United States v. George Damm

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1543
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
George Harold Damm, *
*
Appellant. *
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Submitted: October 21, 1997
Filed: January 8, 1998
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Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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WOLLMAN, Circuit Judge.
George Harold Damm appeals his conviction for obstructing and affecting
commerce by robbery, in violation of 18 U.S.C. § 1951 (Hobbs Act), conspiracy to
interfere with commerce, in violation of 18 U.S.C. § 371, bank larceny, in violation of
18 U.S.C. § 2113(b), and using or carrying a firearm during and in relation to a crime
of violence, in violation of 18 U.S.C. § 924(c)(1). We affirm.
I.
Damm’s conviction stems from an April 1996 robbery of an American Security
Corporation armored truck in Maple Grove, Minnesota. Damm, the driver of the truck
and an employee of American Security, assisted Frederick Pruitt, Timothy Brockhouse,
Leon Garling, Shane Williams, and Marco Arizpe in stealing almost $1.5 million in
cash, checks, and food stamps, as well as a handgun. The robbery proceeds included
more than $260,000 in money and property belonging to commercial establishments
destined for deposit in banks.
Damm, an active participant in carrying out the plan, also played an integral role
in planning the robbery by providing crucial information about his co-driver, Mike
Vodinelich, details about the armored vehicle’s route, and information about American
Security’s customers. On the day of the robbery, Arizpe and Brockhouse approached
the truck as Vodinelich emerged from Champp’s Restaurant in Maple Grove. Damm,
who was driving the truck, gave the go-ahead signal to Arizpe, who pulled out a sawed-
off shotgun and ordered Vodinelich not to draw his weapon. Brockhouse then grabbed
Vodinelich’s Glock 9 mm. handgun while Arizpe had Damm open the rear door of the
truck.
After threatening to kill Vodinelich if he failed to cooperate, the robbers forced
him into the back of the truck and bound his hands and legs with tape. Brockhouse,
carrying Vodinelich’s Glock and an air pistol, got into the cab of the truck with Damm
and took his revolver, while Arizpe remained in the back of the vehicle with
Vodinelich. Damm then drove the truck, which was followed by a van driven by
Garling, to a remote dirt road, where the robbers transferred the money from the truck
to the van. They then put Damm into the back of the armored truck and fled the scene
in the van.
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Except for Arizpe, all of Damm’s co-perpetrators were apprehended, entered
plea agreements, and testified against Damm at trial. Damm was convicted on all
counts. The district court1 sentenced Damm to concurrent terms of 135 months each
for the Hobbs Act violations, a concurrent 120-month term for the bank larceny charge,
and a consecutive 60-month term on the section 924(c)(1) violation.
II.
Damm argues that because his conduct falls solely under the Federal Bank
Robbery Act (FBRA),2 he cannot be punished under either the Hobbs Act3 or the
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
2
Title 18, United States Code, Section 2113(b) provides in pertinent part:
Whoever takes and carries away, with intent to steal or purloin, any
property or money or any other thing of value exceeding $1000 belonging
to, or in the care, custody, control, management, or possession of any
bank, credit union, or any savings and loan association, shall be fined
under this title or imprisoned for not more than ten years, or both . . . .
3
Title 18, United States Code, Section 1951 provides in pertinent part:
(a) Whoever in any way or degree obstructs, delays, or affects commerce
or the movement of any article or commodity in commerce, by robbery or
extortion or attempts or conspires to do so, or commits or threatens
physical violence to any person or property in furtherance of a plan or
purpose to do anything in violation of this section shall be fined under this
title or imprisoned not more than twenty years, or both.
(b) As used in this section –
(1) The term “robbery” means the unlawful taking or obtaining of
personal property from the person or in the presence of another, against
his will, by means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property . . . .
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firearms provisions of section 924(c). He contends that the FBRA constitutes a
comprehensive statutory scheme that provides an exclusive remedy for conduct falling
entirely within its coverage and that the Hobbs Act may not be invoked to separate
what was in fact a single bank robbery.
In Simpson v. United States, 435 U.S. 6, 13-16 (1978), the Supreme Court held
that a defendant may not be sentenced under both the organic firearm enhancement
provisions of the FBRA and 18 U.S.C. § 924(c), a general firearm enhancement statute.
Damm urges that similar logic applies to his Hobbs Act sentences.4 The FBRA, being
a “‘comprehensive scheme for prosecuting and punishing persons who rob federally-
insured banks,’ was intended to exclusively proscribe conduct within its ‘coverage.’”
United States v. Beck, 511 F.2d 997, 1000 (6th Cir. 1975) (quoting United States v.
Canty, 469 F.2d 114, 127-29 (D.C. Cir. 1972)).
In United States v. Maldonado-Rivera, the Second Circuit rejected the argument
that the imposition of punishment under both the FBRA and the Hobbs Act was
improper. 992 F.2d 934, 983 (2d Cir. 1990) Conversely, the Sixth Circuit has held
that a defendant convicted of bank robbery cannot be convicted of a Hobbs Act
violation if both convictions were based on “precisely the same facts.” Beck, 511 F.2d
at 1000. In United States v. Golay, 560 F.2d 866, 869 (8th Cir. 1977), we held that
although a defendant in a bank extortion scheme could be charged and convicted under
both the bank robbery statutes and the Hobbs Act, a sentence under both of the Acts
violated double jeopardy principles.
4
Damm cites our decision in Embrey v. Hershberger, 106 F.3d 805 (8th Cir.
1997), in support of his argument. That decision has since been vacated, however, and
we have reconsidered the Embrey case en banc. See Embrey v. Hershberger, No. 95-
2906, 1997 WL 773359 at *1 (8th Cir. Dec. 17, 1997). In our en banc decision we
resolved the Embrey case on habeas corpus procedural grounds without reaching the
FBRA issues that Damm raises here. Id.
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Although Golay and Beck arguably create a bar to punishing a bank robbery
under both the Hobbs Act and the FBRA, we need not consider their potential impact
in this case, for Damm’s theft of money and property belonging to commercial
establishments other than banks vitiates his argument. Section 2113(b) applies to the
theft of property “belonging to, or in the care, custody, control, management, or
possession of any bank.” 18 U.S.C. § 2113(b).
Damm contends that the money being transferred from the commercial
establishments to the banks was in the care, custody, and control of the banks, citing
United States v. Marzano, 537 F.2d 257, 272 n.8 (7th Cir. 1976). Marzano, however,
involved the theft of bank funds from the vault of an agent courier and involved no non-
bank victims, see id. at 261, 275, whereas in the present case the record reflects that
Champp’s, a victim of the robbery, had independently contracted with American
Security to handle its needs for courier services. In Lubin v. United States, 313 F.2d
419 (9th Cir. 1963), a case with facts strikingly similar to this one, the Ninth Circuit
held that money and checks being carried toward a bank by a contract armored truck
was not yet property belonging a bank; nor was other money signed over to the courier
service on a promissory note. See id. at 421. See also United States v. Van, 814 F.2d
1004, 1008 (5th Cir. 1987) (money withdrawn by a depositor and thereafter stolen is
not bank property).
Although the funds in the American Security truck being transferred by banks
to businesses are properly considered bank property for FBRA purposes, see, e.g.,
United States v. Jakalski, 237 F.2d 503, 506 (7th Cir. 1956); White v. United States,
85 F.2d 268, 270 (D.C. Cir. 1936), funds destined for banks from businesses were not
under the care, control or custody of a bank. In light of the non-bank character of some
of the property stolen from the armored truck, then, we conclude that Damm was
properly charged, convicted, and sentenced under both the Hobbs Act and the FBRA.
III.
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Damm also challenges his firearm conviction under 18 U.S.C. § 924(c).
A conviction under section 924(c) requires proof of two elements: (1) that the
defendant used or carried a firearm; and (2) that the use or carrying was during and in
relation to a crime of violence. See Smith v. United States, 508 U.S. 223, 227-28
(1993). Because Damm’s Hobbs Act convictions are being affirmed, we need consider
only Damm’s contention that there is insufficient evidence to establish that he carried
the Glock handgun in relation to the robbery.
It is undisputable that the weapon was carried “during” the robbery. Brockhouse
took Vodinelich’s gun and kept it on his person during the robbery and escape.
Second, the reasoning in Smith and our decision in United States v. Pate, 932 F.2d 736
(8th Cir. 1991), support a finding that the weapon in these circumstances was carried
in relation to the crime. “The phrase ‘in relation to’ is expansive . . . [and] clarifies that
the firearm must have some purpose or effect with respect to the . . . crime.” Smith,
508 U.S. at 237-38. Moreover, “where the evidence adequately supports that the
weapon was used or carried in any way that effectuated the felony--whatever the
felony--a conviction may be had.” Pate, 932 F.2d at 738. The government produced
evidence both that Vodinelich’s weapon was seized from him, rendering him unable to
resist, and that Brockhouse subsequently carried the weapon throughout the robbery
and escape. Thus, the jury was presented with ample evidence that Vodinelich’s
weapon was carried in a manner that effectuated the robbery. See id. at 738 (presence
of shotgun in a bank robbery getaway car sufficient to support a conviction under
section 924(c)).
The judgment is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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