United States v. Waldon

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 17, 2000
• Docket: 98-5609
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0059P (6th Cir.) File Name: 00a0059p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   No. 98-5609 v.  > JESSIE LEE WALDON,  Defendant-Appellant.  1

Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 97-00064—John G. Heyburn II, District Judge. Argued: December 10, 1999 Decided and Filed: February 17, 2000 Before: BATCHELDER and MOORE, Circuit Judges; O’MALLEY, District Judge.* _________________ COUNSEL ARGUED: Frank P. Campisano, JARRETT & CAMPISANO, Louisville, Kentucky, for Appellant. John L.

* The Honorable Kathleen O’Malley, United States District Judge for the Northern District of Ohio, sitting by designation.

1 2 United States v. Waldon No. 98-5609 No. 98-5609 United States v. Waldon 19

Caudill, ASSISTANT UNITED STATES ATTORNEY, CONCLUSION Louisville, Kentucky, for Appellee. ON BRIEF: Frank P. Campisano, JARRETT & CAMPISANO, Louisville, The district court properly denied Waldon’s motion to Kentucky, for Appellant. John L. Caudill, Terry M. Cushing, suppress, his motion to instruct the jury on the lesser offense ASSISTANT UNITED STATES ATTORNEYS, Louisville, of bank larceny, and his motion for mistrial. In addition, Kentucky, for Appellee. Jessie Lee Waldron, Beaver, West when the district court sentenced Waldon, it properly added Virginia, pro se. two points for obstruction of justice and three points pursuant to §4A1.1(f). Accordingly, Waldon’s conviction and sentence _________________ are both AFFIRMED. OPINION IT IS SO ORDERED. _________________ O’MALLEY, District Judge. Jessie Lee Waldon appeals his conviction and sentence for bank robbery in violation of 18 U.S.C. §2113(a). On appeal, Waldon raises five issues. First, Waldon challenges the district court’s denial of his motion to suppress evidence. Second, Waldon challenges the district court’s failure to instruct the jury that, as an alternative to convicting him of bank robbery, it could convict him of the lesser included offense of bank larceny. Third, Waldon asserts the district court should have granted his motion for a mistrial, after two jurors observed him in handcuffs and shackles as he was being transported from the courthouse. Fourth, Waldon argues the district court erred when it enhanced his sentence for obstruction of justice, pursuant to U.S.S.G. §3C1.1. And fifth, Waldon asserts the district court erred when it added an additional 1three criminal history points pursuant to U.S.S.G. §4A1.1(f). Because we

1 The first four grounds for appeal listed above were raised by Waldon’s appellate counsel. Waldon then filed a motion pro se seeking leave to add additional grounds for appeal. In this motion, Waldon suggested that his additional grounds included, inter alia: (1) the district court’s failure to exclude certain expert trial testimony; (2) defense counsel’s ineffective assistance for failing to (a) include evidence of police radio transmissions in connection with the motion to suppress, and (b) allow Waldon to assist in his own defense; and (3) other of the district court’s evidentiary rulings. This Court granted Waldon leave to file a supplemental brief. In his supplemental brief, however, the only additional issue Waldon raised is whether the district court erred during 18 United States v. Waldon No. 98-5609 No. 98-5609 United States v. Waldon 3

interpreted §3C1.1 properly and did not err when it enhanced find none of Waldon’s assertions of error are well-taken, we Waldon’s sentence for obstruction of justice. AFFIRM both the conviction and the sentence in this case. E. Multiple Related Offenses Under U.S.S.G. §4A1.1(f). JURISDICTION Finally, Waldon filed a pro se supplemental brief in which The district court had subject matter jurisdiction over this he argues the district court erred when it added an additional case pursuant to 18 U.S.C. §3231, and this Court has three criminal history points, pursuant to U.S.S.G. §4A1.1(f), jurisdiction over Waldon’s timely appeal pursuant to 28 based on his conviction for five counts of bank robbery in U.S.C. §1291 and 18 U.S.C. §3742(a). August of 1989. Sentencing Guideline §4A1.1(f) states that a district court should: FACTUAL BACKGROUND Add 1 point for each prior sentence resulting from a On July 18, 1997, at 10:21 a.m., a man wearing a black ski conviction of a crime of violence that did not receive any mask entered the Fifth Third Bank in Louisville, Kentucky, points under (a), (b), or (c) above because such sentence and ordered the bank’s employees and customers to get down was considered related to another sentence resulting from on the floor. The man told several bank tellers to open their a conviction of a crime of violence, up to a total of 3 cash drawers, from which he took approximately $5,405. The points for this item. Provided, that this item does not man made no comments regarding a weapon, nor did he apply where the sentences are considered related because display a weapon during the robbery. As the man left the the offenses occurred on the same occasion. bank, a dye pack that had been disguised as a roll of twenty- dollar bills exploded, covering the money with red dye. U.S.S.G. §4A1.1(f) (emphasis in original). Based on descriptions that were given by several bank In this case, Waldon’s criminal history includes five employees, the police identified the suspect as being an robbery convictions for offenses that he committed on African-American male of slender or medium build, between separate occasions, but which were consolidated for 5'7" and 6'0" tall, and weighing between 140-150 pounds. He sentencing and treated as related. Because Waldon received was wearing a blue baseball cap, gloves, a nylon jacket, blue a fifty-five month sentence of imprisonment for each of these jeans, and tennis shoes. The police also knew – thanks to the five robberies (which Waldon served concurrently), the work of a loyal bank customer who followed the robber as he district court properly added a total of three points for the left the crime scene – that the suspect was driving a green prior sentence, pursuant to §4A1.1(a). See U.S.S.G. Ford Mustang that was last seen traveling on LaGrange Road. §4A1.1(a) (“[a]dd 3 points for each prior sentence of imprisonment exceeding one year and one month”). After hearing a police radio dispatch about the bank Furthermore, the district court properly added an additional robbery, George Stewart, a Jefferson County police officer three points pursuant to §4A1.1(f), because four of these five who was patrolling in the area, began driving down LaGrange sentences did not result in any additional points under Road looking for the green Mustang. Officer Stewart also §4A1.1(a). See U.S.S.G. §4A1.1(f), applic. note 6 (providing an example that is virtually identical to this case). Thus, the district court did not err when it added an additional three sentencing when it applied Sentencing Guideline 4A1.1(f). The Court criminal history points when sentencing Waldon, pursuant to does not address the other issues listed in Waldon’s pro se motion §4A1.1(f). because he did not discuss them in his supplemental brief. 4 United States v. Waldon No. 98-5609 No. 98-5609 United States v. Waldon 17

learned from the dispatch that the suspect had discarded his to the time of the crime and arrest, as opposed to during the nylon jacket, and that the red dye pack had exploded. As he criminal investigation afterwards. Waldon notes that he made was driving, Officer Stewart noticed a man standing at a bus his telephone call to Simmons as soon as he was able, after he stop, on the opposite side of the road, who generally matched was arrested, and before the police had pursued the bulk of the description of the bank robber. The person at the bus stop their criminal investigation. was an African-American male of medium build who, like the bank robber, was wearing a blue baseball cap and blue jeans. The Sentencing Guidelines make clear that neither of Officer Stewart also noticed that the man was unwilling to Waldon’s arguments is well-taken. The application notes to make eye contact with him. Suspecting that the man might be §3C1.1 provide the following example of the type of conduct the bank robber, Officer Stewart drove to the next that warrants an enhancement for obstruction of justice: intersection, turned around, and entered a church parking lot “directing or procuring another person to destroy or conceal behind the bus stop. evidence that is material to an official investigation . . . or attempting to do so.” U.S.S.G. §3C1.1, applic. note 4(d) Officer Stewart then approached the man from behind, (emphasis added). That Waldon was unsuccessful in his greeted him, explained that he was investigating a bank attempt to persuade Simmons to hinder the criminal robbery, and asked if he could see identification. As the man investigation does not relieve Waldon from the mandate of took his wallet from his pants pocket and removed his §3C1.1. Further, note 4(d) states that, if the defendant’s driver’s license from the wallet, Officer Stewart noticed that obstructive actions “occurred contemporaneously with arrest there were red dye stains on his fingertips, on his pants, and (e.g., attempting to swallow or throw away a controlled around his pockets. The man tendered his wallet, but Officer substance), it shall not, standing alone, be sufficient to Stewart never took possession of the wallet or driver’s warrant an adjustment for obstruction unless it resulted in a license, even briefly; rather, Officer Stewart asked the man to material hindrance to the official investigation or prosecution remove his identification from the wallet, and then viewed the of the instant offense or the sentencing of the offender.” Id. driver’s license as the man held it out. (emphasis added). The district court found that Waldon made the telephone call at issue in this case six hours after his Upon seeing the red dye stains on the man’s hands and arrest. Based on this finding, the district court concluded that clothing, Officer Stewart called for backup. Shortly Waldon’s actions were not an immediate attempt to jettison thereafter, two other officers arrived at the scene. One of the or hide inculpatory evidence that occurred at or near the time other officers, Robert Flynn, observed a bulge in the man’s of his arrest. We agree. sock. Concerned that the bulge might be a weapon, Officer Flynn lifted the man’s pant leg and discovered a roll of money In this case, Simmons testified that Waldon called him from in the man’s sock, amounting to approximately $2,000. jail and asked him to report as stolen the Ford Mustang that Officer Stewart then arrested the man, defendant Jessie Waldon had used as the getaway vehicle. This telephone call Waldon. clearly qualifies as an attempt on the part of Waldon to direct another person to conceal evidence material to the Subsequently, Officer Flynn located a green Ford Mustang investigation. Further, it is clear that Waldon made this across the street from the bus stop, in an apartment complex attempt to conceal material evidence long after he was parking lot. The license plates on the Mustang matched the arrested, not at the time Officer Stewart arrested him at the plates that had been recorded by a witness at the scene of the bus stop. Accordingly, we conclude that the district court crime. The Mustang was registered in the name of Louis 16 United States v. Waldon No. 98-5609 No. 98-5609 United States v. Waldon 5

both jurors regarding any potential prejudice to Waldon, and Simmons. Later that same day, Waldon made a telephone call the two jurors assured the district court that their view of from jail to Simmons and asked Simmons to report that the Waldon in handcuffs and shackles made no difference Mustang had been stolen. Simmons refused, and, instead, whatsoever in their decision. Under these circumstances, informed the police he had received the telephone call from Waldon cannot carry his burden of showing actual prejudice. Waldon. The district court did not abuse its discretion when it denied Waldon’s motion for mistrial. A federal grand jury charged Waldon with bank robbery in violation of 18 U.S.C. §2113(a). Prior to trial, Waldon D. Obstruction of Justice Under U.S.S.G. §3C1.1. moved to suppress all evidence discovered after Officer Stewart approached him at the bus stop. A Magistrate Judge Waldon argues the district court erred when it enhanced his recommended that the motion be denied, and the district court sentence for obstruction of justice, based on his unsuccessful followed this recommendation. The case then went to trial attempt to persuade Simmons, the owner of the green before a jury. During the trial, Waldon requested the district Mustang, to report the car as stolen. Sentencing Guideline court to instruct the jury that it could choose to convict him of §3C1.1 provides that a defendant’s offense level should be the lesser offense of bank larceny, a violation of 18 U.S.C. increased two levels “[i]f the defendant wilfully obstructed or §2113(b), instead of bank robbery. The district court denied impeded . . . the administration of justice during the this motion, and the jury began its deliberations on the bank investigation, prosecution, or sentencing of the instant robbery charge. After the first day of deliberations had ended, offense.” A district court’s determination that a defendant has two jurors were leaving the courthouse to return home when obstructed justice is a mixed question of law and fact. This they happened to observe Waldon, in handcuffs and shackles, Court reviews all determinations of fact for clear error, and it as he was being placed into a police vehicle. The next day, reviews the application of the sentencing guidelines to those Waldon moved for a mistrial. The district court denied this facts de novo. United States v. McDonald, 165 F.3d 1032, motion, and the jury subsequently convicted Waldon of the 1034 (6th Cir. 1999). bank robbery charge. In a Presentence Investigation Report to the district court, The district court sentenced Waldon to serve seventy the United States Probation Officer concluded that a sentence months of incarceration followed by a three-year period of enhancement for obstruction of justice was inappropriate. supervised release, and to pay restitution of $1,390. In The district court disagreed and imposed a two-level computing Waldon’s sentence, the district court included a enhancement for obstruction of justice. Waldon insists the two level enhancement for obstruction of justice, pursuant to probation officer was correct and that the court erred when it Sentencing Guideline §3C1.1, based on Waldon’s attempt to imposed the enhancement. Waldon advances two bases for persuade Simmons to report the green Mustang as stolen. The his position. First, Waldon asserts that a district court may district court also added an additional three criminal history enhance a sentence for obstruction of justice only when points to Waldon’s sentence, pursuant to Sentencing obstruction actually occurred. Waldon notes that there was no Guideline §4A1.1(f), based on Waldon’s earlier conviction actual obstruction of justice in this case, because his actions for five counts of bank robbery in August of 1989. did not actually hinder the criminal investigation – Simmons did not follow Waldon’s suggestion. Second, Waldon argues that a court may not enhance a sentence for obstruction of justice when the allegedly obstructive actions occurred close 6 United States v. Waldon No. 98-5609 No. 98-5609 United States v. Waldon 15

ANALYSIS prejudice where “[t]he conditions under which defendants were seen were routine security measures A. Motion to Suppress. rather than situations of unusual restraint such as shackling of defendants during trial.” * * * Waldon argues that the district court erred when it adopted In the instant case, defendants were inadvertently the Magistrate Judge’s recommendation and denied his observed in shackles while being transported by the motion to suppress the evidence that Officer Stewart marshals and the jury learned of defendants’ custodial discovered during his encounter with Waldon at the bus stop. status through trial testimony. The record fails, however, This Court reviews the district court’s factual findings in a to support defendants’ claims of inherent prejudice suppression hearing for clear error and reviews the district warranting mistrial. Their claims are further undermined court’s conclusions of law de novo. United States v. Leake, by the district court’s instruction to the jury that the 95 F.3d 409, 416 (6th Cir. 1996). Furthermore, this Court custodial status of the defendants was not indicative of reviews de novo the district court’s determination as to guilt or innocence and, therefore, should be disregarded. whether certain facts establish a seizure or detention in There is the presumption that juries will follow such violation of the Fourth Amendment. United States v. curative instructions. * * * Because defendants failed to Buchanon, 72 F.3d 1217, 1223 (6th Cir. 1995). “[A]s a show prejudice, we find defendants’ contention that the general matter determinations of reasonable suspicion and district court abused its discretion in denying their probable cause should be reviewed de novo on appeal.” motions for mistrial meritless. Ornelas v. United States, 517 U.S. 690, 699 (1996). Moreno, 933 F.2d at 368 (some citations omitted). This Court has explained that there are three types of permissible encounters between the police and citizens: “(1) Critically, in Moreno, we cited with approval United States the consensual encounter, which may be initiated without any v. Pina, 844 F.2d 1 (1st Cir. 1988). In Pina, the First Circuit objective level of suspicion; (2) the investigative detention, Court of Appeals undertook the following analysis: which, if non-consensual, must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the arrest, only three of the jurors saw the defendant in shackles and valid only if supported by probable cause.” United States v. the exposure was very brief. Each of the three jurors was Avery, 137 F.3d 343, 352 (6th Cir. 1997) (citations omitted). individually questioned by the judge and each insisted In this case, Waldon argues that his encounter with Officer that the encounter would have no effect on their capacity Stewart was an investigative detention from the moment that to remain unbiased. They were also instructed not to Officer Stewart first approached him at the bus stop. Waldon discuss the matter with anyone. Under these thus contends that, unless Officer Stewart can articulate a circumstances, the exposure was not “so inherently reasonable suspicion of criminal activity, any evidence seized prejudicial” as to deny the defendant a fair trial. during and after this encounter must be suppressed. Id. at 8. The primary basis for Waldon’s assertion that his interaction with Officer Stewart was, from the start, an In this case, only one juror actually saw Waldon in investigative detention and not a consensual encounter is that shackles, and that juror mentioned it contemporaneously to Officer Stewart suspected him of wrongdoing even before only one other juror; the two jurors spoke about it with no one their interaction began. Essentially, Waldon suggests that it else. The event occurred outside of the courtroom as part of is the nature of the police officer’s suspicions, rather than the a routine security measure, the district court properly queried 14 United States v. Waldon No. 98-5609 No. 98-5609 United States v. Waldon 7

The next day, the jury deliberated for another half hour and nature of the interaction between the officer and the citizen, announced it had a verdict. Just before the district court took that defines the character of the encounter. This is simply the verdict, Waldon revealed what had happened the night wrong. We have held that law enforcement officers may before. The district court then called the foreman and the approach an individual and ask general questions without other juror, separately, to sidebar – before the verdict was having any reasonable suspicion of criminal activity, so long disclosed – and asked for their versions of what happened. as the officers refrain from the type of intimidating behavior Both stated that it was a brief event and they had not that would lead a reasonable person to believe that the person mentioned it to any other jurors. When the district court was not free to leave. See United States v. Peters 194 F.3d asked if, at the time they saw Waldon, they had already made 692, 698 (6th Cir. 1999) (“[a]bsent coercive or intimidating up their minds about the verdict (which the district court still behavior which negates the reasonable belief that compliance did not know), they each said yes; when the court asked if is not compelled, the [officer’s] request for additional their having seen Waldon in handcuffs had affected their identification and voluntarily given information from the decision in any way, they each said no. The district court then defendant does not constitute a seizure under the Fourth asked for and accepted the jury’s guilty verdict and denied Amendment”); see also Florida v. Bostick, 501 U.S. 429, Waldon’s subsequent motion for mistrial. This Court will not 434-35 (1991) (explaining that “even when officers have no disturb a district court’s denial of a defendant’s motion for a basis for suspecting a particular individual, they may mistrial absent a showing of an abuse of discretion. United generally ask questions of that individual, ask to examine the States v. Moreno, 933 F.2d 362, 367 (6th Cir. 1991), cert. individual’s identification, and request consent to search his denied sub nom Morris v. United States, 502 U.S. 895 (1991). or her luggage – as long as the police do not convey a message that compliance with their requests is required”) Generally, a criminal defendant “should not be compelled (citations omitted). Whether an encounter between a police to go to trial in prison or jail clothing because of the possible officer and a citizen is consensual depends on the officer’s impairment” of the presumption of innocence guaranteed as objective behavior, not on any subjective suspicion of part of a defendant’s due process right to a fair trial. Estelle criminal activity. We know of no legal precedent suggesting v. Williams, 425 U.S. 501, 504 (1976). This holding extends a police officer can engage in a consensual encounter only to a defendant’s appearance in handcuffs and shackles. Based with citizens whom he does not suspect of wrongdoing. See on Estelle, this Court has set out a specific mode of analysis Whren v. United States, 517 U.S. 806, 813 (1996) for Waldon’s “prison garb” claim: (“[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis”); United States We will not disturb the district court’s denial of v. Rose, 889 F.2d 1490, 1493 (6th Cir. 1989) (“t]he subjective defendants’ motion for mistrial absent a showing of intent of the officers is relevant to an assessment of the fourth abuse of discretion. Exposure of the jury to a defendant amendment implications of police conduct only to the extent in shackles requires a mistrial only when the exposure is that that intent has been conveyed to the person confronted”) so “inherently prejudicial” as to deny the defendant’s (citing United States v. Mendenhall, 446 U.S. 544, 554 n.6 constitutional right to a fair trial. United States v. Pina, (1980). 844 F.2d 1, 8 (1st Cir. 1988). We have distinguished the inherent prejudice to a defendant who is shackled while The error of Waldon’s argument is amply demonstrated in in the courtroom from a defendant who has been our case law. In Peters, for example, a law enforcement observed in shackles for a brief period elsewhere in the officer dressed in civilian clothing approached an individual courthouse. Defendants are required to show actual at a train station, identified himself as a police officer, and 8 United States v. Waldon No. 98-5609 No. 98-5609 United States v. Waldon 13

asked to see the individual’s bus ticket, train ticket, or other down on the floor, and demanded money from the tellers. identification. Peters, 194 F.3d at 695, 698. The officer did This is exactly the type of behavior that is reasonably not “engage in any overbearing or coercive activity in making calculated to put other persons in fear and create the these requests” and there was no evidence suggesting the impression that resistance would be forcefully overcome. It officer conveyed a message that compliance with his requests is immaterial that Waldon did not brandish a weapon. In was required. Id. at 698. Based on the officer’s conduct, this Perry, the defendant demanded money from a teller and Court concluded that the conversation at the train station was opened his coat, implying he had a weapon in his pocket, but a consensual encounter. We did not in any way examine the never actually brandished a weapon. The Perry court officer’s suspicions before the encounter, or suggest any such concluded: suspicions might be relevant. We need not reach the issue of whether bank larceny is Similarly, in this case, Officer Stewart simply approached a lesser included offense of bank robbery, since there is Waldon at the bus stop, mentioned that he was investigating no evidence in the record to support a finding that the a bank robbery, and asked Waldon what he was doing in the lesser included offense of bank larceny, which lacks the area. Nothing in the record indicates that Officer Stewart element of force and violence or intimidation, was conducted himself in an intimidating or coercive manner. committed while the greater offense of bank robbery was Moreover, Officer Stewart gave Waldon no indication he was not. In short, no rational jury could have found that the not free to leave and to refuse to respond to questioning. For teller in this case handed over the money to the defendant example, when Officer Stewart asked Waldon for his out of any other motivation than fear, and the district identification, Waldon voluntarily took out his wallet and court did not err in refusing to give the requested attempted to hand it over. Officer Stewart, however, refused instruction. to take the wallet directly from Waldon; instead, he asked Waldon to take the identification out of his wallet on his own, Id. at 310-311 (footnote and citation omitted). thereby avoiding any limit on Waldon’s freedom to leave. It was at this point that Officer Stewart noticed the red dye The analysis in Perry applies equally to the circumstances stains on Waldon’s fingertips. Because law enforcement in this case. Waldon cannot show that a rational jury could officers may approach individuals and ask them questions convict him of bank larceny but acquit him of bank robbery. without having any reasonable suspicion of criminal activity, Thus, the district court did not err when it refused to give to and because Officer Stewart did not act in any way that the jury an instruction on bank larceny, regardless of whether suggested Waldon was not free to leave, we must conclude bank larceny is properly characterized as a lesser included that the conversation between Officer Stewart and Waldon offense of bank robbery. was a consensual encounter – at least until the point when Officer Stewart noticed the red dye stains on Waldon’s C. Motion for a Mistrial. fingertips, pants, and around his pockets, which heightened the officer’s level of inquiry. At the end of the first day of deliberations, the jury foreman and another juror exited the courthouse together and walked Once Officer Stewart noticed these red dye stains, he to their cars. In the process, the foreman saw Waldon, certainly had reasonable suspicion to believe that Waldon had wearing shackles and handcuffs, being placed into a police been involved in the robbery. A law enforcement officer has car. The foreman mentioned this to the other juror, who did reasonable suspicion to conduct an investigative stop if he is not see it herself. Other than the foreman’s announcement of his observation, the two jurors did not discuss the issue. 12 United States v. Waldon No. 98-5609 No. 98-5609 United States v. Waldon 9

U.S. 120 (1998) (discussing at length the analyses of this able to articulate “‘some minimal level of objective question undertaken by different courts). justification’ for making the stop.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting INS v. Delgado, 466 U.S. 210, This Court has not yet decided whether the elements of 217 (1984)). Within minutes of approaching Waldon, Officer bank larceny are a subset of the elements of bank robbery. Stewart obtained several pieces of objective evidence making Indeed, we once had the opportunity to examine this issue, but it reasonable for him to conduct an investigative stop: (1) affirmatively declined to do so.3 United States v. Perry, 991 Waldon had red dye stains on his fingertips, pants, and around F.2d 304, 311 (6th Cir. 1993). We will again decline to do his pockets; (2) Waldon was near the area where the bank so here, because Waldon cannot meet the second prong of the robber was last seen; (3) Waldon generally matched two-part test for entitlement to a charge of a lesser included witnesses’ descriptions of the bank robber; and (4) Waldon offense. gave evasive answers when asked what he was doing in the area. Thus, Officer Stewart was justified in quickly changing Even if we agreed with Waldon that the elements of bank his consensual encounter with Waldon into an investigatory larceny are a subset of the elements of bank robbery, Waldon stop. is still not entitled to a bank larceny jury instruction unless he can also show that the evidence at trial would allow a rational Waldon also argues that, even if his encounter with Officer jury to find him guilty of bank larceny but not guilty of bank Stewart was initially consensual, it was still inappropriate robbery. Waldon cannot make this showing. “Intimidation because Officer Stewart approached him at the bus stop based in the context of 18 U.S.C. §2113(a) is defined as an act by a solely on his race. The facts of this case make it clear, defendant ‘reasonably calculated to put another in fear,’ or however, that Officer Stewart did not engage in illegal “racial ‘conduct and words . . . calculated to create the impression targeting” or “racial profiling” when he approached Waldon. that any resistance or defiance by the [individual] would be Common sense dictates that, when determining whom to met by force.’” United States v. Lajoie, 942 F.2d 699, 701 approach as a suspect of criminal wrongdoing, a police officer n.5 (10th Cir. 1991), cert. denied, 502 U.S. 919 (1991) may legitimately consider race as a factor if descriptions of (citations omitted). The evidence at trial was that Waldon the perpetrator known to the officer include race. Officer wore a mask over his face, ordered everyone in the bank to lie Stewart approached Waldon because his clothing, appearance, location, and race coincided with published descriptions. The district court did not err when it refused to suppress the 3 evidence that Officer Stewart discovered as a result of his On a few occasions, this Court has assumed that bank larceny is a encounter with Waldon at the bus stop. lesser offense included in bank robbery, e.g. United States v. Smith, 1993 WL 303359 at *1 (6th Cir. Aug. 9, 1993) (the defendant “entered a plea B. Jury Instruction for a Lesser Included Offense. of not guilty to the charge of bank robbery” and “admitted his guilt to the lesser included offense of bank larceny”); United States v. Langh, 1993 WL 20547 at *2 (6th Cir. Feb. 1, 1993), cert. denied, 508 U.S. 919 (1993) The jury convicted Waldon of violating 18 U.S.C. §2113(a) (the defendant “was found guilty of the lesser included offense of bank (bank robbery). When the district court met with the parties larceny”), but we have never examined the first prong with the same level to discuss jury instructions, Waldon asked the court to instruct of analysis as have the Mosley, Brittain, and other courts. This the jury that it could convict him, instead, of a lesser included assumption has more recently been cast into doubt, moreover, because we offense, 18 U.S.C. §2113(b) (bank larceny). Waldon argues have affirmatively concluded that specific intent is not an element of bank robbery under §2113(a). See United States v. Gonyea, 140 F.3d 649, 654 that the district court erred when it refused. (6th Cir. 1998) (“we hold that the first paragraph of §2113(a) describes a general intent crime”). 10 United States v. Waldon No. 98-5609 No. 98-5609 United States v. Waldon 11

Waldon is correct that, if a defendant asks for a lesser any savings and loan association . . . . [s]hall be fined not included offense instruction, it is generally reversible error more than $5,000 or imprisoned not more than twenty not to give it. See Keeble v. United States, 412 U.S. 205, 208 years, or both. (1973) (“it is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the (Emphasis added). In contrast, 18 U.S.C. §2113(b), provides evidence would permit a jury rationally to find him guilty of in relevant part: the lesser offense and acquit him of the greater”). The reason for this is to “ensure[] that the jury will accord the defendant Whoever takes and carries away, with intent to steal or the full benefit of the reasonable-doubt standard.” Beck v. purloin, any property or money or any other thing of Alabama, 447 U.S. 625, 634 (1980). A defendant is not value exceeding $100 belonging to, or in the care, entitled to a lesser offense instruction, however, unless he can custody, control, management, or possession of any bank, meet both prongs of a two-part test: (1) the elements of the credit union, or any savings and loan association, shall be lesser offense are a subset of the elements of the charged fined not more than $5,000 or imprisoned not more than offense; and (2) the evidence would allow a rational jury to ten years, or both. find the defendant guilty of the lesser offense but not guilty of the charged offense. Schmuck v. United States, 489 U.S. 705, (Emphasis added). Those Circuits that hold bank larceny is 716 (1989); Keeble, 412 U.S. at 208; see Fed. R. Crim. P. not a lesser included offense base their rulings on the fact that 31(c) (permitting a jury to convict a defendant of a lesser the element of specific intent is explicitly contained in offense as long as it is “necessarily included in the offense §2113(b), but not §2113(a). Those Circuits reaching the charged”). “Where the lesser offense requires an element not opposite conclusion, on the other hand, generally premise required for the greater offense, no instruction is to be given their conclusion on the belief that specific intent to steal is an under Rule 31(c).” Schmuck, 489 U.S. at 716. implied element of bank robbery. As the Tenth Circuit Court of Appeals explained in United States v. Brittain, 41 F.3d Regarding the first prong – whether the elements of bank 1409 (10th Cir. 1994): larceny are a subset of the elements of bank robbery – the federal Circuit Courts of Appeals are split.2 The offense with in circuits in which specific intent is not an element of which Waldon was charged, 18 U.S.C. §2113(a), provides in section 2113(a), section 2113(b) is not technically a relevant part: lesser included offense of section 2113(a). This is because each offense would have an element that the Whoever, by force and violence, or by intimidation, other lacked: section 2113(a) would require a finding that takes, or attempts to take, from the person or presence of the defendant accomplished the taking either by using another any property or money or any other thing of force or violence or by acting in an intimidating manner, value belonging to, or in the care, custody, control, while section 2113(b) would require a finding that the management, or possession of , any bank, credit union, or defendant acted with an intent to steal while section 2113(a) would not.

2 Id. at 1415 n.7 (quoting Modern Fed. Jury Instrs. ¶53.01 at This split may soon be resolved. See Carter v. United States, 120 53-22 (Matthew Bender 1994)). See also United States v. S. Ct. 613 (1999) (granting a petition for a writ of certiorari to the United Mosley, 126 F.3d 200 (3rd Cir. 1997), cert. granted in part, States Court of Appeals for the Third Circuit, which concluded that bank larceny, 18 U.S.C. 2113(b), is not a lesser-included offense of bank 118 S. Ct. 1298 (1998), order granting cert. vacated, 525 robbery, 18 U.S.C. 2113(a)).