PATRICK M. CANNON, PETITIONER V. UNITED STATES OF AMERICA No. 90-5492 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The First Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 849-857) is reported at 903 F.2d 849. JURISDICTION The judgment of the court of appeals was entered on May 18, 1990. The petition for a writ of certiorari was filed on August 15, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a fake gun made of plastic constitutes a "dangerous weapon or device" within the meaning of the federal bank robbery statute, 18 U.S.C. 2113(d). 2. Whether the jury's verdict of "guilty as charged" supports petitioner's armed robbery conviction where the indictment charged only armed robbery but the district court also instructed the jury on the lesser-included offense of unarmed robbery. STATEMENT Following a jury trial in the United States District Court for the District of Massachusetts, petitioner was convicted of armed bank robbery, in violation of 18 U.S.C. 2113(d). He was sentenced to 25 years' imprisonment. The court of appeals affirmed. Pet. App. 849-857. 1. The evidence at trial showed that on September 2, 1988, petitioner entered the Haymarket Cooperative Bank in Boston, Massachusetts, wearing a mask. He approached a teller, told her to "give it all up," and then pointed a gun at the teller and the assistant branch manager. Both the teller and the assistant branch manager testified that they were scared and thought that petitioner was holding a real gun. The branch manager gave petitioner $4,850. As petitioner left the bank, he removed his mask and walked by a truck driven by John Newman, who identified petitioner at trial as the man he saw leave the bank at the time of the robbery. Pet. App. 853-855. Eight days after the robbery, petitioner told his girlfriend, Kathleen Martens, that he was leaving Massachusetts and going to Vermont because he had robbed a bank. The following week, Martens visited petitioner in Vermont and saw a ski mask and a fake gun made of plastic in his hotel room. Petitioner told Martens that he used the fake gun in robbing the bank. Gov't C.A. Br. 1; Pet. App. 854. 2. In charging the jurors on the elements of armed bank robbery, the district court stated that, in order to convict, they must find beyond a reasonable doubt that petitioner assaulted another person with a dangerous weapon. Pet. App. 854. The court then continued as follows (ibid.): If you find beyond a reasonable doubt that the defendant displayed what looked like a dangerous weapon during the robbery, you may find the defendant assaulted another person. If you find beyond a reasonable doubt that the defendant displayed a weapon, you need not find that the weapon was real or was loaded. The law requires only that the defendant used a dangerous weapon, not that the weapon be loaded or actually be capable of firing. A weapon may be dangerous if it instills fear in the average citizen, creating an immediate danger that a violent response will follow. Petitioner unsuccessfully objected to the instruction on the ground that it required the jury to find him guilty of armed bank robbery even if it concluded that the gun he used was a fake. In addition to instructing the jury on the offense of armed bank robbery, which was the only offense charged in the indictment, at the request of defense counsel the district court also agreed to instruct the jury on the lesser-included offense of unarmed bank robbery. After the instructions, defense counsel objected because he thought that the lesser-included offense instruction had been omitted. The judge responded that he thought that he had delivered "the substance" of the requested instruction. Pet. App. 850-851. When the jury returned with the verdict, the courtroom clerk asked the foreperson, "As to Count 1, is the Defendant, Patrick Cannon, guilty or not guilty, as charged?" The foreperson replied, "Guilty, as charged." The jury then was polled at defense counsel's request. Defense counsel did not suggest to the court that the verdict was ambiguous or that the jury should be asked whether it had considered the lesser-included offense. Pet. App. 851. 3. On appeal, petitioner contended, first, that the verdict was ambiguous. The court rejected that contention. It noted that the jury had been asked whether, "(a)s to Count 1," the defendant was guilty "as charged," that Count 1 charged armed bank robbery, and that the jury had the indictment with it in the jury room. In light of those circumstances, the court stated that it could "only conclude, by the foreperson's answers to the courtroom clerk's question, that the jury intended to find the defendant guilty as charged in the indictment." Pet. App. 853. Petitioner also contended that the use of a fake gun during a bank robbery cannot support a charge of armed bank robbery under Section 2113(d) because such a gun is not "a dangerous weapon or device" within the meaning of the statute. As an initial matter, the court of appeals noted that the district court made no finding that the gun used by petitioner was a fake, and that the evidence concerning the nature of the gun was ambiguous. Pet. App. 853-854. In any event, relying primarily on this Court's decision in McLaughlin v. United States, 476 U.S. 16 (1986), which held that an unloaded gun is a "dangerous weapon" within the meaning of the federal bank robbery statute, the court concluded that proof that the defendant used a fake gun is sufficient to support an armed robbery conviction. Pet. App. 854-855. The court reasoned that such a gun is "dangerous" because its use during a bank robbery would instill fear in the average citizen and create the immediate danger of a violent response. Id. at 854. ARGUMENT 1. Petitioner first contends (Pet. 5-11) that the district court's instructions impermissibly permitted the jury to convict him of armed bank robbery even if it found that he robbed the bank using a fake gun. There is no merit to that contention. As the court of appeals concluded, "(t)here can be no doubt that th(e) instruction was legally correct." Pet. App. 854. In McLaughlin v. United States, 476 U.S. 16 (1986), this Court held that an unloaded handgun is a "dangerous weapon" within the meaning of Section 2113(d). The Court posited three justifications, "each independently sufficient" (id. at 17), for that conclusion. One of the justifications was that "the display of a gun instills fear in the average citizen" and "as a consequence, it creates an immediate danger that a violent response will ensue." Id. at 17-18. The Court noted that the floor debate on the provision that became Section 2113(d) indicated that "Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as 'dangerous' within the meaning of the statute." Id. at 18 n.3. This Court's decision in McLaughlin therefore establishes that an article is "dangerous" under Section 2113(d) even if it only simulates the threat of a loaded gun. Based on this premise, the use of a fake gun to rob a bank may support a charge of armed bank robbery. The courts that have considered the question in the aftermath of McLaughlin have expressly so held. United States v. Medved, 905 F.2d 935 (6th Cir. 1990); United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir.), cert. denied, 109 S.Ct. 1576 (1989). Cf. United States v. Smith, 905 F.2d 1296 (9th Cir. 1990) (replical of a handgun qualifies as a "dangerous weapon" within the meaning of Sentencing Guideline 2B3.1(b)(2)); United States v. Mahler, 891 F.2d 75 (4th Cir. 1989) (same). The cases petitioner cites in his behalf do not support his argument or establish the existence of a current conflict. In United States v. Miller, 874 F.2d 466, 467 n.2 (7th Cir. 1989), the court of appeals merely noted, without comment, that the government had dismissed a Section 2113(d) count because the defendant had used a fake gun. Likewise, in Williams v. Weldon, 826 F.2d 1018, 1023 n.4 (11th Cir. 1987), cert. denied, 485 U.S. 964 (1988), the court of appeals, without expressing approval or disapproval of the district court's action, noted as an indication of defense counsel's competence that he had persuaded the district court to reduce an armed robbery charge to a charge of robbery by intimidation because the gun used by the defendant was a fake. The other cases cited by petitioner pre-dated McLaughlin. Petitioner also argues that the use of a fake gun during a bank robbery should not be treated as armed robbery under Section 2113(d) because such a robbery is made unlawful by the unarmed bank robbery provision, 18 U.S.C. 2113(a). That contention proves nothing. As a lesser-included offense of Section 2113(d), Section 2113(a) will always be violated when Section 2113(d) is violated. But Section 2113(a) is not thereby rendered redundant, since it applies when no weapon is displayed. In McLaughlin, this Court considered and rejected the same argument that petitioner advances. See U.S. Br. at 18-20. /*/ 2. Petitioner also contends (Pet. 12-14) that it is not clear from the jury's verdict whether it found him guilty of the greater offense of armed bank robbery or the lesser-included offense of unarmed bank robbery. There is no warrant for further review of this fact-bound claim. The court of appeals correctly concluded that the verdict was not ambiguous. The only count in the indictment charged petitioner with armed bank robbery, and the jury foreperson announced the verdict as "guilty as charged." Although the court instructed the jury that it could find petitioner guilty in the alternative of the lesser-included offense of unarmed bank robbery, that offense was not mentioned in the indictment and defense counsel thought that the court had failed to instruct on unarmed bank robbery. Under these circumstances, the oral verdict clearly referred to armed bank robbery, the sole crime "charged." Significantly, petitioner failed to suggest to the district court that the verdict was ambiguous or otherwise seek to have the jury clarify its verdict. The court of appeals also explained (Pet. App. 852) why this case is different from United States v. Barrett, 870 F.2d 953 (3d Cir. 1989). In that case the jury had simply marked "guilty" on a verdict slip, despite the defendant's request for a more detailed verdict form, and no special circumstances showed whether the jury meant guilty of the offenses charged in the indictment or of lesser-included offenses. Id. at 954. In those circumstances, the government would agree that relief would be warranted. But in this case, it was clear that the jury meant to convict petitioner of armed robbery. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOEL M. GERSHOWITZ Attorney NOVEMBER 1990 /*/ We are serving a copy of the Brief for the United States in McLaughlin v. United States on counsel for petitioner.