United States v. Ferris, 082217 FED4, 16-4141

Docket Nº:16-4141
Opinion Judge:GREGORY, CHIEF JUDGE.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWARD LAVON FERRIS, Defendant-Appellant.
Attorney:John Edward Davidson, DAVIDSON & KITZMANN, PLC, Charlottesville, Virginia, for Appellant. Nancy Spodick Healey, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. John P. Fishwick, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, fo...
Judge Panel:Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.
Case Date:August 22, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

EDWARD LAVON FERRIS, Defendant-Appellant.

No. 16-4141

United States Court of Appeals, Fourth Circuit

August 22, 2017

UNPUBLISHED

Argued: March 21, 2017

Appeal from the United States District Court for the Western District of Virginia at Charlottesville. Norman K. Moon, Senior District Judge. (3:15-cr-00007-NKM-1)

ARGUED:

John Edward Davidson, DAVIDSON & KITZMANN, PLC, Charlottesville, Virginia, for Appellant.

Nancy Spodick Healey, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.

ON BRIEF:

John P. Fishwick, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.

Affirmed by unpublished opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Harris joined.

Unpublished opinions are not binding precedent in this circuit.

GREGORY, CHIEF JUDGE.

After a five-day trial, a jury convicted Defendant-Appellant Edward Lavon Ferris of aggravated bank robbery, brandishing a firearm during a crime of violence, being a felon in possession of a firearm, conspiracy to obstruct justice, causing another to corruptly destroy or conceal evidence, and attempting to influence, obstruct, or impede the administration of justice. Ferris appeals his convictions, arguing first that the district court erred by denying his motion to strike a juror for cause. He also challenges four of the district court's evidentiary rulings, which he claims deprived him of a fair trial. For the reasons that follow, we affirm all of Ferris's convictions.

I.

On the snowy morning of January 6, 2015, a man wearing a ski mask and a black jacket entered the SunTrust Bank in the Meadowbrook Shopping Center in Culpeper, Virginia. The man pointed a revolver at two of the bank's tellers, who turned over more than $3, 000 in cash, including some $2 bills. The man then fled the bank without being apprehended.

The Culpeper Police Department ("CPD") found a single set of distinctive shoeprints leading to and from the bank, beginning and ending in a parking lot near the bank and winding through an alley behind the shopping center. Tire impressions in the snow showed that a car had backed into a space and then left. The shoeprints started from the passenger side of that car, led to the bank, and then ended back at the driver's side of the car. There were no other tire impressions nearby, and a shoeprint inside the bank matched the shoeprints in the snow.

Over the next few weeks, CPD received numerous tips about the robbery; one of those tips identified the robber as Ferris. On January 29, 2015, Ferris was arrested on unrelated charges at the home of Darlene Pollard, mother of Giovanni Waters ("Wiz") and Kecia Waters ("Kecia"). The police had located Ferris after Wiz's girlfriend, Sherry Scales, notified CPD that Ferris was at Pollard's home.

Later that day, CPD Lieutenant Andrew Terrill visited Ferris's parents' home. Lieutenant Terrill told Alfred Nelms, Ferris's stepfather, that he was investigating a larceny and wanted to establish Ferris's residency. Lieutenant Terrill said he referenced a "larceny" to avoid alarming Mr. Nelms that he was really investigating the bank robbery. J.A. 11. Mr. Nelms then called his wife, Peggy Nelms, to tell her that the police had been to their house inquiring about a larceny and that the officer wanted to come back to search Ferris's room.

At 2:20 p.m. that same day, Ferris called his mother, Mrs. Nelms, from jail. During this conversation, Mrs. Nelms told Ferris that police officers had been to her home, that they wanted to search Ferris's room, and that they said "something about a robbery." J.A. 811. Ferris asked if the police had gone into his room, and Mrs. Nelms said no. She told Ferris that the police would be coming back and asked whether he needed her to go into his room. He said he did, that he needed her "to get all his clothes on his bed" and "a little black zipper thing on his bed with something in it." When she stated that she was at work, he told her he would call Wiz and ask him to do it.

Ferris called Wiz at 2:24 p.m.-four minutes later-and asked Wiz to go to his mother's home and remove some property: Ferris: Hey Wiz.

Wiz: What's up?

Ferris: Yo, go to my mom's house right, you hear me.

Wiz: Yeah.

Ferris: Go, look, my stepdad's there. I told momma to call him and tell him, 'cause he's talking about the motherfucking sheriff went by there questioning him about some motherfucking robbery shit, right? So they, they asked to go in there, but he told them no, but you know they probably going try and get a warrant or whatever. So, go in my room, get all them clothes off the bed. Look, you know where that junk, you know that junk and that brown junk right? It's on my bed. Put it in the black bag, put all them jeans, all my clothes, that box of shoes, just take everything, and then look in the closet, the brown closet, there's a brown bag with a-uh, it's a jacket in that junk. Get that jacket and, dude, get, just get all that shit out of my room. Go now. I ain't got time to play, you gotta go now. 'Cause they just went a minute ago so hurry up and tell him that I said-

Wiz: All right, I'm going by there, but I'm actually at Radio Shack right now.

Ferris: Look man leave the fuck there 'cause I'm going to call you back in fifteen minutes and you should be in there and, and so I can, um, talk to him or whatever. But just get all that that out, just get everything-

Wiz: Alright you got, you got, you got the, so you got the big jacket in there too?

Ferris: Man, that junk is in the closet in the black bag, man. It's, it's right there when you open that shit, I got wooden closets in my room, you know what I'm saying. But just, just get that bag, grab that bag, and then get the-you'll see a bag of clothes on the little bed, you know what I'm saying, and get the other, the jeans and all that, that, that junk under them jeans or something you'll see the brown junk and make sure you find that junk, that brown junk and get that junk out of there with the junk in it. Make sure you get that.

Wiz: Alright, I'm a, I'm a make sure, I'm a confirm that I, so I'm gonna get the, the brown junk and then I'm a get that, I'm a get that, uh, get the junk and I'm a burn that junk up.

Ferris: Yeah, I don't give a fuck what you do with it, just get it out of there. Cause see that's-what I was going to talk to you about tonight, you know what I'm saying? 'Cause they, when I went in there for real, man-

Wiz: I, I kind of fig, I kind of, I kind of figured that, I'm about to go up there right now, bro. I'm leaving out of Radio Shack right now.

Ferris: Man, please hurry up, man go there now.

Wiz: Man, I'm going right now, bro, I'm going right now.

Wiz: I got you, I got you, I got you, dog, I got you.

Ferris: My daughter bed-yeah, 'cause I want you to get there anyway, 'cause they be down here tomorrow. I don't want nothing there, and make sure you get that jacket out of that closet. Just take the whole bag and, um, get the black bag it got my clothes in and put all my jeans in it.

Wiz: A'ight. A'ight. [background voices] Yeah, I got you.

Ferris: And get my shoe, get that shoe box too. Get my, get, get whatever. You can leave my fitted, you can leave them fitted hats or whatever that's in there. You can leave that shit I ain't trippin' over that.

Wiz: All right, I'm on, I'm on my way now up that junk now, bro.

Ferris: All right, man please. Thank you, brother. I love you.

Wiz: I got, I got you. Hey, I should be there. Call your momma and tell her I should be there in like 10 minutes. 'Cause within 10 minutes I should be at her house.

Ferris: Man, just get there black, please.

Wiz: All right.

Ferris: I'll call you back.

J.A. 811. Right after this call, Wiz, driven by Scales, went to the Nelms' house and took from Ferris's room a bag containing a North Face jacket, a shoebox with a pair of shoes inside, a brown gun case with a gun inside, and various items of clothing.

In a follow-up call to Wiz at 2:43 p.m., Ferris confirmed that Wiz had done as he was told: Wiz: Sup, black?

Ferris: Man, everything Gucci?

Wiz: Come on, man, you already know dude.

Ferris: I'm saying you already been there?

Wiz: Yeah, man, I been there and left, dude. I already got everything, nah, you good.

Ferris: All right. All right.

Wiz: I'm, I'm about to disperse all this shit now. Nah, you good.

Ferris: Yeah, keep-keep that other junk too, man, just keep that, you keep that. Don't nobody...

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