U.S. v. Ellis

Decision Date06 August 1997
Docket NumberNo. 96-4189,96-4189
Citation121 F.3d 908
PartiesUnited States of America, Plaintiff-Appellee v. Leroy Ellis, Defendant-Appellant
CourtU.S. Court of Appeals — Fourth Circuit

CURRIE, District Judge.

Leroy Ellis appeals his convictions for conspiracy, see 18 U.S.C. § 371, and for the lesser included offense of unarmed bank robbery, see 18 U.S.C. § 2113(a) & (d). We affirm.


On the morning of September 25, 1993, two masked men robbed the First National Bank of Ferrum in Oak Level, Virginia. Robber # 1 (alleged to be appellant) entered the bank, jumped over the counter, and stuffed money from three teller drawers into a black duffle bag. Thereafter, he forced bank employee Lola Green to open the bank vault from which additional money was taken. Robber # 2, Anthony Wagner, entered the bank lobby shortly after Robber # 1 and pointed a gun at the tellers. Detectives arriving at the crime scene later that morning took statements from the employees. According to one of the tellers, Patricia Grindstaff, Robber # 1 was about six feet tall and considerably taller than Robber # 2. According to Lola Green, Robber # 1 was about five feet six inches tall.

On April 22, 1994, a grand jury indicted appellant on three counts of a five count indictment. Count I charged appellant with conspiracy to commit bank robbery under 18 U.S.C. § 371. Count II charged appellant and others "as principles or aiders and abettors" with bank robbery under 18 U.S.C. § 2113(a) & (d). Count III charged appellant with use of a firearm in the commission of a crime of violence under 18 U.S.C. § 924(c).

Appellant's first trial on these charges (hereinafter Trial # 1) began on December 28, 1994. In addition to the testimony of bank employees present at the time of the robbery, the government presented testimony of three other women, Sharon Wagner, Rita Ellis and Dorla Enriquez, who had assisted in the crime and who each testified to appellant's participation in planning and carrying out the robbery. On January 4, 1994, a jury found appellant guilty on Count I of the indictment, but deadlocked as to Counts II and III.1

On May 30, 1995, the government retried appellant on Counts II and III (hereinafter Trial # 2). This time, in addition to the testimony of Sharon Wagner, Rita Ellis and Dorla Enriquez, the government called appellant's co-defendant from Trial # 1, Rodney Van Wright, who identified appellant as one of the two robbers pictured in the bank's surveillance photograph. On June 1, 1995, the jury returned a verdict of guilty under Count II for the lesser included offense of unarmed bank robbery, but acquitted appellant of the firearm charge under Count III.


Appellant cites four errors he contends require reversal of his conspiracy conviction in Trial # 1: (1) the failure of the government to state a criminal offense under 18 U.S.C. § 371; (2) the suppression of Sharon Wagner's October 1993 FBI 302 in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (3) the admission into evidence of Sharon Wagner's February 1994 FBI 302, and; (4) a lack ofsufficient evidence supporting appellant's conspiracy conviction. We examine each of these arguments in turn.


Initially, we turn to appellant's claim that the district court lacked jurisdiction to convict him of conspiracy to commit armed bank robbery under 18 U.S.C. § 371.2 For support, appellant relies on the Supreme Court's decision in Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), which held that establishing a conspiracy to "defraud the United States" under the second clause of § 371 required the government to prove that the United States or one of its agencies was the target of the fraud. Id. at 128–32, 107 S.Ct. at 2751–53. Appellant asks us to extend this same victim-specific restriction on the scope of the statute to the case at bar and to conclude that conspiring to rob a private bank does not constitute an offense under the statute. Like other issues of statutory construction, we review this claim de novo. United States v. Childress, 104 F.3d 47, 49 (4th Cir.1996).

18 U.S.C. § 371 criminalizes two types of conspiracies: conspiracies to commit an offense against the United States and conspiracies to defraud the United States. United States v. Arch Trading Company, 987 F.2d 1087, 1090 (4th Cir.1993).

We reject appellant's invitation and conclude, consistent with other circuits, that a conspiracy to commit "any offense against the United States" under the first clause of § 371 extends generally to cover any offense made illegal by federal law. See United States v. Brandon, 17 F.3d 409, 422 (1st Cir.1994); United States v. Harmas, 974 F.2d 1262, 1266 (11th Cir.1992); United States v. Loney, 959 F.2d 1332, 1338–39 (5th Cir.1992); United States v. Gibson, 881 F.2d 318, 321 (6th Cir.1989). Indeed, our explicit recognition of this distinction between the victim-specific "defraud the United States" prong and the "offense against the United States" prong merely highlights a difference that we have implicitly acknowledged since Tanner. See, e.g., United States v. Roseboro, 87 F.3d 642 (4th Cir.), cert. denied, 519 U.S. 1060, 117 S.Ct. 694, 136 L.Ed.2d 617 (1997); United States v. Williams, 10 F.3d 1070 (4th Cir.1993) (affirming convictions in both cases for conspiracy to commit bank robbery under § 371 and § 2113). Here, appellant does not dispute that the robbery of the First National Bank of Ferrum, whose deposits were insured by the Federal Deposit Insurance Corporation, is a federal offense under 18 U.S.C. § 2113(a) & (d). As a result, the district court had jurisdiction over a charge of conspiracy to violate that federal statute under 18 U.S.C. § 371.


Prior to appellant's first trial, FBI investigators questioned Sharon Wagner three times regarding the bank robbery and each time recorded the substance of her responses in a typewritten FBI 302 report. In her first interview on October 8, 1993, she identified Lester Fuller and Rodney Van Wright as the individuals who were responsible for the bank robbery. Soon after making this statement, Sharon Wagner was convicted on unrelated state charges and incarcerated in a Botetourt County jail. While she was in jail, FBI investigators conducted two more interviews with her concerning the bank robbery—one in January 1994 and the other in February 1994. However, in these interviews, she implicated appellant and her brother, Anthony Wagner, as the bank robbers.

On counsel's motion, the second and third FBI 302s were turned over to appellant, but the October 1993 302 was apparently not disclosed.3 At trial, Sharon Wagner testifiedfor the government that she had overheard appellant and her brother, Anthony Wagner, plan the bank robbery at her house, that appellant had shown her the money following the robbery, and that she had accompanied appellant and Wagner to New York to spend the stolen money. J.A. at 119–50. In addition, she admitted to having lied to FBI investigators in October 1993 when she had falsely implicated Fuller and Van Wright as the bank robbers in an effort to protect her brother and appellant. J.A. at 111, 165–166.

Appellant challenges his conspiracy conviction from his first trial claiming that government suppression of the FBI 302 report summarizing Sharon Wagner's October 1993 statement to investigators violated his due process rights as established in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963).

Under Brady and its progeny, the prosecution's failure to disclose "evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Kyles v. Whitley, 514 U.S. 419, 431, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995); Hoke v. Netherland, 92 F.3d 1350, 1356 (4th Cir.), cert. denied, 519 U.S. 1048, 117 S.Ct. 630, 136 L.Ed.2d 548 (1996). Evidence is "favorable" not only when it would tend to exculpate the accused, but also where it can be used to impeach government witnesses. United States v. Trevino, 89 F.3d 187, 189 (4th Cir.1996); United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). However, where the prosecution fails to disclose evidence favorable to the accused, such evidence is material "only where there exists a 'reasonable probability' that had the evidence been disclosed the result of the trial would have been different." Wood v. Bartholomew, 516 U.S. 1, ––––, 116 S.Ct. 7, 10, 133 L.Ed.2d 1 (1995); Kyles, 514 U.S. at 434, 115 S.Ct. at 1566. A "reasonable probability" of a different result is shown when the government's failure to disclose evidence "undermines confidence in the outcome of the trial." Kyles, 514 U.S. at 434, 115 S.Ct. at 1566 (citing Bagley, 473 U.S. at 668, 105 S.Ct. at 3375).

In response to appellant's claim of reversible error, the government first contends that its Brady obligations were discharged by defense counsel's lack of due diligence in requesting the disputed 302 report at trial. See United States v. Kelly, 35 F.3d 929, 936 (4th Cir.1994) ("when defense counsel could have discovered the evidence through reasonable diligence, there is no Brady violation if the government fails to produce it."); United States v. Wilson, 901 F.2d 378, 380 (4th Cir.1990) ("the Brady rule does not apply if the evidence in question is available to the defendant from other sources." (quoting United States v. Davis, 787 F.2d 1501, 1505 (11th Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 184, 93 L.Ed.2d 118 (1986))).

We reject this argument for the following reasons. First, such a claim glosses over the substantial efforts made by defense counsel to obtain the evidence in dispute. Over a month before trial defense counsel filed a Motion for Exculpatory Information calling upon the court to "enter an order pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct....

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