                                                                                                                           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Precedential or Non-Precedential: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




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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.

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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

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