* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 3 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. RICHARD SCOTT MCINTOSH,

Defendant-Appellant. No. 98-7048 (D.C. No. 97-CV-142-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Defendant Richard Scott McIntosh appeals from an or der of the district court denying relief on his motion filed pursuant to 28 U.S.C. § 2255 . The court thereafter denied Mr. McIntosh a certificate of appealability . We determine that Mr. McIntosh has not shown the denial of a constitutional right, deny his motion for a certificate of appealability, and dismiss this appe al
. Mr. McIntosh was convicted by a jury of two counts of bank robbery, one count of possession of a firearm moved interstate a fter a felony conviction, two counts of use of firearm during commission of crime , and one count of conspiracy. His convictions were affirmed on appeal. See United States v. McIntosh . 999 F.2d 487 (10th Cir. 19 93). In his motion to the district court, Mr. McIntosh raised ten issues. To summarize, he contended that insufficient evidence supported his convictions. He also alleged that the jury instructions were pre judicial as were the prosecutor’s comments during closing arguments, the jury instruction regarding stipulations entered in by the parties amounted to a directed verdict, the 18 U.S.C. § 924(c) use of a firearm charges were illeg al and the jury instructions on1 In the district court, the government conceded that the § 924(c) instruction

was inadequate. See R., Vol. 1, tab. 7 at 10-11. The district court disagreed. As with the district court, we are not bound by the government’s concession. See Koch v. United States Dep’t of Interior , 47 F.3d 1015, 1018 (10th Cir. 1995) (court is not bound by parties’ stipulations as to issues of law). -3- those charges were inadequate, 1 and he received ineffective assistance of counsel. The district court denied relief on all issues. On appeal, Mr. McIntosh raises only four allegation s of error. He argues (1) he received ineffective assistance of counsel at trial and on appeal, (2) the prosecutor violated his rights during closing argum ents by telling the jury not to consider the evidence and the charges during its de liberations, (3) the § 924(c) charges were illegal, and (4) the jury instructions on the § 924(c) charges were vague. Mr. McIntosh’s remaining issues are waived. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). Mr. McIntosh contends counsel was ineffective at tr ial because he acted as a courtroom spectator, permitted the court to tell the jury that other courts would correct any mistakes they made, and accepted the go vernment’s version of the facts. To succeed on an ineffective assistance of counsel claim, Mr. McIntosh must not only establish counsel’s performance was d eficient but also that “the deficient performance prejudiced the defense,” thus depriving him of “a trial whose result is reliable.” Strickland v. Washingto n , 466 U.S. 668, 687 (1984).-4-

Our review of the record fails to support Mr. McInt osh’s contentions. Trial counsel was not constitutionally ineffective. “When a defendant alleges his appellate counsel ren dered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issue.” United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995). Mr. McIntosh contends that counsel raised insignifi cant issues on appeal while failing to raise his sufficiency of the evidence is sues. The fact that the issues raised by counsel are determined to be without meri t by the appellate panel does not mean that the issues are insignificant. Furthe r, the evidence was more than sufficient to support the convictions. We see no e vidence that appellate counsel was ineffective. Mr. McIntosh’s issues concerning the prosecutor’s c omments during closing arguments and the jury instructions were no t raised in his direct appeal. Before we can consider them, Mr. McIntosh must showcause and prejudice for failing to raise them on direct appeal. See id. Mr. McIntosh has made no such showing, and we do not agree that any error occurre d. Apparently in response to the Supreme Court’s rulin g in Bailey v. United States , 516 U.S. 137 (1995) , Mr. McIntosh asserts the § 924(c) charges were illegal and the jury instructions on those charges were vague. He contends the2 All courts which have considered the issue have held that Pinkerton

liability continues to apply to § 924(c) offenses committed subsequent to Bailey
. See, e.g. , United States v. Bell , 137 F.3d 1274, 1275 (11th Cir. 1998) (and cases cited therein). We agree with the reasoning of the se courts. -5- jury was instructed as to “use and carry,” not “use or carry.” This argument is without merit. The testimony at trial showed during the first robb ery Mr. McIntosh’s co-defendant Walter Thody “opened up his jacket and[the witness saw] the butt of a gun inside his pants.” Mr. Thody also said: “ [D]on’t pull the alarm or . . . I will shoot you.” R. Vol. III at 88. In Bailey , the Court held that a firearm can be “used” when the defendanthas “a gun on display during a transaction.” See id. at 146. Although Mr. McIntosh did not display a firearm, th e fact that his co-defendant did, is sufficient to support Mr. McIntosh’s § 924(c) conviction. Mr. McIntosh was convicted of conspiring with Mr. T hody in the two robbery schemes. So long as the conspiracy in crime contin ues, each conspirator acts for the other in carrying it forward. “[A]n overt act of one partner may be the act of all without any new agreement specifically directed to that act.” Pinkerton v. United States , 328 U.S. 640, 646-47 (1946) (quotation omitted). 2Thus, Mr. McIntosh was properly convicted of the § 924(c) offense in the first robbery.-6-

Testimony at trial showed that Mr. McIntosh actuall y brandished the gun during his escape attempt after the second robbery. See United States v. Thody , 978 F.2d 625, 630 (10th Cir. 19 92) (noting that both Mr. McIntosh and Mr. Thody used a gun to commandeer a car while attempting to flee pursuing police officers and affirming co-defendant’s conviction on § 924(c) count). Mr. McIntosh contends no evidence exists that he used the gun during the robbery itself and, therefore, he could not be convicted of use of a fi rearm during the robbery. Escape from the scene was an integral part of Mr. M cIntosh’s effort to successfully complete the crime of robbery. Use of a gun during this attempted escape is properly attributable to the charged crim e of robbery. Mr. McIntosh also contends he could not be convicte d of both bank robbery and § 924(c). He is wrong. Cf. United States v. Coleman , 9 F.3d 1480, 1482 (10th Cir. 1993) (affirming conviction for both armed bank robbery and use of a firearm during a crime of violence, in violation of § 924(c)(1)).-7-

Finding that Mr. McIntosh has not “made a substanti al showing of the denial of a constitutional right” to meet the requi rements of 28 U.S.C. § 2253(c)(2), we deny a certificate of appealabilityand DISMISS this appeal.

Entered for the Court

John C. Porfilio Circuit Judge