United States v. Bellamy ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4662
CLAUDE WENDELL BELLAMY,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4663
JAMES LARRY BELLAMY,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4664
ALVIN GLENN BELLAMY,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-99-49-F)
Argued: October 30, 2001
Decided: January 22, 2002
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
2 UNITED STATES v. BELLAMY
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Wayne Buchanan Eads, Raleigh, North Carolina, for
Appellant Larry Bellamy; Terry F. Rose, Smithfield, North Carolina,
for Appellant Claude Bellamy; Joseph Michael McGuinness, THE
MCGUINNESS LAW FIRM, Elizabethtown, North Carolina, for
Appellant Alvin Bellamy. John Samuel Bowler, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:
John Stuart Bruce, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Carrie Clodfelter, Third-Year Law Student,
Nancy Herrera, Third-Year Law Student, Jennifer Lindow, Third-
Year Law Student, Erin Norris, Third-Year Law Student, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Three brothers, Claude, Larry, and Alvin Bellamy, were convicted
by a jury of conspiracy to commit bank robbery, armed bank robbery,
and related gun violations, all arising from a string of nine bank rob-
beries. On appeal the Bellamys raise a number of issues, including
ones relating to sufficiency of the evidence, denied motions for sever-
ance, identification testimony, the admission of certain physical evi-
dence, and sentencing. Finding no reversible error, we affirm.
I.
A.
The evidence developed and introduced by the government
included the following. From 1991 to 1998 the Bellamy brothers
UNITED STATES v. BELLAMY 3
robbed nine banks in North Carolina and South Carolina. (Ironically,
two of the Bellamys were connected to law enforcement: Larry was
a Lieutenant in the Myrtle Beach, South Carolina, Police Department,
and Claude had worked as an officer in several police departments.)
The trail of evidence from the last bank robbery — the one on Janu-
ary 2, 1998, at Branch Banking & Trust (BB&T) in Calabash, North
Carolina — led police to the Bellamy brothers. On that day, Henry
Anderson, a bank customer, pulled up to the drive-thru window and
noticed a robber, masked and armed, inside the bank. Anderson left
the bank property immediately and parked at an adjoining business,
thinking that he might be able to ascertain the getaway route. Ander-
son then noticed, and became suspicious about, a small pickup that
was parked so that its occupant had a view of the bank’s parking lot.
He wrote down the license plate number of the pickup. Then, he saw
two masked men leave the bank and get into a red Chevrolet Blazer.
The Blazer and the pickup sped off "nose to tail," and Anderson fol-
lowed them long enough to verify the license plate number of the
pickup. Anderson gave the number to the police, who located the
pickup at Alvin’s house later that day. Another man, Glen Westraad,
who was sitting in a parked vehicle in the bank’s parking lot right
before the robbery, linked the red Blazer and the pickup and identified
Larry Bellamy. As Westraad sat in the parking lot, a red Blazer pulled
in beside him, and he and the driver looked directly into each other’s
faces. Westraad also noticed that the driver was wearing a black and
white checkered jacket. The Blazer left the parking lot and circled the
bank three times; the Blazer stopped twice so that its occupants could
speak with the driver of a pickup. Westraad identified Larry as the
driver of the red Blazer who wore the checkered coat. A forensic
expert concluded that the checkered coat found in Claude’s home and
the checkered coat worn by one of the robbers caught on the bank’s
surveillance film were one and the same. A set of GM keys were
found at Claude’s Little River, South Carolina, home, and the keys fit
a red Blazer parked in the garage of his second home in Aberdeen,
North Carolina.
Using the January 2, 1998, robbery as a starting point, the FBI was
able to link the Bellamys to nine bank robberies in all. The FBI made
the links by identifying distinct characteristics that were common in
more than one of the robberies. These common characteristics
included the following. First, bank surveillance photographs showed
4 UNITED STATES v. BELLAMY
that the smaller of two inside robbers wore the same off-brand sport
shoes with distinctive markings in three of the first four robberies.
The photographs showed that the smaller robber (who turned out to
be Larry) controlled the floor area of the bank while the large, over-
weight robber (who turned out to be Claude) went behind the counter.
Second, the smaller robber wore a distinctive western-style ski jacket
in four of the robberies. Third, "Members Only"-style jackets were
worn in three consecutive robberies. In the first of these robberies, the
smaller robber wore one of these jackets; in the second robbery, both
robbers wore one; and in the third robbery, the large robber wore one.
Two of these jackets were found in Larry’s home, and one was found
at Claude’s. Fourth, three bank tellers who were robbed twice said
that on both occasions they were robbed by the same men. Fifth, in
two of the robberies, vehicles owned by the Bellamys were used.
Claude’s Chevrolet Camaro was used in one, and Claude’s Blazer and
Alvin’s pickup were used in another. (In several of the robberies,
however, stolen vehicles or license tags were used.) Sixth, a large
green draw-string bag was used to gather the cash in four of the rob-
beries. Seventh, the large robber used a holster in two of the rob-
beries, and one surveillance photograph showed a "tilt-forward"
holster. A black holster, of tilt-forward design, was recovered from
Claude’s home.
The surveillance system in one of the robbed banks used still pho-
tographs on 35 mm film, resulting in higher quality images than those
captured on videotape. The quality of that film captured an overly
large eye opening in the large robber’s ski mask, revealing his skin,
his browline, and the line of his nose. This allowed the government
to take a current photograph of Claude and make a side-by-side com-
parison with the surveillance photograph. A similar comparison was
also made using a surveillance photograph of the smaller robber and
a separate photograph of Larry. These comparison photographs were
set side-by-side and shown to the jury.
An officer who had worked closely with Larry in the Myrtle Beach
Police Department reviewed the surveillance photographs and said,
"I’m confident that those pictures show that Larry Bellamy was
involved with the robberies." A second fellow officer was "about 99
percent sure" that Larry was the smaller robber in the photographs,
and a third officer was "at least 90 percent" sure.
UNITED STATES v. BELLAMY 5
Finally, there was further evidence against Alvin. A witness unex-
pectedly identified Alvin at trial as the robber she had seen coming
out of Davis National Bank in Myrtle Beach, South Carolina, on April
24, 1992. In addition, statements Alvin made to an FBI agent the
night of the January 2, 1998, BB&T robbery were incriminating
because of the way his story shifted in response to information pro-
vided by the agent. Alvin began with the assertion that, after going
out for coffee early in the morning, he had been home all day. His
story changed each time he was confronted with statements by his
brothers or with other evidence. Eventually, Alvin admitted that his
pickup had been at the BB&T bank site that day, but he said he had
simply pulled off the road there to retrieve insurance papers that had
fallen on the floorboard. Last, on January 2, 1998, Alvin was carrying
$117 in pocket money, all in five and one dollar bills. Earlier, in the
June 27, 1996, robbery of NationsBank in Calabash, North Carolina,
at least $12,000 in bundles of fives and ones had been stolen.
B.
A five-count federal indictment handed down on July 20, 1999,
charged all three Bellamys with conspiracy to commit bank robbery,
in violation of 18 U.S.C. § 371 (Count One); charged Claude and
Larry with the 1996 armed robbery of a bank in Calabash, North Car-
olina, in violation of 18 U.S.C. §§ 2113 and 2 (Count Two); charged
Claude and Larry with the use of handguns during a crime of vio-
lence, that is, the robbery charged in Count Two, in violation of 18
U.S.C. §§ 924(c) and 2 (Count Three); charged all three Bellamys
with the 1998 armed robbery of another bank in Calabash, in violation
of 18 U.S.C. §§ 2113 and 2 (Count Four); and charged all three Bella-
mys with the use of handguns during a crime of violence, that is, the
robbery charged in Count Four, in violation of 18 U.S.C. §§ 924(c)
and 2 (Count Five). After a two-week trial, during which the govern-
ment called about 70 witnesses, the jury found all three defendants
guilty as charged. Claude and Larry were each sentenced to 593
months in prison, and each was ordered to pay $359,582 in restitution.
Alvin got a prison sentence of 123 months and a $7,000 fine. All
three Bellamys appeal.
II.
Claude and Alvin Bellamy both argue that there was insufficient
evidence to support their convictions. We must sustain the jury’s ver-
6 UNITED STATES v. BELLAMY
dict "if there is substantial evidence, taking the view most favorable
to the Government, to support it." Glasser v. United States, 315 U.S.
60, 80 (1942). The evidence, including that recounted in part I.A.,
supra, is sufficient to support the guilty verdicts returned by the jury
against Claude and Alvin.
III.
Claude and Alvin Bellamy argue that the district court abused its
discretion in denying their individual motions to sever. Alvin in par-
ticular argues that the disproportionate amount of evidence against his
brothers led to prejudicial spillover against him. The trial court denied
the motions to sever because the parties anticipated 140 witnesses
over two weeks and "the burden on judicial resources and public
funds would be too great [to justify severance] . . . especially in light
of the prophylactic effect of cautionary instructions and effective rep-
resentation."
We conclude, for several reasons, that the district court did not
abuse its discretion in denying Claude’s and Alvin’s motions to sever.
First, judicial economy is an appropriate consideration in deciding to
deny severance. United States v. Reavis, 48 F.3d 763, 767 (4th Cir.
1995). Second, "[i]t is well established that ‘[b]arring special circum-
stances, individuals indicted together should be tried together.’"
United States v. Grimmond, 137 F.3d 823, 828 (4th Cir. 1995) (quot-
ing United States v. Brugman, 655 F.2d 540, 542 (4th Cir. 1981)).
Third, neither Claude nor Alvin has demonstrated actual prejudice
resulting from the joint trial. Reavis, 48 F.3d at 767 (party moving for
severance must establish that actual prejudice would result from a
joint trial). The district court carefully instructed the jury to consider
separately the evidence relating to each of the three defendants:
As you know there are three defendants being tried in this
case. I instruct that you must be careful to give separate con-
sideration to the evidence supporting or refuting each charge
against each individual defendant. In considering each
defendant separately, do not think of the defendants as a
group, or assume that if one defendant is found guilty of a
particular charge, that another must also be guilty. Instead,
you may return a verdict of guilty on any charge only if the
UNITED STATES v. BELLAMY 7
evidence proves all the elements of that particular charge
against that individual defendant beyond a reasonable doubt.
The evidence, when considered separately as the district court
instructed, was ample to convict both Claude and Alvin. See part II,
supra. Finally, Alvin’s argument that there was disproportionally
more evidence of illegal activity against his brothers did not require
a severance. As we have explained, "A defendant is not entitled to
severance merely because separate trials would more likely result in
acquittal, or because the evidence against one defendant is not as
strong as that against the other." United States v. Strickland, 245 F.3d
368, 384 (4th Cir. 2001) (quoting United States v. Akinkoye, 185 F.3d
192, 197 (4th Cir. 1999)). In sum, it was proper to try the three Bella-
mys together.
IV.
Alvin Bellamy argues that the district court erred in denying his
motion to strike one witness’s unexpected in-court identification of
him. Witness Connie Parish surprised both the prosecution and the
defense when she identified Alvin, rather than Claude, as the robber
she had seen coming out of the bank and getting into a truck during
the April 24, 1992, robbery at Davis National Bank in Myrtle Beach,
South Carolina. Count One, the conspiracy count, listed the April 24,
1992, robbery as one of the overt acts, but it specified Claude and
Larry as the inside robbers.
Alvin first argues that this unexpected identification resulted in an
impermissible variance between the indictment and the proof. See
United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996) ("When the
evidence at trial differs from what is alleged in the indictment, then
a variance has occurred."). Alvin was charged with a conspiracy that
was allegedly carried out by overt acts involving Larry and Claude as
the inside robbers. Alvin was not named as an inside robber in any
of the nine overt acts of robbery alleged, yet Parish pegged him as an
inside robber in the April 24, 1992, job. A variance "violates a defen-
dant’s rights and requires reversal only if it prejudices him." Id. Preju-
dice occurs if the variance "surpris[es the defendant] at trial and
hinder[s] the preparation of his defense." Id. In other words, "the
focus is . . . upon whether the indictment provided the defendant with
8 UNITED STATES v. BELLAMY
adequate notice to defend the charges against him." United States v.
Redd, 161 F.3d 793, 795 (4th Cir. 1998). Any variance here was not
prejudicial because Alvin was on notice that he was considered to be
one of the three actors who carried out the conspiracy. The indictment
alleged that "the conspiracy was carried out by the repeated use of
facial masks, gloves, handguns, and a second motor vehicle employed
in either a look-out or escape capacity. . . . In each robbery, two of
the defendants entered the banks . . . ." (Emphasis added.) While
Alvin was not listed as one of the two who entered the bank on April
24, 1992, he was on notice that the government considered him to be
the lookout man. In fact, his lawyer stated that the government "told
me so many times that we were in a lookout position in this case."
Because Alvin knew that he was charged as a co-conspirator and that
the government would try to prove he was on the robbery scene on
April 24, 1992, as a lookout, he cannot show prejudice. In any case,
a defendant’s particular role in the conspiracy is not an essential ele-
ment of the conspiracy crime, and "notice-related concerns are not
implicated when the alleged variance does not affect an essential ele-
ment of the offense." Redd, 161 F.3d at 796. Finally, Alvin’s defense
was not hindered to a prejudicial degree because his lawyer had a
chance to cross-examine Parish thoroughly, and Alvin has not sug-
gested how his lawyer might have been more effective with advance
notice of what Parish would say.
Alvin also argues that Parish’s testimony should have been
excluded because it was unreliable. The reliability of eyewitness iden-
tification testimony becomes an issue if the defendant proves that the
identification procedure was "impermissibly suggestive." Holdren v.
Legursky, 16 F.3d 57, 61 (4th Cir. 1994). Although unsolicited, Par-
ish’s identification was arguably the result of an "impermissibly sug-
gestive" procedure. Parish identified Alvin for the first time when he
was sitting in court in a defendant’s chair, which meant that the iden-
tification was made without the protection of a non-suggestive police
line-up. An identification made for the first time in court can be inher-
ently suggestive. See, e.g., United States v. Archibald, 734 F.2d 938,
942-43 (2d Cir. 1984) ("The in-court identification procedure utilized
here was so clearly suggestive as to be impermissible, however tradi-
tional it may be. . . . Indeed, the suggestiveness of the situation was
clearly indicated at trial. One of the three witnesses who identified
[defendant] stated on cross-examination that she ‘had the feeling that
UNITED STATES v. BELLAMY 9
he would be sitting next to’ the defense lawyer in the courtroom. It
was an obviously suggestive situation."); United States v. Williams,
436 F.2d 1166, 1168 (9th Cir. 1970) ("When asked to point to the
robber, an identification witness — particularly if he has some famil-
iarity with courtroom procedure — is quite likely to look immediately
at the counsel table, where the defendant is conspicuously seated in
relative isolation. Thus the usual physical setting of a trial may itself
provide a suggestive setting for an eyewitness identification.");
United States v. Sebetich, 776 F.2d 412, 420 (7th Cir. 1985) (internal
quotations and citations omitted) ("[A]n in-court identification during
which the defendant is seated next to defense counsel is obviously
suggestive to witnesses. Therefore, in exercising its discretion the
court must ensure that an in-court identification is not merely a show-
up.").
The Supreme Court has listed five factors for courts to consider in
evaluating the reliability of identification testimony: (1) the witness’s
opportunity to see the defendant at the time of the crime; (2) the wit-
ness’s degree of attention; (3) the accuracy of the witness’s descrip-
tion; (4) the witness’s level of certainty; and (5) the time between the
crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114-
15 (1977). While Parish identified Alvin for the first time almost eight
years after the robbery, she testified that she saw the robber face-to-
face at the time of the crime and she "thought that when this happened
I would never ever forget the face." Furthermore, as already men-
tioned, Alvin’s lawyer had ample opportunity to cross-examine Parish
about her identification. All in all, we conclude that the identification
was reliable.
V.
Larry Bellamy argues that the district court erred in denying his
motion to suppress evidence of his identification by Glen Westraad,
who identified Larry in a pretrial photographic array and later at trial.
Specifically, Westraad identified Larry as the driver of a red Blazer
parked at the bank immediately before the January 2, 1998, robbery.
To successfully challenge an identification, a defendant "must prove
that the identification procedure was impermissibly suggestive. Once
this threshold is crossed, the court then must determine whether the
identification was nevertheless reliable under the totality of the cir-
10 UNITED STATES v. BELLAMY
cumstances." Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994)
(citations omitted).
In arguing that the photo array was impermissibly suggestive,
Larry relies on the testimony of his expert, Dr. Gary Long, a social
psychologist. During the suppression hearing Dr. Long opined that
the photo array was suggestive because only one of five photos rea-
sonably resembled Larry, the suspect, who was in the sixth photo.
Four of the photos were of men who had different facial hair, differ-
ent hairstyles, or wore eyeglasses. Dr. Long’s opinion, however, was
not based on all of the facts because Westraad was presented with
twelve rather than six photographs. Dr. Long did not analyze six of
the photographs. Thus, Larry did not prove that the photo array was
impermissibly suggestive. In any case, when considered in light of the
five Manson factors listed in part IV, supra, Westraad’s identification
of Larry was reliable. Westraad had seen Larry in good lighting, from
about one car width away, and under non-stressful conditions. Also,
he had paid enough attention to remember that Larry was wearing a
black and white checkered jacket. Finally, Westraad picked out Larry
almost immediately in the photo array, saying he was 95 percent cer-
tain about his identification. In these circumstances, the district court
did not err in denying Larry’s motion to suppress his identification by
Westraad.
VI.
Larry Bellamy contends that the district court abused its discretion
by excluding his eyewitness identification expert, Dr. Gary Long, as
a trial witness. Dr. Long would have testified that Glen Westraad’s
identification of Larry was unreliable due to the impermissibly sug-
gestive photographic array discussed above. The district court
excluded Dr. Long’s testimony for two reasons: the testimony would
be based on a mistaken assumption and it "would not be helpful to
the jury in deciding any issues before it at trial."
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993), requires that expert testimony be both reliable and helpful to
the jury. The reliability of Dr. Long’s testimony could not be assured
because it would have been based in part on a mistaken assumption.
Dr. Long believed that Westraad made the identification after viewing
UNITED STATES v. BELLAMY 11
six photographs, when in fact he had looked at twelve. In any case,
except for narrow circumstances, expert testimony on the reliability
of witness identification "almost by definition, can be of no assistance
to a jury. . . . [J]urors using common sense and their faculties of
observation can judge the credibility of an eyewitness identification,
especially since deficiencies or inconsistencies in an eyewitness’s tes-
timony can be brought out with skillful cross-examination." United
States v. Harris, 995 F.2d 532, 534-35 (4th Cir. 1993). Larry argues
that this case falls under the "narrow circumstances" exception that
allows for expert testimony because there was a time lag of over two
years between the time of the robbery and the time of the in-court
identification. This argument fails because only fifteen days passed
between the robbery and the photo array identification Dr. Long
would have criticized. Thus, Harris’s general rule applies, and the
district court properly excluded the expert’s testimony about
Westraad’s eyewitness identification of Larry.
VII.
The three Bellamy brothers contend that a Brady violation occurred
because the government failed to provide them with copies of their
voice exemplars that might have been exculpatory. See Brady v.
Maryland, 373 U.S. 83, 87 (1963) (holding that "the suppression by
the prosecution of evidence favorable to an accused upon request vio-
lates due process"). The voice exemplars were tape recordings of the
Bellamy brothers’ voices made by the government for identification
purposes. The Bellamys do not explain how their own voice exem-
plars would have had any exculpatory value. In any event, the govern-
ment’s possession of the exemplars did not trigger Brady obligations.
Brady covers evidence not available to a defendant, and here the Bel-
lamys could have made exemplars of their own voices. See, e.g.,
United States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990) (when the
exculpatory information is available to the defendant, the defendant
is not entitled to the benefit of the Brady rule); Stockton v. Murray,
41 F.3d 920, 927 (4th Cir. 1994) (Brady does not compel the disclo-
sure of evidence available to the defendant from other sources). There
was no Brady violation.
VIII.
Claude Bellamy argues that the seizure of a set of GM keys from
his home during a consensual search was improper because the evi-
12 UNITED STATES v. BELLAMY
dentiary value of the keys was not immediately apparent as required
under the plain view doctrine. As it turned out, the keys fit a red
Chevrolet Blazer found later in the garage of another house owned by
Claude. (Of course, a red Chevrolet Blazer was used in the robbery
committed earlier on the day the keys were found.) When he made his
pretrial motion to suppress, Claude argued that the keys were seized
during a search conducted without consent or a warrant. The district
court concluded, and Claude no longer disputes, that he "freely agreed
to permit the officers to search his house, stating that they could look
anywhere they wanted to look." A motion to suppress must be made
before trial, and the failure to include a particular ground for relief
constitutes a waiver of that ground. Fed. R. Crim. P. 12(b)(3) & (f);
United States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). The
government contends that because Claude failed to argue specifically
in his pretrial motion that the evidentiary value of the keys was not
immediately apparent to the officers, the argument is waived. We
consider Claude’s argument nevertheless, and we conclude that the
seizure of the keys was proper under the plain view doctrine. That
"doctrine authorizes warrantless seizures of incriminating evidence
when (1) the officer is lawfully in a place from which the object may
be plainly viewed; (2) the officer has a lawful right of access to the
object itself; and (3) the object’s incriminating character is immedi-
ately apparent." United States v. Jackson, 131 F.3d 1105, 1109 (4th
Cir. 1997). The GM keys were found in plain view during a consen-
sual search. An FBI agent conducting the search knew that a late-
model Chevrolet Blazer had been used in the bank robbery earlier that
day, and the keys appeared to belong to a late-model GM vehicle.
After the agent questioned Claude about the keys, their incriminating
character became even more apparent. See United States v. Cotton,
261 F.3d 397, 410 (4th Cir. 2001) (noting that questioning during
lawful encounter assisted officers in realizing that incriminating char-
acter of an item was immediately apparent), cert. granted on other
grounds, 70 U.S.L.W. 3348 (U.S. Jan. 4, 2002) (No. 01-687). When
the agent asked Claude about the keys, he said they were not his.
When Claude was asked why he kept them, he responded that he had
a key collection. When Claude was asked to show the agent his key
collection, Claude produced one key. With this information, all of the
elements of the plain view doctrine were satisfied, and the seizure of
the keys was appropriate.
UNITED STATES v. BELLAMY 13
IX.
Claude Bellamy’s sentence was enhanced, under U.S.S.G.
§ 2B3.1(b)(3)(A), by two levels for bodily injury he inflicted on bank
teller Sandra Campbell during the February 14, 1991, robbery of First
Atlantic Bank in Little River, South Carolina. Claude maintains that
Campbell’s injuries were not serious enough to count as bodily injury
under the Guidelines.
"‘Bodily injury’ means any significant injury; e.g., an injury that
is painful and obvious, or is of a type for which medical attention
ordinarily would be sought." U.S.S.G. § 1B1.1 cmt. n.1(b) (2000).
"[T]o to be ‘significant’ an injury need not interfere completely with
the injured person’s life but cannot be wholly trivial and, while it
need not last for months or years, must last for some meaningful
period. . . . On the other hand, those injuries that are either momen-
tary, with no lasting effects, or wholly trivial are not ‘significant.’"
United States v. Lancaster, 6 F.3d 208, 209-10 (4th Cir. 1993). Exam-
ples of "significant" bodily injury are "redness and puffiness in face
and ringing in ear that lasted for hours" and "swelling and pain in
cheek that lasted for one week." Id. at 209.
Campbell, the teller, testified at trial that she was grabbed around
the neck, dragged across the bank lobby, thrown on the floor, and
kicked repeatedly in the foot. The presentence report (PSR) added
that "[d]uring the assault, Campbell struck her face on either a tele-
phone or the defendant’s gun, causing a bruise to her face." Claude
objected to the PSR’s recommended two-level increase, stating that
"there has been no evidence which confirms that Sandra Campbell’s
head was struck or that her head was bruised." Claude, however, did
not offer any information to refute the PSR’s specific findings about
Campbell’s injury. "A mere objection to the finding in a presentence
report is not sufficient. . . . Without an affirmative showing that the
information is inaccurate, the court is free to adopt the findings of the
[PSR] without more specific inquiry or explanation." United States v.
Terry, 916 F.2d 157, 162 (4th Cir. 1990) (quotations and citations
omitted). Because Claude failed to make an affirmative showing of
inaccuracy, the district court was free to adopt the PSR’s findings
concerning Campbell’s bodily injury, and it did so. The court did not
err in concluding that Campbell’s bodily injury met the substantial
14 UNITED STATES v. BELLAMY
injury threshold, and that was sufficient to support the two-level
increase under § 2B3.1(b)(3)(A).
X.
Claude Bellamy argues that the district court erred by not using
U.S.S.G. § 3D1.2(b) to group together into a single group the substan-
tive counts (Counts Two and Four) and the conspiracy count (Count
One). The conspiracy count listed as overt acts nine armed bank rob-
beries that were proved at trial. Counts Two and Four charged, as
independent crimes, the robberies listed in Count One as overt acts 7
and 9.
Guidelines § 3D1.2 allows certain closely related counts to be
grouped. In particular, § 3D1.2(b) allows grouping "[w]hen counts
involve the same victim and two or more acts or transactions con-
nected by a common criminal objective or constituting part of a com-
mon scheme or plan." Application Note 4 says, "[w]hen one count
charges a conspiracy or solicitation, and the other charges a substan-
tive offense that was the sole object of the conspiracy or solicitation,
the counts will be grouped together under subsection (b)." U.S.S.G.
§ 3D1.2, cmt. n.4 (2000). For example, when "[t]he defendant is con-
victed of one count of conspiracy to commit extortion and one count
of extortion for the offense he conspired to commit[,] [t]he counts are
to be grouped together." Id.
Here, however, § 3D1.2(b) does not permit the grouping of Counts
One, Two and Four together into one group. The Guidelines assume
a single victim for grouping under § 3D1.2(b). So even if there is a
common scheme, as Claude contends, multiple counts with different
victims cannot be grouped under the plain language of § 3D1.2(b).
The proper way to group Claude’s convictions is explained in Appli-
cation Note 8 of the commentary to § 3D1.2:
A defendant may be convicted of conspiring to commit sev-
eral substantive offenses and also of committing one or
more of the substantive offenses. In such cases, treat the
conspiracy count as if it were several counts, each charging
conspiracy to commit one of the substantive offenses. . . .
Then apply the ordinary grouping rules . . . . Example: The
UNITED STATES v. BELLAMY 15
defendant is convicted of two counts: conspiring to commit
offenses A, B, and C, and committing offense A. Treat this
as if the defendant were convicted of (1) committing offense
A; (2) conspiracy to commit offense A; (3) conspiracy to
commit offense B; (4) conspiracy to commit offense C.
Count (1) and Count (2) are grouped together under
§ 3D1.2(b).
U.S.S.G. § 3D1.2, cmt. n. 8 (2000). See also U.S.S.G. § 1B1.2(d)
(2000) ("A conviction on a count charging a conspiracy to commit
more than one offense shall be treated as if the defendant had been
convicted on a separate count of conspiracy for each offense that the
defendant conspired to commit.")
Applied to Claude, this means that for grouping purposes his con-
spiracy conviction should be treated as nine separate conspiracy con-
victions, one for each of the nine overt acts of robbery. Consequently,
the district court was correct to end up with nine groups for the con-
spiracy count, one for each of the underlying robberies. The district
court did group to the extent required by U.S.S.G. § 3D1.2(b).
Because the robberies charged as substantive offenses in Counts Two
and Four were the same robberies that formed the bases for overt acts
7 and 9 of the conspiracy count, the district court grouped the sub-
stantive counts with their corresponding overt acts. As no other
grouping was proper, Claude’s grouping argument fails.
XI.
Larry and Claude Bellamy both contest on various grounds their
final offense level of 38 for Counts One, Two, and Four. According
to U.S.S.G. § 3D1.1, there are three steps in arriving at the combined
offense level for a multiple-count conviction. First, the counts must
be grouped. Most of Claude’s complaints are aimed at this step; and,
as we have already concluded (see part X, supra), the district court
properly found at least nine separate groups. Second, the offense level
for each group must be determined. Third, the combined offense level
must be determined by applying the rules specified in § 3D1.4. (It is
undisputed that Counts Three and Five are not taken into account in
this step, according to § 3D1.1(b).).
16 UNITED STATES v. BELLAMY
Section 3D1.4 states that the combined offense level is determined
by starting with the offense level of the group with the highest offense
level. Additional offense levels are added based on the number of
"units" assigned to the remaining groups. Here, Count One had the
highest offense level: 32. Larry’s and Claude’s other groups added up
to nine units. The § 3D1.4 table dictates that for five or more units,
the offense level is to be increased by five, which brings the offense
level to 37 for Larry and Claude.
Larry complains that the district court counted an unindicted rob-
bery as one group, which violated Apprendi v. New Jersey, 530 U.S.
466 (2000). However, even if that robbery is ignored, there is a total
of eight units, more than enough to raise the offense level by five.
This still yields a combined offense level of 37.
Finally, the district court made a one-level upward departure. The
departure is encouraged by the § 3D1.4 commentary, which states,
"[i]nasmuch as the maximum increase provided in the guidelines is 5
levels, departure would be warranted in the unusual case where the
additional offenses resulted in a total of significantly more than 5
units." U.S.S.G. § 3D1.4 cmt. (2000). Larry contends that this upward
departure was impermissibly based on his violation of the oath of
office he took as a police officer. Even assuming that this factor was
not a proper basis for departure, the district court very clearly
grounded its departure on language in the commentary. In its written
judgement, the court said, "The court notes that a maximum of five
units may be counted under § 3D1.4. However, the instant offense
involves nine units. Therefore, as suggested by Commentary to
§ 3D1.4, the court finds it necessary to depart upwardly one level to
offense level 38." Nine, or even eight, units are significantly more
than needed to trigger the maximum increase provided for in § 3D1.4.
Accordingly, the district court did not abuse its discretion in making
the upward departure encouraged by the commentary.
XII.
Larry Bellamy argues that the district court erred in imposing con-
secutive sentences for Counts Three and Five, both § 924(c) viola-
tions, based on one predicate crime, the Count One conspiracy
charge. Larry is wrong. Consecutive § 924(c) sentences may be
UNITED STATES v. BELLAMY 17
imposed based on the same predicate offense. United States v. Camps,
32 F.3d 102 (4th Cir. 1994). In any event, the § 924(c) offenses here
were not based on the same predicate crime. Instead, each § 924(c)
count listed a separate bank robbery offense as its predicate: Count
Three listed Count Two as its predicate offense, and Count Five listed
Count Four.
XIII.
Alvin Bellamy argues that the district court erred in denying his
motion for a new trial. In that motion Alvin contended that the evi-
dence against him was insufficient and that Connie Parish’s identifi-
cation testimony against him was inadmissible. As we have already
held, the evidence was sufficient for the jury to convict Alvin, and
Parish’s identification was properly admitted. Accordingly, the dis-
trict court did not abuse its discretion in denying Alvin’s motion for
a new trial. Finally, there was no cumulative error that deprived Alvin
of a fair trial.
XIV.
For the foregoing reasons, we affirm the convictions and sentences
of Claude Bellamy, Larry Bellamy, and Alvin Bellamy.
AFFIRMED