United States v. Riggans , 97 F. App'x 891 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 20 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-3250
(D.C. No. 02-CV-3297-JWL)
TIMOTHY BERNARD RIGGANS, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL , ANDERSON , and BRISCOE , Circuit Judge.
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(G). The case is
therefore ordered submitted without oral argument.
Defendant Timothy Riggans appeals from the denial of post-conviction
relief under 28 U.S.C. § 2255. Defendant challenged his conviction for bank
*
This order and judgment is not binding precedent, except under the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.
larceny on four grounds. In a very thorough order, the district court explained
why defendant’s claims lacked merit. Defendant moved unsuccessfully for
reconsideration under Fed. R. Civ. P. 59(e), and then appealed. The district court
granted a certificate of appealability (COA) on two related claims: (1) whether
trial/appellate counsel (one and the same) was ineffective in failing to challenge
defendant’s conviction for bank larceny as a lesser included offense of bank
robbery, in light of later Supreme Court authority rejecting this characterization
of bank larceny; and (2) whether, in light of the same authority, defendant was
wrongfully convicted of an offense not charged in the indictment. Defendant has
requested that we grant a COA on two other issues raised in his § 2255 motion.
While we act under review standards unique to an appellate court, we fully agree
with the district court’s analysis of the substance of this case. Accordingly, we
decline to expand the COA and we affirm the denial of defendant’s § 2255 motion
for substantially the reasons articulated by the district court.
Claims Based on Carter
When defendant was on trial, the law in this circuit held bank larceny to be
a lesser included offense of bank robbery. See United States v. Brittain , 41 F.3d
1409, 1410 (10 th Cir. 1994). Facing an extremely strong prosecution case on
bank robbery, defendant’s counsel made a sound strategic decision and requested
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a lesser included offense instruction on bank larceny. The strategy succeeded, in
that the jury found defendant guilty of bank larceny rather than robbery.
Two months later, the Supreme Court issued Carter v. United States ,
530 U.S. 255 (2000), clarifying the elements of bank larceny and holding that it is
not a lesser included offense of bank robbery. Defendant was sentenced within
two weeks of that decision, and then took a direct appeal. On appeal, he relied on
Carter to challenge the content of the trial court’s instruction on bank larceny, but
did not argue that it was error to have instructed on the offense per se. This court
affirmed his conviction despite the omission of an element of bank larceny
identified by Carter (“carrying away” the stolen property), because “there was
overwhelming evidence that [he] carried the [stolen] money away from the bank.”
United States v. Riggans , 254 F.3d 1200, 1203 (10 th Cir. 2001).
In this § 2255 proceeding, defendant claims that it was error to instruct on
bank larceny and that counsel was ineffective by failing to challenge the resultant
conviction on this basis. The district court fleshed out the legal deficiencies in
these claims at some length, but the basic weakness is easily summarized as
follows: defendant seeks to gain a self-created windfall by collaterally attacking
his conviction on the basis of a sound strategic decision by counsel that in all
likelihood afforded defendant a substantial benefit.
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Defendant was able to avoid conviction on the robbery charge when the
trial court granted his request for a lesser included offense instruction on larceny,
and yet now insists he should be able to void the resultant larceny conviction by
arguing that the trial court should not have instructed on that offense. We need
not repeat the district court’s detailed analysis here. “The invited error doctrine
prevents a party from inducing action by a court and later seeking reversal on the
ground that the requested action was in error.” United States v. LaHue , 261 F.3d
993, 1011 (10 th Cir. 2001) (quotation omitted). This doctrine has been applied on
numerous occasions to bar lesser-included-offense challenges. See, e.g. , United
States v. Bennafield , 287 F.3d 320, 325 (4 th Cir.), cert. denied , 537 U.S. 961(2002); United States v. Butler , 74 F.3d 916, 918 n.1 (9 th Cir. 1996); Leverett v.
Spears , 877 F.2d 921, 924 (11 th Cir. 1989). Indeed, the equitable underpinnings
of the doctrine are especially apt here, where the pre-error status quo cannot be
restored because retrial on the bank robbery charge would now be precluded by
double jeopardy principles, see Price v. Georgia , 398 U.S. 323, 326-27 (1970).
The applicability of the invited error doctrine also undercuts defendant’s
related claim that counsel was ineffective for not challenging the lesser include
offense instruction under Carter during prior proceedings in this case. “If [an]
omitted issue is without merit, counsel’s failure to raise it does not constitute
constitutionally ineffective assistance of counsel.” Parker v. Champion , 148 F.3d
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1219, 1221 (10 th Cir. 1998) (quotation omitted). Here, the invited error doctrine
would have precluded relief had counsel tried to overturn defendant’s conviction
either by post-trial motion or direct appeal. See, e.g. , LaHue , 261 F.3d at 1013(affirming denial of new trial motion on basis of invited error); United States v.
Edward J. , 224 F.3d 1216, 1222 (10 th Cir. 2000) (rejecting appeal on basis of
invited error). Given this legal obstacle, counsel’s omission cannot support an
ineffective assistance claim. See id. at 1222 (rejecting appellate ineffectiveness
claim because omitted issue would have been subject to invited error doctrine).
Claims Awaiting COA Determination
Defendant requested a COA to appeal two other claims raised in his § 2255
motion. We agree with the district court that these claims do not rise even to the
“debatable” level and we therefore deny defendant’s request. See generally Slack
v. McDaniel , 529 U.S. 473, 484 (2000).
On direct appeal, defendant argued that the bank larceny instruction given
at trial failed to include as an element of the offense the act of “carrying away”
the stolen money. As counsel had not raised the objection at trial, this court
reviewed only for plain error and denied relief because the incomplete instruction
“did not seriously affect the fairness, integrity or public reputation of [the] trial.”
Riggans , 254 F.3d at 1202 (quotation omitted). Defendant claims that counsel’s
omission reflects professionally deficient performance and that the dispositive
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application of the plain error standard reflects the consequent prejudice to his
case. As the district court noted, however, the reason this court held that the
fairness, integrity, and public reputation of the trial were not seriously affected
was that “[a]s is readily apparent from . . . the facts, there was overwhelming
evidence that [defendant] carried the money away from the bank.” Id. at 1203;
see also id. at 1201-02 (reciting facts underlying this conclusion, including
eyewitness testimony as well as stains from bank dye pack on defendants’ hands,
on money and towel in his possession, and on back seat of car he used to exit
crime scene). Given that assessment of the relevant evidence, and the lack of any
challenge to it here, any reasonable jurist would conclude as the district court did
that defendant suffered no cognizable prejudice: even if counsel had preserved an
objection to the bank larceny instruction, the same result would have obtained on
appeal under the rubric of harmless error. See Neder v. United States , 527 U.S. 1,
17, 19 (1999).
Finally, defendant claims counsel was ineffective for failing to challenge
the sufficiency of the government’s evidence that the bank was FDIC insured at
the time of the crime. The evidence recited by the district court was plainly
sufficient to preclude acquittal on this basis. Defendant appears to be confusing
sufficient evidence with conclusive proof.
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Defendant’s request for a COA on his ineffective assistance claims relating
to the content of the larceny instruction and the sufficiency of the government’s
proof of FDIC insurance is DENIED. The judgment of the district court is
AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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