                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JAN 20 2005
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 04-7002
                                                          (E.D. Okla.)
 SOLOMON TRANELL BURTON,                             (D.Ct. No. CR-03-66-P)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
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. 34.1.9(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          This order and judgment is not binding precedent except under the doctrines of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.
      Appellant Solomon Tranell Burton, a federal prisoner represented by

counsel, appeals his conviction for using or carrying a firearm during a crime of

violence (Count 2), in violation of 18 U.S.C. § 924(c)(1)(A). We exercise

jurisdiction pursuant to 28 U.S.C. § 1291, and affirm Mr. Burton’s conviction and

sentence.



                               I. Factual Background

      The indictment against Mr. Burton charged him with bank robbery (Count

1) and using or carrying a firearm during a crime of violence (Count 2). Mr.

Burton entered a plea of guilty to Count 1 for the bank robbery charge and

received a sentence of thirty-three months imprisonment. As to Count 2,

following a jury trial, Mr. Burton was convicted of using or carrying a firearm

during a crime of violence, for which the district court sentenced him to sixty

months imprisonment, to run consecutively to his other sentence.



      Mr. Burton appeals only his jury conviction for using or carrying a firearm

during a crime of violence, and in so doing, contests the use of a jury instruction

which allowed the jury to consider escape or flight as a phase of the robbery for

the purpose of finding he carried a gun during or in relation to the robbery. The

following evidence, relevant to that issue and Mr. Burton’s appellate argument,


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was introduced at trial.



      One customer testified that on June 13, 2003, as she was driving her son to

the bank, she nearly hit Mr. Burton with her car in the bank parking lot. She

testified Mr. Burton was wearing a black shirt with a backwards number “3” and

black wind pants with the seam ripped out in the seat, which was noticeable

because the lining was white. Neither she nor her son, who followed Mr. Burton

into the bank and stood behind him in line, noticed any bulges in his clothing

which might suggest the presence of a gun. The son noticed Mr. Burton wore a

black do-rag and cap on his head and black windbreaker pants.



      A bank teller testified that, after waiting in line, Mr. Burton walked up to

him, said he would like to make a withdrawal, and then slid a handwritten note on

the counter, which said “Give me all tha money and you won’t get Hurt!!” The

bank teller noticed Mr. Burton wore a do-rag and jersey, but did not recall what

he wore on the bottom part of his body. Mr. Burton did not display a gun, and the

bank teller did not observe a bulge which might be a gun under the loose-fitting

jersey. On reading the note, the teller gave Mr. Burton $1,521 in cash. Once Mr.

Burton left, the teller activated the bank alarms. Other bank employees testified

the last surveillance photograph of the robbery was taken at 11:48:55 a.m., and


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that none of the photographs revealed Mr. Burton carried a gun.



      The same customer who dropped off and was waiting for her son in the

bank parking lot saw Mr. Burton leave the bank with what appeared to be a roll of

money in his left pocket, and then saw him start running, but lost sight of him

near an alleyway. Police Officer Lance Whitman received information on the

bank robber’s location and identity, which included his gender, race, and a

description of his shirt as black with a backwards “B,” which he later

acknowledged was a backwards “3.” At approximately 11:55 a.m., he saw a man

matching the description about one-half mile from the bank. At that time, Mr.

Burton wore a black t-shirt with an embroidered “B” on it and black jeans with no

rip; no gun was visible and he was sweating “like somebody who had been

exerting themselves.”



      Once Mr. Burton was handcuffed, the officer asked him if he possessed any

weapons, to which he answered, “Yeah,” and then motioned down toward his

waist. Officer Whitman put his hands on Burton’s waist, felt a lump, pulled up

his shirt, and found tucked in his waistband a loaded .9 mm semi-automatic pistol

with the safety feature off. Officer Whitman also recovered $1,521 in cash from

Mr. Burton’s left front pocket. Officers searched the alley near the bank for the


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black jersey, cap, and do-rag witnesses described him as wearing, but found only

the black jersey stashed in the alleyway located near the bank. Because officers

were unaware of the ripped wind pants, they did not search for them and did not

find them during the search for the other clothing articles. While the bank teller

immediately identified Mr. Burton as the robber, he noticed he was wearing a

different shirt at the time of his arrest than during the robbery.



      Mr. Burton’s wife testified her husband owned a pair of black wind pants

with a rip in the seat area which she had not seen since the day of the robbery.

She also acknowledged the loose black jersey could have been worn over the

black shirt Mr. Burton wore at the time of his arrest. She further testified Mr.

Burton purchased a gun earlier in the year.



                 II. Jury Instruction Objection and Issue on Appeal

      The district court provided jury instructions on the elements of the crime at

issue, which included a finding the defendant: 1) committed a crime of violence

as charged; and 2) used or carried a firearm during and in relation to such crime

of violence. The jury instructions also explained a bank robbery is a “crime of

violence” and that the defendant pled guilty to bank robbery.




                                          -5-
      Additionally, the district court instructed the jury as to the following, to

which Mr. Burton did not object, and does not appeal, but which is important to

resolution of the issue presented on appeal:

             To prove a person “used” a firearm during and in relation to a
      crime of violence, the government must prove that a defendant
      actively employed the firearm in the commission of the crime.
      “Active employment” may include brandishing, displaying, referring
      to, bartering, striking with, firing, or attempting to fire the firearm.

             To prove a person “carried” a firearm, the government must
      prove that the defendant carried the firearm in the ordinary meaning
      of the word “carry,” such as by transporting a firearm on the person
      or in a vehicle. A defendant’s carrying of the firearm cannot be
      merely coincidental or unrelated to the crime of violence.

             In determining whether the defendant used or carried a
      firearm, you may consider all of the factors received in evidence in
      the case, including the nature of the underlying crime of violence
      alleged, the proximity of the defendant to the firearm in question, the
      usefulness of the firearm to the crime alleged, and the circumstances
      surrounding the presence of the firearm. The government is not
      required to show that the defendant actually displayed or fired the
      weapon. The government is required, however, to prove beyond a
      reasonable doubt that the firearm was in the defendant’s control at
      the time the crime of violence was committed.

            The phrase “during and in relation to” means the firearm must
      have some purpose or effect with respect to the crime of violence; its
      presence or involvement cannot be the result of accident or
      coincidence.


      Over the objection of Mr. Burton, the district court further instructed the

jury, “[a] bank robbery does not necessarily begin or end at the front doors of the

bank. The escape or flight phase of a crime is not an event occurring after the

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bank robbery, but is part of the bank robbery.” In overruling Mr. Burton’s

objection to the contested language on escape or flight, the judge noted the

contested language was based on and almost identical to the language used in

United States v. Von Roeder, 435 F.2d 1004, 1010 (10th Cir. 1970), vacated on

other grounds by Schreiner v. United States, 404 U.S. 67 (1971), in which this

court said, “[t]he escape phase of a crime is not ... an event occurring ‘after the

robbery.’ It is part of the robbery.” He further pointed out the evidence

presented to the jury reflected Mr. Burton “was arrested ... within five minutes of

the robbery, some few blocks away from the bank, which leads me to the

conclusion he was in the escape mode when he was found with the pistol in his

waistband, with nine or ten cartridges in the clip and one in the chamber, with the

safety off.”



      Thereafter, during deliberations, the jury sent the court a note which stated,

“Judge, are we deciding that the end of the flight was when he was handcuffed?

*Also* are we to decide if the government was to prove while he was in the bank

he had a gun?” With the agreement of the parties, the court referred the jury to

the instructions it previously provided. Following its deliberations, the jury

rendered a guilty verdict.




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      On appeal, Mr. Burton contends the contested escape or flight portion of

the instructions established an arbitrary, impermissibly vague standard for

determination of guilt because “escape or flight are expansive terms which could

apply to events far removed from the original crime ....” While he admits most

courts have declined to define when the flight or escape phase of a robbery

ceases, Mr. Burton nevertheless suggests the trial court should have included the

standard identified by the First Circuit in United States v. DeStefano, 59 F.3d 1,

2, 4 (1st Cir. 1995), where it upheld a jury instruction which stated, “[t]he crime

of aiding or assisting an escape cannot occur after the escapee reaches temporary

safety.” To prove his point, Mr. Burton claims the jury’s question about whether

flight extended to the time of arrest only highlights the problem created by the

disputed legal instruction. He further suggests the contested flight or escape

language should not apply in this case, given the lack of evidence showing he

carried the gun into the bank, and the fact he did not have on the wind pants at the

time of the arrest, suggesting he retrieved the gun from the alleyway where he

allegedly stashed the other pair of pants.



      In opposition, the government points out most courts have generally

declined to explicate a bright line rule on when the escape or flight phase ends

because various unique factual scenarios underlie escape and flight cases.


                                             -8-
Moreover, it suggests that even if Mr. Burton did not have the gun on his person

when he robbed the bank, the evidence directly proved Mr. Burton carried a

firearm “during and in relation to the bank robbery” because he had the firearm

on his person “within inches of the robbery proceeds, within a few blocks of the

robbery, and not less than a few minutes after he left the bank premises.”



                                    III. Discussion

       With respect to our standard of review:

       We review the district court's refusal to give a particular jury
       instruction for abuse of discretion. In assessing whether the court
       properly exercised that discretion, a reviewing court must examine
       the instructions as a whole to determine if they sufficiently cover the
       issues in the case and focus on the facts presented by the evidence.
       The question of whether the jury was properly instructed is a
       question of law, and thus, our review is de novo.

       We consider all the jury heard and, from [the] standpoint of the jury,
       decide not whether the charge was faultless in every particular but
       whether the jury was misled in any way and whether it had
       understanding of the issues and its duty to determine these issues. We
       will reverse a conviction due to an erroneous instruction only if the
       error was prejudicial when viewed in light of the entire record.

United States v. Nelson, 383 F.3d 1227, 1230 (10th Cir. 2004), quoting United

States v. Voss, 82 F.3d 1521, 1529 (10th Cir. 1996) (emphasis omitted) (alteration

in original).



       As to the law on the issue of escape or flight, the district court correctly

                                           -9-
stated our position that “[t]he escape phase of a crime is not ... an event occurring

‘after the robbery.’ It is part of the robbery.” Von Roeder, 435 F.2d at 1010.

While we have not previously applied this proposition to facts similar to those

presented here, other circuits have. The Eighth Circuit applied the same

proposition to a robbery defendant who was apprehended fleeing with a gun in his

vehicle. See United States v. Pate, 932 F.2d 736, 737 (8th Cir. 1991). In so

doing, it held that 18 U.S.C. § 924(c)(1) “reaches the possession of a firearm

which in any manner facilitates the execution of a felony” so that a reasonable

jury could find a defendant, who has a gun available during flight from a robbery,

used that weapon during and in relation to robbery of the bank. Id. at 737

(quotation marks and citation omitted). Similarly, the Third Circuit has

determined a jury may reasonably conclude the presence of a gun in the getaway

car during flight from a robbery has the “potential of facilitating” the bank

robbery, and thereby constitutes the carrying of a firearm during and in relation to

a bank robbery, even if no evidence shows the firearm was carried into the bank.

See United States v. Williams, 344 F.3d 365, 370-72 (3d Cir. 2003), cert. denied,

540 U.S. 1167 (2004). The fact these robbers fled in a vehicle and Mr. Burton

fled on foot does not substantively affect the application of these cases to the one

at hand. Moreover, we find unconvincing Mr. Burton’s criticism that Pate and

Williams provide no definitive point when flight or escape ends. As the court in


                                         -10-
Williams suggests, “escape does end at some point, such that the concept of

‘during and in relation to’ will have some boundaries as a matter of common

sense. But we believe that it is a fact-based inquiry ....” 344 F.3d at 375.



      After viewing the jury instructions as a whole, considering the law with

respect to escape or flight, and applying our de novo standard of review, we

cannot say the district court abused its discretion in not using the jury instruction

proposed by the defendant, nor can we say it otherwise erred in applying the

escape or flight language previously sanctioned by this court. Not only are we

bound by our court precedent, see In re Smith, 10 F.3d 723, 724 (10th Cir. 1993),

but we agree with the government that a bright line rule on when an escape or

flight phase ends might not adequately take into account some of the unique

factual scenarios underlying escape and flight cases.



      We further believe the contested jury instruction language, when taken

together with the other instructions and viewed in light of the evidence, did not

mislead the jury. As the government contends, and the district court

acknowledged, the evidence directly proved Mr. Burton “carried” a firearm

“during and in relation to the bank robbery” because he had the firearm on his

person within inches of the robbery proceeds, within a few blocks of the robbery,


                                         -11-
and not less than a few minutes after he left the bank premises. The fact no one

saw a bulge under Mr. Burton’s wind pants or that he no longer wore the same

pants when arrested with the gun does not change our conclusion. Because

escape or flight is a phase of a robbery, and Mr. Burton possessed a gun while

obviously fleeing the robbery, we believe the jury could reasonably find Mr.

Burton carried a gun in violation of § 924(c), even if he did not carry the weapon

into the bank. See Williams, 344 F.3d at 370-72; Pate, 932 F.2d at 737. Our

holding is not altered by the question tendered by the jury during deliberation,

given that the instructions to which they were referred were sufficient to make a

determination. Besides properly including flight or escape as a phase of the

robbery, the instructions also clearly defined “carried,” explained the government

was not required to show Mr. Burton displayed the gun, and instructed the jury

that the gun must have some usefulness, purpose or effect with respect to the

crime. As previously indicated, a fair reading of the jury instructions, together

with the evidence presented, shows the jury could reasonably find Mr. Burton

guilty of the crime for which he was convicted.




                                        -12-
                               IV. Conclusion

      For the foregoing reasons, we AFFIRM Mr. Burton’s conviction and

sentence.



                                   Entered by the Court:

                                   WADE BRORBY
                                   United States Circuit Judge




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