United States v. Kent David Olson ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-3905
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Kent David Olson, *
*
Defendant - Appellant. *
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Submitted: May 14, 2001
Filed: August 21, 2001
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Before LOKEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
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LOKEN, Circuit Judge.
In November 1999, two men stole $11,000 from the First National Bank of
Stacy, Minnesota and the Moose Lake Federal Credit Union of Sandstone, Minnesota.
Following a tip received two days later, officers stopped a van driven by Kent Olson
and found over $2000 in cash. Olson was arrested, waived his rights, and confessed
to participating in the two robberies. The district court denied his motion to suppress,
and a jury convicted him of violating 18 U.S.C. § 2113(a) by aiding and abetting the
robbery of the Stacy bank (Count 1), and of violating 18 U.S.C. §§ 2113(a) and (d) by
aiding and abetting the armed robbery of the Sandstone credit union. The district court
sentenced Olson to concurrent prison terms, 240 months on Count 1 and 262 months
on Count 2. He appeals, arguing the district court erred in denying his motion to
suppress because the tip did not provide officers with reasonable suspicion justifying
an investigative stop, and in denying his motion for acquittal on Count 1 because the
indictment failed to allege an essential element of a § 2113(a) violation. We agree with
Olson’s second contention, vacate his conviction on Count 1, and remand for
resentencing.
I. The Suppression Issue.
Three days after the Stacy bank robbery, a man carrying a handgun robbed the
Sandstone credit union of approximately $8300. Two days later, Pine County Deputy
Sheriff Gerald Wedell received a telephone call from a woman who said she had
information about the credit union robbery. The caller asked to meet Deputy Wedell
in Sandstone but agreed at his request to speak over the phone.1 She stated that on the
day of the Sandstone robbery, two men that she knew told her they had stolen guns the
night before and were going to Sandstone to do their laundry. Shortly after they left,
the caller heard a police broadcast of the robbery. When she saw these men the next
day, one had shaved his head, the other had shaved his beard, and they had a large
amount of cash which she estimated to be about $8000. The caller then told Deputy
Wedell that one of the men was currently heading southbound on I-35 from Banning
Junction to the Twin Cities, driving a white van with a brown stripe with license
number 500 HIG. She identified the other man as Corey and said he lived in the
Banning Trailer Court, just off the I-35 Banning Junction exit, and drove a 1992 gold
Cadillac that may have weapons in the trunk.
1
Deputy Wedell testified at the suppression hearing that the caller provided her
name and address, but those facts are not in the record.
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Deputy Wedell broadcast the description and suspected location of the van over
the dispatcher’s radio and requested an investigative stop. State Trooper Jerry Trott
observed a van matching the caller’s description traveling southbound on I-35 near
Hinckley. Deputy Wedell and other officers joined Trott, and they stopped the van.
The officers ordered Olson out of the van, escorted him to a squad car, and frisked him,
recovering two knives, a birth certificate, and $2296 in cash. Routine inquiries
revealed that Olson had no valid driver’s license or proof of insurance. During the
discussion, Olson commented, “this must be about the bank robbery.” He was arrested
and later confessed that he drove the getaway car during the Stacy bank robbery, and
that he robbed the Sandstone credit union while his co-defendant, Corey Jeffrey, drove
the getaway car.
Olson moved to suppress the evidence obtained during the stop of his van,
arguing that the caller’s anonymous tip did not provide the officers with reasonable
suspicion justifying an investigative stop. Alabama v. White, 496 U.S. 325, 331
(1990), held that a sufficiently corroborated anonymous tip may establish reasonable
suspicion justifying an investigative stop. Following an evidentiary hearing, the district
court denied the motion, concluding that the caller’s information, with corroboration,
bore sufficient indicia of reliability to support the investigative stop. Olson argues that
the caller’s tip offered no basis for the information conveyed and was not sufficiently
corroborated to establish reasonable suspicion justifying the stop. Having reviewed the
district court’s findings of fact for clear error and the Fourth Amendment seizure issue
de novo, we disagree. See Ornelas v. United States, 517 U.S. 690, 699 (1996)
(standard of review).
The caller in this case was not a completely anonymous informant. She asked
to meet with Deputy Wedell in person and provided her name and address. Her
willingness to meet and be identified indicated reliability. Moreover, the detailed
information she provided strongly suggested firsthand knowledge. She described
conversations with the two men and noted their changed appearances the day after the
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robbery. She said they had a large sum of cash, approximately the amount of the credit
union robbery proceeds. She provided detailed information about their current
whereabouts and their motor vehicles. Finally, the officers corroborated much of this
information when they observed a van matching the caller’s description driving on I-35
in the area and direction the caller had described. “[I]t is immaterial that the details
corroborating an informant’s tip are as consistent with innocent conduct as with illegal
activity.” United States v. McBride, 801 F.2d 1045, 1047 (8th Cir. 1986), cert. denied,
479 U.S. 1100 (1987). With this corroboration, the officers had reasonable suspicion
that the driver of the van had been involved in the credit union robbery, and that
justified their investigative stop. See United States v. Bell, 183 F.3d 746, 749 (8th Cir.
1999).
II. The Indictment Issue.
Count 1 of the indictment charged Olson and his co-defendant with the Stacy
bank robbery in the following manner:
each [defendant,] aiding and abetting the other, did take from the person
and presence of a victim teller approximately $2,736 in money belonging
to and in the care, custody, control, and possession of the First National
Bank, Stacy, Minnesota, the deposits of which were then insured by the
Federal Deposit Insurance Corporation; all in violation of Title 18, United
States Code, Section 2113(a).
At the close of the government’s case, Olson moved for judgment of acquittal on Count
1 on the ground that the indictment failed to allege a violation of 18 U.S.C. § 2113(a).
His attorney explained:
[Count 1] does not allege that the taking [from the teller] was by
force, violence or intimidation, and the defendant is of the position that
this count charges no crime whatsoever . . . . At best this count alleges
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[a violation of] 2113(b) . . . . If it alleges anything it alleges that and I
don’t concede that it alleges that.
In response, counsel for the government argued that the post-trial objection was
untimely and Count 1 gave Olson fair notice of the charge. “I think all we need to do
is, if anything, just add in the language . . . force, violence and intimidation.” The court
refused to amend the indictment but denied Olson’s motion because Count 1 cited
§ 2113(a) and the statute clearly states the elements of the offense. The court then
instructed the jury in the language of the statute, including use of force and violence or
intimidation in the elements of the offense. Olson appeals that ruling.
To be sufficient, an indictment must “contain[] the elements of the offense
charged.” Hamling v. United States, 418 U.S. 87, 117 (1974); see FED. R. CRIM. P.
7(c)(1). The government intended to charge Olson with violating the following subpart
of the first paragraph of § 2113(a):
§ 2113 Bank robbery and incidental crimes
(a) Whoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another . . . 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 . . . [s]hall be fined under this title or
imprisoned not more than twenty years, or both.
The parties agree that the use of force or intimidation is an essential element of this
offense. Count 1 contains no clear allegation that defendants took money from the
victim teller by force or intimidation. However, when the sufficiency of an indictment
is challenged after jeopardy attaches, as in this case, we liberally construe the
indictment, finding it sufficient “unless it is so defective that by no reasonable
construction can it be said to charge the offense for which the defendants were
convicted.” United States v. Just, 74 F.3d 902, 904 (8th Cir. 1996) (quotation omitted).
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Relying on this standard, the government acknowledges that Count 1 inadvertently
omitted this element of the offense but argues Count 1 was nonetheless sufficient under
the post-jeopardy standard because it was entitled “Bank Robbery,” described the teller
as a “victim,” and cited § 2113(a) as the charging statute.
Even construing Count 1 liberally, we conclude it does not sufficiently allege that
the Stacy bank robbery was accomplished “by force and violence, or by intimidation.”
Calling Count 1 a charge of “Bank Robbery” does not suggest the crime was
committed with force or intimidation because all of § 2113 is entitled “bank robbery,”
and only this subpart of the first paragraph of § 2113(a) has force or intimidation as an
element of the offense. Nor does describing the teller as a “victim” suggest that money
was taken from the teller by force or intimidation. A teller would accurately be
described as a “victim” if an opportunistic thief reached across the counter and grabbed
money from the teller’s open cash drawer while the teller’s attention was focused
elsewhere. That leaves only the fact that Count 1 cited § 2113(a) as the charging
statute. It is well-established in this circuit that citation of the statute, without more,
does not cure the omission of an essential element of the charge because bare citation
of the statute “is of scant help in deciding whether the grand jury considered” the
missing element in charging the defendant. United States v. Camp, 541 F.2d 737, 740
(8th Cir. 1976); accord United States v. Zangger, 848 F.2d 923, 925 (8th Cir. 1988).2
As there was no fact allegation in Count 1 that can be reasonably construed as charging
the force-or-intimidation element of a § 2113(a) offense, we conclude that Count 1
failed to allege a violation of that statute.
2
The Ninth Circuit has held that, when an indictment is not challenged until after
trial, citation of the charging statute will cure this defect if the defendant was given
adequate notice of the missing element. See United States v. James, 980 F.2d 1314,
1318 (9th Cir. 1992); see also United States v. Martinez, 981 F.2d 867, 871-72 (6th
Cir. 1992). However, we held that citation of the charging statute did not cure the
defect in Camp even though the sufficiency of the indictment was first challenged on
appeal. See 541 F.2d at 741. As a panel, we are bound to follow Camp.
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Two other possible ways of construing Count 1 under the diverse bank robbery
statute do not save it from Olson’s post-jeopardy challenge. First, the second
paragraph of § 2113(a) defines a different type of bank robbery:
Whoever enters or attempts to enter any bank . . . with intent to
commit in such bank . . . any felony affecting such bank . . . and in
violation of any statute of the United States, or any larceny . . . [s]hall be
fined under this title or imprisoned not more than twenty years, or both.
However, Count 1 did not allege that either defendant entered the Stacy bank, nor did
it allege that they entered with intent to commit a felony, so not even the most liberal
construction could reasonably bring Count 1 within this paragraph of § 2113(a).
Second, as Olson’s attorney noted to the district court, Count 1 is arguably
sufficient to charge the essential elements of a § 2113(b) offense:
Whoever takes and carries away, with intent to steal or purloin, any
property or money or any other thing of value exceeding $1,000 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 ten years, or both.3
However, when this issue was raised in the district court, neither party requested that
the jury be given a § 2113(b) instruction, and none was given. Moreover, the Supreme
Court has recently clarified that § 2113(b) is not a lesser included offense of § 2113(a).
See Carter v. United States, 120 S. Ct. 2159, 2163 (2000). Thus, we cannot construe
the jury’s verdict as finding Olson guilty of a § 2113(b) offense. Compare United
3
Although Count 1 does not specifically allege “takes and carries away, with
intent to steal or purloin,” at oral argument Olson conceded that these elements can be
inferred from the allegation that money was taken from a victim teller.
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States v. Plenty Arrows, 946 F.2d 62, 66 (8th Cir. 1991) (appellate court may remand
for resentencing on lesser included offense when evidence insufficient only as to an
element of the greater offense).
In conclusion, because Count 2 was a crime of violence, and because Olson’s
sentence was based on his status as a career offender, vacating his conviction on Count
1 may not affect his sentence. See U.S.S.G. 4B1.1. However, that question should be
decided in the first instance by the sentencing court. Accordingly, the judgment of the
district court is reversed in part, and the case is remanded with instructions to dismiss
Count 1 as to Kent David Olson, and for resentencing.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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