United States v. Strong ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4682
SAMUEL ALLEN STRONG,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4739
TONY LAMAR WEBB,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-02-51)
Submitted: June 4, 2003
Decided: June 17, 2003
Before NIEMEYER and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. STRONG
COUNSEL
Christopher R. Clifton, GRACE, HOLTON, TISDALE & CLIFTON,
P.A., Winston-Salem, North Carolina; Thomas H. Johnson, Jr.,
GRAY, NEWELL, JOHNSON & BLACKMON, L.L.P., Greensboro,
North Carolina, for Appellants. Anna Mills Wagoner, United States
Attorney, Paul A. Weinman, Assistant United States Attorney,
Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Samuel Allen Strong and Tony Lamar Webb were convicted by
jury of bank robbery, 18 U.S.C. § 2113(a) (2000), bank robbery with
a dangerous weapon, 18 U.S.C. § 2113(d) (2000), and carrying and
using a firearm during a bank robbery, 18 U.S.C. § 924(c)(1)(A)(ii)
(2000). Appellants raise five issues on appeal. Because we find no
error, we affirm their convictions and sentences.
First, Strong and Webb assert that the district court erred in deny-
ing their Fed. R. Crim. P. 29 motion because testimony offered by
Edward Terrell McLaughlin and Aminah Abdallah, the co-defendants
who were Government witnesses, was inherently unreliable. Strong
and Webb further contend that McLaughlin was a self-professed mul-
tiple felon and drug addict and that Abdallah changed her story a
number of times during the course of the investigation of the robbery.
A jury’s verdict must be upheld on appeal if there is substantial
evidence in the record to support it. Glasser v. United States, 315 U.S.
60, 80 (1942). In evaluating the sufficiency of the evidence, we do not
review the credibility of witnesses and assume the jury resolved all
contradictions in the testimony for the government. United States v.
UNITED STATES v. STRONG 3
Sun, 278 F.3d 302, 313 (4th Cir. 2002). The uncorroborated testimony
of one witness or an accomplice may be sufficient to sustain a convic-
tion. United States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997).
The testimony of the co-defendants and the evidence offered by other
witnesses, was sufficient for the jury to find Strong and Webb guilty
of the robbery. See United States v. Rose, 12 F.3d 1414, 1425 (7th
Cir. 1994) (noting that in a criminal case, one "‘cannot expect that
witnesses will possess the credibility of people of the cloth, such as
rabbis, priests, and nuns; that is why one of the jury’s roles is to
decide the credibility of witnesses’") (quoting United States v. Rove-
tuso, 768 F.2d 809, 818 (7th Cir. 1985)). We find the district court
properly denied Appellants’ Rule 29 motion.
Second, Strong and Webb assert that the district court erred in
admitting evidence of bad acts. They claim that the evidence was
irrelevant under Fed. R. Evid. 401 and highly prejudicial under Fed.
R. Evid. 403. Because Strong and Webb did not object at trial, our
review is for plain error. See United States v. Olano, 507 U.S. 725,
731-32 (1993). When testimony concerns "acts intrinsic to the crime
charged, and is not admitted solely to demonstrate bad character, it is
admissible." United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996).
Acts are intrinsic when they are "inextricably intertwined or both acts
are part of a single criminal episode or the other acts were necessary
preliminaries to the crime charged." Id. (citation omitted). The evi-
dence challenged on appeal is testimonial evidence regarding acts
intrinsic to the charged crimes. We therefore find no plain error in the
admission of such evidence.
Third, Strong and Webb contend that brandishment of the gun by
McLaughlin, the co-defendant who entered the bank during the rob-
bery, was not foreseeable to them and the district court erred in
enhancing their sentences for that brandishment. 18 U.S.C.
§ 924(c)(ii); U.S. Sentencing Guidelines Manual § 2K2.4 (2001). The
district court’s application of the sentencing guidelines is reviewed
for clear error as to the court’s factual determinations; legal questions
are subject to de novo review. United States v. Blake, 81 F.3d 498,
503 (4th Cir. 1996). Brandishing is a sentencing factor. See Harris v.
United States, 536 U.S. 545, 556 (2002). The district court noted that
Webb provided McLaughlin with the gun in Strong’s presence and
both Strong and Webb knew McLaughlin carried it into the bank. We
4 UNITED STATES v. STRONG
find no error in the district court’s factual finding that it was reason-
ably foreseeable that McLaughlin would brandish the gun.
Fourth, Webb contends that the district court erred when it failed
to award a downward adjustment for his role in the offense. USSG
§ 3B1.2, comment. (n.5). The district court agreed with Webb’s
assessment of his role as less than Strong’s, but found Webb was
involved in the surveillance of the bank, helped plan the robbery, and
drove the switch car. We find that the district court did not err in con-
cluding Webb was not a minor participant in the robbery.
Finally, Strong asserts that the district court erred by enhancing his
offense level two levels for obstruction of justice, USSG § 3C1.1. The
district court found Strong attempted to suborn perjury in a letter to
McLaughlin. On appeal, Strong asserts he cannot be guilty of attempt-
ing to suborn perjury if McLaughlin did not commit perjury, and,
because the letter was a reply to a letter written to him by
McLaughlin, it was a form of entrapment. Both assertions are merit-
less. We find the district court properly enhanced Strong’s offense
level by two offense levels for attempting to suborn perjury. See
United States v. Johnson, 316 F.3d 818, 819-20 (8th Cir. 2003).
Accordingly, we affirm Strong’s and Webb’s convictions and sen-
tences. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED