US v. James McNeal

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cr-00076-TSE-1. [999782577]. [14-4871, 14-4872]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4871

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES LARRY MCNEAL,
Defendant – Appellant.

No. 14-4872

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALPHONSO STODDARD,
Defendant – Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis III, Senior
District Judge. (1:14-cr-00076-TSE-1; 1:14-cr-00076-TSE-3)

Argued:

December 9, 2015

Decided:

Before KING, SHEDD, and THACKER, Circuit Judges.

March 28, 2016

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Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Shedd and Judge Thacker joined.

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.

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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

Stoddard

jointly

supporting

crimes

of

violence.

challenge

their

the

convictions

On

appeal,

sufficiency
on

the

of

McNeal

the

brandishing

and

evidence
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

Stoddard,

and

a

a

seven-count

third

man,

James

indictment
Link.

against

Count

One

McNeal,
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,

3

in

violation

of

[18

U.S.C.

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§ 2113(a) and (d)].”
charged

the

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See J.A. 50. 1

defendants

with

Counts Two, Four, and Six

substantive

armed

offenses, in contravention of § 2113(a) and (d).

bank

robbery

Counts Three,

Five, and Seven charged them with brandishing firearms during
crimes of violence — the armed bank robberies charged in Counts
Two,

Four,

and

§ 924(c)(1)(A)(ii).
30,

2013

robbery

—

Six

in

violation

of

18

U.S.C.

Counts Two and Three arose from the October
of

a

Bank

of

Georgetown

Virginia (the “Bank of Georgetown robbery”).

branch

in

Vienna,

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

1

Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
2

Prior to trial, Link entered into a plea agreement with
the government, pursuant to which he pleaded guilty to Counts
Five and Seven in exchange for his cooperation against McNeal
and Stoddard.
Link thereafter refused, however, to testify
against his coconspirators.
The trial court found Link in
breach of the plea agreement and sentenced him to thirty-five
years in prison.
Link appealed the judgment, and we affirmed.
See United States v. Link, 606 F. App’x 80 (4th Cir. 2015).

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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”).
recounted

the

details

of

four

The supporting affidavit

recent

bank

robberies

in

the

Washington, D.C. area — the Bank of Georgetown and Glebe Road
robberies,
Wells

plus

Fargo

the

October

branch

in

29,

2013

Rockville,

attempted

Maryland

robbery

(the

of

a

“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

investigation.

offenses

that

were

similar

to

those

then

under

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.

5

The Taurus,

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learned,

was

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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

Wells

Fargo

branch

The Taurus then drove within view of

on

South

George

Mason

Drive,

parked

nearby for about ten minutes, and left.
At

about

4:00

magistrate

judge

in

warrant.

Pursuant

p.m.

on

December

Greenbelt,
thereto,

30,

Maryland,

the

FBI

2013,

issued

agents

a

the

federal
tracking

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.
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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

seized by the FBI in executing the two warrants.

the

evidence

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.
McNeal

maintained

that

the

In support of those motions,

search

7

warrant

and

the

tracking

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warrant were not supported by probable cause.

On June 6, 2014,

the district court denied the suppression motions.
B.
1.
The
2013,

evidence

Link

attempt. 3

and

at

trial

Stoddard

established
engaged

that,

in

the

on

October

Rockville

29,

robbery

Upon entering the Wells Fargo branch, Link brandished

a handgun and yelled for everyone to get on the floor, while
Stoddard

vaulted

instructions
attempt.

at

the

teller

Stoddard

counter.

during

the

Link

course

of

also

barked

the

robbery

At one point, Link fired his handgun into the ceiling.

Shortly thereafter, the two men fled the bank empty handed.
Undeterred,

Link

and

Stoddard

Georgetown robbery the very next day.

committed

the

Bank

of

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

3

In light of the jury’s guilty verdicts, we recite the
facts underlying these prosecutions in the light most favorable
to the government.
See United States v. Perry, 757 F.3d 166,
175 (4th Cir. 2014).
Prosecutors presented evidence from
seventeen witnesses during the three-day trial.
McNeal and
Stoddard did not testify or call witnesses.

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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

Stoddard

jumped

get

on

counter

the

to

the

and

floor.

ransacked

the

Meanwhile,
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

investigating

December
the

2013,

Rockville

FBI

agents

robbery

and

attempt

local

and

police

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.,

and

the

agents

observed

McNeal,

Stoddard,

a

third

individual in the Taurus, which was parked facing the Bank of
America

branch

Arlington.

For

at

Columbia

about

four

Pike

and

minutes,

South
the

parking space, and no one entered or exited.

Glebe

Taurus

sat

Road
in

in
the

McNeal then drove

the Taurus to South George Mason Drive in Arlington and parked
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about 150 to 200 meters from the Wells Fargo branch.
remained

there

for

about

seven

minutes,

again

The Taurus

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
George Mason Drive — and directly in front of a vehicle occupied
by an Arlington County police officer.

The officer watched Link

and Stoddard exit the Taurus and walk toward the Wells Fargo
branch they had cased a few days earlier.

As they approached

the bank, Link and Stoddard donned the hoods of their coats, and
one of them pulled up a handkerchief or scarf to cover his face.
Meanwhile, McNeal maneuvered the Taurus to a parking space on
the northbound side of South George Mason Drive, about a block
and a half from the Wells Fargo branch.
Link

and

Stoddard

then

entered

the

Wells

Fargo

branch,

where Link drew a Glock handgun and told everyone to get on the
floor.

In response, a customer fled out the front door and ran

away, stumbling over a fence.

Inside the bank, Stoddard vaulted

the counter, opened a cash drawer, and ordered a teller to open
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The teller complied, and Stoddard helped himself to

the money inside the drawers.

Link soon grew impatient and

urged Stoddard to hurry up, shouting, “Come on Joe,” and, “We
got to go.”

See J.A. 623.

After a couple of minutes, Link and Stoddard left the Wells
Fargo branch

and

returned

to

the

Taurus,

walking

first and then jogging as they got closer.

briskly

at

Stoddard carried the

black trash bag filled with nearly $48,000 in cash.

Just as

McNeal pulled out of the parking space, an FBI SWAT team truck
blocked

their

escape,

striking

pinning it against the curb.

the

side

of

the

Taurus

and

Link, McNeal, and Stoddard were

then arrested without resistance.
At

the

semiautomatic
waistband.

arrest

scene,

Glock
From

the

the

handgun,
Taurus,

FBI

agents

which
the

was

agents

seized
tucked

the

loaded

into

Link’s

recovered

the

black

trash bag containing the money stolen during the New Year’s Eve
robbery.

The firearm was introduced at trial, where two FBI

agents — one a certified firearms instructor — identified it.
The prosecutors also introduced Stoddard’s own statements
about his criminal activity.

First, during an interview with

FBI agents, Stoddard admitted that he was a professional bank
robber and that he had participated in the Rockville robbery

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attempt and the Glebe Road robbery. 4

Second, an inmate housed

with Stoddard in an Alexandria jail testified that Stoddard had
asserted, among other things, that he “robbed banks” and that
McNeal was one of his “partners.”

See J.A. 758.

Finally, the prosecutors introduced the silver revolver and
cash

seized

from

McNeal’s

Hyattsville

residence.

McNeal

objected on the ground that the prosecutors had not linked him
to the residence, and thus any evidence seized therefrom was
irrelevant.
objection.
the

The

court,

however,

overruled

McNeal’s

After the prosecutors proffered evidence — outside

presence

residence

trial

in

of

the

response

jury
to

—

that

routine

McNeal
booking

had

confirmed

questions,

his

McNeal

stipulated that he lived at the Hyattsville residence.
C.
The jury found Stoddard guilty on all seven counts.

It

found McNeal guilty on three charges — the conspiracy offense in
Count One and the two offenses in Counts Six and Seven arising
from the New Year’s Eve robbery. 5

4

Stoddard’s post-arrest statement to the FBI regarding his
participation in the earlier bank robberies was admitted against
him only, and not against McNeal.
5

The jury hung and a mistrial was declared as to McNeal on
Counts Two through Five.
At the conclusion of McNeal’s
sentencing hearing in November 2014, the district court
dismissed those charges against him.

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McNeal and Stoddard thereafter filed motions for judgments
of acquittal.

McNeal contended, inter alia, that the government

had failed to prove that he knew the purpose and goal of the
conspiracy was to commit armed bank robbery, a crime under 18
U.S.C. § 2113(d), as opposed to bank robbery, a lesser-included
offense

under

§ 2113(a).

The

district

court

denied

the

acquittal motions, ruling that “a rational trier of fact could
find that the conspiracy was to commit armed bank robbery.”

See

J.A. 1046.
On November 7, 2014, the district court sentenced Stoddard
to life in prison and McNeal to 184 months.

McNeal and Stoddard

have timely appealed, and we possess jurisdiction pursuant to 28
U.S.C. § 1291.

II.
We

review

de

novo

a

district

court’s

determinations

of

questions of law.

See United States v. Beyle, 782 F.3d 159, 166

(4th Cir. 2015).

We review evidentiary rulings made by a trial

court for abuse of discretion.

See United States v. Vogt, 910

F.2d 1184, 1192 (4th Cir. 1990).
An issue pursued on appeal but not preserved in the lower
court is reviewed for plain error only.
Olano, 507 U.S. 725, 732 (1993).

See United States v.

To satisfy that standard, a

defendant must show “(1) that an error was made; (2) that the
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error was plain; and (3) that the error affected his substantial
rights.”

United States v. Carthorne, 726 F.3d 503, 510 (4th

Cir. 2013).
correct

a

Even if those three prongs are satisfied, we will
plain

error

only

when

necessary

to

prevent

“a

miscarriage of justice” or to ensure “the fairness, integrity or
public reputation of judicial proceedings.”

United States v.

Whitfield, 695 F.3d 288, 303 (4th Cir. 2012).

III.
McNeal and Stoddard’s opening brief on appeal presents four
assignments

of

error.

First,

the

pair

challenges

the

sufficiency of the evidence on the brandishing offenses, arguing
that the government failed to prove that the handguns used in
the robberies were functional.
evidence

was

conspiracy

insufficient

to

commit

Second, McNeal contends that the

to

armed

support

bank

his

robbery.

conviction
In

his

for
third

assignment of error, McNeal maintains that the trial court erred
in denying his suppression motions.

Finally, McNeal challenges

the court’s evidentiary rulings admitting the silver revolver
and the cash seized from his Hyattsville residence.

We address

those contentions in turn.
A.
McNeal
evidence

and

Stoddard

supporting

the

challenge

brandishing
14

the

sufficiency

offenses

in

of

Counts

the
Three

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(Stoddard),

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Five

Stoddard).

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(Stoddard),

and

Seven

(both

McNeal

and

They contend that the prosecution failed to prove

that the handguns brandished in the three robberies underlying
those offenses were in fact firearms under federal law.

We will

disturb a guilty verdict only if the record fails to contain
“evidence

that

a

reasonable

finder

of

fact

could

accept

as

adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.”
F.3d 348, 355 (4th Cir. 2010).

United States v. Young, 609

In conducting such an analysis,

we view “the evidence and the reasonable inferences to be drawn
therefrom

in

the

light

most

favorable

to

the

Government.”

United States v. Perry, 757 F.3d 166, 175 (4th Cir. 2014).
Pursuant to § 924(c)(1)(A)(ii) of Title 18, an accused who,
in

the

course

of

committing

a

crime

of

violence,

“uses

or

carries a firearm” is subject to an additional prison sentence
“of not less than 7 years,” if the firearm was “brandished”
during and in relation to the crime.

The term “firearm” is

defined in § 921(a)(3) as “any weapon . . . which will or is
designed to or may readily be converted to expel a projectile by
the action of an explosive.”
and

Stoddard

contend

that

Invoking that definition, McNeal

the

prosecution

failed

to

present

expert testimony that the firearms brandished during the three
bank

robberies

charged

expelling a projectile.

in

the

indictment

were

capable

of

Such expert testimony is not necessary
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to

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prove

a

Filed: 03/28/2016

§ 924(c)

offense,

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however,

at

indication that the firearm was a fake.

least

absent

some

See United States v.

Jones, 907 F.2d 456, 460 (4th Cir. 1990).

As we explained in

Jones, 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.
In

this

trial,

several

eyewitnesses

Id.

testified

concerning

the bank robberies in Counts Two, Four, and Six and confirmed
that, in each bank, one of the robbers had displayed a handgun.
Accordingly, McNeal and Stoddard’s first contention provides no
basis

for

overturning

their

convictions

on

the

brandishing

offenses.
B.
McNeal

separately

contends

that

the

evidence

was

insufficient to convict him of conspiracy to commit armed bank
robbery, in violation of 18 U.S.C. § 371.

Section 371 provides,

in relevant part, that if “two or more persons conspire . . . to
commit any offense against the United States . . . , and one or
more of such persons do any act to effect the object of the
conspiracy,
prison.

each

shall

be”

punished

by

up

to

five

years

in

To prove a § 371 conspiracy, the government must show

“an agreement to commit an offense, willing participation by the
defendant, and an overt act in furtherance of the conspiracy.”
United States v. Tucker, 376 F.3d 236, 238 (4th Cir. 2004).
16

The

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prosecutors must also show that the accused possessed “at least
the

degree

of

criminal

offense itself.”

intent

necessary

for

the

substantive

Ingram v. United States, 360 U.S. 672, 678

(1959).
McNeal maintains that, in order to prove the conspiracy
alleged

in

Count

One,

the

government

had

to

show

that

he

understood, at some point during the conspiracy, that Stoddard
and Link intended to use a weapon to rob a bank.

He further

contends that the government failed to make any such showing at
trial.

The government responds that the trial evidence amply

supported the jury’s conclusion that McNeal knew he was entering
into

a

conspiracy

to

commit

armed

bank

robbery.

In

the

alternative, the government maintains that we could “impose a
conviction on the lesser-included charge of conspiracy to commit
unarmed bank robbery.”

See Br. of Appellee 30.

We reject McNeal’s contention of error because the evidence
of

McNeal’s

knowledge

that

a

firearm

would

be

used

in

the

robberies was more than sufficient to support the guilty verdict
on

the

conspiracy

offense.

On

December

27,

2013,

the

FBI

observed McNeal, Stoddard, and Link casing banks in Arlington,
including the Wells Fargo branch on South George Mason Drive.
On New Year’s Eve, for about half an hour before they robbed
that bank, McNeal, Stoddard, and Link drove in the vicinity of
the very banks they had cased four days earlier.
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to

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find

that

the

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defendants

were

then

putting

the

finishing touches on their plan to rob the Wells Fargo branch —
a crime McNeal and his cronies had travelled to Virginia to
commit.

McNeal’s active involvement in planning and carrying

out the New Year’s Eve robbery, in which a firearm was actually
used,

strongly

supports

the

jury’s

finding

handgun would be used in the robbery.

that

he

knew

a

See United States v.

Johnson, 444 F.3d 1026, 1029-30 (9th Cir. 2006).
The fact that McNeal knew a firearm would be used in the
New Year’s Eve robbery is also supported by other evidence.

For

example, Stoddard represented to his fellow jail inmate that
McNeal was his partner in robbing banks. 6

Stoddard had also

participated in the Rockville robbery attempt, the Glebe Road
robbery,

and

the

Bank

of

Georgetown

involved the use of a handgun.

robbery,

each

of

which

The jury was thus entitled to

find that McNeal conspired with Stoddard and Link to commit the
New Year’s Eve robbery and that McNeal fully understood that a

6

McNeal objected to the jail inmate’s testimony that
Stoddard said that he and McNeal robbed banks together, arguing
that such testimony was inadmissible hearsay.
The trial court
overruled the objection, and McNeal does not challenge that
ruling on appeal.

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firearm would be used in the robbery.

Accordingly, we reject

McNeal’s challenge to his conspiracy conviction on Count One. 7
C.
McNeal next contends that the district court erroneously
denied his motions to suppress the evidence seized pursuant to
the

tracking

warrant

and

contention has two subparts:

the

search

warrant.

McNeal’s

first, that the tracking warrant

affidavit failed to sufficiently link him to the Taurus; and
second, that the search warrant affidavit did not sufficiently
connect him to the Hyattsville residence.
In making a probable cause assessment, a magistrate judge
must “make a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before him . . . ,
there is a fair probability that contraband or evidence of a
crime will be found.”
(1983).

See Illinois v. Gates, 462 U.S. 213, 238

As a reviewing court, we are obliged to “accord great

deference to the magistrate’s assessment of the facts presented
to him.”

United States v. Blackwood, 913 F.2d 139, 142 (4th

Cir. 1990) (internal quotation marks omitted).
7

Our inquiry is

Even if the government had failed to prove that McNeal
knew he was entering into a conspiracy to commit armed bank
robbery, we would yet affirm the Count One judgment against him.
McNeal indisputably entered into a conspiracy to commit bank
robbery.
And, for purposes of punishment, there is no
difference between a § 371 conspiracy to commit bank robbery and
a § 371 conspiracy to commit armed bank robbery.

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whether

to

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was

there

a

substantial

determining the existence of probable cause.

basis

for

See United States

v. Montieth, 662 F.3d 660, 664 (4th Cir. 2011).
We
issues.

must

reject

McNeal’s

contentions

on

the

suppression

As the tracking warrant affidavit shows, the Taurus was

registered to McNeal’s mother, and McNeal had used it to case
target banks in Arlington.

Furthermore, an informant advised

the FBI that McNeal had used the Taurus to rob banks.

That

information was corroborated by the FBI’s surveillance of McNeal
and the informant’s knowledge of the amount of money stolen in
the robberies.

See United States v. Miller, 925 F.2d 695, 699

(4th Cir. 1991) (explaining that informant’s tip corroborated by
investigator’s observations establishes probable cause).
there

was

ample

cause

to

believe

that

McNeal

was

Thus,

using

the

Taurus to plan and commit bank robberies.
The

search

warrant

affidavit

connected

McNeal

to

the

Hyattsville residence and demonstrated probable cause to believe
that evidence of the bank robberies would be located there.
the

affidavit

Hyattsville

explained,

residence

December 27, 2013.

just

McNeal
before

was

observed

casing

leaving

target

banks

As
the
on

Likewise, FBI agents had seen McNeal leaving

the Hyattsville residence four days later, immediately before he
participated in the New Year’s Eve robbery.

And, of course, the

Taurus was registered to McNeal’s mother at that residence.
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McNeal argues that the FBI agents should have done more to
corroborate the facts in the affidavits.
however,

does

not

require

The Fourth Amendment,

investigators

to

exhaust

every

potential avenue of investigation before seeking and obtaining a
warrant.

See McKinney v. Richland Cty. Sheriff’s Dep’t, 431

F.3d 415, 418-19 (4th Cir. 2005) (explaining that an officer’s
failure to “conduct a more thorough investigation before seeking
[an] arrest warrant does not negate” probable cause).
put,

each

warrant

was

supported

by

probable

cause,

Simply
and

the

district court properly denied McNeal’s motions to suppress.
D.
Finally, McNeal challenges the trial court’s ruling that
the prosecution was entitled to introduce the silver revolver
and the

cash

maintains

that

seized
the

from

his

government

Hyattsville
failed

to

residence.
provide

an

McNeal
adequate

foundation for the admission of either the revolver or the cash,
in

that

neither

was

sufficiently

linked

to

him.

McNeal,

however, stipulated that the Hyattsville residence was his, and
the FBI agents found and seized the silver revolver and the cash
from the only bedroom containing male clothing and toiletries.
Accordingly, the trial court did not abuse its discretion in
admitting

the

evidence

seized

residence.

21

from

McNeal’s

Hyattsville

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IV.
By
argue

way
that

of

supplemental

their

submissions,

convictions

under

18

McNeal
U.S.C.

and

Stoddard

§ 924(c)

for

brandishing a firearm during a crime of violence should be set
aside because 18 U.S.C. § 2113(d) armed bank robbery is not a
“crime

of

violence”

as

defined

in

§ 924(c)(3).

Whether

an

offense constitutes such a crime of violence is a question of
law that we review de novo.
F.2d

947,

failed

950

to

n.2

preserve

(4th
in

See United States v. Adkins, 937

Cir.

the

1991).

trial

Because

court

their

the

defendants

contention

that

armed bank robbery is not a crime of violence, we may vacate the
brandishing

convictions

plain error review.

only

if

McNeal

and

Stoddard

satisfy

See United States v. Olano, 507 U.S. 725,

732 (1993).
A.
Under 18 U.S.C. § 924(c)(1)(A), a defendant who “uses or
carries”

a

firearm

“during

and

in

relation

to

any

crime

of

violence” faces a five-year mandatory minimum sentence, to run
consecutively to any sentence for the underlying offense.

See

United States v. Johnson, 32 F.3d 82, 85 (4th Cir. 1994).

If,

during the commission of the crime of violence, “the firearm is
brandished,” the mandatory minimum sentence increases to seven
years.

See § 924(c)(1)(A)(ii).

As defined in § 924(c)(3), the

phrase “crime of violence” means a felony offense that either:
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“(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.”

We have referred

to subparagraph (A) of § 924(c)(3) as the “force clause” and to
subparagraph (B) as the “residual clause.”
States

v.

Fuertes,

determining
either

whether

clause,

we

805
an

F.3d

485,

offense

utilize

is

the

498
a

See, e.g., United

(4th

crime

Cir.
of

2015).

In
under

approach,

categorical

violence

which

focuses solely on the elements of the offense, rather than on
the facts of the case.
McNeal

and

See id.

Stoddard

contend

that

their

convictions

on

Counts Three, Five, and Seven for brandishing a firearm during a
crime of violence must be vacated.
that

armed

violence

bank

within

robbery
the

under

meaning

They maintain, inter alia,

of

§ 2113(d)
the

is

not

§ 924(c)(3)

a

crime

force

of

clause

because it does not have as an element the use, attempted use,
or threatened use of physical force.

The government counters

that bank robbery in violation of § 2113(a), a lesser-included
offense of § 2113(d) armed bank robbery, satisfies the force
clause

of

property

§ 924(c)(3)
must

be

because

taken

“by

it

23

includes

force

and

the

element

violence,

or

that
by

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As further explained below, we agree with the

government. 8
1.
The crimes of violence underlying McNeal’s and Stoddard’s
brandishing convictions were the armed bank robberies charged in
Counts Two, Four, and Six of the indictment.
under § 2113(d) has four elements:

Armed bank robbery

(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.
(10th

Cir.

2006).

See United States v. Davis, 437 F.3d 989, 993
The

first

8

three

elements

of

armed

bank

McNeal and Stoddard also contend in their supplemental
submissions that, in light of the Supreme Court’s decision last
year in Johnson v. United States — in which the Court
invalidated as unconstitutionally vague the residual clause in
the Armed Career Criminal Act, see 135 S. Ct. 2551, 2557 (2015)
—
§ 924(c)(3)’s
similar
residual
clause
is
also
unconstitutionally vague.
Because § 2113(a) bank robbery
satisfies the § 924(c)(3) force clause, we do not consider
whether
Johnson
renders
the
§ 924(c)(3)
residual
clause
unconstitutionally vague.
See Fuertes, 805 F.3d at 499 n.5
(invoking principle of constitutional avoidance articulated in
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346–48
(1936) (Brandeis, J., concurring)).

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robbery are drawn from § 2113(a) and define the lesser-included
offense

of

§ 2113(d).

bank

robbery.

The

fourth

element

We focus on the second element:

is

drawn

from

that the money was

taken from the bank “by force and violence, or by intimidation.”
See § 2113(a).
In assessing whether bank robbery qualifies as a crime of
violence under the § 924(c)(3) force clause, we do not write on
a blank slate.

Twenty-five years ago in Adkins, our esteemed

former colleague Judge Hall explained that “armed bank robbery
is unquestionably a crime of violence, because it ‘has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another.’”
at 950 n.2 (quoting 18 U.S.C. § 924(c)(3)(A)).

See 937 F.2d
We also ruled

decades ago that a § 2113(a) bank robbery is a crime of violence
under the force clause of Guidelines section 4B1.2, which is
nearly identical to the § 924(c)(3) force clause.
States

v.

Davis,

915

F.2d

132,

133

(4th

Cir.

See United

1990);

accord

Johnson v. United States, 779 F.3d 125, 128-29 (2d Cir. 2015);
United States v. Wright, 957 F.2d 520, 521 (8th Cir. 1992);
United

States

v.

Jones,

932

F.2d

25

624,

625

(7th

Cir.

1991);

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United

States

Filed: 03/28/2016

v.

Selfa,

918

Pg: 26 of 36

F.2d

749,

751

(9th

Cir.

1990);

United States v. Maddalena, 893 F.2d 815, 819 (6th Cir. 1989). 9
Our sister circuits have uniformly ruled that other federal
crimes

involving

takings

“by

force

and

violence,

or

by

intimidation,” have as an element the use, attempted use, or
threatened
example,
special

use
the

of

physical

Eighth

maritime

and

force.

Circuit

Earlier

concluded

territorial

that

jurisdiction

this

year,

robbery
of

in

the

for
the

United

States under 18 U.S.C. § 2111 satisfied the similarly worded
force clause in the Armed Career Criminal Act (“ACCA”), because
it

required

a

intimidation.”

taking

conclusion

U.S.C. § 2119.

force

and

violence,

or

by

See United States v. Boman, 810 F.3d 534, 542-43

(8th Cir. 2016).
same

“by

The Second and Eleventh Circuits reached the
with

respect

to

the

carjacking

statute,

18

See United States v. Moore, 43 F.3d 568, 572-73

(11th Cir. 1994); United States v. Mohammed, 27 F.3d 815, 819
(2d Cir. 1994).
The logic of those decisions is straightforward.
“by

force

and

violence”

entails

9

the

use

of

A taking

physical

force.

The term “crime of violence,” and its cousin, the term
“violent felony,” are defined in various statutory provisions,
including § 924(c), and in the Sentencing Guidelines, including
section 4B1.2.
In light of the striking similarities among
those definitions, the court decisions interpreting one such
definition are persuasive as to the meaning of the others. See
United States v. Williams, 67 F.3d 527, 528 (4th Cir. 1995).

26

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Likewise, a taking “by intimidation” involves the threat to use
such force.

See, e.g., Jones, 932 F.2d at 625 (“Intimidation

means the threat of force.”); Selfa, 918 F.2d at 751 (explaining
that

the

intimidation

element

of

§ 2113(a)

meets

“the

[Guidelines] section 4B1.2(1) requirement of a ‘threatened use
of physical force’”).

As the Seventh Circuit explained in its

Jones decision, “[t]here is no ‘space’ between ‘bank robbery’
and ‘crime of violence’” because “violence in the broad sense
that includes a merely threatened use of force is an element of
every bank robbery.”

See 932 F.2d at 625.

In United States v. Presley, in 1995, we recognized the
equivalence between “intimidation” and the “threatened use of
physical

force,”

holding

that

a

satisfied the ACCA force clause.

Virginia

robbery

offense

See 52 F.3d 64, 69 (4th Cir.

1995).

As we explained, Virginia had defined robbery as “the

taking,

with

intent

to

steal,

of

the

personal

property

of

another, from his person or in his presence, against his will,
by violence or intimidation.”

Id.

Reasoning that “[v]iolence

is the use of force,” and “[i]ntimidation is the threat of the
use of force,” we concluded that “robbery in Virginia has as an
element the use or threatened use of force.”
our Presley

decision

addressed

a

state

Id.

crime,

Of course,

rather

than

a

federal offense, and a State is entitled to define its crimes as
it sees fit.

In this case, however, McNeal and Stoddard have
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presented no sound basis for concluding that the “intimidation”
element of Virginia robbery is any narrower or broader than the
“intimidation” element of federal bank robbery.
Put succinctly, the reasoning of Jones, Selfa, and Presley
is

persuasive.

Bank

robbery

under

§ 2113(a),

violence,” requires the use of physical force.

“by

force

and

Bank robbery

under § 2113(a), “by intimidation,” requires the threatened use
of physical force.

Either of those alternatives includes an

element that is “the use, attempted use, or threatened use of
physical

force,”

constitutes

a

and

crime

of

thus

bank

violence

robbery
under

the

under
force

§ 2113(a)
clause

of

§ 924(c)(3).
2.
McNeal and Stoddard contend that recent decisions of the
Supreme Court and this Court have changed the legal landscape
and compel us to conclude that § 2113(a) bank robbery is not a
crime

of

violence

within

the

meaning

of

§ 924(c)(3).

In

particular, they rely on the Supreme Court’s 2010 decision in
Johnson v. United States, 559 U.S. 133 (2010), the Court’s 2004
decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), and our 2012
decision in United States v. Torres-Miguel, 701 F.3d 165 (4th
Cir. 2012).

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a.
In Johnson, the Supreme Court ruled that a Florida simple
battery was not a crime of violence under the ACCA force clause.
See 559 U.S. at 136-37.

The Florida statute provided that a

person could be convicted of battery upon proof that he actually
and intentionally touched another person against the victim’s
will.

The government argued, and the lower courts agreed, that

any unwanted intentional touching qualified as “physical force”
under the ACCA force clause.

Id. at 137.

The Supreme Court

rejected that reading, however, ruling instead that “physical
force,” as used in the ACCA force clause, “means violent force —
that is, force capable of causing physical pain or injury to
another person.”
McNeal
that

and

Johnson

Id. at 140.
Stoddard

rendered

assert,

without

unpersuasive

the

further
earlier

explanation,
authorities

concluding that § 2113(a) bank robbery is a crime of violence.
Johnson, however, is entirely consistent with those authorities.
Bank

robbery

violence”

or

under

§ 2113(a)

“intimidation.”

requires
A

either

combination

of

“force

and

force

and

violence qualifies as violent force, and the defendants do not
argue to the contrary.

Meanwhile, the term “intimidation” in

§ 2113(a) simply means “the threat of the use of force.”
Presley, 52 F.3d at 69.

See

As the Seventh Circuit explained in

United States v. Smith, “intimidation . . . must constitute a
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threat,” and the defendant’s “conduct will be deemed to be a
threat if it was calculated to create the impression that any
resistance by the teller would be met with physical force.”
131 F.3d 685, 688 (7th Cir. 1997).

See

Moreover, to qualify as

intimidation, the degree of “force” threatened must be violent
force — that is, force capable of causing physical pain or
injury.
Cir.

See United States v. Wagstaff, 865 F.2d 626, 627 (4th

1989)

(emphasizing

that

intimidation

occurs

“when

an

ordinary person in the teller’s position reasonably could infer
a threat of bodily harm from the defendant’s acts”).
b.
Although

Johnson

addressed

the

definition

of

“physical

force” under the ACCA force clause, the Supreme Court’s Leocal
decision, six years earlier, explained what it means to “use”
physical
offense

force.
of

In

driving

Leocal,
under

the

the

Court

ruled

influence

and

that

a

Florida

causing

serious

injury was not a crime of violence under the force clause of 18
U.S.C. § 16.

See 543 U.S. at 9-10.

The Court explained that

the “key phrase in § 16(a) — ‘the use . . . of physical force
against the person or property of another’ — most naturally
suggests

a

accidental
Because

the

higher

degree

conduct.”
Florida

of

Id.
Supreme

intent
at

9

Court

than

negligent

(alteration
had

in

or

merely

original).

interpreted

the

DUI

statute as lacking a mens rea requirement, the DUI offense could
30

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not qualify as a crime of violence under the force clause.
at 7-8, 10.

Id.

Although Leocal reserved the question of whether a

reckless application of force could qualify as a “use” of force,
we

answered

that

question

two

recklessness was not enough.

years

later

by

ruling

that

See Garcia v. Gonzalez, 455 F.3d

465, 468-69 (4th Cir. 2006).
McNeal

and

Stoddard

insist

that

bank

robbery

by

“intimidation” is not a crime of violence under the force clause
of

§ 924(c)(3)

because,

in

their

view,

bank

robbery

committed by recklessly engaging in intimidation.

can

be

To support

that interpretation, they point to our 1996 decision in United
States v. Woodrup, 86 F.3d 359 (4th Cir. 1996).

Woodrup was

convicted of § 2113(a) bank robbery on evidence that he “entered
the

bank,

looked

directly

at

[a]

teller

. . . ,

walked

very

quickly across the lobby to the teller position, reached across
the counter ‘as if . . . trying to grab’ the teller, and vaulted
over

the

screaming.”

counter
Id.

headfirst,
at

363

causing

(second

her

alteration

to
in

back

away,

original).

Woodrup was unarmed, did not use a note, and did not make an
oral demand for money.

After he was arrested, Woodrup told an

FBI agent that he was “glad that the teller didn’t have a heart
attack and die.”

Id. at 364.

On

Woodrup

appeal,

challenged

his

conviction

on

the

ground that the prosecution had not proven that he intended to
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intimidate

Filed: 03/28/2016

the

teller.

See

Pg: 32 of 36

Woodrup,

86

F.3d

at

363.

We

declined to read an intent requirement into § 2113(a), observing
that “nothing in the statute even remotely suggests that the
defendant

must

Instead,

we

have

intended

explained

to

that

intimidate.”

“the

Id.

intimidation

at

element

364.
of

§ 2113(a) is satisfied if an ordinary person in the teller’s
position reasonably could infer a threat of bodily harm from the
defendant’s acts, whether or not the defendant actually intended
the intimidation.”

Id. (internal quotation marks omitted).

McNeal and Stoddard urge that our Woodrup decision — in
particular,

its

rejection

of

an

“intent”

requirement

and

reference to the “reasonable teller” — means that bank robbery
can be committed by recklessly engaging in intimidation.

A fair

reading of Woodrup does not compel that interpretation.

First,

Woodrup

presented

the

issue

of

whether

bank

robbery

intimidation requires a specific intent to intimidate.
Woodrup

knew

his

conduct

was

intimidating,

in

by

Plainly,

light

of

his

admission to the FBI after his arrest that he was glad that the
teller did not suffer a heart attack.

Thus, we had no occasion

to consider whether bank robbery requires general intent (i.e.,
knowledge) with respect to intimidation.

And, second, Woodrup’s

definition of intimidation by reference to a reasonable person
says

nothing

about

whether

the

conduct fits that definition.
32

defendant

must

know

that

his

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In 2000, however, the Supreme Court ruled in United States
v. Carter that bank robbery under § 2113(a) requires “proof of
general intent — that is, that the defendant possessed knowledge
with respect to the actus reus of the crime (here, the taking of
property of another by force and violence or intimidation).”
See 530 U.S. 255, 268 (2000).

Put differently, the prosecution

must show that the defendant knew “the facts that ma[de] his
conduct fit the definition of the offense.”
v. Elonis, 135 S. Ct. 2001, 2009 (2015).
conviction

of

bank

robbery

“by

See United States
Thus, to secure a

intimidation,”

the

government

must prove not only that the accused knowingly took property,
but

also

that

intimidating.

he

knew

that

his

actions

were

objectively

Bank robbery under § 2113(a) therefore satisfies

the criterion we articulated in Garcia in 2006 that, to qualify
as a crime of violence, an offense must require either specific
intent or knowledge with respect to the use, threatened use, or
attempted use of physical force.
c.
In our Torres-Miguel decision in 2012, we further examined
what it means for a crime to have as an element the “use” of
physical force.

We concluded that a California statute, which

prohibited willfully threatening to commit a crime that would
result in death or great bodily injury, failed to qualify as a
crime of violence under Guidelines section 2L1.2.
33

See Torres-

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Miguel, 701 F.3d at 166.
between

using

physical

Pg: 34 of 36

Our ruling rested on the distinction

force

and

causing

bodily

injury.

We

reasoned that “a crime may result in death or serious injury
without involving use of physical force.”

Id. at 168.

Invoking

an example offered by the Fifth Circuit in addressing the same
question, we observed that threatening to poison someone could
contravene § 422(a) without involving the use or threatened use
of force.

Id. at 168-69. 10

Relying on the distinction we drew in Torres-Miguel between
using

physical

Stoddard

force

contend

that

and

causing

bodily

“intimidation,”

as

injury,
we

McNeal

defined

it

and
in

Woodrup — words or conduct from which “an ordinary person . . .
reasonably could infer a threat of bodily harm,” see 86 F.3d at
363 — is not the same as a threat to use physical force.

McNeal

and Stoddard suggest that a person can commit bank robbery by
means other than the use or threatened use of violent physical

10

The government suggests that the Supreme Court’s 2014
decision in United States v. Castleman, 134 S. Ct. 1405 (2014),
has abrogated the distinction that we recognized in TorresMiguel between the use of force and the causation of injury.
That strikes us as a dubious proposition.
Writing for the
Castleman majority, Justice Sotomayor expressly reserved the
question of whether causation of bodily injury “necessarily
entails violent force.” See 134 S. Ct. at 1413; see also id. at
1414 (emphasizing that Court was not deciding question of
whether or not causation of bodily injury “necessitate[s]
violent force, under Johnson’s definition of that phrase”).

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force, such as “by threatening to poison or expose the teller to
a hazardous gas.”
We

decline

See Supp. Reply Br. of Appellants 9.
to

read

Woodrup

as

conclusively

interpreting

“intimidation” to encompass threats to cause bodily injury other
than by violent physical force.

Plainly, the threat that the

teller reasonably perceived from Woodrup’s actions was a threat
of

bodily

harm

caused

by

something like poisoning.
69.

The

distinction

violent

physical

force

—

not

by

See Torres-Miguel, 701 F.3d at 168-

we

drew

in

Torres-Miguel

between

using

force and causing injury was thus irrelevant to our decision in
Woodrup.
Furthermore, the Woodrup panel had no reason to dwell on
whether to define “intimidation” in terms of fear of injury or
in terms of a threatened use of force.

That distinction is

irrelevant in the vast majority of bank robbery cases, as it
will

be

the

poison.

rare

Indeed,

bank
McNeal

robber
and

who

commits

Stoddard

have

that
not

offense

with

identified

a

single bank robbery prosecution where the victim feared bodily
harm

from

something

other

than

violent

physical

force.

We

therefore decline to read Woodrup to mean that a bank robbery
victim is “intimidat[ed]” within the meaning of § 2113(a) when
she

reasonably

fears

bodily

violent physical force.

harm

from

something

other

than

Because intimidation entails a threat

to use violent physical force, and not merely a threat to cause
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bodily injury, Torres-Miguel does not alter our conclusion that
§ 2113(a)

bank

robbery

is

a

crime

of

violence

under

the

§ 924(c)(3) force clause.
B.
In sum, we are satisfied that bank robbery under 18 U.S.C.
§ 2113(a) is a “crime of violence” within the meaning of the
force clause of 18 U.S.C. § 924(c)(3), because it “has as an
element the use, attempted use, or threatened use of physical
force”

—

specifically,

the

taking

or

attempted

taking

property “by force and violence, or by intimidation.”

of

Because

bank robbery is a lesser-included offense of § 2113(d) armed
bank robbery, armed bank robbery is also a crime of violence
under

the

force

clause.

McNeal

and

Stoddard’s

challenge

to

their brandishing convictions therefore fails at the first step
of plain error review, in that the trial court did not err in
concluding

that

armed

bank

robbery

qualifies

as

a

crime

of

violence.

V.
Pursuant

to

the

foregoing,

we

reject

each

of

the

contentions of error and affirm the judgments.
AFFIRMED

36