                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2001

United States v. Wolfe
Precedential or Non-Precedential:

Docket 00-1942




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Filed March 29, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1942

UNITED STATES OF AMERICA

v.

RICHARD ALLEN WOLFE,

       Appellant.

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 99-cr-00256-1)
District Judge: Hon. William J. Nealon

Argued December 7, 2000

BEFORE: BARRY and COWEN, Circuit Judges and
WARD,* District Judge

(Filed: March 29, 2001)

       Daniel I. Siegel, Esq.
       Office of Federal Public Defender
       100 Chestnut Street, Suite 306
       Harrisburg, PA 17101

       Patrick A. Casey, Esq. (Argued)
       Office of Federal Public Defender
       116 North Washington Avenue
       Kane Professional Building, Suite 2C
       Scranton, PA 18503

        Counsel for Appellant
_________________________________________________________________

* Honorable Robert J. Ward, United States District Judge, U.S. District
Court for the Southern District of New Y ork, sitting by designation.
       Barbara K. Whitaker, Esq. (Argued)
       Office of United States Attorney
       235 North Washington Avenue
       William J. Nealon Federal Building
       Scranton, PA 18501

        Counsel for Appellee

OPINION OF THE COURT

COWEN, Circuit Judge.

I.

On April 9, 1999, Richard Allen Wolfe r obbed the Penn
Security Bank and Trust Company. He walked into the
bank, approached the teller with his hand in his jacket,
handed her a bag and instructed her to fill it with money.
He then told her he had a gun and would shoot. When the
teller did not produce enough hundred dollar bills to satisfy
him, he repeated the threat. He repeated the threat a third
time to induce her to produce yet more money. Based on
his words and actions the teller believed he had a gun and
that he would shoot. She complied with his demands and
he fled the bank with $4518.00. The bank teller did not see
a weapon, nor is there any additional evidence, aside from
his threats and actions, that he possessed a weapon at the
time of the robbery.

Wolfe was charged with one count of ar med bank robbery
in violation of 18 U.S.C. S 2113(d), to which he entered a
plea of not guilty. To sustain a conviction for armed robbery
one of the elements the prosecutor must pr ove is that the
defendant "assaulted any person, or put in jeopar dy the life
of any person by the use of a dangerous weapon or device."
18 U.S.C. S 2113(d) (emphasis added). The evidence
presented at trial focused almost exclusively on whether the
witnesses had correctly identified Wolfe as the bank robber.1
_________________________________________________________________

1. One of the officers responding to r obbery, Detective Culkin, viewed
the
bank surveillance video. Based on his observations of Wolfe at a local bar

                               2
Other than the teller's testimony regar ding his repeated
threats, no evidence or arguments wer e presented on the
issue of whether Wolfe possessed a danger ous weapon at
the time he committed the robbery. With respect to this
element of the offense, the District Court charged the jury,
without objection, as follows:

       The fourth essential element that the government must
       prove beyond a reasonable doubt is that in committing
       the crime, the defendant deliberately and intentionally
       assaulted [the teller] or put her life in jeopardy by the
       use of a dangerous weapon. . . .

       ***

       The government must prove beyond a r easonable
       doubt that the defendant, during the commission of a
       bank robbery, committed acts or said wor ds that would
       have caused an ordinary person to reasonably expect
       to die or face serious injury by the defendant's use of
       a dangerous weapon.

This charge permitted the jury to convict if they concluded
that Wolfe's words or actions could have reasonably led the
teller to believe that he might use a danger ous weapon,
regardless of whether the jury believed he actually had a
weapon. The jury reached a guilty verdict that same day.
_________________________________________________________________

on prior occasions, as well as his observations that on the night before
the robbery he saw Wolfe wearing clothes similar to those worn by the
robber, he opined that Wolfe was the robber. The FBI ran a record check
on Wolfe revealing that he had outstanding parole violation warrants and
that his parole officer, Thiel, was actively investigating to determine
his
whereabouts. Officer Theil was shown the surveillance video. Based on
his observations of Wolfe during the four tofive years that he was under
supervision, as well as his recollections that during a recent interview
Wolfe had been wearing clothes similar to those worn by the robber, he
also concluded Wolfe was the robber . When the authorities learned of
Wolfe's whereabouts and went to arr est him, he was found hiding in the
ceiling. He was arrested pursuant to the par ole warrant violations. A
lawful search of Wolfe's personal pr operty revealed a bank bag
containing over $1000 in cash. Shortly after W olfe's arrest, two bank
tellers were presented with a photographic array and each of them
independently identified Wolfe as the bank robber.

                               3
The District Court imposed a sentence of 21 years and 10
months.

II.

The defendant now stipulates that there was sufficient
evidence at trial to prove that he committed the lesser
offense of bank robbery by intimidation, in violation of 18
U.S.C. S 2113(a). However, he appeals his conviction for the
greater offense of armed bank r obbery on the ground that
there was insufficient evidence to pr ove the "use of a
dangerous weapon" as required for a conviction under
S 2113(d). Wolfe argues ther e was insufficient evidence for a
jury to conclude beyond a reasonable doubt that he
actually possessed a dangerous weapon during the
commission of the robbery. This appeal cannot, however, be
analyzed as a simple sufficiency of the evidence claim
because the jury charge allowed a conviction if the jury
concluded that the teller reasonably believed W olfe had a
weapon and that he might use it. That is, the char ge
allowed the jury to convict regardless of whether they
concluded he actually possessed a weapon when he r obbed
the bank. Therefore, we must review both the sufficiency of
the evidence to convict Wolfe under S 2113(d) and the
propriety of the jury instructions that allowed conviction
based solely on the teller's reasonable belief that Wolfe had
a weapon.

Because Wolfe did not raise an objection at trial to either
the sufficiency of the evidence or the jury char ge we will
reverse only if we find "plain err or." Fed.R.Crim. P. Rule
52(b); United States v. Turcks, 41 F .3d 893, 897 (3d Cir.
1994); United States v. Gaydos, 108 F .3d 505, 509 (3d Cir.
1997) (where the defendant does not preserve insufficiency
issue by filing a timely motion for a judgment of acquittal,
sufficiency of the evidence is reviewed under a plain error
standard). This standard is met when ther e is an "error"
that is "plain" and that "affects substantial rights." United
States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1777,
123 L.Ed.2d 508 (1993); Turcks, 41 F .3d at 897. A court's
deviation from a legal rule constitutes "err or". Olano, 507
U.S. at 732, 113 S.Ct. at 1777, 123 L.Ed.2d 508; Turcks,
41 F.3d at 897. A "plain" error is one that is "clear" or

                               4
"obvious." Id. An error is deemed to have "affected
substantial rights" if it was prejudicial in that it affected the
outcome of the District Court proceedings. Olano, 507 U.S.
at 733, 113 S.Ct. at 1778, 123 L.Ed.2d 508; Tur cks, 41
F.3d at 897. Under plain error r eview, the defendant bears
the burden of establishing that the err or prejudiced the
jury's verdict. Turcks, 41 F .3d at 898. Even if the defendant
establishes the existence of plain error , Rule 52(b) leaves to
the sound discretion of the Court of Appeals the decision
whether to correct the error. While the Court of Appeals has
the authority to order correction when these elements are
met, it is not required to do so. Id. Instead, "we [ ] exercise
our discretion `where the defendant is actually innocent, or
where, regardless of the defendant's innocence or guilt, the
error `seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.' " Turcks, 41 F.3d at 897.
See also Olano, 507 U.S. at 732, 113 S.Ct. at 1777, 123
L.Ed.2d 508.

A defendant must move for a judgment of acquittal at the
conclusion of the evidence to properly pr eserve for appeal
issues regarding the sufficiency of the evidence. United
States v. Wright-Barker, 784 F.2d 161, 170-71 (3d Cir.
1986). Wolfe failed to so move. Nonetheless, we will review
the sufficiency of the evidence under the plain error
standard because, as we have previously held, the
prosecution's failure to prove an essential element of the
offense constitutes plain error under Rule 52(b) of the
Federal Rules of Criminal Procedure. Gaydos, 108 F.3d at
509. We review the record in the light most favorable to the
prosecution to determine whether any rational trier of fact
could have found proof of guilt beyond a r easonable doubt
based on the available evidence. Jackson v. V irginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

A conviction for armed bank robbery under 18 U.S.C.
S 2113(d) requires proof that, while robbing a federally
insured bank, the defendant put in jeopar dy the life of
another "by the use of a dangerous weapon or device." The
Court of Appeals for the Third Circuit has not yet
addressed the application of this statute in a case where
the defendant stated he had a weapon, appear ed to have
his hand on a weapon, and threatened to use that weapon,

                               5
but never actually displayed a weapon during a r obbery.
The government argues that words and gestures that lead
a victim to believe a robber is armed constitute the "use of
a dangerous weapon or device" within the meaning of the
statute regardless of whether the defendant actually
possesses a weapon. In other words, the danger ous device
being employed in the robbery was Wolfe's threat to shoot.
Were we to adopt this interpretation of the statute the
prosecution would be relieved of the bur den to prove that
the defendant actually had a weapon and would only have
to prove that the defendant said he had a weapon. Wolfe
not only argues that threatening wor ds and gestures are
not a dangerous device, but also that, absent some
corroborating evidence, threats and gestur es alone are
insufficient evidence to establish beyond a r easonable
doubt that a robber actually possessed a danger ous
weapon. We decline to adopt either interpr etation and
instead conclude that, while threats themselves are not a
"dangerous device" within the meaning of the statute, these
same threats may be considered by the jury as evidence
that a defendant actually had a dangerous device or
weapon. It is a subtle, but important, distinction.

Threatening words and gestures do not, in and of
themselves, constitute a dangerous device within the
meaning of 18 U.S.C. S 2113(d). The crime of bank robbery
occurs when a person obtains or attempts to obtain money
or valuables from a federally insured bank"by force and
violence, or by intimidation." 18 U.S.C. S 2113(a). The
commission of bank robbery under S 2113(a) carries a
penalty of not more than twenty years imprisonment
and/or a fine of not more than $5,000. The much more
serious offense of aggravated bank robbery occurs when a
person, "in committing, or attempting to commit, any
offense defined in subsections (a) and (b) of this section,
assaults any person, or puts in jeopardy the life of any
person by the use of a dangerous weapon or device." 18
U.S.C. S 2113(d). This offense carries a steeper maximum
penalty of twenty-five years imprisonment and/or afine of
not more than $10,000. Thus, on its face, the statute
clearly differentiates between robberies committed
employing force or intimidation and robberies committed
with the aid of dangerous weapons or devices.

                               6
An interpretation of the statute that characterizes a
threat as a "dangerous device," r egardless of whether the
robber actually possesses a dangerous device such as a
gun or knife, would render S 2113(a) lar gely superfluous
thereby contravening established principles of statutory
interpretation. Under such an interpretation a robber who
walked into a bank, demanded money and threatened to
shoot, but who was apprehended on the spot and found to
be unarmed would be guilty of aggravated bank robbery
under S 2113(d) because when he made the thr eat he used
a dangerous device. The United States Solicitor General and
our sister Circuits have rejected this interpretation as
inconsistent with the plain language and legislative intent
behind SS 2113(a) and (d). See, e.g., McLaughlin v. United
States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986);
United States v. Ray, 21 F.3d 1134, 1137-38 (D.C. Cir.
1994); United States v. Perry, 991 F .2d 304, 309 (6th Cir.
1993). A robber who uses threats of violence to accomplish
a robbery, but who is unarmed, is guilty of the lesser
offense of bank robbery under S 2113(a). For this Court to
conclude that these threats of violence ar e, in and of
themselves, a dangerous device would cir cumvent
legislation designed to recognize and deter the increased
danger presented by criminals who commit crimes while
carrying weapons or devices that appear to be weapons. See
Perry, 991 F.2d at 310. We cannot interpret the statute in
a manner inconsistent with this explicit distinction by
construing threatening words as a "dangerous device"
under S 2113(d). We conclude that in or der to sustain a
conviction under S 2113(d) the prosecution bears the
burden of proving that the robber had a dangerous weapon
or device and that he used it.

While Wolfe's threats to shoot ar e not, in and of
themselves, a dangerous device, these same thr eats may be
considered by a jury as relevant evidence on the issue of
whether Wolfe actually possessed a weapon when he robbed
the bank. We are in agreement with other Courts of Appeal
that have wrestled with this issue that, when a robber says
he has a gun and that he will use it, a jury may r easonably
infer that he did have a gun.2Ray, 21 F.3d at 1140; United
_________________________________________________________________

2. The dissent maintains that this holding ef fectively relieves the
prosecution of its burden to prove actual possession of a weapon and

                               7
States v. Levi, 45 F.3d 453, 457 (D.C. Cir. 1995); United
States v. Ferguson, 211 F.3d 878, 884 (5th Cir. 2000).
During the robbery, Wolfe told the teller no less than three
times that he had a gun and that he would use it. Levi, 45
F.3d at 457 (a defendant "may be convicted of aggravated
bank robbery . . . in which he either stated that he had a
gun or threatened to blow off the teller's head. Both
statements are sufficient evidence for the jury reasonably to
conclude that the robber indeed had a gun"). The act of
gesturing with his arm in his jacket pocket is additional
evidence the jury is entitled to evaluate in considering the
truth of his claim that he was armed.3 In Wolfe's case it
_________________________________________________________________

instead requires only that it prove the defendant said he had a weapon.
[Dissent at 12]. This generalization overlooks the rule clearly set forth
in
this opinion -- the prosecution must pr ove actual possession of a
dangerous weapon in order to sustain a conviction under S 2113(d). Our
holding simply leaves to the trier of fact the decision of whether to
credit
a defendant's own statements, made during the course of a robbery, that
he was armed. However, it does not, as the dissent implies, require a
jury to find that a defendant was armed based on such statements.
3. At the trial, an eyewitness to the robbery testified as follows
regarding
Wolfe's threatening "gestures":

       Q: Could you . . . tell us what happened to you on that day?

       A: . . . . I was -- just had finished taking care of a customer.
Hum,
       and another customer approached my window. When I looked
       up the gentleman pushed a bag in front of me. He had his hand
       in his jacket and he told me that he had a gun and he wanted
       the bag filled with money.

(App. 110, lines 8-15).

       Q: Maureen, you said he had his hand in his jacket when he
       approached your window. By his actions did he indicate to you
       that he had a weapon?

       A: Yes. He said he had a gun and he would shoot.

(App. 112, lines 17-20).

       Q: And the robber did not have gloves on so far as you could tell?

       A: Not that I know of. I honestly don't know what was on his hand.
       I only -- I was watching the -- the -- mor e the arm in his coat
       and just watching what he was saying to me . . .
(App. 115, lines 2-8).

                         8
would have been uniquely reasonable for a jury to take
Wolfe at his word and so conclude because he never once
disputed the prosecution's contention on this point either
by direct denials, on cross-examination of the eye
witnesses, by the presentation of contrary evidence, or in
his opening or closing statements. Instead, the defense
chose to focus on the issue of the robber's identity and did
not so much as assert that Wolfe was unar med when he
robbed the bank. Indeed, it was never an issue in this case.
Accordingly, viewing the evidence in the light most
favorable to the prosecution, as we must, we hold that
there was sufficient evidence for a r easonable jury to
conclude Wolfe actually possessed a gun during the robbery
of the Penn Security Bank and Trust Company. Because
there was sufficient evidence to sustain the jury's
conclusion that he actually possessed a gun, his thr eats to
shoot unless the teller gave him money clearly constitute
the "use" of a dangerous weapon within the meaning of the
statute.

Because the jury instructions made it irrelevant whether
Wolfe actually had a dangerous weapon we must also
consider the implications of the jury charge. As the above
discussion indicates, a conviction under S 2113(d) requires
proof that a defendant actually had a weapon. By
instructing the jury that they could convict based solely on
the teller's reasonable belief that Wolfe was armed, the
District Court deviated from the correct legal rule when
charging the jury and committed clear err or. Levi, 45 F.3d
at 456; Ray, 21 F.3d 1140. We conclude, however, that this
error did not affect substantial rights by altering the
outcome of the proceedings; therefor e, it was not plain
error.

Under plain error review, Wolfe bears the burden of
establishing that the error affected his rights by prejudicing
the jury's verdict. Turcks, 41 F .3d at 898. Wolfe cannot
meet that burden. The Supreme Court itself has cautioned
that "[i]t is a rare case in which an improper instruction
will justify reversal of a criminal conviction when no
objection has been made in the trial court." Henderson v.
Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d
203 (1977). Not only did Wolfe fail to object to the

                               9
erroneous instructions, he did not even obliquely raise the
issue of whether he had a weapon during the trial. The
evidence presented at Wolfe's trial per mitted only one
conclusion: he was armed. We cannot, therefore, conclude
that the erroneous jury instruction prejudiced the jury's
verdict. In light of the evidence presented at trial, we are
confident that the jury would have convicted W olfe even if
the appropriate instruction had been given.

III.

Because there was sufficient evidence to sustain Wolfe's
conviction for aggravated bank robbery and because the
erroneous jury instructions do not warrant a r eversal under
the plain error standard, we will affir m Wolfe's conviction
under 18 U.S.C. S 2113(d). For the for egoing reason, the
District Court's judgment of June 19, 2000 will be affirmed.

                               10
ROBERT J. WARD, Senior District Judge, concurring in
part and dissenting in part:

I respectfully concur in part and dissent in part. Where
a defendant threatens to use a dangerous weapon or
device, but does not display an object reasonably perceived
to be one, I concur that actual possession is r equired to
sustain a conviction under 18 U.S.C. S 2113(d). However, I
disagree with the majority that Wolfe's threats to use a gun,
and these threats alone, are sufficient to establish actual
possession beyond a reasonable doubt.

Although I agree with the majority that W olfe's threats
"may be considered by a jury as relevant evidence on the
issue of whether Wolfe actually possessed a weapon,"
[Majority Opinion at 7], I do not believe that such threats
are enough to uphold the verdict in this case. The only
"relevant evidence" presented at trial that Wolfe was armed
was that he verbally threatened to use a gun and that his
hand was in his jacket or coat.1 As noted in the Solicitor
General's brief in McLaughlin v. United States , 476 U.S. 16
(1986), "[r]obbers frequently pass notes to tellers
demanding money and suggesting that they are ar med,
although they may be unarmed." Brief for the United States
at 18, McLaughlin, 476 U.S. 16 (1986) (No. 85-5189),
reprinted in Appendix at 179, 188. In the present case,
where the only evidence of actual possession is Wolfe's
threats, there is a strong possibility that he may have been
deceiving the teller in an effort to intimidate her. The jury
should not be permitted to infer actual possession beyond
a reasonable doubt from these threats alone since this
"approves precisely the kind of speculating which jurors
should not do and courts should not permit much less
encourage them to do." United States v. Ray , 21 F.3d 1134,
1145 (D.C. Cir. 1994) (Will, J., concurring in part and
dissenting in part).
_________________________________________________________________

1. Despite the majority's statement that "[t]he act of gesturing with his
arm in his jacket pocket is additional evidence" of whether Wolfe was
armed, [Majority Opinion at 8], the trial record indicates only that
Wolfe's
hand was in his jacket or coat; there was no mention that he "gestured"
or that his hand was in his "pocket" (as opposed to any other part of his
jacket or coat). See Appendix at 110, 112, 115.

                               11
Furthermore, the majority expresses concern that if it
were to adopt the government's interpr etation of the
statute, under which words and gestures would constitute
the use of a dangerous weapon or device, "the prosecution
would be relieved of the burden to pr ove that the defendant
actually had a weapon and would only have to pr ove that
the defendant said he had a weapon." [Majority Opinion at
6] (emphasis added). Yet, by then holding that the jury can
infer possession from mere threats, the majority effectively
achieves the same outcome: the prosecution is permitted to
establish that the defendant actually had a weapon only by
proving that he said he had a weapon.

In addition, the majority's conclusion produces another
result that it seeks to avoid: "circumvent[ing]" the
legislation and rendering 18 U.S.C. S 2113(a) "largely
superfluous." [Majority Opinion at 7]. By definition, every
violation of S 2113(a) involves the use of"force and violence,
or . . . intimidation." 18 U.S.C. S 2113(a). An unarmed
robber's threat to use a weapon establishes this
intimidation element. Therefore, the majority's holding that
the same threat alone is sufficient for a jury to infer
possession blurs, if not eliminates, the distinction between
S 2113(a) and S 2113(d). Indeed, under the majority's
holding, S 2113(a) will now be reserved only for those rare
occasions when a robber walks into a bank demanding
money, but neither states that he has a weapon nor
displays what can be perceived as a danger ous weapon or
device.

The hypothetical jury charge crafted by the dissenting
judge in Ray to demonstrate the confusion r esulting from
the Ray majority's holding aptly illustrates the anomalous
result produced by the majority in the pr esent case:

        The law is clear that you may not convict the
       defendant under S 2113(d) merely because he said he
       had a gun or other dangerous device and gestur ed or
       acted like he did but never displayed or exhibited any
       object which looked like or could reasonably have been
       believed to be a gun or other dangerous object.
       However, if you are satisfied fr om his words, actions or
       gestures that he did have a hidden gun or other

                                12
       dangerous object even though he did not display it,
       then you may convict him under S 2113(d).

Ray, 21 F.3d at 1144 (Will, J., concurring in part and
dissenting in part).

The District of Columbia Circuit is the only circuit
squarely to decide that a jury can infer actual possession
solely from a defendant's threats. See, e.g., Ray, 21 F.3d at
1141. Although other circuit courts have quoted language
from Ray with approval, in each of those cases threats were
not the only evidence of gun possession. See United States
v. Ferguson, 211 F.3d 878, 884 (5th Cir. 2000) (additional
evidence that defendant had used a gun in several similar
robberies and that a gun was found in his apartment);
United States v. Jones, 84 F.3d 1206, 1209, 1211 (9th Cir.
1996) (additional evidence that defendant abandoned a
revolver, holster, and ammunition in a getaway vehicle).
Since the Ferguson decision cited in the majority opinion
did not rule on the narrow issue presented here and in
Ray, Ferguson is inapplicable.

Because I believe that there is insufficient evidence to
sustain a conviction under S 2113(d), I am also of the
opinion that the clearly erroneous jury char ge constituted
plain error in that it affected the defendant's substantial
rights by misleading the jury on the issue of the
defendant's "use of a dangerous weapon." Accordingly, I
would vacate the judgment and remand for r esentencing
under S 2113(a).

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               13
