UNITED STATES of America, Plaintiff-Appellee, v. Ricardo RUIZ and Tyrone Michael Crawford, Defendants-Appellants.
No. 92-8033.
United States Court of Appeals, Fifth Circuit.
March 15, 1993.
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We conclude that the district court abused its discretion in routinely requiring a representative of the government with ultimate settlement authority to be present at all pretrial or settlement conferences. We do not suggest that the district court can never issue such an order, but it should consider less drastic steps before doing so.
For example, the court could require the government to declare whether the case can be settled within the authority of the local United States Attorney. If so, the court could issue an order requiring the United States Attorney to either attend the conference personally or be available by telephone to discuss settlement at the time of the conference.
According to the govеrnment at argument, most of its routine litigation can be settled within the United States Attorney‘s authority. Where that is not so, and failure of the government to extend settlement authority is a serious, persistent problem, substantially hampering the operations of the docket, the court could take additional action, such as requiring the government to advise it of the identity of the person or persons who hold such authority and directing thosе persons to consider settlement in advance of the conference and be fully prepared and available by telephone to discuss settlement at the time of the conference. Finally, if the district court‘s reasonable efforts to conduct an informed settlement discussion in a particular case are thwarted because the government official with settlement authority will not communicate with government counsel or the court in a timely manner, the court, as a last resort, can require the appropriate officials with full settlement authority to attend a pretrial conference.
The measures we outline above are intended to be exemplary, and we express no ultimate view as to such hypothetical situations except to point out that there are many steps that reasonably can be taken, far short of the standing order at issue here. We include these scenarios to demonstrate that the district court, before issuing an order such as the directive under review here, must give individualized attention to the hardship that order will create. The court must then exercise its discretion in light of the circumstances of that case. We believe that such practical measures will enable the courts to аdminister their dockets efficiently while allowing the Department of Justice to handle effectively the burdensome volume of litigation thrust upon it.
IV.
In summary, we conclude that the district court abused its discretion in these cases. We find it unnecessary to issue writs of mandamus, however. The able district judge has indicated that he welcomes this court‘s exposition of this issue, and we are confident that he will abide by our decision and adjust his directives accordingly. Thus, the petitions for writs of mandamus are DENIED without prejudice.
Henry J. Bemporad, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, and Robert J. Perez, Asst. Federal Public Defender, San Antonio, TX, for Crawford.
LeRoy Morgan Jahn, Richard L. Durbin, Jr., Joan E.T. Stearns, Asst. U.S. Attys., and Ronald F. Ederer, U.S. Atty., San Antonio, TX, for the U.S.
Before WISDOM, JOLLY, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
I. Facts and Procedural History
On August 25, 1991, Ricardo Ruiz and Tyrone Michael Crawford went in Ruiz‘s truck to the Military Clothing Sales Store at Fort Bliss in El Paso, Texas. After arriving at the store, Ruiz waited with the truck engine running, while Crawford, who had a gun in his pocket, went to the back door of the store.
After hearing Crawford at the back door, the shift supervisor at the store, Martha Garner, opened the door thinking Crawford was an employee‘s spouse. Crawford then attempted to force his way inside the store, and Garner believing that Crawford was going to harm her, struggled to escape. Crawford grabbed her arm and tried to drag her back into the store, however, he did not display a gun nor did he tell Garner that he had a gun.
Garner eventually pulled away from Crawford and ran to a Military Police guard shack located 30-40 yards from the store, and told the guards to stop the truck. In the meantime, Crawford jumped back into the truck and Ruiz sped out of the parking lot. While still on the fort, Crawford threw away the gun, and got out of the truck and started walking. After Crawford got оut, a guard stopped Ruiz‘s truck whereon Ruiz told the guard that Crawford had thrown the gun from the truck. The gun, fully loaded, was found about two blocks from where Ruiz told the guard Crawford had tossed it. The gun was later proved to be inoperable because its firing pin had been filed down; but, it was, however, functional in every other respect.
Ruiz agreed to talk to the guards and did not request a lawyer. He drove around the fort with the guards and identified Crawford as he was attempting to leave the fort. At the MP station, Special Agent Steven Malkiewitcz of the FBI interviewed Ruiz, who first denied that he knew about the robbery, but later admitted to having helped plan the robbery and to having known prior to the attempted robbery that Crawford would have a gun with him.
Crawford waived his right to a lawyer. He first gave Malkiewitcz a false name and said that Ruiz had not known about the robbery. He later admitted his true identity, that he hаd attempted to rob the store, that Ruiz knew about the robbery, and that Ruiz knew Crawford would be carrying a
Ruiz and Crawford were charged in a three-count indictment that stated: (1) Ruiz and Crawford assaulted a person having charge of money and other property of the Unitеd States with the intent to rob, and in so doing put the life of the victim in jeopardy by the use of a dangerous weapon, in violation of
II. Analysis
A. 18 U.S.C. § 2114
In his first issue, Crawford contends that the evidence was insufficient as a matter of law to support his conviction under
The burden of proof is on the government to prove each element of the offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). In determining whether this burden has been met, the evidence and all reasonable inferences that may be drawn from the evidence must be viewed in the light most favorable to the government. United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir.1986). When reviewing the evidence to determine whether it is sufficient, this Court decides whether a “rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt.” United States v. Juarez-Fierro, 935 F.2d 672, 677 (5th Cir.), cert. denied, U.S., 112 S.Ct. 402, 116 L.Ed.2d 351 (1991).1
The district court (USDC) instructed the jury that “for the weapon to have been used, it must be proved that the defendant not only possessed the weapon, but that he intentionally displayed it in some manner.” Crawford contends because he never displayed the gun, and, indeed, the government concedes he did not, there is insufficient evidence that he “used” the gun, and therefore the facts in the present case are insufficient as a matter of law to support his conviction. Crawford points out that he never removed the gun from his pocket, and Garner had no idea that Crawford had
This Court has not yet decided whether a dangerous weapon is “used” within the meaning of Section 2114 if a defendant possessed a weapon when he committed a crime, but never displayed or mentioned the weapon. The Seventh Circuit, however, recently affirmed a defendant‘s cоnviction under Section 2114 when a gun was present at a robbery, but was not taken out of the defendant‘s pocket until after the robbery had been completed. United States v. Rodriguez, 925 F.2d 1049, 1051-53 (7th Cir.1991). The court reasoned that “the ready availability of the gun likely emboldened ... [the defendants] even if, at first, the gun was not drawn.” Id. at 1052-53. Likewise, in an analogous statute—
Therefore, while we find Crawford‘s contention that he did not “use” the gun initially appealing, ultimately we reject it in favor of the reasoning espoused by the Sеventh Circuit in Rodriguez and this court in Coburn and Contreras and hold a defendant need not display a gun to be convicted of “using” a dangerous weapon under Section 2114. We so hold because it would be inconsistent to interpret “use” one way in Section 2114 and another way in Section 924. Having so held, there was sufficient evidence showing that the ready availability of the gun emboldened Crawford in that by his own admission, he took the gun to the store to threaten the store‘s employees, and loaded it in case someone started firing at him. Emboldened by the gun, Crawford “used” a dangerous weapon within the meaning of Section 2114 and, by so using, placed Garner‘s life in danger.
However, the USDC instructed the jury that defendants could only be convicted under Count one (the Section 2114 charge) if “he intentionally displayed [the gun] in some manner.” The government objected to this instruction which had been requested by defense cоunsel. We are faced therefore with a unique situation in which the court‘s instruction was not raised by the evidence, and for the reasons discussed in the preceding paragraph, was not legally correct; but the jury proceeded to find Crawford guilty under this count in spite of the instruction. Under these circumstances, we conclude that the proper result is to reverse Crawford‘s conviction on Count one on the narrow ground that the evidence was insufficient to support the jury‘s verdict under the instruction as issued by the USDC.
Crawford was convicted of using or carrying a firearm during and in relation to a crime of violence under
While Crawford concedes that the gun was designed to expel a projectile when it was manufactured in 1901, he contends that the gun was not designed to expel a projectile at the time it was possessed by Crawford. When the gun‘s hammer was filed down, he contends, its design was permanently changed so as to make it inoperable, and thus there was insufficient evidence for the jury to find that the gun was designed to expel a projectile.
We disagree, because in our view the filing down of the gun‘s hammer did not change the fact that the gun was designed to expel a projectile, but rather it merely temporarily altered the gun‘s capability to accomplish the purpose for which it was designed. In sum, Crawford used a weapon that was designed to expel a projectile and the substance of that design had not been changed to effect another purpose. Except for the filed-down firing pin, the revolver was functional in every other respect. Moreover, Alcohol, Tobacco, and Firearm‘s Agent Robert Champion, a gоvernment witness, testified that the gun was a weapon that was designed to expel a projectile and that it could be converted to be made operable.
In United States v. York, 830 F.2d 885 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988), the defendant claimed that there was insufficient evidence to support his conviction under Section 924(c)(1), in that the gun in issue was inoperable—it had no firing pin, and the cylinder did not line up properly with the gun barrel. The court affirmed the conviction, holding that Section 921(a)(3) did not require a gun to be operable so long as it was designed to expel a projectile. Id. at 891. In the present case, the evidence, viewed in the light most favorable to the government and with all reasonable inferences drawn in support of the jury‘s verdict, was more than sufficient to support a finding that the inoperable gun was designed to expel a projectile, аnd therefore was a firearm.
Ruiz was convicted on count two only—Section 924(c)(1). On appeal, he contends that the evidence is insufficient to support a finding of guilt in that the evidence at trial showed that he never made any preparations for the robbery and that he never agreed to join with Crawford to rob the store. Ruiz contends that he did not know Crawford had the gun until moments before the attempted robbery, and thеrefore he had neither actual nor constructive possession of the gun, and accordingly he did not knowingly “carry” the gun. The evidence shows, and the parties agree, Crawford, not Ruiz, was the one who possessed the revolver.
We reject Crawford‘s contention. In United States v. Pineda-Ortuno, 952 F.2d 98 (5th Cir.), cert. denied, U.S., 112 S.Ct. 1990, 118 L.Ed.2d 587 (1992), this court held that the evidence was sufficient to meet the “carrying” requirement of Section 924(c), when the defendant operated a car and knew a firearm was in the car. This court stated “[w]hen a vehicle is used, ‘carrying’ takes on a different meaning from carrying on the person because the means of carrying is the vehicle itself.” In his statement at the fort, Ruiz said that Crawford had told him about the gun when Ruiz picked him up at
Ruiz also contends that a conviction under
This Court in Unitеd States v. Munoz-Fabela, 896 F.2d 908, 911 (5th Cir.), cert. denied, 498 U.S. 824, 111 S.Ct. 76, 112 L.Ed.2d 49 (1990), rejected Ruiz‘s contention. This court stated “it is only the fact of the offense, and not a conviction, that is needed to establish the required predicate.” Because there is more than ample evidence showing that a reasonable jury could have found Ruiz guilty of violating Section 2114, the fact that Ruiz was acquitted on that count does not preclude his conviction under Section 924(c)(1).
Finally, Ruiz contends that his conviction must be reversed because the indictment stated he knowingly carried and used the weapon.5 Since the statute is worded in the disjunctive, however, proof beyond a reasonable doubt that Ruiz knowingly carried the weapon without evidence that he knowingly used it, is sufficient even though the indictment is worded in the conjunctive. United States v. Atkins, 698 F.2d 711, 715 (5th Cir.1983).
III. Conclusion
For the foregoing reasons, we AFFIRM Ruiz‘s conviction as to
E. GRADY JOLLY, Circuit Judge, concurring in part and dissenting in part:
I respectfully dissent from part II.A. of the majority‘s opinion.1
The majority concludes that Crawford‘s conviction under
Even if Crawford were challenging the very instruction he requested, we would review the instruction under the plain error standard because he did not object to it at trial. “Plain errors are those which strike at the fundamental fairness, honesty, or public reputation of the trial.” United States v. Bentley, 875 F.2d 1114, 1119 (5th Cir.1989). The instruction clearly is not plain error. The government presented
Finally, we note that—unsurprisingly—the majority cites no authority for its anomalous result.
The evidence was sufficient to support Crawford‘s conviction under § 2114. This determination is all we need to make. For this reason, I respectfully dissent from the majority‘s reversal.