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August 20, 2012

If a bank robber (politiely?) says "I have a gun," is this enough for a "theat-of-death" guideline enhancement?

The question in the title of this post is prompted by the split Sixth Circuit ruling today in US v. Wooten, No. 11-5348 (6th Cir. Aug. 20, 2012) (available here). The full ruling is a must-read for lots of reasons, including the copious string cites employed by Judge Sutton in his dissent.

I have an inkling that Wooten could possibly get en banc or even cert attention if prosecutors want to fight this little guidelines issue to the death (pun intended).  But whatever one might think of the merits of this ruling, I have a hard time thinking it would be a good use of federal taxpayer dollars for the feds to make an even bigger federal case out of this seemingly lame little robbery.

August 20, 2012 at 03:45 PM | Permalink

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While I certainly agree with the conclusion that he isn't eligible for the enhancement, I do think they were engaging in some lame hair-splitting with the discussion about his statement didn't have the "or else..." threat on the end of it. So someone says to give you their money and that they have a gun. What else could they possibly mean other than "If you don't give me the money, I am going to shoot you"? Give me the money or else I'll show you how to clean it? Give me the money or else I'll make a charitable donation to the NRA?

Other than that, I think the majority is pretty spot on and, yeah, I agree with Doug that this seems like kind of a piddly case. I didn't catch it from the opinion but I'd be interested in knowing what this dude's background was. It smells kind of like that case I read about a while back where the defendant demanded a dollar from the teller and then went and sat down on the sidewalk -- he just wanted to get into fed prison to get medical care.

Posted by: Guy | Aug 20, 2012 4:25:51 PM

The majority opinion is terrible. Demeanor undermines the threat of a gun? Sounds like appellate judges playing district court . . . .

Posted by: federalist | Aug 20, 2012 4:43:12 PM

@ Guy:

I'm curious: if you think the majority engaged in lame hair-splitting and that "I have a gun" carries an obvious implicit threat to use to shoot the person on the receiving end of the remark, what's the "spot-on" part of the analysis that leads you to agree with the result?

Posted by: guest | Aug 20, 2012 5:30:32 PM

The only way saying "I have a gun" has any effect is if it carries the assumption that "I will use it." Given that some of the examples are "...or else" and "...or I will shoot you" the seems pretty clear to qualify. The idea that saying explicity matters is absurd. It is what a reasonable person would think. Any reasonable person, which the majority apparently is not, wouldn't need the explict statement. A reasonable person, hell anyone with even a modicum of common sense, knows that it is implied.

The idea that this is not always enough is abusrd. And their examples of a banana or a fake gun are totally different. A reasonable person wouldn't believe it a threat of death because it is impossible. Not so much with "demeanor." If the demeanor was so clear to show that he wasn't threatening the teller, then what reason is there for the teller to do what he says?

The majority pretty much just says he was too nice to have threatened anybody. He's like a little puppy (in "aww how cute" voice).

I hope the government does appeal. And I hope the SCOTUS summarilly reverses and tells the court how stupid they are. Or more I hope someone goes to these judges and says "I have a gun" and see how threatened they feel.

Posted by: Matt | Aug 20, 2012 5:55:51 PM

Karen Nelson Moore authored this claptrap. Another idiot Dem judge.

Posted by: federalist | Aug 20, 2012 8:19:51 PM

what did you expect. they HAD to say that. Otherwise it would apply to that million law enforcment stooges out there!

since they all up to and INCLUDING the school teachers these days carry GUNS!

Posted by: rodsmith | Aug 21, 2012 1:09:53 AM

"The majority opinion is terrible...Sounds like appellate judges playing district court."

You say that like it's a bad thing, federalist. If that's what they're doing I wish more appellate judges would follow their lead.

Given the way things work in all but a spectacularly small number of cases -- '"We affirm!" -- I sometimes wonder why we even have appellate courts.

It might help if someone could explain why the government (cops, prosecutors and mostly former prosecutors, judges,) is entitled to deference and support from appellate courts and citizens set upon by the government are not.

Cases such as this one -- though I'd have preferred a more sympathetic defendant to make the point -- offer hope to those of us who see the cops/courts system as a government turkey shoot in which only wealthy defendants stand a chance of making it a somewhat less unfair fight.

Posted by: John K | Aug 21, 2012 9:44:32 AM

BTW: Saying "I have a gun" might mean any number of things short of "I'll kill you if you don't do what I say."

It might mean if you don't give me the money I'll shoot you in the foot (which while unpleasant typically isn't likely to cause death)...or it might mean I'll brandish the weapon in the hope that will prove sufficiently intimidating...maybe it was a bluff in which the defendant would have fled the bank if it had failed. Given the circumstances in this "lame little robbery" it seems just as likely the defendant was bluffing as issuing a homicidal warning.

To leap from I have a gun to I intend to kill you is one of those things the government thinks it gets to presume regardless of whether it should be allowed to presume it.

Posted by: John K | Aug 21, 2012 10:37:28 AM

@ guest:

The rest of the opinion, subsequent to that first point of analysis.

Posted by: Guy | Aug 21, 2012 10:50:23 AM

@ JohnK:

"You say that like it's a bad thing, federalist. If that's what they're doing I wish more appellate judges would follow their lead.

Given the way things work in all but a spectacularly small number of cases -- '"We affirm!" -- I sometimes wonder why we even have appellate courts."

The reason trial-level courts get significant deference on issues of fact is that they're the ones who are on the ground receiving evidence, hearing from witnesses, etc. If appellate courts are just going to engage in de novo factfinding based on their impressions of what the facts were (and the credibility of witnesses they never observed testifying, etc.) based on statements in appellate briefs, I'd wonder why we had trial level courts, other perhaps than to give the appellate court a rough draft to work from. (Not saying that deference to trial courts should be absolute, it's just that that's why even though they don't receive deference on straight legal issues, they're supposed to receive substantial deference on matters of fact.)

"It might help if someone could explain why the government (cops, prosecutors and mostly former prosecutors, judges,) is entitled to deference and support from appellate courts and citizens set upon by the government are not."

Nobody is saying that; that's a strawman argument. The main reason you don't hear much about appellate deference when things went the defendant's way in the trial court is that verdicts that go the defense's way are unappealable -- a rule of absolute appellate deference to defense verdicts, if you will. The prosecution can appeal significant unfavorable pretrial rulings (e.g., suppression of evidence) and sentencing errors, but on most issues in the criminal justice system, most issues -- at least as a practical matter -- are appealable only by the defense.

"BTW: Saying "I have a gun" might mean any number of things short of "I'll kill you if you don't do what I say.""

Such as?

"It might mean if you don't give me the money I'll shoot you in the foot (which while unpleasant typically isn't likely to cause death)..."

As Judge Sutton's dissent points out, that's not reasonable -- when the bank teller is behind the teller window, how could the teller shoot him or her in the foot (as opposed to in the top half of his or her body, which is the only part of the body exposed as a target)?

"or it might mean I'll brandish the weapon in the hope that will prove sufficiently intimidating...maybe it was a bluff in which the defendant would have fled the bank if it had failed."

I thought the issue was whether it was a threat or not, as opposed to whether the bank robber subjectively intended to shoot the teller. Even if it was a "bluff," a plausible bluff -- as opposed to a threat to shoot someone with a "gun" that is obviously a banana or a toy -- is, by definition, a threat, even if the robber subjectively does not intend to shoot anyone if his bluff is called.

"To leap from I have a gun to I intend to kill you is one of those things the government thinks it gets to presume regardless of whether it should be allowed to presume it."

If you are ever accosted in the street by a person who demands your money and says "I have a gun," I hope for your sake that you do not simply operate on the presumption that, more likely than not, your assailant doesn't really mean it and that any presumption that the person might intend to harm you if you don't comply is unwarranted.

Posted by: guest | Aug 21, 2012 12:14:02 PM

@guest

"If appellate courts are just going to engage in de novo factfinding ... I'd wonder why we had trial level courts, other perhaps than to give the appellate court a rough draft to work from."

I don't think that's what the appellate court did here. The issue stems from a conclusion drawn from an undisputed fact...the extent of the threat emanating from the defendant's I've-got-a-gun statement.

"I thought the issue was whether it was a threat or not, as opposed to whether the bank robber subjectively intended to shoot the teller."

I thought the issue was whether the facts supported a death-threat guidelines enhancement. I don't dispute for a moment that what the defendant did constituted a threat. Whether it was a death threat in these particular circumstances seems less certain.

Posted by: John K | Aug 21, 2012 2:21:46 PM

"Whether it was a death threat in these particular circumstances seems less certain."

And the District Judge made that call . . . .

How silly is the idea that a guy's demeanor was non-threatening enough to say, as a matter of law, that his reference to a gun in the course of a robbery didn't threaten death?

But then again, I am not a criminal coddling Democrat hack judge, so what do I know?

Posted by: federalist | Aug 21, 2012 2:37:25 PM

@ JohnK

"Whether it was a death threat in these particular circumstances seems less certain."

I appreciate your response, which was certainly more reasonable and measured than your initial post, but I still don't understand what else, objectively, a reference to having a gun in the course of a bank robbery could be threatening. It's clearly a threat to shoot the teller and the robber has no apparent way to shoot the teller in the foot or anywhere else below the top half or third of the teller's body.

And, if we're just talking about a Guidelines enhancement, as opposed to a statutory mandatory sentence (e.g., the one that accompanies, brandishing or discharging a firearm), a district court doesn't need to reject the enhancement to give a lesser sentence on the theory that the threat was fairly marginal as far as these things go -- they just need to start from the right place under the Guidelines. It seems to me that what's really at play is that the two judges in the majority, had they been the district judge, would have given this guy a somewhat reduced sentence on the basis that the enhancement, even if applicable, was for what they would deem a fairly marginal implied threat of death; but because it's much more difficult or impossible to find the district judge's failure to do so unreasonable, they instead find that the enhancement shouldn't apply.

Posted by: guest | Aug 21, 2012 3:08:57 PM

@federalist

"But then again, I am not a criminal coddling Democrat hack judge, so what do I know?"

A judge needn't be a criminal-coddling Democrat to recognize and consider subtle distinctions in the defendants who come before them.

Is it really so horrible that this bank robber was rewarded, if that's the word for it, for merely saying he had a gun as opposed to brandishing one and pressing it against the teller's temple?

Was it actually a betrayal of Republican values that the majority judges apparently approached the issue raised in the appeal with open minds and no inclination to defer to flack for one side or the other?

Posted by: John K | Aug 21, 2012 6:37:41 PM

defer to OR flack for

Posted by: John K | Aug 21, 2012 6:39:49 PM

It isn't the function of appellate judges to resolve facts in such a manner. That you don't mind the twisting of the law in favor of criminals who threaten tellers with guns is interesting to say the least. It's not horrible, I guess, but for those of us who believe in the rule of law, it's distressing.

Like I always ask--what is it about being nice to criminals and Dem judges and politicians?

Posted by: federalist | Aug 21, 2012 10:02:54 PM

I see a difference between "nice" and even-handed, fair and restrained with the awesome powers of government.

Even the best people can get cross-ways with the law. When they do they should get only the punishment they deserve based on what they actually did. They shouldn't be punished for everything the authorities can come up with to throw at them.

It's somewhat similar to the Supreme Court's recent ruling on strip searches. It essentially said anything that happens to people (women in the particular case) once they find themselves in custody is OK. So basically if your grandmother is mistakenly and wrongfully taken into custody for even the most minor alleged offense, she must nonetheless strip, squat, spread and submit to an invasive body cavity search before being herded into the "general population."

So when mostly Republican justices, appellate judges, prosecutors and conservative commentators think about crime, they apparently envision defendants as feral beasts deserving of anything and everything the authorities can dish out.

Some of us weak-kneed, "Dem" observers see these defendants instead as citizens who should be presumed innocent and treated accordingly.

Anybody who robs a bank is in big trouble and properly so. Still people should be punished for what they actually do...and not for extraopolations and embelishments prosecutors are capable of rending from the facts.

Posted by: John K | Aug 22, 2012 10:54:02 AM

John K, perhaps I need to explain myself better, as your comment really doesn't seem to address mine. My issue in this particular thread is this Dem judge's willingness to twist the law to help out a criminal. If the guidelines said that the threat of death needed to be explicit, then fine. But it didn't. And these appellate judges, holding that, as a matter of law, the demeanor of this guy somehow made a deadly threat impossible simply made fools of themselves, whatever you think the outcome here should be. I don't see how my point of view about the law and the functions of appellate and trial courts have any larger meaning (i.e., making Grandma squat for a cavity search). You're apparently willing to see the rule of law undermined on such a flimsy basis. That's fine, I guess, but let's see your argumentation for what it is--a weak appeal to sympathy for a criminal.

From a legal standpoint (and that's all that should concern the learned Karen Nelson Moore) the issue was whether, on the facts of the case, the District Court could find a deadly threat. It is, of course, axiomatic that one can be presumed to intend the logical consequences of his acts, and since it would be perfectly normal to fear for one's life when the business end of a gun is pointed at him or her, the District Court could easily determine that this guy intended to threaten the teller's life, demeanor notwithstanding.

You can say what you want about the greater social issues. What we have here is a Dem judge utterly willing to undermine the rule of law for the benefit of a criminal. How can we trust this lawless criminal coddler to uphold the rule of law in other cases? Or, if you think this wasn't deliberate, then she's too stupid to be a lawyer, let alone a federal judge. You can obfuscate all you want and cast aspersions on Republican judges, lawyers et al., but Karen Nelson Moore is a hack Dem judge.

I know that not too many people (even those on my side) like it that I criticize judges in such strident terms. But the rule of law is important, and it is not to be entrusted to those who don't have the intellectual capacity to understand the roles of appellate judges or those who will toss them away to help out a criminal.

The fact is that, from a legal standpoint, this decision is indefensible. Why don't we start by getting that right.

Posted by: federalist | Aug 22, 2012 12:15:53 PM

"and since it would be perfectly normal to fear for one's life when the business end of a gun is pointed at him or her, the District Court could easily determine that this guy intended to threaten the teller's life, demeanor notwithstanding."

Obviously, that's not what happened, but the threat of it certainly was there. And that's the point.

Posted by: federalist | Aug 22, 2012 12:19:56 PM

You see it as Dem judges twisting the law to help a criminal.

I view it as prosecutors and district judge twisting the facts to punish the criminal more severely than he deserves.

I've tried in a number of ways to suggest the existence of a threat continuum. At one end an unarmed robber presents a give-me-the-money note but makes no mention of weapons. Several clicks further along the continuum is our bank robber saying he has (but not showing or pointing) a gun. A little further along the continuum is a robber who lifts his shirt to show the handle of his Glock. A few more clicks toward the end of the continuum, is the robber who holds the barrel of the gun to the victims head. And near the end is the robber who fires warning shots.

I'm saying the guy closer to the beginning deserves somewhat more restrained punishment than the one who's blasting away.

You seem to be arguing that everyone from the bluffer to the wild-west robber are equally deserving of the deadly threat enhancements at issue here. And you might be right. Yet I have a strong hunch if I were in the bank as a customer or clerk when the robbery occurred, I'd personally feel a good deal less threatened with our "polite" robber who doesn't even show a weapon than the one shooting holes in the ceiling.

Posted by: John K | Aug 22, 2012 2:56:50 PM

"I view it as prosecutors and district judge twisting the facts to punish the criminal more severely than he deserves."

But that's not what the learned Karen Nelson Moore said. And the sentencing guideline simply doesn't admit of the continuum that you posit. If you have a beef about the prosecutor's discretion here, that's fine. If you think that the District Judge shouldn't have resolved the factual issue the way he did, that's fine too. But an appeals court saying that as a matter of law the "threat of death" enhancement doesn't apply because the guy was polite is just plain silly.

If you like, I will give you the last word.

Posted by: federalist | Aug 22, 2012 3:08:02 PM

This is another one of those frequent instances lately where I agree with federalist. Not about everything--I'm not signing on for the ad hominem attacks on Judge Moore, the disrespectful tone, or the "Dems are criminal-coddling idiots" nonsense.

But on the issues in the opinion, I agree. The district judge's rationale here was common sense. In my view, correct. But even if I were to disagree, it's not so wildly off that it's not a permissible view of the evidence.

"I have a gun" is an example in the text of the USSG's guidance for when the enhancement would apply. That's what the D said here. If you grant that it's possible for the facts of an individual case to make it unreasonable to infer a deadly threat from those words, that assessment has got to be factual in nature. District courts make those factual assessments, and they're reviewed for clear error (a standard of review unmentioned in the opinion). You might think the district judge here was wrong, but these facts weren't so overwhelming that he was clearly, objectively wrong.

The dissent is also correct, but the dissent should be unnecessary. There's not enough in the majority opinion to warrant overturning the district judge's view of whether the evidence warranted setting aside the specific guidance contained in the guideline commentary.

Seems like a pretty case, and like the majority got it wrong.

Also seems like pretty low stakes here--a 2-point enhancement on a bank robbery sentence, in a post-Booker world where the judge can do what he/she wants anyway (and here went to the low end of the range). Not a case to get too exercised about one way or the other, except to say that the appellate court booted it.

Posted by: Def. Atty. | Aug 22, 2012 6:53:07 PM

"pretty case" = "pretty easy case"

Posted by: Def. Atty. | Aug 22, 2012 6:55:19 PM

Def. Atty, I am curious--what is so wrong about pillorying judges who botched a pretty easy case?

Posted by: federalist | Aug 22, 2012 8:55:25 PM

1. It promotes disrespect for courts. Particularly for those of us who are lawyers, we should speak with respect for the institutions through which we attempt to serve justice. We may think they get it wrong plenty, but I think most of us still believe it's the best system going, and we should try to uphold respect for it.

2. It contributes to the partisan, polarized noise that surrounds us every waking moment. I think we'd be better off with more civility and less dismissive accusation.

3. It depends whether the pillorying is on-point or off-point. Belittling poor reasoning is fair game. Saying a judge does it all the time and providing examples makes sense. Offering a better line of reasoning--all good. But slinging easy epithets around, and broadly bashing large groups you don't like, doesn't really advance the debate.

I don't mean to lecture. But since you asked.

BTW (and speaking more broadly, not accusing you specifically here), it's the decline in civility, and the predictable back-and-forth of never-changing views on known topics between repeat players, that makes me spend much less time and attention on this forum than I used to. Makes me sad sometimes, but it is what it is.

Posted by: Def. Atty. | Aug 23, 2012 11:37:52 AM

Fair enough. I would argue that given the imperiousness of many judges and some of the god-awful decisions, pillorying is good for them.

I do tend to back my comments up with specific examples and specific criticisms that I hope are well thought out.

Posted by: federalist | Aug 23, 2012 1:29:46 PM

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