On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 94-221-04)
Before: SCIRICA, ALITO, SAROKIN, Circuit Judges
Submitted Under Third Circuit LAR 34.1(a) January 12, 1996
Opinion Filed: February 15, 1996)
On September 12, 1994, two masked men entered a branch of the Mellon Bank in Pittsburgh, Pennsylvania. One of them pointed a gun at a teller, while the other jumped over the counter and removed money from the bank drawers. Their deed done, the two men fled the bank, hopped in a waiting car and sped from the scene of the crime. Thomas Price was convicted in the United States District Court for the Western District of Pennsylvania of armed bank robbery, in violation of 18 U.S.C. 2113(d) and 2, and knowingly and willfully carrying and using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. Section(s) 924(c)(1) and 2. Mr. Price now appeals his conviction on various grounds.
Mr. Price first challenges the district court's instruction to the jury regarding the "use and carry" count.
Section 924 of Title 18 of the United States Code states, inter alia, that "[w]hoever, during and in relation to any crime of violence . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence . . . be sentenced to imprisonment for five years . . ." 18 U.S.C. Section(s) 924(c)(1).
Mr. Price was charged with violating this provision in the district court. At the end of the trial, the district court gave the jury the following instruction:
The indictment also charges that on or about September 12, 1994, in the western district of Pennsylvania, defendant Thomas Price used a firearm, a .45 caliber Norinco pistol, during a crime of violence, armed bank robbery.
In order to sustain its burden of proof for the crime of using a firearm during a crime of violence, the government must prove the following two essential elements beyond a reasonable doubt:
One, Defendant Thomas Price committed the crime of armed robbery as charged ...