Through AFPD Kevin McCoy, bank robber Joe Beaudion (left) raised several interesting challenges to the "brandishing" mandatory-minimum provisions of 18 USC § 924(c). See United States v. Beaudion, __ F.3d. __, 20005 WL 1668807 (9th Cir. July 19, 2005), available here. Though the defense lost this appeal, an intriguing Apprendi challenge may survive.
Players: Another hard-fought appeal by Alaska AFPD Kevin McCoy (see Kevin’s recent win in Zavala-Mendez, a § 1326 case decided in June).
Facts: Joe Beaudion robbed a bank with a .22 rifle in the small Alaskan town of Eagle’s Creek. Id. at *1. He approached a bank teller, and said, "No one has to get hurt. Just hand over the large bills." Id. He set the rifle in open view on the counter, without taking his hand off of it, and repeated this process with three other tellers. Id. He was charged with bank robbery, and with 18 USC § 924(c) – knowingly using, carrying, or brandishing a firearm in connection with the robbery. Id. Beaudion pleaded to the robbery and use of the weapon, but disputed that he "brandished" the rifle. Id. at *1-*2. He received a seven-month mandatory minimum sentence for "brandishing" over this objection. Id.
Issue(s): 1. Is the distinction between "use" and "brandish" vague and ambiguous, precluding the seven year mand-min for "brandishing?" Id. at *2. 2. "Beaudion next argues that, after Blakely and Booker, the Sixth Amendment requires that the determination of whether he ‘brandished’ the firearm be determined by a jury and not by the district court." Id.
Held: 1. Re: Ambiguity/Vagueness: "The terms at issue here, brandishing and use, are not ambiguous because, as illustrated by the above examples, ‘use’ frequently may occur without an instance of ‘brandishing,’ as will be the case where a firearm is used without displaying it to anyone." Id. at *3. 2. Re: Apprendi Challenge (Harris): "Beaudion admitted that he walked into the bank holding the rifle in plain view and laid it on the counter as he demanded the tellers give him cash. Beaudion merely denied that these facts legally amounted to brandishing. That the district court disagreed with his argument does not raise a Sixth Amendment issue." Id. at *3.
Of Note: The defense bar had mounted a similar Apprendi challenge to Section 924(c), that resulted in the infamous Harris Supreme Court decision (wherein Justice Breyer conceded that Apprendi should control, but couldn’t get himself to admit that Apprendi applied to mandatory minimum sentences). The interesting thing about the present decision is that one would think the Ninth would quickly default to Harris and reject the defense Apprendi argument as to brandishing. Instead, the Court punted, concluding that because facts were not in dispute there was no Sixth Amendment issue. Could this signal that the Harris analysis is somehow changed after Booker? As the Court summarizes Kevin McCoy’s challenge, "Beaudion argues that Harris is no longer good law in light of the Court’s subsequent decision in Blakely and Booker." Id. at *3. An interesting theory - may be worth preserving in Section 924(c) cases.
How to Use: The brandishing facts were (arguably) undisputed here. Id. at *3, but see, id. at n.6 (defense disputed gun was pointed at tellers). If possible, consider disputing "brandishing" facts in the district court, and revisit Kevin’s post-Booker § 924(c) challenge.
For Further Reading: Bank robbers who rob banks in small towns shouldn’t then go to the local bar for a drink. See newpaper article here. After robbing the Wells Fargo, Beaudion apparently retired to the local "Eagle’s Lodge" where a local cop (a native of the area) recognized a truck that was out of place. The rifle and cash from the bank were found in the front seat of the truck.
Steven Kalar, Senior Litigator N.D. Cal. FPD, website available at www.ndcalfpd.org