In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3663

United States of America,

Plaintiff-Appellee,

v.

Tom Ray Wallace,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:99 CR 19 JM--James T. Moody, Judge.

Argued February 25, 2000--Decided May 12, 2000

 Before Bauer, Ripple, and Manion, Circuit

Judges.

 Bauer, Circuit Judge. A jury convicted

Tom Wallace for his role in an armed bank

robbery, but acquitted him on a separate

charge of using a firearm during a crime

of violence. The district court sentenced

Tom/1 to 180 months in prison and five

years of supervised release. On appeal,

Tom challenges the sufficiency of the

evidence underlying his conviction. Tom

also complains about a jury instruction

and a sentencing enhancement. We affirm.

I. Background

 On January 29, 1999, shortly after

smoking a marijuana cigarette laced with

cocaine, Tom Wallace and his brother,

James Wallace, decided to rob the American Savings Bank located at 4521 Hohman

Avenue in Hammond, Indiana. The brothers

planned that Tom would collect the money

and James would "take care of" the bank

security guard.

 While on their way to the bank, Tom and

James passed the South Shore Train Station located next door to the bank. An

employee in the train station noticed the
Wallace brothers "acting strange" and

observed that one of them had a nylon

stocking on his head. The employee notified a train station security guard of

what she had seen and the guard instructed her to call for police assistance.

When Tom and James went into the bank,

the security guard positioned himself

outside of the bank.

 When the Wallace brothers entered the

bank, James turned to his left and confronted two individuals. A security camera recorded the Wallace brothers’ entrance and a photo from that camera shows

James brandishing a gun as he entered the

bank. Pointing his gun at a bank employee

and a customer, James approached them and

yelled at them to get on the floor; he

then ran to the rear of the bank and put

his gun to the bank security guard’s

forehead. He screamed at the guard, "Give

me your weapon. Get on the ground." James

then took the security guard’s gun. Now

armed with two guns, James briefly left

the guard. A moment later, James returned

to the security guard, put a gun to the

back of his head and took the guard’s

radio. With a gun in each hand, James

returned to the front of the bank. When

one of the customers raised his head,

James yelled at the customer, "You want

me to blow your God damned head off? Get

your head back down."

 While James kept watch over the people

in the bank, Tom was busy collecting

money. Immediately after entering the

bank, Tom ran to his right and jumped on

the teller counter. He ordered one of the

tellers to put money in a plastic bag and

then to get on the floor. Tom reached

into a teller’s drawer and started removing cash.

 After Tom filled a bag with money, the

Wallace brothers fled the bank with James

leading the way. Upon leaving the bank,

they were immediately confronted by the

train station security guard waiting

outside who yelled "police." A brief

shoot out ensued in which the train security guard shot James three times; Tom

dropped to the ground and immediately

surrendered. By this time, the bank security guard had emerged from the bank and

helped hold the men until Hammond police

arrived. The police recovered the bag of

cash that the Wallace brothers had stolen.
 A grand jury returned an indictment

charging both Tom and James with several

crimes related to the bank robbery. Count

1 of the indictment charged the Wallace

brothers with unarmed bank robbery in

violation of 18 U.S.C. sec. 2113(a),

armed bank robbery in violation of 18

U.S.C. sec. 2113(d), and aiding and abetting in an armed bank robbery in violation of 18 U.S.C. sec.sec. 2 and 2113(d).

Count 2 of the indictment charged that

Tom and James violated 18 U.S.C. sec.

924(c) by using a firearm during the

commission of a violent crime. James

pleaded guilty to the charges against

him, but Tom went to trial. 

 At trial, Tom admitted his guilt for

unarmed bank robbery in violation of 18

U.S.C. sec. 2113(a), but denied that he

was accountable for an armed bank robbery. Tom testified that he knew his

brother owned a gun, but denied knowing

that James had carried the gun into the

bank or used a gun during the robbery.

Tom stated that he never saw James brandish a gun while they were robbing the

bank. Finally, although Tom told the FBI

in a post-arrest statement that he

watched James throw down two guns outside

of the bank, at trial he testified that

he never saw James with a gun outside of

the bank.

 James testified at Tom’s trial and

admitted that he carried a gun into the

bank during the robbery, but said that he

could not remember whether he told Tom

that he had the weapon. James blamed his

failed memory on his drug use immediately

before the robbery. James did, however,

confirm that the brothers had planned for

Tom to get the cash while James was supposed to "take care of" the security

guard.

 The jury returned a general verdict form

which stated, "We, the jury, find the

defendant, TOM RAY WALLACE . . . Guilty

of the charge of armed bank robbery contained in Count 1 of the indictment filed

in this case." The verdict form did not

specify whether the jury found Tom directly liable for the armed bank robbery,

or whether it found him derivatively

culpable under an aiding and abetting

theory, or both. As for the charge in

Count 2 of the indictment, the jury decided that Tom was not guilty of using a
firearm during the commission of a crime

of violence. After a sentencing hearing,

the district court sentenced Tom to 180

months in prison and five years of supervised release. Tom now appeals the sufficiency of the evidence which supported

his conviction, a jury instruction, and

his sentence.

II. Analysis

 A. Sufficiency of the Evidence 

 Tom first argues that there was insufficient evidence presented at trial to hold

him liable as an aider and abettor of the

armed bank robbery./2 Challenging the

sufficiency of the evidence is an uphill

battle and the defendant bears a heavy

burden. United States v. Bradley, 196

F.3d 762, 766 (7th Cir. 1999). "We review

the evidence in the light most favorable

to the government, and we affirm the

conviction if any rational fact finder

could have found the essential elements

of the crime were established beyond a

reasonable doubt." United States v. Thornton, 197 F.3d 241, 253-54 (7th Cir.

1999).

 "To prove armed bank robbery, the government must show . . . that a bank was

forcibly robbed, 18 U.S.C. sec. 2113(a),

and that by the use of a dangerous weapon

or device, the bank robber assaulted

someone or put lives in jeopardy. 18

U.S.C. sec. 2113(d)." United States v.

Woods, 148 F.3d 843, 846 (7th Cir. 1998).

To show that Tom is guilty of aiding and

abetting in the armed bank robbery, "the

government must prove not only that [he]

knew a bank robbery would occur, but also

that a weapon would likely be used in the

crime." Id.

 Tom contends that there was insufficient

evidence to convict him of aiding and

abetting in the armed bank robbery because there was no proof that he knew

James was planning to carry a gun or that

James used a gun during the robbery. The

evidence presented at trial, however,

fails to support this argument. Viewing

the evidence in the light most favorable

to the government, as we must, there is

ample proof from which a jury could conclude that Tom knew his brother planned

to carry a gun and that James used a gun

during the bank robbery./3 
 At trial, Tom admitted knowing that

James owned a gun. The brothers specifically planned for the gun-owning James to

"take care of" the bank security guard

during the robbery. A bank security photograph shows James wielding a gun when

the Wallace brothers entered the bank and

while Tom was standing directly next to

James. Witnesses testified that when

James took the bank security guard’s gun,

James shouted at the guard, "Give me your

weapon. Get on the ground." Additionally,

when a customer raised his head, James

yelled at the customer, "You want me to

blow your god damned head off? Get your

head back down." The jury’s conclusion

that Tom knew he was aiding and abetting

in an armed bank robbery was completely

reasonable.

 Tom also points to the fact that the

jury found him not guilty of using a

firearm during a crime of violence in

violation of 18 U.S.C. sec. 924(c), but

guilty of aiding and abetting in an armed

bank robbery. According to Tom, this

"genuinely inconsistent verdict" should

require us to relax what he calls the

"strict and almost unreachable standard

for determining insufficiency of the

evidence." (Appellant’s Brief at 17-18.) 

 We reject this argument; even assuming,

as Tom does, that the jury convicted him

only under an aiding and abetting theory,

there is no inconsistency in the verdict.

To convict Tom of aiding and abetting an

armed bank robbery, the government merely

had to show that he knew that a weapon

would likely be used by someone to effect

the robbery. Woods, 148 F.3d at 846.

Because Tom could be convicted of aiding

and abetting without proof that he personally carried or used a gun, nothing

about the jury’s verdict can be inconsistent. The jury’s verdict seems to say

that Tom knew his brother used a gun

during the robbery (thus, he is guilty of

aiding and abetting), but that Tom himself never used or carried a gun (thus,

he is not guilty of the sec. 924(c)

charge). This conviction and acquittal

result is both internally consistent and

supported by the evidence./4

 B. Jury Instruction

 Tom next complains that the district

court erred when it gave the "ostrich"
instruction regarding conscious avoidance. Tom contends that there was no

evidence in the record to justify giving

the instruction. We review the district

court’s decision to give the ostrich

instruction for an abuse of discretion.

United States v. Trigg, 119 F.3d 493, 504

(7th Cir. 1997); United States v. Walker,

25 F.3d 540, 546 (7th Cir. 1994).

 "The ostrich instruction is properly

given in cases ’in which there is evidence that the defendant, knowingly or

strongly suspecting that he is involved

in shady dealings, takes steps to make

sure that he does not acquire full or

exact knowledge of the nature and extent

of those dealings. A deliberate effort to

avoid guilty knowledge is all the guilty

knowledge the law requires.’" United

States v. Fauls, 65 F.3d 592, 598 (7th

Cir. 1995) (quoting United States v.

Giovannetti, 919 F.2d 1223, 1229 (7th

Cir.1990)). The instruction is appropriate "when a defendant claims a lack of

guilty knowledge and there are facts and

evidence that support an inference of

deliberate ignorance." Walker, 25 F.3d at

546.

 The district court acted well within its

discretion by giving the instruction in

this case. Tom testified that he did not

know that James was going to bring a gun

to the robbery and denied knowing that

James ever used a gun during the robbery.

And, although he told an FBI agent differently in a post-arrest statement, Tom

claimed at trial that he never saw James

discard two guns as they fled the bank.

By testifying that he had no knowledge of

his brother’s use of guns during the

robbery, Tom made the ostrich instruction

applicable. 

 C. Sentence

 Finally, Tom asserts that the district

court should not have applied the sentencing enhancement of U.S.S.G. sec.

2B3.1(b)(2)(B) which requires district

courts to increase a defendant’s offense

level by six points "if a firearm was

otherwise used" during a robbery. We

review the district court’s application

of this Guideline de novo, United States

v. Gordon, 64 F.3d 281, 283 (7th Cir.

1995), and review its findings of fact

for clear error. United States v. Pigee,
197 F.3d 879, 892 (7th Cir. 1999); United

States v. Romero, 189 F.3d 576, 589 (7th

Cir. 1999).

 Although his sentencing arguments are

difficult to understand, Tom seems to

contend that the district court should

not have applied the sec. 2B3.1(b)(2)(B)

enhancement because he was acquitted of

using a firearm during a crime of violence, 18 U.S.C. sec. 924(c). To the

extent that this is a legal argument, it

fails; the Guidelines explicitly require

the enhancement for convictions under 18

U.S.C. sec. 2113. Here, because the jury

found Tom guilty of aiding and abetting

an armed bank robbery in violation of 18

U.S.C. sec. 2113(d), the enhancement must

apply. His acquittal on the separate sec.

924(c) count bears no relationship to the

mandatory application of U.S.S.G. sec.

2B3.1(b)(2)(B). See United States v.

Cover, 199 F.3d 1270, 1277 (11th Cir.

2000).

 To the extent that Tom means to make a

factual argument that the enhancement

should not apply because there was not

enough evidence to support the finding

that "a firearm was otherwise used," he

is also incorrect. As we have explained,

there was more than sufficient evidence

at trial to show that Tom knew his brother either planned to carry a gun or that

he actually used a gun during the robbery. Under the Guidelines, the weapon

was attributable to Tom because he aided

and abetted in its use. See U.S.S.G. sec.

1B1.3(a)(1)(A); United States v. Bolden,

132 F.3d 1353, 1356 (10th Cir. 1997)

(sentencing enhancement for using a gun

during an armed robbery appropriate even

though defendant never personally used

the gun because defendant aided accomplice in committing the crime); United

States v. Burton, 126 F.3d 666, 678-79

(5th Cir. 1997) (same). The district

court’s factual findings more than adequately support the enhancement.

III. Conclusion

 Affirmed.

/1 Tom Wallace’s brother, James Wallace, was Tom’s

codefendant and played a significant role in the

facts of this case. Therefore, to avoid confu-
sion, we refer to each Wallace brother by his

first name.

/2 As previously noted, Count 1 of the indictment

charged Tom with three separate crimes--(1)

unarmed bank robbery, (2) armed bank robbery, and

(3) aiding and abetting an armed bank robbery.

The general verdict finding Tom guilty of "armed

bank robbery contained in Count 1 of the indictment" did not indicate whether the jury convicted

him only under a direct theory of liability, or

whether it found him responsible only under an

aiding and abetting theory, or both. Tom’s arguments on appeal assume that the jury only convicted him of aiding and abetting the armed bank

robbery. Although the government credibly contends that there was enough evidence to support

a finding of direct liability for the armed bank

robbery, the government seems to accept Tom’sassumption for purposes of argument. While we express no opinion on the subject, we will analyze

the issues in this appeal as though Tom were

convicted only as an aider and abettor.

/3 Tom also asks us to decide whether the government

had to prove that he had "actual" versus "constructive" knowledge that his brother used a gun

during the robbery. Because we find plenty of

evidence to show that Tom had actual knowledge of

the gun, we need not resolve this issue. See

Woods, 148 F.3d at 346.

/4 Even if the verdict were, as Tom puts it, "genuinely inconsistent," this would not be grounds

for a reversal or new trial. See United States v.

Mitchell, 146 F.3d 1338, 1343-45 (11th Cir. 1998)

(verdict containing a conviction for armed robbery under 18 U.S.C. sec. 2113(d) and an acquittal on charge under 18 U.S.C. sec. 924(c) does

not warrant reversal); United States v. McCall,

85 F.3d 1193, 1197-98 (6th Cir. 1996) (same); see

also United States v. Akram, 152 F.3d 698, 701

(7th Cir. 1998) ("we do not recognize any doctrine whereby a conviction under one count must

be set aside because it appears inconsistent with

a jury’s acquittal on a different count"); United

States v. Castillo, 148 F.3d 770, 775 (7th Cir.

1998) ("we have refused to afford defendants who

face inconsistent verdicts the benefit of a

nullification of the guilty verdicts . . . we

refuse to question the wisdom of the jury’s

verdict in this manner").