282 F.3d 302 (4th Cir. 2002), 00-4754, United States v. Weaver

Docket Nº:00-4754
Citation:282 F.3d 302
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OTIS LEE WEAVER, JR., Defendant-Appellant.
Case Date:February 28, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 302

282 F.3d 302 (4th Cir. 2002)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

OTIS LEE WEAVER, JR., Defendant-Appellant.

No. 00-4754

United States Court of Appeals, Fourth Circuit

February 28, 2002

Argued: November 2, 2001

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-99-67-PJM)

Before NIEMEYER and LUTTIG, Circuit Judges, and Frank J. MAGILL, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Affirmed by published opinion. Senior Judge Magill wrote the opinion, in which Judge Niemeyer and Judge Luttig joined.

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[Copyrighted Material Omitted]

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COUNSEL ARGUED: Daniel William Stiller, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellant. Gina Laurie Simms, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Greenbelt, Maryland, for Appellant. Stephen M. Schenning, United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Greenbelt, Maryland, for Appellee.

OPINION

MAGILL, Senior Circuit Judge:

On February 22, 1999, a federal grand jury sitting in Maryland returned a three-count indictment charging Otis Lee Weaver, Jr., with bank robbery pursuant to 18 U.S.C. S 2113(a)(f), in connection with three robberies that occurred on December 11, 1997, January 29, 1998, and March 5, 1998, in Maryland. On August 1, 2000, the case went before a jury. On August 15, 2000, the jury returned its finding of guilty on all three counts charged in the indictment. Weaver was sentenced to 110 months imprisonment and three years supervised release and required to pay $8168 in restitution and three $100 special assessments. This appeal follows.

In particular, Weaver appeals a decision of the district court denying his motion to suppress evidence that was obtained as a result of a consensual encounter between himself and law enforcement officials. Weaver also appeals the district court's admission of certain "other crimes" evidence pursuant to Rule 404(b) of the Federal Rules of Evidence. Weaver's final contention is that the district court violated Page 305

his due process rights at trial by "assisting" the prosecution, warranting a new trial. We reject Weaver's claims and accordingly affirm the district court.

I.

The underlying facts are basically undisputed. The first robbery charged in the indictment occurred on Thursday, December 11, 1997, at a branch of the American Federal Savings Bank in Rockville, Maryland. At about 3:30 p.m., Cassandra Powell, the bank manager, saw a man, later identified as Weaver, enter the bank and survey his surroundings. Powell noticed that the man kept his right hand in his pocket as he approached Rama Dewan, a teller. Believing that a robbery was taking place, Powell walked toward the robber holding up the keys to the teller drawer, signaling to him that she was the one person able to provide him access to the cash contained in the drawer. As Powell approached, the robber handed Dewan a white plastic bag and instructed Dewan in an angry, agitated tone to "give me the money" and to "put it in the bag." The robber also warned Dewan not to pull any alarms. After receiving the keys from Powell, Dewan opened the drawer and put approximately $2000 into the bag and handed the bag back to the man, who then walked out of the bank without incident.

When the police arrived at the bank after the robbery, Powell and Tammy Tulloch, another bank employee, each described the robber. Powell described the robber as a thin black male, approximately six feet tall and wearing a navy knit cap, a burgundy Tommy Hilfiger windbreaker with cursive writing on it, and baggy blue jeans. Tulloch described the robber as a dark-complected young black male, skinny, weighing 140 to 150 pounds, and wearing a dark knit cap, a burgundy pullover with thin white cursive writing, and baggy blue jeans. After reviewing photos of Weaver in July of 1998, both Tulloch and Powell identified Weaver as the robber.1

The second robbery took place at the same Rockville, Maryland bank on Thursday, January 29, 1998, at approximately 2:30 p.m., when a man, later identified as Weaver, walked into the bank, approached Dewan, handed her a brown paper bag, and demanded money. As the robber approached Dewan, he kept his hand in his pocket. Both Dewan and Erin Funk, the bank manager, thought that the man had a gun. The robber, once again, spoke in a loud and agitated tone, and demanded that Dewan give him the money from the drawer. Dewan opened the drawer and put about $2000 into the bag. The robber took the money and left without incident.

At trial, Dewan was unable to identify Weaver as the robber, nor could she identify him when shown a photo array. In fact, Dewan thought the robber was a person other than Weaver. Funk described the robber to the police as being a young black male who was approximately 5'10" tall and skinny, and as having a little and round head and as wearing a tannish-brown knit hat, large dark-framed eyeglasses, a dark blue jacket, dark jeans, and white sneakers. She identified Weaver as the robber from a photo array.

A third robbery occurred on Thursday, March 5, 1998, this time at a Maryland Federal Savings & Loan Branch in Bethesda, Maryland. On at least three or four occasions during the week before the robbery, bank employees Stephanie Yarmas, Catina Sapp, Rebecca Cooper, and Page 306

Hilde Kochanek observed Weaver coming into the bank and asking for a loan application. Three of the employees testified that Weaver wore the same dirty jean jacket and blue jeans each time he came into the bank. Also, all four employees, on some occasions, recall Weaver wearing large eyeglasses.

At about 2:30 p.m., on March 5, a man, later identified as Weaver, entered the bank with a loan application in his hand. After handing the loan application to Yarmas, the individual placed a hand on her shoulder and put something that felt like a gun against her back. The robber directed Yarmas toward the teller line door and threatened to shoot her at one point. At that point, Sapp and Cooper helped Yarmas open the door. The robber then directed both Sapp and Cooper to empty the drawers into a white plastic shopping bag that he provided for them. Sapp, Yarmas, and Cooper all testified that during the robbery Weaver kept one of his hands in his jean jacket pocket. Both Sapp and Yarmas placed dye packs and bait money into the bag. When the robber received the money, he thanked the employees, told them to "have a nice day," and calmly left the bank.

When police responded at the bank, Sapp described the robber as a 25-year-old, medium-complected black man, about 5'5" tall, and weighing approximately 150 pounds. Sapp further described the robber as being unshaved and wearing a yellow and blue ski hat, brown eyeglasses, a blue jean jacket with dried mud on it, a red and white "Guess" shirt, jeans, and white sneakers. Cooper told the police that the robber wore a blue hooded sweatshirt, but at trial, more than two years after the robbery, she also recalled telling the police that the robber wore a jean jacket and was 5'5" tall. When shown photo arrays, Sapp and Cooper identified Weaver as the robber. At trial, Cooper, Sapp, and Yarmas identified Weaver in court as the robber.

After the three Maryland robberies, on June 10, 1998, Weaver, a black male standing about six feet tall and weighing 180 pounds, entered a branch of the First Union Bank in Springfield, Virginia, and robbed the bank.2 Weaver was wearing a black Baltimore Ravens cap, large brown eyeglasses, navy blue sweat pants, and a navy and black flannel shirt. With one hand in his pocket, Weaver accosted a bank employee by pressing a hard object into her back and directing her to the teller area. Once at the teller area, Weaver pulled out a white plastic bag and told the teller to put the money into the bag or risk being shot. Weaver also told the teller not to put any bait money into the bag. Weaver made a similar demand of another teller, and after obtaining the bag containing approximately $1500, he told the tellers to "have a nice day" and walked out of the bank. This robbery was not charged in the indictment for the three Maryland robberies.

Seven days after the Virginia robbery, on June 17, 1998, Weaver was arrested in Virginia as a suspect in the Virginia robbery. That day, the authorities received a report about a suspicious individual at a bank whom the bank teller believed matched the description of the person on a "wanted poster" connected to the June 10 robbery. The teller's report described a short-haired black male, about six feet tall, weighing approximately 175 pounds, and wearing glasses and a baseball hat. Officer Eric Leeds was on duty about one hundred yards away from the location when he received the call. About five seconds later, Officer Leeds saw Weaver, Page 307

whom he believed fit the description of the suspicious person. Notably, Officer Leeds had never seen the wanted poster in question, nor does it appear from the record that he had any prior knowledge of the robbery in question.

Officer Leeds, who was armed and in uniform, approached and made contact with Weaver. He asked Weaver if he could talk to him and Weaver responded affirmatively. Officer Leeds explained to Weaver that the police had received a call concerning a suspicious person, and that Weaver matched the description of that person. Leeds obtained Weaver's driver's license so that he could run a computer check to see if Weaver had any arrest warrants. After determining that there were no warrants for Weaver's arrest, but before...

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