UNITED STATES of America v. Juan FIGUEROA, Appellant
No. 96-1421
United States Court of Appeals, Third Circuit
Decided Jan. 30, 1997.
Submitted under Third Circuit LAR 34.1(a) Dec. 10, 1996.
105 F.3d 874
BECKER, MANSMANN, and GREENBERG, Circuit Judges.
The Board appears to rely on two facts to support its ruling that the Union satisfactorily communicated to Hertz its reasons for requesting the applicant data. First, Hertz and the Union had entered into a collective bargaining agreement that prohibited direct or indirect discrimination on the basis, inter alia, of race or national origin. See Hertz, 319 N.L.R.B. at 597 (quoting text of nondiscrimination agreement). Second, the Union made clear in its letters that pursuant to its obligations under the collective-bargaining agreement, it was investigating allegations of discrimination. The NLRB therefore concluded that “the Union provided the Respondent with an adequate basis of knowing that the information request was related to the Union‘s collective-bargaining duties.”
As the ALJ found, these communications did not satisfy our requirement that the Union communicate the basis for its bargaining demand. Postal Service, 18 F.3d at 1102 n. 7. The Union was obliged to do more than state the reason and/or authority for its request for information. The Union was required to apprise Hertz of facts tending to support its suspicion that Hertz might be discriminating. Id. There is no evidence in the record that any of the Union‘s oral or written communications fulfilled this obligation. One letter from the Union noted that the Union sought the information “because it [was] investigating allegations that Hertz may have discriminated against certain protected classes of applicants in making hiring decisions for positions under the Agreement.” This vaguely worded explanation for the request referenced no facts that would have supported an objective basis for the Union‘s concerns.
We stress that the Union did not need to demonstrate actual discrimination in order to obtain information about allegedly discriminatory hiring practices. It needed only to communicate some reasonable basis for its suspicion that the employer might be engaging in discrimination. Despite a request from Hertz for more information, see App. at 214-15, Local 922 failed to satisfy this minimal obligation.
In some situations, a union‘s reason for suspecting that discrimination is occurring will be readily apparent. When it is clear that the employer should have known the reason for the union‘s request for information, a specific communication of the facts underlying the request may be unnecessary. As the ALJ noted in this case, however, two of Hertz‘s managers testified credibly that they had no idea why the Union believed that Hertz‘s hiring practices might be discriminatory until they arrived at the administrative hearing. The employment charts published in the ALJ opinion demonstrate that a significant portion of the VSA workforce was comprised of African-Americans. Although this fact does not rule out the possibility of discrimination, it does support Hertz‘s assertion that it could not readily determine the factual basis of the Union‘s claim.
Information pertaining to individuals who are not members of a union bargaining unit is not available to a union on demand. A union must communicate facts that reasonably support its suspicion of discrimination in hiring. Because Local 922 failed to do so in this case, we will grant Hertz‘s petition for review, reverse the NLRB panel decision, and remand the case to the NLRB to dismiss the Union‘s complaint. We will also deny the Board‘s cross-application for enforcement.
Mark D. Mungello, Blackwood, NJ, for Appellant.
Before: BECKER, MANSMANN, and GREENBERG, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Appellant Juan Figueroa appeals from the sentence imposed by the district court after he pleaded guilty to bank robbery in violation of
1. Jurisdiction and Standard of Review
Figueroa was indicted for violation of
2. Background
On April 24, 1995, Figueroa entered the Meridian Bank at 1470 East High Street in Pottstown, Pennsylvania, and approached a bank teller. His co-defendant, Marcellus Hammond, waited in a car outside the bank. Figueroa gave a note written by Hammond on a white napkin to the teller which read “I have a gun. Give me all the money.” The note had some other writing to the effect that Figueroa needed a bag for the money. The teller gave Figueroa $2,379.00, and Figueroa left the bank.
On September 14, 1995, a grand jury indicted Figueroa for committing robbery against Meridian Bank in violation of
3. Discussion
An ‘express threat of death,’ as used in subsection (b)(2)(F), may be in the form of an oral or written statement, act, gesture, or combination thereof. For example, an oral or written demand using words such as ‘Give me the money or I will kill you‘, ‘Give me the money or I will pull the pin on the grenade I have in my pocket‘, ‘Give me the money or I will shoot you‘, ‘Give me the money or else (where the defendant draws his hand across his throat in a slashing motion)‘, or ‘Give me the money or you are dead’ would constitute an express threat of death. The court should consider that the intent of the underlying provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, significantly greater fear than that necessary to constitute an element of the offense of robbery.
This commentary is binding on a court unless it violates the Constitution or a federal statute, is inconsistent with the guideline, or clearly misinterprets the guideline. Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). In this case none of these exceptions applies, so the commentary is binding and this appeal turns on our application of it.
Figueroa argues that he should not be subjected to the 2-level enhancement of section
In response, the Government argues that the statement “I have a gun” is an express threat of death because the reasonable inference to be drawn from that statement is that the person will use the gun if his demands
The application of section
The majority of the courts of appeals which have interpreted and applied section
The Court of Appeals for the Fourth Circuit has emphasized that the “crucial determination ... is whether a reasonable victim would fear for his or her life because of the robber‘s actions.” United States v. Murray, 65 F.3d 1161, 1166 n. 3 (4th Cir.1995). Similarly, the Court of Appeals for the Ninth Circuit has explained that what “is determinative is whether a reasonable person, given the conduct of the defendant and the context in which it occurred, would experience significantly greater fear than the level of intimidation necessary to constitute an element of the offense of robbery.” France, 57 F.3d at 866-67 (citing United States v. Strandberg, 952 F.2d 1149, 1151 (9th Cir.1991)) (footnote omitted). These courts therefore have found that statements that defendants possessed weapons or would shoot, as well as gestures simulating the appearance of a gun, are express threats of death within the meaning of section
It appears that only the Courts of Appeals for the Eleventh and Sixth Circuits have applied a stricter definition of “express threat of death.” The Court of Appeals for the Eleventh Circuit has held that “the threat must be directly and distinctly stated or expressed rather than implied or left to inference, and the threat ‘must be of death, or activity that would cause the victim to be in reasonable apprehension of his or her life....‘” United States v. Moore, 6 F.3d 715, 721-22 (11th Cir.1993) (citation omitted) (holding that statement that defendant had a gun and nothing to lose was not an express threat of death).2 The Court of Appeals for the Sixth Circuit recently has adopted the reasoning of the Court of Appeals for the Eleventh Circuit to hold that “to satisfy the qualifier ‘express,’ a defendant‘s statement must distinctly and directly indicate that the ‘defendant intends to kill or otherwise cause the death of the victim.‘” United States v. Alexander, 88 F.3d 427, 431 (6th Cir.1996) (footnote omitted).
We reject the Court of Appeals for the Eleventh Circuit‘s definition of “express threat of death” as too narrow. See also Hunn, 24 F.3d at 997 (finding the Court of Appeals for the Eleventh Circuit‘s reading of section
Moreover, the Court of Appeals for the Eleventh Circuit‘s interpretation of the guideline could result in disparate sentences for defendants who commit the same crimes. Under its reasoning, a defendant could escape the effect of section
We recognize that most of the cases we have cited involved a more detailed statement than an announcement such as that here that the defendant possessed a weapon. Yet there are cases where courts have held that such a possessory statement, accompanied by little else, is sufficient to qualify for the section
In this case, Figueroa presented a written note to the teller that stated he had a gun but he did not communicate any explicit intention to use the weapon.3 However, it is not unreasonable for a bank teller, confronted by a robber demanding money, and, as here, claiming to have a gun, to fear that his or her life is in danger. During the sentencing colloquy, the district court imagined aloud how a bank teller would perceive this situation:
I think the purpose of this was, I think to allow an enhancement where a reasonable person felt by looking at the person in the eye, normally in this situation, as well, the wrongdoer is very close to the teller. You go to a bank, the counter is there, the glass is there, sometimes the teller is as close as 24, 30 inches away. So you put all of these things together, the person‘s head and the top part of the body is looking at a person 24 inches away or so with a gun, it seems to me, that that is the sort of a thing that would place a reasonable person in fear of this, a death threat, that would seem so to me.... [H]ere is a person, eyeball to eyeball, that close, that says, I have a gun, give me the money. I think that‘s what it is for.
App. at 16-17. A teller confronted by a robber is in a tense and frightening situation; moreover, once a weapon is introduced, the level of fear intensifies. “If a person robbed a bank by delivering a note to a teller stating something like ‘give me the money and keep your mouth shut,’ an enhancement would be inappropriate. But once a robber starts embellishing—‘I have a gun—I‘m not afraid to use it—don‘t pull any alarms‘—he‘s asking for an enhancement under the guidelines because those sorts of comments place a teller, who is seriously vulnerable, in a position of enhanced fear.” United States v. Jones, 83 F.3d 927, 929 (7th Cir.1996).
The Government argues that common sense dictates that the inference to be drawn from a statement that a robber possesses a gun is that he is willing to use it. Br. at 7. This is a logical inference, and one that a reasonable recipient of the statement likely would draw. The Court of Appeals for the Fourth Circuit has held that a robber‘s statement that she has a gun pointed at the teller is tantamount to threatening to shoot the teller. Murray, 65 F.3d at 1167; see also Robinson, 86 F.3d at 1202.
We think that the logic of those cases applies here. When a robber announces, by word or by action, that he possesses a gun, he also is communicating to the reasonable victim his intention to use that weapon. After all, what is the purpose of announcing the presence of the weapon other than to convey to the victim that the weapon will be used unless the victim complies with the robber‘s demands? Surely the robber does not an-
Our interpretation of section
The note Figueroa presented to the bank teller stating that he wanted the money and that he had a gun reasonably would have been perceived by the teller as communicating Figueroa‘s intention to use the weapon. The teller therefore reasonably would have believed that Figueroa endangered her life. Figueroa‘s statement constituted an express threat of death subject to a 2-level enhancement under
While we do not doubt that our result is correct under section
This amendment adopts the majority view and clarifies the Commission‘s intent to enhance offense levels for defendants whose intimidation of the victim exceeds that amount necessary to constitute an element of a robbery offense. The amendment deletes the reference to ‘express’ in § 2B3.1(b)(2)(F) and provides for a two-level enhancement ‘if a threat of death was made‘.
Proposed: Amendment to the Federal Sentencing Guidelines, 60 Crim. L. Rep. (BNA) 2019, 2035 (Jan. 15, 1997). Inasmuch as we never before have addressed the application of section
4. Conclusion
BECKER, Circuit Judge, dissenting.
I.
The majority concludes that the defendant‘s statement to a bank teller—“I have a gun; give me all the money“—constituted an “express threat of death” so as to justify a two level increase above the base offense level for robbery under the Sentencing Guidelines. See 1995
The majority rests its holding on the last sentence of the relevant Guideline Commentary, which reads:
The court should consider that the intent of the underlying provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, significantly greater fear than that necessary to constitute an element of the offense of robbery.
if an express threat of death was made [during the commission of the robbery], increase by 2 levels.
1995
The Guideline itself, then, allows the increase only if the threat is express. Therefore, as I understand Stinson, only an express threat of death will satisfy
directly and distinctly stated or expressed rather than implied or left to inference ... Definite, Clear, Explicit, Unmistakable ...
Webster‘s Third New International Dictionary 803 (1966). There is no way, I submit, that the defendant‘s statement meets that definition. It may be an implied threat, but it is surely not an express threat.
I could elaborate upon these views, but they have recently been articulated quite forcefully by the Sixth Circuit in United States v. Alexander, 88 F.3d 427, 428-31 (6th Cir.1996), and by Judge Easterbrook, dissenting in United States v. Hunn, 24 F.3d 994, 999-1000 (7th Cir.1994) (Easterbrook, J., dissenting).1 Judge Easterbrook put it best:
The Sentencing Commission set out to distinguish degrees of threats. Saying that you have a gun does not invariably induce a fear of death. To separate ordinary references to guns, and the apprehension they produce, from the terror that a threat of death yields, the Sentencing Commission provided that only an “express threat of death” justifies the two-level increase. An implication from words and gestures is not enough. Only what the bandit says or conveys in signs, not what the victim reads into shadings of “I have a gun,” is an “express” threat. Anything else dissolves the difference between posturing and genuine threats of death.
....
Threats lie along a continuum of seriousness and gravity. Yet the Sentencing Commission did not compose a multifactor approach or ask the courts to balance objectives. It created a dichotomy between “express” and “implied” threats of death.... [F]eigning is ordinary for a bank robbery. It may have placed the teller in fear of harm, but harm is not death, and an inference from the announcement of a weapon is not an “express” threat. The application note shows ... that a conditional threat can be “express“; if, as the majority holds, an implied conditional threat also qualified, then “express” has been read out of the Guideline.
Id. (emphasis in original). I endorse these views; hence I respectfully dissent.
II.
Having been alerted to the Judicial uncertainty over the import of
In sum, while in cases that arise after the effective date of the Amendment (assuming that it passes) the district courts will be authorized to impose an upward adjustment on the basis of any intimidation of the victim that exceeds that amount necessary to constitute an element of a robbery offense, in the present case the Guideline must be construed to require an express threat of death. Because the record contains no evidence of such a threat, I would vacate the judgment and remand for resentencing.
MORTON I. GREENBERG
UNITED STATES CIRCUIT JUDGE