U.S. v. McNEAL, Nos. 14-4871 & 14-4872

Decided: March 28, 2016

The Fourth Circuit affirmed the district court’s ruling.

In February 2014, McNeal, Stoddard and a third defendant were indicted and charged with conspiracy to commit armed robbery of a bank (Count 1), substantive armed bank robbery offenses (Counts 2, 4, and 6), and brandishing firearms during crimes of violence (Counts 3, 5, and 7).  The charges arose from a 2013 robbery of a Bank of Georgetown branch in Virginia, a 2013 robbery of a Wells Fargo branch on North Glebe Road and a 2013 robbery of a Wells Fargo branch on South George Mason Drive.   On December 30, 2013, FBI agents applied for and received a warrant authorizing the placement of a tracking device on a 2004 Ford Taurus.  The warrant relied on the details of four recent bank robberies and the information from a confidential informant.  The confidential informant stated that an individual in the surveillance photograph resembled McNeal and identified the getaway car.  On December 31, 2013, McNeal drove the Taurus with Stoddard and the third defendant to commit the New Year’s Eve robbery.  FBI agents blocked the getaway from the bank robbery after observing Stoddard and the third defendant exiting with a black trash bag overflowing with money.  After the robbery, agents sought and received a warrant to search McNeal’s residence.  During the search, agents discovered a locked box, which contained a silver revolver and $300 in cash, under a bed in the only bedroom that contained men’s clothing and toiletries.

Prior to trial McNeal sought to suppress the evidence seized in executing the two warrants and maintained that the search warrant and tracking device were not supported by probable cause.  The district court denied this motion.  At trial, a loaded semiautomatic Glock handgun, the silver revolver, and the cash seized from McNeal’s residence were introduced as well as Stoddard’s own statements about his criminal history.  The district court overruled McNeal’s objection to exclude the silver revolver and cash from being admitted at trial.  The jury found Stoddard guilty on all seven counts and McNeal guilty on the conspiracy offense, armed robbery and brandishing offense arising from the New Year’s Eve robbery.  McNeal and Stoddard filed motions for judgments of acquittal but the district court denied the acquittal motions ruling that “‘a rational trier of fact could find that the conspiracy to commit armed bank robbery.’”  Stoddard was sentenced to life in prison and McNeal was sentenced to 184 months.

On appeal, McNeal and Stoddard jointly challenged the sufficiency of the evidence supporting their convictions on the brandishing offense.  McNeal also challenged the adequacy of proof with respect to his conspiracy conviction, the denial of his motions to suppress and certain evidentiary rulings.  McNeal and Stoddard contended that armed bank robbery was not a “‘crime of violence’” in the context of the brandishing offense.  First, McNeal and Stoddard asserted that the prosecution failed to prove that the handgun brandished in the three robberies underlying offenses three, five and seven were, in fact, firearms under federal law.  The Court held that “the lay testimony of eyewitnesses that ‘a gun was used in the robbery’ is a sufficient basis for the jury to find that a ‘firearm’ was used in a bank robbery offense,” therefore rejecting McNeal and Stoddard’s assertion.  Second, McNeal’s contention that there was insufficient evidence to convict him of conspiracy was rejected because McNeal’s knowledge that a firearm would be used in the robberies was sufficient to support the guilty verdict.  His involvement in the planning and carrying out of the New Year’s Eve robbery also supported the conviction.  Third, McNeal’s contention that his motions to suppress the evidence seized pursuant to the tracking warrant and the search warrant were erroneously denied was rejected because the Taurus was registered to McNeal’s mother and he used it to target the banks as well as the informant advising the FBI that McNeal used the Taurus to rob the banks.  Therefore, both warrants were supported by probable cause and the motions were properly denied.  Fourth, McNeal’s challenge to the introduction of the silver revolver and the cash seized from his residence was denied because there was an adequate foundation for admitting the items, especially after McNeal stipulated that the residence was his.

Finally, McNeal and Stoddard stated that armed bank robbery was not a crime of violence.  The brandishing offenses can only be overturned if McNeal and Stoddard satisfy plain error review because they did not preserve it in the trial court.  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.’”  McNeal and Stoddard contend that armed bank robbery does not have as an element the use, attempted use, or threatened use of physical force.  The Court disagreed stating that it included “the element that property must be taken ‘by force and violence, or by intimidation.’”  According to United States v. Davis, armed bank robbery has four elements: “(1) the defendant took, or attempted to take, money belonging to, or in the custody, care, or possession of, a bank, credit union, or saving and loan association; (2) the money was taken ‘by force and violence, or by intimidation’; (3) the deposits of the institution were federally insured; and (4) in committing or attempting to commit the offense, the defendant assaulted any person, or put in jeopardy the life of any person, by the use of a dangerous weapon or device.”  Relying on United States v. Adkins and several other cases, the Court stated that armed bank robbery was a crime of violence because bank robbery required the use of physical force or intimidation.  The Court rejected McNeal and Stoddard’s assertion that the Court should rely on United States v. Johnson, which held that simple battery, was not a crime of violence.  Further, the Court held that “because intimidation entails a threat to use violent physical force, and not merely a threat to cause bodily injury . . . bank robbery is a crime of violence under the § 924(c)(3) force clause.”  Finally, the Court stated that McNeal and Stoddard failed to meet plain error review and therefore the trial court did not err in concluding that armed bank robbery was a crime of violence.

Accordingly, the Court affirmed the judgment of the district court.

Full Opinion

Alicia E. Morris

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