                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                              MAR 16 1998
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellant,                       No. 97-2087
          v.                                              D. New Mexico
 DAVID DURAN,                                        (D.C. No. CR 96-253 JP)

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before ANDERSON, McWILLIAMS, and MURPHY, Circuit Judges.




      The United States appeals from a district court order granting David

Duran’s motion for judgment of acquittal after a jury had found him guilty of

armed robbery of a federally insured bank in violation of 18 U.S.C. § 2113(a), (d)

and 18 U.S.C. § 2. We affirm the district court’s judgment of acquittal for armed

robbery; but, we remand to the district court with directions to enter judgment

against Duran for the lesser included offense of bank robbery.


      *
        This order and judgment is not binding precedent, except under the doctrines of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.
                                   BACKGROUND

       David Duran was charged in an indictment with armed bank robbery in

violation of 18 U.S.C. § 2113(a), (d) and 18 U.S.C. § 2. 1 The case proceeded to a

two-day jury trial, where the government presented evidence focused narrowly on

the bank robbery itself and the short period immediately following. At trial, the

government produced witnesses who stated that on April 17, 1996, Duran and

Alfonso Valencia parked in a “No Parking” zone in front of First Security Bank in

Albuquerque, and Duran remained in the vehicle while Valencia entered the bank.

Once he entered the bank, Valencia produced a firearm and demanded money

from the tellers. When Valencia returned to the car with money and firearm in

hand, Duran slid over to the passenger side of the vehicle. 2 The government

presented no evidence that Duran saw the firearm; however, Duran remained in

the vehicle, making no apparent attempt to escape, as Valencia drove away from

the bank.




       1
        In Count II of the indictment, Duran was also charged with carrying and using a
firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). R. Vol. I, tab 15
at 1. However, Duran was not tried on this count. See R. Vol. II at 7; R. Vol. III at 267.
       2
         Although one of the bank tellers testified that she had seen Duran move from the
driver’s side to the passenger side of the vehicle, R. Vol. II at 40, on cross-examination
she agreed with counsel that it was possible Duran had merely been leaning over onto the
driver’s side and had actually remained seated on the passenger’s side of the vehicle the
entire time. Id. at 46. On redirect, however, she again asserted that she had seen Duran
in the driver’s seat. Id. at 52.

                                            -2-
      The Albuquerque police, who had received a call about the bank robbery

along with a vehicle description, spotted Duran and Valencia’s vehicle several

blocks from the bank and initiated pursuit. Valencia, who was driving,

accelerated, and during a chase of more than five miles, sped through at least four

red lights in an attempt to evade the police. He finally stopped after being

involved in a minor traffic accident, at which time he and Duran abandoned the

vehicle and fled on foot in opposite directions. While fleeing, Duran climbed

over several fences, crouched near some vehicles, discarded his shirt, and entered

a U.S. Postal Service building where he encountered an employee. He did not

speak with the employee and left the building. Eventually, police found him

hiding under a vehicle in the postal service’s employee parking lot. Upon arrest,

Duran did not have a firearm and carried only $90, which he asserted was his and

which he requested not be mixed up with the bank’s money. Valencia was found

at another location at approximately the same time. He was carrying a firearm

similar to the one used in the bank robbery and had a substantial amount of the

bank’s money stuffed in his pants. 3 Although in its opening argument the




      3
       Of the approximately $5220 taken from the bank, $4170 was ultimately
recovered. R. Vol. II at 130-31. Of the money recovered, $3000-$4000 was found on
Valencia’s person. Id. at 64. No explanation was offered at trial for the discrepancy
between the amount of money stolen and the amount which was recovered.

                                           -3-
government referred to Duran and Valencia as friends, the government presented

no evidence of the relationship between them.

      At the close of the government’s case, Duran moved for a judgment of

acquittal pursuant to Fed. R. Crim. P. 29(a), on the grounds that the government

had failed to prove that he had aided and abetted Valencia in committing the bank

robbery or that he knew a firearm would be used. After hearing arguments by

counsel for both sides, the district court reserved ruling on the motion. At the

close of all evidence, Duran renewed his motion for a judgment of acquittal,

which the district court denied. The case was submitted to the jury, with the

following instruction directly relating to the offense of armed bank robbery:

             For you to find The Defendant, David Duran guilty of this
      crime, you must be convinced that the government has proved each
      of the following beyond a reasonable doubt:
             One, that the Defendant took from the person or presence of
      another, money;
             Two, that the money was then in the possession of a federally
      insured bank as charged. . . .
             Three, that the Defendant did so by means of force, or
      violence, or intimidation;
             Fourth, that the Defendant assaulted some person, or put in
      jeopardy the life of some person by the use of a dangerous weapon or
      device while engaged in taking the money, as charged.

R. Vol. III at 255-56.

      Neither the government nor Duran requested, and the district court did not

give, an instruction on the lesser included offense of bank robbery. Thereafter,

the jury found Duran guilty of armed bank robbery. Duran then moved again for

                                         -4-
a judgment of acquittal pursuant to Rule 29(c), on the ground of insufficient

evidence, and the district court granted the motion. 4

       On appeal, the government argues that the district court erred in entering a

judgment of acquittal on the armed robbery charge. In the alternative, the

government urges this court to remand and direct the district court to enter a

judgment of conviction for the lesser included offense of bank robbery.



                                      DISCUSSION

                                             A.

       The government argues first that the district court erred in granting Duran’s

motion for a judgment of acquittal on the armed bank robbery charge because

there was sufficient evidence showing Duran knew or had notice that a dangerous

weapon would be used in the bank robbery. Appellant’s Br. at 13-14. In

considering a motion for a judgment of acquittal, both the district court and the

court of appeals must “view the evidence in the light most favorable to the



       4
        In its Memorandum and Order, the district court explained that although it had
previously denied Duran’s motion, it was now granting the motion for a judgment of
acquittal because it had erred in considering all of the evidence. R. Vol. I, tab 83 at 2-3.
The court correctly stated that because Duran’s motion had been made at the close of the
government’s evidence and the court had reserved ruling, the court could now decide the
motion based only on the evidence presented by the government. Id. at 3; see Fed. R.
Crim. P. 29(b) (stating that if a court reserves decision, it must decide the motion on the
basis of the evidence at the time the ruling on the motion was reserved).

                                             -5-
government and then determine whether there is substantial evidence from which

a jury might properly find the accused guilty beyond a reasonable doubt.” United

States v. White, 673 F.2d 299, 301, 302 (10th Cir. 1982). A judgment of acquittal

should be granted only if no reasonable jury could have found the defendant

guilty beyond a reasonable doubt. Id. at 301.

      In support of its claim that Duran knew that a firearm would be used in the

bank robbery, the government offers the following evidence:

      (1) Duran reacted calmly when Valencia approached the car carrying
      a handful of cash and a firearm.
      (2) Duran slid over immediately when Valencia exited the bank and
      approached the driver’s door of the vehicle.
      (3) Duran did not attempt to leave the vehicle at any time during the
      police pursuit or to otherwise disassociate himself from Valencia.
      (4) Duran fled from the police.
      (5) Duran discarded his shirt as he fled from the police.

Appellant’s Br. at 15-18. As to the first fact offered by the government, the

district court correctly concluded that evidence of Duran’s reaction was presented

only by the defense and not by the government in its case-in-chief; as a result, as

discussed above, we are not permitted to consider such evidence here even if it

were probative, which is doubtful. See R. Vol. I, tab 83 at 6; Fed. R. Crim. P.

29(b). Viewed in the light most favorable to the government, the remaining four

facts go only to the question of Duran’s participation in the bank robbery. They

do not indicate in any way that Duran knew or had notice that a firearm would be

used. We therefore agree with the district court that the government failed to

                                         -6-
introduce evidence sufficient to allow a reasonable jury to find that Duran had

knowledge or notice that a firearm would be used in the bank robbery.

Accordingly, we conclude that the judgment of acquittal for armed robbery was

proper.



                                           B.

      In the alternative, the government urges this court to exercise its authority

under 28 U.S.C. § 2106 to remand and order the district court to enter a judgment

of conviction for the lesser included offense of bank robbery. Appellant’s Br. at

19-20; see 18 U.S.C. § 2113(a). In response, Duran argues that we are precluded

from remanding and directing entry of judgment for the lesser included offense of

bank robbery because the jury was not explicitly instructed on that offense. See

Appellee’s Reply Br. at 22-23 (citing United States v. Vasquez-Chan, 978 F.2d

546, 554 (9th Cir. 1992); United States v. Gooday, 714 F.2d 80, 81-83 (9th Cir.

1983)). He also argues that there is insufficient evidence to support a conviction

for the lesser included offense of bank robbery. Appellee’s Reply Br. at 21-22.

      Duran’s argument concerning the lack of a jury instruction ignores the law

of this circuit, as well as others, to the effect that a separate jury instruction on

the lesser included offense is not required as a prerequisite to exercising § 2106

authority. See, e.g., United States v. Smith, 13 F.3d 380, 383 (10th Cir. 1993)


                                          -7-
(remanding for resentencing on the lesser included offense despite absence of jury

instruction); United States v. Hunt, 129 F.3d 739, 745-46 (5th Cir. 1997) (same);

United States v. Cobb, 558 F.2d 486, 489 (8th Cir. 1977) (finding that a

conviction under 18 U.S.C. § 2113(d) necessarily established each element of

§ 2113(a) and remanding for resentencing despite absence of jury instruction). 5

       The essence of these authorities is that a defendant suffers no prejudice by

entry of a conviction on a lesser included offense if the instructions given to the

jury actually contained the elements of that offense and the jury necessarily had to

find each of those elements beyond a reasonable doubt. In short, the question is

whether for all practical purposes the jury was instructed on the lesser included

offense. That is the case here. As set forth above, the jury in this case was

thoroughly instructed as to all of the elements of armed bank robbery, and except

for armed robbery’s additional element requiring assault or the use of a dangerous

weapon placing a person in jeopardy, the elements of unarmed and armed bank

robbery are precisely the same. Compare 18 U.S.C. § 2113(a) with 18 U.S.C.




       5
        Although other circuits have ordered the entry of judgment for a lesser included
offense when, in fact, the jury had been instructed on that offense, see, e.g., United States
v. Boissoneault, 926 F.2d 230 (2d Cir. 1991); Government of the Virgin Islands v. Josiah,
641 F.2d 1103 (3d Cir. 1981), only the Ninth Circuit appears to explicitly require jury
instructions on the lesser included offense. See, e.g., Vasquez-Chan, 978 F.2d at 554;
Gooday, 714 F.2d at 82.

                                             -8-
§ 2113(d). 6 As a result, the jury was necessarily instructed on every element of

the lesser included offense of bank robbery, and it necessarily found beyond a

reasonable doubt each of the elements of unarmed bank robbery in the course of

reaching a guilty verdict for armed bank robbery. Under these circumstances, a

separate instruction would have been redundant.

      We are also unpersuaded by Duran’s argument that there is insufficient

evidence to support a conviction for unarmed bank robbery under 18

U.S.C.§ 2113(a). The government presented evidence that Duran was present in

the vehicle parked in front of the bank during the bank robbery, that he remained

in the vehicle when Valencia drove away from the bank, and that Duran fled from


      6
       Under § 2113(a),

             Whoever, by force and violence, or by intimidation, takes, or
      attempts to take, from the person or presence of another, or obtains or
      attempts to obtain by extortion any property or money or any other thing of
      value belonging to, or in the care, custody, control, management, or
      possession of, any bank, credit union, or any savings and loan association; .
      ..
             ....
             Shall be fined under this title or imprisoned not more than twenty
      years, or both.

Under § 2113(d),

             Whoever, in committing, or in 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, shall be fined under this title or imprisoned not more than twenty-
      five years, or both.

                                           -9-
the police and attempted to conceal himself. 7 See R. Vol. II at 39, 57, 58, 24-25.

Considered in the light most favorable to the government, this evidence is

sufficient to support a conviction for the lesser included offense of bank robbery. 8




       7
         We also acknowledge the district court’s careful jury instructions regarding the
appropriate inferences that could be drawn from this evidence. For example, the district
court warned the jury that “[i]t is not enough that the Defendant merely associated with
Alfonso Valencia, or was present at the scene of the crime.” R. Vol. III at 258. The
district court also advised the jury that although Duran’s flight and attempts at
concealment are “circumstantial [evidence] that, if proved, can be considered by the jury
as showing a consciousness of guilt,” the court also advised the jury that “there may be
reasons fully consistent with innocence, that could cause a person to flee and conceal
himself,” such as “[f]ear of law enforcement, or reluctance to become involved in an
investigation.” Id. at 257.
       8
         It is problematic whether the parties’ arguments are part of or independent from
an analysis of the Allison factors, which is the traditional approach in this circuit for
exercising authority under 28 U.S.C. § 2106. See United States v. Smith, 13 F.3d 380,
383 (10th Cir. 1993) (quoting Allison v. United States, 409 F.2d 445, 451 (D.C. Cir.
1969)); see also Rutledge v. United States, 116 S. Ct. 1241, 1249-50 & n.15 (1996)
(approving the federal appellate courts’ practice of directing entry of judgment for a
lesser included offense when a conviction for a greater offense is reversed on grounds
that affect only the greater offense, and citing the Allison factors). But since neither the
government nor Duran addresses the Allison factors and since it is not necessary to our
disposition of this case to do more than we have done, we do not pursue these factors.

                                             -10-
                                 CONCLUSION

      Therefore, the district court’s judgment of acquittal for armed bank robbery

is AFFIRMED. However, the case is REMANDED to the district court with

directions to enter a judgment of conviction for the lesser included offense of

bank robbery and to sentence Duran in a manner consistent with this opinion.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                        -11-
97-2087, U.S. v. Duran

Judge McWilliams dissenting:

      David Duran was charged, inter alia, with aiding and abetting Alfonso

Valencia in an armed bank robbery in violation of 18 U.S.C. § 2. There is no

doubt that there was an armed bank robbery and I am of the view that the

evidence is sufficient to show that Duran knowingly aided and abetted in that

robbery. Being of that view, I would hold that the district court erred in granting

Duran’s post-trial motion for judgment of acquittal and I would reverse and

remand with direction to the district court to reinstate the jury’s verdict.
