### The Hon. Charles R. Wolle, Chief Judge, United State s 1 

### District Court for the Southern District of Iowa. _____________ No. 96-1913SI

_____________ United States of America, * * Appellee. * * On Appeal from the United v. * States District Court * for the Southern District * of Iowa. Warren Allen Dittrich, * * Appellant. *

___________ Submitted: October 21, 1996 Filed: November 7, 1996

___________ Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and BEAM, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge.
This is a prosecution for armed robbery of a United States Posta l Substation, in violation of 18 U.S.C. § 2114(a). The defendant, Warre n Allen Dittrich, was convicted after a jury trial. The government the n proc eeded against him at sentencing under 18 U.S.C. § 3559(c), whic h requires a mandatory sentence of life in prison for certain violent felons
. Th e District Court found that Dittrich had been convicted of thre e 1 "serious violent felonies" within the meaning of that statute, including the instant offense a nd two previous convictions, and, therefore, imposed a sentence of

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life in prison. Dittrich appeals from his conviction and sentence , conten ding, among other things, that the evidence was insufficient t o justify convicting him of the predicate offense, and that the two previous convictions on which the District Court relied do not qualify as "serious vio lent felonies" for purposes of the statute imposing a mandatory lif e sentence. We affirm.
On April 28, 1995, the Jubilee Foods supermarket in Council Bluffs, Iowa, was robbed. A man entered the store and walked up to the servic e desk. A sign above the desk stated that the store was a location of a United States Postal Substation. The man pulleda gun and demanded money, and the store clerk gave him money and money orders contained in the drawe r assigned to the Postal Substation. The man then left.

The defendant Dittrich meets the general description of the robbe r given by the store cl erk. In addition, a surveillance video tape shows a person of the same general appearance, though ne ither the testimony of the store clerk nor the t ape could be the basis of a positive identification, the robber having dis guised himself with a hat, sunglasses, and band-aids on his face. Two peo ple fled from the scene of the crime in a red Nissan truck, stipulated to be the vehicle regularly operated by Dittrich
. Beginning on the night of that same day, Dittrich caused three postal mone y orders, positively identified as having been taken in the robbery, to be cash ed. And, after being arrested, Dittrich offered money and othe r inducements to one Roger Light, a fellow inmate, to confess to the robbery
. In order to aid Light in committing this perjury, Dittrich wrote out, in his own hand, an acco unt of the crime, in which the actions of the robber
were referred to in the first person. Light was called as a witness in th e govern ment's case in chief, and during his testimony the handwritte n accoun t prepared by Dittrich, which could reasonably be understood a s amounting to a confession, was introduced into evidence.

### -3- We have no difficulty in holding that this evidence was sufficien t to make a jury issue of Dittrich's guilt. Defendant suggests that th e evidence makes it equally likely that he was the driver of the getaway car , and not the actual ro bber, and some of the evidence, to be sure, would be consistent with a conclusion that Dittrich was merely one of the two peopl e invo lved in the crime, perhaps not himself the actual robber. Othe r eviden ce points strongly to Dittrich as having committed the robber y himself, notably his actions in attempting to bribe Light to commi t perjury, and in furnishing Light with an account of the crime that could reasonably be understood to portray Dittrich as the man who entered th e store, pointed the gu n at the clerk, and took the money and money orders.

It is our duty to consider the evidence in the light most favorable to t he government when evaluating a contention that the evidence wa s insufficient, and thi s evidence was ample to justify a reasonable jury in concl uding beyond a reasonable doubt that Dittrich was the robber. W e therefore reject Dittrich's first contention on appeal.

Defendant argues that the two previous convictions used against him in the Dis trict Court do not qualify under the statute, the so-calle d three-strikes-and-you're-out law. The first conviction was one for assaul t wit h intent to inflict bodily injury in Nebraska. This offense was a felony, punishable by up to twenty years in prison. The statute, 18 U.S.C
. § 3559(c)(2)(F)(ii), includes among the qualifying felonies "any . .
. offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use o f physical force against the person of another . . .." This previou s conviction, to which Dittrich pleaded guilty, wa s for choking a woman with
a scarf. The definition fits. The crime of assault with intent to inflic t bod ily injury does include as an element at least the attempted o r threatened use of physical force against the

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person of another.

The second previous conviction was for voluntary manslaughter i n Californi a. Dittrich was convicted of this crime on a plea of nol o contendere. Again, the statute applies in accordance with its expres s words. "[M]anslaught er other than involuntary manslaughter" is among the offenses listed in the statute as a "serious violent felony." 18 U.S.C. § 3559(c)(2)(F)(i).
Dittrich next argues that it was error to allow the government t o present the testimony of Roger Light, the person whom Dittrich bribed to testify falsely that he was the robber, in its case in chief. We see no error. Bribing another person to take the blame for the crime charge d shows consciousness of guilt, a fact relevant to the guilt or innocence of the defendant. Evidence of consciousness of guilt is routinely admitted against defendants in criminal cases, in the form of flight, threatening
a witness, subornation of perjury, and the like. Decisions as to the orde r of proof lie within the sound discretion of the district courts, and we se e no legal problem with the decision of the District Court in this case to permit the government to call Light in its case in chief, instead o f waiting for a rebuttal.
Dittrich makes a number of constitut ional arguments. He claims that the three-strikes sta tute violates the Double Jeopardy Clause, because it causes h im to be punished anew for crimes of which he had already bee n convicted. He also claims that the penalty of life in prison is a cruel and unusual punishment in violation of the Eighth Amendment. Both of thes e contentions are foreclosed by United States v. Farmer , 73 F.3d 836 (8t h Cir.), cert. denied , 116 S. Ct. 2570 (1996). We are bound by thi s decision. One panel of this Court is not free to disregard the previous ruling of another panel. Farmer is directly in point.
Dittrich additionally argues that the statute defining the

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underlying felony, robbery of a person having lawful custody of any mail matter or money or other property of the United States, is unconstitutiona l under the Tenth Amendment. The argument seems t o be that robbery is among tho se crimes traditionally punished by states, that the robber, when h e entered the food store, had no idea that a Posta l Substation was contained in it, a nd that no federal crime would have been committed had not th e store clerk chosen to hand Dittrich money and mo ney orders from the postal dra wer. She could have given the robber non-postal money, out of th e store's general receipts for sale of merchandise. We reject thes e argum ents. Under Article I, Section 8, Clause 7, of the Constitution , Congress has authority "[t]o establish Post Offices and post Roads." In addition, under Article I, Section 8, Clause 18, Congress has the authorit y to make all laws necessary and proper for carrying into effect it s enume rated powers, including the post-office power. A law making it a crime to steal property from a Post Office is well within even th e narrow est construction of the Necessary and Proper Clause. Defendan t appears to concede that it is not necessary for one to know that mone y taken is postal money , so long as that is the fact. And, in any event, a sign stati ng that a Postal Substation was being operated in the stor e appeared r ight over the service desk at which the robbery took place
. Pos tal funds and property were in fact taken at gunpoint, and that i s enough to satisfy both the statute and the Constitution.
Dit trich has filed a pro se supplemental brief, which we hav e conside red. In addition, he has made a motion for leave to correct hi s brief, and we grant the motion. None of the points urged in Dittrich' s brief is substantial. We do not believe they deserve discussion.

We appreciate the diligent and vigorous service of Dittrich' s appointed counsel.

### -6- The judgment is affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.