UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-1776

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL FRED BUCHNER,

Defendant-Appellant.

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Appeal from the United States District Court for the

Northern District of Texas

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(November 10, 1993)

( )

Before GARWOOD, DAVIS and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Daniel F. Buchner (Buchner) appeals his

bank robbery conviction asserting that the district court erred in

its jury instruction on a lesser included offense and in its denial

of his motion to suppre ss evidence obtained as a result of a

warrantless search. We affirm.

Facts and Proceedings Below

On the morning of January 10, 1992, a Bank One branch in

Dallas, Texas, was robbed. The robber was described as a 35-yearold whi te male with a mustache and graying dark hair wearing an2

oversized sweater, casual pants, and black shoes. The robber was

said to have displayed an automatic pistol and ordered bank tellers

to place money in a tan-colored shoulder bag. During the robbery

one of the tellers placed a tracking device on bands of money given

to the robber.

Officer Todd Wellhouse (Wellhou se) heard about the robbery

through a radio dispatch. Within fifteen minutes of the dispatch,

Wellhouse, using the tracking device, traced the stolen money to a

LaQuinta motel. Upon reaching the motel, Wellhouse parked directly

behind a white Oldsmobile, which had been rented earlier that day

to Buchner's girlfriend, Maria Farris. As he exited the police

car, Wellhouse observed Buchner walking on a second floor balcony

at the motel. After seeing Wellhouse, Buchner suddenly retreated

into his motel room. Wellhouse, noting Buchner fit the description

of the bank robber, proceeded up the motel stairway towards

Buchner's room. After reaching the second floor, Wellhouse looked

down and noticed that the Oldsmobile had a black shoulder bag

sitting on the front seat. Wellhouse went back downstairs to the

car and saw a toy gun lying on th e floor and something green

visible through an inch l ong opening in the shoulder bag.

Wellhouse then opened the door of the car, unzipped the bag and saw

a large amount of money inside. The police later confirmed that

the money found had been stolen from Bank One. Thereafter Buchner

was later indicted for bank robbery in violation of 18 U.S.C. §

2113(a).

During the trial Buchner requested that the jury be charged on

what he claimed was the lesser included offense of possession of1 The instructions requested by Buchner were essentially the

same as those contained in the Fifth Circuit pattern jury

instructions. U.S. F IFTH C IRCUIT D ISTRICT J UDGES A SSOCIATION

, P ATTERN

J URY I NSTRUCTIONS

- C RIMINAL C ASES §1.32 (1990). These pattern

instructions were developed by district judges in this Circuit to

serve as a guideline. The pattern instructions, while

persuasive, are not binding on this Court.

2 The jury, on its verdict form, found Buchner guilty of both

bank robbery and possession of stolen money even though the judge

only instructed the jury to consider Buchner's guilt under the

3 stolen bank property contrary to 18 U.S.C. § 2113(c), and that the

following instruction be given in that connection:

"We have just talked about what the go vernment has to

prove for you to convict the Defendant of bank robbery,

as charged herein. Your first task is to decide whether

the Government has p roved, beyond a reasonable doubt,

that the Defendant committed that crime. If your verdict

on that is guilty, you are finished. But if your verdict

is not guilty, or if you are unable to reach a verdict as

to the Defendant's guilt of the offense of bank robbery

, as charged herein, you should go on to consider whether

the Defendant is guilty beyon d a reasonable doubt of

possession of stolen bank property, as will be defined

for you." 1 (Emphasis added).

The district court agreed to Buchner's request that the jury be

charged on possession o f stolen bank property as an included

offense, but denied Buchner's requested form of instruction and

gave instead the following jury instruction:

"[I]f you should find the Defendant Daniel Fred Buchner

not guilty of the offense charged in the indictment, then

you must proceed to determine his guilt or innocence as

the lesser included offense of possession of stolen bank

property, here money." (Emphasis added).

The jury was instructed shortly thereafter that its "verdict must

be unanimous; that is all of you must agree to each answer."

On June 5, 1992, the jury found Buchner guilty of bank

robbery. The jury also found Buchner guilty of possession of

stolen bank property. 2 Buchner argued that the verdict waslesser offense if they found Buchner not guilty of the greater

offense.

3 On appeal Buchner makes no complaint respecting the court's

acceptance of the verdict of guilty of robbery while disregarding

the verdict of guilty of possession of stolen bank property; nor

is any appellate complaint made as to not returning the jury for

further deliberations or not instructing them further after the

verdict was returned. Nor does Buchner complain on appeal that

possession of stolen bank property was submitted as an included

offense.

4 inconsistent and requested that the jury be allowed to deliberate

further. The court denied the request, but confirmed the jury's

guilty verdict of bank robbery by conducting a poll of the jurors.

The district court disregarded the jury's verdict of guilty of

possession of stolen bank property. Buchner was sentenced to 240

months' imprisonment and 3 years of supervised release.

On appeal, Buchner asserts that the trial court's refusal to

give his requested lesser included offense instruction constituted

reversible error because the instruction given did not allow the

jury to consider the defendant's guilt of possession of stolen bank

property unless it first unanimously acquitted him of bank robbery.

He asserts that the jury should have been told to also consider the

possession offense if it was unable to agree on the robbery charge.

Buchner also argues that the district court's characterization of

possession of stolen bank property as a "lesser" offense improperly

injected an element of punishment into the jury's del iberations. 3

In addition, Buchner argues that Wellhouse's warrantless search of

his shoulder bag was unlawful, and therefore its fruits should have

been suppressed.5 Discussion

I. Lesser Included Offense Instruction

The Supreme Court in United States v. Gaddis held that receipt

or possession of stolen bank property in violation of 18 U.S.C. §

2113(c) is not a lesser included offense of bank robbery under

sections 2113 (a), (b), and (d). 96 S.Ct. 1023, 1026 (1976).

Therefore, under Gaddis Buchner was never entitled to have the

offense of possession of stolen bank property submitted to the jury

in any form. Buchner contends, however, that G addis is not

controlling here because the term "lesser inc luded offense" in

Gaddis was used in the context of a discussion about the doctrine

of merger, not included offense jury instructions. We reject this

contention.

Most courts have applied one of three tests to determine when

an offense not specifically charged may be deemed a lesser included

offense of another, greater charged offense. S ee generally United

States v. Browner

, 937 F.2d 165, 167-68 (5th Cir. 1991). The first

and most expansive of t hese three tests is the inherent

relationship test. Under this test, a lesser included offense

instruction may be appropriate when the lesser offense is

established by the evidence presented at trial in proof of the

greater offense. Under this approach there must be "'an "inherent"

relationship between the greater and the lesser offenses, i .e

. ,

they must relate to the protection of the same interests, and must

be so rel ated that in the general nature of these crimes, . . .

proof of the lesser offenses is necessarily presented as part of

the showing of the commission of the greater offense.'" I d

. at 1676

(citing United States v. Whittaker

, 447 F.2d 314, 319 (D.C. Cir.

1971).

The second test is th e pleading or indictment theory test.

Under this test a jury is generally a llowed to consider a lesser

offense if that offense is contained within the language of the

indictment or information as the means by which the charged greater

offense was committed. Browner at 168.

The third and most restrictive test is the statutory elements

test. Under this approach an offense is not a lesser included

offense unless each statutory element of the lesser offense is also

present in th e greater offense. I d

. at 168. This Court in

Browner interpreted the Supreme Court decision in Schmuck v. United

States

, 109 S.Ct. 1443 (1989), as adopting the statutory "elements"

test for purposes of determining when a federal criminal defendant

is entitled to a lesser included offense instruction. 937 F.2d at

168 (stating Supreme Court adopted the elements test for purposes

of evaluating "necessarily included" offense under Federal Rule of

Criminal Procedure 31(c)). Therefore, in accordance with the

"elements" theory test, Buchner i s only entitled to a lesser

offense instruction if the elements of the lesser offense are a

subset of the elements of the charged offense. S chmuck

, 109 S.Ct.

at 1450.

Bank robbery, pursuant to 18 U.S.C. § 2113(a), requires as an

element of the offense that propert y or money be taken from the

bank. Receipt or possession of stolen bank proceeds, pursuant to

section 2113( c) requires the knowing possession, receipt, or

concealment of property or money "which has been taken or stolen7

from a bank." (Emphasis added). Buchner asserts that as a bank

robber knowin gly possesses the money stolen from a bank, the

elements required to prove possession of stolen bank proceeds

necessarily is a subset of the elements of bank robbery.

Buchner's interpretation of section 2113(c) is not consistent

with its purpose. The Supreme Court in G addis stated that section

2113(c) was i ntended for those persons who receive the stolen

property f rom the bank robber. 96 S.Ct. at 1026. The Court in

Gaddis noted that "'Congress was trying to reac h a new group of

wrongdoers, not to multiply the offense of the bank robbers

themselves.'" I d

. at 1026 (quoting Heflin v. United States

, 79

S.Ct. 451 (1959)). Under the Supreme Court's interpretation, to be

con v icted under section 2113(c) the defendant's possession or

receipt of the stolen bank proceeds must occur after the robbery

has taken place. That is consistent with the wording of section

2113(c), which requires that the property possessed be that which

"has been" taken or stolen. Therefore, the act of bank robbery

under section 2113(a) cannot be a subset of receipt or possession

of stolen bank proceeds under section 2113(c).

Buchner's own story is illustrative of the type of wrongdoers

at which section 2113(c) is aimed. Buchner testified at trial that

he had received the money found in his black shoulder bag from a

person named Tony Shannon as payment on a debt. Buchner stated

that he did not know the money was stolen from the bank until after

he noticed large numbers of one and five dollar bills in the bag.

He argues that if the jury found he knew the money had been stolen

from the bank, he could be found guilty under section 2113(c).4 However, Buchner invited this error at trial and does not

complain of it on appeal; indeed, on appeal he urges it was not

error. There was no miscarriage of justice. The evidence

against Buchner was overwhelming. The jury was told to first

consider Buchner's guilt or innocence for the greater, charged

offense of bank robbery. After deliberating about the greater

offense, the jury found Buchner guilty of it. In addition, the

jury was polled and each juror said that his verdict on bank

robbery was guilty. The lesser included offense instruction did

not affect the judgment. Buchner was properly convicted of the

indicted offense.

5 Buchner's argument respecting the wording of the lesser

included offense charge is based on two other circuit court

decisions, United States v. Tsanas , 572 F.2d 340, 345-46 (2d Cir.

1978), cert. denied , 435 U.S. 995 (1978) (if the defendant

expresses a choice between the two forms of instructions, similar

to that requested by Buchner and that given by the district

court, the court should give the form of instruction the

defendant seasonably elects), and United States v. Jackson , 726

F.2d 1466, 1469 (9th Cir. 1984) (reversible error for the

district court to give an instruction that did not allow the jury

to consider the lesser offense at all unless the jury first

unanimously acquitted the defendant of the greater offense).

This Circuit has never addressed this precise issue. We note,

however, that to give the form of instruction requested by

Buchner may as a practical matter remove some of the district

court's discretionary control in deciding how long a deadlocked

jury should deliberate in a given case. Under a Buchner-type

instruction, the jury might only briefly deliberate about a

8 How ever, under Buchner's own story his possession of the stolen

bank proceeds was clearly separate from and subsequent to the bank

robbery, and was not encompassed in the language of the one-count

indictment charging robbery of the bank.

Buchner was not entitled to any lesser incl uded offense

instruction. In fact, as Buchner was indicted under only section

2113(a), the cour t should not have submitted the section 2113(c)

offense to the jury at all. 4 Therefore, we decline to resolve the

question whether the language used in the district court's lesser

included offense jury instruction was erroneous in the respects

complained of by Buchner. 5 Even if Buchner's is the preferred formgreater charge and, because of initial disagreement among the

jurors, move relatively quickly to deliberations about the lesser

included charge. Here, the district court, in refusing Buchner's

requested instruction, stated "if they're having trouble in

reaching a verdict then we'll know that and this is without

prejudice to giving them an additional clarification if they ask

for it."

9 of charge where it is proper to submit a lesser included offense to

the jury, the failure to use that form is neither error nor

prejudicial where, as here, the alternative offense is not a lesser

included offense and should not be submitted to the jury in any

form.

For the same reason, we reject Buchner's argument that the

district court's characterization of possession of stol en bank

property as a "lesser" offense improperly injected the element of

punishment into the jury deliberations.

The jury is not allowed to consider a defendant's potential

sentence as part of its deliberations. U nited States v. Del Toro,

426 F.2d 181, 184, (5th Cir. 1970), cert. denied, 400 U.S. 829

(1970) (noting that the jury's function is to find guilt or

innocence and the judge's function is to impose the sentence).

However, knowledg e on the part of jurors that one crime is more

serious than another does not necessarily infuse punishment into

their deliberations. The district court specifically informed the

jury that the court was responsible for the imposition of the

penalty and that the jury should not consider or discuss the

defendant's p ossible punishment. The jury's awareness that one

crime is more serious than another does not imply that a

defendant's potential sentence was used as part of the jury6 The district court ruled that Farris consented to the search

of the vehicle. This issue is not addressed, however, as the

government concedes that Farris' consent was subsequent to

Wellhouse's search of the shoulder bag. In addition, the

district court upheld the search based on the plain view

doctrine.

10 deliberations. Buchner's argument that the use of the term

"lesser" offense improperly injected an element of punishment into

the jury deliberations is without merit.

II. Suppression of Evidence

Buchner argues that the distri ct court erred in denying his

motion to suppress the evidence found as a result of Wellhouse's

warrantless s earch of the shoulder bag found in Maria Farris'

rental car. Buchner challenges the district court ruling that (1)

he lacked standing to object to the search of the shoulder bag and

(2) that the search was proper based on the facts. 6

A district court's ruling on a motion to suppress is reviewed

under a clearly erroneous standard as to the facts and de novo for

questions of law. U nited States v. Seals

, 987 F.2d 1102, 1106 (5th

Cir. 1993), cert. denied , 62 U.S.L.W. 3247.

A. Standing

The owner of a suitcase located in another's car may have a

legitimate expectation of privacy with respect to the contents of

hi s suitcase. U nited States v. Kelley, 981 F.2d 1464, 1467 n.1

(5th Cir. 1993), cert. denied, 113 S.Ct. 2427. Buchner testified

that he was the owner of the shoulder bag searched by Wellhouse.

As the owner of the shoulder bag, Buchner had a legitimate

expectation of privacy with respect to the contents of the bag and

standing to object to any governmental search of the bag.11

Therefore, the district court erred in finding that Buchner did not

have standing to challenge the search.

B. Probable Cause

Except for a few specifically established exceptions,

warrantless searches are per se unreasonable. K atz v. Un ited

States, 88 S.Ct. 507, 514 (1967). However, under the automobile

exception police may conduct a warrantless search of an automobile

and any containers therein if they have probable cause to believe

that it contains contraband or evidence of crime. C alifornia v.

Acevedo, 111 S.Ct. 1982, 1991. Thus, Wellhouse's search of the

shoulder bag must be supported by probable cause though a warrant

was not necessary.

A probable cause determination should be based on the totality

of the circumstances. I llinois v. Gates, 103 S.Ct. 2317, 2332

(1983). The evidence in support of probable cause "must be viewed

in light of the observations, knowledge, and training of the law

enforcement officers involved in the warrantless search." United

St ates v. Muniz-Melchor, 8 94 F.2d 1430, 1438 (5th. Cir.), cert.

denied, 495 U.S. 923 (1990).

The district court credited the testimony of Wellhouse. Under

the district court's findings, at the time of the search Wellhouse

was aware of the following: (1) the tracking device that had led

Wellhouse to the motel continued to beep; (2) a man fitting the

physical description of the robber but wearing differ ent clothes

had been on the balcony a nd had retreated into a motel room upon

seeing Wellhouse; (3) the robber was reported as having had a tan

leather shoulder bag and an automatic pistol; (4) there was a toy7 It is unclear if Wellhouse knew whether the gun was a toy.

However, regardless of whether the gun was real, its presence

along with the shoulder bag increases suspicion that it was used

in the bank robbery.

8 United States v. Muniz-Melchor , 894 F.2d 1430, 1439 n.9 (5th

Cir. 1991) ("The ultimate determination as to probable cause for

a warrantless search seems to be a question of law for this Court

to decide."). Cf. United States v. Basey , 816 F.2d 980, 988 (5th

Cir. 1987) ("[t]he ultimate determination of reasonableness in

investigatory stop cases is [] a conclusion of law").

12 revolver on the floor of the Farris car; and (5) a black leather

bag with a "spot of green" seen through an inch-long opening in the

bag was on the front seat of the Farris car. Wellhouse further

stated that he suspected that the bag was the robber's because of

the presence of the gun, 7 the type of bag (a shoulder bag), and the

fact the tracker continued to beep. Based on the totality of the

circumstances and Wellhouse's experience and observations, a

determination that sufficient probable cause existed to conduct a

warrantless search of the bag inside of the vehicle is supported.

As probable cause is supported by the determined facts, it is

essentially established as a matter of law. 8

Conclusion

Buchner's appeal presents no reversible error. His conviction

and sentence are accordingly

AFFIRMED.