1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-15-1996

United States v. Price

Precedential or Non-Precedential:

Docket 95-3333

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v. Price" (1996). 1996 Decisions. Paper 233.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/233
1 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 95-3333 

___________ 

UNITED STATES OF AMERICA 

v. 

THOMAS PRICE, 

 Appellant 

___________ 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Criminal No. 94-221-04) 

___________ 

Submitted Under Third Circuit LAR 34.1(a) 

January 12, 1996 

Before: SCIRICA, ALITO, SAROKIN, Circuit Judges

(Opinion Filed: February 15, 1996) 

_____________ 

Paul J. Brysh, Esquire 

Bonnie R. Schlueter, Esquire 

Office of United States Attorney 

633 United States Post Office & Courthouse 

Pittsburgh, PA 15219 

 Counsel for Appellee

Charles J. Porter, Esquire 

Brucker, Zappala, Schneider & Porter 

Suite 2230 Grant Building 

Pittsburgh, PA 15219 

 Counsel for Appellant

__________________ 

OPINION OF THE COURT 

__________________ 
2 

SAROKIN, Circuit Judge: 

 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. 

§§ 924(c)(1) and 2. Mr. Price now appeals his conviction on 

various grounds. 

I. 

 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. 

§924(c)(1). 
3 

 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 in the indictment; and 

 Two, during and in relation to the commission of 

that crime, the defendant knowingly used a firearm. 

 The government has charged Thomas Price with 

aiding and abetting this crime as well. All of the 

instructions that I previously gave you about aiding 

and abetting also apply to this charge. 

. . . 

 The phrase uses or carries a firearm means having 

a firearm available to assist in the commission of the 

alleged armed bank robbery. 

 In determining whether defendant Thomas Price used 

or carried a firearm, you may consider all the factors 

received in evidence in the case, including the nature 

of the underlying crime of violence, the proximity of 

defendant to the firearm in question, the usefulness of 

the firearm to the crime alleged and the circumstances 

surrounding the presence of the firearm. 

 The government is not required to show that the 

defendant actually displayed or fired the weapon. The 

government is required, however, to prove beyond a 

reasonable doubt that the firearm was under defendant's 

control at the time the crime of violence was 

committed. 
4 

 As I stated before, you must also consider whether 

the defendant aided or abetted the use or carrying of a 

firearm in arriving at your verdict. 

 If you find beyond a reasonable doubt that Thomas 

Price aided and abetted Charles Stubbs in the use of a 

firearm during the commission of the armed bank 

robbery, then you may find Mr. Price guilty of using a 

firearm during the commission of a felony, even though 

there is no proof that he actually had the firearm in 

his physical possession. 

 You may find that Mr. Price aided and abetted Mr. 

Stubbs in the use of a firearm during the commission of 

a felony only if you find beyond a reasonable doubt 

that Mr. Price knowingly joined in, aided or assisted 

in the bank robbery, that his action was willful and 

voluntarily taken and that he had knowledge that a 

firearm was to be used in the bank robbery. 

Appendix at 451A-453A. 

 The two issues regarding this instruction are, first, 

whether having a firearm available to assist is sufficient to 

meet the second element of "using a firearm," and, second, 

whether one can be convicted under 18 U.S.C. § 924(c) on an 

"aiding and abetting" theory. 

A. 

 Mr. Price argues that the district court erred when it 

instructed the jury that "[t]he phrase uses or carries a firearm 

means having a firearm available to assist in the commission of 

the alleged armed robbery" because that sentence "is an incorrect 

statement of the law in this Circuit." Appellant's Brief at 34. 

Specifically, he argues that under our holding in United States 

v. Theodoropoulos, 866 F.2d 587, 597 (3d Cir. 1989), 

"availability alone [is] insufficient to establish a use in 

relation to a crime of violence." Appellant's Brief at 34. The 

government, in response, argues that "appellant Price's position 
5 

is based upon a misreading of Theodoropoulos." Government's 

Brief at 17. 

 In Theodoropoulos, this Court held that 

possession of a firearm constitutes use under section 

924(c) if there is: 

i) Proof of a transaction in which the 

circumstances surrounding the presence of a 

firearm suggest that the possessor of the 

firearm intended to have it available for 

possible use during the transaction. . . . 

866 F.2d at 597 (quoting Feliz-Cordero, 859 F.2d at 254) 

(emphasis added); see also Hill, 967 F.2d at 905 (holding that 

"[p]ossession of a firearm constitutes use under 18 U.S.C. 

§924(c) where there is evidence 'that the defendant intended to 

have the firearm available for use or possible use during a crime 

of violence . . . and that the firearm was placed in a spot where 

it was readily accessible at that time.'"); United States v. 

Reyes, 930 F.2d 310, 312 (3d Cir. 1991) (same). This language 

closely parallels that used by the district court in the instant 

case. Accordingly, if Theodoropoulos did govern our construction 

of section 924(c)(1), we would hold that the district court 

properly instructed the jury. 

 Theodoropoulos, however, no longer governs. The United 

States Supreme Court recently issued an opinion in which it 

clarified the meaning of the term "use" in section 924(c)(1). 

Bailey v. United States, 116 S.Ct. 501, 505 (1995). In Bailey, 

the Court rejected the holding of Theodoropoulos and held that 

the "proximity and accessibility standard provides almost no 

limitation on the kind of possession that would be criminalized . 

. . ." Id. at 506. Rather, the Court held, "[Section] 924(c)(1) 
6 

requires evidence sufficient to show an active employment of the 

firearm by the defendant, a use that makes the firearm an 

operative factor in relation to the predicate offense." Id. at 

505. The Court further explained that "[t]he active-employment 

understanding of 'use' certainly includes brandishing, bartering, 

striking with, and most obviously, firing or attempting to fire, 

a firearm." Id. at 508. However, "[i]f the gun is not disclosed 

or mentioned by the offender, it is not actively employed and it 

is not 'used.'" Id.

 Bailey's interpretation of the "use and carry" provision 

demands a different inquiry from that required under 

Theodoropoulos. It is no longer enough that the weapon be 

available to the defendant; rather, it must have played an active 

role in the perpetration of the predicate offense beyond 

emboldening the perpetrator. Therefore, we hold that the 

district court's instruction to the jury, while accurately 

reflecting the law of the Third Circuit at the time, was 

erroneous in light of Bailey. Furthermore, to the extent that 

our holding in Theodoropoulos conflicts with the Supreme Court's 

interpretation of "use" in Bailey, Theodoropoulos is overruled. 

B. 

 Mr. Price was also charged with the section 924 count under 

an aiding and abetting theory, an instruction which he also 

disputes. He contends that "aiding and abetting liability is 

inapplicable to a charge of carrying and using a firearm during 

and in relation to a crime of violence." Appellant's Brief at 

34. 
7 

 We reject this argument. Under 18 U.S.C. § 2(a), "[w]hoever 

commits an offense against the United States or aids, abets, 

counsels, commands, induces, or procures its commission, is 

punishable as a principal." This section has been routinely 

applied in conjunction with section 924(c) to convict individuals 

of "aiding and abetting in using or carrying a firearm" in 

violation of 18 U.S.C. § 924(c). See, e.g., United States v. 

Wacher, No. 93-3372, 1995 WL 757876 (10th Cir. Dec. 26, 1995); 

United States v. Pipola, No. 95-1264, 1995 WL 760560 (2d Cir. 

Dec. 22, 1995); United States v. Buchanan, 70 F.3d 818, 825 (5th 

Cir. 1995); Dillon v. United States, 69 F.3d 537 (6th Cir. 1995); 

United States v. Rivera, 68 F.3d 5, 7 (1st Cir. 1995); United 

States v. Easter, 66 F.3d 1018, 1023-24 (9th Cir. 1995), cert.

denied sub nom. Jemerigbe v. United States, 116 S. Ct. 547 

(1995), and cert. denied sub nom. Ronnie O. Lea v. United States, 

1995 WL 698897 (U.S. 1996) ; United States v. Warren, 42 F.3d 

647, 651 (D.C. Cir. 1994); United States v. Martin, 25 F.3d 211, 

213 (4th Cir. 1994); United States v. Chandler, 996 F.2d 1073, 

1105 (11th Cir. 1993), cert. denied, 114 S. Ct. 2724 (1994); 

United States v. Travis, 993 F.2d 1316, 1321 (8th Cir.), cert.

denied, 114 S. Ct. 229 (1993), and cert. denied, 114 S. Ct. 245 

(1993); United States v. Reiswitz, 941 F.2d 488, 492 (7th Cir. 

1991); see also United States v. Mathis, No. 93-454-01, 1994 WL 

413142 (E.D. Pa. Aug. 5, 1994). 

 It appears that no case in the Third Circuit has considered 

a conviction for violation of 18 U.S.C. § 924(c) on an "aiding 

and abetting" theory. We see no reason, however, why we should 
8 

rule differently from every other circuit in the country, and our 

own district courts, and Mr. Price offers none, beyond a 

conclusory argument that the theory is "inapplicable." Therefore, 

we reject Mr. Price's argument and hold that the district court 

correctly instructed the jury on the "aiding and abetting" 

theory. 

C. 

 We must now determine whether the district court's error in 

instructing the jury was harmless or requires reversal of Mr. 

Price's conviction on the section 924(c)(1) count. The error was 

one of statutory interpretation, not constitutional in nature. 

"We have held that non-constitutional error is harmless when 'it 

is highly probable that the error did not contribute to the 

judgment.'" United States v. Zehrbach, 47 F.3d 1252, 1265 (3d 

Cir.) (quoting Government of Virgin Islands v. Toto, 529 F.2d 

278, 284 (3d Cir. 1976)), cert. denied, 115 S.Ct. 1699 (1995). 

Because we conclude that the error was harmless, we will affirm. 

 The section 924 charge against Thomas Price was based on two 

alternative theories: first, that Mr. Price himself "used" the 

weapon under the Theodoropoulos standard and, second, that Mr. 

Price aided and abetted the "use" or "carrying" of the weapon by 

his accomplice, Charles Stubbs. Under either theory, it is 

highly probable -- indeed, inevitable -- that the jury found that 

Mr. Price was one of the masked men who robbed the bank and, more 

specifically, that he was the man who jumped over the counter and 

collected the money while Mr. Stubbs was brandishing the gun. 
9 

 That Mr. Stubbs both "used" and "carried" the firearm within 

the statutory meaning is perfectly clear, and therefore, the only 

remaining question is whether Mr. Price aided and abetted that 

use and carrying. Because the jury had to conclude that Mr. 

Price was the man who entered the bank with Mr. Stubbs, we think 

the evidence supporting this conclusion is overwhelming, 

whichever theory the jury utilized to convict. First, Mr. Stubbs 

testified that Mr. Price knew beforehand that a gun would be 

used, and the nature of the offense seems to strongly support 

that testimony. Second, the use of the gun did not occur in one 

instant; rather, according to the evidence, Mr. Stubbs pointed 

the gun while Mr. Price gathered the money. Even if Mr. Price 

had not known in advance that Mr. Stubbs was going to use a gun 

during the robbery, it seems perfectly clear that Mr. Price was 

aware that the gun was being used while he continued to 

participate in the robbery. 

 In other words, Mr. Stubbs was plainly using and carrying a 

firearm in connection with a crime of violence; Mr. Price 

probably knew in advance, and most certainly knew at the time, 

what Mr. Stubbs was doing; yet Mr. Price continued to participate 

in the offense. In light of these facts, we find that it is 

highly probable that the error did not contribute to the judgment 

of the jury, and therefore we will affirm. 

II. 
10 

 Mr. Price raises several other claims in this appeal. First, 

he contends that the evidence was insufficient as a matter of law 

to sustain his conviction. Specifically, Mr. Price argues that 

the evidence fails to demonstrate that Mr. Price had any prior 

knowledge that his accomplice would be utilizing a firearm in the 

robbery. Appellant's Brief at 21, 24. However, Mr. Price's 

accomplice, Charles Stubbs, did offer testimony to this effect. 

Appendix at 260A. This testimony was sufficient evidence to 

support a finding of prior knowledge on Mr. Price's part, and 

therefore sufficient evidence to find him guilty of armed bank 

robbery and carrying or using a firearm during the armed robbery. 

 Second, Mr. Price argues that the court improperly charged 

the jury concerning the existence of Mr. Stubbs's plea agreement. 

Appellant's Brief at 36-37. The court charged the jury that 

"[t]he Stubbs plea agreement was not marked as an exhibit and was 

not admitted into evidence during the course of the trial." 

Appendix at 487A. This instruction was correct, and certainly 

was not an "abuse of discretion." United States v. Price, 13 

F.3d 711, 724 (3d Cir.), cert. denied sub nom. Reaves v. United 

States, 114 S. Ct. 1863 (1994), and cert. denied sub nom. Long 

v. United States, 114 S. Ct. 2754 (1994), and cert. denied sub

nom. Jackson v. United States, 114 S. Ct. 2754 (1994), and cert.

denied sub nom. Reaves v. United States, 115 S. Ct. 155 (1994). 

 Finally, Mr. Price claims that the prosecutor engaged in 

"forensic misconduct" by improperly vouching for certain 

witnesses, disparaging Mr. Price's counsel, casting aspersions at 

the defendant and arguing facts not of record. Because Mr. 
11 

Price's counsel did not object to these statements at trial, we 

review these statements for "plain error," that is, "egregious 

error or a manifest miscarriage of justice." United States v. 

Thame, 846 F.2d 200, 204 (3d Cir.), cert. denied, 488 U.S. 928 

(1988). The statements singled out by Mr. Price fall far short 

of violating this exacting standard. 

IV. 

 For the reasons outlined above, we will affirm the judgment 

of the district court.