USCA1 Opinion

November 14, 1995 UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 94-1958

UNITED STATES OF AMERICA,

Appellee,

v.

JEFFREY W. SPINNEY,

Defendant, Appellant.

_________________________

ERRATA SHEET
ERRATA SHEET

The opinion of this

court issued on September 19,

1995, is

corrected as follows:

On page 2, line 3

change "(count 1)" to "(count 2)".

On page 2, line 4

change "(count 2)" to "(count 3)".

On page

2, line 6 (footnote

1)

change "All

references are to

the superseding indictment." to "Count 1, which charged appellant

with conspiring to commit bank robbery,

see 18 U.S.C.
___

371, was

dismissed on the government's motion."

On

page 5, line 10

"aiding

insert

and abetting":

robbery, see 18 U.S.C.

___

the following text before the words

"counts

of conspiracy

371 (which count was

to commit

bank

later dismissed),

".

On

page 5,

line 14

change "each

count." to

"each remaining

count."

On page 5, line 20

change "count 1" to "count 2".

On page 7, line 10

change "count 1" to "count 2".

On page 11, lines 24-25 (footnote 5)

not lodge
has

change "The grand jury did

a conspiracy charge against Spinney and the government

not tried"

to

"Having

moved

for

the

dismissal

of

the

conspiracy count against appellant, the government did not try ".

On page 16, line 24

change "(11th Cir. 1986)" to (11th Cir.)".

On page 21, line 12

change "count 1" to "count 2".

On page 21, line 13

change "count 2" to "count 3".

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

No. 94-1958

UNITED STATES OF AMERICA,

Appellee,

v.

JEFFREY W. SPINNEY,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

___________________

_________________________

Before

Selya and Boudin, Circuit Judges,

______________

and Lisi,* District Judge.

______________

_________________________

Diana L. Maldonado, Federal Defender Office, for appellant.

__________________
Timothy Q. Feeley, Assistant United
__________________
whom Donald K. Stern,
_______________

States Attorney,

United States Attorney, was on

appellee.

_________________________

with

brief, for

September 19, 1995

_________________________

____________________
*Of the District of Rhode Island, sitting by designation.

SELYA,
SELYA,

Circuit Judge. Defendant-appellant

Circuit Judge.
______________

Jeffrey W.

Spinney

challenges his

convictions for

aiding and

abetting an

armed bank robbery (count 2) and aiding and abetting the use of a

firearm

3).1

during and

In

our

in relation

view,

the

to a

two

crime of

crimes,

violence (count

despite

superficial

____________________

1Count 1, which charged

bank

robbery,

see
___

18

government's motion.

appellant with conspiring to commit

U.S.C.

371,

was

dismissed

The implicated portions

by

intimidation,

force

and

takes,

or

violence,
attempts to

or

or money or any

other thing of

value belonging to, or in the

care, custody,

control,
[federally

management,

or possession

insured] bank

punished as provided by law].

18 U.S.C.

by

take,

from the person or presence of another . .

any property

2113(a) (1988).

. .

the

of the applicable

statutes are as follows:

Whoever,

on

of, any

[shall

be

Whoever, in committing,
commit, any
puts in
the

or in attempting

offense defined in

jeopardy the

use of

to

2113(a)],

life of any

person by

dangerous

weapon or

device,

shall be . . . [punished as provided by law].

18 U.S.C.

2113(d) (1988).

Whoever, during and in

of

violence

prosecuted in
uses or

relation to any crime

for

which

a court of the

carries a

he

may be

United States,

firearm, shall

. .

. be

[subjected to additional punishment].

18 U.S.C.

924(c)(1) (1988).

Whoever commits an offense against the United

States

or

induces

or

aids, abets,
procures

counsels, commands,
its

commission,

is

punishable as a principal.

18 U.S.C.

2(a) (1988).

As
robbery,

the text

18 U.S.C.

indicates,

a conviction

2113(d), necessarily

for armed

signifies that

bank

the

similarities,

standards.

require

the

application

Because the evidence

of

dissimilar

legal

amassed by the government falls

between these stools, we affirm the first conviction

but reverse

the second.

I.
I.

BACKGROUND
BACKGROUND

We limn the pertinent facts in the light most favorable

to the government, see United States v. Ortiz, 966 F.2d 707, 710___ _____________
_____

11 (1st Cir. 1992), cert. denied,

_____ ______

particular

heed

to those

113 S. Ct. 1005 (1993), paying

details

that

arguably reflect

what

appellant knew and when he knew it.

On August 20, 1991, at

around 3:00 p.m., Gerald Mohan,

a conscientious FBI agent, noticed appellant (a person previously

known to him)

Lowell,

sitting on

Massachusetts.

surveillance.

As

Oldsmobile arrived at

Oldsmobile,

curb.

into

the steps of

he

Mohan

was

positioning

the scene.

After

it made several quick

The driver (subsequently

the

decided

front passenger

seat

Kirvan and appellant proceeded

the Federal Building

to

mount an

his

impromptu

vehicle,

appellant entered

turns and then

in

blue

the

pulled to the

identified as Paul Kirvan) moved

and appellant

took

the wheel.

to criss-cross the streets around

the

Lowell Institution for Savings (the

Bank).

that the pair's driving pattern appeared to

Mohan testified

be part of a process

of careful scrutiny.

Roughly fifteen minutes

after beginning

surveillance,

____________________

government has proved the elements of the lesser included offense

of unarmed bank robbery, 18 U.S.C.

2113(a).

Mohan

followed

observed

the

classic

Oldsmobile

to

Academy

getaway

"switch

approximately 0.3 miles from the Bank.

returned to the

Street,

vicinity of

Kirvan alighted

Drive.

site"

on

dead

end

Appellant and Kirvan next

the Federal Building.

from the

There he

Oldsmobile (which

On

Fayette

he owned),

entered a parked Chevrolet Monte Carlo (later ascertained to have

been stolen some

Bank.

distance away),

Appellant followed

followed both of them,

him

and began

in

the

driving toward

the

Oldsmobile, and

Mohan

caravan-style, in his own vehicle.

When

the two

drivers veered in separate directions,

of both

cars.

minutes

later, glimpsed

Mohan lost sight

He circled in the general vicinity and, some four

Bank's parking lot.

the

Chevrolet at

a standstill

in the

Mohan made a U-turn and

efforts were

accelerated

in the

unavailing; at

headed back to the Bank.

that precise moment,

His

the Chevrolet

rapidly out of the parking lot and passed him (going

opposite direction).

Kirvan was alone in the car.

Mohan

made yet another U-turn and unsuccessfully gave chase.

At approximately 3:25 p.m., ostensibly during the brief

interval in which Mohan lost track of his quarry, a masked Kirvan

entered the

over

the tellers' counter, stuffed

drawers

fled.

Bank, instructed those

into a

garbage bag,

Although Kirvan

robbery,

present not to

move, jumped

the contents of several cash

leapt back

over the

counter, and

brandished a handgun at the height of the

a teller testified that the weapon was not visible when

he entered the Bank.

Other percipient witnesses reported that, mid-afternoon

of the

same day,

Academy

Drive.

they saw

Two

men, one

vehicle, crossed through two

blue car.

The

a Chevrolet

holding a

Monte Carlo speed

bag, emerged

gates, and drove away in

witnesses were unable to identify

down

from the

a waiting

either suspect

positively, although one of the men "looked like" appellant.

Lowell police recovered the Chevrolet that afternoon.

The

They found

Kirvan's blue Oldsmobile the next morning, abandoned not far from

the switch site.

The

government established

that appellant

had been close friends for many years.

Telephone

and Kirvan

toll

records

reflected seventy-three calls between the men's residences in the

nineteen days

preceding the

robbery, including eleven

calls on

August 19.

A federal

grand jury

indicted appellant on

counts of conspiracy to commit bank

(which count was

bank

the

violence,

of a

see

robbery, see 18 U.S.C.

___

later dismissed), aiding and abetting

robbery, see 18 U.S.C.

___

use

counts of

firearm

18 U.S.C.

2113(d), and

during and

924(c).

in

an armed

aiding and abetting

relation to

A jury

371

crime of

trial eventuated.

___

After appellant unsuccessfully moved

the jurors returned

a guilty verdict

for judgment of

acquittal,

on each remaining

count.2

____________________

2In a separate proceeding before a different judge and jury,

Kirvan

was convicted of armed bank robbery

during and in relation

the

and use of a firearm

to a crime of violence.

Notwithstanding

verdict, the judge ordered an acquittal on the latter count.

We affirmed the armed bank robbery conviction and

firearms conviction.

See
___

reinstated the

United States v. Kirvan, 997

_____________
______

(1st Cir. 1993).

F.2d 963

The court sentenced appellant

to serve 262 months in

prison for

armed

mandatory sixty-month

consecutive

robbery and

sentence

in

imposed a

respect

to

the

firearms

charge.

This

appeal

followed.

II.
II.

ARMED BANK ROBBERY

ARMED BANK ROBBERY

Appellant

supporting

his

challenges the

conviction

straightforward.

We must

the evidence in

the light

taking

all

factfinder

prosecution

reasonable

could

find,

on

sufficiency of

count

2.

the evidence

Our

task

is

ascertain whether, "after assaying all

most amiable to

inferences

beyond

successfully proved

in

the government,

its

a reasonable

the

favor,

doubt,

and

rational

that

essential elements

the

of the

crime."

United States v.
______________

1994).

In

performing

O'Brien, 14 F.3d
_______

this task,

credibility

of witnesses,

government

disprove

see id.,
___ ___

every

defendant's innocence,

we

do

nor do

hypothesis

703, 706 (1st

not

pass

upon the

we demand

that the

consistent

see United States v.

___ _____________

Cir.

with

the

Echeverri, 982 F.2d

_________

675, 677 (1st Cir. 1993).

The

jury reached its verdict in this case on the basis

of circumstantial evidence.

direct,

evidence in

Reliance

criminal case

commonplace.

See O'Brien, 14
___ _______

criminal

does

law

evidence").

not

In making

to examine the evidence

place

on indirect, as opposed to

is

F.3d at 706

special

both permissible

and

(observing that "the

premium

on

direct

such judgments, "juries are not

required

in isolation, for `individual

pieces of

evidence, insufficient

in themselves

to prove a

point, may

in

cumulation prove it.'"

v. United States,
_____________

Ortiz, 966 F.2d at 711 (quoting Bourjaily

_____
_________

483 U.S.

jury draws inferences

171, 179-80 (1987)).

Thus, when

from circumstantial evidence, a

reviewing

court should refrain from second-guessing the ensuing conclusions

as long as

(1) the

rendition of

inferences derive support

We add a

See id.
___ ___

cautionary note.

characterizes appellate

have carte blanche.

_____ _______

review of

Despite the

deference that

jury verdicts, juries

do not

The appellate function, properly understood,

requires the reviewing

to reject

plausible

the record, and (2) the conclusions flow rationally

from those inferences.

and

from a

those

court to take a

evidentiary interpretations

that

are unreasonable,

See,
___

e.g., United States

____ _____________

insupportable,

v. Valerio, 48
_______

1995);

United States
_____________

1994).

This function is especially

given the prosecution's

hard look at the

v. Loder,
_____

23 F.3d

or

record

and illations

overly

speculative.

F.3d 58,

64 (1st Cir.

586, 589-92

(1st Cir.

important in criminal cases,

obligation to prove every element

of an

offense beyond a reasonable doubt.

In this

count 2

instance, the jury convicted

as an aider and abettor.

the appellant on

See 18 U.S.C.
___

2(a).

Under

this theory of accomplice liability, Spinney would be guilty only

if

the

government

committed the

proved

(1)

that

Kirvan

substantive offense (armed bank

(the

principal)

robbery), and (2)

that Spinney (the accomplice) became associated with the endeavor

and took part in it, intending to ensure its success.

Nissen v. United States, 336

______
______________

U.S. 613, 619

See Nye &

___ _____

(1949); Ortiz,
_____

966

F.2d at 711 n.1.

which it

Because the jury heard plethoric evidence

rationally could

bank robbery, we direct our

conclude that Kirvan

from

committed armed

analysis to the second of these

two

elements.

The

showing that

central requirement

the defendant

of the

consciously

second element

shared the

knowledge of the

underlying criminal act,

the principal."

United States v. Taylor, 54 F.3d

_____________
______

Cir. 1995).

is "a

principal's

and intended to

help

967, 975 (1st

In a prosecution for armed bank robbery, this shared

knowledge requirement is binary; it extends both to awareness

the

used.

1982)

robbery and to comprehension

See United States v.

___ _____________

(explaining

that,

use

other

to

convict

of `a dangerous weapon

cases).

Appellant

under

2113(d),

the

defendant aided and abetted

the

or device' during

maintains that

neither

show that he knew Kirvan aspired

nonetheless endeavored

place, he claims

the act") (citing

finding

is

In the first place, he claims that the evidence

does not adequately

and

106 (9th Cir.

both in the act of bank robbery and in the principal's

justified here.

Bank

would likely be

Jones, 678 F.2d 102,

_____

prosecution must "show that the

principal

that a weapon

of

to help

him.

that the record is devoid of

knew about the actual or intended use of a gun.3

In

to rob the

the second

any proof that he

___

____________________

3If

both arguments

reversed.

succeed,

Conversely,

conviction

must be

if

affirmed.

then the

both

arguments

However, if

fails, but the second succeeds, then,

found

all

the elements

2113(a), and since the

lesser

included offense

conviction must

of unarmed
_______

fail,
the first

the

argument

since the jury necessarily

bank

robbery, 18

trial court charged on that

under

then

be

2113(d), we

would

U.S.C.

statute as a

remand for

10

1.
1.

Shared Knowledge of the Robbery.

Shared Knowledge of the Robbery.
___________________________________

The first

challenge need not occupy us for long.

that he was

Appellant does not assert

"merely present" at the scene.

See Ortiz, 966 F.2d

___ _____

at 711 ("Mere association between the principal and those accused

of aiding and abetting is not

was

nor is mere

to

be

abetting.")

sufficient to establish guilt; . .

presence at the scene and knowledge that

committed

(internal

sufficient

quotation

to

establish

marks omitted).

focuses on the lack of direct evidence placing him at

site, in or

near the Bank,

or in Kirvan's

except immediately prior to the

attempting

to raise

doubts

a crime

aiding

and

Rather,

he

the switch

company at any

time

commission of the crime, thereby

about whether

he had

any specific

intent to assist in the enterprise.

This

argument

is flawed

in

its

presumption that

dearth of

logical

direct evidence somehow precludes

inferences based

Contrary to

the burden

those situations

on available

jurors from drawing

circumstantial evidence.

of appellant's thesis,

that involve an

it is

absence of direct

precisely

evidence in

which circumstantial evidence must be most closely analyzed.

O'Brien,
_______

14

evidence spurs

analysis,

F.3d

at 706

examination of indirect

the persuasive

attributable

(explaining

more to its

power

of

that

lack of

evidence).

In

direct

the last

circumstantial evidence

relevance and probative

See
___

is

force than to

the presence of complementary direct evidence.

____________________

resentencing on that basis.

See, e.g., United States v. Dinkane,

___ ____ _____________
_______

17 F.3d 1192, 1198 (9th Cir. 1994).

11

Having in

transpired

proximity

on Academy

to the

rational juror need

at

mind Mohan's

Bank,

Drive,

the vehicles

and the

telephone

events that

abandoned in

logs, a

close

completely

make only modest inferential leaps to arrive

a founded conclusion

that the two

the crime, the flight, and the

Olbres, ___

observations, the

long-time friends planned

car switch.

See United States v.

___ _____________

F.3d ___, ___ (1st Cir. 1995) [No. 94-2123, slip op.

______

at

10]

(finding

"circumstantial

and

"sturdy

infrastructure,"

suggestive"

evidence,

for

provided

making

by

sound

rational inferences); Taylor, 57 F.3d at 975 (similar); see

______
___

Ortiz,
_____

966

evidentiary

F.2d

at

711

(remarking

presentation may

parts") (quoting

Bourjaily,
_________

be

483

that

"[t]he

greater than

U.S. at

its

180).

sum

also
____

of

an

constituent

Since

every

necessary inference is adequately rooted in the record, we reject

as meritless

lack of

appellant's assignment of error based on a supposed

proof that he knew

of, and helped to

further, Kirvan's

desire to rob the Bank.4

2.
2.

Shared Knowledge of the Weapon.

Shared Knowledge of the Weapon.
_________________________________

stronger challenge is

directed at the

Appellant's

jury's finding of

shared

knowledge,

prior to

the commission

would use a firearm.

1197

crime, that

Kirvan

See United States v. Dinkane, 17 F.3d 1192,

___ _____________
_______

(9th Cir. 1994) (holding

aiding

of the

and abetting

requires

that, for purposes

prior knowledge
_____

of

2113(d),

of weapon);

see
___

to impugn

the

____________________

4To

the extent

that

jury's

decision about

"usurp

the

jury's

superseding either

appellant also

who and

province,"

what to
O'Brien,
_______

seeks

believe, we
14

its rational factfinding

choices.

12

F.3d
or its

decline to
at

707,

by

credibility

generally
_________

United States v. de la Cruz-Paulino, ___ F.3d ___, ___

_____________
__________________

(1st Cir. 1995)

aiding and

[No. 94-1985,

slip op. at

abetting case, that

28-30] (stating,

shared knowledge

must be

in

prior

knowledge).

A participant in the holdup of

be

an

aider

government

that

and

abettor

of

an

armed
_____

a bank will be found to

robbery only

if

can provide an additional piece of the puzzle:

the accomplice "knew a

dangerous weapon would

the

proof

be used [in

the robbery] or at least . . . was on notice of the likelihood of

its use," United States v. Sanborn,

_____________
_______

563 F.2d 488, 491 (1st

Cir.

1977); accord United States v. Ferreira, 625 F.2d 1030, 1032 (1st
______ _____________
________

Cir. 1980).

this

Refined to bare essence, appellant's asseveration on

point is that the evidence, taken

that it does not

no

facts, he

as a whole, is so sparse

satisfy the Sanborn standard; there

_______

tells

us, from

which

a reasonable

extrapolate to a finding of shared knowledge.5

In

terms, the

Sanborn rubric
_______

"notice of . . . likelihood"

knowledge

abetting

defining.

element

an

armed

are simply

juror

could

We do not agree.

requires only

proof of

to satisfy this prong of the shared

in connection

bank robbery.

with

a charge

This

phrase

of

aiding and

is not

self-

Hence, it is important to search out its meaning.

We

start from

the

premise that

the Sanborn
_______

formulation of the shared knowledge requirement is

court's

not merely an

____________________

5Having

Moved for

against

appellant,

the

criminal

liability

on

coconspirator.

the

dismissal of

government
the

did

reasonably

the conspiracy
not try

to

foreseeable

count

hang
act

his
of

Compare Pinkerton v. United States, 328 U.S. 640,

_________
_____________

647-48 (1946).

13

awkward

locution.

Other

United States v. McCaskill,

_____________
_________

courts

have adopted

it,

676 F.2d 995, 998 (4th

see, e.g.,
___ ____

Cir.), cert.
_____

denied, 459 U.S. 1018

______

(1982); United States v. Ingram,

_____________
______

592 A.2d

992, 1003 (D.C. App.), cert. denied, 502 U.S. 1017 (1991), and it
_____ ______

stands in marked contrast

almost as point and counterpoint

to

the

"practical certainty" formulation that courts have developed

for

assessing

aiding

the

shared knowledge

and abetting firearms

924(c).

See infra
_____

Part III.

requirement

applicable to

charges brought under

The glaring

18 U.S.C.

linguistic difference

between the two formulations guides our inquiry.

Knowledge is a concept,

as

in

life, "knowledge"

contexts.

means

Accordingly, we

not an absolute.

different

believe it

is

In

things in

useful to

the law,

different

view the

concept as a continuum.

At

one end of the

continuum is what

the law commonly

calls "constructive

law's

way of

subsidiary

exists.

Constructive knowledge

recognizing that,

facts, a

expected to

knowledge."

person

know, or at

given

an awareness

is quite

likely

least should

See Black's Law Dictionary 314

___

by exercise

of reasonable

of certain

to know,

know that a

is the

can

be

further fact

(6th ed. 1990) ("If one

care would have

known a fact,

he is

deemed to have had constructive knowledge of said fact . . . .").

By way of illustration, if an easily visible foreign object is on

the

staircase for an appreciable

reasonableness

of a

length of time,

conclusion

that the

the law accepts

occupier

of the

premises "knew" of its presence (even though there is no evidence

14

that the occupier actually knew, by observation or report, of the

________

object's whereabouts).

At

the

other end

of the

commonly calls "actual knowledge."

continuum

is what

the law

Actual knowledge, as the term

implies, reduces the need for inference; it suggests the presence

of

particular

evidence

which,

if

credited,

establishes

conclusively that the person in question knew of the existence of

the fact in question.

See

id. at 873 (defining actual knowledge

___

as

___

"positive, in contrast to imputed or inferred, knowledge of a

fact").

To carry our example forward, if witnesses testify that

the occupier himself placed

remarked its

the foreign object on the

location, that testimony,

stair, or

if believed, establishes

that the occupier actually knew of its presence.

The concepts

of constructive

and actual knowledge

not occupy the entire span of the continuum.

Knowledge varies in

origin, degree, and an array of other respects.

are best

visualized as way

the poorly charted area

continuum.

reasonable

While

doubt

we

These gradations

stations that dot the

hypothetical knowledge continuum.

length of the

Notice of likelihood fits into

that stretches between the poles

believe that,

standard

do

in

requires that

a criminal

notice

of the

case,

the

of likelihood

comprise

more

than

articulation evokes

the

proof

constructive

knowledge

simpliciter,
___________

echoes of constructive knowledge

requirement

closer to

Actual knowledge, after all,

that

end

of

15

and places

the continuum.

is certain knowledge, see

___

likelihood is not the stuff of certainty.

its

id., and
___

Logically,

then,

section 2113(d) case, that

the

Sanborn rubric
_______

other

dangerous

weapon in

robbing

Sanborn's disjunctive phraseology, 563

_______

or at

least . . .

doubt

that a conviction can

actual

constructive

We

will

the

that

bank;

indeed,

. .

likelihood"), leaves no

be grounded on

conclude

knowledge

intended to use a

F.2d at 491 ("knew .

was on notice of the

knowledge.

in

the defendant's shared knowledge need

not amount to actual knowledge that his cohort

______

gun or

implies,

something less than

an

suffice.

See
___

enhanced showing

of

United States
______________

v.

Grubczak, 793 F.2d 458, 463 (2d Cir. 1986).

________

While

evidence clears

builds

on

this is

a very

the notice of

the human

close case,

we think

likelihood hurdle.

condition.

Jurors

are "not

that the

Our analysis

expected to

ignore

but,

what is perfectly

rather,

"to

take

obvious," Echeverri, 982

_________

full

experience and common sense."

case, the

advantage

of

F.2d at 679,

their

collective

O'Brien, 14 F.3d at 708.

_______

In this

scheme called for a lone robber to enter a bank during

business hours with the intent

of looting it.

One

would expect

tellers, guards, customers, and other persons unsympathetic to an

unauthorized

withdrawal of funds to

those circumstances,

not even

be on the

the most sanguine

expect clear sailing without some menace in

the circumstances gave rise

premises.

Under

criminal would

the wind.

In short,

to constructive knowledge beforehand

that the intruder would need a gun or some other dangerous device

to

accomplish the

felons' agreed

goal.

See United States v.

___ ______________

Powell, 929 F.2d 724,

______

727 (D.C. Cir. 1991) (stating,

in dictum,

16

that

"possession

of

a gun

. .

is

virtually

essential in

[perpetrating a bank robbery]").

Here,

moreover, Spinney

was not

(say, a lookout or a getaway driver), but

could

reasonably

infer

from

the

merely a

bit player

a leading man.

totality

of

the

A jury

attendant

circumstances,

particularly

between Spinney

and Kirvan

from the

host

of telephone

and from Spinney's

calls

participation in

the elaborate reconnaissance mission, that he had a major role in

planning the heist.

discussion

substantial

of

the

Even

use of

involvement

planning and

assuming that there

over

orchestrating a

gun,

evidence

the

course of

was no

of a

defendant's

several

robbery, when coupled

specific

days

in

with actual

participation in carrying it

out, permits a compelling inference

that

salient details of

the

the defendant knew the

timing of the robbery, the bank's identity and location, the

planned entry by a lone robber).

to

sustain

a finding

likely would

See

the plot (e.g.,

Grubczak,

that Spinney

tote a gun in

793

These circumstances seem to us

F.2d

was

on notice

the course of

at

464

(relying

that Kirvan

the upcoming robbery.

on

evidence

of

___

________

defendant's

substantial

involvement

as

planner

of

and

"principal player[] in the robbery" to help ground "the inference

that he had to have been aware of the likely use of a

gun"); see
___

also United States v. DeMasi, 40 F.3d 1306, 1316 (1st Cir.

____ _____________
______

(inferring

knowledge

that

weapons

would

be

employed

accomplice's awareness of the conspirators' overall

denied, 115 S. Ct. 947 (1995).

______

17

1994)

from

plan), cert.
_____

Appellant

necessitates the

sense,

this

claiming

that

upon inference.

it

In one

but "[t]he rule is not that an

no matter how reasonable, is to be rejected if it, in

depends upon

question

approach,

stacking of inference

at least, this may be so

inference,

turn,

decries

is

another

merely

whether

reasonable inference;

the

total

rather,

evidence,

the

including

reasonable inferences, when put together is sufficient to warrant

a jury to conclude

doubt."

that defendant is guilty beyond

Dirring v. United States, 328 F.2d 512, 515

_______
_____________

cert. denied, 377

_____ ______

U.S. 1003 (1964).

a reasonable

(1st Cir.),

Chains of inference

are a

familiar,

widely

ratiocination.

is

accepted

This method

regularly relied

ingredient

of

any

process

of

of reasoning, commonly called logic,

upon in

the realm

of human

endeavor, and

should not be forbidden to a criminal jury.

Of course,

here,

the

the inferential chain must be strong6

hypothesis

upon

which

Spinney's

conviction rests is not at all dubious.

On

section

but

2113(d)

this record, despite

the lack of direct evidence and the uncertainties associated with

that lack, the jury rationally could find Spinney to have been an

architect of, and an

these

active participant in, the robbery.

available findings, and the persuasive

Given

force of the other

permissible inferences supported by the overall circumstances, we

____________________

6As
cannot

we recently
be

premised

wrote:
on

pure

"Guilt

beyond a

conjecture.

reasonable doubt
But

conjecture

consistent with the evidence becomes

and

moves

gradually

explanations
Coalter,
_______

toward

are discarded

proof,
or

less and less a conjecture,

as

made less

alternative
likely."

innocent

Stewart v.
_______

48 F.3d 610, 615-16 (1st Cir. 1995), petition for cert.

________ ___ _____

filed (U.S. June 19, 1995) (No. 94-9742).

_____

18

cannot

say

concluding

that

the

that Spinney

Kirvan would use a gun.7

jury

exceeded

was on

its

notice of

proper

province

the likelihood

See Sanborn, 563 F.2d at 490.

___ _______

in

that

III.
III.

THE FIREARMS CHARGE

THE FIREARMS CHARGE

Appellant

evidence

also

in regard to his

challenges

the

sufficiency

conviction under 18

of

U.S.C.

the

924(c).

Although here, too, appellant is charged as an aider and abettor,

his assignment of error raises a somewhat different question.

prove that a defendant

aided and abetted a violation

To

of section

924(c), the government must establish that the defendant knew "to

a practical certainty that the principal would be [using] a gun."

United States
_____________

(quoting

v. Torres-Maldonado, 14
________________

F.3d 95,

Powell, 929 F.2d at 728), cert.

______
_____

103 (1st

Cir.)

denied, 115 S. Ct. 193

______

(1994); accord DeMasi, 40 F.3d at 1316.

______ ______

The government

strives to collapse

the linguistically

different standards

for aiding

and abetting liability

under 18

____________________

7We acknowledge that two other courts, on somewhat analogous

facts, have

found that

will not support

2113(d).

See
___

a conviction
Dinkane,
_______

Pendergraph, 791
___________
479

a defendant's participation

17

for aiding and

F.3d

at

1197;

abetting under
United States
______________

v.

F.2d 1462, 1466 (11th Cir. 1986), cert. denied,

_____ ______

U.S. 869 (1986).

But every

case is different

judged on its particular array of facts.

unlike in Dinkane, 17
_______
instructed

in planning

Moreover, in this case,

F.3d at 1195, the district

the jury as to

and must be

the elements of

court properly

aiding and abetting,

and unlike in Pendergraph, 791 F.2d at 1464-65, the court did not
___________
erroneously

admit

evidence that

improperly to convict.
today
ground.

contradicts

At any rate,

Dinkane
_______

In the final

would

and/or

have

allowed the

to the extent our

Pendergraph,
___________

analysis, we cannot

we

jury

holding

stand

our

reject as irrational

the jury's "conclu[sion] that an accomplice so closely associated

with the venture could not fail to know what would be the central
question in

any robbery:

bank's employees to part

490.

how the

robbers were

with the money."

Sanborn,
_______

to force

the

563 F.2d at

19

U.S.C.

2113(d)

and 924(c), respectively,

end of the knowledge

continuum.

esemplastic approach.

of

at the less

We are uncomfortable

Particularly when

taxing

with this

juxtaposed with "notice

. . . likelihood," we believe that "practical certainty" is a

rubric that

calls

for proof

Model Penal

Code

2.02

result elements, one

verging on

at 236

actual knowledge,

n.13 (1985)

cannot of course

("With respect

`know' infallibly that

see
___

to

certain

some

result will follow from engaging in conduct, and thus to

extent

includes

`knowledge,'

contingency

definitionally

certain' that

in terms

we think that

either

by

denote

single

linguistic

of

as

accident.

result

elements,

This

is expressed

actor is

`practically

follow."), and, thus,

presents a

for the prosecution to overcome.

to cut

significantly

meaning

to

well.

whether the

we are free

reading

applied

factor

the result will

considerably higher hurdle

do

when

or

this hurdle down

dissimilar

by treating

Nor

to size

articulations

one

of

them

as

to

Courts invite error when they try to weigh

meaning only after placing a thumb on the scale, or when they too

freely write

past.

off as

If principle

malapropos

words carefully

is to prevail,

we must give

chosen in

the

effect to the

obvious difference in standards of knowledge.8

____________________

8There are,

moreover, policy reasons why

to adopt divergent standards

the

for an accomplice's knowledge under

two statutes. While possession

instrumentality will
the felonies
completed

unarmed.

violating
2113(d),

must be given an

or other dangerous

a bank robbery,

924(c) can

Furthermore,

924(c), unlike

years, to run

of a gun

likely facilitate

that underlie

courts might wish

be

and

defendants

defendants convicted of
additional sentence of
__________

many of

often are
convicted

of

violating

at least five

consecutively to the term of incarceration imposed

20

In

this

case, the

government's argument

could

infer that

anticipated use

reviewed,

robbery.

boils down to

Spinney

of a

principally

difference

is

an assertion that

was practically

gun based

the

on

dispositive.

confederates'

the jury

certain of

the evidence

joint

The

Kirvan's

we have

design

just

of the

Yet, the government adduced no evidence suggesting that

firearms were

actually contemplated

in the planning

stages, or

that Spinney had any actual knowledge that Kirvan would be armed.

Under the

circumstances, we conclude that

evidence (that

in the light

with

the

insufficient

the government's best

Spinney helped to mastermind

most favorable

jury's

ability

to

support the

to the verdict,

to

make

requisite

the robbery), taken

even when

intuitive

coupled

judgments,

inference of

is

practical

certainty.9

See, e.g., Powell,

___ ____ ______

v. Hamblin, 911 F.2d

_______

929 F.2d at

729; United States

_____________

551, 558-59 (11th Cir.), cert.

_____

denied, 500
______

U.S. 943 (1991).

In

directs

a last-ditch effort to save the day, the government

our attention

to

series

of

drug

cases

in

which

____________________

for the

underlying crime.

See
___

18 U.S.C.

924(c)(1).

Both of

these considerations suggest that a higher threshold of knowledge

may well be appropriate in the

9Although

courts

prosecutions under the

sometimes

924(c) milieu.

have

distinguished

between

two statutes with which we are concerned,

see, e.g., United States v. Medina, 32 F.3d 40, 47 (2d Cir. 1994)
___ ____ _____________
______
(narrowly directing its holding to cases brought
and distinguishing
has

revealed no

cases brought under

reported case

in which

under

924(c),

2113(d)), our research

the evidence

has been

found sufficient to sustain an aiding and abetting conviction for

armed

bank

robbery, but

insufficient

to sustain

charge of

aiding and abetting the commission of a firearms offense based on

the same incident.

To that extent, our decision today breaks new

ground.

21

knowledge of a vessel's cargo was imputed to crew members.

See,
___

e.g., United States v. Guerrero-Guerrero, 776 F.2d 1071 (1st Cir.

____ _____________
_________________

1985),

cert. denied,
_____ ______

475

Quejada-Zurique, 708 F.2d

_______________

U.S. 1029

(1986);

United States
_____________

v.

857 (1st Cir.), cert. denied, 464 U.S.

_____ ______

885 (1983).

the

case at bar.

from the

of

But these scenarios are readily distinguishable from

In

those cases, guilty knowledge was inferred

crew members' close proximity

drugs over

an

extended period

Guerrero, 776 F.2d at 1074-75;

________

60.

Here,

evidence

of

to detectable quantities

time.10

See
___

Guerrero_________

Quejada-Zurique, 708 F.2d at 859_______________

Spinney did not even enter the bank, and there was no

that Kirvan had the

and Spinney were together

was visible

or

weapon in his

possession while he

before the robbery, let alone

otherwise

detectable at

that

that it

juncture.

Put

bluntly, even though Spinney may have spent much time with Kirvan

devising the plan, and was on notice of the likelihood that a gun

would be

used in the course

evidence

to

support

of the robbery, there

reasoned conclusion

that

is simply no

Spinney

was

practically certain that Kirvan would be armed.

In sum, "likelihood" and "practical certainty" are

equivalent terms.

Applying

the practical certainty

not

rubric, we

____________________

10These
presence."
from ones
vessel.
where

situations involve
Ortiz, 966 F.2d at
_____

in which

what we
712.

a defendant is

have termed

"culpable

They must be distinguished

"merely present"

on a

drug

Such presence, without more (i.e., absent "circumstances

presence

insufficient

itself

to ground

implies

participation,"

criminal liability.

See,
___

id.),
___

is

e.g., United
____ ______

States v. Hyson, 721 F.2d 856, 863 (1st Cir. 1983); United States
______
_____
_____________
v. Mehtala,
_______

578 F.2d 6, 9 (1st

Cir. 1978).

Spinney's situation

does not fit within the integument of the genuine "mere presence"
cases.

22

hold

that the

jury reached

its verdict

on the

section 924(c)

count without an adequate evidentiary foundation.

IV.
IV.

CONCLUSION
CONCLUSION

This is

most

congenially

notice

of

practical

to the

likelihood

appellant's

robbery,

the rare

U.S.C.

certainty test

which the evidence,

government,

test

conviction for

18

case in

muster under

the

therefore,

justifies

the

and abetting

an armed

bank

and,

aiding

2113(d), but,

passes

viewed

nevertheless,

and, therefore,

does not

fails

the

justify the

appellant's conviction for

use of a firearm during

18 U.S.C.

924(c).

n.13 (suggesting

abetting the

and in relation to a crime

This

strike us as strange.

37

aiding and

principal's

of violence,

result, though it is unusual, does not

See, e.g., Model Penal Code

___ ____

that, where

knowledge is

2.02 at 236-

in issue,

it is

sometimes "meaningful to draw

a line between practical certainty

and awareness

risk").

notice

of likelihood must

the government

less

of substantial

than is

can meet

So it

be proven beyond

this burden

required to

prove that

by an

is here:

though

a reasonable doubt,

evidentiary showing

the defendant

knew to

full

of

practical certainty that a gun would be used.

We

complexities,

need

go

no

further.

and language is, at

The

law

is

best, an imperfect device for

capturing the energy of ideas.

by the Sanborn
_______

hand, and by

other

Here, interpreting the words used

court ("notice of . . .

the Powell
______

likelihood"), on the one

court ("practical

certainty"), on

the

hand, "in the light of the tacit assumptions upon which it

23

is reasonable to

Agler,

suppose that

the language was

used," Ohio
____

v.

280 U.S. 379, 383 (1930) (Holmes, J.), it is unsurprising

_____

to discover a fork in the road.

The appellant's conviction on count 2 is affirmed and

The appellant's conviction on count 2 is affirmed and
_______________________________________________________

the appellant's conviction on count 3 is reversed.

the appellant's conviction on count 3 is reversed.
_________________________________________________

24