United States v. Willard Crews ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4292
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLARD MIAL CREWS,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00050-WO-1)
Submitted: July 28, 2011 Decided: August 17, 2011
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. David James, SMITH, JAMES, ROWLETT & COHEN, LLP, Greensboro,
North Carolina, for Appellant. Ripley Rand, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willard Mial Crews appeals his conviction and sentence
after a jury convicted him of bank robbery in violation of 18
U.S.C. § 2113(a). On appeal, Crews argues that the district
court erred in denying his motion for judgment of acquittal,
admitting evidence, instructing the jury, and denying his
request to make a pro se closing argument. Crews also contends
that the indictment should be dismissed for violation of the
Speedy Trial Act. We affirm.
Crews first contends that there was insufficient
evidence to show that his actions constituted intimidation and
that the bank was insured by the Federal Deposit Insurance
Corporation (FDIC). Based on these deficiencies, Crews argues
that the district court erred in denying his motion for judgment
of acquittal. We review a district court’s denial of a motion
for judgment of acquittal de novo. United States v. Hickman,
626 F.3d 756, 762 (4th Cir. 2010). We are “obliged” to sustain
a guilty verdict that, viewing the evidence in the light most
favorable to the government, is supported by substantial
evidence. United States v. Osborne, 514 F.3d 377, 385 (4th Cir.
2008). Substantial evidence is “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.” Id. (internal citation omitted).
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A defendant bringing a sufficiency challenge bears a
“heavy burden.” United States v. Hoyte, 51 F.3d 1239, 1245 (4th
Cir. 1995). In evaluating the sufficiency of the evidence, we
do not review the credibility of the witnesses and assume the
jury resolved all contradictions in the testimony in favor of
the government. United States v. Foster, 507 F.3d 233, 245 (4th
Cir. 2007). Reversal for insufficient evidence is reserved for
the rare case where the government’s failure is clear. United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).
To constitute bank robbery under § 2113(a), the
government must prove that the money was taken “by force and
violence, or by intimidation.” 18 U.S.C. § 2113(a); United
States v. Ketchum, 550 F.3d 363, 365 n.1 (4th Cir. 2008). The
“intimidation element 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.” United States v.
Woodrup, 86 F.3d 359, 364 (4th Cir. 1996) (internal quotation
marks omitted). Further, the government must show that the bank
was insured by the FDIC at the time of robbery. In United
States v. Safley, 408 F.2d 603, 605 (4th Cir. 1969) this court
found that based on testimony by a bank employee that the bank’s
deposits “are” insured, a “jury could draw the reasonable
inference that the bank was insured at the time of the robbery.”
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With these standards in mind, we have reviewed the record and
conclude that the evidence of intimidation and FDIC insurance
was sufficient to support Crews’s conviction.
Crews next contends that the district court erred in
admitting a copy of the bank’s FDIC certificate. We review a
district court’s evidentiary rulings for abuse of discretion and
subject such rulings to harmless error review. United States v.
Johnson, 587 F.3d 625, 637 (4th Cir. 2009). At trial, a bank
employee testified that the bank was insured by the FDIC on the
day of the robbery, and that the document marked as government’s
Exhibit 5 was a copy of the bank’s FDIC certificate. Crews
objected to introduction of the certificate, arguing that a
proper foundation required the testimony of the owner or someone
else in control of the bank. The district court overruled the
objection, finding that the employee was qualified and had
knowledge of the matter; that this was a copy of the certificate
showing the bank was insured by the FDIC; and that anything
further on authentication could be pursued on cross examination.
Crews did not ask any questions on cross examination, and the
district court found the employee’s testimony had authenticated
the certificate.
On appeal, Crews contends that the district court
erred in admitting the FDIC certificate because it did not have
a signature and thus was not self-authenticating under Fed. R.
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Evid. 902(1). Crews argues that there was “not sufficient
testimony to authenticate the document otherwise,” because the
employee did not testify that she was an officer of the bank and
she “did not have the personal knowledge necessary to give this
testimony.” We conclude there was no error. See United States
v. Wingard, 522 F.2d 796, 797 (4th Cir. 1975) (noting that
testimony by bank teller was “sufficient to prove the bank's
custody of the certificate”). Moreover, even if the district
court erred in admitting the certificate, any error was
harmless, since introduction of the FDIC certificate is not
required where there is uncontroverted testimony that a bank is
FDIC-insured. See United States v. Gallop, 838 F.2d 105, 111-12
(4th Cir. 1988); Safley, 408 F.2d at 605.
Crews also contends that the district court erred in
instructing the jury to disregard argument by counsel during
closing argument about whether other witnesses would be in a
better position to testify as to whether the bank was FDIC-
insured, and to disregard any statement or implication that the
defendant bore the burden of proof on any issue. We review a
district court’s decision to give a jury instruction and its
rulings regarding closing argument for abuse of discretion.
United States v. Green, 599 F.3d 360, 377-79 (4th Cir. 2010).
Having reviewed the record, we conclude the district court did
not abuse its discretion.
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Crews next contends that the district court erred in
allowing the victim teller to testify that Crews made a motion
as though he had a concealed weapon. Specifically, he argues
the testimony was conjecture and violated Fed. R. Evid. 602,
which requires that a witness have personal knowledge of the
matter. After the teller explained the motion she observed, the
district court allowed her to testify that she thought Crews
might have possessed a concealed weapon. The district court
correctly ruled that the teller’s interpretation of Crews’s
motion was relevant to the question of intimidation. See United
States v. Harris, 530 F.2d 576, 579 (4th Cir. 1976). We
conclude there was no abuse of discretion.
Crews further contends that the district court erred
in refusing to allow him to make a pro se closing argument in
violation of his constitutional right to self-representation.
We disagree. A defendant does not have an absolute right to
dismiss counsel and conduct his own defense after the trial has
commenced. United States v. Dunlap, 577 F.2d 867, 868 (4th Cir.
1979). After trial has begun with counsel, the decision whether
to allow the defendant to proceed pro se rests in the sound
discretion of the district court. United States v. Singleton,
107 F.3d 1091, 1096 (4th Cir. 1997) (citations omitted). The
reasons for limiting the right of self-representation after
trial has begun include “among other things, the need to
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minimize disruptions, to avoid inconvenience and delay, to
maintain continuity, and to avoid confusing the jury.” Dunlap,
577 F.2d at 868. Crews made the request to proceed pro se just
after the close of evidence. After considering the matter, the
district court denied the request. The court concluded that
permitting Crews to dismiss his counsel and proceed pro se
during closing argument could confuse the jury, since Crews had
previously testified. In denying Crews’s request, the district
court did not abuse its discretion.
Crews next contends that the district court erred in
refusing to instruct the jury that in order to be found guilty
of bank robbery, he must have intended to intimidate the bank
tellers at the time of the robbery. However, Crews recognizes
that the district court’s decision comports with our decision in
Woodrup and only raises the issue to preserve it for further
appeal. We conclude there was no error or abuse of discretion.
Finally, Crews contends that the indictment should be
dismissed because more than seventy non-excludable days elapsed
between his initial appearance and the trial, in violation of
the Speedy Trial Act. We conclude that Crews has waived this
issue because he did not move for dismissal based on the Act
prior to trial. See 18 U.S.C. § 3162(a)(2); United States v.
Henry, 538 F.3d 300, 304 (4th Cir. 2008). In any event, the
claim lacks merit. In Crews’s proposed calculation, he fails to
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exclude the periods due to delay from pretrial motions pursuant
to 18 U.S.C. § 3161(h)(1)(D). See United States v. Tinklenberg,
131 S. Ct. 2007, 2015 (2011). Accordingly, we affirm the
district court’s judgment. 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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