Appeal from the United States District Court for the District of Nevada. D.C. No. CR-93-318-02-HDM. Howard D. McKibben, District Judge, Presiding. Appeal from the United States District Court for the District of Nevada. D.C. No. CR-93-00318-PMP. Philip M. Pro, District Judge, Presiding.
Before: Walter J. Cummings*fn1 , Mary M. Schroeder, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Schroeder.
SCHROEDER, Circuit Judge:
In these cross-appeals we confront the aftermath of a verdict from a jury that was not properly instructed on inconsistent charges as required by United States v. Gaddis, 424 U.S. 544, 47 L. Ed. 2d 222, 96 S. Ct. 1023 (1976). Joe Willie McLaurin was tried for bank robbery in violation of 18 U.S.C. § 2113(a), and receipt of stolen bank funds in violation of subsection (c) of the same statute. The jury hung on the bank robbery charge and convicted McLaurin of receiving stolen bank funds. The government appeals from the dismissal at retrial of the bank robbery charge. McLaurin appeals from his sentence under the Sentencing Guidelines for receipt of stolen bank funds.
The bank robbery in issue occurred on November 30, 1993, when George Dean Singleton robbed the First Interstate Bank in Las Vegas, Nevada, of $2,348.00. The police tracked the signal transmitted from a beeper pack enclosed with the loot. The trail led to the Western Hotel where McLaurin was found with $2,113.00, and the beeper pack, in his pockets.
Immediately after his arrest, McLaurin made a voluntary statement in which he told detectives that he had seen a car speed past him and that he picked up a paper bag that had been thrown from the car. He stated that he found the money in the bag, put it in his pockets, and then ran to the hotel. He also stated that he did not know where the money came from, but that "it could have been dope money, it could have been stolen money."
Singleton was later convicted of bank robbery. No direct evidence ever linked McLaurin to the bank robbery itself. There was evidence that another black male drove Singleton's getaway vehicle, and the government's theory at trial, corroborated by the testimony of McLaurin's cellmate, Robert King, was that McLaurin was the getaway driver.
McLaurin offered to plead guilty to the receipt of stolen bank funds charge prior to trial, but the government refused to accept the offer. At trial, McLaurin argued that he had obtained possession of the loot after the robbery and that he could not be convicted of having committed the robbery itself.
Through apparent inadvertence, the jury was never instructed that it should consider the bank robbery count first, and that it should reach the receipt of stolen bank funds count only if it found the defendant not guilty of bank robbery. See Gaddis, 424 U.S. at 550; United States v. Johnson, 804 F.2d 1078, 1081 (9th Cir. 1986). The jury hung on the bank robbery charge and then, because of the instructional error, went on to consider and convict on the receipt of stolen bank funds charge. The district court declared a mistrial on the bank robbery count.
McLaurin did not, and he does not here, seek to set aside the § 2113(c) conviction, for which he received a sentence of 21 months' imprisonment. The government sought to retry him on the bank robbery charge. McLaurin moved for dismissal on the ground that the government could not lawfully retry him on a theory that was inconsistent with the jury's findings in the first trial. The district court granted his motion to dismiss, and the government appeals. We affirm.
In addition, McLaurin appeals his sentence on the receipt count, contending that he should have been given a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. We affirm the sentence as well.
The government concedes that the district court erred in failing to instruct the jury as to the order in which it should have considered counts 1 and 2. Under Supreme Court and Ninth Circuit law, an individual cannot be convicted under both § 2113(a), bank robbery, and § 2113(c), receipt and possession of stolen bank funds. As the Supreme ...