United States v. Berry , 251 F. App'x 183 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4158
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CORDELL BERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
Senior District Judge. (1:05-cr-00118-FWB; 1:05-cr-00119-FWB)
Submitted: September 21, 2007 Decided: October 18, 2007
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Anthony Mark Brannon, HAIRSTON, LANE & BRANNON, PLLC, Raleigh,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, L. Patrick Auld, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cordell Berry was convicted by a jury of two counts of
bank robbery, two counts of armed bank robbery, and two counts of
brandishing a firearm during the commission of a crime of violence,
in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii); 2113(a), (d) (2000).
Berry was sentenced to a total term of 646 months’ imprisonment.
Finding no error, we affirm.
On appeal, Berry contends the district court erred in
denying his motion to suppress. While Berry acknowledges he
received Miranda* warnings and initially agreed to communicate with
law enforcement officers, he asserts he subsequently requested
counsel. Because officers continued to question him after this
alleged request, Berry argues the statements should have been
suppressed as violative of Edwards v. Arizona, 451 U.S. 477, 484-85
(1981).
We review the factual findings underlying the district
court’s denial of a motion to suppress for clear error and its
legal conclusions de novo. United States v. Johnson, 400 F.3d 187,
193 (4th Cir. 2005). The evidence is construed in the light most
favorable to the prevailing party below. United States v. Seidman,
156 F.3d 542, 547 (4th Cir. 1998).
Both Berry and law enforcement officers were questioned
regarding the alleged request for counsel during the suppression
*
Miranda v. Arizona, 384 U.S. 436 (1966).
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hearing. After hearing the testimony presented, observing the
witnesses’ demeanor, and weighing the witnesses’ interest in the
case, the district court concluded that Berry’s testimony was
incredible and that no request had been made for counsel. As it is
not this court’s province to second-guess the credibility
determinations of the factfinder, see United States v. Saunders,
886 F.2d 56, 60 (4th Cir. 1989), we conclude the district court did
not err in denying Berry’s motion to suppress.
Berry also contends the evidence was insufficient to
support his convictions. To determine if there was sufficient
evidence to support a conviction, we consider whether, taking the
evidence in the light most favorable to the government, substantial
evidence supports the jury’s verdict. Glasser v. United States,
315 U.S. 60, 80 (1942). We review both direct and circumstantial
evidence, and permit the “government the benefit of all reasonable
inferences from the facts proven to those sought to be
established.” United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982).
The evidence presented at trial established that an
individual, disguised in a hooded sweatshirt, mask, sunglasses, and
gloves, robbed at gunpoint two federally insured banks in
Salisbury, North Carolina. Berry admitted to law enforcement
officers that he was the individual responsible for the robberies.
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He aided officers in the preparation of written confessions and
signed them.
Berry, who was unemployed, told one of his acquaintances
prior to the first robbery that he intended to rob a bank. He
likewise informed another acquaintance that “something big was
going to go down” and that he (Berry) “was going to come into a lot
of money.” One of Berry’s friends testified that Berry gave him
approximately $400--an amount uncommon for Berry to possess--on the
afternoon of the first robbery.
After the robberies, Berry wrote a letter to one witness
explaining his rationale for choosing to rob a bank rather than a
convenience store or private home. Berry indicated that he had
already confessed and was going to take “100 percent responsibility
for what [he] did.” Later on, Berry wrote another letter to two of
his acquaintances creating a “script” for them to follow at trial.
Berry sought help from these individuals to establish his alibi and
“cover all [his] angles.”
The Government additionally presented the testimony of
several individuals who identified the clothing worn and discarded
by the robber as similar to that owned by Berry. While DNA tests
did not conclusively establish that Berry had worn the clothing, he
was not excluded as a contributor. Berry was seen in the vicinity
of the route taken by the suspect after the second robbery. He was
likewise seen later on that same day with “purple stuff” on his
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hands, shirt, and pants. It was confirmed by one of the bank
tellers that a dye pack had been placed in the money given to the
robber during the second robbery. Thus, construing the facts in
the light most favorable to the Government, we conclude there was
overwhelming evidence to support the jury’s verdict.
Accordingly, we affirm the judgment of the district
court. 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
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