UNITED STATES of America, Appellee, v. Milton L. McCASKILL, Appellant.
No. 81-5110.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 6, 1981. Decided April 15, 1982. Rehearing Denied May 28, 1982.
676 F.2d 995
For David Chertkof‘s trust, things are not quite so simple. The erroneous income tax treatment occurred with respect to it. But David Chertkof‘s estate was responsible for the increase in estate tax liability. We are uncomfortable about deciding whether the David Chertkof trust was the taxpayer with respect to whom the 1974 determination was made without sorting out the relevance of numerous possible considerations. The assistance which briefing and argument by counsel would supply is necessary. Among possible considerations:
- Did inclusion of the values for the shares of stock owned by the David Chertkof trust in the David Chertkof Estate for federal estate tax purposes, because of the provisions of
26 U.S.C. § 2036 , constitute the David Chertkof trust the taxpayer with respect to whom the determination was made? - Was David Chertkof‘s trust, by reason of Maryland law as to apportionment of estate tax liability, responsible for the increase in that tax? If so, would that lead to substitution of David Chertkof‘s trust for the David Chertkof estate as the taxpayer with respect to whom the determination was made?
- What is the applicability or significance of the definition of “related taxpayer” in
26 U.S.C. § 1313(c) , especially the inclusion of “grantor and fiduciary” and “grantor and beneficiary?”
We accordingly reverse and remand with instructions to enter judgment awarding an income tax refund to the executors of the Annie Chertkof estate computed using, as the basis of each of the securities involved, the values reassigned by the orders of the Tax Court dated November 1, 1974. With respect to the refund claim of David Chertkof‘s trust, we vacate and remand for further proceedings not inconsistent with this opinion.
REVERSED IN PART AND VACATED AND REMANDED IN PART.
George R. Hodges, Charlotte, N. C. (Moore & Van Allen, Charlotte, N. C., on brief), for appellant.
Harold J. Bender, Asst. U. S. Atty., Charlotte, N. C. (Harold M. Edwards, U. S. Atty., Asheville, N. C., on brief), for appellee.
Before RUSSELL, ERVIN and CHAPMAN, Circuit Judges.
This appeal arises out of the defendant‘s conviction under three counts of an indictment charging him under
At trial the defendant‘s counsel submitted a request for certain instructions among which was one that, in a prosecution for aiding and abetting a bank robbery under
In his instructions the district court set forth the elements of an offense under
At the conclusion of the charge, in which was included an extremely fair statement of the defendant‘s own contentions, the district judge addressed counsel for the defendant, inquiring whether there were “[a]ny requests for additional instructions to the jury from the defendant?” The defendant‘s counsel replied, “No, sir.” The district judge went on to inquire whether the defendant had “[a]ny objections to the instructions?” Again, counsel for the defendant responded, “No, sir.” However, the defendant now contends in this appeal that the district judge should have instructed the jury as requested in his proposed instruction that the Government had to prove that the defendant knew that his co-defendants (the actual robbers) “were armed and that they” intended to use their weapons, and that he intended to aid them in that respect. Since he did not raise this objection properly at the conclusion of the district judge‘s charge, the defendant concedes that such failure to charge will support reversal only if that failure is held to be clear error.3 The defendant, however, claims that this failure to instruct was clear error citing United States v. Short, supra, and United States v. Sanborn, 563 F.2d 488 (1st Cir. 1977) as authority for such contention. This claim of error is the sole issue on appeal.
In Short the court charged the jury that a defendant, indicted as an aider and abettor in an armed bank robbery, need only know “that a bank robbery was going to be attempted or accomplished” by his co-defendant to be guilty and this is so “whether or not he knew that [the actual robber] was armed or what he was armed with” since this latter fact “is not necessary, not a necessary element to the crime.” 493 F.2d at 1172. It was that instruction which the defendant, under the facts of that case claimed to be, and the court found, erroneous. In Sanborn, the court, at two points in its opinion, made clear that this was the specific question it was addressing: First, the court said explicitly that the question before it was “whether the court erred in declining Sanborn‘s requested instruction that his knowledge of the gun had to be proven.” Later in the same paragraph, the court again identified the specific question it was answering by its decision: “Still, if the accomplice‘s knowledge of the weapon forms part of the Government‘s burden of proof in establishing the aiding and abetting of an armed robbery, it would be error for the trial court not to so advise the jury upon request. We must, therefore, decide that question.” (Italics added) 563 F.2d at 490.
In answering the question as phrased by the court in these two statements, the court in Sanborn said that the Government must show that the defendant “was on notice of the likelihood that a gun or other dangerous weapon would be used in the robbery.” But it suggests that such “notice of the likelihood” of the use of the gun may be inferred from knowledge of the possession of the gun by the confederate robber. And it adds that had there been an instruction along this line, it “would have no hesitancy whatever in affirming the present conviction” but, “[a]bsent any such instruction following upon defendant‘s explicit request,” it felt obliged to reverse. 563 F.2d at 491.
As this review of the facts in those cases shows, the ruling in both Short and Sanborn arose only because the evidence was in dispute in those cases as to whether the one charged as an aider and abettor was aware that his robber confederate was armed and thus likely to use his weapon in connection with the robbery. If the evidence is not in dispute on the knowledge of the aider and abettor, the question resolved in those cases does not arise.5
Having made this plan “to stick up a bank,” the three got together in Jackson‘s Cadillac Eldorado on the morning of the robbery. After riding around for a while, they “proceeded to Bessemer City, circled the bank [which represented the ‘sweet lick‘], checked it out,” and then parked their car a short distance away from the bank. The defendant was told to wait in the car for them, providing the robbers with a getaway car after sticking up the bank. The defendant‘s co-defendants proceeded to the bank. In his confession given the FBI, which the defendant never repudiated or impeached, he said that “he knew that both Jackson and Tijuan McCaskill [his co-defendants] were carrying pistols when they went into the bank.” On cross-examination, the investigator--again without contradiction from the defendant--repeated this account of the defendant‘s confession, adding: “He [referring to the defendant] said he didn‘t see the guns when they went in the bank. He knew they had them and had been carrying them for several days.” It is difficult to envision clearer proof of knowledge on the part of the defendant that the criminal venture in which he and his two co-defendants were engaged was “to stick up a bank” and that his co-defendants who were to do the actual “sticking up” had the guns with which to effect this object. The evidence of a planned armed robbery of a bank, in which the role of the defendant was to be that of the driver of the getaway car as he himself confessed, is thus overwhelming.
The defendant did seek to excuse his part of the robbery by declaring that “he did not go into the bank himself and did not take part in that part of the robbery” but he admitted he was the “driver of the getaway car.” The defendant seemed to assume that if he had not been in the bank at the time of the actual armed robbery, even though he had known of the plan to “stick up” the bank, and knew that his co-defendants were armed “when they went into the bank,” he could not be convicted, despite the fact that he waited in the driver‘s seat in the car until the two robbers returned and then immediately drove them off in the planted getaway car. However, as the court said in United States v. Von Roeder, 435 F.2d 1004, 1010 (10th Cir. 1971), cert. denied, 403 U.S. 934, 91 S.Ct. 2264, 29 L.Ed.2d 713:
“The escape phase of a crime is not, . . . an event occurring ‘after the robbery.’ It is part of the robbery. One who participates in and assists in the escape of the parties who were in the bank aids and abets the bank robbery . . . .”10
Nor is it important that the defendant himself was unarmed or that his role was only that of the driver of the getaway car; he still was properly convicted of armed robbery when he admitted “he knew [that] others he identified as robbers [with whom he was associated in the criminal enterprise] were armed with guns.” This was clearly declared in United States v. Johnson, 390 F.Supp. 1049 (E.D.N.Y.1975), aff‘d., 525 F.2d 999, cert. denied, 424 U.S. 920, 96 S.Ct. 1127, 47 L.Ed.2d 327 (1976), where the defendant had acted merely as a guard while others actually committed the armed robbery. In finding him guilty of armed robbery the court said (390 F.Supp. at 1056, n.5):
“Although the defendant‘s confession shows that he was unarmed, his other statements make it clear that he knew others he identified as robbers were armed with handguns. Defendant is therefore guilty as a principal as charged in Count Two [i.e., the charge under 2113(d) ].”11
There is another and an even more compelling reason why neither Short nor Sanborn is applicable here. In both of those cases, the failure to instruct that the government should prove the defendant‘s awareness of the possession of a gun by his confederates in order to establish an aiding and abetting charge was timely objected to; in this case, it is admitted that the defendant did not make a proper and timely objection. Even if the district court erred in failing to include an instruction in this case that the jury must find that the defendant had knowledge that his confederates were armed when they entered the bank, it is settled law that a defendant is precluded from relying on such error because of his own failure to object to the omission in the manner prescribed by Rule 30 of the Federal Rules of Criminal Procedure, unless it can be fairly said that the district judge‘s failure under the facts of that case so to instruct was plain error within the meaning of Rule 52(b), Fed.R.Crim.P., United States v. Whiting, 311 F.2d 191, 197-98 (4th Cir. 1962).12 Rule 52(b), Fed.R.Crim.P., which permits an appellate court to notice “[p]lain errors or defects affecting substantial rights . . . although they were not brought to the attention of the court,” however, “was never intended . . . [to] be applied in such a way as to destroy Rule 30, which provides that no party may assign as error any portion of the charge to the jury unless he objects thereto before the jury retires stating distinctly the matter to which he objects and the grounds of his objection.”
As the Supreme Court said in Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977), “[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court,”18 on the basis of the “plain error” exception in Rule 52(b). See also to the same effect, United States v. Tom, 640 F.2d 1037, 1041 (9th Cir. 1981); United States v. Palmeri, 630 F.2d 192, 201 (3d Cir.), cert. denied, 450 U.S. 967, 101 S.Ct. 1484, 67 L.Ed.2d 616 (1981).
Neither can it be said that the failure so to instruct would be clear error where the defendant‘s awareness that his confederates were armed is admitted. When one‘s confederates enter a bank armed for the purpose of robbing the bank, the likelihood that the confederates may use their weapons is manifest. There could be no miscarriage of justice arising out of a failure by the district judge to instruct that the jury, in order to convict the defendant in this case, would have to find that the defendant knew his confederates were armed when they entered the bank. The defendant knew his confederates were armed, as he said, when they entered the bank. He had ridden with his confederates on a number of occasions in the days immediately preceding the robbery. He admitted that he knew the confederates were carrying guns on those occasions. There can be no “fundamental error,” no “miscarriage of justice,” nothing “seriously affect[ing] the fairness, integrity or public reputation of judicial proceedings” in the failure of the district judge in such a case as this to instruct the jury that it must find that the defendant knew his confederates were armed.
We would add that we are by no means certain that the reason the defendant‘s counsel did not except to the instructions
Accordingly, the judgment of conviction is
AFFIRMED.
ERVIN, Circuit Judge, dissenting:
Because the majority has misconstrued the holdings and the spirit of relevant cases from other circuits and threatens to establish for this circuit an ill-advised rule of law, I respectfully dissent.
The defendant here was convicted of three offenses arising out of a single occurrence: aiding and abetting larceny, as well as bank robbery, and the aggravated offense of armed bank robbery. He has not appealed from the convictions for the first two offenses. The defendant‘s sole contention is that the district judge committed plain error when he failed to instruct the jury that the defendant could not be convicted of aiding and abetting armed bank robbery unless the defendant knew that the principals possessed and intended to use a dangerous weapon in the commission of the offense. Indeed, the district judge failed to mention the requirement of defendant‘s knowledge of use of a weapon by the principals. This is the only additional element the prosecution had to prove with respect to the defendant‘s mental state in order to distinguish the aggravated offense of armed bank robbery from simple bank robbery. The lower court allowed the defendant to be convicted, instead, of aiding and abetting an armed bank robbery on the basis of exactly the same evidence that was necessary for his conviction for aiding and abetting simple bank robbery. The affirmance by the majority of this panel condones the conviction of the defendant without requiring that the jury find the government has proved every element of the offense.
I.
The primary ground relied upon by the majority for upholding the conviction is that, contrary to analogous cases in other circuits, there is “direct evidence” here of the defendant‘s knowledge that guns were going to be used in the robbery. The distinction the majority makes between direct and circumstantial evidence is grasped from thin air. Because there is direct evidence as opposed to convincing or even compelling circumstantial evidence, the majority finds no need for the jury to determine whether an element of the offense is present. I can find no authority for this distinction.
Circumstantial evidence is not inherently less probative than direct evidence, and in some circumstances it is even more reliable. United States v. Andrino, 501 F.2d 1373, 1378 (9th Cir. 1974). Direct evidence is not superior to circumstantial evidence; Vuckson v. United States, 354 F.2d 918, 920 (9th Cir. 1966); either may lead to a correct or incorrect result, and both must be weighed by the jury in the same manner. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954). The test for sufficiency of the evidence on appeal is the same whether the evidence is direct or circumstantial. United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir. 1977).
The majority claims that the direct, unrefuted evidence in the record establishes that the defendant knew his cohorts were armed and intended to use their weapons in robbing the bank. The majority then finds that in United States v. Sanborn, 563 F.2d 488 (1st Cir. 1977), there was a factual dispute as to whether the aider and abettor had knowledge of the intention to use a weapon. I disagree with the contention
Throughout the trial, the defendant asserted that he knew nothing of the possession of guns by the principals on the day of the robbery until they were being chased by the deputy sheriff during the attempted getaway.1 If the testimony at trial was inconsistent with earlier statements to the Federal Bureau of Investigation agents, it is a matter of credibility to be considered by the jury. United States v. Young, 568 F.2d 588 (8th Cir. 1978). We, as an appellate court, have no authority to make this finding of fact, and on an issue of knowledge or intention the credibility of witnesses is of critical importance. It is possible, indeed, that the jury would have found the defendant‘s statements at trial, after he had carefully considered the events on the day of the robbery, were more accurate than the cursory response during a Federal Bureau of Investigation interrogation shortly after his arrest.
The majority distinguishes Sanborn on the basis of its conclusion that there is direct rather than circumstantial evidence. Because the same weight is to be given direct and circumstantial evidence in this instance, I believe that the factual finding as to knowledge is perhaps in greater dispute here than it was in Sanborn. In that case, the court found that “the circumstantial evidence permitted and, indeed, virtually compelled a conclusion of knowledge”2 by the accomplice that the principal in the robbery was armed. The First Circuit would not allow itself to make this finding of fact, even though the truth of the fact was compelling, without first allowing the jury to consider this element of the crime. The holding of the case is open to no other interpretation than that a jury instruction must be given as to the element of the defendant‘s knowledge that a weapon was likely to be used:
On this record, as already indicated, we would have no hesitancy whatever in affirming the present conviction for the aggravated crime (armed bank robbery) had the court given an instruction that the Government had to establish beyond a reasonable doubt that Sanborn was on notice of the likelihood that a gun or other dangerous weapon would be used in the robbery. Absent any such instruction following upon defendant‘s explicit request, we are obliged to vacate the judgment of conviction for the aggravated
§ 2113(d) offense. Id. at 491.
II.
The majority‘s second ground for its holding is that no plain error is evident within the meaning of Rule 52(b), Fed.R.Crim.P. Far from undertaking devious trial tactics as suggested by the majority, the defense at
By holding that the error committed by the trial court was harmless, the majority contradicts the finding in Short that this assertion was untenable. The court thoroughly explained its reasoning in Short, and the result was more logical than that reached by this circuit today:
This instruction is erroneous because it fails to require the jury to find an essential element of the crime of armed bank robbery as a prerequisite to conviction. It is the aider and abettor‘s state of mind, rather than the state of mind of the principal, that determines the former‘s liability. 493 F.2d at 1172.
In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Supreme Court explicitly held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id. at 364, 90 S.Ct. at 1072 (emphasis added). When the trial court fails to instruct the jury on an essential element of the offense and there is an attendant prejudice to a substantial right of the defendant, plain error has been committed. United States v. Bosch, 505 F.2d 78 (5th Cir. 1974); United States v. DeMarco, 488 F.2d 828 (2d Cir. 1973); United States v. Small, 472 F.2d 818 (3d Cir. 1972); United States v. Williams, 463 F.2d 958 (D.C.Cir.1972); United States v. O‘Dell, 462 F.2d 224 (6th Cir. 1972). The failure to have the jury consider whether the defendant knew the principals were armed and intended to use their weapons clearly comes within the plain error rule. Because I find that the defendant‘s due process and trial by jury rights have been prejudiced with respect to his conviction for aiding and abetting armed bank robbery,4 I believe there is plain error and that the conviction should be reversed.
In Re SPECIAL GRAND JURY NO. 81-1 (Leon D. Harvey). No. 81-2187. United States Court of Appeals, Fourth Circuit. Argued Jan. 5, 1981. Decided April 23, 1982.