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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 93-8305

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN STEVEN REED,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

(July 6, 1994)
Before GARWOOD and EMILIO M. GARZA, Circuit Judges, and HEAD*,
District Judge.
HAYDEN W. HEAD, JR., District Judge:
John Steven Reed appeals from his conviction and
sentencing on a two-count indictment charging him with bank robbery
under 18 U.S.C. งง 2113(a), (d), and (e), and with using and
carrying a firearm during a crime of violence. He argues the
evidence was insufficient to establish a violation of 18 U.S.C. ง
2113(e); the district court erred in denying defendant's motion to
suppress the fruits of the warrantless search and seizure of
evidence from defendant's car; at sentencing, the district court
erred in adjusting defendant's offense severity level upwards based
on a finding that the victim suffered from post-traumatic stress

* District Judge of the Southern District of Texas sitting by
designation.
disorder; and the district court's finding at sentencing that
defendant's testimony at the suppression hearing constituted an
obstruction of justice misapplied the law of perjury. We affirm.
FACTS AND PROCEEDINGS BELOW
At 6:45 a.m. on September 4, 1992, Sherrie Mack, an
employee of the Public Employees' Credit Union in Austin, Texas,
arrived at work. After she unlocked the first of two locks on the
rear door of the credit union, she felt a gun in her back and a
hand on her shoulder. When she turned around, she saw a tall man
wearing an "old man's mask," black clothing and gloves, and a black
"cape-like" garment.
Following the man's directions, she finished unlocking
the door of the credit union, walked inside, and turned off the
alarm system. She then led him to the vault and opened it. The
robber gave her a bag and told her to put the money from the vault
in the bag. She did so, also placing a pack of bills containing a
tracking device1 in the bag. When she finished, the robber ordered
her to lie face down on the floor and to place her hands behind her
back. He then handcuffed her, tied her feet with a cord, and tried
to blindfold her with duct tape. He missed her eyes, however, and
wrapped the tape around her forehead.
1 A transmitter was hidden inside the pack of money. As
soon as the pack was removed from its resting place, it began to
transmit radio signals. The police have equipment that enables
them to use the radio signals to track the location of the money.
-2-

The robber left the credit union in Mack's car. After he
left, she managed to free herself and called the police. Several
police cars equipped with tracking devices, along with a
helicopter, followed the radio signal to the residence of Reed and
his wife. Using a hand-held tracking device, the police followed
the signal to a Honda parked in the driveway of the house. They
saw nothing in the passenger compartment of the car, and the
strongest source of the signal was the trunk. Upon checking, the
officers learned the car was registered to Mathew Jeanette Reed
with an address different from that of the house. Further, the
officers checked the utilities for the house, and discovered they
were registered under a different name.
Two officers knocked on the front door of the house and
announced "Austin Police." Defendant answered the door, and the
officers pulled him out onto the porch to insure their own safety,
where defendant identified himself as John Reed. Reed was then
placed in the custody of one officer, and two other officers
entered the house, where they encountered Reed's wife. One officer
saw a set of car keys on a table and asked Mrs. Reed if they were
the keys to the Honda. She replied they were. Using the keys, the
police opened the trunk of the Honda, finding the stolen money, an
"old man" mask, black sweatpants, a black windbreaker, gloves, a
roll of duct tape, and a loaded handgun. The police did not obtain
a warrant before opening the trunk, though both the Reeds were
handcuffed and in custody, and the police had the keys to the car.
-3-

While police were searching the house and the car, an
officer handcuffed Reed, took him to a police car, and read him a
Miranda warning. He then questioned Reed about the location of
Mack's car, but Reed denied knowledge of the car. Another officer
approached and stated the money taken from the credit union and
clothing worn by the robber was found in the trunk of Reed's car.
Eventually, Reed agreed to take the police to Mack's car. After
driving around Austin, they located the car in an apartment parking
lot.
Reed was indicted in a two-count indictment: (1) bank
robbery in violation of 18 U.S.C. งง 2113(a), (d), and (e); and (2)
using and carrying a firearm during a crime of violence in
violation of 18 U.S.C. ง 924(c). Before trial, he moved to
suppress his statements and the evidence seized as a result of the
warrantless search of his car. The district court denied the
motion, holding the warrantless search was proper because exigent
circumstances existed. Additionally, the court found the search
came within the "plain view" exception to the warrant requirement.
Further, the court held Reed's statements were voluntary. After a
jury trial, he was convicted on both counts of the indictment.
The district court sentenced Reed to 160 months'
imprisonment on count one and a consecutive 60-month term of
imprisonment on count two. At sentencing, the presentence
investigation report recommended the court enhance Reed's offense
level based on Mack's post-traumatic stress disorder resulting from
the robbery. The court found Mack's disorder to be a "severe
-4-

bodily injury" and enhanced Reed's offense level by four levels
pursuant to U.S.S.G. ง 2B3.1(b)(3)(B). Further, the court assessed
a two-level obstruction of justice adjustment for perjury during
Reed's testimony at the suppression hearing pursuant to U.S.S.G.
ง 3C1.1.
DISCUSSION
A.
Insufficient Evidence to Support Conviction Under 18 U.S.C.
ง 2113(e)
Title 18, U.S.C. ง 2113(e) makes it an aggravated
circumstance of the crime of bank robbery for the robber to force
any person to accompany him without the consent of that person.2
Upon conviction, the minimum sentence is ten years. The scope of
the phrase "to accompany him" is at issue here. Section 2113(e)
does not expressly set forth how extensive accompaniment must be to
prove this aggravated form of bank robbery, nor has this Circuit
decided this issue.
Reed argues the evidence that he forced Mack to walk the
short distance from the bank's door to the vault is insufficient,
as a matter of law, to support his conviction under 18 U.S.C. ง
2 18 U.S.C. ง 2113(e) provides:
Whoever, in committing any offense defined in this
section, or in avoiding or attempting to avoid
apprehension for the commission of such offense, or in
freeing himself or attempting to free himself from
arrest or confinement for such offense, kills any
person, or forces any person to accompany him without
the consent of such person, shall be imprisoned not
less than ten years, or punished by death if the
verdict of the jury shall so direct.
-5-

2113(e). He argues Congress enacted ง 2113(e) with the intent to
punish the distinct crime of kidnapping that often accompanies the
crime of bank robbery, rather than forced movement that is
incidental to the crime of bank robbery. Accordingly, he argues,
the government should be required to prove a more significant
asportation than that involved here. The government should have
to prove an asportation similar to that required to sustain a
conviction under common law kidnapping or under the federal
kidnapping statute, 18 U.S.C. ง 1201. Because the movement in this
case was incidental to the commission of the robbery itself, and
did not amount to the separate crime of kidnapping, Reed argues the
Court should reverse his conviction under ง 2113(e). Reed cites
United States v. Marx, 485 F.2d 1179 (10th Cir. 1973), cert.
denied, 416 U.S. 986, 94 S. Ct. 2391 (1974)3, and United States v.
Sanchez, 782 F.Supp. 94 (C.D. Cal. 1992)4, as support for the
3 In Marx, the defendants assaulted a bank president who was
on his way home from an early morning walk. At gunpoint, they
forced their way into his house, and ordered him to wake his wife
and two children. They gathered the family together, tying the
wife and children to a bed and placing a bomb under it. The
defendants forced the president to go to the bank and obtain
money. One defendant remained at the house with the family. The
second defendant traveled in a separate car to the bank. Based
on those facts, defendants were convicted under ง 2113(e). On
appeal, the Tenth Circuit did not address the trip to the bank,
other than to point out that the president and his family "were
never physically travelling with either appellant." Marx, 485
F.2d at 1186. Accordingly, Marx does not support Reed's argument
because the victim in this case physically accompanied the
defendant.
4 In Sanchez, the defendant walked into a bank, grabbed a
bank employee from behind, and held a large butcher knife to her
throat. He demanded money from another bank employee, and twice
sent that employee back for more money, all the while holding the
knife to the first employee's throat. When he was satisfied with
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proposition that ง 2113(e) is intended to punish kidnapping, in the
sense of the common law crime or the federal kidnapping statute,
rather than forced movement that is incidental to the crime of bank
robbery.
In response, the government argues the record belies
Reed's argument that the asportation was insubstantial and
incidental to the commission of the crime. Further, the government
argues Reed's argument is contrary to the express language of the
statute and interpretive case law. The government argues that case
law establishes that the asportation element of ง 2113(e) is
satisfied when the defendant forces any person to accompany him
without the consent of such person while committing an armed bank
robbery. Finally, the government attempts to distinguish the facts
at hand from those in Marx and Sanchez by arguing the facts in
those cases constituted a much lower degree of violence and danger
than the actions of Reed. The government's position is that Reed's
the amount of money, he directed the second employee to place it
on a desk near the door. He forced the first employee to walk
with him for about fifteen feet, released her, and left with the
money. The entire robbery took two to three minutes. He was
charged with violating ง 2113(e). The district court relied on
cases from other circuits, California state cases defining common
law kidnapping, and the Modern Penal Code to hold that ง 2113(e)
requires a not insubstantial asportation of the victim. The
court concluded the "substantiality of the asportation, although
there can be no bright line, should be measured by duration,
distance and any change in environment tending to increase the
danger to which the victim is exposed, other than any danger
inherent in the underlying offense." Sanchez, 782 F. Supp. at 97
(citations omitted). The court held the asportation was not
sufficient to support a conviction under ง 2113(e) -- though
there was significant danger to the teller because of the knife,
that danger was present by virtue of the ง 2113(d) offense, and
not by reason of the movement of only fifteen feet.
-7-

threatening of Mack with a gun outside the credit union, and his
forcing her to enter with him constituted a significant change in
her environment and served to increase the risk of danger to which
she was exposed.
The government cites United States v. Bauer, 956 F.2d 239
(11th Cir.) cert. denied, 113 S. Ct. 469 (1992), as support for its
argument. In Bauer, the defendant chose two women bank employees
as hostages to accompany him in his escape from the bank. He did
not, however, execute his plan of escape; he released the women
before leaving the bank when he realized the police presence
outside the bank was overwhelming. The defendant claimed there was
insufficient evidence to convict him under ง 2113(e) because the
government did not prove that defendant ever left the premises with
his hostages. The Eleventh Circuit held the statute does not
require "that the hostages traverse a particular number of feet,
that the hostages be held against their will for a particular time
period, or that the hostages be placed in a certain quantum of
danger.... [T]he government need not prove that the defendant took
his hostages off the bank premises. In this case, the government's
proof was more than sufficient to convict under ง 2113(e)." Id. at
241-42.
In this case, Reed forced Mack, at gunpoint and against
her own will, to unlock the door of the credit union and to
accompany him from outside the building to inside the building.
Without that forced accompaniment into the building, there would
have been a dearth of proof of the accompaniment issue. Even
-8-

though the defendant forced her to move within the bank to open the
safe and to position himself so that he could bind her to make his
getaway, he essentially caused no more accompaniment within the
bank than that. Within the context of a bank robbery, there will
often be movement within the bank by a bank employee--movement
orchestrated by the robber. This orchestration will no doubt
sometimes occur in concert with the movement of the robber himself.
To conclude such circumstances are an aggravating accompaniment
would likely convert numerous ordinary (if that word can ever be
used to describe extraordinary events) bank robberies to aggravated
bank robberies with only the faintest of distinctions between
accompanied, i.e., aggravated, and non-accompanied, non-aggravated
bank robbers. Finding that moving the victim as a hostage into the
bank is an accompaniment, just as moving her out of the bank as a
hostage would have been an accompaniment, the Court is satisfied
the aggravating circumstances to have been proven here.
Accordingly, relief is denied on this ground.
B. Search and Seizure
The district court denied Reed's motion to suppress the
evidence seized from the trunk of his car, holding exigent
circumstances justified the warrantless search. The court based
that holding on the fact that the radio transmitter in the money
taken from the credit union was still emitting signals. If there
had been another bank robbery in the area, the court found, those
signals would have interfered with the signals being emitted from
the second robbery. As additional grounds, the court found the
-9-

"plain view" exception to the warrant requirement was satisfied.
On appeal, Reed argues the court erred on both grounds, and the
motion to suppress should have been granted.
Generally a warrantless search is unreasonable, subject
to certain exceptions. Carlton v. Estelle, 480 F.2d 759, 761 (5th
Cir.), cert. denied, 414 U.S. 1043, 94 S. Ct. 546 (1973). One of
those exceptions is that a "warrantless search of an automobile
with probable cause is justified where circumstances make a
warranted search impracticable." Id. at 762 (citing Chambers v.
Maroney, 399 U.S. 42, 90 S. Ct. 1975 (1970); Carroll v. United
States, 267 U.S. 132, 45 S. Ct. 280 (1925)); see also United States
v. Hernandez, 901 F.2d 1217, 1220 (5th Cir. 1990). The fact that
a car is moveable alone is not a sufficiently exigent circumstance
to justify a warrantless search. See Carlton, 480 F.2d at 762-63.
The court must closely examine the facts to determine if a
warrantless search is reasonable. Id. Finally, the district
court's finding that exigent circumstances were present is a
finding of fact and, as such, cannot be reversed absent clear
error. United States v. Richard, 994 F.2d 244, 248 (5th Cir. 1993)
(citing United States v. Vasquez, 953 F.2d 176, 179 (5th Cir.),
cert. denied sub nom., Gomez v. United States, 112 S. Ct. 2288
(1992)).
Reed does not dispute that the officers had probable
cause to search the car; he simply argues the facts in this case do
not present exigent circumstances such that the car could be
-10-

searched without a warrant.5 He argues that exigent circumstances
exist when the situation presents a degree of urgency, and the mere
possibility of a future bank robbery does not create that urgency.
He supports that assertion by arguing that unless a second bank was
robbed, the continuing transmission did not present a problem. The
continuing transmission did not prevent the police from learning if
a second robbery occurred; the police would be notified of a
robbery over the police radio. Consequently, Reed argues, the mere
possibility of a second robbery should not create an exigency.
Reed cites Coolidge v. New Hampshire, 403 U.S. 443, 91 S.
Ct. 2022 (1971), as support. In Coolidge, the police spent over
two weeks investigating the murder of a fourteen-year-old girl,
suspecting throughout the whole investigation that both Coolidge
and his car were involved in the murder. The Supreme Court held
the automobile exception did not apply because no exigencies
existed -- the opportunity to search the car was not fleeting. The
police had known for some time of the probable role the car played
in the crime. Though Coolidge was a suspect in the crime, he had
remained extremely cooperative throughout the investigation and
there was no indication that he intended to flee. Further,
Coolidge had already had ample opportunity to destroy any
5 The following factors may, depending on the facts and
circumstances of a particular case, present exigent circumstances
in the context of a warrantless search of an automobile: (1) the
automobile is moving or easily moveable; (2) opportunities for
the destruction of the evidence exist; or (3) the abandonment of
the automobile in a public area. See, e.g., United States v.
Gaultney, 581 F.2d 1137, 1142 (5th Cir. 1978), cert. denied, 446
U.S. 907, 100 S. Ct. 1833 (1980).
-11-

incriminating evidence. On the night of Coolidge's arrest, there
was no indication the car was being used for any illegal purpose
and it was regularly parked in the driveway of his house. Further,
there was no way Coolidge could have gained access to the car once
the officers arrived at the house to arrest him because of the way
they approached the house. And, when Coolidge was taken away, the
police drove Mrs. Coolidge to the home of some relatives and
remained with her until midnight-- she had access to neither the
house nor the car. Finally, the house was guarded through the
night by two officers.
The Court held:
The word "automobile" is not a talisman in whose presence
the Fourth Amendment fades away and disappears. And
surely there is nothing in this case to invoke the
meaning and purpose of the rule of Carroll v. United
States -- no alerted criminal bent on flight, no fleeting
opportunity on an open highway after a hazardous chase,
no contraband or stolen goods or weapons, no confederates
waiting to move the evidence, not even the inconvenience
of a special police detail to guard the immobilized
automobile.
Id. at 461-62, 91 S. Ct. at 2035-36.
The government responds by arguing this case is much
closer to the facts in Carlton v. Estelle, supra. In Carlton, the
victim was raped between 9:30 p.m. and 11:30 p.m., and went to a
hospital. She gave officers a description of the man who raped her
and told the officers he drove a blue and white car. Her
boyfriend, who was present at the interview, told the officers he
knew of a person meeting the description and knew the name of that
person's employer. He joined the officers when they went to the
employer's home. The employer confirmed that he had an employee
-12-

who fit the description and drove a blue and white Pontiac. He
gave the officers Carlton's name and parents' address. The
officers then went to Carlton's parents' house, where his mother
told them the street where Carlton lived. The victim's boyfriend
knew the exact address, so the officers went on to that address.
They arrived at Carlton's home just after daybreak, several hours
after the rape occurred, and observed a blue and white Pontiac
parked on the street in front of the house. They surrounded the
house, and two officers approached the door. Carlton's wife
answered the door and told them Carlton was asleep. When Carlton
awoke, he emerged dressed only in shorts spotted with blood. The
victim had been treated for head lacerations. The officers
immediately arrested Carlton. As the officers and Carlton emerged
from the house, Carlton's car was being searched.
The Fifth Circuit held sufficient exigent circumstances
existed to justify the warrantless search of Carlton's car. At the
point of arrest, the officers had missed no genuine opportunity to
obtain a valid warrant to search the car, since it would have been
impracticable for them to interrupt their search for the rapist to
secure a warrant before proceeding to the house. Further:
Quite apart from the risks posed by the possible
intervention of thieves, vandals, and other hypothetical
outsiders, this record does show that this car, stationed
on a Houston street, not on a highway, was relatively
close to persons who knew of it, knew of Carlton's
trouble, and had an interest in him. The record does not
suggest what these persons or any other person would have
done if the officials had not exercised dominion over the
car immediately upon arrest. But the short of the matter
is this: As regards the exigencies created by the
potential intervention of third parties, the record
-13-

reveals a case which is at least as compelling, if not
more compelling, than Carroll and Chambers.
Id. at 763.
The facts in this case are much closer to those in
Carlton. The officers also missed no opportunity to obtain a valid
warrant during a lengthy investigation--they did not know where the
car was, nor that it contained the money, until they completed
their tracking upon arrival at the house. The pursuit began
shortly after the robbery, and continued until the signal was
traced. When the officers arrived at Reed's house, the trail was
hot. Finally, the officers believed they needed to deactivate the
transmitter as soon as possible so it would not hinder other
potential investigations.
Reed argues that once the officers arrived at the
residence, and completed their tracking, the exigencies
disappeared. He argues that though it would have been
impracticable to obtain a search warrant before arriving at Reed's
house, it would not have been impracticable, in light of the facts
at hand, to do so after arriving. Both occupants of the house were
arrested, the police had the keys to the car, no other robberies
were reported over their radios, and the police easily could have
prevented other parties' access to the car by guarding it until a
warrant was obtained.
We must affirm the district court's finding of exigent
circumstances absent clear error. Though the officers did not know
for sure that another robbery would occur, leaving the car for the
amount of time necessary to secure a warrant with the possibility
-14-

of interfering with the ability to track another robbery was risky.
Additionally, Reed had a diminished expectation of privacy in his
car. See United States v. Gaultney, 581 F.2d 1137, 1144 (5th Cir.
1978), cert. denied, 446 U.S. 907, 100 S. Ct. 1833 (1980) (citing
United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476 (1977)).
Further, due to the strength of the signal, the officers were
reasonable in their belief that the trunk contained at least part
of the money stolen from the credit union. The record contains
evidence that nearly the entire neighborhood was outside, observing
the events as they unfolded at Reed's house. Though both occupants
of the house were arrested and the police had a set of keys to the
Honda, they could not know whether that was the only set of keys to
the car, or if others were implicated in the robbery, and escaping
with part of the money. To leave the vehicle or post some
undefined guards while securing a warrant with the valuable
evidence inside would be risking the loss of that evidence and
potential injury to themselves and the neighbors. Finally, the
officers' belief that they needed to stop the transmission was
reasonable under the circumstances. See Gaultney, 581 F.2d at 1141
(citing Carroll, 267 U.S. at 149, 45 S. Ct. at 283).
Reed argues the officers did not need to leave the car
unattended while obtaining a warrant because they could have seized
and secured the car. However, that argument does not help Reed
because if a warrantless seizure is permissible, a warrantless
search is permissible as well. Carlton, 480 F.2d at 762 (citing
Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975 (1970)). The
-15-

district court's finding of exigent circumstances is not clear
error.
C. Post-Traumatic Stress Disorder as a "Serious Bodily Injury"
The presentence investigation report recommended a six-
level increase in Reed's offense level on the ground that Mack's
post-traumatic stress syndrome, which was a result of the robbery,
was a "permanent or life-threatening bodily injury" under U.S.S.G.
ง 2B3.1(b)(3)(C). The district court declined to find it was a
permanent or life-threatening bodily injury, but found that it was
a "serious bodily injury" and increased Reed's offense level by
four levels under U.S.S.G. ง 2B3.1(b)(3)(B). Reed argues that
ruling was based on a misapplication of the Guidelines and on an
erroneous factual finding.
Dr. George V.C. Parker reported on his examination of the
victim the following:
Reed's assault on Ms. Mack has turned a high-functioning,
employed, hard-working, independent woman, who also
successfully handled parenting of two children and
running a household, into a frightened, dependent, non-
functional,
psychiatric
casualty
with
a
severe
psychiatric disorder.
A "serious bodily injury" means an injury involving extreme
physical pain or the impairment of a function of a bodily member,
organ, or mental faculty. U.S.S.G. ง 1B1.1, App. Note 1(j). As a
non-functioning psychiatric casualty with a severe psychiatric
disorder, Mack's condition falls fully within the definition of
impairment of a function of mental faculty. Her inability to
distinguish threatening from non-threatening situations is
obviously an impairment of a mental faculty and, obviously here, a
-16-

serious one. In this definition of serious bodily injury, there is
no requirement that there be a corporal injury. The defendant
argues there must be a bodily, i.e., corporal injury. He urges the
Court take that limited approach from the definition of bodily
injury at Application Note 1(b) to ง 1B1.1. There is no
requirement that the Court ignore the language of Application Note
1(j) and rely upon Application Note 1(b) to understand the meaning
of serious bodily injury. Accordingly, the record establishes that
Mack received serious bodily injury and that the district court was
correct in its addition of four points to the defendant's offense
level. U.S.S.G. ง 2B3.1(b)(3)(B).
D. Reed's Testimony as an Obstruction of Justice
The district court increased Reed's offense level by two
levels pursuant to U.S.S.G. ง 3C1.1, which provides: "If the
defendant willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice during the investigation,
prosecution, or sentencing of the instant offense, increase the
offense level by 2 levels." Reed argues the district court
misapplied the law of perjury.
Perjury may serve as the basis for enhancing a
defendant's sentence under the Guidelines. United States v.
Dunnigan, 113 S. Ct. 1111, 1115 (1993); see also U.S.S.G. ง 3C1.1,
comment., n.3(b) (Nov. 1992) ("The following is a non-exhaustive
list of examples of the types of conduct to which this enhancement
applies: ... (b) committing, suborning, or attempting to suborn
perjury"). To impose the enhancement on that basis, the court must
-17-

find that the defendant gave "false testimony concerning a material
matter with the willful intent to provide false testimony, rather
than as a result of confusion, mistake, or faulty memory."
Dunnigan, 113 S. Ct. at 1116. The test for materiality is "
'whether the false testimony was capable of influencing the
tribunal on the issue before it.' " United States v. Abroms, 947
F.2d 1241 (5th Cir. 1991), cert. denied, 112 S. Ct. 2992 (1992)
(emphasis in original) (quoting United States v. Salinas, 923 F.2d
339, 341 (5th Cir. 1991) (quoting United States v. Giarratano, 622
F.2d 153, 156 (5th Cir. 1980))).
At the suppression hearing, one of the officers testified
that Reed had led him to Mack's car. Reed testified that he did
not do so because he did not know the location of the car. Reed
does not dispute the falsity of his statements; rather, he argues
the statements were not material to the suppression hearing because
the only issues at the hearing were as to the legality of the
search of Reed's car, the legality of the search of his home, and
the voluntariness of Reed's statements. The statements are
material because they had a bearing on the determination of the
credibility of the witnesses, which is critical to determining
matters such as voluntariness. The sentence enhancement based on
perjury is proper.
Accordingly, we AFFIRM Reed's conviction and sentence.
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