United States v. Hill ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-5004
DAVID HILL,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-01-191-A)
Submitted: September 24, 2003
Decided: October 15, 2003
Amended: September 21, 2021
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Craig W. Sampson, LAW OFFICE OF CRAIG W. SAMPSON, Rich-
mond, Virginia, for Appellant. Paul J. McNulty, United States Attor-
ney, Steven D. Mellin, Assistant United States Attorney, Thomas E.
Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellee.
2 UNITED STATES v. HILL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
David Hill appeals his conviction of several charges arising out of
the robbery of three banks in the Eastern District of Virginia. The
indictment charged Hill with conspiracy to commit offenses against
the United States, 18 U.S.C. § 371 (2000), three counts of armed bank
robbery, 18 U.S.C. § 2113(a), (d) (2000), and three counts of use of
a firearm in a crime of violence, 18 U.S.C. § 924(c) (2000). After a
trial, the jury found Hill guilty on all counts. Hill noted a timely
appeal. His counsel filed a brief pursuant to Anders v. California, 386
U.S. 738, 744 (1967), in which he represents that there are no argu-
able issues of merit in this appeal. Nonetheless, in his brief, counsel
challenges the district court’s dismissal without an evidentiary hear-
ing of Hill’s motion to amend, in which he asserted the transcript of
the district court’s hearing regarding his refusal to comply with the
grand jury subpoena was altered. Counsel also asserts the district
court erred in denying Hill’s Fed. R. Crim. P. 29 motion to dismiss
the charges because the Government failed to establish the banks
were federally insured, an element of the crime of bank robbery. Hill
filed a pro se supplemental brief that raised nine additional issues.
Finding no merit to any of these claims of error, and discovering no
other reversible error in our review of the record, we affirm the con-
victions and sentences.
Hill asserts the district court had no evidentiary basis for denying
his motion to amend judgment, styled as a motion under Fed. R. Civ.
P. 60(b), and the issue should be remanded for further proceedings.
The Federal Rules of Civil Procedure are not the vehicle by which
Hill may challenge his criminal judgment. See United States v.
O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999) (finding that Rule 60(b)
of the Federal Rules of Civil Procedure does not provide for relief
from criminal judgment). Other Circuits treat a motion pursuant to
Fed. R. Civ. P. 60(b) filed in a criminal case as a motion for a new
UNITED STATES v. HILL 3
trial under Fed. R. Crim. P. 33. See United States v. Graciani, 61 F.3d
70, 77 (1st Cir. 1995); United States v. Taglia, 922 F.2d 413, 415 (7th
Cir. 1991). Even if treated as a motion for a new trial, Hill’s motion
makes only conclusory assertions that the transcript was altered. A
transcript certified by a court reporter "shall be deemed prima facie
a correct statement of the testimony taken and the proceedings had."
28 U.S.C. § 753(b) (2000). A defendant’s bald assertion of error is
insufficient to overcome the statutory presumption that the transcript
is correct. United States v. Zammiello, 432 F.2d 72, 73 (9th Cir.
1970). We find the district court did not abuse its discretion in deny-
ing Hill’s motion. See United States v. Smith, 62 F.3d 641, 651 (4th
Cir. 1995).
Hill next asserts that he was entitled to a new trial because the
Government failed to establish the deposits of the banks he robbed
were insured by the Federal Deposit Insurance Corporation (FDIC).
The Government entered into evidence certificates demonstrating the
deposits of each bank were insured by the FDIC. An employee from
each bank testified the bank was so insured. Testimony from a bank
employee that the deposits are insured by the FDIC is sufficient evi-
dence from which the jury may conclude the bank was insured at the
time of the robbery. See United States v. Gallop, 838 F.2d 105 (4th
Cir. 1988). We find the Government introduced sufficient evidence
that the banks’ deposits were federally insured.
In his pro se supplemental brief, Hill asserts: (1) the warrant issued
for Hill’s arrest relied on a false statement in the affidavit; (2) Hill
was extradited from Red Onion State Prison in Pound, Virginia, to
Alexandria, Virginia, for trial in violation of the Extradition Act; (3)
the Government failed to comply with the Interstate Agreement on
Detainers Act by failing to bring Hill to trial in 180 days; and (4) the
Government, the court, and the jury pool conspired to fix Hill’s guilty
verdicts and sentence prior to the commencement of trial. Based on
our review of the record, we find these claims to be meritless.
Hill also contends his Fourth, Fifth, and Sixth Amendment rights
were violated by the grand jury proceedings and the district court’s
hearing regarding his failure to comply with the grand jury subpoena.
Hill has raised no meritorious issues challenging the propriety of the
grand jury subpoena duces tecum requiring he provide a cheek swab
4 UNITED STATES v. HILL
and head hair, the grand jury proceeding or the hearing before the dis-
trict court. See United States v. R. Enterprises, Inc., 498 U.S. 292, 297
(1991); United States v. Calandra, 414 U.S. 338, 343 (1974); United
States v. Dionisio, 410 U.S. 1, 9 (1972); In re Grand Jury Subpoena,
920 F.2d 235, 244 (4th Cir. 1990); Schmerber v. California, 384 U.S.
757, 761 (1966).
Hill contends the district court erred in not severing the three sub-
stantiative counts of bank robbery from the conspiracy count and each
other. We find the counts were properly joined. Fed. R. Crim. P. 8(a).
Hill next asserts the district court erred in allowing the admission
of bad character evidence in violation of Fed. R. Evid. 404(b). Hill
cannot complain of evidence solicited by his attorney on cross-
examination. See United States v. Neal, 78 F.3d 901, 904 (4th Cir.
1996). We find this claim of error to be meritless.
Hill finally complains that the Government improperly argued to
the jury that the evidence could be considered as a whole, and the dis-
trict court did not remedy this error. He also asserts the court’s con-
spiracy instruction was error because the jury was informed it could
consider accumulated the evidence. The court instructed the jury on
the elements of each count, the duty to weigh the evidence and the
testimony of the witnesses, and the Government’s burden to prove
Hill’s guilt as to each count. The court also instructed the jury that the
court’s instructions were the proper statement of the law, and the jury
was not bound by counsel’s statements of the law during closing
arguments. The instructions taken as a whole fairly stated the control-
ling law. United States v. Bostain, 59 F.3d 474, 480 (4th Cir. 1995).
We find these claims to be without merit.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm Hill’s convictions and sentences. We deny Hill’s motion
to substitute counsel and his motion for general relief, in which he
sought to exclude copies of FDIC insurance certificates provided by
the Government.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
UNITED STATES v. HILL 5
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED