United States v. Patrick Thomas Strobehn, Jr.

421 F.3d 1017, 2005 U.S. App. LEXIS 18841, 2005 WL 2088408

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 31, 2005
• Docket: 04-50167
• Status: Published

Opinions

RYMER, Circuit Judge.

After Patrick Strobehn, Jr. arrived at the San Dimas branch of Washington Mutual Bank with a shotgun, he approached Victory Le, a security guard, from the rear. The guard was patrolling in front of the bank near the parking lot. Strobehn ordered Le to turn around, walk toward the bank, open the door, go inside, and lie face down on the floor. Within 45 seconds, Strobehn had robbed the bank of $8,144. Thanks to a tip from a (former) friend, Strobehn was eventually apprehended and charged with armed bank robbery with forced accompaniment in violation of 18 U.S.C. §§ 2113(a), (d) and (e), and with use of a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c). He was convicted and now contends that the evidence was insufficient to prove the forced accompaniment charge under § 2113(e) because the asportation was insubstantial. We conclude that Strobehn forced accompaniment without consent, which is what § 2113(e) requires. As we see no abuse of discretion in the evidentia-ry rulings about which Strobehn also complains, we affirm.

I

Section 2113(e) applies to bank robberies and provides for enhanced punishment for aggravated conduct, as follows:

Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.

Strobehn maintains that forced accompaniment should not have been submitted to the jury in light of evidence that the security guard was moved for only a few seconds, over a matter of feet, and without increasing the danger already inherent in an armed bank robbery. What proves a forced accompaniment is an issue on which we have not yet directly spoken.

We have dubbed subsection (e) a “killing” and “kidnaping” enhancement, see, e.g., United States v. Jones, 678 F.2d 102, 103, 104 (9th Cir.1982); United States v. Faleafine, 492 F.2d 18, 20 (9th Cir.1974) (en banc), but of course the statute does not literally incorporate the elements of a kidnaping offense. On its face, the enhancing elements are that a defendant (1) in the course of committing a bank robbery (2) forces a person (3) to accompany him (4) without that person’s consent. While “kidnaping” works as a shorthand description because § 2113(e) contemplates moving someone by force to someplace he doesn’t want to go, the statute plainly, and only, requires accompaniment that is forced and without consent.

Strobehn urges us to embrace a sub-stantiality requirement measured by the duration and distance of the asportation and whether it changes the environment beyond what is routine for a bank robbery. The statute has no such qualifying language. Nevertheless, Strobehn relies on two cases that did adopt a substantiality analysis: United States v. Marx, 485 F.2d 1179 (10th Cir.1973), where the court felt that more is required than forcing a bank manager to enter his own home or forcing his family to move from one room to another, and United States v. Sanchez, 782 F.Supp. 94 (C.D.Cal.1992) (Tashima, J.), in which the court in a bench trial acquitted a defendant who took a bank employee hostage at knifepoint and forced her to walk with him inside the bank for 15 feet for less than 10 seconds. Since then, a number of circuit courts of appeals have reviewed § 2113(e) convictions, and they have uniformly upheld convictions where the asportation met the statute’s unadorned requirements.

In United States v. Bauer, 956 F.2d 239, 241 (11th Cir.1992), the court upheld the conviction of a bank robber who forced two people at gunpoint to accompany him from the back to the front of the bank and one of them to exit the bank with his gun, rejecting an argument similar to that which Strobehn advances here — that the statute requires that “hostages traverse a particular number of feet, that the hostages be held against their will for a particular time period, or that the hostages be placed in a certain quantum of danger.” In United States v. Reed, 26 F.3d 523 (5th Cir.1994), the court upheld the conviction of a bank robber who accosted a bank employee as she was about to open the bank for the day, forced her at gunpoint to unlock the door, enter the bank, turn off the alarm, go to the vault, put money into his bag, and lie face down where he bound her hands and feet. Reed also rejected a “substantiality” argument, holding that it was sufficient that the defendant forced the employee to enter the bank from the outside. In United States v. Davis, 48 F.3d 277 (7th Cir.1995), the robber also accosted an employee as she was unlocking the credit union in the morning, and forced her at gunpoint to enter the facility, deactivate the alarm, turn on the lights, get her keys to the vault, and get money. The court refused to accept a challenge similar to Strobehn’s, explaining:

Davis ignores the critical fact supporting his conviction on this count: that he forced Woodman [the credit union employee], at gunpoint, to go from the parking lot into the credit union. Clearly, the phrase ‘forces any persons [sic] to accompany him without ... consent’ encompasses forcing someone outside a building to enter the building. There is nothing in the text of the statute that requires that the elements of a federal kidnapping or any other crime be satisfied. The statute simply requires what it says: forced accompaniment without consent. It is an apt description for what Davis compelled Woodman to do.

Id. at 279. Most recently, in United States v. Turner, 389 F.3d 111 (4th Cir.2004), the court found evidence that the bank robber forced the bank manager to accompany him to the vault and put money into a pillowcase sufficient to uphold a § 2113(e) conviction.

We align ourselves with the weight of circuit authority and uphold Strobehn’s conviction. He forced Le at gunpoint to go from his post outside the bank, open the door, and lie face down on the floor inside the bank while Strobehn got money from the tellers and escaped. This evidence suffices for a jury to find beyond a reasonable doubt that Strobehn forced Le to accompany him without Le’s consent while Strobehn was committing a bank robbery.¹ See Faleafine, 492 F.2d at 21 (noting as example of conduct running afoul of § 2113(e) an armed bank robber accosting a bank manager on the street when the bank was closed and forcing the manager to accompany him to the bank).

II

On the day of the robbery, Strobehn left seven pages (consisting of five sheets of paper, two of which had writing on both sides) on the kitchen table of the apartment that he shared with his wife, Kimberly, and their children. On the first page Strobehn wrote “Kimberly, honey, I hope to God you never get to read this letter,” and there followed a note that continued over to the opposite side of the paper, where about a third of the way down a line was drawn across the page. His last words before the line were “just a second — ” and after the line he wrote: “To Debbie, Larry, & Naomi,” followed by a few lines addressed to them taking up another third of the page, ending with “Love ya,” then another line across the page, after which he wrote: “To Marc, Christy, & Nicole, & Krystal” followed by a message to them that spilled over to the next page and concluded with “Love ya.” Following that message, about two-thirds of the way down the third page, Strobehn drew another line across the paper after which he wrote: “To mom, dad, & (Noella & family).” This message concluded with “I love you all.” On the top of the opposite side of this page Strobehn wrote: “To Mike, Sasha, & Lisa,” and about half way down, drew a line after which he wrote: “Grandma Peggy, Lots of love 4 U. Your too sweet,” then drew another line, after which he wrote: “Okay, honey (Kimberly) I’m back....” The next page starts with “And I say hi, to Mikie, Sean, Joanne, & to Big Marc, & of course Annette, ... Sally, Eric, & Manuel. And Kerri.” The sixth page starts with “To the family I love, — ” and the seventh, “It’s been great to be your husband,” signed “Your husband forever, Patrick.”

Strobehn moved to exclude this evidence as privileged, but the district court found that the note was not intended to be a confidential marital communication because only limited portions (page 1 and part of page 2, part of page 4, and page 5) are addressed to Strobehn’s wife and the rest is expressly directed to third parties. Strobehn argues that the district court’s ruling relied too heavily on the formatting and addressing of the note, and ignored other facts that showed that Strobehn intended the note to be confidential. We disagree.

The marital communications privilege protects statements or actions that are intended as a communication by one spouse to the other, that are made during the existence of a valid marriage, and that are intended as confidential by the spouse who makes the communication. United States v. Marashi, 913 F.2d 724, 729-30 (9th Cir.1990) (so holding, but indi-eating that the privilege is narrowly construed in criminal cases because it impedes the search for truth). Federal common law assumes that private communications between spouses are intended to be confidential, and thus privileged. Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 78 L.Ed. 617 (1934). For this reason, the government bears the burden of showing that the communication was not intended to be confidential. Blau v. United States, 340 U.S. 332, 333, 71 S.Ct. 301, 95 L.Ed. 306 (1951); Marashi, 913 F.2d at 730.

Here, Strobehn’s note was discontinuous, sequentially addressed to twenty-four people, with his opening one-and-one-third-page message to his wife immediately giving way on the same page to two messages addressed to separate groups of other people. Even if he assumed that his wife would have no reason to pass the messages on if he survived, as written the compilation was manifestly intended to be communicated to all twenty-four individuals to whom it was addressed. Therefore, the district court did not err in concluding that the marital communications privilege does not apply. See United States v. Duran, 884 F.Supp. 537, 539, 540-41, 543 (D.D.C.1995).

Ill

Bank photographs showed the robber carrying a gun. Strobehn’s wife said it looked like a shotgun Strobehn owned and that she had fired a couple of times in Kansas, where they used to live. Over objection, the district court allowed FBI Special Agent James Elliott to testify that, based on the surveillance pictures, the gun used by the robber was an NEF SB-1021 20 gauge shotgun, the same type of gun that Strobehn owned. Strobehn contends that this was error because the jury was capable of determining whether the rifle carried by the robber had the same features as the type of rifle that Strobehn owned. If this is correct, Strobehn submits, United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir.1993), indicates that allowing expert opinion on the issue is impermissible under Federal Rule of Evidence 702.

LaPierre is distinguishable. It involved lay testimony used to compare the person in bank surveillance photographs with the defendant. As we explained, the jury is able to look at the surveillance photographs of the robber and at the defendant and make an independent determination of whether the individual in the photographs is in fact the defendant. 998 F.2d at 1465. The characteristics of a gun are quite different. Elliott compared specific features of the gun in the surveillance photographs with the same features of the gun that Strobehn owned — the external hammer, round trigger guard, narrowing in the for-egrip, thickness of the barrel in relation to the foregrip, and the Monte Carlo stock comb — and based on his knowledge and experience with guns of this sort, concluded that these characteristics of the gun in the surveillance photographs and the gun owned by Strobehn were the same. He also testified that although some of these features are also similar to other guns, the questioned gun was not similar in all these respects to any other gun but Strobehn’s. It is unlikely that anyone not experienced in handling and using firearms would know what features to look at, or how to compare them. Accordingly, the district court was well within its discretion in finding that Elliot’s testimony would assist the jury in understanding the evidence. See United States v. Brown, 501 F.2d 146, 150 (9th Cir.1974), rev’d on other grounds sub nom. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) (noting that jurors may “utterly lack experience to distinguish or recognize certain objects such as firearms”).

As we see no error at all, we need not reach Strobehn’s argument that reversal is required for cumulative error.

AFFIRMED.

1 . We do not decide whether less substantial movement would suffice in a different case. Contrary to the dissent's understanding, we do not hold that " § 2113(e) 'plainly' applies to any forced accompaniment, no matter how slight.” Dissent, at 11966. Rather, we hold only that Strobehn's actions in accosting Le at gunpoint in the bank parking lot, forcing Le to walk a non-trivial distance from the parking lot to the interior of the bank, and then forcing him to lie face down inside the bank, satisfy the requirements for application of the § 2113(e) enhancement.