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United States v. Simon

filed*fn1: May 18, 1995.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
ROBERT ANDREW SIMON, AKA ROBERT ANDREW MELER, DEFENDANT-APPELLANT



Appeal from the United States District Court for the District of Arizona. D.C. No. CR 94-00078-EHC. Earl H. Carroll, District Judge, Presiding.

Before: Gibson,*fn1 Goodwin, and Hug, Circuit Judges.

Memorandum*fn1a

Robert Simon appeals his conviction and sentence for bank robbery, in violation of 18 U.S.C. § 2113(a) (1988). Simon contends that the district court erred by: (1) incorrectly instructing the jury on the definition of "intimidation"; (2) refusing to instruct the jury on bank larceny, which he argues is a lesser included offense of bank robbery; and (3) denying him a two-level sentencing reduction for acceptance of responsibility. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1988) and 18 U.S.C. § 3742 (1988), and we affirm.

I. BACKGROUND

On February 7, 1994, Simon entered a Bank One in Phoenix, Arizona, and approached one of the tellers' windows. When the teller informed him that her window was closed, Simon went to the next teller and gave her a note that read, "Hi, money in top and bottom drawers, be calm." The teller handed Simon approximately $4676, including her "bait bills"*fn1 and a Pro-Net tracking device.*fn2 Simon took the money and left the bank. Using the signals emitted from the tracking device and the tellers' descriptions, Phoenix police officers promptly apprehended Simon. As the officers approached him, Simon stated, "You got me." When the officers searched Simon, he informed them that he had a $50 bill in his shirt pocket.

After his arrest, Simon confessed to taking money from the Bank One, as well as from other banks in neighboring states. He was indicted and charged with one count of bank robbery. Simon offered to negotiate a plea agreement that resolved all of the potential federal charges against him; however, the prosecutor refused to negotiate for jurisdictions other than Arizona.

Following a two-day trial, the jury found Simon guilty as charged. The district court refused to grant Simon a two-level reduction for acceptance of responsibility, U.S.S.G. 3E1.1, and sentenced him to sixty-three months incarceration. He appeals his conviction and sentence.

II. DISCUSSION

A. Jury Instructions

First, Simon argues that the district court erred in defining the element of intimidation for bank robbery. 18 U.S.C. § 2113(a).*fn3 Although we consider jury instructions as a whole to determine if they are misleading or inadequate, the issue of "whether a jury instruction misstated elements of a statutory crime is a question of law and is reviewed de novo." United States v. Spillone, 879 F.2d 514, 525 (9th Cir. 1989), cert. denied, 498 U.S. 864, 878 (1990).

In this case, the district court instructed the jury that "intimidation means saying or doing something that would cause a reasonable person to fear bodily harm." Next, the court explained that "express threats of bodily harm, threatening body motions, or the physical possibility of a concealed weapon are not required to establish intimidation." Finally, the court informed the jury that "use of a demand note, verbal instructions to provide money, and reactions of the bank teller are factors that may be considered in deciding intimidation."*fn4

Relying on United States v. Alsop, 479 F.2d 65 (9th Cir. 1973), Simon argues that the district court improperly informed the jury that intimidation involved a subjective standard focusing on the bank teller's reactions, rather than "an objective test focusing on the accused's actions." Id. at 67 n.4. Simon also complains that the court's instruction invited the jury to find intimidation merely because he used a demand note.

We disagree with Simon's interpretation of the court's instruction. At the outset, the court focused the jury's attention on the defendant's actions and the objective standard. We do not believe that the portion of the instruction that mentioned the use of a demand note as one of the factors for the jury to consider relieved the government of its burden to prove intimidation. Reading the instruction as a whole, rather than parcelling out selected segments, we conclude that the court did not misinform or mislead the jury on the proper standard for determining intimidation.

Second, Simon argues that the district court erred by refusing to instruct the jury on bank larceny. Simon concedes that this Circuit has previously held that bank larceny is not a lesser included offense of bank robbery. See United States v. Lucas, 963 F.2d 243, 247 (9th Cir. 1992) ("Bank larceny . . . contains a specific intent element which need not be proved in the bank robbery context. . . . We thus hold that bank larceny cannot be 'necessarily included' in bank robbery." (quotation omitted)). Because "a ...


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