United States v. Baker ( 1994 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 93-8167
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UNITED STATES OF AMERICA,
Plaintiff/Appellee,
VERSUS
WOODROW WILSON BAKER, JR.
Defendant/Appellant.
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Appeal from the United States District Court
For the Western District of Texas
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Before POLITZ, KING and DAVIS, Circuit Judges.
DAVIS, Circuit Judge:
Woodrow Wilson Baker, Jr. challenges his conviction of two
counts of aiding and abetting attempted bank robbery. For the
reasons that follow, we affirm.
I.
Woodrow Wilson Baker, Jr. drove 11-year old Ricardo
Constancio, Jr. to the Guaranty National Bank in Killeen, Texas and
gave Ricardo a note to give to a teller. The note read:
Please put all of your following bills in my bag: tens,
twenty's, fifty's, hundred's. Don't put any dye or gas bombs.
Please don't make me make this place red with blood. Don't
think because I am small I can't do this. Please don't make
[me] prove it.
Ricardo, who was 4 feet, 8 inches tall, weighed 70-80 pounds, and
was dressed in an oversized t-shirt and jeans, did not read the
note.
The teller, Barbara Hawkins, recognized Ricardo because he had
been at the bank earlier picking up coin wrappers at Baker's
behest. When he gave her the note, she was surprised and
incredulous and asked who had written it. He told her to keep
reading. After reading the note, Hawkins told Ricardo she was
going to make a copy of it, and he demanded the note back. She
testified that she "was skeptical about turning my back, but I just
had -- I felt I had to get a copy of the note." She was unable to
make a clear copy because the note was written on a brown paper
bag. When she returned to the counter, Ricardo, ready to leave,
demanded that she return the note. Hawkins wanted to keep it for
"evidence" but gave it back to Ricardo because she felt threatened;
she testified that her "knees kind of buckled." Ricardo left the
bank.
Baker then drove Ricardo to the Round Rock Bank and told him
if he "messed this up, he was really going to do something bad" to
the boy. By this time, Ricardo had seen enough of the note to
realize that it demanded money. He presented it to a teller, Cindy
Keim, who asked Ricardo, "Why are you doing this?" but Ricardo just
stood and smiled. Keim also testified that Ricardo's eyes were
bloodshot and that she didn't know if he was under the influence of
something. Keim decided the note was serious and started to give
Ricardo some money, but she changed her mind when the bank security
officer approached and began talking to Ricardo. She tripped the
alarm and took the note to her supervisors, telling them that "it's
real, he's out there." While she was gone, Ricardo left the bank.
Baker was indicted for two counts of aiding and abetting
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attempted bank robbery in violation of 18 U.S.C. § 2113(a) and 18
U.S.C. § 2. A jury convicted him of both counts, and he was
sentenced to a total of 262 months imprisonment followed by three
years of supervised release. Baker timely appealed.
II.
Baker first challenges his conviction on the ground that
Ricardo would not have intimidated a reasonable person under the
circumstances, and that therefore, the government failed to prove
an essential element of the crime for which he was convicted. In
evaluating the sufficiency of the evidence, this court must
determine whether a rational jury could have found evidence
establishing intimidation beyond a reasonable doubt. United States
v. Ivey, 949 F.2d 759 (5th Cir. 1991), cert. denied, __ U.S. __,
113 S. Ct. 64 (1992). This court considers the evidence in the
light most favorable to the verdict, accepting all reasonable
inferences that support the jury's verdict. Glasser v. United
States, 315 U.S. 60, 80, 62 S. Ct. 457 (1942).
In order to prove a violation of 18 U.S.C. § 2113(a), the
government must prove: 1) an individual or individuals, 2) used
force and violence, or intimidation, 3) to take or attempt to take,
4) from the person or presence of another, 5) money, property, or
anything of value, 6) belonging to or in the care, custody,
control, management or possession, 7) of a bank, credit union, or
savings and loan association. United States v. Van, 814 F.2d 1004,
1005-06 (5th Cir. 1987). Under § 2113(a), bank robbery is made
criminal when it involves "force and violence, or intimidation":
Intimidation occurs when one individual acts in a manner that
is reasonably calculated to put another in fear. . . . [F]rom
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the perspective of the victim, a taking 'by intimidation'
under section 2113(a) occurs when an ordinary person in the
teller's position reasonably could infer a threat of bodily
harm from the defendant's acts.
United States v. Higdon, 832 F.2d 312, 315 (5th Cir. 1987)(internal
quotations omitted), cert. denied, 484 U.S. 1075 (1988).
Baker argues that a reasonable person would not have been
intimidated by a young, small, mild-mannered boy who was dressed in
clothing that made it apparent he was not hiding a gun. He relies
on United States v. Wagstaff, 865 F.2d 626 (4th Cir. 1989), cert.
denied, 491 U.S. 907, in which a conviction for bank robbery was
overturned for insufficiency of evidence of intimidation. In
Wagstaff, a man entered the bank, put on a ski mask, walked into
the teller's area and began taking money from the cash drawer. He
was never close to a teller, presented no note, carried no weapon,
and said nothing to anyone. The Fourth Circuit held that although
the nearest teller said she felt frightened, these facts were
insufficient to constitute intimidation because her fear was not a
"reasonable fear of bodily harm based on the acts of the
defendant." Id. at 629.
This case is distinguishable. Ricardo presented a note
containing an express threat of bodily injury. Although both
tellers testified that at first they did not believe the boy was
serious, they both became fearful and felt threatened. The first
teller testified that she was hesitant to turn her back on the boy,
and that her knees buckled. The second teller testified that she
was ready to give Ricardo money when the security officer
approached. Evidence that the perpetrator's acts "did induce fear
in an individual victim is probative of whether his acts were
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objectively intimidating." Higdon, 832 F.2d at 315.
Making all inferences in favor of the verdict, a reasonable
jury could rationally find intimidation. As the government argued
in closing, it is not necessary to show that the intimidating
behavior was so violent as to cause terror, panic or hysteria. The
government need show only that an ordinary person in the teller's
position would feel a threat of bodily harm from the perpetrator's
acts.
The language of the note was frightening. It threatened, "to
make this place red with blood." Although Ricardo was young, the
note expressly advised the tellers not to dismiss his ability to
carry out the threat because of his size. The evidence does not
establish that Ricardo was incapable as a matter of law of
committing violence in accordance with the express threat in the
note. The jury saw Ricardo and heard him testify. They also heard
the evidence, including the bank tellers' testimony concerning all
the circumstances surrounding the incidents. The jury was
therefore in a unique position to evaluate the reasonableness of
the tellers' assertions of intimidation. We decline to second
guess their finding on this issue.
III.
Baker next challenges the jury instructions, arguing that the
jury was told it could convict on the basis of Baker's intimidation
of Ricardo, rather than Ricardo's intimidation of the bank tellers.
When reviewing the propriety of a jury instruction, this court
determines whether the charge, as a whole, is a correct statement
of the law. United States v. Stacey, 896 F.2d 75, 77 (5th Cir.
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1990). As long as the jury charge accurately reflects the law and
the facts of the case, a district judge is vested with broad
discretion in formulating the charge, and this court will not
lightly disturb the district court's judgment. United States v.
Casto, 889 F.2d 562, 566 (5th Cir. 1989), cert. denied, 493 U.S.
1092 (1990).
In its jury charge, the trial court first instructed the jury
that "§ 2113(a) makes it a crime for anyone to take or attempt to
take from the person or presence of another, by force or violence
or by intimidation, any money in the possession of a federally
insured bank." The court then explained the four elements of the
offense:
First, that the Defendant knowingly, intentionally, and
willfully caused Ricardo Constancio to attempt to take money
from the person or presence of [the named teller] on or about
July 31, 1992;
Second, that the money was then in the possession of [the
bank];
Third, that [the bank] is a federally insured bank; and
Fourth, that the Defendant or Ricardo Constancio did so by
means of force or violence or by means of intimidation.
At trial, Baker objected to court's above explanation of the fourth
element. He argues here that this part of the charge is erroneous
because the disjunctive language, "Defendant or Ricardo Constancio
did so," allowed the jury to find the necessary intimidation based
on Baker's intimidation of Ricardo rather than based on Ricardo's
intimidation of the tellers inside the banks.
The government contends that reading the charge as a whole,
the most logical construction is that Baker aided or abetted
Ricardo in taking money from the bank by intimidation. The
government argues that the court made this clear when it instructed
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that "the essence of the offense is the taking of money ... aided
and accompanied by intentional, intimidating behavior on the part
of the defendant." The government argues that this shows that the
court linked the acts of intimidation to the taking of the money.
In the court's explanation of the fourth element of the
offense, the government contends that the court sought to focus on
Ricardo's acts of intimidation rather than Baker's threats against
Ricardo. The government argues that the term "did so" relates back
to the taking of the money and refers to the way the money was
taken. The government argues that the use of the word "or" is
appropriate because Baker actually wrote the threatening note used
by Ricardo. In other words, the government contends that a
reasonable jury would understand this language as an instruction
that the jury could convict if it found that Baker, acting through
Ricardo, intimidated the tellers.
The closing argument reflects that the government advanced
this interpretation of the charge to the jury. The prosecutor told
the jury that "it's not an issue or important to this trial whether
Baker threatened the boy to commit the crime or whether Baker ...
just persuaded him to and the boy went along on his own without
being threatened." The government described the intimidation as
coming from the note: "That note caused each one of [the tellers]
to take notice and to -- as one of them said, it began to sink in
and it frightened them."
Although the charge is not a model of clarity, it is an
adequate statement of the law, and the court did not abuse its
discretion in the formulation of the charge. The instruction
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informed the jury that § 2113(a) makes it a crime for anyone to
attempt to take money by intimidation from a federally insured
bank. The charge then adequately conveyed to the jury that it
could find either Baker or Ricardo responsible for the intimidation
if it accepted the evidence that Baker wrote the note and Ricardo
presented it. Based on the charge as amplified by the prosecutor's
argument, we are satisfied that the jury was not misled into
believing that it could convict Baker based on his intimidation of
Ricardo.
IV.
Finally, Baker argues that the conviction must be overturned
because a fatal variance existed between the indictment and the
proof upon which defendant was convicted. He argues that the
indictment named Ricardo Constancio, but the proof showed that the
principal was his son, Ricardo Constancio, Jr.
In this case, unlike in United States v. Salinas, 654 F.2d 319(5th Cir. 1981), overruled on other grounds in U.S. v. Adamson, 700
F.2d 953 (5th Cir. 1983) on which Baker relies, there is no
question that the defense, the prosecution and the jury knew that
the Ricardo Constancio named in the indictment and shown to be
involved in the robbery was the son, whether there was a "Jr."
attached to the name or not. The concern underlying the
constructive amendment doctrine, that the Fifth Amendment
guarantees the right to be tried only on the grand jury indictment,
is not implicated under these circumstances.
Nor is the variance between the two names material. A
variance is material only if it prejudices the defendant's
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"substantial rights," either by surprising the defendant at trial
or by placing him at risk of double jeopardy. Berger v. United
States, 295 U.S. 78, 82 (1935); overruled on other grounds, U.S. v.
Stirone, 361 U.S. 212 (1960); United States v. Richerson, 833 F.2d
1147, 1155 (5th Cir. 1987). Here, the defendant's ability to
defend himself was not affected because there was never any
question about who Baker had aided and abetted in the attempted
robbery.
AFFIRMED
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