United States v. McNeal, s. 14–4871

• Citation: 818 F.3d 141
• Decision Date: 28 March 2016
• Docket Number: 14–4872.,Nos. 14–4871,s. 14–4871
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James Larry McNEAL, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Alphonso Stoddard, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

818 F.3d 141

UNITED STATES of America, Plaintiff–Appellee,

v.James Larry McNEAL, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Alphonso Stoddard, Defendant–Appellant.

Nos. 14–4871

14–4872.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 9, 2015.

Decided: March 28, 2016.

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.

Before KING, SHEDD, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge SHEDD and Judge THACKER joined.

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. § 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

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, 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.

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 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 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 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 ...