
USCA1 Opinion

	




          November 14, 1995 UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1958                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 JEFFREY W. SPINNEY,                                Defendant, Appellant.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of this  court issued on September 19,  1995, is          corrected as follows:          On page 2, line 3   change "(count 1)" to "(count 2)".          On page 2, line 4   change "(count 2)" to "(count 3)".          On page  2, line 6 (footnote  1)   change "All  references are to          the superseding indictment." to "Count 1, which charged appellant          with conspiring to commit bank robbery,  see 18 U.S.C.   371, was                                                   ___          dismissed on the government's motion."          On  page 5, line 10   insert  the following text before the words          "aiding  and abetting":   "counts  of conspiracy  to commit  bank          robbery, see 18 U.S.C.    371 (which count was  later dismissed),                   ___          ".          On  page 5,  line 14    change "each  count." to  "each remaining          count."          On page 5, line 20   change "count 1" to "count 2".          On page 7, line 10   change "count 1" to "count 2".          On page 11, lines 24-25 (footnote 5)   change "The grand jury did          not lodge  a conspiracy charge against Spinney and the government          has  not tried"  to  "Having  moved  for  the  dismissal  of  the          conspiracy count against appellant, the government did not try ".          On page 16, line 24   change "(11th Cir. 1986)" to (11th Cir.)".          On page 21, line 12   change "count 1" to "count 2".          On page 21, line 13   change "count 2" to "count 3".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1958                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 JEFFREY W. SPINNEY,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                              _________________________                                        Before                          Selya and Boudin, Circuit Judges,                                            ______________                              and Lisi,* District Judge.                                         ______________                              _________________________               Diana L. Maldonado, Federal Defender Office, for appellant.               __________________               Timothy Q.  Feeley, Assistant United  States Attorney,  with               __________________          whom Donald K. Stern,  United States Attorney, was on  brief, for               _______________          appellee.                              _________________________                                  September 19, 1995                              _________________________          ____________________          *Of the District of Rhode Island, sitting by designation.                    SELYA,  Circuit  Judge. Defendant-appellant  Jeffrey W.                    SELYA,  Circuit  Judge.                            ______________          Spinney  challenges his  convictions for  aiding and  abetting an          armed bank robbery (count 2) and aiding and abetting the use of a          firearm  during and  in relation  to a  crime of  violence (count          3).1    In  our  view,   the  two  crimes,  despite   superficial                                        ____________________               1Count 1, which charged  appellant with conspiring to commit          bank  robbery,  see  18  U.S.C.     371,  was  dismissed  on  the                          ___          government's motion.   The implicated portions  of the applicable          statutes are as follows:                    Whoever,  by   force  and  violence,   or  by                    intimidation,  takes,  or  attempts to  take,                    from the person or presence of another . .  .                    any property  or money or any  other thing of                    value belonging to, or in the  care, custody,                    control,  management,  or possession  of, any                    [federally  insured] bank  .  . .  [shall  be                    punished as provided by law].          18 U.S.C.   2113(a) (1988).                    Whoever, in committing,  or in attempting  to                    commit, any  offense defined in  [  2113(a)],                    puts in  jeopardy the  life of any  person by                    the  use of  a  dangerous  weapon or  device,                    shall be . . . [punished as provided by law].          18 U.S.C.   2113(d) (1988).                    Whoever, during and in  relation to any crime                    of  violence  .  .  .  for  which  he  may be                    prosecuted in  a court of the  United States,                    uses or  carries a  firearm, shall  . .  . be                    [subjected to additional punishment].          18 U.S.C.   924(c)(1) (1988).                    Whoever commits an offense against the United                    States  or  aids, abets,  counsels, commands,                    induces  or  procures   its  commission,   is                    punishable as a principal.          18 U.S.C.   2(a) (1988).                    As  the text  indicates,  a conviction  for armed  bank          robbery,  18 U.S.C.     2113(d), necessarily  signifies that  the                                          4          similarities,  require  the   application  of  dissimilar   legal          standards.  Because the evidence  amassed by the government falls          between these stools, we affirm the first conviction  but reverse          the second.          I.  BACKGROUND          I.  BACKGROUND                    We limn the pertinent facts in the light most favorable          to the government, see United States v. Ortiz, 966 F.2d 707, 710-                             ___ _____________    _____          11 (1st Cir. 1992), cert. denied,  113 S. Ct. 1005 (1993), paying                              _____ ______          particular  heed  to those  details  that  arguably reflect  what          appellant knew and when he knew it.                    On August 20, 1991, at  around 3:00 p.m., Gerald Mohan,          a conscientious FBI agent, noticed appellant (a person previously          known to him)  sitting on  the steps of  the Federal Building  in          Lowell,  Massachusetts.   Mohan  decided  to  mount an  impromptu          surveillance.    As  he  was  positioning  his  vehicle,  a  blue          Oldsmobile arrived at  the scene.   After  appellant entered  the          Oldsmobile,  it made several quick  turns and then  pulled to the          curb.  The driver (subsequently  identified as Paul Kirvan) moved          into  the  front passenger  seat  and appellant  took  the wheel.          Kirvan and appellant proceeded  to criss-cross the streets around          the  Lowell Institution for Savings (the  Bank).  Mohan testified          that the pair's driving pattern appeared to  be part of a process          of careful scrutiny.                    Roughly fifteen minutes  after beginning  surveillance,                                        ____________________          government has proved the elements of the lesser included offense          of unarmed bank robbery, 18 U.S.C.   2113(a).                                          5          Mohan  followed  the  Oldsmobile  to  Academy  Drive.    There he          observed  a  classic   getaway  "switch  site"  on   a  dead  end          approximately 0.3 miles from the Bank.  Appellant and Kirvan next          returned to the  vicinity of  the Federal Building.   On  Fayette          Street,  Kirvan alighted  from the  Oldsmobile (which  he owned),          entered a parked Chevrolet Monte Carlo (later ascertained to have          been stolen some  distance away),  and began  driving toward  the          Bank.    Appellant followed  him  in  the  Oldsmobile, and  Mohan          followed both of them,  caravan-style, in his own vehicle.   When          the two  drivers veered in separate directions,  Mohan lost sight          of both  cars.  He circled in the general vicinity and, some four          minutes  later, glimpsed  the  Chevrolet at  a standstill  in the          Bank's parking lot.                    Mohan made a U-turn and  headed back to the Bank.   His          efforts were  unavailing; at  that precise moment,  the Chevrolet          accelerated  rapidly out of the parking lot and passed him (going          in the  opposite direction).  Kirvan was alone in the car.  Mohan          made yet another U-turn and unsuccessfully gave chase.                    At approximately 3:25 p.m., ostensibly during the brief          interval in which Mohan lost track of his quarry, a masked Kirvan          entered the  Bank, instructed those  present not to  move, jumped          over  the tellers' counter, stuffed  the contents of several cash          drawers  into a  garbage bag,  leapt back  over the  counter, and          fled.  Although Kirvan  brandished a handgun at the height of the          robbery,  a teller testified that the weapon was not visible when          he entered the Bank.                                          6                    Other percipient witnesses reported that, mid-afternoon          of the  same day,  they saw  a Chevrolet  Monte Carlo speed  down          Academy  Drive.  Two  men, one  holding a  bag, emerged  from the          vehicle, crossed through two  gates, and drove away in  a waiting          blue car.  The  witnesses were unable to identify  either suspect          positively, although one of the men "looked like" appellant.  The          Lowell police recovered the Chevrolet that afternoon.  They found          Kirvan's blue Oldsmobile the next morning, abandoned not far from          the switch site.                    The  government established  that appellant  and Kirvan          had been close friends for many years.  Telephone   toll  records          reflected seventy-three calls between the men's residences in the          nineteen days  preceding the  robbery, including eleven  calls on          August 19.                    A federal  grand jury  indicted appellant on  counts of          counts of conspiracy to commit bank  robbery, see 18 U.S.C.   371                                                        ___          (which count was  later dismissed), aiding and abetting  an armed          bank  robbery, see 18 U.S.C.    2113(d), and  aiding and abetting                         ___          the  use  of a  firearm  during and  in  relation to  a  crime of          violence,  see  18 U.S.C.    924(c).    A jury  trial eventuated.                     ___          After appellant unsuccessfully moved  for judgment of  acquittal,          the jurors returned  a guilty verdict  on each remaining  count.2                                        ____________________               2In a separate proceeding before a different judge and jury,          Kirvan  was convicted of armed bank robbery  and use of a firearm          during and in relation  to a crime of violence.   Notwithstanding          the  verdict, the judge ordered an acquittal on the latter count.          We affirmed the armed bank robbery conviction and  reinstated the          firearms conviction.  See  United States v. Kirvan, 997  F.2d 963                                ___  _____________    ______          (1st Cir. 1993).                                          7          The court sentenced appellant  to serve 262 months in  prison for          armed  robbery and  imposed a  mandatory sixty-month  consecutive          sentence  in  respect  to  the  firearms  charge.    This  appeal          followed.          II.  ARMED BANK ROBBERY          II.  ARMED BANK ROBBERY                    Appellant  challenges the  sufficiency of  the evidence          supporting   his   conviction  on   count   2.     Our   task  is          straightforward.  We must  ascertain whether, "after assaying all          the evidence in  the light  most amiable to  the government,  and          taking  all  reasonable  inferences  in  its  favor,  a  rational          factfinder  could  find,  beyond  a reasonable  doubt,  that  the          prosecution  successfully proved  the  essential elements  of the          crime."  United  States v.  O'Brien, 14 F.3d  703, 706 (1st  Cir.                   ______________     _______          1994).    In  performing  this task,  we  do  not  pass  upon the          credibility  of witnesses,  see id.,  nor do  we demand  that the                                      ___ ___          government   disprove  every   hypothesis  consistent   with  the          defendant's innocence,  see United States v.  Echeverri, 982 F.2d                                  ___ _____________     _________          675, 677 (1st Cir. 1993).                    The  jury reached its verdict in this case on the basis          of circumstantial evidence.  Reliance  on indirect, as opposed to          direct,  evidence in  a  criminal case  is  both permissible  and          commonplace.   See O'Brien, 14  F.3d at 706  (observing that "the                         ___ _______          criminal  law  does  not  place  a  special   premium  on  direct          evidence").  In making  such judgments, "juries are not  required          to examine the evidence  in isolation, for `individual  pieces of          evidence, insufficient  in themselves  to prove a  point, may  in                                          8          cumulation prove it.'"  Ortiz, 966 F.2d at 711 (quoting Bourjaily                                  _____                           _________          v. United States,  483 U.S.  171, 179-80 (1987)).   Thus, when  a             _____________          jury draws inferences  from circumstantial evidence, a  reviewing          court should refrain from second-guessing the ensuing conclusions          as long as  (1) the  inferences derive support  from a  plausible          rendition of  the record, and (2) the conclusions flow rationally          from those inferences.  See id.                                  ___ ___                    We add a  cautionary note.  Despite the  deference that          characterizes appellate  review of  jury verdicts, juries  do not          have carte blanche.  The appellate function, properly understood,               _____ _______          requires the reviewing  court to take a  hard look at the  record          and  to reject  those  evidentiary interpretations  and illations          that  are unreasonable,  insupportable,  or  overly  speculative.          See,  e.g., United States  v. Valerio, 48  F.3d 58,  64 (1st Cir.          ___   ____  _____________     _______          1995);  United States  v. Loder,  23 F.3d  586, 589-92  (1st Cir.                  _____________     _____          1994).  This function is especially  important in criminal cases,          given the prosecution's  obligation to prove every element  of an          offense beyond a reasonable doubt.                    In this  instance, the jury convicted  the appellant on          count 2  as an aider and abettor.   See 18 U.S.C.    2(a).  Under                                              ___          this theory of accomplice liability, Spinney would be guilty only          if  the  government  proved   (1)  that  Kirvan  (the  principal)          committed the  substantive offense (armed bank  robbery), and (2)          that Spinney (the accomplice) became associated with the endeavor          and took part in it, intending to ensure its success.   See Nye &                                                                  ___ _____          Nissen v. United  States, 336  U.S. 613, 619  (1949); Ortiz,  966          ______    ______________                              _____                                          9          F.2d at 711 n.1.  Because the jury heard plethoric evidence  from          which it  rationally could  conclude that Kirvan  committed armed          bank robbery, we direct our  analysis to the second of these  two          elements.                    The  central requirement  of the  second element  is "a          showing that  the defendant  consciously  shared the  principal's          knowledge of the  underlying criminal act,  and intended to  help          the principal."   United States v. Taylor, 54 F.3d  967, 975 (1st                            _____________    ______          Cir. 1995).  In a prosecution for armed bank robbery, this shared          knowledge requirement is binary; it extends both to awareness  of          the  robbery and to comprehension  that a weapon  would likely be          used.   See United States v.  Jones, 678 F.2d 102,  106 (9th Cir.                  ___ _____________     _____          1982)  (explaining   that,  to  convict  under      2113(d),  the          prosecution must "show that the  defendant aided and abetted  the          principal  both in the act of bank robbery and in the principal's          use  of `a dangerous weapon  or device' during  the act") (citing          other  cases).    Appellant  maintains that  neither  finding  is          justified here.   In the first place, he claims that the evidence          does not adequately  show that he knew Kirvan aspired  to rob the          Bank  and  nonetheless endeavored  to help  him.   In  the second          place, he claims  that the record is devoid of  any proof that he                                                          ___          knew about the actual or intended use of a gun.3                                        ____________________               3If  both arguments  succeed,  then the  conviction must  be          reversed.     Conversely,  if  both  arguments   fail,  then  the          conviction  must be  affirmed.   However, if  the first  argument          fails, but the second succeeds, then,  since the jury necessarily          found  all  the elements  of unarmed  bank  robbery, 18  U.S.C.                                         _______          2113(a), and since the  trial court charged on that  statute as a          lesser  included offense  under    2113(d), we  would  remand for                                          10                    1.    Shared  Knowledge  of  the  Robbery.    The first                    1.    Shared  Knowledge  of  the  Robbery.                          ___________________________________          challenge need not occupy us for long.  Appellant does not assert          that he was  "merely present" at the scene.   See Ortiz, 966 F.2d                                                        ___ _____          at 711 ("Mere association between the principal and those accused          of aiding and abetting is not  sufficient to establish guilt; . .          .  nor is mere  presence at the scene and knowledge that  a crime          was  to   be  committed   sufficient  to  establish   aiding  and          abetting.")  (internal  quotation  marks omitted).    Rather,  he          focuses on the lack of direct evidence placing him at  the switch          site, in or  near the Bank,  or in Kirvan's  company at any  time          except immediately prior to the  commission of the crime, thereby          attempting  to raise  doubts  about whether  he had  any specific          intent to assist in the enterprise.                    This  argument  is flawed  in  its  presumption that  a          dearth of  direct evidence somehow precludes  jurors from drawing          logical  inferences based  on available  circumstantial evidence.          Contrary to  the burden  of appellant's thesis,  it is  precisely          those situations  that involve an  absence of direct  evidence in          which circumstantial evidence must be most closely analyzed.  See                                                                        ___          O'Brien,  14  F.3d  at 706  (explaining  that  a  lack of  direct          _______          evidence spurs  examination of indirect  evidence).  In  the last          analysis,  the persuasive  power  of  circumstantial evidence  is          attributable  more to its  relevance and probative  force than to          the presence of complementary direct evidence.                                        ____________________          resentencing on that basis.  See, e.g., United States v. Dinkane,                                       ___  ____  _____________    _______          17 F.3d 1192, 1198 (9th Cir. 1994).                                          11                    Having in  mind Mohan's  observations, the  events that          transpired  on Academy  Drive,  the vehicles  abandoned in  close          proximity  to the  Bank,  and the  telephone  logs, a  completely          rational juror need  make only modest inferential leaps to arrive          at  a founded conclusion  that the two  long-time friends planned          the crime, the flight, and the  car switch.  See United States v.                                                       ___ _____________          Olbres, ___  F.3d ___, ___ (1st Cir. 1995) [No. 94-2123, slip op.          ______          at   10]  (finding   a  "sturdy   infrastructure,"  provided   by          "circumstantial  and  suggestive"   evidence,  for  making  sound          rational inferences); Taylor, 57 F.3d at 975 (similar); see  also                                ______                            ___  ____          Ortiz,  966  F.2d  at  711  (remarking  that  "[t]he  sum  of  an          _____          evidentiary  presentation may  be  greater than  its  constituent          parts") (quoting  Bourjaily,  483  U.S. at  180).    Since  every                            _________          necessary inference is adequately rooted in the record, we reject          as meritless  appellant's assignment of error based on a supposed          lack of  proof that he knew  of, and helped to  further, Kirvan's          desire to rob the Bank.4                    2.    Shared  Knowledge  of the  Weapon.    Appellant's                    2.    Shared  Knowledge  of the  Weapon.                          _________________________________          stronger challenge is  directed at the  jury's finding of  shared          knowledge,  prior to  the commission  of the  crime, that  Kirvan          would use a firearm.  See United States v. Dinkane, 17 F.3d 1192,                                ___ _____________    _______          1197  (9th Cir. 1994) (holding  that, for purposes  of   2113(d),          aiding  and abetting  requires  prior knowledge  of weapon);  see                                          _____                         ___                                        ____________________               4To  the extent  that  appellant also  seeks  to impugn  the          jury's  decision about  who and  what to  believe, we  decline to          "usurp  the  jury's  province,"  O'Brien,  14  F.3d  at  707,  by                                           _______          superseding either  its rational factfinding  or its  credibility          choices.                                          12          generally  United States v. de la Cruz-Paulino, ___ F.3d ___, ___          _________  _____________    __________________          (1st Cir. 1995)  [No. 94-1985,  slip op. at  28-30] (stating,  in          aiding and  abetting case, that  shared knowledge  must be  prior          knowledge).                    A participant in the holdup of  a bank will be found to          be  an  aider  and  abettor  of  an  armed  robbery only  if  the                                               _____          government  can provide an additional piece of the puzzle:  proof          that  the accomplice "knew a  dangerous weapon would  be used [in          the robbery] or at least . . . was on notice of the likelihood of          its use," United States v. Sanborn,  563 F.2d 488, 491 (1st  Cir.                    _____________    _______          1977); accord United States v. Ferreira, 625 F.2d 1030, 1032 (1st                 ______ _____________    ________          Cir. 1980).  Refined to bare essence, appellant's asseveration on          this  point is that the evidence, taken  as a whole, is so sparse          that it does not  satisfy the Sanborn standard; there  are simply                                        _______          no  facts, he  tells  us, from  which  a reasonable  juror  could          extrapolate to a finding of shared knowledge.5  We do not agree.                    In  terms, the  Sanborn rubric  requires only  proof of                                    _______          "notice of . . . likelihood"  to satisfy this prong of the shared          knowledge  element  in connection  with  a charge  of  aiding and          abetting  an  armed  bank robbery.    This  phrase  is not  self-          defining.  Hence, it is important to search out its meaning.                    We  start from  the  premise that  the Sanborn  court's                                                           _______          formulation of the shared knowledge requirement is  not merely an                                        ____________________               5Having  Moved for  the  dismissal of  the conspiracy  count          against  appellant,  the  government  did  not try  to  hang  his          criminal  liability  on  the  reasonably  foreseeable  act  of  a          coconspirator.  Compare Pinkerton v. United States, 328 U.S. 640,                                  _________    _____________          647-48 (1946).                                          13          awkward  locution.   Other  courts  have adopted  it,  see, e.g.,                                                                 ___  ____          United States v. McCaskill,  676 F.2d 995, 998 (4th  Cir.), cert.          _____________    _________                                  _____          denied, 459 U.S. 1018  (1982); United States v. Ingram,  592 A.2d          ______                         _____________    ______          992, 1003 (D.C. App.), cert. denied, 502 U.S. 1017 (1991), and it                                 _____ ______          stands in marked contrast   almost as point and counterpoint   to          the  "practical certainty" formulation that courts have developed          for  assessing  the  shared knowledge  requirement  applicable to          aiding  and abetting firearms  charges brought under  18 U.S.C.            924(c).  See infra  Part III.  The glaring  linguistic difference                       _____          between the two formulations guides our inquiry.                    Knowledge is a concept,  not an absolute.  In  the law,          as  in  life, "knowledge"  means  different  things in  different          contexts.    Accordingly, we  believe it  is  useful to  view the          concept as a continuum.                    At  one end of the  continuum is what  the law commonly          calls "constructive  knowledge."   Constructive knowledge  is the          law's  way of  recognizing that,  given  an awareness  of certain          subsidiary  facts, a  person  is quite  likely  to know,  can  be          expected to  know, or at  least should  know that a  further fact          exists.   See Black's Law Dictionary 314  (6th ed. 1990) ("If one                    ___          by exercise  of reasonable  care would have  known a fact,  he is          deemed to have had constructive knowledge of said fact . . . .").          By way of illustration, if an easily visible foreign object is on          a  staircase for an appreciable  length of time,  the law accepts          the  reasonableness  of a  conclusion  that the  occupier  of the          premises "knew" of its presence (even though there is no evidence                                          14          that the occupier actually knew, by observation or report, of the                            ________          object's whereabouts).                    At  the  other end  of the  continuum  is what  the law          commonly calls "actual knowledge."  Actual knowledge, as the term          implies, reduces the need for inference; it suggests the presence          of   particular   evidence   which,  if   credited,   establishes          conclusively that the person in question knew of the existence of          the fact in question.  See  id. at 873 (defining actual knowledge                                 ___  ___          as  "positive, in contrast to imputed or inferred, knowledge of a          fact").   To carry our example forward, if witnesses testify that          the occupier himself placed  the foreign object on the  stair, or          remarked its  location, that testimony,  if believed, establishes          that the occupier actually knew of its presence.                    The concepts  of constructive  and actual knowledge  do          not occupy the entire span of the continuum.  Knowledge varies in          origin, degree, and an array of other respects.  These gradations          are best  visualized as way  stations that dot the  length of the          hypothetical knowledge continuum.  Notice of likelihood fits into          the poorly charted area  that stretches between the poles  of the          continuum.   While  we  believe that,  in  a criminal  case,  the          reasonable  doubt  standard  requires that  notice  of likelihood          comprise   more  than  constructive  knowledge  simpliciter,  its                                                          ___________          articulation evokes  echoes of constructive knowledge  and places          the  proof  requirement  closer to  that  end  of  the continuum.          Actual knowledge, after all,  is certain knowledge, see  id., and                                                              ___  ___          likelihood is not the stuff of certainty.                                          15                    Logically,  then,  the  Sanborn rubric  implies,  in  a                                            _______          section 2113(d) case, that  the defendant's shared knowledge need          not amount to actual knowledge that his cohort  intended to use a                        ______          gun or  other  dangerous  weapon in  robbing  the  bank;  indeed,          Sanborn's disjunctive phraseology, 563  F.2d at 491 ("knew .  . .          _______          or at  least . . .  was on notice of the  likelihood"), leaves no          doubt  that a conviction can  be grounded on  something less than          actual  knowledge.   We  conclude  that  an  enhanced showing  of          constructive  knowledge  will  suffice.   See  United  States  v.                                                    ___  ______________          Grubczak, 793 F.2d 458, 463 (2d Cir. 1986).          ________                    While  this is  a very  close case,  we think  that the          evidence clears  the notice of  likelihood hurdle.   Our analysis          builds  on  the human  condition.   Jurors  are "not  expected to          ignore  what is perfectly  obvious," Echeverri, 982  F.2d at 679,                                               _________          but,   rather,  "to  take  full  advantage  of  their  collective          experience and common sense."  O'Brien, 14 F.3d at 708.   In this                                         _______          case, the  scheme called for a lone robber to enter a bank during          business hours with the intent  of looting it.  One  would expect          tellers, guards, customers, and other persons unsympathetic to an          unauthorized  withdrawal of funds to  be on the  premises.  Under          those circumstances,  not even  the most sanguine  criminal would          expect clear sailing without some menace in  the wind.  In short,          the circumstances gave rise  to constructive knowledge beforehand          that the intruder would need a gun or some other dangerous device          to  accomplish the  felons' agreed  goal.   See United  States v.                                                      ___ ______________          Powell, 929 F.2d 724,  727 (D.C. Cir. 1991) (stating,  in dictum,          ______                                          16          that  "possession  of  a gun  .  . .  is  virtually  essential in          [perpetrating a bank robbery]").                    Here,  moreover, Spinney  was not  merely a  bit player          (say, a lookout or a getaway driver), but  a leading man.  A jury          could  reasonably  infer  from  the  totality  of  the  attendant          circumstances,  particularly  from the  host  of telephone  calls          between Spinney  and Kirvan  and from Spinney's  participation in          the elaborate reconnaissance mission, that he had a major role in          planning the heist.   Even  assuming that there  was no  specific          discussion  of  the  use of  a  gun,  evidence  of a  defendant's          substantial  involvement  over  the  course of  several  days  in          planning and  orchestrating a  robbery, when coupled  with actual          participation in carrying it  out, permits a compelling inference          that  the defendant knew the  salient details of  the plot (e.g.,          the  timing of the robbery, the bank's identity and location, the          planned entry by a lone robber).   These circumstances seem to us          to  sustain  a finding  that Spinney  was  on notice  that Kirvan          likely would  tote a gun in  the course of  the upcoming robbery.          See  Grubczak,  793  F.2d  at  464  (relying  on  evidence  of  a          ___  ________          defendant's  substantial  involvement  as  a  planner  of  and  a          "principal player[] in the robbery" to help ground "the inference          that he had to have been aware of the likely use of a  gun"); see                                                                        ___          also United States v. DeMasi, 40 F.3d 1306, 1316 (1st Cir.  1994)          ____ _____________    ______          (inferring  knowledge  that   weapons  would  be  employed   from          accomplice's awareness of the conspirators' overall  plan), cert.                                                                      _____          denied, 115 S. Ct. 947 (1995).          ______                                          17                    Appellant  decries  this  approach,  claiming  that  it          necessitates the  stacking of inference  upon inference.   In one          sense,  at least, this may be so   but "[t]he rule is not that an          inference,  no matter how reasonable, is to be rejected if it, in          turn,  depends upon  another  reasonable inference;  rather,  the          question  is  merely   whether  the  total   evidence,  including          reasonable inferences, when put together is sufficient to warrant          a jury to conclude  that defendant is guilty beyond  a reasonable          doubt."  Dirring v. United States, 328 F.2d 512, 515  (1st Cir.),                   _______    _____________          cert. denied, 377  U.S. 1003 (1964).   Chains of inference  are a          _____ ______          familiar,  widely   accepted   ingredient  of   any  process   of          ratiocination.  This method  of reasoning, commonly called logic,          is  regularly relied  upon in  the realm  of human  endeavor, and          should not be forbidden to a criminal jury.                    Of course,  the inferential chain must be strong6   but          here,  the  hypothesis  upon   which  Spinney's  section  2113(d)          conviction rests is not at all dubious.  On  this record, despite          the lack of direct evidence and the uncertainties associated with          that lack, the jury rationally could find Spinney to have been an          architect of, and an  active participant in, the robbery.   Given          these  available findings, and the persuasive  force of the other          permissible inferences supported by the overall circumstances, we                                        ____________________               6As  we recently  wrote:  "Guilt  beyond a  reasonable doubt          cannot  be  premised  on  pure  conjecture.    But  a  conjecture          consistent with the evidence becomes  less and less a conjecture,          and  moves  gradually  toward  proof,  as   alternative  innocent          explanations  are discarded  or  made less  likely."   Stewart v.                                                                 _______          Coalter,  48 F.3d 610, 615-16 (1st Cir. 1995), petition for cert.          _______                                        ________ ___ _____          filed (U.S. June 19, 1995) (No. 94-9742).          _____                                          18          cannot  say  that  the  jury  exceeded  its  proper  province  in          concluding  that Spinney  was on  notice of  the likelihood  that          Kirvan would use a gun.7  See Sanborn, 563 F.2d at 490.                                    ___ _______          III.  THE FIREARMS CHARGE          III.  THE FIREARMS CHARGE                    Appellant  also  challenges  the  sufficiency   of  the          evidence  in regard to his  conviction under 18  U.S.C.   924(c).          Although here, too, appellant is charged as an aider and abettor,          his assignment of error raises a somewhat different question.  To          prove that a defendant  aided and abetted a violation  of section          924(c), the government must establish that the defendant knew "to          a practical certainty that the principal would be [using] a gun."          United States  v. Torres-Maldonado, 14  F.3d 95,  103 (1st  Cir.)          _____________     ________________          (quoting  Powell, 929 F.2d at 728), cert.  denied, 115 S. Ct. 193                    ______                    _____  ______          (1994); accord DeMasi, 40 F.3d at 1316.                  ______ ______                    The government  strives to collapse  the linguistically          different standards  for aiding  and abetting liability  under 18                                        ____________________               7We acknowledge that two other courts, on somewhat analogous          facts, have  found that  a defendant's participation  in planning          will not support  a conviction  for aiding and  abetting under             2113(d).   See  Dinkane,  17  F.3d  at  1197;  United  States  v.                     ___  _______                        ______________          Pendergraph, 791  F.2d 1462, 1466 (11th Cir. 1986), cert. denied,          ___________                                         _____ ______          479  U.S. 869 (1986).   But every  case is different  and must be          judged on its particular array of facts.  Moreover, in this case,          unlike in Dinkane, 17  F.3d at 1195, the district  court properly                    _______          instructed  the jury as to  the elements of  aiding and abetting,          and unlike in Pendergraph, 791 F.2d at 1464-65, the court did not                        ___________          erroneously  admit  evidence that  would  have  allowed the  jury          improperly to convict.   At any rate,  to the extent our  holding          today  contradicts  Dinkane  and/or  Pendergraph,  we  stand  our                              _______          ___________          ground.   In the final  analysis, we cannot  reject as irrational          the jury's "conclu[sion] that an accomplice so closely associated          with the venture could not fail to know what would be the central          question in  any robbery:    how the  robbers were  to force  the          bank's employees to part  with the money."  Sanborn,  563 F.2d at                                                      _______          490.                                          19          U.S.C.    2113(d)  and 924(c), respectively,  at the less  taxing          end of the knowledge  continuum.  We are uncomfortable  with this          esemplastic approach.  Particularly when  juxtaposed with "notice          of  . . . likelihood," we believe that "practical certainty" is a          rubric that  calls  for proof  verging on  actual knowledge,  see                                                                        ___          Model Penal  Code   2.02  at 236  n.13 (1985)  ("With respect  to          result elements, one  cannot of course  `know' infallibly that  a          certain  result will follow from engaging in conduct, and thus to          some  extent  `knowledge,'  when   applied  to  result  elements,          includes  a  contingency  factor  as  well.    This  is expressed          definitionally  in terms  of  whether the  actor is  `practically          certain' that  the result will  follow."), and, thus,  presents a          considerably higher hurdle  for the prosecution to overcome.  Nor          do  we think that  we are free  to cut  this hurdle down  to size          either  by  reading  significantly  dissimilar  articulations  to          denote  a  single  meaning  or  by treating  one  of  them  as  a          linguistic  accident.  Courts invite error when they try to weigh          meaning only after placing a thumb on the scale, or when they too          freely write  off as  malapropos  words carefully  chosen in  the          past.   If principle  is to prevail,  we must give  effect to the          obvious difference in standards of knowledge.8                                        ____________________               8There are,  moreover, policy reasons why  courts might wish          to adopt divergent standards  for an accomplice's knowledge under          the  two statutes. While possession  of a gun  or other dangerous          instrumentality will  likely facilitate  a bank robbery,  many of          the felonies  that underlie    924(c) can  be   and  often are             completed   unarmed.     Furthermore,  defendants   convicted  of          violating    924(c), unlike  defendants convicted of  violating            2113(d),  must be given an  additional sentence of  at least five                                      __________          years, to run  consecutively to the term of incarceration imposed                                          20                    In  this  case, the  difference  is  dispositive.   The          government's argument  boils down to  an assertion that  the jury          could  infer that  Spinney  was practically  certain of  Kirvan's          anticipated use  of a  gun based  on  the evidence  we have  just          reviewed,  principally  the  confederates'  joint  design  of the          robbery.  Yet, the government adduced no evidence suggesting that          firearms were  actually contemplated  in the planning  stages, or          that Spinney had any actual knowledge that Kirvan would be armed.          Under the  circumstances, we conclude that  the government's best          evidence (that  Spinney helped to mastermind  the robbery), taken          in the light  most favorable  to the verdict,  even when  coupled          with  the   jury's  ability  to  make   intuitive  judgments,  is          insufficient  to  support the  requisite  inference of  practical          certainty.9   See, e.g., Powell,  929 F.2d at  729; United States                        ___  ____  ______                     _____________          v. Hamblin, 911 F.2d  551, 558-59 (11th Cir.), cert.  denied, 500             _______                                     _____  ______          U.S. 943 (1991).                    In  a last-ditch effort to save the day, the government          directs  our attention  to  a  series  of  drug  cases  in  which                                        ____________________          for the  underlying crime.  See  18 U.S.C.   924(c)(1).   Both of                                      ___          these considerations suggest that a higher threshold of knowledge          may well be appropriate in the   924(c) milieu.               9Although  courts  sometimes   have  distinguished   between          prosecutions under the  two statutes with which we are concerned,          see, e.g., United States v. Medina, 32 F.3d 40, 47 (2d Cir. 1994)          ___  ____  _____________    ______          (narrowly directing its holding to cases brought  under   924(c),          and distinguishing  cases brought under    2113(d)), our research          has  revealed no  reported case  in which  the evidence  has been          found sufficient to sustain an aiding and abetting conviction for          armed  bank  robbery, but  insufficient  to sustain  a  charge of          aiding and abetting the commission of a firearms offense based on          the same incident.  To that extent, our decision today breaks new          ground.                                          21          knowledge of a vessel's cargo was imputed to crew members.   See,                                                                       ___          e.g., United States v. Guerrero-Guerrero, 776 F.2d 1071 (1st Cir.          ____  _____________    _________________          1985),  cert. denied,  475  U.S. 1029  (1986);  United States  v.                  _____ ______                            _____________          Quejada-Zurique, 708 F.2d  857 (1st Cir.), cert. denied, 464 U.S.          _______________                            _____ ______          885 (1983).  But these scenarios are readily distinguishable from          the  case at bar.  In  those cases, guilty knowledge was inferred          from the  crew members' close proximity  to detectable quantities          of  drugs over  an  extended period  of  time.10   See  Guerrero-                                                             ___  _________          Guerrero, 776 F.2d at 1074-75;  Quejada-Zurique, 708 F.2d at 859-          ________                        _______________          60.  Here,  Spinney did not even enter the bank, and there was no          evidence  that Kirvan had the  weapon in his  possession while he          and Spinney were together  before the robbery, let alone  that it          was visible  or  otherwise  detectable at  that  juncture.    Put          bluntly, even though Spinney may have spent much time with Kirvan          devising the plan, and was on notice of the likelihood that a gun          would be  used in the course  of the robbery, there  is simply no          evidence  to  support  a  reasoned conclusion  that  Spinney  was          practically certain that Kirvan would be armed.                    In sum, "likelihood" and "practical certainty" are  not          equivalent terms.   Applying  the practical certainty  rubric, we                                        ____________________               10These  situations involve  what we  have termed  "culpable          presence."   Ortiz, 966 F.2d at  712.  They must be distinguished                       _____          from ones  in which  a defendant is  "merely present"  on a  drug          vessel.  Such presence, without more (i.e., absent "circumstances          where   presence   itself   implies  participation,"   id.),   is                                                                 ___          insufficient  to ground  criminal liability.   See,  e.g., United                                                         ___   ____  ______          States v. Hyson, 721 F.2d 856, 863 (1st Cir. 1983); United States          ______    _____                                     _____________          v. Mehtala,  578 F.2d 6, 9 (1st  Cir. 1978).  Spinney's situation             _______          does not fit within the integument of the genuine "mere presence"          cases.                                          22          hold  that the  jury reached  its verdict  on the  section 924(c)          count without an adequate evidentiary foundation.          IV.  CONCLUSION          IV.  CONCLUSION                    This is  the rare  case in  which the evidence,  viewed          most  congenially  to the  government,  passes  muster under  the          notice   of  likelihood   test  and,  therefore,   justifies  the          appellant's  conviction for  aiding  and abetting  an armed  bank          robbery,  18  U.S.C.     2113(d), but,  nevertheless,  fails  the          practical  certainty test  and, therefore,  does not  justify the          appellant's conviction for  aiding and  abetting the  principal's          use of a firearm during  and in relation to a crime  of violence,          18 U.S.C.   924(c).  This  result, though it is unusual, does not          strike us as strange.  See, e.g., Model Penal Code   2.02 at 236-                                 ___  ____          37  n.13 (suggesting  that, where  knowledge is  in issue,  it is          sometimes "meaningful to draw  a line between practical certainty          and awareness  of substantial  risk").   So it  is here:   though          notice  of likelihood must  be proven beyond  a reasonable doubt,          the government  can meet  this burden  by an  evidentiary showing          less  than is  required to  prove that  the defendant  knew to  a          practical certainty that a gun would be used.                    We   need  go  no  further.     The  law   is  full  of          complexities,  and language is, at  best, an imperfect device for          capturing the energy of ideas.  Here, interpreting the words used          by the Sanborn  court ("notice of . . .  likelihood"), on the one                 _______          hand, and by  the Powell  court ("practical  certainty"), on  the                            ______          other  hand, "in the light of the tacit assumptions upon which it                                          23          is reasonable to  suppose that  the language was  used," Ohio  v.                                                                   ____          Agler,  280 U.S. 379, 383 (1930) (Holmes, J.), it is unsurprising          _____          to discover a fork in the road.                    The appellant's  conviction on count 2  is affirmed and                    The appellant's  conviction on count 2  is affirmed and                    _______________________________________________________          the appellant's conviction on count 3 is reversed.          the appellant's conviction on count 3 is reversed.          _________________________________________________                                          24
