United States v. Darweshi Dinkane

Citations: 17 F.3d 1192; 94 Daily Journal DAR 2683; 94 Cal. Daily Op. Serv. 1489; 1994 U.S. App. LEXIS 3461; 1994 WL 57852Docket: 93-50165

Court: Court of Appeals for the Ninth Circuit; March 1, 1994; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Darweshi Dinkane was convicted of armed bank robbery under 18 U.S.C. § 2113(a) and (d) but appealed the conviction, arguing that the jury instructions were flawed. The trial jury was told that it did not need to establish Dinkane's knowledge of the use of a weapon during the robbery, which the appellate court found to be erroneous. The court determined that there was insufficient evidence to prove Dinkane was aware that the robbery would be armed prior to the robbers exiting the bank. Consequently, Dinkane's conviction was reversed, with the court ordering that judgment be entered for the lesser offense of unarmed bank robbery. 

The facts revealed that on May 29, 1992, Dinkane was involved in planning the robbery, driving a getaway car while the actual robbery was conducted by others, who were armed. Following the robbery, Dinkane and his accomplices attempted to escape but left behind incriminating evidence, including a can of spray paint and bank pamphlets with Dinkane's fingerprints. Dinkane subsequently sought a ride from a passerby, who later contacted the police after observing suspicious behavior from him and his accomplices.

Dinkane, Carmichael, and Strong were arrested after fleeing into a park where police found a loaded handgun nearby. Dinkane was charged with armed bank robbery under 18 U.S.C. Sec. 2113(a)(d) for allegedly aiding and abetting the robbery by driving the getaway car, despite not being present in the bank during the crime. At trial, the jury received an incorrect instruction stating that the government did not need to prove Dinkane's knowledge of a weapon being used, a point the government later acknowledged as erroneous. Dinkane was convicted on October 14, 1992, and sentenced on February 18, 1993. He appealed on three grounds: the erroneous jury instruction, insufficient evidence for a conviction, and the trial court's refusal to instruct on the lesser offense of accessory after the fact.

The appellate court ruled that the conviction must be reversed due to the improper jury instruction, which did not require the jury to find that Dinkane knew a weapon would be used in the robbery, contrary to established circuit requirements. Additionally, Dinkane contended that evidence was insufficient to prove he had knowledge of the robbery prior to its occurrence, arguing that no rational jury could have found him guilty beyond a reasonable doubt. The court noted that while circumstantial evidence could support a conviction, mere speculation could not, and the inquiry hinged on whether the jury could reasonably reach its verdict based on the evidence presented.

The erroneous jury instruction necessitates the reversal of the armed bank robbery conviction. The focus is on whether the evidence is sufficient for the government to retry the charge on remand. Following Burks v. United States, if a reviewing court finds evidence insufficient to uphold a jury's verdict, retrial is barred. In this case, the evidence was deemed insufficient to support a conviction, thus prohibiting retrial.

Aiding and abetting a bank robbery can lead to conviction as a principal if the defendant knowingly and intentionally assisted in each essential element of the crime while it was in progress. If assistance occurs after the crime has ended, the individual can only be guilty as an accessory after the fact. Armed bank robbery, under 18 U.S.C. § 2113(d), is an aggravated form of unarmed robbery and requires proof of both the underlying offense and the aggravating behavior of assaulting someone or jeopardizing life with a dangerous weapon.

The aggravating element must occur during the commission of the robbery. To convict a getaway driver of aiding and abetting an armed bank robbery, the prosecution must demonstrate that the driver knowingly aided both the underlying robbery and the aggravating conduct—assault or endangerment—during the robbery. If the driver's actions only occur after the use of a dangerous weapon has ended, they cannot be convicted of the armed robbery charge. Relevant case law reinforces that for a § 2113(d) conviction, the government must establish that the defendant aided the principal in both the robbery and the use of a dangerous weapon during the act.

A defendant cannot be convicted of aiding and abetting armed bank robbery unless there is evidence that they knew their accomplice used a weapon in a threatening manner during the commission of the crime. This principle was affirmed in the case of Dinkane, where the court found insufficient evidence to support his conviction. Although Dinkane was involved in planning the robbery and was aware that his accomplice was armed, there was no evidence that he knew of the weapon's presence or intended to assist in its use prior to or during the robbery. The security guard did not report seeing any weapons before the robbery, and testimony indicated that Dinkane did not participate in the robbery itself, remaining outside in the getaway car. Furthermore, while Dinkane saw the robbers armed during their escape, there was no indication that weapons were used to threaten anyone at that time. Consequently, the court concluded that the evidence did not establish Dinkane's knowing and intentional participation in an essential element necessary for a conviction of armed bank robbery.

The government contends that, despite insufficient evidence to convict Dinkane of armed bank robbery, there is enough evidence to support a conviction for unarmed bank robbery under 18 U.S.C. § 2113(a). The court agrees and instructs the trial court to enter a judgment of conviction for unarmed bank robbery as a lesser-included offense. Dinkane was originally convicted of armed bank robbery but was not separately charged with unarmed bank robbery, leaving no existing judgment for affirmation. However, the court can direct the entry of judgment on a lesser offense if certain criteria are met: (1) the lesser offense is a subset of the greater offense; (2) the jury was instructed on the lesser offense and its elements; and (3) the government requested judgment on the lesser offense on appeal.

All criteria are satisfied in Dinkane's case. Unarmed bank robbery is a lesser-included offense of armed bank robbery, and the jury's finding of armed bank robbery implies a finding of unarmed bank robbery as well. The jury received proper instructions regarding the lesser offense, and the government correctly requested affirmation of Dinkane’s conviction for unarmed bank robbery on appeal.

The statute defines unarmed bank robbery as taking or attempting to take property from a bank through force, violence, or intimidation. Additionally, case law indicates that the crime continues during hot pursuit, meaning that individuals aiding in a getaway can be charged as accomplices rather than merely as accessories. This principle was upheld in circuit cases, including United States v. Lovato, where the jury was instructed that an accomplice could be guilty of robbery even if they were unaware of the robbery at the time it occurred.

The crime of unarmed bank robbery, as defined in Section 2113(a), extends beyond the immediate scene of the robbery to include the escape, aligning with the statute's plain language. A reasonable jury could find Dinkane guilty of aiding and abetting the robbery based on evidence indicating he was aware of the robbery plans beforehand, including his identification by a security guard and testimony that he scouted the bank for security cameras. Dinkane's fingerprints were found on bank pamphlets in the getaway car, and he conferred with the robbers shortly before the crime. Even if his prior involvement was unclear, his actions during the escape—driving the getaway car under instructions and fleeing with the robbers—could lead a reasonable jury to conclude that he knowingly aided their escape. Dinkane's claims of ignorance regarding the robbery were not sufficient to negate his culpability, as the jury was not obliged to accept his explanations. Additionally, Dinkane argued that the trial court erred by not instructing the jury on the lesser included offense of accessory after the fact to bank robbery. While there is some debate over the standard of review for such jury instruction refusals, it has generally been reviewed for abuse of discretion.

Entitlement to a lesser-included offense instruction requires a two-step process: identifying the lesser offense and demonstrating that a rational jury could find the defendant guilty of the lesser offense but not the greater one. A lesser-included offense instruction is unnecessary if the evidence indicates that a rational jury could not find the defendant guilty of any lesser offense without relying on evidence that also establishes guilt for the charged offense. Dinkane argued that he was only involved during the escape phase of a robbery, suggesting he should have been considered an accessory after the fact. However, this argument fails because the escape phase is integral to the unarmed bank robbery charge. The evidence showing Dinkane's involvement as a getaway driver also implicates him as an aider and abettor in the unarmed bank robbery, justifying the trial court's refusal to give the requested instruction. The court vacated Dinkane's conviction for armed bank robbery and barred retrial on that count, directing the district court to enter a conviction for unarmed bank robbery instead. The ruling also noted a divergence from Second Circuit law regarding the role of an escape driver in armed robbery scenarios.