United States v. David Ray, A/K/A David Young

§ 206 оf the meet its burden under be able to Municipals would not in which contract Act, 824e Peti- Power U.S.C. decommissioning costs. Federal for be liable 8.2(b) unjust Paragraph showing that the contract at 28-29. Brief tioners’ provide for insofar as fails unreasonable states: so, If the Commission payment. advance permanently down or is shut if the Unit pub- provisions in the may impose alternative replacement of it purpose retired for the Pow- v. See FPC Sierra lic interest. site portion of the a new Unit Pacific 348, 352-55, Co., Unit, Buyer no er shall have occupied by said (1956); United Gas 100 L.Ed. 388 such shutdown liability the costs of Corp., retirement, v. Mobile Gas Service including Pipe removal Line Co. permanent 373, 380-81, 332, 344-45, costs, Buyer may participate S.Ct. except as 100 L.Ed. 373 such new Unit. the costs of a contin- Municipals contend that such Accordingly, case is remanded dе- with those gent approach is “inconsistent proceedings consis- for further Commission already ad- having been commissioning costs opinion. tent 8.2(b) Paragraph to Boston Edison. vanced” Municipals, but help to the may provide some ordered. So provides for of the contract Par. since C-8.2 from esti- actual costs differ refunds where

mates, may the sort of well embrace and this concerned Municipals are

correction the

about, help is mild. cur- affirm the Commission’s

We cannot contract; it credu- reading of the strains

rent decom-

lity that the drafters suppose provision depreciation missioning costs America, Appellee, STATES UNITED out for whisked them purpose for one but calculating depreciation. actually purposes of does owed the Commission The deference RAY, David David A/K/A interpre- “accept require agency not us Young, Appellant. white”, National means tation that black Corp., 811 F.2d at Suрply Fuel Gas No. 92-3261. omitted), pretty and this comes (quotations close. Appeals, States Court District of Columbia Circuit. not, however, the of the end

This is matter; way may another for the there Argued 13, 1993. Dec. Edison skin the cat. Boston Commission to per argues that Par. C-4.1.6 Intervenor April Decided decommissioning estimated mits it add investment”, charging “gross so that costs to not, depreciation would the Mu

them as argued, to Boston Edison’s re

nicipals lead full Brief

covering less its investment. than n. 1. The Administrative

of Intervenor 13 rejected the Judge explicitly possibility,

Law 65,231-32 n.

see 42 FERC it, so that not consider

Commission did Cf. for us to do now. inappropriate so 80, 94, Corp., Chenery

SEC L.Ed. 626

Further, assuming the does contract ‍‌‌‌‌‌‌​‌​‌‌​‌​‌​​‌​​​​​​​​‌‌‌​‌‌​‌‌‌​‌​​​‌‌​‌‌​​‍charge, the Commission

authorize Sussman, appointed by

Edward C. court, argued the cause and filed the briefs appellant. Bracher, Atty., Barbara K. Asst. U.S. ar- gued appellee. the cause for With her Ramsey Johnson, Atty. brief were J. filed, Fisher, the time the brief was John R. Thomas C. Black and Edward F. MсCor- mack, Attys. Asst. U.S. RANDOLPH,

Before: GINSBURG and Judges, WILL,* Circuit L. HUBERT Judge. Senior District Opinion by for the court filed Circuit Judge RANDOLPH.

Opinion concurring part dissenting part by Judge filed Senior District WILL. RANDOLPH, Judge: Circuit Ray one month David Within robbed approached same bank twice. Both times he a teller and ordered her to turn over cash or he would head off.” tellers [her] “blow involved did not see a or the outline Ray of one. Both said “moved his hands lot,” putting one around hand removing police it. arrested When Ray days robbery, several after the second they weapon. found no The driver of the get-away robbery, car in the first who testi- prosecution pursuant plea fied for the bargain, Ray with a said that he had seen Ray convicted of two counts of robbery, in aggravated bank violation of 18 2113(d).1 The issue is whether the U.S.C. * 2113(a), Of the United States North- of 18 U.S.C. District for the in violation Illinois, prоvides: sitting by designation pur- which ern District of Whoever, by suant to 28 U.S.C. or intimi- force and dation, take, attempts takes or from the reflects, judgment 1. As the of conviction presence any property or of another necessarily Ray convicted of two counts of thing belonging money other of value danger, way. In terms proceeds charged jury on the correctly trial court meaningful distinction between there is no of bank The crime of that offense. elements brandishing toy replica and a robber obtains or an individual robbery occurs when accomplish their crime pistol. Both federally money attempts to obtain inducing apprehension. Because fear and by or “by force and insured bank assault convincing, both commit an they are 2113(a). intimidation,” § The 18 U.S.C. apprehen in by placing others “immediate (an maximum оffense additional more serious personal injury.” Ladner v. United of sion fine) $5,000 imprisonment and a years’ of five 209, 212, States, 3 79 358 U.S. S.Ct. robbery when the occurs aggravated bank (1958). carry can out Neither L.Ed.2d 199 2113(a), § “as- robber, violating while may be endan kill. Yet lives his threat to the life any person, puts jeopardy or saults instances, for the same gered in and both by any person the use of a a may provoke threat reason: the robber’s language Explaining the weapon or device.” enough, This response. violent 2113(d)just told the quoted, § the court from according McLaughlin v. United prove that the

jury: government “the must 3, 1677, 16, 106 17-18 & n. S.Ct. 476 U.S. the bank during the commission of defendant 3, 15 to render 1678 n. L.Ed.2d 90 robbery or committed acts said “dangerous weapon,” and a unloaded firearm ordinary person rea- have caused an a enough to make wooden it is also injury sonably expect to die or face serious 2113(d)’s meaning. “dangerous” within weap- defendant’s use of Martinez-Jimenez, 864 See United States on device.” or (9th Cir.), 489 U.S. F.2d 668 jury to con- The instruction authorized the (1989).3 1576, 103 1099, 109 942 L.Ed.2d S.Ct. robbery charges aggravated vict on culpability between There is difference no weapon hid- regardless Ray had a whether toy Ray displaying the bank robber and Everything pocket. turned den his may “dangerous pistol. have used Neither perceive person would what a reasonable is, typically that is weapon,” “an article Nothing Ray’s and threats actions. as a 9 characteristically dangerous” such and actually Ray had depended on whether McLaugh pistol. millimeter semi-automatic object, displayed weapon whether he or other lin, But at 1678. U.S. object, have carried any or whether he could may A be an used “deviсe.” “device” both out his threats.2 object, computer complicated in “a is a however, word, com is also device.” The (in monly securities laws for exam used deceive.4 See begin by assuming ple) a scheme to We will denote Hochfelder, 425 weapon during robberies. Ernst & Ernst v. did not have a 1382-84, so, L.Ed.2d argument in favor of S.Ct. Even we can see an 2113(d). can be of the latter sort It Devices court’s view of the district control, to, care, reading. manage- impossible court said the "fourth custody, or in the union, ment, of, bank, any possession credit or the armed bank refers [element] in any savings [s]hall quotation and loan association ... weapon" or is the and the text $5,000 imprisoned or be fined not more than description fourth court's of "the element." twenty years, both. not more than or reads: 18 U.S.C. danger phrase "by the use of a 3. The — Whoever, committing, attempting to or in weapon both "assaults or device” — modifies ous commit, (a) any offense defined in subsections any jeopardy any person” "puts life section, (b) any person, or of this assaults person.” Simpson v. United any person by puts the life of 912 n. 55 L.Ed.2d 11 n. device, dangerous weapon or shall be use "weapon” "Dangerous" both modifies $10,000 imprisoned not not more than or fined at 18 n. and "device.” twenty-five years, both. than more 1678 n. 3. 106 S.Ct. at brief, prosecution, suggested that the in its 2.The portion quoted the text dealt of the instruction Unaccountably, until waited "intimidation” element interpretation "de- argument oral to offer 2113(a), weapon not the "use of vice.” 2113(d). is an element of This device” “dangerous.” applies although was for the reasons al- tion Section Thus, Ray ready violated example, mеntioned. not. For if a robber conveying impression approaches a teller and money, demands just gun, toy displaying as the robber with the without weapon, had appears it subject violated the robber would not be punishment under Section even argument, though respectable, en- in fact the weapo robber has a concealed It counters several difficulties. makes the that, n.17 The reason for language that, unsupported assumption in terms of statute, of the is that the robber has not danger, significant no there is difference be- “used” the anyone, to “assault” robberies; tween two blurs distinc- 2113(d) requires.18 By keeping 2113(d); tion between weapon concealed, the robber has not cre grips precise does not come to hold- charged ated the sort of atmosphere likely ing McLaughlin regarding of thе of provoke to violence described response. to a violent As Fourth Circuit [United States Ben v.] display gun Court wrote: “the of a instills [, (4th Cir.), denied, nett 675 F.2d 596 cert. citizen; average consequence, fear as a 1011[, 102 S.Ct. 73 L.Ed.2d danger it creates an immediate that a violent (1982) A might 1307] ]. robber who have a 17-18, response will ensue.” 476 U.S. at gun in pocket may inspire his appre some dropped S.Ct. at 1678. The Court a footnote hension, certainly not to the same de indicating the middle of this sentence that gree gun as a robber who has a in his (such apparently “an article as a hand, especially one pointing who is at gun)” “‘dangerous’ wooden would also be someone. Thus much danger there'is less meaning within the of the statute.” Id. at 18 guard that a or passing policeman a will 3,n. n. 106 S.Ct. at 1678 3. We have itali- fire, reflexively endangering employ key They cized the point words. make the Furthermore, ees and customers. dangerous weapon that a “use of or device” danger pistol whipping is at least less displays occurs when the criminal an ostensi- gun imminent when a is display. not on In bly dangerous weapon during robbery. short, brandishing gun of a creates brandishing displaying, It is the or in other special dangers, and it is reasonable to words, heightened the Court said 2113(d) being construe Section ad danger McLaughlin point where danger.19 dressed to that added So con Congress punishment deemed enhanced un- 2113(d) strued, clearly Section is not at all appropriate.' der 2113(a). redundant with Section Stevens, writing Justice for the Wardy, 17. See United States v. McLaughlin, of course chose his care- (2d Cir.1985) [, [, 475 U.S. 1053 fully. He drew the line we have described at ("if (1986)] 89 L.Ed.2d 587] urging of the United States. The Solici- - police apprehended during a bank robber General, through exаmple, represent- subsequently tor course of a discovered gun that he had a carried in his belt government’s position ed the as follows: holster, or in a a conviction under shoulder frequently pass “Robbers notes to tellers unwarranted”). probably ‍‌‌‌‌‌‌​‌​‌‌​‌​‌​​‌​​​​​​​​‌‌‌​‌‌​‌‌‌​‌​​​‌‌​‌‌​​‍be demanding money suggesting they appears Congress 18. It is of the view armed, although they may something carrying gun are be unarmed. more than the required response is to its establish use. In to cases, In clearly applies such Section decisions!)] Simpson this Court's v. United and Section not.” Brief does for the [, 6 98 S.Ct. 55 L.Ed.2d 70] (No. 18, McLaughlin States 85- (1978), and Busic v. United 446 U.S. 398 [, 5189). 64 L.Ed.2d 381] Con explanation The Solicitor General’s 924(c) gress pro amended 18 U.S.C. in 1984 to reading for this impor- 2113 is of such penalty years' impris vide an additional of five tance, totally and so contradicts the United anyone onment for who "uses or carries” a here, Attorney’s States stance during de- including firearm a crime a provides "crime of violence which an en quotation: full serves punishment hanced if committed the use a Even in the case of a who is in Thus, deadly or device.” armed, fact there are situations where Sec- 924(c) penalty the additional now Section though defendant is convicted applies even weapon,” “dangerous after words “or device” pro- provision like Section .that under a accompanying exchange of re and on the penalty for the use of vides for an enhanced Representative on the House floor. marks spelling that device. In fact, history, Congress legislative out in might expressed concern that courts Blanton example, stating that as an used Section weap not consider certain instrumеntalities 2113(d) would convicted gave examples: “a bottle of ons. He three years’ imprisonment subject un- to five also be 924(c) dangerous weapon or if the nitroglycerin,” “a bottle of water asserted der Section 98-225, S.Rep. 98th was a firearm. device Cong., nitroglycerin, which would have the same example, its 1st Sess. psychologically the minds of the effect * * * "using gun report Senate referred bank,” and “one of these new people displaying by pointing a teller or otherwise it at footnote, report noted In a it.” Id. at 314. carved out of a kind of Indiana six shooters had a that the defendant "evidence Cong. pocket piece of wood knife.” it, it, display or refer to but did not con The illustrations ‘car- Rec. 8132-33 support a conviction for nevertheless 924(c). S.Rep. tying' under Section a firearm” display will template that the robbers Thus, Congress supra, at 314 n. 10. “devices,” support and thus tend understand, language of Sec- appeared object, physical argument that “device” 924(c) suggests, that there is a distinction tion using carrying not, however, pretend between do not a scheme. We Canying also warrants addi- a firearm conclusive, § 2113 that the floor debate on 924(c) is ad- punishment, but Section tional nearly The mention of some or even so. 18, supra. problem. note See dressed to that examples necessarily the does not exclude Id. at 18-20. Group of others. See Pittston Coal existence rightly con General was The Solicitor Sebben, 105, 414, 115, 109 S.Ct. 2113(a). 2113(d)’s § engulfing § about cerned (1988); 420-21, L.Ed.2d 102 408 Cabazon 2113(a) § definition, every of By violation Indian Band Mission Indians v. National of violence, or of “force and involves the use (D.C.Cir. Comm’n, Gaming 14 F.3d 637 likely It therefore seems intimidation.”5 1994). And there is no indication that mem prospect every entails .bank spoke Congress other than those who bers by police guards or bank response, of a Representative on the House floor shared onlookers, that employees or customers understanding. Simpson v. Blanton’s See If that renders could turn violent. at at United says “danger a does or whatever the robber J., dissenting). (Rehnquist, 2113(d), § § then ous device” under Furthermore, it is not would be subsumed. rate, At here is unable stemming danger that the self-evident reported to cite even one case after law enforcement officers is the reaction of § McLaughlin in which a conviction the criminal is appreciably different when robber, physical of a bank who revealed no force, carry using or intimidation violence object, merely has bеen sustained on the deceiving robbery, when he is out than a “de- basis that his words and actions were believing a con employees into he has hardly surprising given vice.” This is weapon. cealed position of the United States meaning position § a 476 Supreme The Court adopted. At- United States at 1678 n. and in at 18 n. U.S. torneys gotten the word who have would n. 98 S.Ct. at 911- Simpson, 435 U.S. at 10 prosecute only under such robberies placed weight on an amendment 12 n. 2113(a).6 inserting closest case is The that became bill 1970); Wayne Robbery incorporates 2 the elements of assault & W. Scott, Jr., R. LaFave Austin is, 8.11(d) (1986); frightening per larceny, a with those of Substantive Criminal Law Rollin Ronald N. Law 343- M. Boyce, or intimidation so that & Criminal force and son Perkins 1982). (3d 49 ed. property. See United hands over (D.C.Cir. Jackson, 562 F.2d 803 States v. 1977); posi- Bradley 447 F.2d v. United 6. "Once the Solicitor General has taken a moot, case, (8th Cir.1971), respect pending position to a vacated as tion with will, 274 567, cases, (1972); in most become the Government's Marshall, (2d Op.Off.Legal position of course.” 1 Cir. as a matter- States v. 427 F.2d Benson, (1st Cir.1990).7 pants. During ensuing robbery he never Benson, saying while he had bank robber weapon, although revealed the fake he at gun, purposely exposed object metallic (it stuck). tempted pull it out was pocket, which the teller believed to be a court held that “notwithstanding the teller’s (It knife.) turned out be might fear the defendant have been 2113(d) conviction, sustaining the court armed, Perry’s possession of nongenuine refused to draw a distinction between a gun which was throughout the rob display,” “peek finding and a that the “man- bery did not constitute ‘use dangerous weapon ner in which the or device 2113(d).” or device’ under critical, displayed” sug- is not a remark passage F.2d at 309.8 In a inconsistent with gesting that at least there must be some sort given trial, added, display. 918 F.2d at 3. The court Congress Sixth Circuit added that could have footnote, “subsection provided statutory “for penalties enhanced apply where there was no more than a perpetrator whenever the ... threat to use violence and no de- offense caused his victim to fear that At vice was used.” 918 F.2d at n. 7. no might endangered victim’s life point did the Benson court because of indicate dangerous weapon. regardless light could be violated wheth- [In the lan 2113(d) er the robber had a in his guage §of Congress ] did not.” 991 possession. just quoted And the footnote F.2d at 310. prosecution’s contradicts the contention here There must be fine between your

that a threat —“I’ll blow head off’— proscribed lesser offense itself constitutes use of a device. 2113(a). danger It is not the associated Perry, hand, United States v. On the other with bank robberies that warrants enhanced (6th Cir.1993), against 991 F.2d 304 punishment It is the in- prosecution, candidly acknowledges. as it Perry creased danger by in caused The defendant walked into the bank robberies commit- carrying gun way.9 wooden concealed in his ted Interpreting certain 228, (1977). qualification partially Counsel 234 the mere inference that a —"in possibility object gun_ most cases"—takes into account the testimony was a loaded re- Attorney might that the General or the President garding wrapped newspaper the holes within the “reject independent the Solicitor General’s and was sufficient to establish the element of intimi- expert legal legal counsel favor of other advice necessary § dation and fear for both and policy considerations.” Id. ‍‌‌‌‌‌‌​‌​‌‌​‌​‌​​‌​​​​​​​​‌‌‌​‌‌​‌‌‌​‌​​​‌‌​‌‌​​‍was, however, 2113(d); § insufficient to estab- robbery.” lish that a was in fact used in the by prosecu 7. In each of the other cases cited 2113(d), involving § 18 tion U.S.C. the defendant Sentencing 9.The United States Guidelines in- displayed ostensibly dangerous weapon, an see § crease the offense level for violators of 2113 707, Spedalieri, United States v. 910 F.2d 709 according danger their crime created. A (10th Cir.1990); Medved, United States v. 905 discharges robber who a firearm has his base denied, (6th Cir.1990), F.2d 935 cert. 498 U.S. by offense level increased seven. U.S.S.G. 1101, 997, (1991); 111 S.Ct. 112 L.Ed.2d 1080 2B3.1(b)(2)(A). § displays, Cannon, If the robber brand- 849, (1st United States v. 903 F.2d 854 firearm, denied, possesses Cir.), 1014, 584, ishes or this boosts his base cert. 498 U.S. 111 S.Ct. 2B3.1(b)(2)(C). (1990); by § level five. Id. If the robber 112 L.Ed.2d 589 v. United States Mar tinez-Jimenez, 664, (9th Cir.), dangerous weap- 864 F.2d does the same with some other on, 665 cert. . denied, 1099, 1576, U.S. 489 109 S.Ct 103 this increases the base level Id. three. (1989), gun, 2B3.1(b)(2)(E). L.Ed.2d 942 or used a real § United If the robber makes an ex- ‘ Crouthers, 635, (10th death, States v. 669 F.2d 638 Cir. press threat of 2 it results in a level 1982). 2B3.1(b)(2)(F). increase. Id. 1991, Before November the Guidelines did not Perry relied on the statement from United States 101, (2d Cir.1985), make these distinctions. U.S.S.G. Wardy, v. 777 F.2d 105 cert. 2B3.1(b)(2)(C) (1990); 1280, U.S.S.G.App. C at 186. 106 S.Ct. 89 (1986), wrapped A quoted robber who her hand in a towel and L.Ed.2d 587 at note 17 of the pretended (No. was a was therefore sentenced General's brief in 85- 5189), actually following as if she had "brandished” a real fire and on the statement from Unit Dixon, Cobh, (8th arm. v. 118— ed States v. 489 982 F.2d Cir. Cir.1992), denied, 1977): - U.S. -, however, (3d “We know of no case which has 124 permitted to convict under 113 S.Ct. 1140 States, 453, -, 2113(d)’s 111 S.Ct. ... device” “use of 1926, 114 thought L.Ed.2d 524 we had suggested far when thus the sense —that actually applied only grievously have a dan- the canon to statutes the defendant does not McDonald, possession, ambiguous, he must States v.

gerous weapon United (D.C.Cir.1993), apparently danger- display an later Su manner F.2d some object during citing Chapman preme Court decisions not ous —not basis, but fairly high line on this level of draws a clear do not seem to demand such consistently with the statute’s uncertainty. so also does See United Ratzlaf decision language, - U.S. -, -, Court’s S.Ct. of other (1994); the decisions -and L.Ed.2d 615 Smith v. United — hand, to appeals. the other -, -, courts of On 113 S.Ct. U.S. — prosecution sug- as the interpret 2059-60, 124 (1993); L.Ed.2d 138 id. maintain gests, the same time (Scalia, J;, and at -, joined at 2063 S.Ct. offense, plunge separate as a JJ., Souter, dissenting); by Stevens and — If a robber’s words us into a morass. R.L.C., U.S. -, -, States v. danger- use of a may be considered (1992) actions 1329, 1338, 117 L.Ed.2d — “device,” between ous what is the difference (plurality opinion); id. U.S. at says “Give a case which the bank (Scalia, J., — - —, joined at 1339-41 else,” money your a case which me all Thomas, JJ., concurring in by Kennedy and money says your all or I the robber “Give me part concurring judgment); Unit out,” — punch your lights and this case? will Co., Thompson/Center Arms ed States prosecution’s version Under the U.S. —, — - —, would have committed all three robbers case, L.Ed.2d 308 In this it is ... de- “assault ... use of highly at best debatable that a are accom- Most bank robberies vice.” 2113(d) may merely consist “device” under threatening gestures. plished by words or gestures, as the of a robber’s words gestures may constitute the Those words given our contends. We have required or intimidation” “force and disagreeing prosecution, reasons 2113(a). To treat them as also satis- closely paralleling reasons the Solicitor Gen use-of-a-dangerous-device element fying the analysis To the extent our is defi eral’s. merge two §in would be to cient, consequence is that Congress meant together sections when subject ambiguous on this than we have more might try apart. One them to remain canon, supposed. ambiguity the Under provi- maintain the distinction between lenity be resolved in favor of must robbery by reserving aggravated bank sions against prosecution. the criminal Unless conveying impres- for and actions capa possession in of a capacity to use sion that the robber had the subject placing jeopardy in we ble of lives —a deadly language But the of force. must, during the next discuss—the criminal easily a distinc- does not lend itself to such robbery, in some commission of the bank speaks dangerous weapons and tion. It of object reasonably per display an manner devices, ones, deadly it talks of and while inflicting bodily capable ceived as of harm.10 putting it also uses the lives jeopardy, nothing. jury Ray displayеd “assaults,” placing connotes oth- term which 2113(d), misinterpreted Ray’s convic personal of apprehension ers in “immediate reason, must, tion under that section for that States, 358 injury.” Ladner v. United reversed. be at 79 S.Ct. at II Any about the mean lingering doubts Because the erroneous instruction made it the rule of ing of are laid to rest Ray actually whether had a dan- lenity. Although Chapman after v. United irrelevant Butler, interpreting 89 N.J. 445 A.2d 402- similar assault-with- State 10. State courts a-dangerous-weapon have reached the superseded by statutes statute as stated in People Jolly, 442 Mich. Bill, same conclusion. See 458, N.J.Super. 476 A.2d 813 State v. (1993); Wynn v. 502 N.W.2d 180-82 States, (D.C.1988); United 538 A.2d (D.C.Cir.1986), have thus far assumed gerous weapon, we suppose had a not. But S.Ct. that he did pocket during rob- deadly weapon in his possession Whether of con suppose prosecu- as well that thе

beries and during robbery may cealed firearm a bank enough evidence to enable a tion introduced 2113(d) turns, lead to a violation of we jury This properly to so find. instructed believe, following statutory language: (Ray make a could be re- difference jeopardy any person by of “puts the life 2113(d)), only aggravated if tried under dangerous weapon_” the use of a A fire robbery could be committed when a capable blowing arm someone’s head off is possession the bank in robber enters “dangerous weapon.” If a robber enters a weapon he does not reveal. The Solicitor firearm, one, bank with a even a General told the threatens, “use[s]” it when he as a could approaches “if McLaughlin that a robber did, Ray find to kill with it. someone See money, display- "without teller and demands — U.S. —, —, Smith v. United ing weаpon, appears the robber L.Ed.2d 138 subject punishment would not be (1993).12 pull A bank who does not robber even in fact the robber has just trigger guilty violating weapon.” Brief a concealed .United “puts as one who does. He (No. 85-5189). 18, McLaughlin at States jeopardy” A the lives of those inside. part company Here we Solicitor pocket places with a loaded tucked his General. that, lives at risk because of the evidence, arise, impulse proof As thé there was should the need or he will dangerous, Ray possessed a firearm each time he robbed commit murder. He is thus more dangerous, telling item consisted of far more than a robber who is the bank. The most Ray’s head off. unarmed. The General viewed the threat to blow the teller’s capable doing just solely response situation guns Loaded are that. terms of threat, therefore, robbery argued From one could rea- others sonably certainly displays weapon infer —the teller did—that when the robber does he Ray heighten danger danger in an meant what he said and that he had a otherwise up.11 Ray’s reaching into his ous situation. Brief for the United to back it States (No. 85-5189). uttering From while his threat increases perspective, probability right. the teller was the Solicitor General has just testimony get-away points point. excellent But as we have indicat driver Yes, direction, ed, perspective. lives the other but when we view what there is another during light most are a bank presented it, reasonably displays appears to when the robber what favorable to we believe a device, thereby in had a Par- firearm. find Cf. creasing that others will re- ker v. the likelihood long sentencing using pеrmissible for or car- 11. The inference is as as it is sion's enhancement 2113(d) jury rying applicable connection. to offenses. rational to let the make the a firearm Allen, amendment, County quoted by County Report Court Ulster v. The Senate 2224, 2213, General, 60 L.Ed.2d 777 that the 99 S.Ct. the Solicitor stated: "Evidence permissible jury If for infer in his but did not defendant had it, it, sup- display there has been a murder when the murderer nevertheless refer found, body Gov- 'carrying' confesses but no has been see port a conviction for a firearm rela- Harris, 225, Virgin F.2d ernment Islands v. S.Rep. tion to the crime....” 98th No. 404, (3d Cir.1991), (1983) & n. 12 then (emphasis Cong., 2d Sess. 314 n. 10 add- surely jury rationally can infer that when a ed), pp. Cong. U.S.Code & Admin.News gun, had a in fact had a inference, robber indicated he although a 3492. clear The gun. one, negative is that a bank robber who had a pocket during in his a rob- real (as bery and to it wе believe a referred post-enactment legislative history cited 12. The did), - Ray to find “used” rather McLaughlin (supra pp. would be entitled the Solicitor General in 6-7) simply gun. Congress than "carried” the United States supports interpretation. Cf. (5th Cir.1991). 924(c) Beverly, provi- F.2d amended 18 U.S.C. to make the Sussman, ‍‌‌‌‌‌‌​‌​‌‌​‌​‌​​‌​​​​​​​​‌‌‌​‌‌​‌‌‌​‌​​​‌‌​‌‌​​‍C. The court commends Edward spond violently. But lives are court, appointed by this for Esq., who was into the bank walks jeopardy when presentation his able behalf. person on his gun concealed with a loaded effect, and, verbally brandishes it. He has Reversed and remanded. the scene violent empowered himself to turn WILL, concurring Judge, District Senior only magnifies not His threat will. dissenting part: part just anyone that he will do chances analysis complete I am in accord with the way also increases the likeli-

gets in his majority opinion which in Part I of the response. agree We hood of a violent decision in agrees with the Court’s prospect General the Solicitor McLaughlin v. But being a difference. we lives lost makes (1986), as well heightened agree not that the do of the position as of the Solicitor General gun.13 displays his We when the robber McLaughlin and with if a has the hold that defendant therefore subsequent court decisions all number of murder, possesses a firearm capacity if he holding display brandishing that some killing, capable of dur- or some other device ostensibly dangerous weapon is essential robbery, ing the commission of to a conviction under 18 U.S.C. it,14he has used that threatens someone with apply not where there was no it does put lives weapon or device to threat to use violence and no more than a 2113(d).15 violating § guilty of is thеrefore apparently dangerous was exhibited. device Accordingly, agree that the overbroad, misinterpreted here was Ill and the conviction must be re- versed. on the counts judgments of conviction are reversed. charging violations conclusion, majority reaching its judgments of conviction on lesser Ray possess did not in fact assumes 2113(a), challenged in this offense of not direct and there is no for appeal, weap- The case is remanded will stand. that he did. He exhibited no evidence had did charges. on and did not state that he one but trial on the new Wardy, Suppose follows. a robber like be illustrated as 13. Dicta in United States and, Cir.1985), (2d is arrested as he runs out of the bank clear, quoted ensuing 89 L.Ed.2d search makes he had no fire- brief, words, is hard person. General's arm concealed on his In other squarе interpretation so, §of with our only bluffing. Even could be he was that "a conviction under The court there said aggravated convicted of under the probably unwarranted" if long a reason- district court’s instruction so during the rob the robber concealed bery. position employees of the bank able Wardy the robber did not conceal But in he was But under would have believed armed. guard three times with his firearm. He struck a interpretation §of a conviction our carefully how it. It is therefore uncertain Moreover, because the district could not stand. just quoted, which court considered the sentence that the court’s instruction makes it irrelevant qualifier "probably.” the cautious itself contains gun. only defendant did not in fact have a — they might perceptions tellers' reasonable doing “merely than 14. Such a robber is mоre injury die or face serious matter —it follows that possessing” (the testimony get-away of the other evidence case, instance) disproving pos- driver in this Thus, displayed when the defendant has view session would be of no moment. Under our ostensibly dangerous dangerous weapon or an 2113(d), § whether the defendant had fire- one, may defendant nev- our decision is that the jury light to decide in of all the arm is for 2113(d) § if ertheless be convicted evidence, including pres- evidence the defense byit threat- had an actual firearm and used fact ents. The issue is not what a reasonable dissent, quoting ening The others with it. perceive would from what the defendant did in statement, difficulty” foregoing with it has "no evidence, including the bank. It is whether proposition." . "as theoretical also all what occurred in the bank but matter, bearing is suffi- holding other evidence on and the The difference between our may jury cient to show that the defendant had firearm. rule of law embodied nothing anyone the teller’s head off. He he exhibited thought threaten to blow was a weapon apprehended weapon, possessed and, and had no when one accordingly, ear, 2113(d), getaway although testifying § driver of the could convict him under pursuant plea bar- prosecution for the to a conclusion; To majority reach this gain, Ray in stated that he had not seen must, my opinion, contradict itself. possession aof The tellers saw no I Part it holds that the trial court’s instruc- outline or contour of one. The or even the 2113(d) § charge tion that the required the they most observed was that “moved his government prove only to “that the defen- hands around a lot” and one hand during dant the cоmmission of the bank rob- nothing and removed with it. bery committed acts or said words that an ordinary person have caused rea- clear, that, majority agrees, It is and the sonably expect to to injury die or face serious under the Solicitor General’s statement by dangerous defendant’s use of a weap- and, McLaughlin, Court in on or device” was erroneous requires and believe, inferentially, holdings at least 2113(d) reversal of the conviction. The McLaughlin subsequent and all the other reason, states, opinion as the is because un- cases, § requires a disclosure of cases, actions, der the decided words and object physical some which is or could rea- threatening, however are insufficient to sus- sonably “dangerous weap- be believed to abe tain a conviction under majority acknowledges on or device.” rate, Part I that “at here II, however, In Part majority con- reported is unable cite even one case after cludes that the same words and actions McLaughlin in which a conviction jury be if sufficient finds from them that robber, physical of a bank who revealed no possessed dangerous defendant object, merely has been sustained though or device even there is no other evi- basis that his words and actions were a ‘de- This, me, legal dence he did. Maj. op. vice.’” at 1138. That statement legerdemain. longer prosecutor will no true fol- inconsistent, It is also majority as the ac- advice, majority’s Ray, lows the retries and I, knowledges in Part with all the cases he is convicted. before and holding after that a majority points out that most conviction cannot be sustained accomplished by merely bank robberies are gestures threat- on the basis words and ening gestures requires or both and to physical treat exhibition of some ob- satisfying ject them as reasonably would be to which could be believed to be merge all, it with and subsume the permits device.1 Worst of clear, Notwithstanding latter. blurring erasing and to if not the clear line between necessary, me distinction between the two drawn the Solici- sections, statutory majority proceeds tor General and all the cases and which the opinion disagree that, Part II majority approves of its Holding Part I. General, McLaughlin gestures and all the while words are insufficient to that, courts since and hold constitute a device and sustain a 2113(d) but, the same evidence which all the decided conviction under with no more majority evidence, cases hold which the holds in gestures may the same words and Part I would permit not sustain a conviction under to conclude that the defendant reasonably possessed believe and used a or other that, although threats and gobbledygook actions device is to all intents and (6th (1991); Perry, 1. See United States v. 991 F.2d 304 112 L.Ed.2d 1080 United States v. Can 1993); Wardy, non, denied, Cir. (2nd United States v. 777 F.2d 101 (1st Cir.), 903 F.2d 849 cert. Cir.1985), denied, rt. ce L.Ed.2d 589 (1986); 89 L.Ed.2d 587 (1990); Martinez-Jimenez, United States v. Cobb, (8th Cir.1977); 558 F.2d 486 United (9th Cir.), F.2d 664 (10th Cir.1990); Spedalieri, States v. 910 F.2d 707 (1989); Cir.1990), Medved, (6th United States v. 905 F.2d 935 Crouthers, (10th Cir.1982). States v. 669 F.2d 635 rt. ce (b) caused his victim or offense by the line drawn purposes eliminates might be en- that the victim’s life numerous cases. to fear and General Solicitor weapon. dangerous of a dangered because holding reconcile majority seeks to plain lan- Congress did Neither not. was erroneous instruction that the Part I supports nor case law guage of the statute by suggesting in Part II conclusion and its dangerous weap- “use of a an extension оf depended on instruction the erroneous possession of on” to include the in Part II the while perception teller’s nongenuine a by jury. made is to be determination not to referred But the erroneous analysis. agree I Id. at 309-10. jury found that to whether the teller but un- is not “use” possession alone Concealed words acts or said “committed defendant 2113(d). con- undisputed if actual And der ordinary person have caused “use,” possession not possession is cealed face serious reasonably expect to die or gestures from words and cannot inferred dangerous of a use injury defendant’s Therefore, why I no reason see possibly be. supplied). (emphasis I weapon or device.” posses- to mere we extend should find that jury not a that a should submit sion, Congress did not. when ordinary person gun if an used a defеndant majority opinion, the If I understand cases, reasonably And the do so. not jury considering a a proper instruction to analysis, all General’s well as as something as charge would read that, unless directly inferentially hold a or follows: dangerous device is apparently gun or other you may con- not The law is clear exhibited, ordinary person nor a neither an 2113(d) merely under vict the defendant reasonably used find that was can gun had a or other because said 2113(d) requires. gestured and or acted dangerous device v. Per- in United States The Sixth Circuit displayed or exhibit- but like he did never (6th Cir.1993), reached the ry, 991 F.2d 304 object like or could looked ed which conclusion: same gun reasonably believed to be a have been conclusion that emphasize that our We However, object. dangerous or other not in- dangerous weapon” does “use of words, actions or you from his are satisfied toy gun a possession of clude concealed gun or did have a hidden gestures that he language of the statute. comports with the though object he did dangerous even other for the sentence enhances it, him you may display convict not then who, committing attempting anyone robbery “puts to commit bank ability regard highest I for have any person the use of a the life of a evidence and jurors comprehend weapon....” Thus “use" to the law. The law something court’s instructions more than plainly connotes challenge evi- than the frequently more of possession. they may I to tell dence. submit that majority (emphasis supplied). Id. on mere words actions not convict possession not holds that concealed here they may, сer- is almost then tell them that pos- “use” but that is sufficient to constitute tain to confuse them. device or other session merely by jury from be inferred language of I find Nor do undisputed gestures. Perry In was compel, much less justify, toy gun. possessed a concealed the defendant agree in Part II. majority’s conclusion reasoning explaining the Sixth Cir- its statement with the Solicitor General’s say Perry: on to the vari- cuit went Supreme Court cases, including Perry, en- ous provided for Congress could have which robber “pos- does not cover situation was penalties hanced whenever money demands a teller and Congress approaches Congress did not. sessed.” display weapon, other statutory does provided enhanced could have reasonably be believed or what could device perpetrator pеnalties whenever the

H45 dangerous if in firearm, to be a device “even fact the that if a possesses a he has weapon.” has a concealed capacity Brief for agree, inflict harm. I do not however, p. the United States at 18. says that a bank robber who he has 85-5189). (No. or other device and either but, event, has or any has not does not language explicit that it by displaying fashion, “use” it init some can only if applies any the defendant “assaults or should using be convicted of it under puts in person, jeopardy any the life of though jury may even per- person by the use of a possessed hand, suaded he it. On the other device_” (emphasis supplied). I do not 2113(a) clearly applicable. understand how can one be found to have The fine drawn the Solicitor General put assaulted or the life of a and all the courts which have considered the person by weapon the use of a which he did distinction between possess not or one which was concealed and good or, is a one and should not be blurred never exhibited at all if even thinks worse, I simply eliminated. reverse possessed one. the conviction under and remand majority concludes that “when the resentencing accordingly. displayed defendant has not one, ostensibly dangerous or an our may decision is that the defendant neverthe-

less be convicted under in fact

had an actual firearm and used it threat-

ening Maj. op. others with it.” at 1142 n. 15. difficulty

I have no with that statement as a proposition,

theoretical but I ap- do with its plication. I do not see how a can deter- DEMOCRATIC CENTRAL COMMITTEE mine, beyond doubt, reasonable absent COLUMBIA, OF the DISTRICT OF evidence gestures, other than ‍‌‌‌‌‌‌​‌​‌‌​‌​‌​​‌​​​​​​​​‌‌‌​‌‌​‌‌‌​‌​​​‌‌​‌‌​​‍statements and al., Petitioners, et that “he in fact had an actual firearm and by threatening used it others with it.” This approves precisely speculating the kind of The WASHINGTON METROPOLITAN jurors

which should not do and courts should COMMISSION, AREA TRANSIT permit much encourage less them to do. Respondent, Yet, jurors since are not omniscient or en- dowed with knowledge, exactly divine that is System, Inc., D.C. Transit Intervenor majority what the would authorize them to (Brookland Garage). result, course, do. The is to enhance and lengthen the defendant’s sentence whether ON NOTICE OF INTENT TO TURN possess or not he did in fact and use a OVER POSSESSION OF BROOKLAND firearm or other device. Like the GARAGE PROPERTY. courts, Solicitor General and all the other I simply you do not believe can be found to Nos. 24415 and 24428. something have “used” which is hidden or Appeals, you may have, which not even notwithstand- District of Columbia Circuit. ing jury’s believing you possess did it. Aug. Filed 1993. agree that,

I majority also with the perspective teller, of the ges- words and April Decided tures be as intimidating forceful or as a clearly covers both. I agree majority that words and gestures may response stimulate violent jeopardy. fives in finally, agree And

Case Details

Case Name: United States v. David Ray, A/K/A David Young

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 22, 1994

Citation: 21 F.3d 1134

Docket Number: 92-3261

Court Abbreviation: D.C. Cir.