UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 93-8167

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UNITED STATES OF AMERICA,

Plaintiff/Appellee,

VERSUS

WOODROW WILSON BAKER, JR.

Defendant/Appellant.

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Appeal from the United States District Court

For the Western District of Texas

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Before POLITZ, KING and DAVIS, Circuit Judges.

DAVIS, Circuit Judge:

Woodrow Wilson Baker, Jr. challenges his conviction of two

counts of aiding and abetting attempted bank robbery. For the

reasons that follow, we affirm.

I.

Woodrow Wilson Baker, Jr. drove 11-year old Ricardo

Constancio, Jr. to the Guaranty National Bank in Killeen, Texas and

gave Ricardo a note to give to a teller. The note read:

Please put all of your following bills in my bag: tens,

twenty's, fifty's, hundred's. Don't put any dye or gas bombs.

Please don't make me make this place red with blood. Don't

think because I am small I can't do this. Please don't make

[me] prove it.

Ricardo, who was 4 feet, 8 inches tall, weighed 70-80 pounds, and

was dressed in an oversized t-shirt and jeans, did not read the

note.
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The teller, Barbara Hawkins, recognized Ricardo because he had

been at the bank earlier picking up coin wrappers at Baker's

behest. When he gave her the note, she was surprised and

incredulous and asked who had written it. He told her to keep

reading. After reading the note, Hawkins told Ricardo she was

going to make a copy of it, and he demanded the note back. She

testified that she "was skeptical about turning my back, but I just

had -- I felt I had to get a copy of the note." She was unable to

make a clear copy because the note was written on a brown paper

bag. When she returned to the counter, Ricardo, ready to leave,

demanded that she return the note. Hawkins wanted to keep it for

"evidence" but gave it back to Ricardo because she felt threatened;

she testified that her "knees kind of buckled." Ricardo left the

bank.

Baker then drove Ricardo to the Round Rock Bank and told him

if he "messed this up, he was really going to do something bad" to

the boy. By this time, Ricardo had seen enough of the note to

realize that it demanded money. He presented it to a teller, Cindy

Keim, who asked Ricardo, "Why are you doing this?" but Ricardo just

stood and smiled. Keim also testified that Ricardo's eyes were

bloodshot and that she didn't know if he was under the influence of

something. Keim decided the note was serious and started to give

Ricardo some money, but she changed her mind when the bank security

officer approached and began talking to Ricardo. She tripped the

alarm and took the note to her supervisors, telling them that "it's

real, he's out there." While she was gone, Ricardo left the bank.

Baker was indicted for two counts of aiding and abetting
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attempted bank robbery in violation of 18 U.S.C. § 2113(a) and 18

U.S.C. § 2. A jury convicted him of both counts, and he was

sentenced to a total of 262 months imprisonment followed by three

years of supervised release. Baker timely appealed.

II.

Baker first challenges his conviction on the ground that

Ricardo would not have intimidated a reasonable person under the

circumstances, and that therefore, the government failed to prove

an essential element of the crime for which he was convicted. In

evaluating the sufficiency of the evidence, this court must

determine whether a rational jury could have found evidence

establishing intimidation beyond a reasonable doubt. United States

v. Ivey, 949 F.2d 759 (5th Cir. 1991), cert. denied, __ U.S. __,

113 S. Ct. 64 (1992). This court considers the evidence in the

light most favorable to the verdict, accepting all reasonable

inferences that support the jury's verdict. Glasser v. United

States, 315 U.S. 60, 80, 62 S. Ct. 457 (1942).

In order to prove a violation of 18 U.S.C. § 2113(a), the

government must prove: 1) an individual or individuals, 2) used

force and violence, or intimidation, 3) to take or attempt to take,

4) from the person or presence of another, 5) money, property, or

anything of value, 6) belonging to or in the care, custody,

control, management or possession, 7) of a bank, credit union, or

savings and loan association. United States v. Van, 814 F.2d 1004,

1005-06 (5th Cir. 1987). Under § 2113(a), bank robbery is made

criminal when it involves "force and violence, or intimidation":

Intimidation occurs when one individual acts in a manner that

is reasonably calculated to put another in fear. . . . [F]rom
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the perspective of the victim, a taking 'by intimidation'

under section 2113(a) occurs when an ordinary person in the

teller's position reasonably could infer a threat of bodily

harm from the defendant's acts.

United States v. Higdon, 832 F.2d 312, 315 (5th Cir. 1987)(internal

quotations omitted), cert. denied, 484 U.S. 1075 (1988).

Baker argues that a reasonable person would not have been

intimidated by a young, small, mild-mannered boy who was dressed in

clothing that made it apparent he was not hiding a gun. He relies

on United States v. Wagstaff, 865 F.2d 626 (4th Cir. 1989), cert.

denied, 491 U.S. 907, in which a conviction for bank robbery was

overturned for insufficiency of evidence of intimidation. In

Wagstaff, a man entered the bank, put on a ski mask, walked into

the teller's area and began taking money from the cash drawer. He

was never close to a teller, presented no note, carried no weapon,

and said nothing to anyone. The Fourth Circuit held that although

the nearest teller said she felt frightened, these facts were

insufficient to constitute intimidation because her fear was not a

"reasonable fear of bodily harm based on the acts of the

defendant." Id. at 629.

This case is distinguishable. Ricardo presented a note

containing an express threat of bodily injury. Although both

tellers testified that at first they did not believe the boy was

serious, they both became fearful and felt threatened. The first

teller testified that she was hesitant to turn her back on the boy,

and that her knees buckled. The second teller testified that she

was ready to give Ricardo money when the security officer

approached. Evidence that the perpetrator's acts "did induce fear

in an individual victim is probative of whether his acts were
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objectively intimidating." Higdon, 832 F.2d at 315.

Making all inferences in favor of the verdict, a reasonable

jury could rationally find intimidation. As the government argued

in closing, it is not necessary to show that the intimidating

behavior was so violent as to cause terror, panic or hysteria. The

government need show only that an ordinary person in the teller's

position would feel a threat of bodily harm from the perpetrator's

acts.

The language of the note was frightening. It threatened, "to

make this place red with blood." Although Ricardo was young, the

note expressly advised the tellers not to dismiss his ability to

carry out the threat because of his size. The evidence does not

establish that Ricardo was incapable as a matter of law of

committing violence in accordance with the express threat in the

note. The jury saw Ricardo and heard him testify. They also heard

the evidence, including the bank tellers' testimony concerning all

the circumstances surrounding the incidents. The jury was

therefore in a unique position to evaluate the reasonableness of

the tellers' assertions of intimidation. We decline to second

guess their finding on this issue.

III.

Baker next challenges the jury instructions, arguing that the

jury was told it could convict on the basis of Baker's intimidation

of Ricardo, rather than Ricardo's intimidation of the bank tellers.

When reviewing the propriety of a jury instruction, this court

determines whether the charge, as a whole, is a correct statement

of the law. United States v. Stacey, 896 F.2d 75, 77 (5th Cir.
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1990). As long as the jury charge accurately reflects the law and

the facts of the case, a district judge is vested with broad

discretion in formulating the charge, and this court will not

lightly disturb the district court's judgment. United States v.

Casto, 889 F.2d 562, 566 (5th Cir. 1989), cert. denied, 493 U.S.

1092 (1990).

In its jury charge, the trial court first instructed the jury

that "§ 2113(a) makes it a crime for anyone to take or attempt to

take from the person or presence of another, by force or violence

or by intimidation, any money in the possession of a federally

insured bank." The court then explained the four elements of the

offense:

First, that the Defendant knowingly, intentionally, and

willfully caused Ricardo Constancio to attempt to take money

from the person or presence of [the named teller] on or about

July 31, 1992;

Second, that the money was then in the possession of [the

bank];

Third, that [the bank] is a federally insured bank; and

Fourth, that the Defendant or Ricardo Constancio did so by

means of force or violence or by means of intimidation.

At trial, Baker objected to court's above explanation of the fourth

element. He argues here that this part of the charge is erroneous

because the disjunctive language, "Defendant or Ricardo Constancio

did so," allowed the jury to find the necessary intimidation based

on Baker's intimidation of Ricardo rather than based on Ricardo's

intimidation of the tellers inside the banks.

The government contends that reading the charge as a whole,

the most logical construction is that Baker aided or abetted

Ricardo in taking money from the bank by intimidation. The

government argues that the court made this clear when it instructed
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that "the essence of the offense is the taking of money ... aided

and accompanied by intentional, intimidating behavior on the part

of the defendant." The government argues that this shows that the

court linked the acts of intimidation to the taking of the money.

In the court's explanation of the fourth element of the

offense, the government contends that the court sought to focus on

Ricardo's acts of intimidation rather than Baker's threats against

Ricardo. The government argues that the term "did so" relates back

to the taking of the money and refers to the way the money was

taken. The government argues that the use of the word "or" is

appropriate because Baker actually wrote the threatening note used

by Ricardo. In other words, the government contends that a

reasonable jury would understand this language as an instruction

that the jury could convict if it found that Baker, acting through

Ricardo, intimidated the tellers.

The closing argument reflects that the government advanced

this interpretation of the charge to the jury. The prosecutor told

the jury that "it's not an issue or important to this trial whether

Baker threatened the boy to commit the crime or whether Baker ...

just persuaded him to and the boy went along on his own without

being threatened." The government described the intimidation as

coming from the note: "That note caused each one of [the tellers]

to take notice and to -- as one of them said, it began to sink in

and it frightened them."

Although the charge is not a model of clarity, it is an

adequate statement of the law, and the court did not abuse its

discretion in the formulation of the charge. The instruction
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informed the jury that § 2113(a) makes it a crime for anyone to

attempt to take money by intimidation from a federally insured

bank. The charge then adequately conveyed to the jury that it

could find either Baker or Ricardo responsible for the intimidation

if it accepted the evidence that Baker wrote the note and Ricardo

presented it. Based on the charge as amplified by the prosecutor's

argument, we are satisfied that the jury was not misled into

believing that it could convict Baker based on his intimidation of

Ricardo.

IV.

Finally, Baker argues that the conviction must be overturned

because a fatal variance existed between the indictment and the

proof upon which defendant was convicted. He argues that the

indictment named Ricardo Constancio, but the proof showed that the

principal was his son, Ricardo Constancio, Jr.

In this case, unlike in United States v. Salinas, 654 F.2d 319

(5th Cir. 1981), overruled on other grounds in U.S. v. Adamson, 700

F.2d 953 (5th Cir. 1983) on which Baker relies, there is no

question that the defense, the prosecution and the jury knew that

the Ricardo Constancio named in the indictment and shown to be

involved in the robbery was the son, whether there was a "Jr."

attached to the name or not. The concern underlying the

constructive amendment doctrine, that the Fifth Amendment

guarantees the right to be tried only on the grand jury indictment,

is not implicated under these circumstances.

Nor is the variance between the two names material. A

variance is material only if it prejudices the defendant's
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"substantial rights," either by surprising the defendant at trial

or by placing him at risk of double jeopardy. Berger v. United

States, 295 U.S. 78, 82 (1935); overruled on other grounds, U.S. v.

Stirone, 361 U.S. 212 (1960); United States v. Richerson, 833 F.2d

1147, 1155 (5th Cir. 1987). Here, the defendant's ability to

defend himself was not affected because there was never any

question about who Baker had aided and abetted in the attempted

robbery.

AFFIRMED