In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-1771

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

VIRGIL SMITH,

Defendant-Appellee.

____________

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 1:03-CR-6—Theresa L. Springmann, Judge.

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ARGUED OCTOBER 28, 2004—DECIDED JULY 18, 2005

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Before RIPPLE, WOOD, and EVANS, Circuit Judges.

WOOD, Circuit Judge. On December 9, 2002, Virgil Smith

and a number of his associates decided to rob a bank.

Before too long, he was caught, indicted, and convicted by

a jury on one count of aiding and abetting an armed bank

robbery, in violation of 18 U.S.C. § 2113(a) and (d) and 18

U.S.C. § 2, and one count of aiding and abetting in the use

of a firearm, during and in relation to the bank robbery, in

violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. In this

appeal, he challenges both the conviction and the 221-

month sentence he received. We affirm the conviction, but
2 No. 04-1771

we order a limited remand of Smith’s sentence in accordance with United States v. Paladino, 401 F.3d 471, 483-84

(7th Cir. 2005).

I

On the fateful day, Smith, along with Rashien Chiles,

Melvin Woods, Jernard Freeman, and DeMarcus White,

decided to rob the Bank One on Lima Road in Fort Wayne,

Indiana. According to Smith’s accomplices, Smith outlined

exactly how the group should conduct the robbery. He also

provided a Desert Eagle handgun and a stolen vehicle to

use to drive to the bank. The group met at a prearranged

location near the bank just before the robbery. Smith provided masks for Woods and White. When the group arrived

at the bank, Smith and Freeman waited outside, while the

other three entered the bank, equipped with a .45 caliber

handgun, to steal the money. Freeman’s job was to serve as

getaway driver for the actual robbers; Smith’s was to

distract and obstruct the police from reaching the getaway

car.

The heist did not go as planned, in large ways and small.

Chiles wound up in Smith’s car with him; those two initially

eluded capture. The police quickly apprehended Freeman,

Woods, and White. During a search of their getaway car,

the officers found a Desert Eagle handgun in the trunk; the

.45 caliber handgun used during the robbery never turned

up. Ultimately, Freeman, Woods, and White pointed a finger

at Smith, claiming that he had recruited them, formulated

the robbery plan, provided the stolen blue car, the masks,

and both of the guns—the .45 used during the robbery and

the Desert Eagle that was in the trunk of the car.

II

Smith presents four arguments for our consideration: (1)

the district court violated his right to a speedy trial as
No. 04-1771 3

guaranteed in the Speedy Trial Act, 18 U.S.C. § 3161; (2)

the court erred when it refused to allow him to change his

plea of not guilty on count one and instead to plead guilty

to the lesser included offense of unarmed bank robbery; (3)

the court abused its discretion in admitting a Desert Eagle

handgun into evidence; and (4) the court improperly instructed the jury that “[e]scape is part and parcel of bank

robbery.” We find no reversible error on any of these points.

A

Logically, the first question is whether Smith’s rights

under the Speedy Trial Act were violated and if so, whether

any such error affected Smith’s substantial rights. If so,

then the indictment would have to be dismissed and the

government would have to start over again, if it can. See 18

U.S.C. § 3162(a)(2). We review a district court’s interpretation of the Speedy Trial Act de novo and its factual findings

for clear error. United States v. Saleno, 108 F.3d 730, 734

(7th Cir. 1997). The Speedy Trial Act requires that a

defendant be brought to trial within 70 days from the date

the indictment is filed or the date when the defendant

appears before a judicial officer where the charge is pending, whichever is later. 18 U.S.C. § 3161(c)(1); see also

United States v. Henderson, 476 U.S. 321, 322 (1986). The

statute excludes various delays from the calculation of the

70- day period, including any delays that result from filing

pretrial motions, § 3161(h)(1)(F), and time, not to exceed 30

days, when a proceeding concerning the defendant is

“actually under advisement by the court,” § 3161(h )(1)(J).

This case implicates the latter of these exclusions: when

a proceeding concerning Smith was under advisement. After

some time had elapsed that counted against the clock,

Smith filed a motion to plead guilty to unarmed bank

robbery on July 22, 2003. At that point, the district court

set a briefing schedule on the motion, under which the
4 No. 04-1771

government was required to respond to Smith’s motion by

August 22, Smith had until September 8 to reply, and the

government had until September 19 to file a sur-reply.

Smith missed his deadline by one day, filing his reply on

September 9; the government filed its sur-reply brief a week

late, on September 26. The district court denied the motion

on November 17. Four days later, on November 21, Smith

moved to dismiss the indictment for speedy trial violations

and to continue the trial. The court denied that motion on

December 10, and the trial began on December 16.

Our first question is whether the court erred in finding

that the statutory speedy trial standards were not violated

here. As we have reconstructed it, the periods were as

follows (all dates are in 2003):

Feb. 26: Indictment: clock starts

Feb. 28: Arraignment; pretrial motions due Mar. 31

April 1: Clock resumes (1 day)

April 8: Smith motion to extend discovery (+7 days)

June 9: New deadline for motions; clock resumes

July 22: Smith motion to plead guilty (+42 days)

Sept. 9: Smith reply, 1 day late

Sept. 18: Government sur-reply due; not filed

Sept 26: Government sur-reply filed

Nov. 17: Court denies Smith’s motion; government

files pretrial motion in limine, stopping clock

Nov. 21: Smith files motion to dismiss on Speedy Trial

ground

Up until July 22, when 50 countable days had elapsed,

the parties basically agree on the proper way to count the

time. They part company over the question whether the

clock started running on the day after the government’s sur-
No. 04-1771 5

reply brief was due, or if it started running again on the day

after the brief was actually filed. After the briefing was

complete on Smith’s motion, the statute gave the court 30

non-countable days in which to issue its decision. 18 U.S.C.

§ 3161(h)(1)(J). Under Smith’s view, that date was October

18 (30 days after the government’s brief was due), and the

clock started running again on October 19. Under the

government’s view, that date was October 26, and the clock

started running again on October 27. Once the clock

resumed, only 20 days remained. According to Smith, that

period expired on November 8. According to the government, that period expired on November 17 (because November 15, which would otherwise have been the date, fell on a

Saturday in 2003), which was the date when the court ruled

on the motion. The remainder of the time between November 17 and the start of the trial was properly excluded

because the motion in limine was under advisement.

If Smith is correct, and the 30-day period for the court’s

consideration of the motion began the day after the government’s sur-reply brief was due, then he is also correct

that time ran out for his trial. If the government is correct

that the actual date of its filing is the critical one, then it

avoided a speedy trial violation by the skin of its teeth. The

question of the proper date of reference is one that this

court has already considered in United States v. Thomas,

788 F.2d 1250 (7th Cir. 1986). In that case, we held, on

more extreme facts than we face here (because delays

caused by the defendant were partly responsible for the

prosecutor’s late filing) that the period of advisement begins

“as soon as the prosecutor’s response is due, no matter

when the prosecutor filed.” Id. at 1259; see also

United States v. Baskin-Bey, 45 F.3d 200, 203 (7th Cir.

1995) (“[T]ime the judge gives for the government’s response is automatically excludable up to the scheduled date

of the response.”). Smith is therefore correct that the speedy

trial clock ran out well before the court ruled on his motion.
6 No. 04-1771

Smith faces one more hurdle, however, before he can

obtain relief on this ground. Even though district courts

have an unconditional obligation to enforce the Speedy Trial

Act, if the district court errs and the case proceeds to

judgment, then the harmless error rule applies at the

appellate level. See United States v. Zedner, 401 F.3d 36, 47

(2d Cir. 2005); see generally Neder v. United States, 527

U.S. 1 (1999); 28 U.S.C. § 2111 (“On the hearing of any

appeal or writ of certiorari in any case, the court shall give

judgment after an examination of the record without regard

to errors or defects which do not affect the substantial rights

of the parties.”). As the Second Circuit explained in Zedner,

“[t]here are excellent reasons to distinguish between errors

under the Speedy Trial Act that are harmless and those

that are harmful.” 401 F.3d at 47. The Speedy Trial Act

serves an important purpose, and we have no doubt that a

violation could prejudice a defendant in certain circumstances. Nevertheless, Smith has pointed to no prejudicial

event that occurred aside from the passage of six extra

days, or a little more than an extra month, depending on

one’s perspective. He was able to present evidence and

defend the government’s accusations at his trial without

any discernible problems caused by this minor delay. We

find that the Speedy Trial Act violation did not affect

Smith’s substantial rights.

B

We now turn to Smith’s claim that the court should have

allowed him to change his plea from “not guilty” on count

one to “guilty” on the lesser included offense of unarmed

bank robbery. In its order denying Smith’s motion to this

effect, the court reasoned that FED. R. CRIM. P. 10(a)(3),

which governs arraignments, requires the defendant “to

plead to the indictment or information.” (alteration in original). The court concluded that “[t]he rule explicitly states
No. 04-1771 7

that a defendant must plead to the charge in the indictment

or information. He does not have the option of pleading to a

lesser included offense.” (alteration in original). In addition,

the court observed that FED. R. CRIM. P. 11, which governs

pleas, allows for only “three types of pleas—not guilty,

guilty, or (with the court’s consent) nolo contendre— all of

which must be in response to the actual charges brought by

the government.” Smith believes that had he been allowed

to change his plea to guilty for unarmed bank robbery and

then to proceed to trial on the charge for armed bank

robbery, he would have received a two-point reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1 to his

guideline calculation.

We put to one side Smith’s optimistic assumption about

his chances for an acceptance of responsibility adjustment

under those circumstances and focus on his argument about

the plea. “A defendant has no absolute right to have a court

accept his guilty plea, and a court ‘may reject a plea in [the]

exercise of sound judicial discretion.’ ” United States v. Kelly,

312 F.3d 328, 330 (7th Cir. 2002) (quoting Santobello v. New

York, 404 U.S. 257, 262 (1971)). “Nevertheless, a court

cannot act arbitrarily in rejecting a plea . . . and must

articulate on the record a ‘sound reason’ for the rejection.”

Id. (internal citations omitted).

The government opposed Smith’s motion in the district

court “because it d[id] not wish to be barred from proceeding against the defendant on the greater included offense of

[armed bank robbery].” It feared that Brown v. Ohio, 432

U.S. 161 (1977), which held that “[w]hatever the sequence

may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser

included offense,” id. at 169, would bar it from proceeding

on the greater charge here once Smith pleaded to the lesser

charge. On appeal, the government continues to assert that

if the charge for armed robbery had been dismissed without

prejudice (say for a violation of the Speedy Trial Act) it
8 No. 04-1771

would be barred from proceeding in a second prosecution if

Smith had already pleaded guilty to the lesser included

offense. Smith (in an odd role reversal) argues that no such

problem would arise. He relies on Ohio v. Johnson, 467 U.S.

493 (1984), which held that when a defendant pleads guilty

over the government’s objection to the lesser included

offense, the defendant is considered voluntarily to have

severed the charges and is not at that point free to use

double jeopardy “as a sword to prevent the State from

completing its prosecution,” id. at 502.

Interesting as this double jeopardy debate is, we have no

need to resolve it here. The district court was well within its

discretion to insist that Smith enter a plea to the charges he

was facing, not to a lesser included offense. This is so even

if after a full trial Smith might have been entitled to

request a jury instruction on lesser included offenses,

depending on the evidence that was offered. See

FED. R. CRIM. P. 31(c); Keeble v. United States, 412 U.S. 205,

208 (1973). Furthermore, Smith’s assumption that splitting

the baby in the way he proposed would have entitled him to

an acceptance of responsibility adjustment borders on the

frivolous. The commentary to § 3E1.1 of the Guidelines

explains that “[t]his adjustment is not intended to apply to

a defendant who puts the government to its burden of proof

at trial by denying the essential factual elements of guilty,

is convicted, and only then admits guilt and expresses

remorse.” Cmt. 2. We therefore reject his challenge to the

court’s decision on his motion to plead guilty to the lesser

offense.

C

Smith’s next argument relates to the admission of

evidence at the trial—in particular to the district court’s

decision to admit the Desert Eagle handgun into evidence.

That was the gun that was found in the trunk of one of the
No. 04-1771 9

getaway cars. Smith correctly points out that the Desert

Eagle was not the gun that was used inside the bank. He

argues that it was therefore not used, possessed, or carried

during the commission of the crime. Going further, he also

asserts that it “was not available for use during the getaway” because it was located at all times in the trunk of one

of the getaway cars and thus was not immediately accessible. Taken together, he argues, these facts show that the

Desert Eagle had no relevance to the crime and thus

inadmissible, FED. R. EVID. 402, or at least that whatever

relevance it may have had was far outweighed by its prejudicial impact, FED. R. EVID. 403. We review the district

court’s evidentiary rulings for an abuse of discretion. United

States v. Thompson, 359 F.3d 470, 475 (7th Cir. 2004).

According to John Phinney, one of the ATF agents who

testified at trial, Smith admitted that he provided the

Desert Eagle for the bank robbery and instructed his codefendants on how to use it. Even though the gun was located in the trunk of one of the getaway cars, its presence

was part of their plan for escape, and with a simple stop of

the car it could have been used to ward off the police.

United States v. Wilkins, 659 F.2d 769, 773 (7th Cir. 1981)

(stating that “[t]he getaway is part of the robbery . . .”). See

also United States v. Williams, 344 F.3d 365, 375-76 (3d Cir.

2003), cert. denied 124 S. Ct. 1184 (2004) (defendant

violated § 924(c) when the gun was not brought into the

bank but was left in the getaway car).

In this case, Smith carried the Desert Eagle in the course

of his preparations for the robbery. It was therefore relevant to the crime of aiding and abetting in armed robbery

for which Smith was convicted, as well as his § 924(c)

charge. Whether, as Rule 403 inquires, its probative value

outweighed any prejudice that its admission might cause

was a question for the district judge in the first instance.

We see no abuse of discretion in the decision to admit the

gun.
10 No. 04-1771

D

Smith’s last challenge to his conviction relates to one of

the court’s instructions to the jury. In his view, instruction

number 29 misled the jury by oversimplifying the elements

required for the jury to convict him of armed bank robbery.

The court told the jury that: “Escape is part and parcel of a

bank robbery.” Smith suggests that the jury may have

erroneously inferred from this statement the notion that

escape was the only element needed to convict him of bank

robbery.

We review a district court’s instructions to the jury for an

abuse of discretion, United States v. Messino, 382 F.3d 704,

711 (7th Cir. 2004) (citation and internal quotation marks

omitted), unless the instructions are based on an error of

law in which case our review is de novo, United States v.

Smith, 308 F.3d 726, 740 (7th Cir. 2002). “To win a new

trial based on an erroneous jury instruction,” Smith “must

show both that the instructions did not adequately state the

law and that the error was prejudicial to [him] because the

jury was likely to be confused or misled.” Boyd v. Illinois

State Police, 384 F.3d 888, 894 (7th Cir. 2004).

To determine whether Smith suffered prejudice, we “consider[ ] the instructions as a whole, along with all of the

evidence and arguments,” to see whether “the jury was misinformed about the applicable law.” Id. In our review, we

assume that juries follow the instructions they were given.

Weeks v. Angelone, 528 U.S. 225, 234 (2000).

Perhaps the most important point to make in response to

this argument is the well-worn one that jury instructions

must be evaluated as a whole. If the district court had

limited its instructions to the one sentence Smith highlights, we might have had a problem. But, not surprisingly,

it did no such thing. Instead, immediately before the instruction Smith criticizes, the court gave two instructions

laying out the elements required for the offense of aiding
No. 04-1771 11

and abetting an armed bank robbery, in violation of 18

U.S.C. § 2113(d) and the offense of unarmed bank robbery,

in violation of 18 U.S.C. § 2113(a). We presume that juries

follow their instructions, and thus we are confident that the

jury’s instructions were not objectionable.

There was also no problem in the court’s decision to

inform the jury that the escape phase of the robbery was

relevant to its deliberations. We have previously upheld the

convictions of defendants whose only participation in a

bank robbery was to assist in the getaway. See, e.g., United

States v. Rawlings, 341 F.3d 657, 659 (stating that the

driver of the getaway car “was a full-fledged member of the

conspiracy [to commit bank robbery]”); Wilkins, 659 F.2d at

773 (stating that “[t]he getaway is part of the robbery;

therefore, the driver of the getaway car is a principal in the

crime of robbery and not a mere accomplice after the fact.”);

see also United States v. Donaby, 349 F.3d 1046, 1054 (7th

Cir. 2003) (commenting favorably on other courts’ decisions

that found the “factual and temporal interconnectedness of

bank robbery and flight” in a case affirming a district

court’s order of restitution for damage to a police car that

was damaged during the defendant’s escape). Other circuits

have explicitly found that the escape phase of a bank

robbery is a continuation of the crime. See, e.g., Williams,

344 F.3d at 372 (“Our case law has consistently treated

escape as part and parcel of a bank robbery.”); United

States v. Taylor, 322 F.3d 1209, 1212 (9th Cir. 2003) (“We

have held [ ]that the escape phase of a crime is still part of

the commission of the crime.”).

This does not mean that proof of getaway efforts is a

distinct element of the crime of bank robbery. Many bank

robbers are caught red-handed and never have the chance

to escape, and they are rightly convicted of violating the

law. It merely means that as a matter of fact, other robberies do have an escape phase, and defendants are ac-
12 No. 04-1771

countable for actions they take at that point. The Third

Circuit put it well in the opinion on which the district court

was relying:

[A] bank robbery does not necessarily begin or end at

the front doors of the bank. The escape phase of a bank

robbery is not an event occurring after the bank robbery. Rather, the escape phase of a bank robbery is part

of the robbery. The escape phase of a bank robbery

extends at least to the immediate pursuit of a defendant following his or her physical departure from the

bank.

Williams, 344 F.3d. at 376 n.5. Perhaps an instruction that

had captured more of the detail of this passage would have

been better. Nevertheless, even without a more complete

explanation of how escape relates to the crime of bank

robbery, Smith was not prejudiced by the court’s instruction

that “[e]scape is part and parcel of a bank robbery.” Escape

can be such a part, and the instructions taken as a whole

correctly told the jury what it had to find to convict.

III

Last, we address the question of Smith’s sentence. The

sentencing proceedings here took place before the Supreme

Court handed down its decision in United States v. Booker,

125 S. Ct. 738 (2005). The district court calculated Smith’s

Guidelines offense level at a Level 26 with a Criminal

History Category V. This yielded a sentencing range between 110 and 137 months. The district court sentenced

Smith at the top of the range to 137 months’ imprisonment

on count one and a mandatory consecutive term of 84

months’ imprisonment for his conviction on count two,

which is the statutory minimum for his § 924(c) violation,

for a total of 221 months. Although the court had no

discretion over the 84-month component of the sentence, the

137-month part was calculated on the assumption that the
No. 04-1771 13

Guidelines were mandatory. Smith did not preserve any

objection to this procedure at trial, and thus our review is

for plain error only. We therefore are ordering a LIMITED

REMAND to the district court under the procedures detailed

in Paladino, so that it can let us know whether it is inclined

to change the 137-month part of the sentence now that the

Sentencing Guidelines are advisory. We retain jurisdiction

over the appeal pending this inquiry. In all other respects,

we AFFIRM Smith’s conviction.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-18-05