United States v. Beckett

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

3-21-2000

United States v Beckett

Precedential or Non-Precedential:

Docket 99-1135

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation

"United States v Beckett" (2000). 2000 Decisions. Paper 62.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/62

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed March 21, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1135

UNITED STATES OF AMERICA

v.

JAMES CARROLL BECKETT,

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Criminal No. 91-cr-00121-01)

District Judge: Honorable Thomas N. O'Neill, Jr.

Submitted Under Third Circuit LAR 34.1(a)

February 1, 2000

Before: BEFORE: MANSMANN, NYGAARD, and RENDELL,

Circuit Judges.

(Filed: March 21, 2000)

Michael P. Gottlieb, Esq.

Vangrossi & Recchuiti

319 Swede Street

Norristown, PA 19401

Attorney for Appellant

Christopher R. Hall, Esq.

Suite 1250

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Attorney for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellant James C. Beckett was found guilty of two

counts each of robbery and armed robbery, in violation of

18 U.S.C. SS 2113(a) & (d), and then sentenced by the

District Court. Because Beckett's trial counsel failed to file

a timely notice of appeal on his behalf, the District Court

agreed to re-sentence him so he could file a notice of

appeal.

Becket now argues that the District Court erred by (1)

determining that he was a career offender; (2) failing to

provide him with his rights of allocution; (3) imposing

restitution without determining his ability to pay, and

delegating the restitution issue to the Bureau of Corrections

to be dealt with at a later date; (4) sentencing him on both

charges of armed bank robbery under 18 U.S.C. S 2113(d),

and robbery under 18 U.S.C. S 2113(a); (5) permitting

ineffective assistance of counsel and allowing reversible

error to go uncorrected, when the Assistant United States

Attorney referred to Beckett as a "repeat offender" at trial

and Beckett's counsel did not object; (6) giving the jury an

erroneous and confusing instruction; (7) violating his

speedy trial rights; (8) allowing the guilty verdicts on the

charges of robbery and bank robbery to stand when they

were not supported by the evidence; and (9) allowing the

guilty verdict to 18 U.S.C. S 2113(d) to stand when it was

not supported by the evidence.

The government admits that the District Court erred by

failing to make specific findings of fact concerning Beckett's

ability to pay restitution, and by sentencing Beckett for

both his convictions for armed bank robbery, and the lesser

2

included offense of bank robbery. We will reverse and

remand for factual findings on the question of Beckett's

ability to pay restitution. We will vacate the sentence

imposed for the lesser included offenses of bank robbery,

charged in Counts One and Three of indictment of March

26, 1991. We will affirm the District Court as to all other

issues.

I. FACTS

In June, 1990, a man entered the Home Unity Bank

branch located in Bensalem, Pennsylvania. He placed a box

on the counter before teller Bea Ludwig. This box had an

antenna and a lighted button on it. A co-worker, Cassandra

Waters, saw the man place the box on the counter. She

described him as wearing glasses, and an out of style,

uncoordinated suit that caught her attention. She

estimated that he was between 5'6" and 5'7" tall. Another

bank employee, Anne McCauley, noticed that the man was

wearing surgical gloves.

The man handed Ludwig a note that stated:

Stay calm. Say nothing. Do not look around nor at me

and nothing will happen. Highly-sophisticated remote

control bomb receiver facing you. I have a transmitter

in my pocket with a gun. Put all of the money in a

brown envelope with this note. No red dye. Do not be

a fool. Hurry. Wait two minutes after we leave before

moving.

Ludwig gave the man all of the money in her drawer,

$1,093. The man left the box on the counter, and exited the

bank. Ludwig then told a co-worker that she had been

robbed, and began to cry. Ludwig and the other people in

the bank retreated into the vault, and then to a neighboring

building to escape what they thought was a bomb.

The Bomb Squad used a robot to remove the box from

the Home Unity Bank. The robot carried the suspected

bomb outside to the parking lot, and broke it apart with a

single shotgun shell. The police then gathered all the debris

from the bomb as evidence, including a piece of antenna.

3

Cassandra Waters later picked Beckett's photograph out

of a photographic line-up, and also identified Beckett as the

robber from the witness stand at trial.

At the time of this robbery, Beckett lived with his wife,

Patricia Fuller, and a son, at the Creekside Apartments on

Knights Road in Bensalem, a short distance from the Home

Unity Branch that was robbed. The day after the robbery

Beckett paid $475 in cash for a 1980 blue Ford Granada.

Three months later, a man wearing glasses, a tie, and a

trench coat entered the Bensalem branch of Fidelity Bank.

He approached teller Maria Sanchez. She described him as

approximately 5'4" tall. The man handed Sanchez a note

and an envelope. The note instructed her not to look

around. It explained that there was a bomb which had been

activated. It warned her not to place a dye pack with the

money. Sanchez gave the man all the money she had,

including a night deposit she had been working on, totaling

$9,988.

Coincidently, a local resident was out for a walk near the

Fidelity Bank and saw a man wearing a trench coat run by.

The man was trying to get his right arm out of the coat

without using his left hand, as though he was holding

something with his left hand. The man then got into a blue

car, spun his wheels, and drove away.

When the police arrived, a teller reported that the robber

had used a bomb. A detective noticed a shoe box with

wrapping paper around it near one of the teller windows.

The detective evacuated the customers and employees,

sealed off the area, and called the Philadelphia Bomb

Disposal Unit. The Bomb Squad used a robot to remove the

box and transport it to a remote area of the parking lot. It

then shot the box with compressed air and water.

Detectives collected the debris from the hoax bomb,

including gift wrapping paper and the business section

from the September 9, 1990 edition of the Philadelphia

Inquirer. A detective located gift wrapping paper that was

identical to that used in the hoax bomb from the Fidelity

Bank robbery in a Pathmark store just opposite Beckett's

Creekside apartment.

4

On the day of the Fidelity Bank robbery, Beckett traded

in his blue Granada and paid $3,320 in cash for a 1986

Buick Electra. An employee from the used car dealership

that sold Beckett the Buick found a glove in the back seat

of the Ford Granada that Beckett had traded in. An FBI

agent later recovered a brown bag from behind the front

seat that contained a broken pair of eyeglasses.

Also on the same day, Beckett paid $1,300 to rent a new

apartment at 10103 Northeast Avenue in Philadelphia. The

next day, he paid $210.94 in cash for a TV. On the

following day, he paid $2,314.97 in cash for furniture, a

VCR, a stereo, and telephones. These expenditures totaled

$7,145.91.

His girlfriend, Debra McCole, testified that she dated

Beckett during the summer and fall of 1990. Beckett told

her that he had rented the apartment at 10103 Northeast

Avenue for her, and that he was going to furnish it for her,

her son, and the baby she was expecting. He took her to

see it after he bought his new car. He also gave McCole

between $50 and $100. McCole identified the gift wrapping

paper located by detectives at the Pathmark store, and

identical to that used in the hoax bomb, as the same gift

wrapping paper she had used for her son's birthday on

September 30, 1990, the day before the Fidelity Bank

robbery.

Beckett's wife, Patricia Fuller, told an FBI agent that she

had never seen any pay stubs for Beckett around the

house, and had not seen him with any cash. In the spring

of 1989, Beckett told her that he was paying the rent. In

fact, he had not, and they were almost evicted. Fuller took

responsibility for the rent, telephone, and utilities in the

summer of 1989. Beckett did not provide money towards

these bills, although he did promise Fuller he would move

her and her son to a new apartment at 10103 Northeast

Avenue.

Police went to Beckett's new 10103 Northeast Avenue

address on October 8, 1990. They found a sock containing

$60 behind a vent on the second floor. Later that day,

police went to Beckett's old apartment at Creekside and

recovered a trench coat from the living room closet that

belonged to him.

5

Detective Robert Schutter interviewed Beckett at his

Creekside apartment. Beckett stated that he worked for a

carpet installer named Joe Regan, earned $80 a day, was

paid by check, but had not worked for two or three weeks.

Detective Schutter found small pieces of a broken silver

metallic antenna in a closet, and a September 9, 1990

edition of the Philadelphia Inquirer that had only one page

from the Business Section. Joe Regan later testified that

Beckett had worked for him last in September of 1989, not

September of 1990 as Beckett had represented to the

police.

Although Beckett was arrested by local authorities for the

Fidelity Bank robbery, the evidence was presented to a

federal grand jury, which returned a four-count indictment

against Beckett. Counts One and Two charged robbery and

armed robbery of the Home Unity Savings Bank in

Bensalem, Pennsylvania. Counts Three and Four charged

robbery and armed robbery of the Fidelity Bank in

Bensalem, Pennsylvania. The armed robbery charges in

Counts Two and Four stemmed from Beckett's use of the

hoax bombs to secure monies from the tellers. Beckett filed

a Motion to Dismiss the Indictment, on the basis of the

delay between his state arrest and his federal indictment,

which the District Court denied.

At trial, an FBI fingerprint specialist testified that she

had identified one of Beckett's fingerprints on the

newspaper recovered from the hoax bomb used in the

Fidelity Bank robbery.

An FBI bomb expert examined the remnants of the hoax

bombs and opined at trial that they were built either by the

same person, or by persons having intimate knowledge of

one another's activities. The expert noted that (1) both

devices used a small cardboard box as a container; (2) both

boxes were reinforced with 3/4 inch masking tape that was

manufactured with the same paper; (3) both devices lacked

a dummy explosive charge, meaning that there was no

simulated switch or simulated explosive that represented a

popular concept of what explosives looked like, such as

flares, modeling clay, or PVC pipe; and (4) both devices

were gift wrapped, an "extremely unusual" characteristic.

The agent testified that the FBI laboratory reviews

6

approximately 70 hoax bombs a year, and since 1983, only

one other was gift wrapped.

At the close of the trial, counsel moved for a directed

verdict of acquittal on the ground that the evidence failed to

establish the elements of aggravated robbery under 18

U.S.C. S 2113(d). This section provides for a maximum five

year sentencing enhancement if the defendant either

assaulted any person or put their life in jeopardy by use of

a dangerous weapon. The District Court granted this

motion to the extent that the government intended to

proceed on the "jeopardy" prong of Section 2113(d), but

denied the motion as to the "assault" prong. The District

Court then instructed the jury on the elements of both

bank robbery and assault during the course of bank

robbery by use of a dangerous weapon.

The jury returned verdicts of guilty on all counts. At the

sentencing hearing, the District Court heard arguments on

the question of whether the career offender provisions of

the Sentencing Guidelines applied in light of Beckett's two

prior convictions for bank robbery in 1982. The District

Court found that the two prior convictions were not part of

a single common plan or scheme, and that the career

offender provisions applied.

The District Court provided Beckett with the right of

allocution at the first sentencing hearing. Beckett

addressed the court, asserted his innocence, and argued

the evidence from trial.

The District Court sentenced Beckett to 262 months of

imprisonment on Counts Two and Four -- the armed

robbery counts -- and to concurrent terms of 240 months

each on Counts One and Three, the statutory maximum

sentence for the lesser included offenses of bank robbery.

The District Court also directed the Bureau of Prisons to

calculate Beckett's release date using the date he was first

taken into state custody under a state arrest warrant, six

months before his federal arrest.

The District Court also ordered that Beckett make

restitution in the amount of $9,988 to Fidelity Bank and

$1,093 to Home Unity Bank, for a total of $11,081 to be

7

paid on a schedule that would be established by the

probation office.

Beckett filed a motion pursuant to 28 U.S.C. S 2255,

requesting that the District Court vacate his sentence

because his counsel failed to file a notice of appeal. The

District Court appointed new counsel, granted Beckett's

motion, and scheduled a re-sentencing so that Beckett

could file a timely appeal from that hearing.

At the second sentencing, newly appointed counsel again

raised the question of whether the career offender

provisions applied, and argued that the sentencing court

could depart downward even if those provisions did apply.

Beckett testified regarding his planning of the two 1982

robberies. The District Court found Beckett not credible,

held that the career offender provisions applied, and

reaffirmed its prior ruling that the guidelines range was

262-327 months. The District Court then departed

downward because the career offender provisions

overstated the defendant's criminal history and risk of

recidivism, and imposed concurrent sentences of 180

months on all counts. The District Court also reiterated its

instruction to the Bureau of Prisons that the date of

Beckett's state arrest shall be used to calculate his release

date.

Finally, the District Court reinstated the restitution

order, but did not make findings of fact regarding the

defendant's ability to pay, reasoning that it could adjust the

amount at a later date if necessary.

II. DISCUSSION

A.

Section 4B1.1 of the Sentencing Guidelines directs the

sentencing court to impose enhanced terms of

imprisonment upon defendants who have been convicted of

violent or controlled substances offenses, and who

previously incurred two or more felony convictions for

either crimes of violence or drug trafficking. Beckett argues

that the District Court erred by declaring him a career

8

offender, claiming that his two prior bank robbery

convictions were part of a common scheme.1 Therefore, he

argues, they should have been counted as a single prior

conviction, and the career offender enhancement should

not have been applied to him.

Section 4B1.2(c)(2) states that to be counted towards

Section 4B1.1's requirement of two prior felony convictions,

each prior felony conviction must be separate from any

other prior convictions. Section 4A1.2(a)(2) provides that

"[p]rior sentences imposed in unrelated cases are to be

counted separately. Prior sentences imposed in related

cases are to be treated as one sentence." Therefore, if a

defendant has two prior felony convictions, but they stem

from related cases, they are treated as a single conviction

for purposes of applying the career offender enhancement

of Section 4B1.1.

The question is when do two felony convictions stem from

"related" cases. Application Note 3 to Section 4A1.2

explains:

Prior sentences are not considered related if they were

for offenses that were separated by an intervening

arrest (i.e., the defendant is arrested for the first

offense prior to committing the second offense).

Otherwise, prior sentences are considered related if

they resulted from offenses that (A) occurred on the

same occasion, (B) were part of a single common

scheme or plan, or (C) were consolidated for trial or

sentencing.

Beckett's convictions stemmed from (1) the robbery of the

Western Savings Bank; and (2) the robbery of the Benjamin

Franklin Federal Savings and Loan. Beckett was arrested

on April 2, 1982 for both robberies. Beckett's two prior

convictions for bank robbery were thus not separated by an

_________________________________________________________________

1. Beckett also challenges his career offender status on the ground that

his guilty plea colloquy to one of his prior convictions was defective.

However, Beckett failed to raise this argument below or in any collateral

attack on that judgment. He has therefore waived that argument. See

Curtis v. United States, 511 U.S. 485, 497 (1994) (defendant must

challenge prior conviction in separate collateral proceeding).

9

intervening arrest. However, they did not result from

offenses that occurred on the same occasion, nor from

offenses that were consolidated for trial or sentencing. He

was charged by separate federal indictments, the cases

were assigned to different federal judges, and the

proceedings were never consolidated.

The only question is whether they were part of a single

common scheme or plan. The Guidelines do not define this

term, nor have we addressed the issue.2 However, the

United States Court of Appeals for the Seventh Circuit has,

and it held that the terms " `scheme' and`plan' are words of

intention, implying that [the two offenses] have been jointly

planned, or at least that it would have been evident that

the commission of one would entail the commission of the

other as well." United States v. Ali, 951 F.2d 827, 828 (7th

Cir. 1992).

Similarly, the United States Court of Appeals for the

Second Circuit has held that two prior attempted robbery

convictions were not related when they occurred four days

apart, at different locations, and had separate victims. See

United States v. Keller, 58 F.3d 884, 894 (2d Cir. 1995). The

Court there rejected the defendant's arguments that

because the robberies were part of a "robbery spree," the

"two crimes had robbery as their common purpose." Id. The

court stressed that temporal proximity does not suffice to

show the "close factual relationship" between the two

crimes that is needed to prove "relatedness." Id.

Once the government has established the existence of two

prior violent or drug convictions, the burden for

establishing that the prior convictions were part of a

_________________________________________________________________

2. Beckett argues that the Sentencing Guidelines do define "common

scheme" in the relevant conduct provisions set forth in Section 1B1.3,

and that this definition should apply in the career offender context as

well. We reject this argument, as the two provisions are designed to take

different considerations into account and have different goals. See United

States v. Cowart, 90 F.3d 154, 158 (6th Cir. 1996) (relevant conduct

definition of "common scheme or plan" is not binding on career offender

determination); United States v. Butler, 970 F.2d 1017, 1024 (2d Cir.),

cert. denied, 506 U.S. 980 (1992) (Guidelines do not define "common

scheme or plan" as it relates to application note 3 to Section 4A1.2).

10

common scheme or plan lies, logically enough, with the

defendant who has access to that information. See United

States v. Cowart, 90 F.3d 154, 159 (6th Cir. 1996). Here,

the District Court afforded Beckett the opportunity to

produce evidence that his prior robberies were part of a

common scheme. This comes down to a question of fact,

and we review the District Court's findings on this subject

for clear error. See United States v. Butler, 970 F.2d 1017,

1024 (2d Cir.), cert. denied, 506 U.S. 980 (1992).

Beckett testified at his second sentencing hearing that he

had planned the 1982 robberies and had made hoax bombs

to carry them out at the same time. The District Court

found that Beckett was not credible on this issue.

If the district court's account of the evidence is

plausible in light of the record viewed in its entirety,

the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact,

it would have weighed the evidence differently. Where

there are two permissible views of the evidence, the

factfinder's choice between them cannot be clearly

erroneous.

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-

74 (1985) (citations omitted). Moreover, where the District

Court's findings are based on credibility determinations, the

rule "demands even greater deference to the trial court's

findings; for only the trial judge can be aware of the

variations in demeanor and tone of voice that bear so

heavily on the listener's understanding of and belief in what

is said." Id. at 575.

The District Court's findings were not clearly erroneous.

Beckett offered only sparse details regarding his common

plan, to the effect that he made two hoax bombs at the

same time. Moreover, even assuming the truth of Beckett's

assertions, "evidence of a plan simply to commit robberies

when and as money is desired or needed cannot be enough

by itself to permit the repeat robber to avoid being

considered a career offender." Butler, 970 F.2d at 1024-25

(citation omitted). If we discount or disregard Beckett's

assertion of a common plan, there is no evidence of a single

plan or scheme; the fact that the device and victim were

11

similar does not transmute two offenses into conduct

undertaken pursuant to a common plan or scheme. We are

satisfied that Beckett's two prior convictions were properly

considered as separate felony convictions.3 The District

Court therefore did not err by applying the career offender

enhancement to Beckett.

B.

Next, Beckett argues that the District Court erred by

failing to provide him with his rights of allocution. The

District Court did afford Beckett the right of allocution at

his first sentencing hearing. Beckett asserted his

innocence, and argued the evidence from trial. The District

Court only scheduled a second sentencing hearing because

Beckett's first counsel had deprived him of the right to

appeal by failing to file a notice of appeal within ten days

of the first sentencing. Moreover, Beckett took the stand

during the second sentencing hearing, where he was

represented by new counsel, and he had every opportunity

to address the District Court.

Importantly, even were we to assume that Beckett was

denied the right of allocution, we conclude that he was not

prejudiced because the District Court departed downward

from the Sentencing Guidelines range of 262-327 months,

imposing a sentence of 180 months. In so holding we follow

the Court of Appeals for the Fourth Circuit, which held in

United States v. Lewis, 10 F.3d 1086, 1092 (4th Cir. 1993),

that although it was error to deny a defendant his right of

allocution at sentencing, he suffered no prejudice because

he was sentenced to the Guidelines minimum.

_________________________________________________________________

3. Our decision in United States v. Hallman , 23 F.3d 821 (3d Cir. 1994),

cert. denied, 513 U.S. 881 (1994), is not to the contrary. That case

applied Section 4A1.2(a)(1), not (a)(2), to determine whether a prior

conviction was part of the same offense for which the defendant was

being sentenced. We held that the intent of the defendant at the time of

the prior offense governed. Id. at 826 (citing United States v. Ali, 951

F.2d 827, 828 (7th Cir. 1992)). That reasoning supports our decision

here.

12

C.

Beckett, the government, and we agree that the District

Court erred by imposing restitution without determining

Beckett's ability to pay. At the close of Beckett's second

sentencing hearing, his new counsel requested that the

District Court make specific findings concerning Beckett's

ability to pay approximately $11,000 in restitution. The

District Court declined, on the ground that it could adjust

the restitution order after Beckett began to serve his term

of supervised release, if necessary.

The provisions of 18 U.S.C. S 3663 in effect at the time of

Beckett's offenses required sentencing courts to make

findings concerning a defendant's present and future ability

to pay restitution. The District Court should have followed

Section 3663 when it ordered restitution in this case,

despite changes made to the law after Beckett committed

the robberies. See United States v. Edwards, 162 F.3d 87,

92 (3d Cir. 1998) (ex post facto clause applies to Mandatory

Victims Restitution Act of 1996). We therefore remand for

findings of fact and re-sentencing on this issue.

D.

Beckett, the government, and we also agree that the

District Court erred by sentencing him concurrently on

both the charge of armed bank robbery under 18 U.S.C.

S 2113(d), and on the lesser included offense of robbery

under 18 U.S.C. S 2113(a). The District Court sentenced

Beckett to 180 months on Counts One through Four.

Count One charged the robbery of Home Unity Bank, in

violation of 18 U.S.C. S 2113(a); Count Two concerned the

armed robbery of the same bank, in violation of 18 U.S.C.

S 2113(d); Count Three involved the robbery of Fidelity

Bank, in violation of 18 U.S.C. S 2113(a); and Count Four

referred to the armed robbery of Fidelity Bank in violation

of 18 U.S.C. S 2113(d).

The concurrent sentences imposed on Counts One and

Three for the lesser included offenses of bank robbery

violated the Double Jeopardy Clause. See Gov't of Virgin

Islands v. Dowling, 633 F.2d 660, 668 (3d Cir.), cert.

denied, 449 U.S. 960 (1980). We will vacate the sentence

13

imposed on Counts One and Three, the lesser included

offenses of bank robbery. Beckett's sentences for the

remaining counts stand.

E.

Beckett's next argument is that the District Court

committed reversible error by allowing the Assistant United

States Attorney to refer to Beckett as a "repeat offender."

Beckett also argues that his counsel's failure to object to

this characterization demonstrates that he received

ineffective assistance of counsel. Beckett claims that this

reference was made in "blatant disregard" of a pre-trial

ruling by which the District Court excluded Beckett's 1982

bank robbery convictions from trial evidence.

This misconstrues the record. The Assistant United

States Attorney said the following at the start of his opening

statement:

This case is about a deja vu bank robber, a repeat

offender, a man who, within the span of three months,

robbed two banks in the same town, Bensalem, using

the exact same method, the exact same means. . . .

The only question before you, ladies and gentlemen, is

whether that man is the defendant, James Carroll

Beckett.

This statement is not improper. The term "repeat offender"

referred solely to the crimes under indictment. At trial, the

government never mentioned Beckett's 1982 bank robbery

convictions, either directly or indirectly.

F.

Beckett contends that the District Court gave the jury an

erroneous and confusing instruction that warrants reversal.

He challenges the following instruction by the District

Court to the jury:

Now, I wanted to talk to counsel because I think

something I said previously may have misled you, and

I didn't certainly intend to mislead you. You'll recall I

said that your verdict on any count doesn't control

14

your verdict on any other count. In the context of this

case, that's not true.

And, the reason is that I've just told you that as to the

armed robbery counts, Counts 2 and Count 4 -- Count

2 and 4, that in Count 2 the Government must prove

beyond a reasonable doubt, first of all, that there was

a robbery. All the elements of that [are] charged in

Count 1. So, obviously, in Count 1 if you find that the

defendant did not commit the robbery alleged in Count

1 in the Home Unity Bank, then, obviously, you're not

called upon to determine whether he committed that

robbery as an armed robbery. And, in like manner, in

Count 3, if you should find that he did not commit the

robbery at the Fidelity Bank, well, then obviously in

Count 4, he didn't commit an armed robbery of Fidelity

Bank.

So, on the other hand, if you find that he did commit

the robbery in Count 1 at the Unity Bank, then you've

got to go on and decide did he also commit an armed

robbery at that bank in accordance with the law as I've

outlined to you. And, in like manner, if you find in

Count 3 that he committed the robbery at the Fidelity

Bank, then you must also go on and consider whether

he committed an armed robbery at the Fidelity Bank as

defined in my instructions to you. Is that satisfactory,

counsel?

Counsel for Beckett: Yes, Your Honor.

Because Beckett did not object to this instruction at trial,

we review it only for plain error. See United States v. Tobin,

155 F.3d 636, 641 n.4 (3d Cir. 1998), cert. denied, 525 U.S.

1171 (1999). We hold that the District Court's instruction

clearly instructed the jury that (1) it should acquit the

defendant of armed robbery if it acquitted him of robbery;

and (2) that it had to consider separately the evidence on

armed robbery -- and determine whether the government

had met all of the required elements -- even if it found

Beckett guilty of the lesser included offense of robbery. This

is not error.

15

G.

Next, Beckett believes his right to a speedy trial was

violated because of the nine month delay between his arrest

by local authorities for the Fidelity Bank robbery and his

federal trial for both the Fidelity Bank and Home Unity

Bank robberies. We disagree.

The five year statute of limitations for non-capital federal

offenses governs the time limit within which the federal

government must bring an indictment for an offense. See

18 U.S.C. S 3282. Here, the government brought the Home

Unity Bank charges within one year of the robbery, and the

Fidelity Bank charges within nine months.

The federal Speedy Trial Act governs post-accusation

periods of delay. See 18 U.S.C. S 3161. It requires the

government to bring defendants to trial within 70 days of

their indictment or first appearance before a judicial officer

of the court in which the charge is pending, whichever date

last occurs. See 18 U.S.C. S 3161(c)(1). The delay between

Beckett's federal arraignment on April 11, 1991, and the

commencement of his jury trial on June 10, 1991, was 60

days. This period is reduced to 35 days when permissible

delay for the disposition of pre-trial motions is excluded.

Beckett argues that the federal government nonetheless

violated his Due Process rights by intentionally delaying its

indictment for a period of six months after the Fidelity

Bank robbery and his local arrest. He fails, however, to

specify how he was prejudiced.

Beckett can make out a claim under the Due Process

Clause only if he can show both (1) that the delay between

the crime and the federal indictment actually prejudiced his

defense; and (2) that the government deliberately delayed

bringing the indictment in order to obtain an improper

tactical advantage or to harass him. See United States v.

Lovasco, 431 U.S. 783, 789-90, 795-96 (1977); United

States v. Ismaili, 828 F.2d 153, 168 (3d Cir. 1987), cert.

denied, 485 U.S. 935 (1988).

Beckett has not shown either actual prejudice or

improper delay. He does not, for instance, claim that items

of evidence or documents were lost, witnesses became

16

unavailable, or that memories faded as the result of the six

month delay. See United States v. Marion, 404 U.S. 307,

325-26 (1971) (appellee failed to demonstrate that 38

month delay actually dimmed memories, made witnesses

inaccessible, or caused evidence to be lost).

Nor has he shown that the federal government delayed

the indictment deliberately to harass him or to gain some

improper advantage. The Due Process Clause does not

require prosecutors to file charges as soon as probable

cause exists, or even at the point where the government's

investigation, though incomplete, has assembled sufficient

evidence to prove guilt beyond a reasonable doubt. See

Lovasco, 431 U.S. at 791-95. We see no evidence of

improper delay while the federal government was building

its case against Beckett regarding the robbery of the Home

Unity Bank, an armed robbery not charged by the state

authorities.

H.

Beckett challenges the sufficiency of the evidence against

him regarding the charges of robbery and bank robbery,

and believes that the District Court erred as a matter of law

by allowing these verdicts to stand. We must sustain the

verdict if there is substantial evidence, viewed in the light

most favorable to the government, to uphold the jury's

decision. See United States v. Casper, 956 F.2d 416, 421

(3d Cir. 1992) (citing Burks v. United States , 437 U.S. 1, 17

(1978)). We do not weigh evidence or determine the

credibility of witnesses in making this determination. See

Casper, 956 F.2d at 421.

The evidence presented at trial, and described in our

summary of the facts above, amply established that Beckett

was the individual who robbed the Home Unity and Fidelity

Banks. The evidence was both circumstantial and direct.

There was clearly sufficient evidence on which a reasonable

jury could rely to reach its verdicts.

I.

Finally, Beckett argues that the District Court erred by

allowing the guilty verdict for armed robbery under 18

17

U.S.C. S 2113(d) to stand, when it was also allegedly not

supported by the evidence. In this regard, Beckett argues

that the government failed to establish that the hoax bombs

were dangerous weapons. We disagree.

Subsection 2113(a) of the bank robbery statute provides

in pertinent part that:

Whoever, by force or violence, or by intimidation, takes

. . . from the person or presence of another . . . money

. . . belonging to . . . any bank . . . shall be . ..

imprisoned not more than twenty years.

Subsection 2113(d) provides a five year increase in the

maximum sentence for any person who,

in committing . . . any offense defined in subsections

(a) or (b) of this section, assaults any person, or puts

in jeopardy the life of any person by the use of a

dangerous weapon or device. . . .

The District Court precluded the government from

arguing that the "jeopardy" prong of Section 2113 applied

in its closing. It instructed the jury only on the"assault"

provision:

In order to sustain its burden of proof for the crime of

armed bank robbery as charged in Count 2 of the

indictment, the Government must first prove the three

elements to be proved for bank robbery, as already

stated. In addition, the Government must also prove

that the defendant deliberately assaulted the Home

Unity Savings Bank employees by the use of a

dangerous weapon or device while taking the money.

. . .

The term dangerous weapon or device means any

object that can be used by one person to inflict severe

bodily harm or injury upon another person. The

weapon or device need not actually be capable of

inflicting severe bodily harm or injury upon another to

be dangerous, rather, a weapon or device may be

considered to be dangerous if it instills fear in the

average citizen creating an immediate danger that a

violent response will follow.

18

The District Court's instructions accurately explained the

elements of the assault prong of Section 2113(d). See

Simpson v. United States, 435 U.S. 6, 11-12 n.6 (1978)

(phrase "by the use of a dangerous weapon or device"

modifies both "assault" and "jeopardy" provisions of

subsection (d) regardless of the comma that followed the

term "assaults any person").

The instructions also accurately explained that"[t]he

weapon or device need not actually be capable of inflicting

severe bodily harm or injury upon another to be dangerous,

rather, a weapon or device may be considered to be

dangerous if it instills fear in the average citizen creating an

immediate danger that a violent response will follow."

In McLaughlin v. United States, 476 U.S. 16 (1986), the

Supreme Court held that an unloaded gun is a "dangerous

weapon" as that term is used in Section 2113(d). The Court

rested its holding on three conclusions, each of which, the

Court held, was independently sufficient:

First, a gun is an article that is typically and

characteristically dangerous; the use for which it is

manufactured and sold is a dangerous one, and the

law reasonably may presume that such an article is

always dangerous even though it may not be armed at

a particular time or place. In addition, the display of a

gun instills fear in the average citizen; as a

consequence, it creates an immediate danger that a

violent response will ensue. Finally, a gun can cause

harm when used as a bludgeon.

Id. at 17.

The bombs, although they turned out to be fakes, would

reasonably have instilled fear in an average citizen, thereby

creating an immediate danger that a violent response would

ensue. They did instill such fear in this case. The Home

Unity hoax bomb had an antenna and a light. The victim

teller cried after the robber left. Detectives responding to

both robberies called the Bomb Squad, causing the

evacuation of numerous people from the buildings. The

Bomb Squad used a robot to remove and destroy both hoax

bombs. Clearly, they instilled fear in all those who saw

them, and provoked a police response. They therefore

19

qualify as dangerous weapons under Section 2113(d). See

United States v. Hamrick, 43 F.3d 877, 882-83 (4th Cir.) (en

banc), cert. denied, 516 U.S. 825 (1995) (a"fake bomb, as

a matter of law, may constitute a dangerous weapon[under

S 2113(d)], regardless of its actual capabilities, when a

victim confronted with it is placed in reasonable expectation

of danger") (quoting United States v. Spedalieri, 910 F.2d

707, 709 (10th Cir. 1990)).

III. CONCLUSION

In summary, we will reverse and remand for factual

findings on the question of Beckett's ability to pay

restitution. We will vacate the sentence imposed as to the

lesser included offenses of bank robbery, in violation of 18

U.S.C. S 2113(a), charged in Counts One and Three of the

indictment of March 26, 1991. We will affirm the District

Court as to all other issues.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

20