Appeals from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 00-cr-00164) District Judge: Honorable William L. Standish
Before: Rendell, Smith and Aldisert, Circuit Judges
The opinion of the court was delivered by: Rendell, Circuit Judge.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 1291. Williams makes four arguments on appeal: (1) the evidence was insufficient to sustain a conviction under § 924(c); (2) the District Court incorrectly instructed the jury that a gun is "carried" in violation of § 924(c) if it merely "emboldens" the defendant during the escape; (3) the District Court incorrectly instructed the jury that a gun is "possessed" in violation of § 924(c) if it merely "emboldens" the defendant during the escape; and (4) the District Court incorrectly instructed the jury as to what satisfies the "carry" elements under § 924(c). As noted, the Government cross-appeals, arguing that the District Court erred in granting Williams an offense-level reduction for acceptance of responsibility under § 3E1.1 of the Sentencing Guidelines.
II. Sufficiency of the Evidence
We first consider whether there is sufficient evidence to sustain a conviction under 18 U.S.C. § 924(c). When reviewing whether the evidence was sufficient to convict, "[w]e must consider the evidence in the light most favorable to the government and affirm the judgment if there is substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt." United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993) (internal quotation marks and citation omitted).
Section 924(c) provides in pertinent part:
[A]ny person who, during and in relation to any crime of violence or drug trafficking crime... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime — [be sentenced to a certain number of years depending on the facts of the crime]....
18 U.S.C. § 924(c) (emphasis added). Courts have noted that § 924(c) has three alternative prongs: the "use" prong, the "carry" prong, and the "possession" prong. See Muscarello v. United States, 524 U.S. 125, 136 (1998) (discussing the "use" and "carry" prongs); United States v. Loney, 219 F.3d 281, 287 (3d Cir. 2000) (discussing the "use," "carry," and "possession" prongs). The District Court charged the jury in the alternative, under the "carry" and "possession" prongs. The jury returned a general guilty verdict.
Williams presents various technical arguments based on the elements of § 924(c). His main argument is that there was not sufficient evidence for the jury to find that he either "carried" or "possessed" a gun. In the alternative, he urges that there was not sufficient evidence to find that he either carried a gun "during and in relation to" a crime of violence or possessed a gun "in furtherance of " a crime of violence as required by the statute. We will first address his arguments as to the "carry" prong.
We have little difficulty rejecting Williams's argument that there was not sufficient evidence for the jury to have concluded that Williams "carried" a gun. In Muscarello, the Supreme Court explained that "carries" in § 924(c) is not limited to the carrying of firearms directly on the person. Id. at 126-27. Rather, the Court held that, "[the term] also applies to a person who knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies." Id.; see also United States v. Eyer, 113 F.3d 470, 476 (3d Cir. 1997) (stating that the presence of a loaded gun in a car's front console constituted "carrying" under § 924(c)). This explication certainly encompasses the situation here, where there was sufficient evidence from which the jury could find that Williams carried a gun in the getaway car during his flight from the bank. Not only did he tell police officers that he ran from them because he had an illegal gun, but a pursuing police officer testified to seeing Williams throw a black metallic object from his car, and a gun was subsequently found ten feet away from the car.
Williams's alternative argument as to the "carry" prong, however, cannot be rejected so easily. He contends that, even if he "carried" the firearm, the evidence did not establish that he carried it "during and in relation to" a crime of violence — as further required by § 924(c) — given that there is no evidence that he had the gun with him in the bank when he committed the robbery. Understanding that the underlying crime to which Williams pled guilty, bank robbery under the first paragraph of § 2113(a),*fn1 is a crime of violence, we must only determine whether Williams's carrying of the firearm was "during and in relation to" the bank robbery. See United States v. Johnson, 962 F.2d 1308, 1312 (8th Cir. 1992).
We begin with the "in relation to" requirement of the "carry" prong. See 18 U.S.C. § 924(c). As the Supreme Court noted in Smith v. United States, 508 U.S. 223, (1993), regarding § 924(c), "[t]he phrase 'in relation to' is expansive." Id. at 237. In Smith, the Court used the dictionary to define "in relation to" as: " 'with reference to' or 'as regards.' " Id. Though the Court declined to chart the specific boundaries of that definition, it stated that, in order to be carried "in relation to" the offense, the presence of the gun could not be the result of accident or coincidence, and the gun must have had "some purpose or effect" as to, and must have at least " 'facilitate[d], or [had] the potential of facilitating,' " the underlying offense. Id. at 238 (quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985) (Kennedy, J.)).
In United States v. Warwick, 167 F.3d 965 (6th Cir. 1999), the Court of Appeals for the Sixth Circuit examined the breadth of the phrase "in relation to" in light of Smith. The court stated that, because of the broad interpretation afforded to § 924(c) by the Supreme Court, instead of focusing on the defendant's intentions in pursuing the underlying offense, a court should examine the 'totality of the circumstances surrounding the commission of the crime: the emboldened sallying forth, the execution of the transaction, the escape, and the likely response to contingencies that might have arisen during the commission of the crime'.... Thus, a conviction under § 924(c)(1) will withstand appellate review if the evidence is sufficient to support a finding that the defendant intended to have the firearm available for use during or immediately following the transaction, or if it facilitated the crime....
Id. at 971 (quoting and citing United States v. Brown, 915 F.2d 219, 226 (6th Cir. 1990)). We find this assessment persuasive.
In light of the broad reading afforded to § 924(c) by the courts, the requirements of the "in relation to" clause are clearly satisfied in this case. Williams admitted to putting a firearm in his car the night before the robbery; the gun was within reach during his flight from the bank; and he undoubtedly was aware of its presence in the car. Even crediting Williams's explanation that he had put the gun in the car for protection in a strange neighborhood the night before the robbery, the jury could have concluded that the presence of the gun was not the result of accident or coincidence, and that it had the "potential of facilitating" the bank robbery. Although Williams did not actively engage the firearm, there are sufficient facts from which the jury could infer that his carrying of a loaded gun within reach in the getaway car occurred "in relation to" the bank robbery.
Williams next contends that, even if the firearm was "carried in relation to" the bank robbery, it was not carried "during" the bank robbery as § 924(c) also requires, because the escape or the "taking away" was not part of the bank robbery itself.*fn2 As noted, there was sufficient evidence only for the jury to have found at trial that Williams "carried" the gun while escaping in the getaway car. Therefore, the issue of whether that part of the incident occurred "during" the bank robbery is dispositive.
Our case law has consistently treated escape as part and parcel of a bank robbery, including federal bank robbery as defined in 18 U.S.C. § 2113 (the offense that underlies Williams's § 924(c) charge). For instance, in United States v. Bamberger, 460 F.2d 1277 (3d Cir. 1972), we found that a shooting that occurred a few blocks away from a bank robbery was "sufficiently related in time and circumstances to the actual robbery" to be part of the robbery itself. Id. at 1278. Although the defendant in that case was charged with aiding and abetting, the language of our opinion regarding the duration of the offense swept broadly and was not restricted to an aiding and abetting scenario.*fn3 We later relied on Bamberger in Government ...