By Eric Jones
On March 28, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. McNeal. James Larry McNeal and Alphonso Stoddard were convicted for conspiracy, armed bank robbery, and brandishing firearms during crimes of violence. On appeal, McNeal and Stoddard argued that insufficient evidence had been offered to support their brandishing convictions, and that armed bank robbery was not a “crime of violence.” McNeal also challenged the adequacy of proof with respect to his conspiracy conviction, and various other evidentiary rulings. The Fourth Circuit affirmed the convictions.
The Bank Robberies
On December 30, 2013, FBI agents in the District of Maryland applied for a warrant to place a tracking device on a 2004 Ford Taurus because a confidential informant advised them that McNeal and others had been discussing bank robberies, and had used the Taurus as a getaway vehicle. The Taurus was registered to McNeal’s mother. Additionally, agents had noted McNeal driving the Taurus with Stoddard and a third conspirator and parking out front of several banks in the area, before leaving without anybody entering or exiting the vehicle.
The magistrate judge issued the tracking warrant, and a tracking device was placed on the Taurus later that same day. The next day, New Year’s Eve, McNeal, under close surveillance by FBI and local authorities, drove the Taurus to commit a bank robbery at a Wells Fargo branch. Officers watched as Stoddard and the third conspirator entered the branch, then exited with a black trash bag overflowing with stolen money. After blocking the vehicle in and arresting the men, a loaded handgun was recovered as well as the bag of money. Several witnesses testified that the handgun was brandished during the robbery.
Brandishing a Firearm
Both McNeal and Stoddard challenged their convictions for the brandishing offenses because the government failed to prove that the handgun brandished was, in fact, a firearm. Pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), an accused who “uses or carries” a firearm in the course of committing a crime of violence is subject to additional punishment “of not less than 7 years” if that firearm was “brandished.” 18 U.S.C. § 924(a)(3) defines “firearm” as “any weapon . . . which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” McNeal and Stoddard argued on appeal that the prosecution failed to provide expert testimony that the handgun recovered was capable of expelling a projectile, but the Fourth Circuit explained that such expert testimony is unnecessary. Absent some indication that the firearm was fake, lay witness testimony that “a gun was used in the robbery” is sufficient basis for the jury to find that a “firearm” was used. Thus, because several witnesses testified that a handgun was brandished, the Fourth Circuit held that this argument provided no basis for overturning their convictions.
Bank Robbery is a Crime of Violence
As noted above, 18 U.S.C. § 924 imposes additional punishment for an accused who uses a firearm in the course of committing a “crime of violence.” As defined in § 924(c)(3), a “crime of violence” means a felony offense that either “(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.” The Fourth Circuit began by explaining that in determining whether an offense is a crime of violence, we utilize the “categorical approach,” which focuses solely on the elements of the offense and not on the facts of the specific case.
McNeal and Stoddard were convicted under 18 U.S.C. § 2113(d) for armed bank robbery. § 2113(a) bank robbery, a lesser included offense of armed bank robbery, includes an element that property be taken “by force and violence, or by intimidation.” The government thus argued that because armed bank robbery under § 2113(d) requires that the defendant have committed bank robbery under § 2113(a), and because § 2113(a) requires that the defendant took property by force and violence or by intimidation, bank robbery is inherently a crime of violence.
The Fourth Circuit first discussed several prior cases where they held that “armed bank robbery
is unquestionably a crime of violence.” Similarly, other circuits have held that federal crimes involving a taking “by force and violence, or by intimidation” have as an element the “use, attempted use, or threatened use of physical force.” The Fourth Circuit explained that bank robbery under § 2113(a) by “force and violence” requires the use of physical force, and that robbery “by intimidation” requires the threatened use of such force. Thus, under either alternative, § 2113(a) constitutes a crime of violence.
Conspiracy to Commit Armed Bank Robbery
McNeal contended on appeal that the evidence was insufficient to convict him of conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371, because the evidence was inadequate to prove that he understood that Stoddard and the third conspirator intended to use a weapon to rob the bank. The government countered that the evidence was ample to support the jury’s findings. The Fourth Circuit held that the evidence at trial was more than sufficient to support the guilty verdict, and thus refused to overturn his conviction. The Circuit restated the evidence, including that on December 27, 2013, the FBI observed McNeal and Stoddard casing several banks including the Wells Fargo that they actually robbed. Further, on New Year’s Eve, McNeal and Stoddard spent about half an hour driving around the banks they had cased, just before entering the Wells Fargo and robbing the bank. Thus, the Fourth Circuit concluded that “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.” Additionally, the Circuit noted that even if the government had failed to show that McNeal knew a firearm was going to be used, they would still affirm his conspiracy conviction. They explained that McNeal undisputedly entered into a conspiracy to commit bank robbery, and for purposes of punishment under § 371 conspiracy, there is no difference between conspiracy to commit bank robbery and conspiracy to commit armed bank robbery.
Other Evidentiary Rulings
McNeal finally argued that his motions to suppress evidence obtained by the tracking search warrant was wrongfully denied, because the affidavit failed to sufficiently link him to the Taurus, and thus lacked probable cause. The Fourth Circuit first explained that magistrates 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.” Furthermore, the Circuit noted that they are obliged to provide great deference to the magistrate’s assessments. The Court held that the tracking warrant was fully supported by probable cause. First, the Taurus was registered to McNeal’s mother, and McNeal lived with her. Additionally, agents had witnessed McNeal using the Taurus to case several banks. Furthermore, the informant advised the FBI that McNeal had used the Taurus to rob banks. Thus, “there was ample cause to believe that McNeal was using the Taurus to plan and commit bank robberies.”
Because bank robbery is a crime of violence, and because there is no requirement that an expert testify that a gun is in fact capable of firing, the Fourth Circuit affirmed McNeal and Stoddard’s convictions for armed bank robbery. Furthermore, because there was ample evidence to suggest that McNeal knew that they intended to use a weapon in the robbery, and because the tracking warrants sufficiently linked him to the Taurus used in the robbery, McNeal’s conviction for conspiracy was affirmed.