In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3663

United States of America,

Plaintiff-Appellee,

v.

Tom Ray Wallace,

Defendant-Appellant.



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.


Argued February 25, 2000--Decided May 12, 2000




  Before Bauer, Ripple, and Manion, Circuit
Judges.

  Bauer, Circuit Judge. 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
Tom/1 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

  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.

  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.

  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."

  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.

  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 sto-
len.
  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.

  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.

  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.

  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

  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).

  "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.

  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
  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.

  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.)

  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

  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).

  "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.

  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

  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).

  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).

  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

  Affirmed.



/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 346.

/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").
