           Case: 18-11151   Date Filed: 04/04/2019   Page: 1 of 9


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11151
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:17-cr-80030-KAM-1



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,


                                  versus


EMMANUEL PETIT FRERE,

                                                     Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (April 4, 2019)

Before JILL PRYOR, BRANCH and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Emmanuel Petit-Frere appeals his convictions for armed bank robbery and

using and discharging a firearm in furtherance of a crime of violence—the bank

robbery. After careful review, we affirm.

                                 I.      BACKGROUND

       A grand jury indicted Petit-Frere on one count of armed bank robbery by

intimidation, in violation of 18 U.S.C. § 2113(a), (d) (Count 1), and one count of

using and discharging a firearm in furtherance of a crime of violence—the bank

robbery—in violation of 18 U.S.C. § 924(c) (Count 2). Under § 924(c), a “crime

of violence” is a felony that “has as an element the use, attempted use, or

threatened use of physical force against the person or property of another” or “by

its nature, involves a substantial risk that physical force against the person or

property of another may be used in the course of committing the offense.” 18

U.S.C. § 924(c)(3)(A)-(B). The former definition is called the “elements clause”

and the latter is known as the “residual clause.” See Ovalles v. United States

(Ovalles II), 905 F.3d 1231, 1234 (11th Cir. 2018) (en banc).

       Petit-Frere moved to dismiss Count 2, arguing that bank robbery, even if

armed, did not qualify categorically as a crime of violence under § 924(c)’s

elements clause. 1 He also argued that the robbery did not alternatively qualify



       1
        Petit-Frere filed the motion to dismiss in response to an original indictment that was
superseded by the two-count indictment at issue here. After the superseding indictment issued,
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under § 924(c)’s residual clause because that clause was unconstitutionally vague

under the logic of the Supreme Court’s decisions in Sessions v. Dimaya, 138 S. Ct.

1204 (2018), and Johnson v. United States, 135 S. Ct. 2551 (2015). The district

court denied the motion, concluding that Petit-Frere’s argument as to the elements

and residual clauses were foreclosed by binding circuit precedent, In re Sams, 830

F.3d 1234 (11th Cir. 2016), and Ovalles v. United States, 861 F.3d 1257 (11th Cir.

2017), vacated on reh’g en banc, 889 F.3d 1259 (11th Cir. 2018).

       Petit-Frere pled not guilty and proceeded to a jury trial. The government’s

evidence at trial showed that Petit-Frere entered a Chase Bank in Lake Park,

Florida, where four bank employees and four customers were present. Petit-Frere

pulled out a gun, repeatedly told the people inside that he wanted “no alarms” and

“no police,” handed a teller a bag, and demanded that she fill it with $10,000. Doc.

95 at 99.2 He also brandished his gun at a customer who attempted to escape. A

teller supplied Petit-Frere with $10,000, and Petit-Frere left the bank and got into a

car. Bank personnel contacted law enforcement.

       A customer in the bank parking lot saw Petit-Frere quickly exit the bank, get

into his car, and speed off. As Petit-Frere left the parking lot, the customer

pursued him in her car and called 911. During the pursuit, Petit-Frere made


the district court construed the motion to dismiss as applying to that new indictment. We do the
same here.
       2
           “Doc. #” refers to the numbered entry on the district court’s docket.

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several lane changes. At one point, in a roundabout, Petit-Frere reached out of his

driver’s side window and fired two shots in the direction of the customer’s car.

The customer abandoned her chase.

      The FBI obtained warrants to search Petit-Frere’s getaway car and home.

Petit-Frere then voluntarily surrendered himself and his gun to law enforcement.

He waived his Miranda3 rights and admitted that he robbed the bank with a loaded

gun. He reported that after he left the bank’s parking lot, he noticed a car

following him. He admitted that he fired two shots to stop the car from following.

Eventually, Petit-Frere said, he parked his car, a rental, and abandoned it because

police were swarming the area. Although he took his gun and the money, he left

behind, among other things, the clothing he had worn into the bank and the bag he

had used to carry the $10,000 out of the bank. He made his way back to his own

car and drove it to the Miami area, where he checked into a hotel. He told law

enforcement that he stayed in the hotel for over a month because, based on the

items he left behind in the rental car, he knew police would be onto him.

      At the charge conference, Petit-Frere objected to the district court’s planned

instruction regarding the jury’s use of evidence of Petit-Frere’s flight or

concealment following the robbery. Petit-Frere argued that the instruction was

appropriate only where a defendant knowingly fled from law enforcement and that

      3
          Miranda v. Arizona, 384 U.S. 436 (1966).

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here the evidence only showed that he fled a bystander. The district court

overruled Petit-Frere’s objection. The court instructed the jury:

             Intentional flight or concealment by a person during or
      immediately after a crime has been committed, or after he’s accused of
      a crime, is not, of course, sufficient in itself to establish the guilt of that
      person, but intentional flight or concealment under those circumstances
      is a fact which, if proved, may be considered by the jury in light of all
      the other evidence in the case in determining the guilt or innocence of
      that person. Whether or not the defendant’s conduct constituted flight
      or concealment is exclusively for you, as the jury, to determine, and if
      you so determine whether or not that flight or concealment showed a
      consciousness of guilt on his part, and the significance . . . to be attached
      to that evidence are also matters exclusively for you as the jury to
      determine.

             I remind you that in consideration of any evidence of flight or
      concealment, if you should find that there was flight or concealment,
      you should also consider that there may be reasons for this which are
      fully consistent with innocence. These may include fear of being
      apprehended, unwillingness to confront the police or reluctance to
      confront the witness. And may I also suggest to you that a feeling of
      guilt does not necessarily reflect actual guilt of a crime which you may
      be considering.

Doc. 96 at 168-69.

      The jury found Petit-Frere guilty of both counts. The district court

sentenced Petit-Frere to 156 total months of imprisonment, including 36 months

for Count 1 and 120 months for Count 2, to run consecutively.

      This is Petit-Frere’s appeal.




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                        II.     STANDARDS OF REVIEW

      We review the denial of a motion to dismiss a charge in an indictment for an

abuse of discretion. United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir.

2002). “A district court by definition abuses its discretion when it makes an error

of law.” Koon v. United States, 518 U.S. 81, 100 (1996). Whether an offense

qualifies as a crime of violence under 18 U.S.C. § 924(c) is a question of law.

United States v. McGuire, 706 F.3d 1333, 1336 (11th Cir. 2013), overruled on

other grounds by Ovalles II, 905 F.3d at 1253.

      “We review a district court’s decision to give a particular jury instruction for

[an] abuse of discretion.” United States v. Maxi, 886 F.3d 1318, 1332 (11th Cir.

2018), cert. denied, 139 S. Ct. 351 (2018). We will not reverse based on an error

in a jury instruction unless “there is a reasonable likelihood that it affected the

defendant’s substantial rights.” Id. When determining whether the evidence is

sufficient to support a given jury instruction, we view the evidence in the light

most favorable to the government. United States v. Wright, 392 F.3d 1269, 1279

(11th Cir. 2004).

                                III.   DISCUSSION

      On appeal, Petit-Frere challenges the district court’s denial of his motion to

dismiss the indictment and the court’s delivery, over his objection, of the flight or

concealment instruction. We address his arguments in turn.


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      A.     Petit-Frere’s § 924(c) Conviction

      Petit-Frere argues that § 924(c)’s residual clause is unconstitutionally vague

and that his armed robbery offense does not alternatively qualify as a crime of

violence under § 924(c)’s elements clause. The Supreme Court recently granted

certiorari to determine the constitutionality of § 924(c)’s residual clause. See

United States v. Davis, No. 18-431, 2019 WL 98544 (U.S. Jan. 4, 2019); but see

Ovalles II, 905 F.3d at 1233-34 (holding that the residual clause is not

unconstitutionally vague and applying a conduct-based approach to that definition

of “crime of violence”). Despite this development, we remain bound by In re

Hines, 824 F.3d 1334, 1337 (11th Cir. 2016) (armed bank robbery under §

2113(d)), and In re Sams, 830 F.3d 1234, 1239 (11th Cir. 2016) (bank robbery “by

force and violence or by intimidation” under § 2113(a)), to conclude that a robbery

conviction under 18 U.S.C. § 2113, armed or otherwise, categorically qualifies as a

crime of violence under § 924(c)’s elements clause. See United States v. St.

Hubert, 909 F.3d 335, 345-46 (11th Cir. 2018) (holding that published orders on

requests for authorization to file a second or successive § 2255 motion, like Hines

and Sams, are binding outside the second or successive context), petition for cert.

filed, (U.S. Feb. 19, 2019) (No. 18-8025); United States v. Brown, 342 F.3d 1245,

1246 (11th Cir. 2003) (explaining that a prior panel precedent binds subsequent

panels unless or until it is overruled or undermined to the point of abrogation by


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this Court sitting en banc or by the Supreme Court). We therefore must conclude

that Petit-Frere’s § 924(c) conviction and sentence, predicated on his armed

robbery conviction, are valid notwithstanding any remaining questions regarding

the constitutionality of § 924(c)’s residual clause.

      B.     The District Court’s Flight or Concealment Jury Instruction

      “[T]he law is entirely well settled that the flight of the accused is competent

evidence against him as having a tendency to establish his guilt.” United States v.

Borders, 693 F.2d 1318, 1324 (11th Cir. 1982) (internal quotation marks omitted).

A district court does not abuse its discretion in giving a flight instruction where the

evidence could lead a reasonable jury to conclude that the defendant fled to avoid

apprehension for the charged crime. See United States v. Williams, 541 F.3d 1087,

1089 (11th Cir. 2008).

      Petit-Frere argues that a flight or concealment instruction is appropriate only

when the government offers evidence that the defendant fled law enforcement and

that the evidence in this case showed only that Petit-Frere fled an innocent

bystander. Thus, he argues, the district court abused its discretion in giving the

instruction. Even assuming for purposes of this opinion that Petit-Frere is correct

that the flight or concealment must be from a law enforcement officer, he is

incorrect that the government failed to offer such evidence here. The evidence at

trial showed that when Petit-Frere robbed the bank, he repeatedly told the


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employees and customers inside not to call the police. As soon as he received the

cash, he fled the scene. It was only after he sped out of the bank’s parking lot that

he noticed he was being followed. Viewing the evidence in the light most

favorable to the government, it is reasonable to infer that Petit-Frere’s initial flight

was to avoid law enforcement, not a bystander.

      Moreover, even if Petit-Frere knew the car in pursuit contained a bystander

and not law enforcement, he resumed flight from law enforcement when, after the

customer ceased her chase, he abandoned his rental car. Petit-Frere told law

enforcement that he abandoned the car because he knew police were swarming the

area. He then fled to his personal car, which he used to drive to Miami, and there

he concealed himself for more than a month because he knew that after recovering

his personal items in the rental car law enforcement would be looking for him.

This evidence further demonstrates that Petit-Frere knowingly fled and concealed

himself from law enforcement following the robbery. Thus, even if the instruction

was appropriate only in the presence of evidence of flight or concealment from law

enforcement, such evidence was present here. The district court therefore did not

abuse its discretion in giving the instruction.

                                IV.   CONCLUSION

      For the foregoing reasons, we affirm Petit-Frere’s convictions.

      AFFIRMED.


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