212 F.3d 1000 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Tom Ray Wallace,    Defendant-Appellant.
No. 99-3663
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 25, 2000Decided May 12, 2000

Appeal from the United States District Court  for the Northern District of Indiana, Hammond Division.  No. 2:99 CR 19 JM--James T. Moody, Judge.
Before Bauer, Ripple, and Manion, Circuit  Judges.
Bauer, Circuit Judge.


1
A jury convicted  Tom Wallace for his role in an armed bank  robbery, but acquitted him on a separate  charge of using a firearm during a crime  of violence. The district court sentenced  Tom1 to 180 months in prison and five  years of supervised release. On appeal,  Tom challenges the sufficiency of the  evidence underlying his conviction. Tom  also complains about a jury instruction  and a sentencing enhancement. We affirm.

I.  Background

2
On January 29, 1999, shortly after  smoking a marijuana cigarette laced with  cocaine, Tom Wallace and his brother,  James Wallace, decided to rob the Ameri-  can Savings Bank located at 4521 Hohman  Avenue in Hammond, Indiana. The brothers  planned that Tom would collect the money  and James would "take care of" the bank  security guard.


3
While on their way to the bank, Tom and  James passed the South Shore Train Sta-  tion located next door to the bank. An  employee in the train station noticed the  Wallace brothers "acting strange" and  observed that one of them had a nylon  stocking on his head. The employee noti-  fied a train station security guard of  what she had seen and the guard instruct-  ed her to call for police assistance.  When Tom and James went into the bank,  the security guard positioned himself  outside of the bank.


4
When the Wallace brothers entered the  bank, James turned to his left and con-  fronted two individuals. A security cam-  era recorded the Wallace brothers' en-  trance and a photo from that camera shows  James brandishing a gun as he entered the  bank. Pointing his gun at a bank employee  and a customer, James approached them and  yelled at them to get on the floor; he  then ran to the rear of the bank and put  his gun to the bank security guard's  forehead. He screamed at the guard, "Give  me your weapon. Get on the ground." James  then took the security guard's gun. Now  armed with two guns, James briefly left  the guard. A moment later, James returned  to the security guard, put a gun to the  back of his head and took the guard's  radio. With a gun in each hand, James  returned to the front of the bank. When  one of the customers raised his head,  James yelled at the customer, "You want  me to blow your God damned head off? Get  your head back down."


5
While James kept watch over the people  in the bank, Tom was busy collecting  money. Immediately after entering the  bank, Tom ran to his right and jumped on  the teller counter. He ordered one of the  tellers to put money in a plastic bag and  then to get on the floor. Tom reached  into a teller's drawer and started remov-  ing cash.


6
After Tom filled a bag with money, the  Wallace brothers fled the bank with James  leading the way. Upon leaving the bank,  they were immediately confronted by the  train station security guard waiting  outside who yelled "police." A brief  shoot out ensued in which the train secu-  rity guard shot James three times; Tom  dropped to the ground and immediately  surrendered. By this time, the bank secu-  rity guard had emerged from the bank and  helped hold the men until Hammond police  arrived. The police recovered the bag of  cash that the Wallace brothers had stolen.


7
A grand jury returned an indictment  charging both Tom and James with several  crimes related to the bank robbery. Count  1 of the indictment charged the Wallace  brothers with unarmed bank robbery in  violation of 18 U.S.C. sec. 2113(a),  armed bank robbery in violation of 18  U.S.C. sec. 2113(d), and aiding and abet-  ting in an armed bank robbery in viola-  tion of 18 U.S.C. sec.sec. 2 and 2113(d).  Count 2 of the indictment charged that  Tom and James violated 18 U.S.C. sec.  924(c) by using a firearm during the  commission of a violent crime. James  pleaded guilty to the charges against  him, but Tom went to trial.


8
At trial, Tom admitted his guilt for  unarmed bank robbery in violation of 18  U.S.C. sec. 2113(a), but denied that he  was accountable for an armed bank rob-  bery. Tom testified that he knew his  brother owned a gun, but denied knowing  that James had carried the gun into the  bank or used a gun during the robbery.  Tom stated that he never saw James bran-  dish a gun while they were robbing the  bank. Finally, although Tom told the FBI  in a post-arrest statement that he  watched James throw down two guns outside  of the bank, at trial he testified that  he never saw James with a gun outside of  the bank.


9
James testified at Tom's trial and  admitted that he carried a gun into the  bank during the robbery, but said that he  could not remember whether he told Tom  that he had the weapon. James blamed his  failed memory on his drug use immediately  before the robbery. James did, however,  confirm that the brothers had planned for  Tom to get the cash while James was sup-  posed to "take care of" the security  guard.


10
The jury returned a general verdict form  which stated, "We, the jury, find the  defendant, TOM RAY WALLACE . . . Guilty  of the charge of armed bank robbery con-  tained in Count 1 of the indictment filed  in this case." The verdict form did not  specify whether the jury found Tom di-  rectly liable for the armed bank robbery,  or whether it found him derivatively  culpable under an aiding and abetting  theory, or both. As for the charge in  Count 2 of the indictment, the jury de-  cided that Tom was not guilty of using a  firearm during the commission of a crime  of violence. After a sentencing hearing,  the district court sentenced Tom to 180  months in prison and five years of super-  vised release. Tom now appeals the suffi-  ciency of the evidence which supported  his conviction, a jury instruction, and  his sentence.

II.  Analysis
A.  Sufficiency of the Evidence

11
Tom first argues that there was insuffi-  cient evidence presented at trial to hold  him liable as an aider and abettor of the  armed bank robbery.2 Challenging the  sufficiency of the evidence is an uphill  battle and the defendant bears a heavy  burden. United States v. Bradley, 196  F.3d 762, 766 (7th Cir. 1999). "We review  the evidence in the light most favorable  to the government, and we affirm the  conviction if any rational fact finder  could have found the essential elements  of the crime were established beyond a  reasonable doubt." United States v. Thor-  nton, 197 F.3d 241, 253-54 (7th Cir.  1999).


12
"To prove armed bank robbery, the gov-  ernment must show . . . that a bank was  forcibly robbed, 18 U.S.C. sec. 2113(a),  and that by the use of a dangerous weapon  or device, the bank robber assaulted  someone or put lives in jeopardy. 18  U.S.C. sec. 2113(d)." United States v.  Woods, 148 F.3d 843, 846 (7th Cir. 1998).  To show that Tom is guilty of aiding and  abetting in the armed bank robbery, "the  government must prove not only that [he]  knew a bank robbery would occur, but also  that a weapon would likely be used in the  crime." Id.


13
Tom contends that there was insufficient  evidence to convict him of aiding and  abetting in the armed bank robbery be-  cause there was no proof that he knew  James was planning to carry a gun or that  James used a gun during the robbery. The  evidence presented at trial, however,  fails to support this argument. Viewing  the evidence in the light most favorable  to the government, as we must, there is  ample proof from which a jury could con-  clude that Tom knew his brother planned  to carry a gun and that James used a gun  during the bank robbery.3


14
At trial, Tom admitted knowing that  James owned a gun. The brothers specifi-  cally planned for the gun-owning James to  "take care of" the bank security guard  during the robbery. A bank security pho-  tograph shows James wielding a gun when  the Wallace brothers entered the bank and while Tom was standing directly next to  James. Witnesses testified that when  James took the bank security guard's gun,  James shouted at the guard, "Give me your  weapon. Get on the ground." Additionally,  when a customer raised his head, James  yelled at the customer, "You want me to  blow your god damned head off? Get your  head back down." The jury's conclusion  that Tom knew he was aiding and abetting  in an armed bank robbery was completely  reasonable.


15
Tom also points to the fact that the  jury found him not guilty of using a  firearm during a crime of violence in  violation of 18 U.S.C. sec. 924(c), but  guilty of aiding and abetting in an armed  bank robbery. According to Tom, this  "genuinely inconsistent verdict" should  require us to relax what he calls the  "strict and almost unreachable standard  for determining insufficiency of the  evidence." (Appellant's Brief at 17-18.)


16
We reject this argument; even assuming,  as Tom does, that the jury convicted him  only under an aiding and abetting theory,  there is no inconsistency in the verdict.  To convict Tom of aiding and abetting an  armed bank robbery, the government merely  had to show that he knew that a weapon  would likely be used by someone to effect  the robbery. Woods, 148 F.3d at 846.  Because Tom could be convicted of aiding  and abetting without proof that he per-  sonally carried or used a gun, nothing  about the jury's verdict can be inconsis-  tent. The jury's verdict seems to say  that Tom knew his brother used a gun  during the robbery (thus, he is guilty of  aiding and abetting), but that Tom him-  self never used or carried a gun (thus,  he is not guilty of the sec. 924(c)  charge). This conviction and acquittal  result is both internally consistent and  supported by the evidence.4

B.  Jury Instruction

17
Tom next complains that the district  court erred when it gave the "ostrich"  instruction regarding conscious avoid-  ance. Tom contends that there was no  evidence in the record to justify giving  the instruction. We review the district  court's decision to give the ostrich  instruction for an abuse of discretion.  United States v. Trigg, 119 F.3d 493, 504  (7th Cir. 1997); United States v. Walker,  25 F.3d 540, 546 (7th Cir. 1994).


18
"The ostrich instruction is properly  given in cases 'in which there is evi-  dence that the defendant, knowingly or  strongly suspecting that he is involved  in shady dealings, takes steps to make  sure that he does not acquire full or  exact knowledge of the nature and extent  of those dealings. A deliberate effort to  avoid guilty knowledge is all the guilty  knowledge the law requires.'" United  States v. Fauls, 65 F.3d 592, 598 (7th  Cir. 1995) (quoting United States v.  Giovannetti, 919 F.2d 1223, 1229 (7th  Cir.1990)). The instruction is appropri-  ate "when a defendant claims a lack of  guilty knowledge and there are facts and  evidence that support an inference of  deliberate ignorance." Walker, 25 F.3d at  546.


19
The district court acted well within its  discretion by giving the instruction in  this case. Tom testified that he did not  know that James was going to bring a gun to the robbery and denied knowing that  James ever used a gun during the robbery.  And, although he told an FBI agent dif-  ferently in a post-arrest statement, Tom  claimed at trial that he never saw James  discard two guns as they fled the bank.  By testifying that he had no knowledge of  his brother's use of guns during the  robbery, Tom made the ostrich instruction  applicable.

C.  Sentence

20
Finally, Tom asserts that the district  court should not have applied the sen-  tencing enhancement of U.S.S.G. sec.  2B3.1(b)(2)(B) which requires district  courts to increase a defendant's offense  level by six points "if a firearm was  otherwise used" during a robbery. We  review the district court's application  of this Guideline de novo, United States  v. Gordon, 64 F.3d 281, 283 (7th Cir.  1995), and review its findings of fact  for clear error. United States v. Pigee,  197 F.3d 879, 892 (7th Cir. 1999); United  States v. Romero, 189 F.3d 576, 589 (7th  Cir. 1999).


21
Although his sentencing arguments are  difficult to understand, Tom seems to  contend that the district court should  not have applied the sec. 2B3.1(b)(2)(B)  enhancement because he was acquitted of  using a firearm during a crime of vio-  lence, 18 U.S.C. sec. 924(c). To the  extent that this is a legal argument, it  fails; the Guidelines explicitly require  the enhancement for convictions under 18  U.S.C. sec. 2113. Here, because the jury  found Tom guilty of aiding and abetting  an armed bank robbery in violation of 18  U.S.C. sec. 2113(d), the enhancement must  apply. His acquittal on the separate sec.  924(c) count bears no relationship to the  mandatory application of U.S.S.G. sec.  2B3.1(b)(2)(B). See United States v.  Cover, 199 F.3d 1270, 1277 (11th Cir.  2000).


22
To the extent that Tom means to make a  factual argument that the enhancement  should not apply because there was not  enough evidence to support the finding  that "a firearm was otherwise used," he  is also incorrect. As we have explained,  there was more than sufficient evidence  at trial to show that Tom knew his broth-  er either planned to carry a gun or that  he actually used a gun during the rob-  bery. Under the Guidelines, the weapon  was attributable to Tom because he aided  and abetted in its use. See U.S.S.G. sec.  1B1.3(a)(1)(A); United States v. Bolden,  132 F.3d 1353, 1356 (10th Cir. 1997)  (sentencing enhancement for using a gun  during an armed robbery appropriate even  though defendant never personally used  the gun because defendant aided accom-  plice in committing the crime); United  States v. Burton, 126 F.3d 666, 678-79  (5th Cir. 1997) (same). The district  court's factual findings more than ade-  quately support the enhancement.

III.  Conclusion

23
Affirmed.



Notes:


1
 Tom Wallace's brother, James Wallace, was Tom's  codefendant and played a significant role in the  facts of this case. Therefore, to avoid confu-  sion, we refer to each Wallace brother by his  first name.


2
 As previously noted, Count 1 of the indictment  charged Tom with three separate crimes--(1)  unarmed bank robbery, (2) armed bank robbery, and  (3) aiding and abetting an armed bank robbery.  The general verdict finding Tom guilty of "armed  bank robbery contained in Count 1 of the indict-  ment" did not indicate whether the jury convicted  him only under a direct theory of liability, or  whether it found him responsible only under an  aiding and abetting theory, or both. Tom's argu-  ments on appeal assume that the jury only con-  victed him of aiding and abetting the armed bank  robbery. Although the government credibly con-  tends that there was enough evidence to support  a finding of direct liability for the armed bank  robbery, the government seems to accept Tom'sass-  umption for purposes of argument. While we ex-  press no opinion on the subject, we will analyze  the issues in this appeal as though Tom were  convicted only as an aider and abettor.


3
 Tom also asks us to decide whether the government  had to prove that he had "actual" versus "con-  structive" knowledge that his brother used a gun  during the robbery. Because we find plenty of  evidence to show that Tom had actual knowledge of  the gun, we need not resolve this issue. See  Woods, 148 F.3d at 846.


4
 Even if the verdict were, as Tom puts it, "genu-  inely inconsistent," this would not be grounds  for a reversal or new trial. See United States v.  Mitchell, 146 F.3d 1338, 1343-45 (11th Cir. 1998)  (verdict containing a conviction for armed rob-  bery under 18 U.S.C. sec. 2113(d) and an acquit-  tal on charge under 18 U.S.C. sec. 924(c) does  not warrant reversal); United States v. McCall,  85 F.3d 1193, 1197-98 (6th Cir. 1996) (same); see  also United States v. Akram, 152 F.3d 698, 701  (7th Cir. 1998) ("we do not recognize any doc-  trine whereby a conviction under one count must  be set aside because it appears inconsistent with  a jury's acquittal on a different count"); United  States v. Castillo, 148 F.3d 770, 775 (7th Cir.  1998) ("we have refused to afford defendants who  face inconsistent verdicts the benefit of a  nullification of the guilty verdicts . . . we  refuse to question the wisdom of the jury's  verdict in this manner").


