United States v. James McNeal , 818 F.3d 141 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4871
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES LARRY MCNEAL,
Defendant – Appellant.
No. 14-4872
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALPHONSO STODDARD,
Defendant – Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis III, Senior
District Judge. (1:14-cr-00076-TSE-1; 1:14-cr-00076-TSE-3)
Argued: December 9, 2015 Decided: March 28, 2016
Before KING, SHEDD, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Shedd and Judge Thacker joined.
ARGUED: Joseph John McCarthy, DELANEY, MCCARTHY & COLTON, P.C.,
Alexandria, Virginia; Maureen Leigh White, Richmond, Virginia,
for Appellants. Richard Daniel Cooke, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:
Dana J. Boente, United States Attorney, Jennifer A. Clarke,
Special Assistant United States Attorney, Christopher Catizone,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
2
KING, Circuit Judge:
Defendants James Larry McNeal and Alphonso Stoddard were
convicted by a jury and sentenced in the Eastern District of
Virginia for conspiracy, armed bank robberies, and brandishing
firearms during crimes of violence. On appeal, McNeal and
Stoddard jointly challenge the sufficiency of the evidence
supporting their convictions on the brandishing offenses.
Separately, McNeal pursues three other contentions, challenging
the adequacy of proof with respect to his conspiracy conviction,
the denial of his motions to suppress, and certain evidentiary
rulings. Finally, in supplemental submissions, McNeal and
Stoddard contend that the federal offense of armed bank robbery
is not a “crime of violence” in the context of the brandishing
offenses. As explained below, we reject the various contentions
of error and affirm.
I.
On February 27, 2014, the federal grand jury in Alexandria,
Virginia, returned a seven-count indictment against McNeal,
Stoddard, and a third man, James Link. Count One charged
conspiracy under 18 U.S.C. § 371, alleging that the defendants
had conspired “to commit an offense against the United States,
namely armed robbery of a bank, in violation of [18 U.S.C.
3
§ 2113(a) and (d)].” See J.A. 50. 1 Counts Two, Four, and Six
charged the defendants with substantive armed bank robbery
offenses, in contravention of § 2113(a) and (d). Counts Three,
Five, and Seven charged them with brandishing firearms during
crimes of violence — the armed bank robberies charged in Counts
Two, Four, and Six — in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). Counts Two and Three arose from the October
30, 2013 robbery of a Bank of Georgetown branch in Vienna,
Virginia (the “Bank of Georgetown robbery”). Counts Four and
Five arose from the November 25, 2013 robbery of a Wells Fargo
branch on North Glebe Road in Arlington, Virginia (the “Glebe
Road robbery”). Finally, Counts Six and Seven arose from a
robbery of a Wells Fargo branch on South George Mason Drive in
Arlington on New Year’s Eve in 2013 (the “New Year’s Eve
robbery”). 2
1
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
2
Prior to trial, Link entered into a plea agreement with
the government, pursuant to which he pleaded guilty to Counts
Five and Seven in exchange for his cooperation against McNeal
and Stoddard. Link thereafter refused, however, to testify
against his coconspirators. The trial court found Link in
breach of the plea agreement and sentenced him to thirty-five
years in prison. Link appealed the judgment, and we affirmed.
See United States v. Link, 606 F. App’x 80 (4th Cir. 2015).
4
A.
On December 30, 2013 — the day before the New Year’s Eve
robbery — FBI agents applied in the District of Maryland for a
warrant authorizing them to install a tracking device on a 2004
Ford Taurus (the “tracking warrant”). The supporting affidavit
recounted the details of four recent bank robberies in the
Washington, D.C. area — the Bank of Georgetown and Glebe Road
robberies, plus the October 29, 2013 attempted robbery of a
Wells Fargo branch in Rockville, Maryland (the “Rockville
robbery attempt”), and the December 10, 2013 robbery of a TD
Bank in Washington.
The tracking warrant affidavit also related that a
confidential informant contacted the authorities on December 12,
2013. The informant advised that an individual in a
surveillance photo from one of the robberies resembled McNeal.
The informant added that he had overheard McNeal and two other
men discuss their involvement in bank robberies, describing how
they cased banks (i.e., scouted them out) before robbing them.
The affidavit advised that all three men had been convicted of
bank robbery offenses that were similar to those then under
investigation. The informant identified the getaway car the
trio had used in the robberies as a beige 2004 Ford Taurus,
bearing Maryland handicap license plate 20881HV. The Taurus,
5
agents learned, was registered to McNeal’s mother at a
residential address in Hyattsville, Maryland.
According to the affidavit, McNeal drove the Taurus from
the Hyattsville residence to Arlington on December 27, 2013,
picking up two other men en route. In Arlington, FBI agents
watched as the car parked in view of a Bank of America branch at
the intersection of Columbia Pike and South Glebe Road, where it
remained for a short time. The Taurus then drove within view of
the Wells Fargo branch on South George Mason Drive, parked
nearby for about ten minutes, and left.
At about 4:00 p.m. on December 30, 2013, a federal
magistrate judge in Greenbelt, Maryland, issued the tracking
warrant. Pursuant thereto, the FBI agents installed a GPS
tracking device on the Taurus that evening.
The very next day, McNeal, now under close surveillance by
the FBI and local authorities, drove the Taurus to Arlington
with Stoddard and Link to commit the New Year’s Eve robbery.
FBI agents and Arlington police officers watched that afternoon
as Stoddard and Link exited the Wells Fargo branch on South
George Mason Drive, carrying a black trash bag overflowing with
stolen money. Immediately after the thieves entered the Taurus,
agents blocked their getaway and arrested all three suspects.
The arresting agents then seized a loaded Glock handgun from
Link and the trash bag full of cash from the vehicle.
6
Later that afternoon — after McNeal, Stoddard, and Link had
committed the New Year’s Eve robbery — FBI agents sought a
warrant to search McNeal’s residence in Hyattsville for, inter
alia, evidence of the bank robberies (the “search warrant”).
The supporting affidavit echoed the facts underlying the
tracking warrant application, but also described the New Year’s
Eve robbery and the arrests of the three suspects earlier that
day. At 3:45 p.m., the magistrate judge in Greenbelt issued the
search warrant for McNeal’s residence. During their search of
the residence that evening, FBI agents discovered a locked box
under a bed in the only bedroom that contained men’s clothing
and toiletries. After prying the box open, the agents seized a
silver revolver and $300 in cash.
Prior to trial, McNeal sought to suppress the evidence
seized by the FBI in executing the two warrants. On April 2,
2014, McNeal moved to suppress the silver revolver seized from
his residence, contending that the FBI agents had exceeded the
scope of the search warrant by opening the locked box.
Thereafter, on May 8, 2014, McNeal filed a motion to suppress
all evidence seized from his residence, and on May 28, 2014, he
moved to suppress “the tracking warrant and all evidence that
flowed therefrom,” see J.A. 148. In support of those motions,
McNeal maintained that the search warrant and the tracking
7
warrant were not supported by probable cause. On June 6, 2014,
the district court denied the suppression motions.
B.
1.
The evidence at trial established that, on October 29,
2013, Link and Stoddard engaged in the Rockville robbery
attempt. 3 Upon entering the Wells Fargo branch, Link brandished
a handgun and yelled for everyone to get on the floor, while
Stoddard vaulted the teller counter. Link also barked
instructions at Stoddard during the course of the robbery
attempt. At one point, Link fired his handgun into the ceiling.
Shortly thereafter, the two men fled the bank empty handed.
Undeterred, Link and Stoddard committed the Bank of
Georgetown robbery the very next day. A teller explained how
Stoddard covered his face with a ski mask, while Link wore a
hoodie and wielded a silver revolver. Stoddard jumped over the
counter, a black plastic bag in hand, and demanded that the
teller give him money. When the teller opened the cash drawer,
Stoddard started grabbing the cash and stuffing it in the trash
3
In light of the jury’s guilty verdicts, we recite the
facts underlying these prosecutions in the light most favorable
to the government. See United States v. Perry, 757 F.3d 166,
175 (4th Cir. 2014). Prosecutors presented evidence from
seventeen witnesses during the three-day trial. McNeal and
Stoddard did not testify or call witnesses.
8
bag. Link, meanwhile, shouted instructions at Stoddard. In the
end, the robbers fled with approximately $3500 in cash.
Link and Stoddard struck again on November 25, 2013, this
time committing the Glebe Road robbery. Link again stood just
inside the entrance, displayed a black handgun, and shouted at
employees and customers to get on the floor. Meanwhile,
Stoddard jumped the counter and ransacked the cash drawers.
After a minute or so, Link started yelling at Stoddard, “Come
on, Joe. Come on, Joe. We got to go.” See J.A. 504. When an
elderly woman walked into the bank, Link grabbed her and threw
her to the floor. Approximately two minutes after entering,
Link and Stoddard left with about $19,000 in cash.
2.
In late December 2013, FBI agents and local police
investigating the Rockville robbery attempt and the Bank of
Georgetown and Glebe Road robberies conducted surveillance of
the defendants. On December 27, agents watched as McNeal
departed his Hyattsville residence in the Taurus. At about 1:57
p.m., the agents observed McNeal, Stoddard, and a third
individual in the Taurus, which was parked facing the Bank of
America branch at Columbia Pike and South Glebe Road in
Arlington. For about four minutes, the Taurus sat in the
parking space, and no one entered or exited. McNeal then drove
the Taurus to South George Mason Drive in Arlington and parked
9
about 150 to 200 meters from the Wells Fargo branch. The Taurus
remained there for about seven minutes, again with no one
entering or exiting.
Four days later, on December 31, 2013, McNeal drove from
his Hyattsville residence to a strip mall on Columbia Pike in
Arlington and picked up Link and Stoddard along the way. After
a brief stop at a McDonald’s, the Taurus left the mall at about
12:35 p.m. For more than a half hour, the Taurus meandered
around Arlington, stopping intermittently. Shortly after 1:00
p.m., the vehicle parked on South 8th Street, just east of South
George Mason Drive — and directly in front of a vehicle occupied
by an Arlington County police officer. The officer watched Link
and Stoddard exit the Taurus and walk toward the Wells Fargo
branch they had cased a few days earlier. As they approached
the bank, Link and Stoddard donned the hoods of their coats, and
one of them pulled up a handkerchief or scarf to cover his face.
Meanwhile, McNeal maneuvered the Taurus to a parking space on
the northbound side of South George Mason Drive, about a block
and a half from the Wells Fargo branch.
Link and Stoddard then entered the Wells Fargo branch,
where Link drew a Glock handgun and told everyone to get on the
floor. In response, a customer fled out the front door and ran
away, stumbling over a fence. Inside the bank, Stoddard vaulted
the counter, opened a cash drawer, and ordered a teller to open
10
another. The teller complied, and Stoddard helped himself to
the money inside the drawers. Link soon grew impatient and
urged Stoddard to hurry up, shouting, “Come on Joe,” and, “We
got to go.” See J.A. 623.
After a couple of minutes, Link and Stoddard left the Wells
Fargo branch and returned to the Taurus, walking briskly at
first and then jogging as they got closer. Stoddard carried the
black trash bag filled with nearly $48,000 in cash. Just as
McNeal pulled out of the parking space, an FBI SWAT team truck
blocked their escape, striking the side of the Taurus and
pinning it against the curb. Link, McNeal, and Stoddard were
then arrested without resistance.
At the arrest scene, the FBI agents seized the loaded
semiautomatic Glock handgun, which was tucked into Link’s
waistband. From the Taurus, the agents recovered the black
trash bag containing the money stolen during the New Year’s Eve
robbery. The firearm was introduced at trial, where two FBI
agents — one a certified firearms instructor — identified it.
The prosecutors also introduced Stoddard’s own statements
about his criminal activity. First, during an interview with
FBI agents, Stoddard admitted that he was a professional bank
robber and that he had participated in the Rockville robbery
11
attempt and the Glebe Road robbery. 4 Second, an inmate housed
with Stoddard in an Alexandria jail testified that Stoddard had
asserted, among other things, that he “robbed banks” and that
McNeal was one of his “partners.” See J.A. 758.
Finally, the prosecutors introduced the silver revolver and
cash seized from McNeal’s Hyattsville residence. McNeal
objected on the ground that the prosecutors had not linked him
to the residence, and thus any evidence seized therefrom was
irrelevant. The trial court, however, overruled McNeal’s
objection. After the prosecutors proffered evidence — outside
the presence of the jury — that McNeal had confirmed his
residence in response to routine booking questions, McNeal
stipulated that he lived at the Hyattsville residence.
C.
The jury found Stoddard guilty on all seven counts. It
found McNeal guilty on three charges — the conspiracy offense in
Count One and the two offenses in Counts Six and Seven arising
from the New Year’s Eve robbery. 5
4
Stoddard’s post-arrest statement to the FBI regarding his
participation in the earlier bank robberies was admitted against
him only, and not against McNeal.
5
The jury hung and a mistrial was declared as to McNeal on
Counts Two through Five. At the conclusion of McNeal’s
sentencing hearing in November 2014, the district court
dismissed those charges against him.
12
McNeal and Stoddard thereafter filed motions for judgments
of acquittal. McNeal contended, inter alia, that the government
had failed to prove that he knew the purpose and goal of the
conspiracy was to commit armed bank robbery, a crime under 18
U.S.C. § 2113(d), as opposed to bank robbery, a lesser-included
offense under § 2113(a). The district court denied the
acquittal motions, ruling that “a rational trier of fact could
find that the conspiracy was to commit armed bank robbery.” See
J.A. 1046.
On November 7, 2014, the district court sentenced Stoddard
to life in prison and McNeal to 184 months. McNeal and Stoddard
have timely appealed, and we possess jurisdiction pursuant to 28
U.S.C. § 1291.
II.
We review de novo a district court’s determinations of
questions of law. See United States v. Beyle, 782 F.3d 159, 166
(4th Cir. 2015). We review evidentiary rulings made by a trial
court for abuse of discretion. See United States v. Vogt, 910
F.2d 1184, 1192 (4th Cir. 1990).
An issue pursued on appeal but not preserved in the lower
court is reviewed for plain error only. See United States v.
Olano, 507 U.S. 725, 732 (1993). To satisfy that standard, a
defendant must show “(1) that an error was made; (2) that the
13
error was plain; and (3) that the error affected his substantial
rights.” United States v. Carthorne, 726 F.3d 503, 510 (4th
Cir. 2013). Even if those three prongs are satisfied, we will
correct a plain error only when necessary to prevent “a
miscarriage of justice” or to ensure “the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Whitfield, 695 F.3d 288, 303 (4th Cir. 2012).
III.
McNeal and Stoddard’s opening brief on appeal presents four
assignments of error. First, the pair challenges the
sufficiency of the evidence on the brandishing offenses, arguing
that the government failed to prove that the handguns used in
the robberies were functional. Second, McNeal contends that the
evidence was insufficient to support his conviction for
conspiracy to commit armed bank robbery. In his third
assignment of error, McNeal maintains that the trial court erred
in denying his suppression motions. Finally, McNeal challenges
the court’s evidentiary rulings admitting the silver revolver
and the cash seized from his Hyattsville residence. We address
those contentions in turn.
A.
McNeal and Stoddard challenge the sufficiency of the
evidence supporting the brandishing offenses in Counts Three
14
(Stoddard), Five (Stoddard), and Seven (both McNeal and
Stoddard). They contend that the prosecution failed to prove
that the handguns brandished in the three robberies underlying
those offenses were in fact firearms under federal law. We will
disturb a guilty verdict only if the record fails to contain
“evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” United States v. Young, 609
F.3d 348, 355 (4th Cir. 2010). In conducting such an analysis,
we view “the evidence and the reasonable inferences to be drawn
therefrom in the light most favorable to the Government.”
United States v. Perry, 757 F.3d 166, 175 (4th Cir. 2014).
Pursuant to § 924(c)(1)(A)(ii) of Title 18, an accused who,
in the course of committing a crime of violence, “uses or
carries a firearm” is subject to an additional prison sentence
“of not less than 7 years,” if the firearm was “brandished”
during and in relation to the crime. The term “firearm” is
defined in § 921(a)(3) as “any weapon . . . which will or is
designed to or may readily be converted to expel a projectile by
the action of an explosive.” Invoking that definition, McNeal
and Stoddard contend that the prosecution failed to present
expert testimony that the firearms brandished during the three
bank robberies charged in the indictment were capable of
expelling a projectile. Such expert testimony is not necessary
15
to prove a § 924(c) offense, however, at least absent some
indication that the firearm was a fake. See United States v.
Jones, 907 F.2d 456, 460 (4th Cir. 1990). As we explained in
Jones, the lay testimony of eyewitnesses that “a gun was used in
the robbery” is a sufficient basis for the jury to find that a
“firearm” was used in a bank robbery offense. Id.In this trial, several eyewitnesses testified concerning
the bank robberies in Counts Two, Four, and Six and confirmed
that, in each bank, one of the robbers had displayed a handgun.
Accordingly, McNeal and Stoddard’s first contention provides no
basis for overturning their convictions on the brandishing
offenses.
B.
McNeal separately contends that the evidence was
insufficient to convict him of conspiracy to commit armed bank
robbery, in violation of 18 U.S.C. § 371. Section 371 provides,
in relevant part, that if “two or more persons conspire . . . to
commit any offense against the United States . . . , and one or
more of such persons do any act to effect the object of the
conspiracy, each shall be” punished by up to five years in
prison. To prove a § 371 conspiracy, the government must show
“an agreement to commit an offense, willing participation by the
defendant, and an overt act in furtherance of the conspiracy.”
United States v. Tucker, 376 F.3d 236, 238 (4th Cir. 2004). The
16
prosecutors must also show that the accused possessed “at least
the degree of criminal intent necessary for the substantive
offense itself.” Ingram v. United States, 360 U.S. 672, 678
(1959).
McNeal maintains that, in order to prove the conspiracy
alleged in Count One, the government had to show that he
understood, at some point during the conspiracy, that Stoddard
and Link intended to use a weapon to rob a bank. He further
contends that the government failed to make any such showing at
trial. The government responds that the trial evidence amply
supported the jury’s conclusion that McNeal knew he was entering
into a conspiracy to commit armed bank robbery. In the
alternative, the government maintains that we could “impose a
conviction on the lesser-included charge of conspiracy to commit
unarmed bank robbery.” See Br. of Appellee 30.
We reject McNeal’s contention of error because the evidence
of McNeal’s knowledge that a firearm would be used in the
robberies was more than sufficient to support the guilty verdict
on the conspiracy offense. On December 27, 2013, the FBI
observed McNeal, Stoddard, and Link casing banks in Arlington,
including the Wells Fargo branch on South George Mason Drive.
On New Year’s Eve, for about half an hour before they robbed
that bank, McNeal, Stoddard, and Link drove in the vicinity of
the very banks they had cased four days earlier. The jury was
17
entitled to find that the defendants were then putting the
finishing touches on their plan to rob the Wells Fargo branch —
a crime McNeal and his cronies had travelled to Virginia to
commit. McNeal’s active involvement in planning and carrying
out the New Year’s Eve robbery, in which a firearm was actually
used, strongly supports the jury’s finding that he knew a
handgun would be used in the robbery. See United States v.
Johnson, 444 F.3d 1026, 1029-30 (9th Cir. 2006).
The fact that McNeal knew a firearm would be used in the
New Year’s Eve robbery is also supported by other evidence. For
example, Stoddard represented to his fellow jail inmate that
McNeal was his partner in robbing banks. 6 Stoddard had also
participated in the Rockville robbery attempt, the Glebe Road
robbery, and the Bank of Georgetown robbery, each of which
involved the use of a handgun. The jury was thus entitled to
find that McNeal conspired with Stoddard and Link to commit the
New Year’s Eve robbery and that McNeal fully understood that a
6 McNeal objected to the jail inmate’s testimony that
Stoddard said that he and McNeal robbed banks together, arguing
that such testimony was inadmissible hearsay. The trial court
overruled the objection, and McNeal does not challenge that
ruling on appeal.
18
firearm would be used in the robbery. Accordingly, we reject
McNeal’s challenge to his conspiracy conviction on Count One. 7
C.
McNeal next contends that the district court erroneously
denied his motions to suppress the evidence seized pursuant to
the tracking warrant and the search warrant. McNeal’s
contention has two subparts: first, that the tracking warrant
affidavit failed to sufficiently link him to the Taurus; and
second, that the search warrant affidavit did not sufficiently
connect him to the Hyattsville residence.
In making a probable cause assessment, a magistrate judge
must “make a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before him . . . ,
there is a fair probability that contraband or evidence of a
crime will be found.” See Illinois v. Gates, 462 U.S. 213, 238
(1983). As a reviewing court, we are obliged to “accord great
deference to the magistrate’s assessment of the facts presented
to him.” United States v. Blackwood, 913 F.2d 139, 142 (4th
Cir. 1990) (internal quotation marks omitted). Our inquiry is
7Even if the government had failed to prove that McNeal
knew he was entering into a conspiracy to commit armed bank
robbery, we would yet affirm the Count One judgment against him.
McNeal indisputably entered into a conspiracy to commit bank
robbery. And, for purposes of punishment, there is no
difference between a § 371 conspiracy to commit bank robbery and
a § 371 conspiracy to commit armed bank robbery.
19
thus limited to whether there was a substantial basis for
determining the existence of probable cause. See United States
v. Montieth, 662 F.3d 660, 664 (4th Cir. 2011).
We must reject McNeal’s contentions on the suppression
issues. As the tracking warrant affidavit shows, the Taurus was
registered to McNeal’s mother, and McNeal had used it to case
target banks in Arlington. Furthermore, an informant advised
the FBI that McNeal had used the Taurus to rob banks. That
information was corroborated by the FBI’s surveillance of McNeal
and the informant’s knowledge of the amount of money stolen in
the robberies. See United States v. Miller, 925 F.2d 695, 699
(4th Cir. 1991) (explaining that informant’s tip corroborated by
investigator’s observations establishes probable cause). Thus,
there was ample cause to believe that McNeal was using the
Taurus to plan and commit bank robberies.
The search warrant affidavit connected McNeal to the
Hyattsville residence and demonstrated probable cause to believe
that evidence of the bank robberies would be located there. As
the affidavit explained, McNeal was observed leaving the
Hyattsville residence just before casing target banks on
December 27, 2013. Likewise, FBI agents had seen McNeal leaving
the Hyattsville residence four days later, immediately before he
participated in the New Year’s Eve robbery. And, of course, the
Taurus was registered to McNeal’s mother at that residence.
20
McNeal argues that the FBI agents should have done more to
corroborate the facts in the affidavits. The Fourth Amendment,
however, does not require investigators to exhaust every
potential avenue of investigation before seeking and obtaining a
warrant. See McKinney v. Richland Cty. Sheriff’s Dep’t, 431
F.3d 415, 418-19 (4th Cir. 2005) (explaining that an officer’s
failure to “conduct a more thorough investigation before seeking
[an] arrest warrant does not negate” probable cause). Simply
put, each warrant was supported by probable cause, and the
district court properly denied McNeal’s motions to suppress.
D.
Finally, McNeal challenges the trial court’s ruling that
the prosecution was entitled to introduce the silver revolver
and the cash seized from his Hyattsville residence. McNeal
maintains that the government failed to provide an adequate
foundation for the admission of either the revolver or the cash,
in that neither was sufficiently linked to him. McNeal,
however, stipulated that the Hyattsville residence was his, and
the FBI agents found and seized the silver revolver and the cash
from the only bedroom containing male clothing and toiletries.
Accordingly, the trial court did not abuse its discretion in
admitting the evidence seized from McNeal’s Hyattsville
residence.
21
IV.
By way of supplemental submissions, McNeal and Stoddard
argue that their convictions under 18 U.S.C. § 924(c) for
brandishing a firearm during a crime of violence should be set
aside because 18 U.S.C. § 2113(d) armed bank robbery is not a
“crime of violence” as defined in § 924(c)(3). Whether an
offense constitutes such a crime of violence is a question of
law that we review de novo. See United States v. Adkins, 937
F.2d 947, 950 n.2 (4th Cir. 1991). Because the defendants
failed to preserve in the trial court their contention that
armed bank robbery is not a crime of violence, we may vacate the
brandishing convictions only if McNeal and Stoddard satisfy
plain error review. See United States v. Olano, 507 U.S. 725,
732 (1993).
A.
Under 18 U.S.C. § 924(c)(1)(A), a defendant who “uses or
carries” a firearm “during and in relation to any crime of
violence” faces a five-year mandatory minimum sentence, to run
consecutively to any sentence for the underlying offense. See
United States v. Johnson, 32 F.3d 82, 85 (4th Cir. 1994). If,
during the commission of the crime of violence, “the firearm is
brandished,” the mandatory minimum sentence increases to seven
years. See § 924(c)(1)(A)(ii). As defined in § 924(c)(3), the
phrase “crime of violence” means a felony offense that either:
22
“(A) has as an element the use, attempted use, or threatened use
of physical force against the person or property of another, or
(B) . . . by its nature, involves a substantial risk that
physical force against the person or property of another may be
used in the course of committing the offense.” We have referred
to subparagraph (A) of § 924(c)(3) as the “force clause” and to
subparagraph (B) as the “residual clause.” See, e.g., United
States v. Fuertes, 805 F.3d 485, 498 (4th Cir. 2015). In
determining whether an offense is a crime of violence under
either clause, we utilize the categorical approach, which
focuses solely on the elements of the offense, rather than on
the facts of the case. See id.McNeal and Stoddard contend that their convictions on
Counts Three, Five, and Seven for brandishing a firearm during a
crime of violence must be vacated. They maintain, inter alia,
that armed bank robbery under § 2113(d) is not a crime of
violence within the meaning of the § 924(c)(3) force clause
because it does not have as an element the use, attempted use,
or threatened use of physical force. The government counters
that bank robbery in violation of § 2113(a), a lesser-included
offense of § 2113(d) armed bank robbery, satisfies the force
clause of § 924(c)(3) because it includes the element that
property must be taken “by force and violence, or by
23
intimidation.” As further explained below, we agree with the
government. 8
1.
The crimes of violence underlying McNeal’s and Stoddard’s
brandishing convictions were the armed bank robberies charged in
Counts Two, Four, and Six of the indictment. Armed bank robbery
under § 2113(d) has four elements: (1) the defendant took, or
attempted to take, money belonging to, or in the custody, care,
or possession of, a bank, credit union, or saving and loan
association; (2) the money was taken “by force and violence, or
by intimidation”; (3) the deposits of the institution were
federally insured; and (4) in committing or attempting to commit
the offense, the defendant assaulted any person, or put in
jeopardy the life of any person, by the use of a dangerous
weapon or device. See United States v. Davis, 437 F.3d 989, 993
(10th Cir. 2006). The first three elements of armed bank
8McNeal and Stoddard also contend in their supplemental
submissions that, in light of the Supreme Court’s decision last
year in Johnson v. United States — in which the Court
invalidated as unconstitutionally vague the residual clause in
the Armed Career Criminal Act, see 135 S. Ct. 2551, 2557 (2015)
— § 924(c)(3)’s similar residual clause is also
unconstitutionally vague. Because § 2113(a) bank robbery
satisfies the § 924(c)(3) force clause, we do not consider
whether Johnson renders the § 924(c)(3) residual clause
unconstitutionally vague. See Fuertes, 805 F.3d at 499 n.5
(invoking principle of constitutional avoidance articulated in
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346–48
(1936) (Brandeis, J., concurring)).
24
robbery are drawn from § 2113(a) and define the lesser-included
offense of bank robbery. The fourth element is drawn from
§ 2113(d). We focus on the second element: that the money was
taken from the bank “by force and violence, or by intimidation.”
See § 2113(a).
In assessing whether bank robbery qualifies as a crime of
violence under the § 924(c)(3) force clause, we do not write on
a blank slate. Twenty-five years ago in Adkins, our esteemed
former colleague Judge Hall explained that “armed bank robbery
is unquestionably a crime of violence, because it ‘has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another.’” See 937 F.2d
at 950 n.2 (quoting 18 U.S.C. § 924(c)(3)(A)). We also ruled
decades ago that a § 2113(a) bank robbery is a crime of violence
under the force clause of Guidelines section 4B1.2, which is
nearly identical to the § 924(c)(3) force clause. See United
States v. Davis, 915 F.2d 132, 133 (4th Cir. 1990); accord
Johnson v. United States, 779 F.3d 125, 128-29 (2d Cir. 2015);
United States v. Wright, 957 F.2d 520, 521 (8th Cir. 1992);
United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991);
25
United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990);
United States v. Maddalena, 893 F.2d 815, 819 (6th Cir. 1989). 9
Our sister circuits have uniformly ruled that other federal
crimes involving takings “by force and violence, or by
intimidation,” have as an element the use, attempted use, or
threatened use of physical force. Earlier this year, for
example, the Eighth Circuit concluded that robbery in the
special maritime and territorial jurisdiction of the United
States under 18 U.S.C. § 2111 satisfied the similarly worded
force clause in the Armed Career Criminal Act (“ACCA”), because
it required a taking “by force and violence, or by
intimidation.” See United States v. Boman, 810 F.3d 534, 542-43
(8th Cir. 2016). The Second and Eleventh Circuits reached the
same conclusion with respect to the carjacking statute, 18
U.S.C. § 2119. See United States v. Moore, 43 F.3d 568, 572-73
(11th Cir. 1994); United States v. Mohammed, 27 F.3d 815, 819
(2d Cir. 1994).
The logic of those decisions is straightforward. A taking
“by force and violence” entails the use of physical force.
9
The term “crime of violence,” and its cousin, the term
“violent felony,” are defined in various statutory provisions,
including § 924(c), and in the Sentencing Guidelines, including
section 4B1.2. In light of the striking similarities among
those definitions, the court decisions interpreting one such
definition are persuasive as to the meaning of the others. See
United States v. Williams, 67 F.3d 527, 528 (4th Cir. 1995).
26
Likewise, a taking “by intimidation” involves the threat to use
such force. See, e.g., Jones, 932 F.2d at 625 (“Intimidation
means the threat of force.”); Selfa, 918 F.2d at 751 (explaining
that the intimidation element of § 2113(a) meets “the
[Guidelines] section 4B1.2(1) requirement of a ‘threatened use
of physical force’”). As the Seventh Circuit explained in its
Jones decision, “[t]here is no ‘space’ between ‘bank robbery’
and ‘crime of violence’” because “violence in the broad sense
that includes a merely threatened use of force is an element of
every bank robbery.” See 932 F.2d at 625.
In United States v. Presley, in 1995, we recognized the
equivalence between “intimidation” and the “threatened use of
physical force,” holding that a Virginia robbery offense
satisfied the ACCA force clause. See 52 F.3d 64, 69 (4th Cir.
1995). As we explained, Virginia had defined robbery as “the
taking, with intent to steal, of the personal property of
another, from his person or in his presence, against his will,
by violence or intimidation.” Id. Reasoning that “[v]iolence
is the use of force,” and “[i]ntimidation is the threat of the
use of force,” we concluded that “robbery in Virginia has as an
element the use or threatened use of force.” Id. Of course,
our Presley decision addressed a state crime, rather than a
federal offense, and a State is entitled to define its crimes as
it sees fit. In this case, however, McNeal and Stoddard have
27
presented no sound basis for concluding that the “intimidation”
element of Virginia robbery is any narrower or broader than the
“intimidation” element of federal bank robbery.
Put succinctly, the reasoning of Jones, Selfa, and Presley
is persuasive. Bank robbery under § 2113(a), “by force and
violence,” requires the use of physical force. Bank robbery
under § 2113(a), “by intimidation,” requires the threatened use
of physical force. Either of those alternatives includes an
element that is “the use, attempted use, or threatened use of
physical force,” and thus bank robbery under § 2113(a)
constitutes a crime of violence under the force clause of
§ 924(c)(3).
2.
McNeal and Stoddard contend that recent decisions of the
Supreme Court and this Court have changed the legal landscape
and compel us to conclude that § 2113(a) bank robbery is not a
crime of violence within the meaning of § 924(c)(3). In
particular, they rely on the Supreme Court’s 2010 decision in
Johnson v. United States, 559 U.S. 133 (2010), the Court’s 2004
decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), and our 2012
decision in United States v. Torres-Miguel, 701 F.3d 165 (4th
Cir. 2012).
28
a.
In Johnson, the Supreme Court ruled that a Florida simple
battery was not a crime of violence under the ACCA force clause.
See 559 U.S. at 136-37. The Florida statute provided that a
person could be convicted of battery upon proof that he actually
and intentionally touched another person against the victim’s
will. The government argued, and the lower courts agreed, that
any unwanted intentional touching qualified as “physical force”
under the ACCA force clause. Id. at 137. The Supreme Court
rejected that reading, however, ruling instead that “physical
force,” as used in the ACCA force clause, “means violent force —
that is, force capable of causing physical pain or injury to
another person.” Id. at 140.
McNeal and Stoddard assert, without further explanation,
that Johnson rendered unpersuasive the earlier authorities
concluding that § 2113(a) bank robbery is a crime of violence.
Johnson, however, is entirely consistent with those authorities.
Bank robbery under § 2113(a) requires either “force and
violence” or “intimidation.” A combination of force and
violence qualifies as violent force, and the defendants do not
argue to the contrary. Meanwhile, the term “intimidation” in
§ 2113(a) simply means “the threat of the use of force.” See
Presley, 52 F.3d at 69. As the Seventh Circuit explained in
United States v. Smith, “intimidation . . . must constitute a
29
threat,” and the defendant’s “conduct will be deemed to be a
threat if it was calculated to create the impression that any
resistance by the teller would be met with physical force.” See
131 F.3d 685, 688 (7th Cir. 1997). Moreover, to qualify as
intimidation, the degree of “force” threatened must be violent
force — that is, force capable of causing physical pain or
injury. See United States v. Wagstaff, 865 F.2d 626, 627 (4th
Cir. 1989) (emphasizing that intimidation occurs “when an
ordinary person in the teller’s position reasonably could infer
a threat of bodily harm from the defendant’s acts”).
b.
Although Johnson addressed the definition of “physical
force” under the ACCA force clause, the Supreme Court’s Leocal
decision, six years earlier, explained what it means to “use”
physical force. In Leocal, the Court ruled that a Florida
offense of driving under the influence and causing serious
injury was not a crime of violence under the force clause of 18
U.S.C. § 16. See 543 U.S. at 9-10. The Court explained that
the “key phrase in § 16(a) — ‘the use . . . of physical force
against the person or property of another’ — most naturally
suggests a higher degree of intent than negligent or merely
accidental conduct.” Id. at 9 (alteration in original).
Because the Florida Supreme Court had interpreted the DUI
statute as lacking a mens rea requirement, the DUI offense could
30
not qualify as a crime of violence under the force clause. Id.
at 7-8, 10. Although Leocal reserved the question of whether a
reckless application of force could qualify as a “use” of force,
we answered that question two years later by ruling that
recklessness was not enough. See Garcia v. Gonzalez, 455 F.3d
465, 468-69 (4th Cir. 2006).
McNeal and Stoddard insist that bank robbery by
“intimidation” is not a crime of violence under the force clause
of § 924(c)(3) because, in their view, bank robbery can be
committed by recklessly engaging in intimidation. To support
that interpretation, they point to our 1996 decision in United
States v. Woodrup, 86 F.3d 359 (4th Cir. 1996). Woodrup was
convicted of § 2113(a) bank robbery on evidence that he “entered
the bank, looked directly at [a] teller . . . , walked very
quickly across the lobby to the teller position, reached across
the counter ‘as if . . . trying to grab’ the teller, and vaulted
over the counter headfirst, causing her to back away,
screaming.” Id. at 363 (second alteration in original).
Woodrup was unarmed, did not use a note, and did not make an
oral demand for money. After he was arrested, Woodrup told an
FBI agent that he was “glad that the teller didn’t have a heart
attack and die.” Id. at 364.
On appeal, Woodrup challenged his conviction on the
ground that the prosecution had not proven that he intended to
31
intimidate the teller. See Woodrup, 86 F.3d at 363. We
declined to read an intent requirement into § 2113(a), observing
that “nothing in the statute even remotely suggests that the
defendant must have intended to intimidate.” Id. at 364.
Instead, we explained that “the intimidation element of
§ 2113(a) is satisfied if an ordinary person in the teller’s
position reasonably could infer a threat of bodily harm from the
defendant’s acts, whether or not the defendant actually intended
the intimidation.” Id. (internal quotation marks omitted).
McNeal and Stoddard urge that our Woodrup decision — in
particular, its rejection of an “intent” requirement and
reference to the “reasonable teller” — means that bank robbery
can be committed by recklessly engaging in intimidation. A fair
reading of Woodrup does not compel that interpretation. First,
Woodrup presented the issue of whether bank robbery by
intimidation requires a specific intent to intimidate. Plainly,
Woodrup knew his conduct was intimidating, in light of his
admission to the FBI after his arrest that he was glad that the
teller did not suffer a heart attack. Thus, we had no occasion
to consider whether bank robbery requires general intent (i.e.,
knowledge) with respect to intimidation. And, second, Woodrup’s
definition of intimidation by reference to a reasonable person
says nothing about whether the defendant must know that his
conduct fits that definition.
32
In 2000, however, the Supreme Court ruled in United States
v. Carter that bank robbery under § 2113(a) requires “proof of
general intent — that is, that the defendant possessed knowledge
with respect to the actus reus of the crime (here, the taking of
property of another by force and violence or intimidation).”
See 530 U.S. 255, 268 (2000). Put differently, the prosecution
must show that the defendant knew “the facts that ma[de] his
conduct fit the definition of the offense.” See United States
v. Elonis, 135 S. Ct. 2001, 2009 (2015). Thus, to secure a
conviction of bank robbery “by intimidation,” the government
must prove not only that the accused knowingly took property,
but also that he knew that his actions were objectively
intimidating. Bank robbery under § 2113(a) therefore satisfies
the criterion we articulated in Garcia in 2006 that, to qualify
as a crime of violence, an offense must require either specific
intent or knowledge with respect to the use, threatened use, or
attempted use of physical force.
c.
In our Torres-Miguel decision in 2012, we further examined
what it means for a crime to have as an element the “use” of
physical force. We concluded that a California statute, which
prohibited willfully threatening to commit a crime that would
result in death or great bodily injury, failed to qualify as a
crime of violence under Guidelines section 2L1.2. See Torres-
33
Miguel, 701 F.3d at 166. Our ruling rested on the distinction
between using physical force and causing bodily injury. We
reasoned that “a crime may result in death or serious injury
without involving use of physical force.” Id. at 168. Invoking
an example offered by the Fifth Circuit in addressing the same
question, we observed that threatening to poison someone could
contravene § 422(a) without involving the use or threatened use
of force. Id. at 168-69. 10
Relying on the distinction we drew in Torres-Miguel between
using physical force and causing bodily injury, McNeal and
Stoddard contend that “intimidation,” as we defined it in
Woodrup — words or conduct from which “an ordinary person . . .
reasonably could infer a threat of bodily harm,” see 86 F.3d at363 — is not the same as a threat to use physical force. McNeal
and Stoddard suggest that a person can commit bank robbery by
means other than the use or threatened use of violent physical
10 The government suggests that the Supreme Court’s 2014
decision in United States v. Castleman, 134 S. Ct. 1405 (2014),
has abrogated the distinction that we recognized in Torres-
Miguel between the use of force and the causation of injury.
That strikes us as a dubious proposition. Writing for the
Castleman majority, Justice Sotomayor expressly reserved the
question of whether causation of bodily injury “necessarily
entails violent force.” See 134 S. Ct. at 1413; see also id. at
1414 (emphasizing that Court was not deciding question of
whether or not causation of bodily injury “necessitate[s]
violent force, under Johnson’s definition of that phrase”).
34
force, such as “by threatening to poison or expose the teller to
a hazardous gas.” See Supp. Reply Br. of Appellants 9.
We decline to read Woodrup as conclusively interpreting
“intimidation” to encompass threats to cause bodily injury other
than by violent physical force. Plainly, the threat that the
teller reasonably perceived from Woodrup’s actions was a threat
of bodily harm caused by violent physical force — not by
something like poisoning. See Torres-Miguel, 701 F.3d at 168-
69. The distinction we drew in Torres-Miguel between using
force and causing injury was thus irrelevant to our decision in
Woodrup.
Furthermore, the Woodrup panel had no reason to dwell on
whether to define “intimidation” in terms of fear of injury or
in terms of a threatened use of force. That distinction is
irrelevant in the vast majority of bank robbery cases, as it
will be the rare bank robber who commits that offense with
poison. Indeed, McNeal and Stoddard have not identified a
single bank robbery prosecution where the victim feared bodily
harm from something other than violent physical force. We
therefore decline to read Woodrup to mean that a bank robbery
victim is “intimidat[ed]” within the meaning of § 2113(a) when
she reasonably fears bodily harm from something other than
violent physical force. Because intimidation entails a threat
to use violent physical force, and not merely a threat to cause
35
bodily injury, Torres-Miguel does not alter our conclusion that
§ 2113(a) bank robbery is a crime of violence under the
§ 924(c)(3) force clause.
B.
In sum, we are satisfied that bank robbery under 18 U.S.C.
§ 2113(a) is a “crime of violence” within the meaning of the
force clause of 18 U.S.C. § 924(c)(3), because it “has as an
element the use, attempted use, or threatened use of physical
force” — specifically, the taking or attempted taking of
property “by force and violence, or by intimidation.” Because
bank robbery is a lesser-included offense of § 2113(d) armed
bank robbery, armed bank robbery is also a crime of violence
under the force clause. McNeal and Stoddard’s challenge to
their brandishing convictions therefore fails at the first step
of plain error review, in that the trial court did not err in
concluding that armed bank robbery qualifies as a crime of
violence.
V.
Pursuant to the foregoing, we reject each of the
contentions of error and affirm the judgments.
AFFIRMED
36