United States v. Lasseque , 806 F.3d 618 ( 2015 )

United States Court of Appeals
For the First Circuit
Nos. 14-2026
14-2079
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID LASSEQUE,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Stahl, and Kayatta,
Circuit Judges.
William T. Murphy for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
November 18, 2015
STAHL, Circuit Judge. Following a two-day jury trial,
Defendant-Appellant David Lasseque was convicted of aiding and
abetting a bank robbery, in violation of 18 U.S.C. § 2113, and
conspiring to commit a bank robbery, in violation of 18 U.S.C.
§ 371. At sentencing, the district court applied a weapon
enhancement and an obstruction of justice enhancement, both of
which increased the recommended sentencing range. The defendant
now appeals. For the reasons stated below, we affirm.
I. Facts & Background
"As with any challenge to the sufficiency of the
evidence following a trial by jury, we recite the facts in the
light most favorable to the jury's verdict." United States v.
Bayes, 210 F.3d 64, 65-66 (1st Cir. 2000).
David Lasseque ("Lasseque") and Pierre Rheau ("Rheau")
lived one floor apart in the same building in Providence, Rhode
Island. On the afternoon of July 12, 2013, Rheau asked Lasseque
to drive him to Barrington, Rhode Island. Lasseque agreed and
drove Rheau in a brown Hyundai rented the day before by Rheau's
second cousin.
In Barrington, Rheau, wearing a baseball cap, a black
cloth around his face, dark sunglasses, latex gloves, and a
pillow under his clothes to make him seem heavier, entered a
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local branch office of Bank of America. Brandishing a black
gun, he demanded money from the tellers, who quickly obliged.
Rheau exited the bank about one minute later and got back in the
Hyundai driven by Lasseque. Local police officers quickly were
dispatched to the crime scene following a report of the robbery
by the bank tellers.
About a mile away from the bank, a police officer saw
a driver that he believed fit the description of the robber
approaching from the direction of the bank. Noticing that he
was speeding and changing lanes without signaling, the officer
pulled Lasseque over. As the police officer got out of the
cruiser and approached the Hyundai, Lasseque sped off.
Lasseque led officers on a lengthy high-speed chase
that only terminated when his vehicle collided with a police
cruiser. After the crash, Lasseque immediately exited the car
and began to flee on foot. As Lasseque attempted to scale a
backyard fence, two officers pulled him down. Lasseque
initially struggled with the officers and refused to place his
hands behind his back, but finally relented and was cuffed.
Rheau remained in the Hyundai after it crashed. Upon
a search of the vehicle, officers found the money stolen from
the bank, the gun, and Rheau's robbery attire. After
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indictment, Rheau eventually pled guilty to two counts: armed
bank robbery and conspiracy to commit a bank robbery. At the
plea hearing, Rheau admitted that he and Lasseque had agreed to
rob the bank, and that he executed the robbery with Lasseque
serving as the getaway driver.
Although Lasseque waived his Miranda rights the
morning after the robbery and agreed to speak with an
investigating officer, when questioned, Lasseque "smiled, joked,
giggled, and was non-responsive." Lasseque proceeded to trial
on two counts: aiding and abetting an armed bank robbery and
conspiracy to commit a bank robbery.
At trial, Lasseque testified that, on the afternoon of
July 12, 2013, he agreed to drive Rheau to his girlfriend's
house in Barrington so that he could retrieve a few things.
Lasseque claimed that once Rheau exited the vehicle, he fell
asleep. According to Lasseque, he awoke when Rheau got back in
the car and demanded that Lasseque drive away quickly because
Rheau did not want his girlfriend "to see what kind of car he
jumped in." Lasseque testified that after they were pulled over
by the police, Rheau revealed he had a gun. Fearing that the
police would shoot him because of the gun, Lasseque sped off as
the police officer was approaching the car. Lasseque denied
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having seen Rheau's disguise prior to the robbery or having any
prior knowledge of the robbery or the gun.
At the close of the government's case, Lasseque moved
for a judgment of acquittal pursuant to Rule 29 of the Federal
Rules of Criminal Procedure. Lasseque argued that the
government had failed to provide sufficient evidence to show
that there was an agreement between Rheau and himself to rob the
bank, that he physically participated in the robbery in any way,
or that he had the requisite intent necessary to support either
charge. The district court rejected Lasseque's motion. The
jury found Lasseque not guilty of aiding and abetting an armed
bank robbery, but convicted him on the lesser-included count of
aiding and abetting a bank robbery and conspiring to commit a
bank robbery.
At sentencing, Lasseque lodged a number of objections
to the Presentence Investigation Report ("PSR"), only two of
which are at issue on appeal. First, Lasseque objected to the
application of a three-point weapon enhancement pursuant to
§ 2B3.1(b)(2) of the United States Sentencing Guidelines Manual
("U.S.S.G."). Second, Lasseque objected to the application of a
two-point obstruction of justice enhancement under U.S.S.G.
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§ 3C1.1. The district court denied both objections and
sentenced Lasseque to a term of incarceration of 140 months.
II. Analysis
On appeal, Lasseque contends that the district court
erred in denying his Rule 29 motion for judgment of acquittal
and further argues that, at sentencing, the court erred in
imposing the weapon and obstruction of justice enhancements. We
address each contention in turn.
A. Motion for Judgment of Acquittal
Under Federal Rule of Criminal Procedure 29, a
defendant may move for the court to enter a judgment of
acquittal after the government closes its evidence on the ground
that the evidence is insufficient to sustain a conviction. The
denial of that motion we review de novo. United States v.
Trinidad-Acosta, 773 F.3d 298, 310 (1st Cir. 2014). On review,
we examine the evidence "in the light most favorable to the
verdict," asking "whether a rational jury could find guilt
beyond a reasonable doubt." United States v. Burgos-Montes, 786
F.3d 92, 112 (1st Cir. 2015). The scope of our review accords
due deference to those properly charged with sifting and
weighing the facts, informed by the credibility cues of the
witnesses and the full context of the trial. Our job is to
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monitor the boundaries of reasonable fact-finding, not to engage
in it ourselves. United States v. Davila-Nieves, 670 F.3d 1, 7
(1st Cir. 2012) (stating that, in reviewing the denial of a
motion for acquittal, "we do not weigh competing evidence;
rather, we merely verify that some evidence adequately supports
the jury's verdict"). As such, Lasseque's Rule 29 challenge
"face[s] an uphill battle on appeal." United States v.
Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008) (quoting United States
v. O'Shea, 426 F.3d 475, 479 (1st Cir. 2005)).
Lasseque argues that there was insufficient evidence
to show that he knowingly aided and abetted Rheau in committing
the bank robbery. To prevail on its theory of accomplice
liability, the government had to prove that: (1) Rheau committed
the substantive acts of the bank robbery; and (2) Lasseque
"became associated with the endeavor and took part in it,
intending to ensure its success." United States v. Spinney, 65
F.3d 231, 235 (1st Cir. 1995). As Rheau's guilt is undisputed,
our inquiry necessarily focuses on the second element of this
recitation, and whether the government offered sufficient
evidence that Lasseque took an affirmative act in furtherance of
the bank robbery with the intent to facilitate its commission.
See Rosemond v. United States, 134 S. Ct. 1240, 1245 (2014).
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Upon reviewing the record, we agree with the
determination of the district court that the government provided
sufficient evidence to enable the jury to find Lasseque guilty
of the charged offense. Because the robbery took place during
daylight hours in a commercial district with heavy pedestrian
and vehicular traffic, it would be quite reasonable to infer
that Rheau donned his unconventional apparel, including latex
gloves and a pillow under his clothes, in the car before being
dropped off. This suggests that Lasseque was well aware of the
plot soon to unfold.
The alternative, of course, is that Rheau acquired
this mélange of items elsewhere after being dropped off by
Lasseque and then either assembled his disguise at the foot of
the bank or meandered his way through town sporting his full
ensemble. The jury need not surrender to such speculation. The
government must prove the elements of the crime beyond a
reasonable doubt, not beyond all doubt.
In addition, the jury was well within reason to find
that the nature and extent of Lasseque's elusion of authorities
following the robbery belied the justification he offered at
trial. Here, Lasseque engaged in a lengthy and dangerous high-
speed chase, culminating in a collision with a police cruiser,
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an attempt to flee by foot, and a struggle with the arresting
officers. The jury could quite easily find that this form of
flight was “a particularly eloquent reflection of a guilty
mind,” rather than the panicked impulse of an innocent heart.
United States v. Martinez, 922 F.2d 914, 923 (1st Cir. 1991).
Finally, Lasseque's alternative explanation at trial
is undercut by his failure to offer it after waiving his Miranda
rights in his post-arrest interview. All of this evidence is
probative of Lasseque's intent and was placed before the jury by
the government.
In addition to reinforcing Lasseque's foreknowledge of
the plan, there can be little doubt that Lasseque's evasive
exploits constituted an affirmative act in furtherance of the
robbery. It is well settled that a getaway driver aids and
abets a robbery. See Rosemond, 134 S. Ct. at 1249. A bank
robbery would hardly be effective if one could not successfully
abscond with the fruits of the crime.
Lasseque seems to suffer under the misconception that
the government had to put forth direct evidence of each element
in order to prevail. "Contrary to appellant's insinuation, the
criminal law does not place a special premium on direct
evidence. . . . As long as the evidence taken in its entirety
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supports a judgment of conviction, it need not rule out every
other reasonable hypothesis of innocence." United States v.
O'Brien, 14 F.3d 703, 706 (1st Cir. 1994).
The direct and circumstantial evidence found in the
record is more than sufficient to support the jury's findings.
For this reason, we conclude that the lower court did not err in
denying Lasseque's motion for a judgment of acquittal.
B. Sentencing Enhancements
Lasseque also appeals the lower court's application of
a three-point weapon enhancement and a two-point obstruction of
justice enhancement pursuant to the sentencing guidelines.
Where the moving party raises an objection below, sentencing
determinations are reviewed for abuse of discretion, examining
the district court's factual findings for clear error and its
interpretations of the guidelines de novo. United States v.
Carpenter, 781 F.3d 599, 608 (1st Cir. 2015). Where the moving
party fails to raise an objection below, review is for plain
error. United States v. Reda, 787 F.3d 625, 630 (1st Cir.
2015). Under a plain error review, the objecting party bears
the burden of demonstrating: "(1) that an error occurred; (2)
which was clear or obvious; and which not only; (3) affected the
defendant's substantial rights, but also; (4) seriously impaired
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the fairness, integrity, or public reputation of judicial
proceedings." United States v. Combs, 555 F.3d 60, 63 (1st Cir.
2009) (quoting United States v. Moran, 393 F.3d 1, 13 (1st Cir.
2004)).
In the proceedings below, Lasseque objected to both
enhancements, but on grounds different than those raised on
appeal. In this case, however, the applicable standard of
review is of little import, for we can find no error, plain or
otherwise, in the lower court's findings or reasoning.
First, we examine the court's application of the
weapon enhancement in calculating the proper sentencing
guidelines range. Under U.S.S.G. § 2B3.1(b)(2), the offense
level receives a three-point increase "if a dangerous weapon was
brandished or possessed" during the commission of the offense.
The parties agree that the proper inquiry is whether the
district court could find, by a preponderance of the evidence,
that it was reasonably foreseeable to Lasseque that Rheau would
brandish or possess a weapon during the robbery. See United
States v. Matthews, 749 F.3d 99, 105 (1st Cir. 2014).
Lasseque alleges that he had no knowledge that Rheau
was going to use a gun during the robbery, and that he first
became aware of the gun when their vehicle was pulled over.
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Even if we were to accept this proposition at face value,
however, it would do little to upset the enhancement applied
below. The question is not whether Lasseque had actual
knowledge of the gun prior to the robbery, but whether he knew
of the impending robbery and whether it was reasonably
foreseeable that Rheau would possess or brandish a weapon during
its commission. See U.S.S.G. § 1B1.3(a)(1)(B).
We have already concluded that the government laid out
sufficient evidence to find that Lasseque was aware of the
"salient details of the plot." Spinney, 65 F.3d at 237. The
only question, then, is whether it was reasonably foreseeable
that the commission of a bank robbery in broad daylight would
entail the use of a weapon. The answer is in the asking.
"[N]ot even the most sanguine criminal would expect clear
sailing without some menace in the wind." Id. We have stated
before that guns are often "tools of the trade" when it comes to
certain offenses, and that an awareness of the general plan is
sufficient to infer knowledge that weapons would be used to
carry that plan through to completion. See United States v.
Fermin, 771 F.3d 71, 83 (1st Cir. 2014); United States v.
DeMasi, 40 F.3d 1306, 1316 (1st Cir. 1994). Absent extenuating
circumstances, the "possession of a gun . . . is virtually
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essential" in perpetrating a bank robbery. United States v.
Powell, 929 F.2d 724, 727 (D.C. Cir. 1991).
In sum, the district court did not err in finding it
reasonably foreseeable that Rheau would possess or brandish a
weapon in the course of the crime. We decline to disturb the
lower court's sensible judgment on this point.
Next, we examine the court's application of the
obstruction of justice enhancement. Under U.S.S.G. § 3C1.1, a
two-level enhancement is appropriate if the defendant "willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation,
prosecution, or sentencing" of the conviction. Pertinent
conduct includes "providing materially false information to a
judge or magistrate judge." U.S.S.G. § 3C1.1 cmt. n.4.
Providing false information to a judge in the course of a bail
hearing can serve as a basis for the obstruction of justice
enhancement. United States v. Greig, 717 F.3d 212, 221-22 (1st
Cir. 2013).
The key facts underlying the enhancement are
undisputed. About two months after the indictment, Lasseque
obtained an unsworn affidavit from Rheau dated October 26, 2013.
The affidavit stated that Lasseque was unaware of the plan to
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rob the bank. As trial approached, Lasseque moved for bail. At
the bail hearing, defense counsel offered various exhibits and
alluded to the affidavit, but did not seek its admission at that
point. The magistrate judge denied the bail motion. Just
moments after the ruling, defense counsel moved for
reconsideration based on the affidavit, which was then put forth
and marked as Exhibit D. Before reading the affidavit, the
magistrate judge asked defense counsel: "So, your purpose in
presenting this is to show that the weight of the evidence
against the defendant isn't as strong as I had concluded because
he's been exonerated?" Counsel replied: "Yes, your honor."
The judge read the affidavit, summarized its contents, and heard
argument concerning its import. The judge then reaffirmed his
earlier ruling and denied bail.
About two weeks later, Rheau pled guilty to both
counts of the indictment, stipulating in his written plea
agreement and in sworn admissions during the plea colloquy that
he and Lasseque had conspired to rob the bank and that Lasseque
had served as the getaway driver. Although Rheau did not
explicitly disavow the affidavit, his sworn statements were
incompatible with its contents and Rheau's counsel represented
to the court that "if Rheau was called to testify, he would
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testify that he was forced or coerced into making that statement
and that it's not true."
At sentencing, the district court found that an
obstruction of justice enhancement was warranted because
Lasseque had used the affidavit in an attempt to influence the
bail decision and because the affidavit was "clearly false"
based on Rheau's admissions and the jury’s finding that Lasseque
participated in the conspiracy.
Lasseque demurs. He first notes "the great value of
adversarial cross-examination in determining who is telling the
truth when narratives differ," and then claims that the district
court failed to find that Lasseque willfully sought to obstruct
justice. Both contentions fail.
First, we may quickly dispense with Lasseque's half-
hearted claim of procedural error based on a lack of cross-
examination. Despite the critical importance of strict
evidentiary procedural limitations when ascertaining a
defendant's guilt, sentencing judges have, since colonial times,
"exercise[d] a wide discretion in the sources and types of
evidence used . . . in determining the kind and extent of
punishment to be imposed." Williams v. People of State of N.Y.,
337 U.S. 241, 246 (1949). "[T]he sentencing court may rely upon
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virtually any dependable information, including statements which
have not been subjected to the crucible of cross-examination and
information appearing in a presentence report." United States
v. Doe, 741 F.3d 217, 236 (1st Cir. 2013) (quoting United States
v. Cintrón–Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)) (quotation
marks omitted).
Second, Lasseque argues that the district court did
not find that he acted willfully in presenting the Rheau
affidavit to the magistrate judge. Lasseque claims that the
court expressed uncertainty over his state of mind and failed to
sufficiently articulate the basis for its decision. Lasseque
points to a passage in the hearing transcript, wherein the
sentencing judge states:
I know you maintain your -- I think you
maintain your innocence here and the jury
has found you guilty. I think your claims
that you didn't know what was going on here
[are] completely incredible. There's no --
I don't know if you've convinced yourself of
that, but it's plain to me that you knew
what was going on, you were part of this
conspiracy to rob the bank and then you
engaged in this crazy getaway drive . . .
and endangered a lot of people in doing
that. (emphasis added).
Lasseque latches onto this statement and argues that the court's
uncertainty over his state of mind precludes a finding of
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willfulness. Although "inaccurate testimony or statements
sometimes may result from confusion, mistake, or faulty memory
and thus, not . . . reflect a willful attempt to obstruct
justice," U.S.S.G. § 3C1.1 cmt. n.2, defense counsel's adroit
use of the transcript founders when the judge's remark is placed
back in context.
The court's fleeting comment was not made during its
discussion of the obstruction enhancement, but rather during its
general ruminations at the conclusion of the sentencing hearing
after all objections had been ruled upon. Assuming the judge's
casual remark reflected an actual uncertainty about Lasseque's
mental state at the time of sentencing, it still would not
reflect an uncertainty about Lasseque's mental state at the time
of the trial, the time of the offense, or the time of the bail
hearing at issue. In fact, any suggestion that Lasseque
believed himself to be innocent all along is explicitly
foreclosed by the judge in the same breath: "I don’t know if
you’ve convinced yourself of [your innocence], but it's plain to
me that you knew what was going on . . . ." (emphasis added).
As such, even if Lasseque's argument is on the right track, it
appears to be on the wrong train. Nothing about the court's
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passing observation precludes a finding that Lasseque acted
willfully at the time of the bail hearing.
Lasseque further argues that the court failed to
sufficiently articulate its finding of willfulness. Lasseque
points to the Eighth Circuit's decision in United States v.
Ransom, where the lower court had applied an obstruction of
justice enhancement because it had determined that the grand
jury testimony of the defendant was "fraught with lies." 990
F.2d 1011, 1014 (8th Cir. 1993). The Eighth Circuit held that
the court's finding was insufficient because the judge had
"failed to point specifically to any of these alleged acts of
perjury." Id. In fact, the lower court had expressly
acknowledged that it was "not familiar with the [grand jury]
transcript" at issue. Id. The Eighth Circuit found the lower
court's lack of familiarity with the transcript "especially
important . . . given that no trial was conducted which would
have provided the judge with an opportunity to gauge the
defendant's actions and testimony while on the witness stand.
The Court's only opportunity to observe the defendant occurred
at sentencing." Id.The defendant's reliance upon Ransom is misplaced.
Unlike in Ransom, the court here pointed to a specific document;
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reflected upon the sources of evidence that rendered the
document false; and discussed the context in which the document
was offered, the purpose for which it was offered, and the
document's intended effect. Moreover, unlike in Ransom, the
sentencing judge in this case presided over the defendant's
trial and had ample opportunity to gauge the defendant's
credibility. Ransom is simply inapposite based on this record.
In essence, Lasseque's argument boils down to this:
the sentencing judge did not explicitly recite the word
"willful" in relaying his rationale for the obstruction
enhancement. Yet, we do not demand that judges, in explaining
the bases for their rulings, be "precise to the point of
pedantry." United States v. Fernández–Cabrera, 625 F.3d 48, 53
(1st Cir. 2010). The sentencing judge is not a checklist in a
robe, and we will not upset a court's careful reasoning and
considered judgment in order to quibble with the verbal
formulation employed. The sentencing judge found that the
assertions in the Rheau letter were "clearly false" and that
Lasseque "attempted to use them to obstruct the judicial
process" by "try[ing] to influence [the magistrate judge’s] bail
decision." This explanation makes the judge's willfulness
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finding abundantly, albeit implicitly, clear. We need dwell
upon the question no further.
III. Conclusion
For the foregoing reasons, the judgment is AFFIRMED.
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