759 F.2d 327, 331 (4th Cir. 1985) (en banc).
Nevertheless, the government maintains that no error occurred
— much less a plain error — in that the lesser-included-
offense instruction is not supported by the terms of § 2113(e)
and does not fit the unique facts of this case. We need not
reach or decide those points, however, because even if the
court abused its discretion by failing to instruct on § 2113(d),
and even if that assumed error was plain, it neither contra-
vened Whitfield’s substantial rights nor warrants the exercise
of our discretion to correct it.10
As Whitfield acknowledges, an instructional error is harm-
less in circumstances where "the jury actually made an equiv-
alent or identical finding pursuant to another instruction." See
United States v. Aramony, 88 F.3d 1369, 1387 (4th Cir. 1996).
9
Section 2113(d) punishes the "use of a dangerous weapon or device"
to "assault[ ] any person or put[ ] in jeopardy the life of any person" dur-
ing the commission or attempted commission of a bank robbery.
10
Absent a superseding decision of the Supreme Court or our en banc
Court, we cannot, in any event, revisit whether Whitley and Turner prop-
erly characterized § 2113(d) as a lesser included offense of § 2113(e). See
United States v. White, 670 F.3d 498, 516 (4th Cir. 2012) (recognizing that
"a panel of this court cannot overrule, explicitly or implicitly, the prece-
dent set by a prior panel of this court" because that authority is vested in
"the Supreme Court or this court sitting en banc").
24 UNITED STATES v. WHITFIELD
By its guilty verdicts on Counts One through Three, the jury
in this case found, inter alia, that Whitfield entered the credit
union intending to commit a felony therein, namely, "taking
[the credit union’s money] from the person or presence of
another, by force, violence, and intimidation," and that he
then carried "a Smith & Wesson .357 caliber revolver and a
CN Romarm 7.62x39 caliber assault rifle . . . in furtherance
of [a] crime of violence." See J.A. 12-14, 1339. Such underly-
ing conduct amply supports the proposition that, as required
by § 2113(d), Whitfield used "a dangerous weapon" to "as-
sault[ ] [a] person or put[ ] in jeopardy the life of [a] person"
during an attempted bank robbery. Indeed, we have long rec-
ognized that the act of "[b]randishing weapons during a rob-
bery threatens victims and bystanders alike," sufficient to
support a conviction under § 2113(d). See United States v.
Bennett, 675 F.2d 596, 599 (4th Cir. 1982); see also United
States v. Harris, 792 F.2d 866, 868 (9th Cir. 1986) (affirming
convictions under 18 U.S.C. §§ 924(c) and 2113(d) where
evidence established that defendant carried firearm during
bank robbery).11 As a result, we are satisfied that, even if a
plain instructional error occurred, it did not "affect[ ] [Whit-
field’s] substantial rights." See Fed. R. Civ. P. 51(d)(2);
Olano, 507 U.S. at 734.
Furthermore, even if Whitfield had been prejudiced by a
plain instructional error, we would not exercise our discretion
to notice the error. As we have explained, "central to the ques-
11
Whitfield contends that, because the credit union’s lobby doors were
locked and bulletproof, he had no "apparent present ability" to assault any-
one and the credit union’s employees had "no reason to fear or expect
immediate bodily harm." See United States v. Newkirk, 481 F.2d 881, 883
n.1 (4th Cir. 1973). We will not speculate on whether the lobby doors and
bulletproof glass were completely impenetrable or would have yielded had
Whitfield and McCoy opened fire. Instead, we join the Second and Elev-
enth Circuits in rejecting the contention that bank tellers are not jeopar-
dized simply because they are situated behind "bulletproof" glass. See
United States v. Tutt, 704 F.2d 1567, 1568-69 (11th Cir. 1983); United
States v. Johnson, 401 F.2d 746, 747 (2d Cir. 1968).
UNITED STATES v. WHITFIELD 25
tion of whether to notice a plain error affecting substantial
rights is a determination of whether, based on the record in its
entirety, the proceedings against the accused resulted in a fair
and reliable determination of guilt." United States v. Cedelle,
89 F.3d 181, 185 (4th Cir. 1996). Based on the trial evidence
— including Whitfield’s confessions — the jury found that he
forced Mrs. Parnell to accompany him without her consent.
The evidence showed further that Mrs. Parnell reasonably
feared Whitfield, and that Whitfield attempted to commit an
aggravated armed bank robbery. In these circumstances, the
failure to correct the assumed instructional error would not
result in a miscarriage of justice or undermine the fairness or
integrity of the trial proceedings. Rather, "it would be the
reversal of a conviction such as this which would have that
effect." Johnson v. United States, 520 U.S. 461, 470 (1997);
cf. Cedelle, 89 F.3d at 186 (declining to correct trial court’s
error in failing to instruct jury on essential element because
evidence "permit[ted] no other conclusion" but that defendant
was guilty).
2.
Second, Whitfield contends that the district court plainly
erred in failing to instruct the jury on the requirements of "a
literal[ ] forced accompaniment" under § 2113(e). See Turner,
389 F.3d at 120. More specifically, Whitfield argues that the
court erred by instructing that the § 2113(e) forced accompa-
niment offense "includes" such an accompaniment, rather
than "requires" it. Whitfield also takes issue with the court’s
instruction that the jury need not find "that the defendant . . .
held the person for a particular period of time," id. at 1242-43
(emphasis added), because that instruction suggests that a
mere confinement is sufficient — a suggestion that the prose-
cution availed itself of by emphasizing in closing that Mrs.
Parnell had been "held against her will," see id. at 1202-03.
We perceive no error in the district court’s use of the word
"includes" in its instruction on the meaning of forced accom-
26 UNITED STATES v. WHITFIELD
paniment. A trial court has "considerable discretion in choos-
ing the specific wording of [its] instructions," and we will not
reverse unless an instructional error "is determined to have
been prejudicial, based on a review of the record as a whole."
Figg v. Schroeder, 312 F.3d 625, 640 (4th Cir. 2002) (internal
quotation marks omitted). That is, "we do not view a single
instruction in isolation; rather we consider whether taken as
a whole and in the context of the entire charge, the instruc-
tions accurately and fairly state the controlling law." United
States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996). On the
whole, the contested instruction — advising the jury that "the
term forced accompaniment includes[ ] forcing a person to
move from one part of the building to another against her
will" — accurately sets forth the applicable law. See J.A.
1242. This instruction was appropriately contextualized to the
facts of this case and, by employing the word "includes,"
fairly conveys that, although a defendant can force a person
to accompany him "beyond the walls of [a building]," move-
ment "from one part of the building to another" without con-
sent is "literally" a forced accompaniment — consistent with
our recognition that "§ 2113(e) includes no property-line or
threshold requirement." See Turner, 389 F.3d at 119-20.12
Finally, we do not fault the district court for advising the
jury that a forced accompaniment does not require that the
victim be "held . . . for a particular time period," J.A. 1242,
because the instruction contained language we have already
approved, see Turner, 389 F.3d at 119 ("agree[ing] with the
Eleventh Circuit that the text of [§ 2113(e)] contains ‘no
requirement that . . . she be held against her will for a particu-
lar time period’" (alterations omitted) (quoting United States
12
In rejecting the Turner defendant’s contention that "only forcing
someone out of a building, or perhaps taking hostages, can trigger the
forced accompaniment of § 2113(e)," Judge Wilkinson astutely explained
that, although "most forced accompaniments [might] include crossing the
threshold[,] Congress can criminalize that which is uncommon, as it did
in penalizing forced accompaniments occurring entirely inside [a building
such as] a bank." 389 F.3d at 119.
UNITED STATES v. WHITFIELD 27
v. Bauer, 956 F.2d 239, 241 (11th Cir. 1992))). In any event,
the challenged instruction expressly disallows — rather than
endorses — a mere confinement theory of forced accompani-
ment. In the circumstances, there was no instructional error
made by the trial court, and this argument must also be
rejected.
C.
Whitfield next contends that his Fifth Amendment right to
be indicted by a grand jury was abridged because he was con-
victed of an offense not charged in Count Four — the death
results offense. In essence, Whitfield asserts that the manner
in which Count Four was tried, including the court’s instruc-
tions on "death results" and the derivative verdict form, con-
travened the Grand Jury Clause by constructively amending
Count Four.13 We review de novo the legal question of
whether there has been a constructive amendment of an
indictment. See United States v. Malloy, 568 F.3d 166, 177
(4th Cir. 2009).
1.
The government has maintained throughout this appeal that
Count Four alleged the essential elements of the § 2113(e)
offense of which Whitfield was convicted, arguing that the
allegations omitted "only an enhancing element [‘death
results’] that the jury later found but was not used to support
a sentence above the otherwise applicable statutory maxi-
mum." See Br. of Appellee 33.14 As several courts have
13
The Grand Jury Clause of the Fifth Amendment provides, in pertinent
part, that "[n]o person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury."
U.S. Const. amend. V.
14
The government has nonetheless acknowledged in another court of
appeals that "death results" is "an element of a crime separate from bank
robbery," and not "a sentencing factor." See Final Br. of Appellee at 58,
28 UNITED STATES v. WHITFIELD
observed, however, the "death results" terminology in similar
criminal statutes prescribes an offense element rather than a
sentencing factor.
In Jones v. United States, the Supreme Court held that pro-
visions of the carjacking statute, 18 U.S.C. § 2119 — autho-
rizing more severe penalties when the carjacking involves
"serious injury" or "death" — establish "separate offenses by
the specification of distinct elements" that are not mere sen-
tencing factors. See 526 U.S. 227, 251–52 (1999). Relying on
Jones, we identified "death results" as a separate offense ele-
ment of § 2119. See United States v. Blake, 571 F.3d 331, 351
(4th Cir. 2009). Consistent with Jones, we have also recog-
nized that "death resulted" is an essential element of the
offense of "kidnapping resulting in death" as defined in 18
U.S.C. § 1201(a), a statute structured similarly to § 2113(e).
See United States v. Lentz, 524 F.3d 501, 512 (4th Cir. 2008).
Our sister circuits have likewise construed analogous "death
results" provisions. See, e.g., United States v. Montgomery,
635 F.3d 1074, 1087 (8th Cir. 2011) (kidnapping resulting in
death, § 1201(a)); Logan v. United States, 434 F.3d 503, 508
(6th Cir. 2006) (arson resulting in death, 18 U.S.C. § 844(i));
United States v. Rebmann, 321 F.3d 540, 542 (6th Cir. 2003)
(drug trafficking resulting in death, 21 U.S.C.
United States v. Dorman, No. 02-5127(L) (6th Cir. July 7, 2003). There,
the government repudiated the contrary ruling of United States v. Nelson,
920 F. Supp. 825 (M.D. Tenn. 1996), which had concluded that "death
results" serves only to enhance the penalty, not create a separate offense.
The government further admitted in Dorman that Nelson was "directly at
odds with the Supreme Court’s holding in Apprendi v. New Jersey, 530
U.S. 466, 490 (2000)." Final Br. of Appellee at 58-59. Indeed, before the
district court here, in opposition to Whitfield’s motion to dismiss Count
Four, the government vouchsafed — in line with its position in Dorman
— that the holding in Nelson was "perhaps only possible pre-Apprendi."
See J.A. 32. It is difficult to explain the government’s retreat on appeal
from its long-held position as anything other than a tactical maneuver
driven by the exigencies of the tenuous litigation posture in which it finds
itself.
UNITED STATES v. WHITFIELD 29
§ 841(b)(1)(C)); United States v. Friedman, 300 F.3d 111,
127 (2d Cir. 2002) (racketeering violence resulting in death,
18 U.S.C. § 1952); United States v. Rezaq, 134 F.3d 1121,
1135-37 (D.C. Cir. 1998) (aircraft piracy resulting in death,
49 U.S.C. § 1472(n)(1)(B)).
We are unable to discern any reason to either interpret or
apply § 2113(e) differently in this case. Rather, we are content
to adhere to the Supreme Court’s nomenclature and describe
§ 2113(e) as creating "separate offenses by the specification
of distinct elements." See Jones, 526 U.S. at 252.15 More spe-
cifically, the killing offense requires proof that a defendant
"kill[ed] any person." The forced accompaniment offense
necessitates proof that a defendant "force[d a] person to
accompany him without the consent of such person." And the
death results offense — although entailing the lesser-included
forced accompaniment offense — requires further proof that
"death result[ed]." Hence, by instructing on the uncharged
death results offense, the district court constructively
amended Count Four to "broaden[ ] the possible bases for
conviction beyond those presented to the grand jury." See
United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994)
15
It is no understatement to say that § 2113(e) is less than a model of
clarity. The statute has been characterized as "capable of multiple interpre-
tations, none of which is without problems." See United States v. Parks,
583 F.3d 923, 928 (6th Cir. 2009) (White, J., concurring). Indeed,
§ 2113(e) creates a variety of distinct offenses. For example, although
evading apprehension for an attempted bank robbery was an element of
Whitfield’s Count Four conviction, other types of conduct may underlie
a § 2113(e) offense. To illustrate, a defendant who, while attempting to
rob a bank, shoots and kills a bank guard after a struggle for a gun would
be guilty of "kill[ing] any person" in the course of "committing" attempted
bank robbery. See United States v. Bolden, 545 F.3d 609 (8th Cir. 2008).
And, a defendant who compels a bank employee into the bank vault and
pressures her to fill a pillowcase with money before leaving her unharmed
would be guilty of "forc[ing] any person to accompany him without the
consent of such person" while "committing" bank robbery. See Turner,
389 F.3d at 119-20. Fortunately, for purposes of this appeal, we need not
parse § 2113(e) for all of its conceivable offenses.
30 UNITED STATES v. WHITFIELD
(en banc). When such "a constructive amendment is found,
the error is fatal and reversible per se." Lentz, 524 F.3d at 511.16
Of course, not every inconsistency "between an indictment
and the proof offered at trial . . . constitute[s] a constructive
amendment of an indictment." United States v. Redd, 161
F.3d 793, 795 (4th Cir. 1998). Short of a constructive amend-
ment, a mere variance, for example, "occurs when the facts
proven at trial support a finding that the defendant committed
the indicted crime, but the circumstances alleged in the indict-
ment to have formed the context of the defendant’s actions
differ in some way nonessential to the conclusion that the
crime must have been committed." Floresca, 38 F.3d at 709.
Such a variance "does not violate a defendant’s constitutional
rights unless it prejudices the defendant either by surprising
him at trial and hindering the preparation of his defense, or by
exposing him to the danger of a second prosecution for the
same offense." United States v. Ashley, 606 F.3d 135, 141
(4th Cir. 2010). Furthermore, an indictment can be amended
without further consideration by the grand jury when it is nec-
essary to strike surplusage, see id. at 142; United States v.
Ford, 986 F.2d 57, 59 (4th Cir. 1993), or to correct the indict-
16
At oral argument in this appeal, the government explained that the
prosecutors mistakenly believed that it would be redundant for Count Four
to allege both "kills" and "death results." This misinterpretation may
explain Count Four’s awkward inversion of the killing offense and the
forced accompaniment offense from the order in which those offenses
appear in § 2113(e). As we have explained, however, the killing offense
and the death results offense consist of different elements. Otherwise, the
Violent Crime Control and Law Enforcement Act of 1994 — which added
the "death results" provision to § 2113(e) notwithstanding the preexisting
"kills" offense — would have been pointless. And we are unable to so
construe a statutory enactment. See PSINet, Inc. v. Chapman, 362 F.3d
227, 232 (4th Cir. 2004) (observing that "[g]eneral principles of statutory
construction require a court to construe all parts to have meaning and to
reject constructions that render a term redundant"). In any event, the gov-
ernment has abandoned the argument that "death results" is subsumed by
"kills," as it seeks affirmance of the death results offense conviction even
though Whitfield was acquitted of the killing offense.
UNITED STATES v. WHITFIELD 31
ment’s form, e.g., a misnomer, see United States v. Snowden,
770 F.2d 393, 398 (4th Cir. 1985), or a typographical error,
see United States v. Morrow, 925 F.2d 779, 781 (4th Cir.
1991).
In much the same fashion as it sought to downplay the con-
structive amendment in Floresca as a variance, the govern-
ment suggested during the oral argument of this case that the
Count Four allegations constituted no more than an "indict-
ment error" within the meaning of Higgs v. United States, 353
F.3d 281 (4th Cir. 2003). In Higgs, we defined an indictment
error as "the failure of an indictment to allege an element of
a charged offense." Id. at 306. After concluding that the
indictment was adequate in that case, we went on to observe,
albeit in dicta, that any assumed indictment error would nev-
ertheless be subject to harmless error review.
Although the distinction between a constructive amend-
ment and a Higgs-type indictment error may be nuanced, the
difference is appreciable in this case. Here, there was substan-
tially more than a simple neglect "to allege an element of a
charged offense." Indeed, the killing offense and the forced
accompaniment offense were properly charged with all of
their essential elements and, thus, there was no defect in the
Count Four allegations. The error arose not from the indict-
ment’s omission of an element of a charged offense but from
the district court’s instructions on an element of an uncharged
offense — the death results offense — on which Whitfield
"was ultimately convicted and sentenced." See Higgs, 353
F.3d at 306 (recognizing practical distinction between indict-
ment error and constructive amendment). The result was an
archetypical constructive amendment.
Moreover, it cannot be fairly said that the decision to allege
Count Four as it is drawn, specifying only the killing offense
and the forced accompaniment offense, was other than inten-
tional. The prosecution’s proposed instruction on Count Four
was consistent with Count Four’s allegations, and did not
32 UNITED STATES v. WHITFIELD
mention the death results offense. In addition, while opposing
Whitfield’s motion to dismiss Count Four, the government
correctly emphasized that it had "charged" the two § 2113(e)
offenses of "‘killing’ and ‘forced accompaniment’ in the con-
junctive, but it [was entitled to] prove them in the disjunc-
tive." See J.A. 23.17 Thus, to the extent that the grand jury’s
charge can be said to have resulted in "indictment error," it
was not error premised on a mistake of perception, i.e., an
oversight as occurred in Higgs, but the prologue to legal error
occasioned by the district court’s inconsistent instructions.
"To constitute a constructive amendment," the incongruity
must in fact "change the elements of the offense charged, such
that the defendant is actually convicted of a crime other than
that charged in the indictment." See Ashley, 606 F.3d at 141.
A broadening of the alleged charges is precisely what
occurred in this case when the district court instructed the jury
on the death results offense. Simply put, an "indictment may
not be [so] amended except by resubmission to the grand
jury." Russell v. United States, 369 U.S. 749, 770 (1962). In
deference to the exclusive province of the grand jury to
amend the charges in an indictment, "in this circuit construc-
tive amendments are erroneous per se and require reversal
regardless of preservation." United States v. Robinson, 627
F.3d 941, 958 (4th Cir. 2010) (citing United States v. Foster,
507 F.3d 223, 242-43 (4th Cir. 2007); Floresca, 38 F.3d at
714). Or, as more succinctly put by our friend Judge Hall, a
constructive amendment is "not subject to review for harm-
lessness." Floresca, 38 F.3d at 712.
17
The government’s position in that regard was consistent with the
structure of § 2113(e), which spells out its separate offenses in the disjunc-
tive ("or"). And, of course, "[i]t is well established that when the Govern-
ment charges in the conjunctive, and the statute is worded in the
disjunctive, the district court can instruct the jury in the disjunctive."
United States v. Perry, 560 F.3d 246, 256 (4th Cir. 2009). As a result, the
killing offense and the forced accompaniment offense were properly
charged in Count Four and the court appropriately instructed on those
offenses, employing the disjunctive.
UNITED STATES v. WHITFIELD 33
2.
Even if this case involved an indictment error subject to
harmless error review, we would yet vacate Whitfield’s con-
viction and mandatory life sentence on the death results
offense. The government argues that any Fifth Amendment
violation was harmless because Whitfield’s life sentence "was
within the statutory range" and "fully supported by the ele-
ments alleged and found by the jury beyond a reasonable
doubt." Br. of Appellee 33. As Whitfield correctly observes,
however, the government’s focus on the sufficiency of the
evidence is misplaced, inasmuch as to demonstrate harmless-
ness in the sentencing context, it "must prove beyond a rea-
sonable doubt that the court would have imposed the same
sentence in the absence of the constitutional error." See
United States v. Shatley, 448 F.3d 264, 267 (4th Cir. 2006);
see also United States v. Mackins, 315 F.3d 399, 409 (4th Cir.
2003) (reviewing preserved error for harmlessness and con-
cluding that defendant’s substantial rights were affected by
receiving life sentence when Guidelines mandated ninety-year
sentence).
The government simply cannot make the required showing
here. The district court believed that it was statutorily man-
dated to sentence Whitfield to life imprisonment on the death
results offense, and the court never indicated that it would
have imposed that same sentence had a more lenient alterna-
tive been available. In that circumstance, the "sentencing
court’s silence must be interpreted in favor of [Whitfield]."
See United States v. Rodriguez, 433 F.3d 411, 416 (4th Cir.
2006) (adjudging preserved statutory Booker error as prejudi-
cial where court did not indicate that it might have imposed
different sentence if Guidelines were advisory).
Consequently, whether we deem the district court’s error a
constructive amendment or an indictment error, we reach the
same result — vacatur of Whitfield’s conviction of the death
results offense and the resulting mandatory life sentence. On
34 UNITED STATES v. WHITFIELD
remand, the court will be obliged to amend the judgment to
reflect Whitfield’s conviction on the forced accompaniment
offense charged in Count Four, and then resentence him accord-
ingly.18
D.
Finally, Whitfield contends that there was insufficient evi-
dence for the jury to find beyond a reasonable doubt that he
forced Mrs. Parnell to accompany him without her consent,
within the meaning of the forced accompaniment offense in
§ 2113(e).19 In "reviewing a sufficiency-of-the-evidence
claim, we will sustain the jury’s verdict if there is substantial
evidence, taking the view most favorable to the Government,
to support it." United States v. Hackley, 662 F.3d 671, 683
(4th Cir. 2011) (internal quotation marks omitted). "Substan-
tial evidence," as we have explained, "is evidence that a rea-
sonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a rea-
sonable doubt." Id. (internal quotation marks omitted).
Whitfield asserts that the prosecution failed to produce any
evidence that he had threatened Mrs. Parnell as a means of
forcing her to accompany him and, in the light most favorable
to the government, established only that he had "guided" or
"asked" her to go into the computer room. We are entirely
18
As reflected on the verdict form, Whitfield was also convicted of the
forced accompaniment offense. That conviction stands, being unaffected
by the constructive amendment. On remand, the district court must there-
fore resentence Whitfield on his Count Four conviction of the forced
accompaniment offense, which carries a "mandatory minimum of ten
years" and "an unstated statutory maximum [that] grants discretion to sen-
tence up to life in prison." See Turner, 389 F.3d at 120 (affirming sentence
of life imprisonment for forced accompaniment offense without resulting
death).
19
Because we vacate Whitfield’s conviction of the death results offense,
we need not consider his challenge to the sufficiency of the evidence on
that unindicted aspect of this case.
UNITED STATES v. WHITFIELD 35
unpersuaded by this argument, and decline to accept that an
ostensible "request" by a physically agile twenty-year-old
male attempting to evade apprehension for an attempted bank
robbery constitutes anything less than a real threat, particu-
larly when aimed at a fragile seventy-nine-year-old woman
during a terrifying invasion of her home. Indeed, there was
ample evidence that Whitfield wanted to position Mrs. Parnell
in the computer room where they could not be seen by the
police. Whitfield admitted that he directed Mrs. Parnell to the
computer room. And, when she attempted to defy his instruc-
tions by insisting that he leave the home, Whitfield required
Mrs. Parnell to stay in the computer room, at which point "she
sat down in the chair," where she was found dead. J.A. 1460.
Although Whitfield required Mrs. Parnell to accompany him
for only a short distance within her own home, and for a brief
period, no more is required to prove that a forced accompani-
ment occurred. See Turner, 389 F.3d at 119-20 (affirming
forced accompaniment conviction where defendant compelled
bank manager to accompany him to bank’s vault); cf. United
States v. Osborne, 514 F.3d 377, 390 (4th Cir. 2008) (approv-
ing Guidelines abduction enhancement where robber moved
employees from back to front of store).20
III.
Pursuant to the foregoing, we vacate Whitfield’s conviction
and sentence on the uncharged death results offense, and
remand for entry of a judgment of conviction on the Count
Four forced accompaniment offense and for appropriate
20
Our interpretation of a forced accompaniment comports with the deci-
sions of our sister circuits. See, e.g., United States v. Strobehn, 421 F.3d
1017, 1020 (9th Cir. 2005) (affirming forced accompaniment conviction
of defendant who forced bank employee to open door and lie face down
on floor inside bank); United States v. Reed, 26 F.3d 523, 527 (5th Cir.
1994) (same); Bauer, 956 F.2d at 241 (11th Cir. 1992) (upholding forced
accompaniment conviction for defendant who compelled two people to
walk with him from back to front of bank).
36 UNITED STATES v. WHITFIELD
resentencing proceedings. We affirm the judgment in all other
respects.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED