UNITED STATES of America, Plaintiff-Appellee, v. James Everett PERRY, Defendant-Appellant.
No. 91-6483.
United States Court of Appeals, Sixth Circuit.
April 6, 1993.
Argued Oct. 9, 1992.
As a theory of negligence, plaintiff points to the Bureau‘s violation of its own internal operating procedure requiring at least one same-sex escort for a prisoner leaving prison grounds for medical care. See Federal Prison System, U.S. Dep‘t of Justice, Program Statement 5538.1, paragraph 10(e)(1) (Oct. 30, 1985) (“Program Statement“). In Schindler, this Court determined that if state law creates negligence per se for violation of a regulation, examining the federal regulation may be relevant to determining negligence. 661 F.2d at 561. In Kentucky, violation of a statute is negligence per se if the harm resulting from the violation is the type of harm the statute is intended to prevent, if the person injured is who the statute was intended to protect, and if the statute is for safety and not for government convenience. Home Insurance Co. v. Hamilton, 253 F.Supp. 752, 755 (E.D.Ky.1966). Similarly, violation of a public safety regulation may also form the basis of negligence per se. Britton v. Wooten, 817 S.W.2d 443, 447 (Ky.1991); Hamilton, 253 F.Supp. at 754. The Program Statement, however, is not a regulation from which negligence for violation should arise per se. Cf. Schweiker v. Hansen, 450 U.S. 785, 789-90, 101 S.Ct. 1468, 1471, 67 L.Ed.2d 685 (1981) (holding Claims Manual of the Social Security Administration is not legally binding regulation). It is, instead, simply the Bureau‘s written statement of its internal operating procedures and thus insufficient to create per se liability whenever it is not followed. To hold otherwise would be to create a disincentive for the Bureau to have written procedures. An organization creates documents such as the Program Statement here as aspirational guidelines. To hold that failure to follow such guidelines creates potential Bureau liability would be to cause the Bureau to adopt as procedures only what is legally required.
The Bureau should not be discouraged, due to fears of increased liability, from promulgating guidelines which improve performance. See id. at 789-90, 101 S.Ct. at 1471.
The mere fact that a male prison guard escorted a female prisoner alone is not sufficient to make the alleged events ones which a reasonable person should have foreseen. There is no allegation that Bureau personnel had any reason to believe that Trent had any predisposition for violence or would otherwise be a danger to an inmate in his custody. Accordingly, we affirm the District Court‘s dismissal for failing to allege a state of facts under which the Bureau could have breached its duty under
IV.
For the reasons stated above, we AFFIRM the District Court‘s grant of the United States’ motion for summary judgment and its denial of plaintiff‘s motion to alter or amend the judgment.
Ned B. Pillersdorf (briefed), Pillersdorf, Derossett & Barrett, Prestonsburg, KY, Michael S. Endicott (argued and briefed), Paintsville, KY, for defendant-appellant.
Before: GUY and BATCHELDER, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.
BATCHELDER, Circuit Judge.
Defendant-appellant, James Everett Perry, appeals his conviction and sentence for armed bank robbery under
I.
On May 28, 1991, the Tug Valley Branch of the Pikeville National Bank in South Williamson, Kentucky, was robbed. A man with dark hair and a mustache and wearing a gray suit entered the bank. He approached teller Karen Cochran, who was on the telephone at the time, opened up his jacket, and told her to hang up the phone. Cochran complied. At trial, Cochran testified that she believed the robber had a gun because, when he opened his jacket a second time, “he stuck his hand [in] like he was going to get something out.” Cochran never saw a weapon but testified that she was afraid to look down at the robber‘s hands for fear she would see a weapon. The robber warned Cochran not to alert anyone.
The robber told Cochran to hand over her $100, $50, and $20 bills. She complied and asked the robber if that was all. The robber responded no and instructed her to give him the $10 and $5 bills as well. She did so. The robber walked out of the bank with $3,057. The robbery was filmed by the bank‘s surveillance camera.
Earlier the same day, an individual fitting the description of the robber had been seen in the lobby of a nearby bank, the First National Bank of Pikeville. The individual appeared suspicious. When he left that bank, a teller recorded a description of his vehicle and the license plate number. Shortly after the robbery of the Pikeville National Bank, this vehicle was discovered in a nearby parking lot. The owner of the vehicle was identified as Judy Nichols. She informed police that she had loaned the truck to Ezekiel Canterbury.
When Canterbury returned to the truck sometime after the robbery, police questioned him. Initially, Canterbury fabricated a story and denied knowing about the robbery, but then he admitted he had lied to them. Canterbury told the police that Perry had stayed at his house, that he had given Perry a ride to the bus station, and that Perry admitted he had robbed a bank. According to Canterbury, Perry gave him $500 from the proceeds of the robbery. Canterbury also informed police that Perry admitted he had carried a wooden gun into the bank and intended to display the gun, but that it had gotten stuck in his pants when he tried to remove it during the robbery. Canterbury led police to the wooden gun.
A day or so after the robbery, the police showed Karen Cochran a number of photographs. She identified two photographs as those of the man who had robbed her. After she identified the individual, she was informed that she had identified the suspect, Perry.
On June 6, 1991, Perry was charged, in a one-count indictment, with violating
II.
A.
Perry contends that the evidence was insufficient to support his conviction for the use of a dangerous weapon or device to rob a bank in violation of
We review a sufficiency of the evidence challenge to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Brown, 959 F.2d 63, 67 (6th Cir.1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)) (emphasis by Jackson court). See also United States v. Harris, 792 F.2d 866, 868 (9th Cir.1986) (upholding against sufficiency of the evidence challenge a conviction under
Section 2113 reads, in part, as follows:
§ 2113. Bank robbery and incidental crimes
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value 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 not more than $5,000 or imprisoned not more than twenty years, or both.
(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 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 not more than $5,000 or imprisoned not more than ten years, or both;
* * * * * *
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.
In McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986), the Supreme Court held that an unloaded gun is a “dangerous weapon” within the meaning of
First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.
Id. at 17-18, 106 S.Ct. at 1678 (footnote omitted).
Following McLaughlin, at least three courts of appeals, including this Court, have concluded that a toy gun is also a dangerous weapon. See United States v. Medved, 905 F.2d 935 (6th Cir.1990), cert. denied, 498 U.S. 1101, 111 S.Ct. 997, 112 L.Ed.2d 1080 (1991); United States v. Cannon, 903 F.2d 849 (1st Cir.), cert. denied, 498 U.S. 1014, 111 S.Ct. 584, 112 L.Ed.2d 589 (1990); United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir.), cert. denied, 489 U.S. 1099, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989).
In Medved, we agreed with the reasons articulated by the Ninth Circuit for concluding that a toy gun is a “dangerous weapon or device“:
“A robber who carries a toy gun during the commission of a bank robbery creates some of the same risks as those created by one who carries an unloaded or inoperable genuine gun. First, the robber subjects victims to greater apprehension. Second, the robber requires law enforcement agencies to formulate a more deliberate, and less efficient, response in light of the need to counter the apparent direct and immediate threat to human life. Third, the robber creates a likelihood that the reasonable response of police and guards will include the use of deadly force. The increased chance of an armed response creates a greater risk to the physical security of victims, bystanders, and even the perpetrators. Therefore, the greater harm that a robber creates by deciding to carry a toy gun is similar to the harm that he creates by deciding to carry an unloaded gun.”
Id. at 940 (quoting Martinez-Jimenez, 864 F.2d at 666-67). Under the rationale of Medved, we conclude that the carved wooden gun that Perry possessed when he committed the bank robbery was a dangerous weapon or device under
Section 2113(d) proscribes, not possession of a dangerous weapon or device, but the “assault[ing]” or “put[ting] in jeopardy the life [of] any person by the use of a dangerous weapon or device. . . .” The government argues that had Karen Cochran not been afraid to look down at Perry‘s hands while the robbery was occurring, for fear that he held a weapon, she might have seen a gun. According to the government, the potential for a higher level of force, because Perry possessed a concealed wooden gun, implicates
The display of a toy or wooden gun during a bank robbery constitutes “use.” See, e.g., Martinez-Jimenez, 864 F.2d at 667 (toy gun used where defendant held it by his side during robbery). Where a teller catches a glimpse of an object that the robber represents to be a gun, but that turns out to be an army knife, this also has
The government, however, has not cited, nor have we found, any cases in which a court has based liability under
We find the reasoning in Wardy and Cobb persuasive on this issue, and we conclude that notwithstanding the teller‘s fear that the defendant might have been armed, Perry‘s possession of a nongenuine gun which was concealed throughout the robbery did not constitute “use of a dangerous weapon or device” under
We emphasize that our conclusion that “use of a dangerous weapon” does not include concealed possession of a toy gun comports with the language of the statute. Section 2113(d) enhances the sentence for anyone who, in committing or attempting to commit bank robbery, “puts in jeopardy the life of any person by the use of a dangerous weapon. . . .” Thus, “use” plainly connotes something more than “possession.”1 Congress could have provided
However, while we have held that on these facts the defendant‘s conviction under
a jury would be justified in finding intimidation where a man clothed in a “leather coat” (so that a weapon could presumably be concealed) after waiting somewhat nervously in line, attempts, at best, a sham commercial transaction, and commands with the imperative “give” a teller to turn over “all [her] money.”
United States v. Robinson, 527 F.2d 1170, 1172 (6th Cir.1975) (citation omitted) (alteration in original). Accordingly, the defendant‘s conviction on the charge of violating
By the same token, it is also clear from the record that the evidence does not support the instructing of the jury on
B.
Perry next argues that the trial court erroneously permitted the victim bank teller to testify regarding her out-of-court identification of him from a photo array which he claims was impermissibly suggestive. We agree with the trial court that the witness could testify in court as to her out-of-court identification of the accused, because the pre-trial identification procedures were not impermissibly suggestive.
Permitting a witness to testify at trial about his or her pre-trial identification of a defendant is altogether proper. Fed. R. Evid. 801(d)(1)(C); Anderson v. Maggio, 555 F.2d 447, 450 (5th Cir.1977). Thus, the bank teller‘s testimony regarding Perry was proper, particularly because the previous out-of-court identification comported with constitutional standards. Perry contends that the out-of-court photo array used to identify him impermissibly distinguishes Perry from the other photos in that his photo does not have mug shot height lines in the background. Such an argument is unavailing. See Cikora v. Dugger, 840 F.2d 893 (11th Cir.1988) (although defendant was only one in photo line-up who appeared with height markings visible behind him, this fact alone did not induce the witness to pick out correct suspect).
C.
Finally, Perry argues that the district court erred in increasing his offense level, pursuant to U.S. Sentencing Guidelines § 3C1.1, for obstruction of justice. We review an enhancement under the Guidelines for clear error. United States v. Tucker, 925 F.2d 990, 991 (6th Cir.1991).
The district court, in enhancing Perry‘s sentence, relied on three incidents. First, it cited Perry‘s failure to comply with its order to be clean shaven at trial (to facilitate identification). Second, the court noted Perry‘s attempt to conceal the evidence of the crime. Perry was at a relative‘s house shortly after the robbery, and when he heard that the police were at the front door, he quickly threw some money and papers into a box and allegedly told his relative to take the money and hide it. Third, Perry sent some of the robbery proceeds to his girlfriend in Florida using aliases for both the sender and the addressee.
The obstruction of justice guideline reads in full, “If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.” U.S.S.G. § 3C1.1. The Commentary to § 3C1.1 reads in pertinent part:
The following is a non-exhaustive list of examples of the types of conduct to which this enhancement applies:
* * * * * *
(d) destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding . . . or attempting to do so; however, if such conduct occurred contemporaneously with arrest . . . it shall not, standing alone, be sufficient
to warrant an adjustment for obstruction unless it resulted in a material hindrance to the official investigation or prosecution of the instant offense or the sentencing of the offender;
U.S.S.G. § 3C1.1 Commentary, Application Note 3.
As to the first ground, the refusal to appear at trial clean shaven may warrant the enhancement. Perry attempted to disguise himself behind a full-grown beard and succeeded in part—the bank teller was unable to positively identify him in court. Although this had minimal evidentiary impact on the case because other evidence linked Perry to the crime, it is nonetheless an attempt to obstruct the prosecution of the case.
However, the second and third grounds for enhancement are contrary to the Guidelines. Perry‘s hurried attempt to conceal the evidence as the police stood at the front door was “contemporaneous with arrest” and was not, in any way, “a material hindrance” to the investigation or prosecution of his case. Perry‘s simultaneous request that his relative conceal the money he had just put in the box is part of the same incident and does not sufficiently change the nature of the act. This action fits squarely within the Commentary as an act not supporting the enhancement.
Likewise, by simply sending money (which Perry contends was never linked to the crime) to a girlfriend in Florida, Perry did not earn the obstruction of justice enhancement. At the time Perry sent the money, he had no knowledge that an investigation was underway, he did not subvert the investigation by his act, and he did not effect a delay in the prosecution of his crime. Even if this money was in fact the proceeds of the bank robbery, Perry‘s spending it or giving it away does not come within the Guidelines’ purview without at least a minimal showing by the government that it was done with the purpose of interfering with investigation or prosecution of the crime. Furthermore, the use of aliases when mailing the money is not sufficient to tip the scales in favor of the enhancement. Cf. United States v. Wilson, 904 F.2d 234 (5th Cir.1990) (use of alias during commission of offense does not justify obstruction of justice enhancement).
We conclude that the district court improperly considered both the attempt to hide the proceeds and the mailing of money to Florida in enhancing Perry‘s sentence. On remand and resentencing, the district court should consider whether the failure to appear clean shaven at trial is itself enough to justify the enhancement.
III.
Accordingly, we affirm the conviction under
CELEBREZZE, Senior Circuit Judge, dissenting.
I must respectfully dissent from the opinion of the majority. For reasons which I will more fully explain below, I would AFFIRM the judgment of the district court.
The majority finds that the evidence adduced at trial was insufficient as a matter of law to uphold a conviction pursuant to
The majority concludes that the evidence was insufficient for a jury to find that defendant used a dangerous weapon or device. There is, however, no question that a toy gun may be a dangerous weapon. The case of McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986), established the principle that an unloaded gun is a dangerous weapon within the meaning of
As the majority concedes, there is very little authority on this point. The Ninth Circuit, however, has dealt with the issue in the context of a real gun.2 That court held as follows:
The fact the [defendant] never had an opportunity to brandish or discharge his gun does not mean he did not “use” it. [Defendant] attempted to rob a bank and possession of a loaded gun was an integral part of the attempt. Moore “used” his gun, much as he used the gloves and ski mask. These items increased the likelihood of success; without them he probably would not have sailed forth.
United States v. Moore, 580 F.2d 360, 362 (9th Cir.1978).
The Ninth Circuit‘s rationale is solid and can be applied to the facts sub judice. In the instant case, defendant prepared the toy gun in such a manner as to have it closely resemble an actual weapon. He painted it black and added a piece of metal on the barrel for the sole purpose of making a duplicate of an actual weapon. Defendant went into the bank intent on brandishing the weapon and attempted to do so. His failure was due only to his own ineptitude. There was testimony that defendant opened his coat to imply he had the gun. Clearly then, under the Moore rational, the preparation and possession of the gun led to defendant‘s willingness to perpetrate the offense. Without the toy gun, he may never have attempted the robbery. His possession of the toy firearm was directly related to the bank robbery. Id. This is not a case where a defendant merely had a weapon in his possession unrelated to the underlying crime. Accordingly, it was the jury‘s prerogative to find that defendant had attempted to commit armed robbery. Although the majority seems to feel it involves a stretch of credulity to find that since the toy gun was never brandished it still emboldened defendant, it must be remembered that defendant attempted to brandish the gun. The only reason he did not was because of his own ineptitude. I cannot imagine why defendant would have constructed and attempted to display the gun if it would not have emboldened him to some extent thereby increasing the likelihood he perceived existed for success. Contrary to the majority, I am not willing to usurp the function of the jury by holding that a reasonable jury could not have found defendant “used” the gun.
The majority states that defendant did not brandish or display the gun. With that proposition I do not quarrel. However, the majority also proclaims that defendant did not allude to the gun. The record indicates
Therefore, the next step in the analysis should be to determine whether defendant‘s use of the gun was an assault or placed anyones life in jeopardy. Viewing the facts, in a light most favorable to the prosecution,3 there is no doubt in my mind that the answer is that defendant did jeopardize the teller‘s well being. Through defendant‘s specific, albeit inept, actions in using the gun, the bank teller inferred that defendant had a gun. This is not so remarkable a conclusion when one considers that, indeed he did possess a convincing replica of a gun. It seems to me to be eminently reasonable for the bank teller to have experienced the same greater apprehension that this court articulated in United States v. Medved, 905 F.2d 935 (6th Cir.1990). The Medved court quite appropriately noted that such apprehension could “bring on heart attacks and other untoward medical consequences.” Id. at 940. I would not limit the teller‘s reasonable responses to such a situation to her visual senses. She was entitled to, and could not but help, use all of her senses. To my way of thinking, defendant‘s actions in using and alluding to the gun created a justifiable and reasonable fear in the teller‘s mind. Based upon this, a jury was certainly able to conclude that defendant had committed armed bank robbery. Accordingly, I would AFFIRM the conviction.
Luke WOODWARD, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, United States Department of Labor; Straight Creek Coal Company; Liberty Mutual Insurance Company, Respondents.
No. 92-3282.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 16, 1992.
Decided April 9, 1993.