Reginald Woodards v. United States ( 1997 )

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No. 96-2288
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Reginald Woodards, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
United States of America, *
* [UNPUBLISHED]
Appellee. *
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Submitted: January 15, 1997
Filed: January 21, 1997
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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.
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PER CURIAM.
In 1991, Reginald Woodards and several others were convicted of
conspiring to commit bank robbery in violation of 18 U.S.C. §§ 371, 2113(a)
(1994), aiding and abetting attempted bank robbery in violation of 18
U.S.C. §§ 2, 2113(a) (1994), and aiding and abetting the use or carrying
of a firearm during and in relation to a crime of violence, in violation
of 18 U.S.C. §§ 2, 371, 924(c)(1), and 2113(a) (1994). The District Court1
sentenced Woodards to 183 months' imprisonment, including a consecutive 60-
month term on the firearm count, and we affirmed on direct appeal. United
States v. Johnson, 962 F.2d 1308, 1311-12, 1315 (8th Cir. 1992), cert.
denied, 506 U.S. 928 (1992) and 507 U.S. 974 (1993).
1
The Honorable Diana E. Murphy, then United States District
Judge for the District of Minnesota, now United States Circuit
Judge for the Eighth Circuit.
In January 1996, Woodards filed this 28 U.S.C. § 2255 (1994) motion,
claiming that his section 924(c)(1) conviction should be set aside, because
he did not “use” a firearm as defined in Bailey v. United States, 116 S.
Ct. 501 (1995), and because section 924(c)(1) is unconstitutionally vague.
The District Court2 denied relief. Woodards appeals, and asserts
additional claims of trial error. We affirm.
Woodards procedurally defaulted these claims by not raising them on
direct appeal, and he has made no showing of cause and prejudice or of
actual innocence. See United States v. Rodger, 100 F.3d 90, 91 (8th Cir.
1996) (per curiam); Williams v. United States, 98 F.3d 1052, 1054 (8th Cir.
1996); Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per
curiam). We agree with the District Court that the evidence at trial was
sufficient to convict Woodards of a “carry” violation under established
principles of coconspirator and aiding-and-abetting liability.3 See
Bailey, 116
2
The Honorable Richard H. Kyle, United States District Judge
for the District of Minnesota, adopting the report and
recommendations of the Honorable Ann D. Montgomery, then United
States Magistrate Judge for the District of Minnesota, now United
States District Judge for the District of Minnesota.
3
A defendant who did not personally use or carry a firearm may
be found guilty of violating section 924(c)(1) under either a
coconspirator theory of liability, see Pinkerton v. United States,
328 U.S. 640, 647-48 (1946) (conspirator is criminally liable for
substantive offense committed by another conspirator within scope
of and in furtherance of conspiracy, unless that offense could not
reasonably have been foreseen as necessary or natural consequence
of conspiracy), or an aiding-and-abetting theory, see United States
v. Delpit, 94 F.3d 1134, 1151 (8th Cir. 1996) (individual may be
found guilty of aiding and abetting if, before or at time crime was
committed, he knew offense was being committed or was going to be
committed; he knowingly acted to encourage, aid, or cause offense;
and he intended offense be committed). We recently held that
Bailey does not preclude the continued application of a
coconspirator theory of liability to section 924(c)(1) offenses.
See Rodger, 100 F.3d at 91 n.2. We now conclude that the same
holds true for aiding-and-abetting liability. See United States v.
Giraldo, 80 F.3d 667, 676 (2d Cir.) (post-Bailey application of
aiding-and-abetting theory to § 924(c)(1) offense), cert. denied,
117 S. Ct. 135 (1996).
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S. Ct. at 507-09 (preserving “carry” as alternative basis for § 924(c)(1)
charge); Williams, 98 F.3d at 1054-55 (holding § 2255 movant procedurally
defaulted argument that § 924(c)(1) conviction was invalid in light of
Bailey; no actual prejudice because evidence was sufficient to convict him
of § 924(c)(1) “carry” violation). It is undisputed that some of
Woodards’s codefendants were carrying firearms at the time of their arrest,
and the jury found that Woodards knew about and was involved in the armed-
bank-robbery scheme. Cf. United States v. Simpson, 979 F.2d 1282, 1285-86
(8th Cir. 1993) (affirming § 924(c)(1) conviction under aiding-and-abetting
theory; acts of codefendant in committing armed bank robbery became those
of defendant, as aider and abettor, where defendant’s conduct in providing
transportation and means of concealment was integral to crime).
We need not address the claims Woodards raises for the first time on
appeal. See Thomas v. United States, 27 F.3d 321, 325 (8th Cir. 1994).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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