                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 3 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 98-7048
                                                    (D.C. No. 97-CV-142-S)
    RICHARD SCOTT MCINTOSH,                               (E.D. Okla.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Richard Scott McIntosh appeals from an order of the district

court denying relief on his motion filed pursuant to 28 U.S.C.      § 2255 . The court

thereafter denied Mr. McIntosh a    certificate of appealability . We determine that

Mr. McIntosh has not shown the denial of a constitutional right, deny his motion

for a certificate of appealability, and dismiss this appeal .

      Mr. McIntosh was convicted by a jury of two counts of bank robbery, one

count of possession of a firearm moved interstate after a felony conviction, two

counts of use of firearm during commission of crime, and one count of

conspiracy. His convictions were affirmed on appeal.        See United States v.

McIntosh . 999 F.2d 487 (10th Cir. 19 93).

      In his motion to the district court, Mr. McIntosh raised ten issues.      To

summarize, he contended that insufficient evidence supported his convictions.

He also alleged that the jury instructions were prejudicial as were the

prosecutor’s comments during closing arguments, the jury instruction regarding

stipulations entered in by the parties amounted to a directed verdict, the 18

U.S.C. § 924(c) use of a firearm charges were illegal and the jury instructions on




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those charges were inadequate, 1 and he received ineffective assistance of counsel.

The district court denied relief on all issues.

      On appeal, Mr. McIntosh raises only four allegations of error. He argues

(1) he received ineffective assistance of counsel at trial and on appeal, (2) the

prosecutor violated his rights during closing arguments by telling the jury not to

consider the evidence and the charges during its deliberations, (3) the § 924(c)

charges were illegal, and (4) the jury instructions on the § 924(c) charges were

vague. Mr. McIntosh’s remaining issues are waived.        See State Farm Fire & Cas.

Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

      Mr. McIntosh contends counsel was ineffective at trial because he acted as

a courtroom spectator, permitted the court to tell the jury that other courts would

correct any mistakes they made, and accepted the government’s version of the

facts. To succeed on an ineffective assistance of counsel claim, Mr. McIntosh

must not only establish counsel’s performance was deficient but also that “the

deficient performance prejudiced the defense,” thus depriving him of “a trial

whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984).




1
       In the district court, the government conceded that the     § 924(c) instruction
was inadequate. See R., Vol. 1, tab. 7 at 10-11. The district court disagreed.       As
with the district court, we are not bound by the government’s concession.        See
Koch v. United States Dep’t of Interior, 47 F.3d 1015, 1018 (10th Cir. 1995)
(court is not bound by parties’ stipulations as to issues of law).

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      Our review of the record fails to support Mr. McIntosh’s contentions.

Trial counsel was not constitutionally ineffective.

      “When a defendant alleges his appellate counsel rendered ineffective

assistance by failing to raise an issue on appeal, we examine the merits of the

omitted issue.” United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995).

Mr. McIntosh contends that counsel raised insignificant issues on appeal while

failing to raise his sufficiency of the evidence issues. The fact that the issues

raised by counsel are determined to be without merit by the appellate panel does

not mean that the issues are insignificant. Further, the evidence was more than

sufficient to support the convictions. We see no evidence that appellate counsel

was ineffective.

      Mr. McIntosh’s issues concerning the prosecutor’s comments during

closing arguments and the jury instructions were not raised in his direct appeal.

Before we can consider them, Mr. McIntosh must show cause and prejudice for

failing to raise them on direct appeal. See id. Mr. McIntosh has made no such

showing, and we do not agree that any error occurred.

      Apparently in response to the Supreme Court’s ruling in Bailey v. United

States, 516 U.S. 137 (1995) , Mr. McIntosh asserts the § 924(c) charges were

illegal and the jury instructions on those charges were vague. He contends the




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jury was instructed as to “use and carry,” not “use or carry.” This argument is

without merit.

       The testimony at trial showed during the first robbery Mr. McIntosh’s

co-defendant Walter Thody “opened up his jacket and [the witness saw] the butt

of a gun inside his pants.” Mr. Thody also said: “[D]on’t pull the alarm or . . . I

will shoot you.” R. Vol. III at 88. In    Bailey, the Court held that a firearm can be

“used” when the defendant has “a gun on display during a transaction.”            See id. at

146.

       Although Mr. McIntosh did not display a firearm, the fact that his

co-defendant did, is sufficient to support Mr. McIntosh’s       § 924(c) conviction.

Mr. McIntosh was convicted of conspiring with Mr. Thody in the two robbery

schemes. So long as the conspiracy in crime continues, each conspirator acts for

the other in carrying it forward. “[A]n overt act of one partner may be the act of

all without any new agreement specifically directed to that act.”         Pinkerton v.

United States , 328 U.S. 640, 646-47 (1946) (quotation omitted).      2
                                                                          Thus,

Mr. McIntosh was properly convicted of the        § 924(c) offense in the first robbery.




2
        All courts which have considered the issue have held that   Pinkerton
liability continues to apply to § 924(c) offenses committed subsequent to   Bailey .
See, e.g. , United States v. Bell , 137 F.3d 1274, 1275 (11th Cir. 1998) (and cases
cited therein). We agree with the reasoning of these courts.

                                            -5-
       Testimony at trial showed that Mr. McIntosh actually brandished the gun

during his escape attempt after the second robbery.      See United States v. Thody ,

978 F.2d 625, 630 (10th Cir. 19 92) (noting that both Mr. McIntosh and Mr. Thody

used a gun to commandeer a car while attempting to flee pursuing police officers

and affirming co-defendant’s conviction on         § 924(c) count). Mr. McIntosh

contends no evidence exists that he used the gun during the robbery itself and,

therefore, he could not be convicted of use of a firearm during the robbery.

Escape from the scene was an integral part of Mr. McIntosh’s effort to

successfully complete the crime of robbery. Use of a gun during this attempted

escape is properly attributable to the charged crime of robbery.

       Mr. McIntosh also contends he could not be convicted of both bank robbery

and § 924(c). He is wrong.      Cf. United States v. Coleman , 9 F.3d 1480, 1482

(10th Cir. 1993) (affirming conviction for both armed bank robbery and use of a

firearm during a crime of violence, in violation of      § 924(c)(1)).




                                             -6-
      Finding that Mr. McIntosh has not “made a substantial showing of the

denial of a constitutional right” to meet the requirements of 28 U.S.C.

§ 2253(c)(2), we deny a certificate of appealability and DISMISS this appeal.



                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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