United States v. Gilmore ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5453
BRAZE GILMORE, JR., a/k/a Richard
Bryant Gilmore,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(CR-95-7-R)
Submitted: April 16, 1996
Decided: April 30, 1996
Before WILLIAMS and MICHAEL, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
David D. Walker, Salem, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Thomas L. Eckert, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Braze Gilmore ("Gilmore") appeals his convictions on two counts
of bank robbery in violation of 18 U.S.C.A. § 2113(a) (West Supp.
1996). Because we find that there was sufficient evidence that the
robberies were accomplished by intimidation, we affirm.
The first robbery occurred at a Crestar Bank in Roanoke, Virginia,
on December 30, 1994. Gilmore walked up to a teller and the teller
asked if Gilmore needed help. Gilmore handed the teller a note. The
note said: "Place four wrapped one hundred, place four wrapped fif-
ties, place four wrapped twenties on the counter. No dye packs!
Someone might get hurt." The teller gave a handful of money to Gil-
more, and said that was all she had. Gilmore said that was enough,
and left.
The second robbery occurred at a First Virginia Bank in Roanoke,
Virginia, on January 3, 1995. Gilmore entered the bank, walked up to
one of the tellers, and handed her a note on a withdrawal slip. The
note said: "Deposit 100's 50's , 20's, no dye packs!" The teller
opened a money drawer, took out some money, and placed it on the
counter. Gilmore took the money, thanked the teller, and left.
Gilmore asserts that the evidence is insufficient to support his bank
robbery convictions because there was no evidence of intimidation. In
evaluating the sufficiency of the evidence to support a conviction, the
relevant question is whether, viewing the evidence in the light most
favorable to the Government, any rational trier of facts could have
found the defendant guilty beyond a reasonable doubt. United States
v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). A verdict must be
sustained if there is substantial evidence, taking the view most favor-
able to the Government, to support it. Glasser v. United States, 315
U.S. 60, 80 (1942). This court considers circumstantial as well as
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direct evidence, and allows the Government the benefit of all reason-
able inferences from the facts proven to those sought to be estab-
lished. Tresvant, 677 F.2d at 1021.
The bank robbery statute prohibits a taking "by force and violence,
or by intimidation." 18 U.S.C.A. § 2113(a). In United States v.
Wagstaff, 865 F.2d 626 (4th Cir.), cert. denied, 491 U.S. 907 (1989),
this court articulated a test for determining if a taking by intimidation
in violation of § 2113(a) occurred. First, a defendant's conduct must
be "reasonably calculated to produce fear." Id. at 627. Second, evi-
dence must establish that "an ordinary person in the teller's position
reasonably could infer a threat of bodily harm from the defendant's
acts." Id. at 627-28 (citations omitted).
During the first robbery, Gilmore handed the teller a note which
explicitly threatened physical violence. Thus, the note itself provided
sufficient evidence of intimidation. During the second robbery, Gil-
more's note, "Deposit 100's 50's, 20's, no dye packs!," although con-
taining no direct threats, was nonetheless intimidating. The phrase "no
dye packs!," written with an exclamation point, was calculated to sug-
gest that something bad would happen if a dye pack was used. Gil-
more wanted the teller to be fearful of using a dye pack and the note
was directed at producing that result. The teller, upon reading the
note, was reasonable in believing that harm would come to her if she
used a dye pack. Accordingly, there was sufficient evidence of intimi-
dation to support the second bank robbery conviction.
Accordingly, for the reasons discussed above, we affirm Gilmore's
convictions. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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