Document Info

DocketNumber: 99-3663

Judges: Per Curiam

Filed Date: 5/12/2000

Status: Precedential

Modified Date: 9/24/2015

  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 99-3663
    United States of America,
    Plaintiff-Appellee,
    v.
    Tom Ray Wallace,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Northern District of Indiana, Hammond Division.
    No. 2:99 CR 19 JM--James T. Moody, Judge.
    Argued February 25, 2000--Decided May 12, 2000
    Before Bauer, Ripple, and Manion, Circuit
    Judges.
    Bauer, Circuit Judge. A jury convicted
    Tom Wallace for his role in an armed bank
    robbery, but acquitted him on a separate
    charge of using a firearm during a crime
    of violence. The district court sentenced
    Tom/1 to 180 months in prison and five
    years of supervised release. On appeal,
    Tom challenges the sufficiency of the
    evidence underlying his conviction. Tom
    also complains about a jury instruction
    and a sentencing enhancement. We affirm.
    I.   Background
    On January 29, 1999, shortly after
    smoking a marijuana cigarette laced with
    cocaine, Tom Wallace and his brother,
    James Wallace, decided to rob the Ameri-
    can Savings Bank located at 4521 Hohman
    Avenue in Hammond, Indiana. The brothers
    planned that Tom would collect the money
    and James would "take care of" the bank
    security guard.
    While on their way to the bank, Tom and
    James passed the South Shore Train Sta-
    tion located next door to the bank. An
    employee in the train station noticed the
    Wallace brothers "acting strange" and
    observed that one of them had a nylon
    stocking on his head. The employee noti-
    fied a train station security guard of
    what she had seen and the guard instruct-
    ed her to call for police assistance.
    When Tom and James went into the bank,
    the security guard positioned himself
    outside of the bank.
    When the Wallace brothers entered the
    bank, James turned to his left and con-
    fronted two individuals. A security cam-
    era recorded the Wallace brothers’ en-
    trance and a photo from that camera shows
    James brandishing a gun as he entered the
    bank. Pointing his gun at a bank employee
    and a customer, James approached them and
    yelled at them to get on the floor; he
    then ran to the rear of the bank and put
    his gun to the bank security guard’s
    forehead. He screamed at the guard, "Give
    me your weapon. Get on the ground." James
    then took the security guard’s gun. Now
    armed with two guns, James briefly left
    the guard. A moment later, James returned
    to the security guard, put a gun to the
    back of his head and took the guard’s
    radio. With a gun in each hand, James
    returned to the front of the bank. When
    one of the customers raised his head,
    James yelled at the customer, "You want
    me to blow your God damned head off? Get
    your head back down."
    While James kept watch over the people
    in the bank, Tom was busy collecting
    money. Immediately after entering the
    bank, Tom ran to his right and jumped on
    the teller counter. He ordered one of the
    tellers to put money in a plastic bag and
    then to get on the floor. Tom reached
    into a teller’s drawer and started remov-
    ing cash.
    After Tom filled a bag with money, the
    Wallace brothers fled the bank with James
    leading the way. Upon leaving the bank,
    they were immediately confronted by the
    train station security guard waiting
    outside who yelled "police." A brief
    shoot out ensued in which the train secu-
    rity guard shot James three times; Tom
    dropped to the ground and immediately
    surrendered. By this time, the bank secu-
    rity guard had emerged from the bank and
    helped hold the men until Hammond police
    arrived. The police recovered the bag of
    cash that the Wallace brothers had sto-
    len.
    A grand jury returned an indictment
    charging both Tom and James with several
    crimes related to the bank robbery. Count
    1 of the indictment charged the Wallace
    brothers with unarmed bank robbery in
    violation of 18 U.S.C. sec. 2113(a),
    armed bank robbery in violation of 18
    U.S.C. sec. 2113(d), and aiding and abet-
    ting in an armed bank robbery in viola-
    tion of 18 U.S.C. sec.sec. 2 and 2113(d).
    Count 2 of the indictment charged that
    Tom and James violated 18 U.S.C. sec.
    924(c) by using a firearm during the
    commission of a violent crime. James
    pleaded guilty to the charges against
    him, but Tom went to trial.
    At trial, Tom admitted his guilt for
    unarmed bank robbery in violation of 18
    U.S.C. sec. 2113(a), but denied that he
    was accountable for an armed bank rob-
    bery. Tom testified that he knew his
    brother owned a gun, but denied knowing
    that James had carried the gun into the
    bank or used a gun during the robbery.
    Tom stated that he never saw James bran-
    dish a gun while they were robbing the
    bank. Finally, although Tom told the FBI
    in a post-arrest statement that he
    watched James throw down two guns outside
    of the bank, at trial he testified that
    he never saw James with a gun outside of
    the bank.
    James testified at Tom’s trial and
    admitted that he carried a gun into the
    bank during the robbery, but said that he
    could not remember whether he told Tom
    that he had the weapon. James blamed his
    failed memory on his drug use immediately
    before the robbery. James did, however,
    confirm that the brothers had planned for
    Tom to get the cash while James was sup-
    posed to "take care of" the security
    guard.
    The jury returned a general verdict form
    which stated, "We, the jury, find the
    defendant, TOM RAY WALLACE . . . Guilty
    of the charge of armed bank robbery con-
    tained in Count 1 of the indictment filed
    in this case." The verdict form did not
    specify whether the jury found Tom di-
    rectly liable for the armed bank robbery,
    or whether it found him derivatively
    culpable under an aiding and abetting
    theory, or both. As for the charge in
    Count 2 of the indictment, the jury de-
    cided that Tom was not guilty of using a
    firearm during the commission of a crime
    of violence. After a sentencing hearing,
    the district court sentenced Tom to 180
    months in prison and five years of super-
    vised release. Tom now appeals the suffi-
    ciency of the evidence which supported
    his conviction, a jury instruction, and
    his sentence.
    II.    Analysis
    A.    Sufficiency of the Evidence
    Tom first argues that there was insuffi-
    cient evidence presented at trial to hold
    him liable as an aider and abettor of the
    armed bank robbery./2 Challenging the
    sufficiency of the evidence is an uphill
    battle and the defendant bears a heavy
    burden. United States v. Bradley, 
    196 F.3d 762
    , 766 (7th Cir. 1999). "We review
    the evidence in the light most favorable
    to the government, and we affirm the
    conviction if any rational fact finder
    could have found the essential elements
    of the crime were established beyond a
    reasonable doubt." United States v. Thor-
    nton, 
    197 F.3d 241
    , 253-54 (7th Cir.
    1999).
    "To prove armed bank robbery, the gov-
    ernment must show . . . that a bank was
    forcibly robbed, 18 U.S.C. sec. 2113(a),
    and that by the use of a dangerous weapon
    or device, the bank robber assaulted
    someone or put lives in jeopardy. 18
    U.S.C. sec. 2113(d)." United States v.
    Woods, 
    148 F.3d 843
    , 846 (7th Cir. 1998).
    To show that Tom is guilty of aiding and
    abetting in the armed bank robbery, "the
    government must prove not only that [he]
    knew a bank robbery would occur, but also
    that a weapon would likely be used in the
    crime." 
    Id. Tom contends
    that there was insufficient
    evidence to convict him of aiding and
    abetting in the armed bank robbery be-
    cause there was no proof that he knew
    James was planning to carry a gun or that
    James used a gun during the robbery. The
    evidence presented at trial, however,
    fails to support this argument. Viewing
    the evidence in the light most favorable
    to the government, as we must, there is
    ample proof from which a jury could con-
    clude that Tom knew his brother planned
    to carry a gun and that James used a gun
    during the bank robbery./3
    At trial, Tom admitted knowing that
    James owned a gun. The brothers specifi-
    cally planned for the gun-owning James to
    "take care of" the bank security guard
    during the robbery. A bank security pho-
    tograph shows James wielding a gun when
    the Wallace brothers entered the bank and
    while Tom was standing directly next to
    James. Witnesses testified that when
    James took the bank security guard’s gun,
    James shouted at the guard, "Give me your
    weapon. Get on the ground." Additionally,
    when a customer raised his head, James
    yelled at the customer, "You want me to
    blow your god damned head off? Get your
    head back down." The jury’s conclusion
    that Tom knew he was aiding and abetting
    in an armed bank robbery was completely
    reasonable.
    Tom also points to the fact that the
    jury found him not guilty of using a
    firearm during a crime of violence in
    violation of 18 U.S.C. sec. 924(c), but
    guilty of aiding and abetting in an armed
    bank robbery. According to Tom, this
    "genuinely inconsistent verdict" should
    require us to relax what he calls the
    "strict and almost unreachable standard
    for determining insufficiency of the
    evidence." (Appellant’s Brief at 17-18.)
    We reject this argument; even assuming,
    as Tom does, that the jury convicted him
    only under an aiding and abetting theory,
    there is no inconsistency in the verdict.
    To convict Tom of aiding and abetting an
    armed bank robbery, the government merely
    had to show that he knew that a weapon
    would likely be used by someone to effect
    the robbery. 
    Woods, 148 F.3d at 846
    .
    Because Tom could be convicted of aiding
    and abetting without proof that he per-
    sonally carried or used a gun, nothing
    about the jury’s verdict can be inconsis-
    tent. The jury’s verdict seems to say
    that Tom knew his brother used a gun
    during the robbery (thus, he is guilty of
    aiding and abetting), but that Tom him-
    self never used or carried a gun (thus,
    he is not guilty of the sec. 924(c)
    charge). This conviction and acquittal
    result is both internally consistent and
    supported by the evidence./4
    B.   Jury Instruction
    Tom next complains that the district
    court erred when it gave the "ostrich"
    instruction regarding conscious avoid-
    ance. Tom contends that there was no
    evidence in the record to justify giving
    the instruction. We review the district
    court’s decision to give the ostrich
    instruction for an abuse of discretion.
    United States v. Trigg, 
    119 F.3d 493
    , 504
    (7th Cir. 1997); United States v. Walker,
    
    25 F.3d 540
    , 546 (7th Cir. 1994).
    "The ostrich instruction is properly
    given in cases ’in which there is evi-
    dence that the defendant, knowingly or
    strongly suspecting that he is involved
    in shady dealings, takes steps to make
    sure that he does not acquire full or
    exact knowledge of the nature and extent
    of those dealings. A deliberate effort to
    avoid guilty knowledge is all the guilty
    knowledge the law requires.’" United
    States v. Fauls, 
    65 F.3d 592
    , 598 (7th
    Cir. 1995) (quoting United States v.
    Giovannetti, 
    919 F.2d 1223
    , 1229 (7th
    Cir.1990)). The instruction is appropri-
    ate "when a defendant claims a lack of
    guilty knowledge and there are facts and
    evidence that support an inference of
    deliberate ignorance." 
    Walker, 25 F.3d at 546
    .
    The district court acted well within its
    discretion by giving the instruction in
    this case. Tom testified that he did not
    know that James was going to bring a gun
    to the robbery and denied knowing that
    James ever used a gun during the robbery.
    And, although he told an FBI agent dif-
    ferently in a post-arrest statement, Tom
    claimed at trial that he never saw James
    discard two guns as they fled the bank.
    By testifying that he had no knowledge of
    his brother’s use of guns during the
    robbery, Tom made the ostrich instruction
    applicable.
    C.   Sentence
    Finally, Tom asserts that the district
    court should not have applied the sen-
    tencing enhancement of U.S.S.G. sec.
    2B3.1(b)(2)(B) which requires district
    courts to increase a defendant’s offense
    level by six points "if a firearm was
    otherwise used" during a robbery. We
    review the district court’s application
    of this Guideline de novo, United States
    v. Gordon, 
    64 F.3d 281
    , 283 (7th Cir.
    1995), and review its findings of fact
    for clear error. United States v. Pigee,
    
    197 F.3d 879
    , 892 (7th Cir. 1999); United
    States v. Romero, 
    189 F.3d 576
    , 589 (7th
    Cir. 1999).
    Although his sentencing arguments are
    difficult to understand, Tom seems to
    contend that the district court should
    not have applied the sec. 2B3.1(b)(2)(B)
    enhancement because he was acquitted of
    using a firearm during a crime of vio-
    lence, 18 U.S.C. sec. 924(c). To the
    extent that this is a legal argument, it
    fails; the Guidelines explicitly require
    the enhancement for convictions under 18
    U.S.C. sec. 2113. Here, because the jury
    found Tom guilty of aiding and abetting
    an armed bank robbery in violation of 18
    U.S.C. sec. 2113(d), the enhancement must
    apply. His acquittal on the separate sec.
    924(c) count bears no relationship to the
    mandatory application of U.S.S.G. sec.
    2B3.1(b)(2)(B). See United States v.
    Cover, 
    199 F.3d 1270
    , 1277 (11th Cir.
    2000).
    To the extent that Tom means to make a
    factual argument that the enhancement
    should not apply because there was not
    enough evidence to support the finding
    that "a firearm was otherwise used," he
    is also incorrect. As we have explained,
    there was more than sufficient evidence
    at trial to show that Tom knew his broth-
    er either planned to carry a gun or that
    he actually used a gun during the rob-
    bery. Under the Guidelines, the weapon
    was attributable to Tom because he aided
    and abetted in its use. See U.S.S.G. sec.
    1B1.3(a)(1)(A); United States v. Bolden,
    
    132 F.3d 1353
    , 1356 (10th Cir. 1997)
    (sentencing enhancement for using a gun
    during an armed robbery appropriate even
    though defendant never personally used
    the gun because defendant aided accom-
    plice in committing the crime); United
    States v. Burton, 
    126 F.3d 666
    , 678-79
    (5th Cir. 1997) (same). The district
    court’s factual findings more than ade-
    quately support the enhancement.
    III.   Conclusion
    Affirmed.
    /1 Tom Wallace’s brother, James Wallace, was Tom’s
    codefendant and played a significant role in the
    facts of this case. Therefore, to avoid confu-
    sion, we refer to each Wallace brother by his
    first name.
    /2 As previously noted, Count 1 of the indictment
    charged Tom with three separate crimes--(1)
    unarmed bank robbery, (2) armed bank robbery, and
    (3) aiding and abetting an armed bank robbery.
    The general verdict finding Tom guilty of "armed
    bank robbery contained in Count 1 of the indict-
    ment" did not indicate whether the jury convicted
    him only under a direct theory of liability, or
    whether it found him responsible only under an
    aiding and abetting theory, or both. Tom’s argu-
    ments on appeal assume that the jury only con-
    victed him of aiding and abetting the armed bank
    robbery. Although the government credibly con-
    tends that there was enough evidence to support
    a finding of direct liability for the armed bank
    robbery, the government seems to accept Tom’sass-
    umption for purposes of argument. While we ex-
    press no opinion on the subject, we will analyze
    the issues in this appeal as though Tom were
    convicted only as an aider and abettor.
    /3 Tom also asks us to decide whether the government
    had to prove that he had "actual" versus "con-
    structive" knowledge that his brother used a gun
    during the robbery. Because we find plenty of
    evidence to show that Tom had actual knowledge of
    the gun, we need not resolve this issue. See
    
    Woods, 148 F.3d at 346
    .
    /4 Even if the verdict were, as Tom puts it, "genu-
    inely inconsistent," this would not be grounds
    for a reversal or new trial. See United States v.
    Mitchell, 
    146 F.3d 1338
    , 1343-45 (11th Cir. 1998)
    (verdict containing a conviction for armed rob-
    bery under 18 U.S.C. sec. 2113(d) and an acquit-
    tal on charge under 18 U.S.C. sec. 924(c) does
    not warrant reversal); United States v. McCall,
    
    85 F.3d 1193
    , 1197-98 (6th Cir. 1996) (same); see
    also United States v. Akram, 
    152 F.3d 698
    , 701
    (7th Cir. 1998) ("we do not recognize any doc-
    trine whereby a conviction under one count must
    be set aside because it appears inconsistent with
    a jury’s acquittal on a different count"); United
    States v. Castillo, 
    148 F.3d 770
    , 775 (7th Cir.
    1998) ("we have refused to afford defendants who
    face inconsistent verdicts the benefit of a
    nullification of the guilty verdicts . . . we
    refuse to question the wisdom of the jury’s
    verdict in this manner").