F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     August 22, 2006
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court

 UNITED STATES OF AM ERICA,
              Plaintiff - Appellee,                     No. 04-7101
                                                      (E. D. Oklahoma)
 v.                                               (D.C. No. 04-CR-3-W H)
 FREDERICK ALLEN GRUBER,
              Defendant - Appellant.



                           OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      During a two-stage bifurcated trial, a jury convicted Frederick Allen Gruber

of charges made against him by indictment, including Count 2, which charged M r.

Gruber with assaulting, resisting, opposing, impeding, intimidating, or interfering

with a federal officer w hile using a dangerous weapon in violation of 18 U.S.C. §

111(a) & (b). M r. Gruber appeals only his conviction with respect to this charge,

arguing that there was insufficient evidence to support a conviction for a violation

of 18 U.S.C. § 111(b), which provides for an enhanced penalty where a defendant



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
“uses a deadly or dangerous weapon” when assaulting, resisting, opposing,

impeding, intimidating, or interfering with a federal officer in violation of 18

U.S.C. § 111(a). He does not dispute the sufficiency of the evidence with respect

to his conviction pursuant to § 111(a). W e agree with M r. Gruber that the

government did not present sufficient evidence to prove that he “use[d]” the gun

that w as found at the scene of the incident with the federal officer, and we

therefore reverse his conviction and remand for re-sentencing in accordance with

this opinion.

                                I. BACKGROUND

      The evidence, viewed favorably to the jury verdict, shows that on the

morning of July 31, 2003, a man w earing a Groucho M arx mask robbed the First

National Bank in A rdmore, Oklahoma. The perpetrator, later found to be M r.

Gruber, used a gun to commit the robbery and fled from the scene of the crime.

Some time thereafter, law enforcement officials received information possibly

connecting M r. Gruber with the Ardmore robbery. After receiving the tips,

officials began to search for him.

      On December 8, 2003, a group of local and federal law enforcement

officials spotted M r. G ruber driving a black Oldsmobile in M arietta, Oklahoma.

W hen the officials attempted to stop him, he verbally refused to stop, and a high-

speed chase ensued. At some point during the chase, M r. Gruber abandoned his

vehicle and began to run. FBI Special Agent Craig O verby then followed M r.

                                         -2-
Gruber on foot. M r. Gruber ducked behind a nearby passenger car parked on the

street in an attempt to hide himself from the pursuing agent.

      W hen Agent Overby caught up to M r. Gruber, Agent Overby positioned

himself on the opposite side of the car, with the vehicle separating them. Agent

Overby identified himself with his gun drawn, told M r. Gruber that he was under

arrest, and repeatedly instructed M r. Gruber to keep his hands held high. For

both Agent Overby and M r. G ruber, the other w as visible from only the chest up.

M r. Gruber initially complied with Agent Overby’s orders, keeping his hands up,

but then he moved for cover, dropped his hands to his waist out of the agent’s line

of sight, and bent down. As M r. Gruber made this maneuver, Agent Overby fired

his gun at M r. Gruber, and the bullet hit him in the neck. M r. Gruber fell to the

ground on his stomach with his hands underneath him. Backup officers arrived

on the scene and succeeded in restraining and arresting M r. Gruber. Then, as M r.

Gruber recites in his brief, “when [M r. Gruber] was rolled over, a loaded .45

caliber semi-automatic pistol was found on the ground where his hands had been.”

Aplt’s Br. at 7. Officers also found $9,746.00 in cash on M r. Gruber. Among the

confiscated money were eighteen of the twenty “bait bills” that had been taken in

the Ardmore robbery.

      Subsequently, a grand jury indicted M r. Gruber in a multiple-count

indictment, charging him with: Count one, being a felon in possession of a

firearm and being a felon in possession of a firearm affecting interstate

                                          -3-
comm erce, both in violation of 18 U.S.C. §§ 922(g)(1), 924(e); Count two,

assaulting, resisting, opposing, impeding, intimidating, or interfering with a

federal officer while using a dangerous weapon, in violation of 18 U.S.C. §§

111(a) & (b), 1114; Count three, using and carrying a firearm during and in

relation to, and possession of a firearm in furtherance of a violent federal felony

(Count two), in violation of 18 U.S.C. § 924(c)(1); Count four, being a felon in

possession of a firearm and being a felon in possession of a firearm affecting

interstate commerce, both in violation of 18 U.S.C. §§ 922(g)(1), 924(e); Count

five, armed bank robbery involving assault and jeopardy of life, in violation of 18

U.S.C. § 2113(a) & (d); Count six, using and carrying a firearm during and in

relation to, and possession of a firearm in furtherance of a violent federal felony

(Count five), in violation of 18 U.S.C. § 924(c)(1); and Count seven, possession

and concealment of money stolen from a bank, in violation of 18 U.S.C. §

2113(c).

      In stage one of a bifurcated jury trial, M r. Gruber was found guilty of

armed bank robbery involving assault and jeopardy of life, and using and carrying

a firearm in relation to that violent felony (Counts five and six). During the

second stage, he was found guilty of being a felon in possession of a firearm,

assaulting, resisting, opposing, impeding, intimidating, or interfering with a

federal officer while using a dangerous w eapon, using or carrying a firearm in

relation to that violent felony (Counts one, two, and three). The jury also found

                                         -4-
M r. Gruber guilty of count seven, but the district court granted the government’s

motion to vacate this conviction. The jury found M r. Gruber not guilty on count

four.

        At sentencing, the district court found that M r. Gruber was subject to

enhanced punishment under 18 U.S.C. § 924(e), part of the Armed Career

Criminal Act (“ACCA”). Under § 924(e), a “person who violates section 922(g)

of this title [being a felon in possession of a firearm] and has three previous

convictions . . . for a violent felony . . . shall be fined under this title and

imprisoned not less than fifteen years . . . .” Relying on Blakely v. Washington,

(2004), and Apprendi v. New Jersey, 

(2000), M r.

Gruber objected to the determinations in the presentence report that he had been

convicted of three “violent felonies” for purposes of the ACCA, claiming that

such determinations were findings of fact that must be made by a jury beyond a

reasonable doubt and not by the sentencing court by a preponderance of the

evidence. Rec. vol. VIII, at 3. Concluding that M r. Gruber had three prior

convictions for violent felonies, the district court overruled his objection and

sentenced M r. G ruber to 687 months’ imprisonment applying 18 U.S.C. § 924(e).

11. The district court additionally imposed a term of 36 months’

supervised release on Count two, and a term of supervised release of 60 months

for C ounts one, three, five, and six, to be served concurrently. 

doc. 44,

at 4. (Judgment in a Criminal Case, dated Sep. 15, 2004). Finally, the district

                                            -5-
court ordered M r. G ruber to pay the First National Bank restitution of $14,862.25.

                                 II. D ISC USSIO N

       On appeal, M r. Gruber asserts that there was insufficient evidence to

support a conviction for Count two of the indictment that alleged the violation of

18 U.S.C. § 111(b), which provides for an enhanced penalty where a defendant

“uses a deadly or dangerous weapon” when assaulting, resisting, opposing,

impeding, intimidating, or interfering with a federal officer. Specifically, he

argues that there was no evidence of use because the complaining officer only

saw M r. Gruber’s hands drop from view as the two faced off on opposing sides of

the chest-high vehicle, and did not actually see M r. Gruber brandishing a

weapon. 1 M r. Gruber also challenges his sentence as being imposed in violation

of his constitutional rights, as recently articulated by the Supreme Court in United

States v. Booker, 

(2005). He contends that the district court

comm itted constitutional error when it concluded by a preponderance of the

evidence that his prior convictions were “violent felonies” under the ACCA. W e

address both these arguments below.



       1
        At oral argument, M r. Gruber’s counsel expressly stated that he did not
appeal the 18 U.S.C. § 924(c) conviction, but then later, asked the panel
nonetheless to consider reversing the § 924(c) conviction if it reversed the
predicate conviction under 18 U.S.C. § 111(b). Absent extraordinary
circumstances, we will not consider arguments raised for the first time at oral
argument. United States v. Lande, 

, 331 n.2 (10th Cir. 1994).

                                         -6-
A.    Sufficiency of the Evidence

      W e begin by examining M r. Gruber’s claim that the government presented

insufficient evidence to convict him under 18 U.S.C. § 111(b). W e review

sufficiency of the evidence claims de novo. United States v. Hamilton, 

, 1143 (10th Cir. 2005). In so doing, “we view the evidence in the light most

favorable to the government and determine whether a reasonable jury could have

found the defendant guilty of the crime beyond a reasonable doubt.” 

omitted).

      During the second stage of the trial, the jury found M r. Gruber guilty of

violating 18 U.S.C. § 111(a), assaulting, resisting, opposing, impeding,

intimidating, or interfering with a federal officer, and also of violating 18 U.S.C.

§ 111(b), using a deadly weapon during and in relation to the underlying offense

in § 111(a). The applicable statutes provide in relevant part:

      (a) In general. --Whoever--

             (1) forcibly assaults, resists, opposes, impedes, intimidates, or
      interferes w ith any person designated in section 1114 of this title while
      engaged in or on account of the performance of official duties . . . .

      ....

      (b) Enhanced penalty.--W hoever, in the commission of any acts
      described in subsection (a) uses a deadly or dangerous weapon . . . or
      inflicts bodily injury, shall be fined under this title or imprisoned not
      more than 20 years, or both.

18 U.S.C. § 111(a) & (b). The instructions to the jury explained the elements of



                                         -7-
this count to be:

       One: The defendant forcibly assaulted, resisted, opposed, impeded,
             intimidated or interfered with an officer or employee of the United
             States, Craig Overby;
       Two: At the time, Craig O verby was engaged in official duties.
       Three: The defendant used a deadly or dangerous weapon.

Rec., vol. I, doc. 38, at 21.

       M r. Gruber specifically takes issue with his conviction under subsection (b)

of the statute because of the jury’s finding that he “used” a dangerous w eapon to

assault, resist, oppose, impede, intimidate, or interfere with Agent Overby during

their standoff. He contends that the fact that a gun was found on the ground

under him after he was subdued “cannot relate back to create a fact that did not

exist during the time of the offense.” Aplt’s Br. at 13.

       During trial, the government called a number of w itnesses to show that M r.

Gruber “carried” a gun during a violent federal felony for purposes of 18 U.S.C. §

924(c). The government’s argument that M r. Gruber violated section 924(c) was

based on testimony of witnesses who stated that he had a gun in his possession

during the bank robbery, testimony of friends who recalled that M r. Gruber

owned such a gun, and testimony of law enforcement officials who remembered

that after subduing him, they found the gun on the ground underneath his body.

The government did not, however, present any witnesses testifying that they saw

M r. G ruber “use” his gun during his face-to-face encounter w ith Agent Overby.

Instead, when Agent Overby testified regarding the incident, he stated that he

                                         -8-
never actually saw M r. Gruber’s.45-caliber pistol while the two men stared at

each other from opposite sides of the parked car. Agent Overby testified that

when M r. Gruber dropped his hands out of sight, he assumed that M r. Gruber was

reaching for a weapon of some sort, but the agent never actually saw it. After

backup officers subdued M r. G ruber, they located the pistol on the ground.

      This after-the-fact discovery may indeed have validated Agent Overby’s

fear that M r. Gruber was holding a weapon. But it does not rise to the level of the

“active employment” definition of use, which includes “brandishing, displaying,

bartering, striking with, and, most obviously, firing or attempting to fire a

firearm.” Bailey v. United States, 

, 148 (1995). In Bailey, the C ourt

distinguished between the terms “carry” and “use” in the context of 18 U.S.C. §

924. 

gave “use” its ordinary and natural meaning and limited the

application of “use” to instances of active use, because otherwise no role w ould

remain for the term “carry.” 

. M oreover, the Court

reasoned that “use” must mean something more than mere possession, since

Congress frequently employed the term “possess” in gun-crime statutes and

“[h]ad Congress intended possession alone to trigger liability . . . , it easily could

have so provided.” 

Though Bailey does not deal with 18 U.S.C. §

111(b), the reasoning is persuasive. The ordinary and natural meaning of “use” in

§ 111(b) requires that a defendant must actively, in the Bailey sense, use the

deadly weapon to qualify for § 111(b)’s enhanced penalties.

                                          -9-
      In its brief, the government marshals no evidence to show that M r. Gruber’s

“use” of the gun was active or that the gun was disclosed. W hile the evidence

would likely support a finding that M r. Gruber “carried” the weapon during his

standoff with the FBI agent, he did not brandish, strike with, fire or even attempt

to fire the gun. During oral argument (but not in its brief), the government cited a

part of the transcript of the jury trial, where Agent Bob Horn testified that during

an interview immediately after his arrest and while he was recovering from

having been shot, M r. Gruber admitted that “he [had] reached for his weapon”

during the standoff. Rec. vol. VI, at 591 (Tr. of Jury Trial, dated M ar. 24, 2004).

Agent Horn also testified that M r. Gruber would not admit to reaching for the gun

with the intent to shoot Agent Overby; instead, Agent Horn explained that M r.

Gruber had insisted that “[i]t’s possible that I was just reaching for the weapon to

take it out and throw it on the ground and give myself up.” 

Agent

Horn also explained that M r. Gruber never told him that he intended to “to pull

[the] gun and intimidate or interfere with . . . Agent Overby,” and that M r. Gruber

had stated that “he had no intention o[f] shooting anybody.” 

      This testimony is insufficient to establish active use, as required by the

plain meaning interpretation of the term “use,” provided by the Supreme Court in

Bailey. W e acknowledge that this is a fine distinction, but one that is significant,

given the plain meaning of the term “use” as interpreted by the Supreme Court:

“if the gun is not disclosed or mentioned by the offender, it is not actively

                                         -10-
employed, and it is not ‘used.’” 

.

      Even applying the highly deferential standard of review to the government

on appeal, there was insufficient evidence to support M r. Gruber’s conviction

under § 111(b). “W e have w arned against sustaining a conviction based on mere

suspicion or speculation: ‘W hile the jury may draw reasonable inferences from

direct or circumstantial evidence, an inference must be more than speculation and

conjecture to be reasonable, and caution must be taken that the conviction not be

obtained by piling inference on inference.” United States v. Dunmire, 

, 724 (10th Cir. 2005) (quoting United States v. Jones, 

, 865 (10th

Cir. 1995)). W ithout any evidence or testimony, it is only speculation to say that

M r. Gruber actually “used” the gun during the incident with Agent Overby. The

circumstantial evidence presented cannot shed light on whether or not M r. Gruber

“used” the gun during the incident, especially in light of the fact that Agent

Overby admitted to having never seen M r. Gruber’s gun. W hile this evidence

may be enough to prove that M r. Gruber “carried” and “possessed” the gun, it

does not prove “use,” an essential element of 18 U.S.C. § 111(b).

B.    Sentencing Enhancement

      W e next examine M r. Gruber’s argument that the district court violated

Booker by not submitting to the jury the question of whether his prior convictions

constituted “violent felonies” under the ACCA, 18 U.S.C. § 924(e). A sentence

enhancement under the ACCA is a legal issue, and, thus, we review it de novo.

                                         -11-
United States v. M oudy, 

, 619 (10th Cir. 1998).

      W e agree with M r. Gruber’s admission in his brief that “the deciding panel

in the present case is bound by [United States v.] M oore, [

(10th

Cir. 2005)] and the prior conviction exception imposed by the Supreme Court.”

Aplt. Br. at 17. W e note that M r. Gruber raises this issue as a preservation

technique to possibly overturn M oore by an en banc decision from this court or a

decision by the U nited States Supreme Court. Unless and until that happens, w e

are bound by the precedent of this court articulated in M 

(“Neither the existence of prior convictions, nor their classification as ‘violent

felonies,’ constitute facts that must be charged in an indictment and proven to a

jury under a ‘beyond a reasonable doubt’ standard.”).

                                III. C ON CLU SIO N

      Accordingly, we REV ER SE the district court’s judgment on Count two and

REM AND for re-sentencing in accordance with this opinion. W e AFFIRM all

other aspects of the district court’s judgment and its sentence.

                                                     Entered for the Court



                                                     Robert H. Henry
                                                     Circuit Judge




                                         -12-
04-7101 United States v. Gruber
O’BRIEN, J. dissenting.

      Does a tree falling beyond human earshot make a sound? H as a fleeing

felon who removes a deadly weapon from his waistband during a violent

encounter with the police used the weapon, even though it was not seen by the

police until he was incapacitated? The M ajority says such conduct is not use of a

weapon in violation of 18 U.S.C. § 111(b). I respectfully disagree.

      A jury convicted Frederick Gruber of assaulting a federal officer with a

dangerous w eapon. Today, the M ajority vetoes the jury’s decision. Its

requirement for “use” of a weapon (actively brandishes, strikes with, fires or

attempts to fire a gun) relates to a different statute, is too narrow and is not

warranted by these facts.

      The M ajority relies on Bailey v. United States in reaching its decision. 

(1995). Bailey did not involve 18 U.S.C. § 111(b), with its “use”

provision. Rather, Bailey construed the “use and carry” provision of 18 U.S.C. §

924(c)(1). That statute, the Court decided, “requires evidence sufficient to show

an active employment of the firearm by the defendant, a use that makes the

firearm an operative factor in relation to the predicate offense.” 

      Bailey actually involved two consolidated cases testing the application of

§ 924(c)(1), which penalizes the use of a firearm during the commission of a

violent or drug trafficking offense. Roland Bailey’s conviction rested on a loaded

pistol found inside a bag in his locked car trunk after he was arrested. 

40, 151. Candisha Robinson’s conviction was based on an unloaded, holstered

firearm found locked in a trunk in a bedroom closet of her apartment. 

151. The weapons were not accessible to the defendants. On those facts the

Supreme Court held the government failed to prove that either defendant was

“using” a firearm to further drug trafficking activities, noting “that ‘use’ must

connote more than mere possession of a firearm by a person who comm its a drug

offense.” 

       The Court discussed the ambiguity of the word “use” resulting from its

various connotations. It was particularly concerned, based upon the facts before

it and the specific statutory language, with equating possession and use, saying:

       Under [the government’s] reading, mere possession of a firearm by a
       drug offender, at or near the site of a drug crime or its proceeds or
       paraphernalia, is a “use” by the offender, because its availability for
       intimidation, attack, or defense would always, presumably, embolden
       or comfort the offender. But the inert presence of a firearm, without
       more, is not enough to trigger § 924(c)(1). Perhaps the nonactive
       nature of this asserted “use” is clearer if a synonym is used: storage.
       A defendant cannot be charged under § 924(c)(1) merely for storing a
       weapon near drugs or drug proceeds. Storage of a firearm, without its
       more active employment, is not reasonably distinguishable from
       possession.

       Bailey is distinctly different from this case in two respects: its facts and

the relevant statute. In Bailey, the defendants’ “use” of weapons consisted of

having them locked away, but nearby. Here Gruber had a loaded firearm in his

waistband and w as reaching for it when he w as shot. His reach w as at least

                                          -2-
partially successful, as he had removed the weapon from his waistband. After

Gruber was subdued it was found on the ground directly beneath him — and

where his hands had been tucked under his belly. Unlike Bailey, where the

weapons were not accessible to the defendants, Gruber’s weapon was not only on

his person, but deployed. 1

      Furthermore, § 924(c)(1), the statute analyzed in Bailey, differs from this

one, § 111(b), in a critical way. Section 924(c)(1) mandates certain penalties if a

defendant “during and in relation to any crime of violence or drug trafficking

crime . . . , uses or carries a firearm.” (Emphasis added.) In order to give effect

to the “or carries” language of the statute, the Court in Bailey chose a “limited,

active interpretation of ‘use’”: “brandishing, displaying, bartering, striking with,

and, most obviously, firing or attempting to fire a firearm.” 

, 148; see Muscarello v. United States, 

, 136 (1998) (“In Bailey,

how ever, w e limited ‘use’ of a firearm to ‘active employment’ in part because w e

assumed ‘that Congress . . . intended each term to have a particular,

nonsuperfluous meaning.’ A broader interpretation of ‘use,’ we said, would have

swallowed up the term ‘carry.’”) (internal citation omitted). The actual holding

      1
        A more benign interpretation of the facts is possible. Gruber offered one,
which the M ajority apparently accepts. (M ajority Op. at 10.) But, if we respect
the jury’s role, as we frequently say, then we must consider the facts and the
inferences to be draw n therefrom in a manner consistent with the verdict, if we
can reasonably do so. The evidence here would permit a reasonable jury to find
that Gruber reached for and retrieved the weapon from his waistband and
continued to avail himself of it until forcibly disarmed.

                                         -3-
of Bailey is “that the language, context, and history of § 924(c)(1) indicate that

the Government must show active employment of the firearm” to “establish ‘use’

for the purposes of the statute[.]” 

.

      Section § 111(b) makes no distinction between using and carrying a

weapon. It simply provides that “[w]hoever, in the commission of any acts

described in subsection (a), uses a deadly or dangerous weapon” shall be subject

to an enhanced penalty. Thus, just as the Court in Bailey gave effect to Congress’

use of tw o separate terms in § 924(c)(1) — use and carry — so, too, should w e

give effect to the use of a single term in § 111(b) — use. A broader reading of

“use” in this case is consistent with the statute’s language and supports the jury’s

verdict.

      This jury was instructed on the elements of assaulting a federal officer with

a dangerous weapon:

      One: The defendant forcibly assaulted, resisted, opposed, impeded,
      intim idated or interfered with an officer or employee of the United
      States, Craig Overby[.]

      Two: At the time, Craig O verby was engaged in official duties.

      Three: The defendant used a deadly or dangerous weapon.

      “Forcibly” means by use of force. A “deadly and dangerous w eapon”
      is an object used in a manner likely to endanger life or inflict serious
      bodily harm.

      The term “forcibly assaults” means any deliberate and intentional
      attempt or threat to inflict physical injury upon another with force or
      strength when that attempt or threat is coupled with an apparent ability

                                          -4-
      to do so. Although a “forcible assault” may be comm itted by a
      defendant without actually touching, striking or doing bodily harm to
      another, the government must prove that the actions of the defendant
      were of such a nature to put the person against whom they were directed
      in fear of immediate bodily harm. There is a use of force when one
      person intentionally wounds another, or when one person intentionally
      makes a display of force which reasonably causes a person to fear
      immediate bodily harm.

(R . Vol. 1, Doc. 38 at 21-23.)

      The jury was also instructed that it could draw “reasonable inferences”

from the evidence in the case:

      W hile you should consider only the evidence in the case, you are
      permitted to draw such reasonable inferences from the evidence as you
      feel are justified in light of common experience. In other words, you
      may make deductions and reach conclusions which reason and common
      sense lead you to draw from the facts which have been established by
      the testimony and the evidence in this case.

(Id. at 7.) The defense did not object to these instructions.

      W e review a sufficiency of the evidence challenge only to determine

“whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 

, 319

(1979). O ur method of review is also restricted.

      In conducting [a sufficiency of the evidence] review this Court may
      neither weigh conflicting evidence nor consider the credibility of
      witnesses. It is for the jury, as the fact finder, to resolve conflicting
      testimony, weigh the evidence, and draw inferences from the facts
      presented.

United States v. Zabriskie, 

, 1144 (10th Cir. 2005) (internal citation

                                         -5-
and quotations omitted).

      W e do not examine the evidence in “bits and pieces,” but instead “evaluate

the sufficiency of the evidence by considering the collective inferences to be

drawn from the evidence as a whole.” United States v. Wilson, 

, 778

(10th Cir. 1997) (quotations omitted). W e may overturn a guilty verdict on

sufficiency grounds only if no reasonable jury could have reached such a verdict

on the evidence presented. United States v. Shepard, 

, 1119 (10th

Cir. 2005).

      The jury considered evidence in three key areas: Gruber’s actions; Agent

Overby’s actions, knowledge and thoughts; and Gruber’s admissions. W ith

respect to Gruber’s actions, it heard the following testimony: On December 7,

2003, Gruber said “he was going to go out in a blaze of glory.” (R. Vol. 6 at

444.) On December 8, Richard Eidson reported to the police that Gruber had

robbed a bank in Ardmore and was going to shoot him. That same day, local law

enforcement officers and FBI agents formulated a plan to look for Gruber in

M arietta, Oklahoma. For good reason, Gruber was considered armed and

dangerous. Gruber drove past the area where the officers were gathered, and after

ignoring efforts to stop him, took off at a high rate of speed, with the officers in

pursuit. The vehicle pursuit ended when Gruber drove his car off the road and up

against an abandoned house.     Overby pursued Gruber on foot. The two men

eventually confronted each other from opposite sides of a parked vehicle.

                                         -6-
Overby trained his weapon on Gruber, identified himself as an FBI agent, and

ordered Gruber not to move. Gruber momentarily complied, raising his clenched

fists up to, but not over, his head. W hen Gruber suddenly dropped his hands out

of Overby’s sight, the agent shot Gruber in the neck. Gruber dropped to his

knees and began screaming “I’m shot, I’m shot.” (Id. at 478.) He did not put his

hands to his neck (as one might expect) but instead lay on the ground on his

stomach with his hands and most of his arms tucked under his body, moving “like

he was reaching for something.” (Id.) Despite his injuries and the shouted orders

from several officers to put his hands behind his back, Gruber kept his hands

tucked underneath his belly until forced at gunpoint to comply. W hen Gruber was

finally handcuffed and rolled on his side, a handgun was found on the ground

beneath him. It was not only loaded, but a live round was in the chamber, ready

to fire with a squeeze of the trigger.

      In addition, the jury heard Overby testify about what he knew prior to his

confrontation with Gruber: Gruber was considered armed and dangerous, he was

wanted for bank robbery, and he had made threats about going out “in a blaze of

glory.” (Id. at 499.)   Overby told the jury he donned a bulletproof vest in

response to the 911 call made on December 8 and he drew his weapon as soon as

he got out of his car to pursue Gruber on foot. The jury saw Overby demonstrate

the way in which Gruber put his hands up to his head, “close to [his] ears, the

hands were shaking and they were clenched, kind of like a body builder flexing

                                         -7-
his muscles.” (Id. at 475.) The jury watched Overby demonstrate how - and how

quickly - Gruber dropped his hands out of sight. Overby also testified that once

he saw Gruber on the ground, he “was concerned that, that he was going for the

weapon again and was going to shoot, try to shoot [him] again.” (Id. at 478)

(emphasis added).

      Finally, Agent Bob Horn of the Oklahoma State Bureau of Investigation

testified about Gruber’s statements to him on December 8:

      W hen he got out of the car, he was surrounded by approximately ten
      police officers or officers and he heard one officer tell him to freeze
      and that he reached for his weapon, indicating to me when I was talking
      to him using his right hand reached to the front of his pants that he was
      wearing indicating that he was reaching to his w aistband for his
      weapon.

(Id. at 591-92.) The jury heard Horn’s testimony that Gruber said “[h]e was

reaching for his weapon” or “had his hand on the pistol” when Overby shot him.

(Id. at 592-93.) Gruber also told Horn, “It’s possible that I was just reaching for

the weapon to take it out and throw it on the ground and give myself up.” (

) The jury could thus evaluate whether Gruber attempted to shoot, surrender

his weapon, or merely find solace in its cold, cozy grip.

      Gruber does not argue the evidence was insufficient to show an assault on a

federal officer, only that his weapon was not used in the process. 2 The M ajority

      2
        I w ill not dwell upon the assault except to note: 1) the jury was properly
instructed (without objection) on the issue; 2) the jury could have concluded
Gruber was attempting to get his weapon (and did) when he dropped his hands
                                                                        (continued...)

                                         -8-
accepts this argument, concluding there was insufficient evidence to demonstrate

“use” of Gruber’s .45 caliber semi-automatic weapon, primarily because no one

saw it until he had been subdued and handcuffed. 3 That narrow view of the

evidence does not allow for reasonable inferences. 4 The assaulted officer does

not have to see the weapon, 5 particularly when he is reliably aware of its

presence.

      Evidence that Gruber reached for and even touched his concealed weapon is


      2
       (...continued)
below eye level; 3) the jury could have concluded Gruber would have used his
weapon against the federal agent had his actions not been thwarted by a bullet to
the neck; and 4) the federal officer was put in fear of bodily harm.
      3
          The M ajority notes:

      W ithout any evidence or testimony, it is only speculation to say that
      M r. Gruber actually “used” the gun during the assault.            The
      circumstantial evidence presented cannot shed light on whether or not
      M r. Gruber “used” the gun during the assault on Overby, especially in
      light of the fact that A gent Overby admitted to having never seen M r.
      Gruber’s gun. W hile this evidence may be enough to prove that M r.
      Gruber “carried” and “possessed” the gun, it does not prove “use,” an
      essential element of 18 U.S.C. § 111(b).

(M ajority Op. at 11.)
      4
        The “no one saw me do it” argument has a dieting corollary — the food
no one sees you eat doesn’t count. It is a comfortable diet but you don’t lose
weight.
      5
        W ould there be any question about Gruber’s “use” of his weapon if it had
been in his hand, behind the car and below eye level, when Overby first
confronted him? Similarly, would it not also have been a “use” if another officer,
but not Overby, saw the weapon in Gruber’s hand after the unexpected and
aggressive move — when Gruber dropped his hands out of Overby’s sight?

                                         -9-
a sufficient “use” under 18 U.S.C. § 111(b). It would even be sufficient under

Bailey’s § 924(c)(1) definition, which “includes brandishing, displaying,

bartering, striking with, and, most obviously, firing or attempting to fire a

firearm.” 

(emphasis added). The jury could reasonably

have found a thwarted attempt to fire the weapon — a “use” explicitly within the

Bailey definition. In any event, Gruber’s conduct is sufficient “to show an active

employment of the firearm.” 

But even short of an attempt to shoot,

Gruber’s acute connection with his firearm was light years aw ay from the “inert

presence” the Bailey court faced — having a gun locked in the trunk of a car or

inside a locked footlocker in a bedroom. 

Beyond doubt it was not

“storage” (the Court’s synonym for “the nonactive nature of this asserted ‘use’”).

It was dramatically more than placement for later active use. It was

more than a display for intimidation, which Bailey considers a “use.” 

49. It was part of the assault.

      The jury was correctly told an assault is an attempt to inflict injury coupled

with an apparent ability to do so. 6 The jury apparently considered the assault on



      6
         The district court may have unduly increased the government’s burden of
proof. The instructions defined forcible assault as “any deliberate and intentional
attempt or threat to inflict physical injury upon another w ith force or strength
when that attempt or threat is coupled with an apparent ability to do so.” (R . Vol.
1, D oc. 38 at 22.) With respect to a different, but similar, assault statute we
recently concluded “that recklessness is a culpable m ens rea with respect to
assault resulting in serious bodily injury under [18 U.S.C.] § 113(a)(6).” United
States v. Zunie, 

, 1233 (10th Cir. 2006).

                                         -10-
Overby complete when Gruber reached for his weapon. W ithout more, the

weapon was “used” during the assault. But there was more. Gruber grabbed the

weapon and removed it from his waistband — a patent “use.”

       The evidence — not considered in “bits and pieces” but as a whole,

(quotations omitted) — demonstrated an active use of a

firearm by Gruber sufficient to affirm the jury’s verdict. I dissent from the

reversal and remand. However, I join the majority opinion affirming the other

aspects of the district court’s judgment and sentence.




                                         -11-