Summary
affirming § 924(c) conviction where, mid-robbery, defendant said he had gun, but never displayed it, given he committed two other robberies within weeks where he was seen with a firearm at the time or shortly thereafter
Summary of this case from United States v. IngramOpinion
D.C. CR-96-05223-MDC
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Dec. 7, 1998.
Appeal from the United States District Court for the Eastern District of California, M.D. Crocker, Senior Judge, Presiding.
Before SCHROEDER, REINHARDT and HAWKINS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Wilson was sentenced to over 45 years in prison for his convictions on these counts.
Kevin Lee Wilson, whose counsel filed an Anders brief (see Anders v. California, 386 U.S. 738 (1967)), appeals his conviction on two counts of armed robbery in violation of 18 U.S.C. § 2113(d) and one count of carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). Wilson was convicted on a total of eight counts, including two other armed bank robbery counts and two other counts of carrying a firearm during a crime of violence.
He claims there was insufficient evidence to sustain his conviction on Count Three, armed bank robbery, and Count Four, carrying a firearm during a crime of violence, because there was insufficient evidence that he actually carried a gun during the course of the robbery in question. We have recognized that a robber's claim to have a gun during a robbery is evidence that he in fact had a gun. See United States v. Jones, 84 F.3d 1206 (9th Cir.), cert. denied, 117 S.Ct. 405 (1996). While the statement alone is probably not sufficient, here the jury had before it evidence of two other robberies within a few weeks of the robbery during which Wilson made a similar claim to have a gun and witnesses testified that they saw the gun either during or immediately after the robbery. The evidence was sufficient for the jury to infer that he also had a gun in his possession when he committed the robbery in Counts Three and Four.
Count One charged defendant with armed robbery with a knife. Wilson did not expressly claim to have a knife, but he did threaten to cut the teller's head off. There was also evidence that Wilson carried a hunting knife in his boot during the month in which the Count One robbery took place. A hunting knife was in his possession at the time of his arrest two months after the robbery. The evidence was sufficient for the jury to infer that Wilson had the means to carry out his threat in this robbery as well as the others.
Affirmed.
REINHARDT, J., dissenting.
REINHARDT, J.
I dissent from the majority's unsupported and unsupportable decision. Relying on a single inapplicable case, the court upholds an armed robbery conviction on the ground that (1) the defendant professed to have a gun and (2) used a gun in wholly unrelated robberies at a later time. Without even a single citation, the court also upholds a conviction for a different armed robbery based primarily on the testimony of the defendant's neighbor that the defendant sometimes carried a knife. It should be manifestly clear, from the statute, from common sense, and from the majority's inability to locate a case that supports its position, that such "evidence" simply is not sufficient to sustain these convictions. 1
Counts Three and Four: Armed Robbery of Bank of America and Carrying a Firearm During a Crime of Violence
Wilson entered the Bank of America in Fresno, California on July 31, 1996 and handed a teller a note reading, "Give me all your money, I've got a gun." He never displayed a gun, however, nor did anyone see him in possession of one. Although Wilson later confessed to the robbery, and was identified by the teller and by surveillance film, at no time was a gun visible, nor did Wilson admit that he had a gun during the robbery. Despite the lack of evidence that he was in possession of a weapon, Wilson was convicted of armed robbery and of carrying a firearm during the robbery.
To prove a violation of 18 U.S.C. § 2113(d) the government must prove that the defendant "assault[ed] ... or put[ ] in jeopardy the life of any person by the use of a dangerous weapon or device ... [during a bank robbery]." To prove a violation of § 924(c), the government must prove that the defendant "carrie[d] a firearm" during or in relation to a crime of violence. A conviction must, therefore, be based on some probative evidence that the defendant actually possessed a weapon during the commission of the offense.
The majority relies on our decision in United States v. Jones, 84 F.3d 1206 (9th Cir.1996), to support its conclusion that the evidence here was sufficient to sustain the convictions. Its reliance is misplaced: If anything, Jones demonstrates that this evidence is insufficient. In Jones, the defendant entered a bank and gave the teller a note which read, "This is a robbery. I have a gun." Id. at 1208. As here, the defendant in Jones never displayed a gun, and no one ever saw him in possession of the gun during the actual robbery. However, unlike the situation here, the police discovered Jones in possession of the gun when they arrested him fleeing the crime scene. The Jones court explicitly relied on this compelling evidence in rejecting Jones' sufficiency of the evidence challenge. As the court wrote, "[h]ere, Jones claimed to have a gun during the robbery, and a gun was later found in his possession among the other items of the robbery. We hold this evidence is sufficient to support the inference that Jones possessed the gun during the robbery." Id. at 1211 (second emphasis added). Because the evidence showed that Jones was in possession of the gun while fleeing from the robbery, we held that it was rational for the jury to infer from this evidence that Jones had the gun during the robbery itself.
The majority concedes that a robber's claim to have a gun is probably not sufficient, in itself, to sustain a conviction. But the additional evidence relied on by the majority here is not the type of evidence required to corroborate such a claim under the Jones holding. The inference in Jones was reasonable because the defendant was caught with the gun while fleeing the crime scene. Here, in contrast, the fact that Jones used a gun weeks later in other burglaries does not reasonably support an inference that he possessed the gun during the robbery at issue. Strikingly, the majority fails to cite a single case in support of its conclusion that this type of evidence is adequate. The evidence here simply was not sufficient to sustain the convictions.
Count One: Armed Robbery of Home Savings Bank
On June 21, 1996 Wilson robbed the Home Savings Bank in Oildale, California. He told the teller to give him money or he would cut her head off. Wilson, however, never displayed a knife during the robbery. Wilson's statement is not sufficient to warrant a conviction. Here, the only other evidence relied on by the majority is a statement made by Wilson's neighbor that "at one point in time" during June or July of 1996 Wilson carried a hunting knife, and the fact that Wilson was in possession of a knife when he was arrested for another crime some two months later. Again, such evidence is clearly of a different order than that present in Jones or required by the statute. Wilson was not caught with a knife fleeing the crime scene. There is no probative evidence that he had a knife in his possession during the robbery at issue. Accordingly, it was not rational for the jury to infer that Wilson in fact possessed the knife while committing the offense.
Conclusion
Viewing the evidence on which the majority relies in the light most favorable to the prosecution, it is clear that no rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. I would therefore reverse Wilson's convictions on Counts 1, 3, and 4.