United States v. Zenone ( 1998 )

CORRECTED OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4179
ANTHONY ZENONE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4190
MICHAEL ZENONE,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Frederick N. Smalkin, District Judge.
(CR-96-190)
Argued: March 6, 1998
Decided: August 10, 1998
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
BROADWATER, United States District Judge for the
Northern District of West Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Aron Uri Raskas, KRAMON & GRAHAM, P.A., Balti-
more, Maryland, for Appellant Anthony Zenone; Gerald Chester
Ruter, Baltimore, Maryland, for Appellant Michael Zenone. Thomas
Michael DiBiagio, Assistant United States Attorney, Baltimore,
Maryland, for appellee. ON BRIEF: Andrew Jay Graham, KRA-
MON & GRAHAM, P.A., Baltimore, Maryland, for Appellant
Anthony Zenone. Lynne A. Battaglia, United States Attorney, Balti-
more, Maryland for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Two brothers, Anthony Zenone and Michael Zenone, appeal their
convictions in the United States District Court for the District of
Maryland for several bank robberies. Anthony Zenone was convicted
by a jury of two counts of bank robbery in violation of 18 U.S.C.
§ 2113(a) and (f) and two counts of using and carrying a firearm in
connection with a crime of violence in violation of 18 U.S.C.
§ 924(c). After entering a guilty plea to a third count of bank robbery,
upon which the jury deadlocked, Anthony Zenone was sentenced to
408 months of imprisonment. Michael Zenone was convicted of two
counts of bank robbery in violation of 18 U.S.C.§ 2113(a) and (f) and
was sentenced to 144 months of imprisonment. In this consolidated
appeal, the Zenones raise nine challenges to their convictions as fol-
lows: first, that the district court erred in refusing to conduct a Franks1
_________________________________________________________________
1 The decision of Franks v. Delaware, 438 U.S. 154 (1978), requires
a hearing when a defendant makes a substantial preliminary showing that
a false statement knowingly and intentionally, or with reckless disregard
for the truth, was included in an affidavit for a search warrant so as to
establish probable cause.
2
hearing; second, that the district court erred in failing to suppress evi-
dence seized pursuant to a search warrant; third, that the court failed
to suppress items seized outside the scope of the warrant; fourth, that
the district court failed to suppress the contents of a video tape seized
pursuant to the search warrant; fifth, that the district court failed to
conduct an array of shotguns before identified by witnesses; sixth,
that the district court erred as to Michael Zenone's sentence in apply-
ing a six level enhancement pursuant to U.S.S.G.§ 2B3.1(b)(2)(B);
seventh, that the district court also erred as to Michael Zenone's sen-
tence by making a two level upward departure pursuant to U.S.S.G.
§ 5K2.3; eighth, that the district court erred in sentencing Anthony
Zenone to consecutive sentences; and ninth, that the district court
failed to change venue or sequester the jury in light of extensive pre-
trial publicity. Finding no reversible error in the above issues, we
affirm both convictions.
I.
The first bank robbery occurred in 1993. On September 2, 1993,
the First National Bank located in Arnold, Maryland, was robbed by
two men. When the robbers entered the bank, they were dressed in
dark business suits and wore presidential masks. The first robber wore
a President Reagan mask. The second robber wore a President Nixon
mask. Both men were armed with shotguns. One of the shotguns had
a camouflage sling. Once in the bank, the first robber approached the
teller line while the second robber remained near the front door. The
first robber then gave precise instructions about the denominations of
the currency that he wanted, that he should not be given a dye pack,
and that alarms should not be activated. He used profanity throughout
the robbery to intimidate and control the victims. After obtaining the
money, the robbers left the bank. This bank was insured by the Fed-
eral Deposit Insurance Corporation (FDIC).
The second bank robbery occurred several years later. On April 9,
1996, two men entered the Mercantile Safe Deposit and Trust Com-
pany Bank located in Baltimore, Maryland. They spoke with a teller
about banking services, apparently cashed a check, and then left. On
April 12, the two men returned and robbed the bank of $8,403.00. At
the time of the robbery, this bank's deposits were also insured by the
FDIC. During this robbery, both men entered the bank wearing dark
3
ski masks over their faces and carrying shotguns. The first robber car-
ried a modified shotgun with an attached telescopic site and magazine
extension tube. This modified shotgun had a distinct appearance,
which was visible on the bank surveillance cameras and was recog-
nizable by the victims.
The first robber with the modified shotgun entered the bank and
announced the robbery. He screamed commands to the customers and
employees. He gave precise instructions about the denominations of
the currency that he wanted, that he should not be given a dye pack,
and that alarms should not be activated. He used profanity throughout
the robbery. The tellers then placed the money from their drawers on
the counter. Then, the first robber systematically worked his way
down the teller line taking money at each station and placing the
money into a green backpack. Before leaving the bank, the first rob-
ber again threatened the employees and customers."He again admon-
ished the tellers and everyone in the bank against calling the police,
that he was willing and able to kill anybody who came after him."
(Joint Appendix (J.A.) at 281.)
During this robbery, the second masked robber stood in the vesti-
bule with his back holding open the door and pointing his shotgun at
the customers and employees in the bank. As both men were leaving
the bank, the first robber threw a smoke grenade into the vestibule.
Witnesses saw the robbers leaving the bank in a blue sedan, "possibly
an Oldsmobile Cutlass with a luggage rack on the trunk lid, Maryland
license tag CHC 475." (J.A. at 62.)
The third bank robbery occurred a few weeks later. First, on April
19, 1996, one of the robbers entered the First Virginia Bank located
in Towson, Maryland and made inquiries about opening a checking
account. Then, on April 26, 1996, the two robbers returned to this
bank and robbed it of $3,543.00. At the time of the robbery, this
bank's deposits were also insured by the FDIC. Both men entered the
bank wearing dark ski masks over their faces and carrying shotguns.
Both men used the weapons similar to those utilized in the April 12,
1996 Mercantile Bank robbery. The first robber used a modified shot-
gun with a scope identified by the victims. This time, the first robber
also wore an ammunition belt. Both robbers were seen arriving at the
4
bank in a blue sedan, "possibly an Oldsmobile or Buick bearing a
Maryland license tag number AKB 336." (J.A. at 63, 408.)
The first robber entered the bank and approached the teller line. As
he came into the lobby, he pumped a shell into the shotgun's chamber
and announced the robbery. He gave precise instructions regarding
the denominations of the currency he wanted, that he should not be
given a dye pack, and that alarms should not be activated. He used
profanity throughout the robbery.
During this robbery, the second robber also stood in the vestibule
with his back holding the door open and pointing his shotgun toward
the employees in the bank. As he was leaving the bank, the first rob-
ber stopped and told the tellers that if they called the police he would
come back to kill them. The second robber detonated a smoke gre-
nade in the vestibule upon leaving the bank.
After investigating information that developed during the two April
1996 bank robberies, and based upon the evidence obtained, Special
Agent John W. Barry of the Federal Bureau of Investigation (FBI)
prepared a detailed twenty-nine paragraph, eight page affidavit in sup-
port of a federal search warrant. (J.A. at 61-68.) He began the affida-
vit with the events concerning the April 12 robbery of the Mercantile
Bank and detailed the victim's physical description of the robbers.
Importantly, Special Agent Barry recounted how bank employees
recalled that two white males came to the bank on April 9 and
appeared to pay close attention to the surveillance system and physi-
cal layout of the bank. Special Agent Barry next obtained still photo-
graphs of these two white males from the bank surveillance
videotape. After flyers were distributed to local law enforcement
agencies, a Baltimore County officer recognized Michael Zenone
from prior employment with him. Special Agent Barry then focused
his investigation upon Michael Zenone and his brother, Anthony
Zenone. Based upon additional evidence set forth in this affidavit,
Magistrate Judge Paul M. Rosenberg issued a search warrant for their
joint residence at Baltimore, Maryland.
On May 4, 1996, pursuant to this federal search warrant, the FBI
searched the joint residence of the Zenones located at 4411 Forest
5
View Lane, Baltimore, Maryland. The FBI discovered the following
evidentiary items in Anthony Zenone's locked bedroom closet:
1. Remington 870 12 gauge shotgun with Weaver scope,
installed backwards, loaded magazine extension tube with
shells.
2. Ithaca 12 gauge shotgun.
3. Savage 7mm rifle.
4. Presidential mask of Ronald Reagan.
5. Camouflage ammunition sling.
6. Video tape labeled "Tony and Lynette" containing news
reports of crimes including the September 2, 1993, robbery
of the First National Bank, and several other armed rob-
beries where the robbers used firearms and wore presidential
masks, a double murder committed in June 1995 in Balti-
more County, Maryland and a murder committed in Anne
Arundel County in 1993.
The FBI then discovered following evidence located in the base-
ment of the Zenones' joint residence:
1. Body armor.
2. Five body armor carriers.
3. Bullet proof inserts.
4. Bullet proof vest.
5. Two black ski masks.
6. Smoke grenade.
7. Maryland license plate CHC 475.
6
8. Maryland license plate AKB 336.
9. Green backpack.
The FBI discovered $4,610.00 in cash in Anthony Zenone's bed-
room dresser drawer. This money contained five $20 bait bills taken
during the April 26, 1996 robbery of The First Virginia Bank. Bait
bills are paper currency with previously recorded serial numbers for
identification purposes. The FBI also seized numerous other items as
listed on the warrant return which they felt had evidentiary value.
On July 31, 1996, Anthony Zenone and Michael Zenone were
indicted by a federal grand jury in Baltimore, Maryland and charged
in a superseding indictment with bank robbery in violation with 18
U.S.C. § 2113(a) and (f) and with the use and carrying of a firearm
in connection to a crime of violence in violation of 18 U.S.C.
§ 924(c). The Zenones were charged with all three bank robberies.
The Zenones' first trial began on September 30, 1996 and con-
cluded on October 7, 1996. Anthony Zenone was convicted of rob-
bing the Mercantile Bank on April 12, 1996 and using a shotgun in
connection with this offense (Counts Three and Four of the supersed-
ing indictment) and was also convicted of robbing the First Virginia
Bank on April 26, 1996 as well as using a shotgun in connection with
this offense (Counts Five and Six). The jury did not reach a verdict
on Counts One and Two relating to the 1993 bank robbery. On
December 13, 1996, Anthony Zenone plead guilty to robbing the First
National Bank on September 2, 1993 (Count One) and the use of
weapons charge related to this robbery was dismissed (Count Two).
On October 7, 1996, the jury acquitted Michael Zenone on Counts
One and Two of the superseding indictment relating to the 1993 bank
robbery. The jury was unable to reach a verdict on the remaining
counts against him. On December 9, 1996, Michael Zenone was
retried. On December 11, 1996, Michael Zenone was convicted of
robbing the Mercantile Bank on April 12, 1996 and the First Virginia
Bank on April 26, 1996. (Counts Three and Five). He was acquitted
of Counts Four and Six relating to the use of a shotgun during these
robberies.
7
II.
The first four issues raised by the Zenones all relate to the search
warrant executed at their residence on May 4, 1996. The Zenones
argue that the evidence seized should be suppressed. The parties do
not dispute that when testing the sufficiency of a search warrant and
its supporting affidavit, the standard of review is de novo. United
States v. Wilhelm, 80 F.3d 116, 118 (4th Cir. 1989); see also United
States v. Hodges, 705 F.2d 106 (4th Cir. 1983). In this review, great
deference is to be given to a magistrate's assessment of facts when
making a determination of probable cause. United States v. Jones, 31
F.3d 1304, 1313 (4th Cir. 1994).
A.
The issues raised by the requested Franks hearing and the alleged
failure to suppress the search warrant are intertwined. Accordingly,
they will be addressed together.
In Franks v. Delaware, 438 U.S. 154, 155 (1978), the Supreme
Court considered the issue of whether a criminal defendant has the
right to challenge the truthfulness of factual statements made in affi-
davits filed in support of a search warrant. The Supreme Court held
that "[w]here the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affidavit in the warrant
affidavit, and if the allegedly false statement is necessary to the find-
ing of probable cause, the Fourth Amendment requires that a hearing
be held at the defendant's request." Id. at 155-56. Further, we have
recognized that "Franks protects against omissions that are designed
to mislead, or that are made in reckless disregard of whether they
would mislead, the magistrate." United States v. Colkley, 899 F.2d
297, 301 (4th Cir. 1990).
The district court in this case ruled upon the Zenones' request for
a Franks hearing and the motion to suppress in a Memorandum and
Order entered on August 23, 1996. In paragraphs 4 and 6 of that
order, the district court considered and rejected their contentions.
(J.A. at 162-63.) Anthony Zenone again raised the Franks issue at a
8
pretrial hearing held on September 30, 1996. The district court again
considered and rejected the basis for the request.
As discussed above, on a challenge to the sufficiency of a search
warrant affidavit, the reviewing court accords "great deference" to the
issuing magistrate's determination. United States v. Clyburn, 24 F.3d
613, 617 (4th Cir. 1994). A reviewing court is to simply ensure that
the magistrate judge had a substantial basis for concluding that proba-
ble cause existed and not to second-guess the magistrate judge. Jones,
31 F.3d at 1313.
The Zenones assert that they met the requirements for a Franks
hearing. First, as to the four alleged false statements in the search
warrant, the Zenones claim a showing of an "offer of proof" "accom-
panied by a statement of supporting reasons." Franks, 438 U.S. at
171. Second, the Zenones argue that they have shown that the four
false statements were essential to the probable cause determination.
After reviewing the record, we conclude that the grounds relied upon
by the Zenones do not establish any intentional or material misrepre-
sentations.
The first of the four alleged false statements concerns whether the
defendants were checking the physical layout and surveillance sys-
tems of the Mercantile Bank on April 9, 1996 in preparation of the
robbery or were there legitimately conducting banking business.2 The
_________________________________________________________________
2 This first alleged false statement comes from paragraph 5 of Special
Agent Barry's affidavit dated May 3, 1996. This paragraph states as fol-
lows:
5. Investigation incidental to this last robbery disclosed that
on Tuesday, April 9, 1996, that two white males entered the
above described bank seeking information regarding the estab-
lishment of a checking account. Both men spoke to tellers at the
teller counter area. These individuals were subsequently located
on bank surveillance video tape, which had been obtained as a
result of the robbery. The bank surveillance film, as well as still
images, were reviewed with the appropriate bank employees,
who recalled that neither of the men conducted any bank busi-
ness, and that both men appeared to pay particular attention to
the surveillance system and physical layout of the bank. (J.A. at
62.)
9
Court concludes that this merely reflects a disagreement of interpreta-
tion. As well, the government did not learn that the teller failed to
mention that Anthony Zenone cashed a check during this visit until
the Zenones' pretrial memorandum was filed on July 2, 1996.
We also conclude that this same disputed interpretation of events
applies to the second statement questioned by the Zenones in the affi-
davit. This statement concerns whether Michael Zenone engaged in
counter-surveillance techniques in May, 1996 when the FBI was
investigating the Zenones.3 This does not establish an intentional or
material misrepresentation.
The third area of alleged false statements concerns the description
of the getaway car and the vehicle owned by Anthony Zenone.4 A
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3 Paragraph 16 of Special Agent Barry's affidavit states as follows:
16. On May 5, 1996, Michael Zenone was followed from his
place of employment to his home. While in route, he demon-
strated numerous counter surveillance techniques. He repeatedly
made U-turns, drove 20 miles per hour under the posted speed
limit, and randomly pulled into parking lots along his route only
to pull out into traffic after several minutes. On April 30, 1996,
Anthony Zenone demonstrated similar counter surveillance tech-
niques, entering parking lots and proceeding down dead end
roads. (J. A. at 65.)
4 The descriptions of the vehicles are contained in several paragraphs
of Special Agent Barry's affidavit as follows:
Paragraph 3: Witnesses at the bank [Mercantile] observed two
robbers enter into a blue, four door sedan, possibly an Oldsmo-
bile Cutlass with a luggage rack on the trunk lid, Maryland
license tag CHC475. (J.A. at 62.)
Paragraph 6 in part: The robbers were observed by witnesses,
both prior to entering the bank [First Virginia] and after exiting
the bank, to be operating a blue colored sedan, possibly an Olds-
mobile or Buick, bearing a Maryland license tag number
AKB336. (J.A. at 63.)
Paragraph 14 in part: Anthony Zenone is a registered owner of
a 1994 Oldsmobile, four door sedan, Maryland registration
CNH458, at 4411 Forest View Avenue, Baltimore, Maryland.
(J.A. at 63.)
10
reading of the affidavit shows no direct assertion that the vehicle used
in the bank robberies was actually owned by Anthony Zenone. While
the Zenones concede that the make and model of the vehicle used in
the robberies was similar to Anthony Zenone's vehicle, they claim
that these statements were a material misrepresentation because the
affidavit failed to disclose that the color of the vehicles was different.
Anthony Zenone's car was red and also did not have a luggage rack.
As well, Michael Zenone owned a blue-grey Chrysler Lebaron. We
find no material misrepresentation from these statements as they are
Special Agent Barry's statements concerning the similarity of both
vehicles.
The fourth statement concerns whether Anthony Zenone failed to
work on the days of the two robberies in April 1996. Special Agent
Barry stated in his affidavit that Anthony Zenone, although scheduled
to work on both days, did not show up for work. The government
points out, and the Zenones do not contradict, that this assertion was
not made before the district court. Therefore, the Zenones waived this
ground and are precluded from relying upon it for appeal. See Fed.
R. Crim. P. 12(f); United States v. Wilson, 115 F.3d 1185, 1190 (4th
Cir. 1997).
In this case, we conclude that probable cause existed to support the
issuance of a search warrant for the Zenone residence. Special Agent
Barry's detailed affidavit provided a wealth of facts linking the
Zenones to the commission of the two April 1996 bank robberies. The
required nexus for probable cause between the place to be searched
and the evidence of criminal activity to be seized was clearly shown.
United States v. Williams, 974 F.2d 480, 481-82 (4th Cir. 1992). For
these reasons, we conclude that the district court properly denied the
Franks hearing and the motion to suppress.
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Paragraph 24: Witnesses at the April 12, 1996 bank robbery
(described in Paragraph 1) observed two robbers enter into a
blue, four door sedan, possibly an Oldsmobile Cutlass with a
luggage rack on the trunk lid, Maryland license tag CHC475.
(J.A. at 67.)
11
B.
The Zenones next assert that the district court should have sup-
pressed items they claim were seized outside the scope of the search
warrant. The Zenones claim that the FBI agents acted with flagrant
disregard for the warrant and transformed a particularized warrant
into a general, unrestricted search, requiring therefore, that all of the
evidence seized be suppressed. Jones, 31 F.3d at 1314; United States
v. Borromeo, 954 F.2d 245, 246 (4th Cir. 1992). In this regard, the
Zenones assert that the voluminous return of items seized pursuant to
the search warrant support this contention.
The district court rejected the Zenones' contentions before trial.
The district court ruled that the items were seized in plain view during
the execution of a valid search warrant and were either contraband or
fruits of criminal activity. Many of the listed items were clearly the
fruits of criminal activity as they remained in original packaging with
store labels attached. The district court relied on United States v.
Legg, 18 F.3d 240, 242 (4th Cir. 1994), which upheld the seizure of
a pistol found in plain view during the search of an apartment pursu-
ant to a warrant.
In order to justify a warrantless seizure under the plain view doc-
trine, three conditions must be met. First, the seizing officer must be
lawfully present on the premises. Second, the officer must have a law-
ful right of access to the object itself. Third, the object's incriminating
character must be immediately apparent. United States v. Wells, 98
F.3d 808, 809-10 (4th Cir. 1996). As did the district court, we con-
clude that the evidence shows that all three conditions were met. As
well, the government also points out that since those items were not
introduced into evidence at trial, it does not affect the admissibility
of other relevant evidence legally seized. See Jones, 31 F.3d at 1314.
C.
Last, the Zenones contend that two video tapes were also illegally
seized at their residence. The Zenones argue that the district court was
required to suppress evidence used by the government in its case in
chief that was "seized without scrupulous adherence to the warrant...."
United States v. Heldt, 668 F.2d 1238, 1260 & n. 33 (D.C. Cir. 1981);
12
Borromeo, 954 F.2d at 245. Specifically, Anthony Zenone argues that
the district court erred when it denied his motion to suppress the first
video tape labeled "Tony and Lynette," which was seized from his
locked bedroom closet. Michael Zenone also complains that the dis-
trict court erred when it failed to suppress a second video tape labeled
"Mom and Dad's Copy," which was also seized from a closet.
The government contends that the criminal character of the first
video tape was immediately apparent once viewed. This tape con-
tained televisions news stories about the bank robberies in question.
The government further contends that the second video tape was rele-
vant in that it showed Michael Zenone's unlimited access to areas
within the residence. Specifically, the tape also demonstrated his
access to the basement where several items of evidence were found
linking him to the two bank robberies.
In citing United States v. Lowe, 50 F.3d 604, 607 (8th Cir. 1995),
the district court held that the "seizure and reviewing of the video-
tapes from the residence was plainly authorized by the warrant and
lawful, given their location and their tendency to link the defendant
to the place to be searched." (J.A. at 164-65.) The government points
out that the video tapes were the only items found in each closet and
that each video tape linked the defendants to the residence. The gov-
ernment also relies on Lowe which held that the search and seizure
of a video tape was authorized by the warrant as an item that linked
the defendant therein with the residence. We also agree with the dis-
trict court's ruling on that basis.
III.
The Zenones next contend that the district court erred when it
refused to conduct an array, or "line-up," of the shotguns before intro-
ducing them at trial. The Zenones point out that the government relied
upon eye-witness identification of the distinct weapons the robbers
used to link the Zenones to the crimes. The government conceded at
trial that none of the victims would be able to identify the robbers
because of the masks worn during each robbery. The Zenones equate
eye-witness identification of individuals with that of physical objects
such as the shotguns. The Zenones assert that a criminal defendant
has a due process right to prevent suggestive police identification pro-
13
cedures that create "a very substantial likelihood of irreparable misi-
dentification." United States v. Concepcion , 983 F.2d 369, 377 (2d
Cir. 1992). Concepcion involved the identification of a defendant
within minutes of a shooting by a show-up at a hospital. The Zenones
do not cite any specific authority for a line-up of physical objects.
The government counters that a defendant's due process right to
reliable identification procedures does not extend beyond normal
authenticity and identification procedures for physical evidence.
Johnson v. Sublett, 63 F.3d 926, 932 (9th Cir. 1995) (holding that
while this argument deserves credit for creativity, there is no authority
for a defendant's asserted due process right to reliable identification
procedures beyond normal authenticity and identification procedures).
Johnson concerned a victim's in-court identification of an automobile
used to carry a victim in the course of a kidnaping. Id.Therefore, the government maintains that this issue relates to an
evidentiary ruling. Thus, the standard of review is whether the district
court abused its discretion in admitting testimony of the similarity of
the shotguns found at the Zenones' residence with those used in the
robberies. United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)
(evidentiary rulings are reviewed for abuse of discretion and are sub-
ject to harmless error review). As the Zenones did not present any
other argument or decisions to support reversal of the district court's
evidentiary decision, we affirm on this issue.
IV.
Michael Zenone asserts two errors concerning the application of
the United States Sentencing Guidelines (U.S.S.G.) to his sentence.
The first concerns the district court's findings as to the use of a shot-
gun during the robberies. The second concerns the district court's
upward departure based upon psychological injury to the victims.
A.
Specifically, Michael Zenone objects to the district court's findings
relating to the use of a firearm during the commission of a crime.
U.S.S.G. § 2B3.1 assigns robbery a base offense level of 20. This
14
base level is increased six levels if a firearm was otherwise used.
U.S.S.G. § 2B3.1(b)(2)(B). He claims that the facts support a five
level enhancement for brandishing a deadly weapon under U.S.S.C.
§ 2B3.1(b)(2)(C). Michael Zenone does not rely on any decisions of
this Court. His counsel cites United States v. Matthews, 20 F.3d 538(2nd Cir. 1994) (holding that implicit threat coupled with literal
explicit threat that may constitute additional conduct, but does not
constitute additional use of weapon for guideline purposes).
In reviewing the application of the guidelines by the district court,
we examine factual determinations for clear error. United States v.
Blake, 81 F.3d 498, 503 (4th Cir. 1996). Further, legal questions are
subject to a de novo standard of review. Id.; see also United States
v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).
Prior to sentencing, the district court rejected Michael Zenone's
argument based on brandishing. The Court found that Michael
Zenone's conduct went "far beyond mere brandishing of a weapon,
to actual menacing of the tellers with very frightening weapons at
close range, with death threats." (J.A. at 206.) At sentencing, the dis-
trict court further found that when a shotgun is"pointed at somebody,
... together with death threats ... either before or at the moment [the
shotguns] were brandished, ... especially [with] very crude threats
with violent and profane language..." the acts are beyond mere bran-
dishing and justify a six level increase. (J.A. at 649.)
A review of the record indicates that the district court's findings of
fact were not clearly erroneous. Moreover, we agree that Michael
Zenone's conduct, i.e., pointing his shotgun at a teller and threatening
to kill her, went beyond mere brandishing. See United States v.
Fuller, 99 F.3d 926, 927 (9th Cir. 1996) (holding that "pointing [a]
firearm at [a] teller and explicitly threatening to kill her . . . exceeded
mere brandishing"); United States v. Seavoy , 995 F.2d 1414, 1422
(7th Cir. 1993) (holding that "pointing of a firearm, combined with
an explicit threat" constitutes "otherwise using"); United States v.
Johnson, 931 F.2d 238, 240 (3d Cir. 1991) (leveling a firearm at a
victim's head and threatening to discharge it properly classified as
"otherwise using" a firearm). But see Matthews, 20 F.3d at 554 (hold-
ing that "an explicit verbal threat may constitute additional conduct,
but it does not, in our view, constitute additional use of the weapon").
15
Therefore, the district court did not err in finding that Michael Zenone
"otherwise used" a firearm.
B.
Michael Zenone alleges error concerning the district court's two
level upward departure. This departure was based upon the district
court's application of U.S.S.G. § 5K2.3 in finding that Michael
Zenone's conduct caused extreme psychological injury to several rob-
bery victims. As above, the same two part inquiry and standard of
review apply to this assignment of error.
At the sentencing hearing, the government presented five victim
impact statements and the testimony of three victim tellers. This com-
pelling evidence detailed substantial emotional, behavioral, and psy-
chological impairment of these victims. Based upon the severity of
the psychological injury described by these witnesses and the district
court's findings of the intent or knowing risks of such injury by
Michael Zenone's actions, the district court decided it was within its
discretion in ruling a two level upward departure pursuant to U.S.S.G.
§ 5K2.3.
The standard of review of the district court's decision on the appli-
cation of the sentencing guidelines point is a two part inquiry. The
first part concerns the district court's findings of fact, reviewed under
a clear error standard; the second part involves the application of the
guideline in question, being an abuse of discretion standard. United
States v. Barber, 119 F.3d 276, 282 (4th Cir. 1997), cert. denied, 118
S.Ct. 457 (1997); United States v. Achiekwelu , 112 F.3d 747, 755-56
(4th Cir. 1997), cert. denied, 118 S.Ct. 250 (1997).
We find that the record indicates that an upward departure was
authorized in this case. See United States v. Gary, 18 F.3d 1123, 1129
(4th Cir. 1994) (citing that district court's determination under
U.S.S.G. § 5K2.3 is to be given considerable deference). The district
court's findings of fact and weighing of guideline factors do not indi-
cate an abuse of discretion. Again, the procedures used were consis-
tent with those established in Koon.
16
V.
Anthony Zenone challenges the district court's application of con-
secutive sentences under 18 U.S.C. § 924(c). The basis of this chal-
lenge is the assertion that both offenses were one continuing criminal
scheme. He takes exception to this Court's holding in United States
v. Camps, 32 F.3d 102, 206 (4th Cir. 1994). Camps held that a defen-
dant who has used a firearm on "several separate occasions during the
course of a single continuing offense ... has committed several
§ 924(c)(1) offenses." Id. He relies on opposite holdings by several
other circuits. See, e.g., United States v. Anderson, 59 F.3d 1323(D.C. Cir. 1995); United States v. Lindsay, 985 F.2d 666 (2nd Cir.
1993); United States v. Sims, 975 F.2d 1225 (6th Cir. 1992).
The issues raised by Anthony Zenone involve questions of law, and
the standard of review is de novo. United States v. Childress, 104 F.3d
47, 49 (4th Cir. 1996). The record in this case clearly indicates
Anthony Zenone's participation in two bank robberies. These two
bank robberies occurred two weeks apart. Therefore, we concur that
the district court was authorized to impose two consecutive sentences.
See 18 U.S.C. § 924(c); Deal v. United States, 508 U.S. 129, 131
(1993) (upholding district court's consecutive sentences for six bank
robberies on different dates and six counts of carrying and using a
firearm during each robbery).
VI.
Last, Anthony Zenone asserts error based upon the district court's
denial of his motion for a change of venue or for sequestration of
jurors. Anthony Zenone relies upon the allegation that pretrial public-
ity threatened his due process right to a fair trial which, at least,
required the sequestration of jurors. United States v. Concemi, 957
F.2d 942, 946 (1st Cir. 1992). In affirming the conviction, the First
Circuit in Concemi noted that sequestration was an extreme measure
to control prejudicial information and stated that the district court still
has the option to instruct the jury to avoid the publicity. Id.The district court followed the required two-step analysis concern-
ing a change of venue. United States v. Bailey , 112 F.3d 758, 769 (4th
Cir. 1997), cert. denied, 118 S. Ct. 240 (1997). First, the district court
17
considered whether the publicity was so inherently prejudicial that the
trial process would be tainted. Id. The district court found that the
publicity did not rise to the level of being inherently prejudicial. Sec-
ond, the district court conducted voir dire examination of prospective
jurors to determine if actual prejudice existed. Id. Apparently, only
one juror was excused based upon extensive exposure to news
reports. Thereafter, the district court admonished the jury to avoid
news reports. As well, the district court inquired as to such news
report exposure each morning before the start of trial. Therefore, the
district court did not abuse its discretion in denying this motion.
VII.
For the foregoing reasons, both convictions and sentences are
affirmed.
AFFIRMED
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