                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-15-1996

United States v. Price
Precedential or Non-Precedential:

Docket 95-3333




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              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                          No. 95-3333
                          ___________


                    UNITED STATES OF AMERICA

                                  v.

                         THOMAS PRICE,
                                  Appellant

                          ___________

         On Appeal from the United States District Court
            for the Western District of Pennsylvania
                  (D.C. Criminal No. 94-221-04)
                           ___________

           Submitted Under Third Circuit LAR 34.1(a)
                        January 12, 1996

         Before: SCIRICA, ALITO, SAROKIN, Circuit Judges

               (Opinion Filed: February 15, 1996)
                         _____________

Paul J. Brysh, Esquire
Bonnie R. Schlueter, Esquire
Office of United States Attorney
633 United States Post Office & Courthouse
Pittsburgh, PA 15219

          Counsel for Appellee

Charles J. Porter, Esquire
Brucker, Zappala, Schneider & Porter
Suite 2230 Grant Building
Pittsburgh, PA 15219

          Counsel for Appellant

                       __________________

                      OPINION OF THE COURT
                       __________________




                                  1
SAROKIN, Circuit Judge:


     On September 12, 1994, two masked men entered a branch of

the Mellon Bank in Pittsburgh, Pennsylvania.   One of them pointed

a gun at a teller, while the other jumped over the counter and

removed money from the bank drawers.   Their deed done, the two

men fled the bank, hopped in a waiting car and sped from the

scene of the crime.   Thomas Price was convicted in the United

States District Court for the Western District of Pennsylvania of

armed bank robbery, in violation of 18 U.S.C. §§ 2113(d) and 2,

and knowingly and willfully carrying and using a firearm during

and in relation to a crime of violence, in violation of 18 U.S.C.

§§ 924(c)(1) and 2.   Mr. Price now appeals his conviction on

various grounds.



                                I.



     Mr. Price first challenges the district court's instruction

to the jury regarding the "use and carry" count.

     Section 924 of Title 18 of the United States Code states,

inter alia, that "[w]hoever, during and in relation to any crime

of violence . . . for which he may be prosecuted in a court of

the United States, uses or carries a firearm, shall, in addition

to the punishment provided for such crime of violence . . . be

sentenced to imprisonment for five years . . . ."   18 U.S.C.

§924(c)(1).




                                2
     Mr. Price was charged with violating this provision in the

district court.   At the end of the trial, the district court gave

the jury the following instruction:
          The indictment also charges that on or about
     September 12, 1994, in the western district of
     Pennsylvania, defendant Thomas Price used a firearm, a
     .45 caliber Norinco pistol, during a crime of violence,
     armed bank robbery.

          In order to sustain its burden of proof for the
     crime of using a firearm during a crime of violence,
     the government must prove the following two essential
     elements beyond a reasonable doubt:

          One, Defendant Thomas Price committed the crime of
     armed robbery as charged in the indictment; and

          Two, during and in relation to the commission of
     that crime, the defendant knowingly used a firearm.

          The government has charged Thomas Price with
     aiding and abetting this crime as well. All of the
     instructions that I previously gave you about aiding
     and abetting also apply to this charge.

                               . . .

          The phrase uses or carries a firearm means having
     a firearm available to assist in the commission of the
     alleged armed bank robbery.

          In determining whether defendant Thomas Price used
     or carried a firearm, you may consider all the factors
     received in evidence in the case, including the nature
     of the underlying crime of violence, the proximity of
     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 under defendant's
     control at the time the crime of violence was
     committed.




                                3
          As I stated before, you must also consider whether
     the defendant aided or abetted the use or carrying of a
     firearm in arriving at your verdict.

          If you find beyond a reasonable doubt that Thomas
     Price aided and abetted Charles Stubbs in the use of a
     firearm during the commission of the armed bank
     robbery, then you may find Mr. Price guilty of using a
     firearm during the commission of a felony, even though
     there is no proof that he actually had the firearm in
     his physical possession.

          You may find that Mr. Price aided and abetted Mr.
     Stubbs in the use of a firearm during the commission of
     a felony only if you find beyond a reasonable doubt
     that Mr. Price knowingly joined in, aided or assisted
     in the bank robbery, that his action was willful and
     voluntarily taken and that he had knowledge that a
     firearm was to be used in the bank robbery.

Appendix at 451A-453A.

     The two issues regarding this instruction are, first,

whether having a firearm available to assist is sufficient to

meet the second element of "using a firearm," and, second,

whether one can be convicted under 18 U.S.C. § 924(c) on an

"aiding and abetting" theory.

                                A.

     Mr. Price argues that the district court erred when it
instructed the jury that "[t]he phrase uses or carries a firearm

means having a firearm available to assist in the commission of

the alleged armed robbery" because that sentence "is an incorrect

statement of the law in this Circuit."   Appellant's Brief at 34.

Specifically, he argues that under our holding in United States
v. Theodoropoulos, 866 F.2d 587, 597 (3d Cir. 1989),

"availability alone [is] insufficient to establish a use in

relation to a crime of violence."    Appellant's Brief at 34.   The

government, in response, argues that "appellant Price's position


                                4
is based upon a misreading of Theodoropoulos."     Government's

Brief at 17.

     In Theodoropoulos, this Court held that
     possession of a firearm constitutes use under section
     924(c) if there is:
          i) Proof of a transaction in which the
          circumstances surrounding the presence of a
          firearm suggest that the possessor of the
          firearm intended to have it available for
          possible use during the transaction. . . .

866 F.2d at 597 (quoting Feliz-Cordero, 859 F.2d at 254)
(emphasis added); see also Hill, 967 F.2d at 905 (holding that

"[p]ossession of a firearm constitutes use under 18 U.S.C.

§924(c) where there is evidence 'that the defendant intended to

have the firearm available for use or possible use during a crime

of violence . . . and that the firearm was placed in a spot where

it was readily accessible at that time.'"); United States v.
Reyes, 930 F.2d 310, 312 (3d Cir. 1991) (same).     This language

closely parallels that used by the district court in the instant

case.    Accordingly, if Theodoropoulos did govern our construction

of section 924(c)(1), we would hold that the district court

properly instructed the jury.

     Theodoropoulos, however, no longer governs.     The United

States Supreme Court recently issued an opinion in which it

clarified the meaning of the term "use" in section 924(c)(1).

Bailey v. United States, 116 S.Ct. 501, 505 (1995).     In Bailey,

the Court rejected the holding of Theodoropoulos and held that

the "proximity and accessibility standard provides almost no

limitation on the kind of possession that would be criminalized .

. . ."    Id. at 506.   Rather, the Court held, "[Section] 924(c)(1)


                                  5
requires evidence sufficient to show an active employment of the

firearm by the defendant, a use that makes the firearm an

operative factor in relation to the predicate offense."    Id. at

505.    The Court further explained that "[t]he active-employment

understanding of 'use' certainly includes brandishing, bartering,

striking with, and most obviously, firing or attempting to fire,

a firearm."    Id. at 508.   However, "[i]f the gun is not disclosed

or mentioned by the offender, it is not actively employed and it

is not 'used.'"   Id.

       Bailey's interpretation of the "use and carry" provision

demands a different inquiry from that required under

Theodoropoulos.    It is no longer enough that the weapon be

available to the defendant; rather, it must have played an active

role in the perpetration of the predicate offense beyond

emboldening the perpetrator.     Therefore, we hold that the

district court's instruction to the jury, while accurately

reflecting the law of the Third Circuit at the time, was

erroneous in light of Bailey.     Furthermore, to the extent that

our holding in Theodoropoulos conflicts with the Supreme Court's

interpretation of "use" in Bailey, Theodoropoulos is overruled.

                                  B.

       Mr. Price was also charged with the section 924 count under

an aiding and abetting theory, an instruction which he also

disputes.    He contends that "aiding and abetting liability is

inapplicable to a charge of carrying and using a firearm during

and in relation to a crime of violence."     Appellant's Brief at

34.


                                  6
     We reject this argument.   Under 18 U.S.C. § 2(a), "[w]hoever

commits an offense against the United States or aids, abets,

counsels, commands, induces, or procures its commission, is

punishable as a principal."   This section has been routinely

applied in conjunction with section 924(c) to convict individuals

of "aiding and abetting in using or carrying a firearm" in

violation of 18 U.S.C. § 924(c).      See, e.g., United States v.

Wacher, No. 93-3372, 1995 WL 757876 (10th Cir. Dec. 26, 1995);

United States v. Pipola, No. 95-1264, 1995 WL 760560 (2d Cir.

Dec. 22, 1995); United States v. Buchanan, 70 F.3d 818, 825 (5th

Cir. 1995); Dillon v. United States, 69 F.3d 537 (6th Cir. 1995);

United States v. Rivera, 68 F.3d 5, 7 (1st Cir. 1995); United

States v. Easter, 66 F.3d 1018, 1023-24 (9th Cir. 1995), cert.

denied sub nom. Jemerigbe v. United States, 116 S. Ct. 547

(1995), and cert. denied sub nom. Ronnie O. Lea v. United States,

1995 WL 698897 (U.S. 1996) ; United States v. Warren, 42 F.3d

647, 651 (D.C. Cir. 1994); United States v. Martin, 25 F.3d 211,

213 (4th Cir. 1994); United States v. Chandler, 996 F.2d 1073,

1105 (11th Cir. 1993), cert. denied, 114 S. Ct. 2724 (1994);

United States v. Travis, 993 F.2d 1316, 1321 (8th Cir.), cert.

denied, 114 S. Ct. 229 (1993), and cert. denied, 114 S. Ct. 245

(1993); United States v. Reiswitz, 941 F.2d 488, 492 (7th Cir.

1991); see also United States v. Mathis, No. 93-454-01, 1994 WL

413142 (E.D. Pa. Aug. 5, 1994).

     It appears that no case in the Third Circuit has considered

a conviction for violation of 18 U.S.C. § 924(c) on an "aiding

and abetting" theory.   We see no reason, however, why we should


                                  7
rule differently from every other circuit in the country, and our

own district courts, and Mr. Price offers none, beyond a

conclusory argument that the theory is "inapplicable." Therefore,

we reject Mr. Price's argument and hold that the district court

correctly instructed the jury on the "aiding and abetting"

theory.

                                  C.

     We must now determine whether the district court's error in

instructing the jury was harmless or requires reversal of Mr.

Price's conviction on the section 924(c)(1) count.      The error was

one of statutory interpretation, not constitutional in nature.

"We have held that non-constitutional error is harmless when 'it

is highly probable that the error did not contribute to the

judgment.'"   United States v. Zehrbach, 47 F.3d 1252, 1265 (3d

Cir.) (quoting Government of Virgin Islands v. Toto, 529 F.2d

278, 284 (3d Cir. 1976)), cert. denied, 115 S.Ct. 1699 (1995).

Because we conclude that the error was harmless, we will affirm.

     The section 924 charge against Thomas Price was based on two

alternative theories: first, that Mr. Price himself "used" the

weapon under the Theodoropoulos standard and, second, that Mr.

Price aided and abetted the "use" or "carrying" of the weapon by

his accomplice, Charles Stubbs.       Under either theory, it is

highly probable -- indeed, inevitable -- that the jury found that

Mr. Price was one of the masked men who robbed the bank and, more

specifically, that he was the man who jumped over the counter and

collected the money while Mr. Stubbs was brandishing the gun.




                                  8
     That Mr. Stubbs both "used" and "carried" the firearm within

the statutory meaning is perfectly clear, and therefore, the only

remaining question is whether Mr. Price aided and abetted that

use and carrying.   Because the jury had to conclude that Mr.

Price was the man who entered the bank with Mr. Stubbs, we think

the evidence supporting this conclusion is overwhelming,

whichever theory the jury utilized to convict.   First, Mr. Stubbs

testified that Mr. Price knew beforehand that a gun would be

used, and the nature of the offense seems to strongly support

that testimony.   Second, the use of the gun did not occur in one

instant; rather, according to the evidence, Mr. Stubbs pointed

the gun while Mr. Price gathered the money.   Even if Mr. Price

had not known in advance that Mr. Stubbs was going to use a gun

during the robbery, it seems perfectly clear that Mr. Price was

aware that the gun was being used while he continued to

participate in the robbery.

     In other words, Mr. Stubbs was plainly using and carrying a

firearm in connection with a crime of violence; Mr. Price

probably knew in advance, and most certainly knew at the time,

what Mr. Stubbs was doing; yet Mr. Price continued to participate

in the offense.   In light of these facts, we find that it is

highly probable that the error did not contribute to the judgment

of the jury, and therefore we will affirm.



                               II.




                                9
     Mr. Price raises several other claims in this appeal. First,

he contends that the evidence was insufficient as a matter of law

to sustain his conviction.    Specifically, Mr. Price argues that

the evidence fails to demonstrate that Mr. Price had any prior

knowledge that his accomplice would be utilizing a firearm in the

robbery.    Appellant's Brief at 21, 24.   However, Mr. Price's

accomplice, Charles Stubbs, did offer testimony to this effect.

Appendix at 260A.    This testimony was sufficient evidence to

support a finding of prior knowledge on Mr. Price's part, and

therefore sufficient evidence to find him guilty of armed bank

robbery and carrying or using a firearm during the armed robbery.

     Second, Mr. Price argues that the court improperly charged

the jury concerning the existence of Mr. Stubbs's plea agreement.

Appellant's Brief at 36-37.    The court charged the jury that

"[t]he Stubbs plea agreement was not marked as an exhibit and was

not admitted into evidence during the course of the trial."

Appendix at 487A.    This instruction was correct, and certainly

was not an "abuse of discretion."     United States v. Price, 13

F.3d 711, 724 (3d Cir.), cert. denied sub nom. Reaves v. United

States,    114 S. Ct. 1863 (1994), and cert. denied sub nom. Long

v. United States, 114 S. Ct. 2754 (1994), and cert. denied sub

nom. Jackson v. United States, 114 S. Ct. 2754 (1994), and cert.

denied sub nom. Reaves v. United States, 115 S. Ct. 155 (1994).

     Finally, Mr. Price claims that the prosecutor engaged in

"forensic misconduct" by improperly vouching for certain

witnesses, disparaging Mr. Price's counsel, casting aspersions at

the defendant and arguing facts not of record.     Because Mr.


                                 10
Price's counsel did not object to these statements at trial, we

review these statements for "plain error," that is, "egregious

error or a manifest miscarriage of justice."   United States v.

Thame, 846 F.2d 200, 204 (3d Cir.), cert. denied, 488 U.S. 928

(1988).   The statements singled out by Mr. Price fall far short

of violating this exacting standard.



                               IV.



     For the reasons outlined above, we will affirm the judgment

of the district court.




                                11
