United States v. Jerry Barnes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4545
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY BARNES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cr-00158-F-3)
Argued: January 24, 2012 Decided: May 11, 2012
Before TRAXLER, Chief Judge, FLOYD, Circuit Judge, and J.
Michelle CHILDS, United States District Judge for the District
of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Mary Jude Darrow, Raleigh, North Carolina, for
Appellant. Felice McConnell Corpening, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In May 2009, Appellant Jerry Barnes and five co-
defendants were indicted in connection with the December 12,
2008, armed robbery of a BB&T Bank branch in Elm City, North
Carolina. The charges against Barnes included (1) conspiracy to
commit armed bank robbery, see 18 U.S.C. § 371; (2) aiding and
abetting armed bank robbery with forced accompaniment, see 18
U.S.C. § 2113(a),(d), (e); 18 U.S.C. § 2; and (3) aiding and
abetting the use of a firearm during and in relation to a crime
of violence, see 18 U.S.C § 924(c)(1)(A)(ii); 18 U.S.C. § 2.
Barnes was convicted on all three counts following a jury trial.
He raises numerous issues on appeal. We affirm.
I.
Trial testimony established that in December 2008,
Brian Lucas, Anthony Atkinson, Marcus Wiley and Appellant Barnes
began making plans to rob the BB&T on Main Street in Elm City.
Their discussions included where they could park before the
robbery and where they would go after committing the robbery.
Barnes testified and denied participating in the planning, but
Wiley testified that Barnes took part in the planning. Barnes
admitted, however, that on the night before the robbery, this
same group of people gathered at the home of George Thomas,
where Barnes was residing. According to Wiley, the topics
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discussed that evening included where to park during the
robbery, the need for a get-away driver, and what role Barnes,
an amputee, would play in the robbery. The group decided that
Barnes would park his truck in front of the drug store located
across the street from the BB&T in order to block the window and
distract any potential witnesses who were inside the drug store.
During the discussions, Barnes presented a map, sketched on the
back of an insurance receipt, showing the bank’s immediate
vicinity, the location of the drug store, and the spot where
Barnes was supposed to park his truck in relation to the bank
and the drug store.
On December 12, 2008, the morning of the robbery,
Barnes drove Wiley, Atkinson, and Lucas to the Bank to scout the
general area for law enforcement personnel. After observing the
area, the group spotted Matthew Farr at the Short Stop
convenience store and recruited him to serve as one of the get-
away drivers. Barnes then drove Wiley, Atkinson, and Lucas back
to Thomas’s house to meet Vernon Atkinson (“BJ”), whom Barnes
had also recruited as a get-away driver.
BJ then drove Wiley, Atkinson, and Lucas to the
vicinity of the bank and dropped them off, while Barnes drove
his Chevrolet Suburban separately and parked it in front of the
drug store across the street from the bank. The location of the
Suburban prevented anyone in the drug store from seeing
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customers entering or exiting the bank. Barnes went inside the
drug store for about 15-20 minutes, drawing attention to himself
by asking the pharmacist about possible medications for “phantom
pain” in his missing limb. J.A. 307. After Barnes spoke with
the pharmacist, he went to the front of the store and ordered
two milkshakes and then bought some jewelry. Barnes left the
drug store and was pulling away in his truck just as Wiley,
Lucas, and Atkinson were entering the bank wearing masks.
During the robbery, Barnes’ co-defendants threatened bank
employees and Atkinson brandished a hand gun. They fled the
bank with over $20,000.00.
BJ drove them from the bank to a location where Farr
was waiting in a second get-away car. Farr then drove Wiley,
Lucas, and Atkinson to an area called “Sleepy Hollow” where
Barnes was supposed to meet them. Lucas called Barnes to see
where he was, but Barnes told Lucas that a lot of police
officers had responded to the robbery and that they should “stay
put.”
In the meantime, Barnes had driven from the drug store
to meet his cousin Rodney for their regularly scheduled Friday
trip to a flea market. When Rodney got into Barnes’ Suburban,
Barnes was on his cell phone telling someone “to stay put.”
J.A. 317. Barnes then told Rodney that he had been speaking
with Lucas and that Lucas and some others had just robbed a
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bank. Barnes then picked up BJ, who had never previously gone
to the flea market with Barnes and Rodney.
On the way to the flea market, Barnes encountered a
road block that had been set up because of the bank robbery.
Officers asked Barnes for proof of insurance and Barnes produced
the insurance receipt with the diagram that was drawn while the
robbery was being planned. Officers noticed a “crudely drawn
map” on the back of the insurance receipt and were suspicious
about whether the map might be connected with the robbery. At
the request of the officers, Barnes agreed to let the police
keep the insurance receipt. Barnes was then allowed to pass
through the road block. After staying a short period at the
flea market, Barnes and BJ took Rodney home, then drove
separately to retrieve Barnes’ co-conspirators from Sleepy
Hollow. Atkinson rode with Barnes while Lucas, Wiley and BJ
rode together.
Investigators later took the map to the bank and
determined that although the map did not match the interior lay-
out of the bank, it appeared to reflect the exterior vicinity of
the bank. Additional investigation quickly led to the arrests
of Atkinsons, Wiley, Lucas, Farr, and Barnes.
The jury found Barnes guilty on all three charges. At
sentencing, the district court concluded that the evidence
supported an enhancement for Barnes as a leader, supervisor, or
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manager over the other co-defendants. The court ultimately
sentenced Barnes to a 60-month term on Count One (conspiracy to
commit bank robbery); a concurrent 135-month term on Count Two
(aiding and abetting armed bank robbery with forced
accompaniment); and a consecutive 84-month term on Count Three
(aiding and abetting the using and carrying of a firearm during
and in relation to a crime of violence), for a total sentence of
219 months.
II.
Barnes first contends that the district court
erroneously excluded extrinsic evidence of prior statements
Wiley made that were inconsistent with his trial testimony
implicating Barnes in the robbery.
In a videotaped post-arrest interview, Wiley confessed
to his own involvement in the conspiracy but did not mention
Barnes as one of his co-conspirators. During the interview,
Wiley also signed a statement that did not implicate Barnes in
the robbery. Also, at Barnes’ request, Wiley signed a letter
Barnes had prepared indicating that Barnes had no role in the
crime. And, finally, Wiley prepared another statement himself
indicating that Barnes was not involved in the robbery.
At trial, however, Wiley implicated Barnes in the
planning and execution of the robbery. During his testimony on
6
direct examination, Wiley admitted that when he was interviewed
by the police after the robbery, he “lied” and did not tell them
about Barnes because “his role was so small and he just helped
plan and cause a distraction.” J.A. 157-58. Likewise,
throughout cross-examination Wiley admitted that he did not
mention Barnes in his initial statements to the police, and that
in subsequent written statements he specifically denied that
Barnes was involved.
The district court refused to admit Wiley’s videotaped
interview and his written statements as inconsistent statements
under Federal Rule of Evidence 613(b). We review a district
court’s decision to admit or exclude evidence for an abuse of
discretion. See United States v. Lighty, 616 F.3d 321, 351 (4th
Cir. 2010). Rule 613(b) permits the admission of a prior
statement for impeachment purposes, so long as the prior
statement is inconsistent, the witness is afforded an
opportunity to explain or deny the prior statement, and the
opposing party is permitted to interrogate the witness about
such a statement. See Fed. R. Evid. 613(b); see also United
States v. Young, 248 F.3d 260, 267 (4th Cir. 2001). Even if the
requirements of Rule 613(b) are otherwise satisfied, a court is
not obligated to admit the extrinsic evidence if, under Rule
403, its “‘probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
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misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.’”
Young, 248 F.3d at 268 (quoting Fed. R. Evid. 403).
The district court addressed this issue at a number of
points throughout the trial, suggesting at times that Wiley’s
prior statements were not inconsistent with his trial testimony
as required by Rule 613(b), and at others that the probative
value of the evidence was outweighed by the unnecessary
introduction of cumulative evidence under Rule 403. We need not
delve too deeply into the court’s reasoning, however, because
any error by the court would have been harmless in any event.
“Evidentiary rulings are subject to harmless error review,” and
we will find an error harmless if we can “say with fair
assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the judgment was not
substantially swayed by the error.” United States v. Johnson,
617 F.3d 286, 292 (4th Cir. 2010) (internal quotation marks
omitted).
During cross-examination, defense counsel forced Wiley
to admit numerous times to the jury that he was telling a
different story at trial than he had told police, orally and in
writing, soon after the robbery. Defense counsel asked Wiley at
least 15 questions requiring Wiley to admit that he had either
not mentioned Barnes as one of the co-conspirators in the bank
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robbery or specifically denied that Barnes was involved.
Moreover, counsel effectively pointed out through cross-
examination that Wiley never went to the police to correct his
prior statements that he was contending at trial were false. It
is clear that Barnes was able to accomplish his purposes of
undercutting Wiley’s credibility even without the extrinsic
evidence. See Young, 248 F.3d at 269 (holding that district
court’s failure to admit audiotape of a prior inconsistent
statement was harmless when the witness admitted on cross-
examination that the prior statement was inconsistent).
Accordingly, we conclude that any error was harmless as we can
“say with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.” Johnson,
617 F.3d at 292. *
*
We also conclude Barnes’ related argument that Matthew
Farr, one of the get-away drivers, made a prior inconsistent
statement is without merit. Farr, who was not at the group
meeting where the robbery was planned, told police when asked
what role Barnes played that Barnes “didn’t really do nothing.”
J.A. 239. It is unclear to us whether this statement—which Farr
admitted making—is even inconsistent with Farr’s trial testimony
that Barnes was in the car at the Short Stop when Lucas asked
Farr to help them on a job. But, even if the exclusion of this
extrinsic evidence was an error, it was clearly a harmless one.
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III.
Next, Barnes challenges the district court’s
imposition of a four-level organizer enhancement under U.S.S.G.
§ 3B1.1(a). To qualify for a four-level increase under U.S.S.G.
§ 3B1.1(a), a defendant must have been “an organizer or leader
of a criminal activity that involved five or more participants
or was otherwise extensive.” U.S.S.G. § 3B1.1(a). Application
Note 4 states several relevant factors, including the “nature of
[the defendant’s] participation in the commission of the
offense,” the “degree of participation in planning or organizing
the offense,” and “the nature and scope of the illegal
activity.” U.S.S.G. § 3B1.1, cmt. n.4. A district court’s
factual finding that a defendant was an organizer or leader in
an offense is reviewed for clear error. See United States v.
Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).
There is sufficient evidence in the record at trial
and sentencing to show that the district court did not commit
clear error in finding that Barnes was an organizer. The
evidence showed that the primary meeting where the robbery was
planned was held at the residence where Barnes was living.
Barnes participated in this planning meeting and drew for the
group the map of the bank and its surrounding vicinity, which
was later recovered from Barnes’ Suburban by police officers.
Barnes gathered the other participants in his vehicle on the
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morning of the robbery and drove them near the bank to scout the
area for law enforcement and traffic conditions. Barnes drove
the group to the Short Stop gas station where they recruited
Farr as a get-away driver. And, in fact, Barnes had previously
recruited B.J. Atkinson to drive his car during and after the
robbery. Moreover, there was evidence that Barnes obtained the
handgun that Atkinson used during the robbery.
Barnes argues that none of the participants had
decision-making authority and that they shared equally in the
planning process. Barnes is simply disputing the conclusion the
court drew from the facts. Although the court could possibly
have concluded otherwise, it was not clear error to conclude
that Barnes was an organizer.
IV.
Next, Barnes objects to the district court’s refusal
to allow defense counsel to question Wiley concerning his mental
health. We review a district court’s determination as to the
scope of cross-examination for abuse of discretion. See United
States v. Scheetz, 293 F.3d 175, 184 (4th Cir. 2002). During
cross-examination, the district court barred defense counsel
from asking Wiley about purported statements he made to nurses
while in jail that he had seen hallucinations of dead people.
Barnes contends that these statements, which Wiley allegedly
11
made within a year of trial, were relevant to Wiley’s
credibility.
Mental defect can be a proper basis by which to attack
a witness’s credibility if the alleged mental defect was “at a
time probatively related to the time period about which he was
attempting to testify,” and it “go[es] to the witness’
qualification to testify and ability to recall,” and does “not
introduce into the case a collateral issue which would confuse
the jury.” United States v. Lopez, 611 F.2d 44, 46 (4th Cir.
1979) (internal quotation marks omitted); see United States v.
Jimenez, 256 F.3d 330, 343 (5th Cir. 2001).
Barnes does not suggest that Wiley was experiencing
hallucinations at the time of the robbery or in the days
immediately preceding the robbery indicating Wiley was unable to
perceive or recall the details of the robbery or its planning.
Likewise, there is no evidence suggesting Wiley was experiencing
hallucinations at the time of trial or that they affected his
ability to recall and testify accurately at trial. By contrast,
the district court allowed cross-examination of Wiley regarding
his substantial drug use within a day or two of the robbery,
including his use of marijuana, cigarettes soaked in embalming
fluid and Ecstasy.
We conclude the evidence did not reflect that Wiley’s
hallucinations occurred “at a time probatively related to the
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time period about which he was attempting to testify,” Lopez,
611 F.2d at 46 (internal quotation marks omitted), and thus the
district court did not abuse its discretion in excluding this
evidence.
V.
Next, Barnes challenges the district court’s refusal
to issue an “Eyewitness Identification” instruction. We review
the district court’s refusal to give a defendant’s requested
jury instruction for abuse of discretion. See United States v.
Moye, 454 F.3d 390, 397–98 (4th Cir. 2006) (en banc). “[W]e
accord the District Court much discretion and will not reverse
provided that the instructions, taken as a whole, adequately
state the controlling law.” United States v. Hassouneh, 199
F.3d 175, 181 (4th Cir. 2000).
Barnes’ proposed identification charge explained that
the value of identification testimony “depends on the
opportunity the witness had to observe the person initially and
later to make a reliable identification,” and that “[a] reliable
identification would not be one unfairly suggested by events
that have occurred since the time of the initial observation.”
Barnes’ asserted basis for an eyewitness identification
instruction was the conflict between Farr’s testimony that
Barnes was with Atkinson, Wiley and Lucas at the Short Stop
13
convenience store when the group asked Farr to help with the
robbery, and Barnes’ testimony that he was never at the Short
Stop on the day of the robbery.
We conclude that the court’s refusal to issue this
charge was well within the court’s discretion.
Misidentification was not an issue at trial. Farr testified
that he had known Barnes for “a couple” of years before the
robbery and that he was only 15 feet away from Barnes’ Suburban
during the conversation at the Short Stop that morning. More
importantly, Farr’s testimony was corroborated by Wiley, who
testified that he and Barnes were in the vehicle with Atkinson
and Lucas when they saw Farr at the Short Stop and stopped to
speak with him. Accordingly, we reject this argument as well.
See United States v. Jackson, 347 F.3d 598, 607 (6th Cir. 2003)
(“Identification instructions are within the discretion of the
trial court; they need only be given if there is a danger of
misidentification due to a lack of corroborating evidence.”);
United States v. McNeal, 865 F.2d 1167, 1171-72 (10th Cir. 1989)
(no error in refusing cautionary eyewitness identification
instruction where government's evidence did not depend on a
single eyewitness whose testimony was not corroborated); cf.
United States v. Revels, 575 F.2d 74, 76 (4th Cir. 1978)
(refusing to give special identification instruction not plain
error “where other independent evidence . . . is presented to
14
the trier of fact which is corroborative of the guilt of the
accused”).
VI.
Finally, Barnes argues he should be resentenced
because U.S.S.G. § 4A1.1(e) was amended shortly after he was
sentenced. The district court used the 2009 version of the
Sentencing Guidelines, which was in effect when Barnes was
sentenced on May 12, 2010. Under that version, § 4A1.1(e)
required the sentencing court to add two points to the
defendant’s criminal history calculation if the defendant
committed his offense less than two years after release from
imprisonment. Effective November 1, 2010, the Sentencing
Commission eliminated this “recency” provision. See U.S.S.G.
App. C, amend. 742 (2010).
Barnes was not given any “recency” points under
U.S.S.G. § 4A1.1(e). Rather, the district court imposed a two-
level enhancement under U.S.S.G. §4A1.1(d), which applies when
“the defendant committed the instant offense while under any
criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape
status.” U.S.S.G. § 4A1.1(d). Subsection (e) was not the basis
for any of Barnes’ criminal history points, and so the
amendment, which is not retroactive in the first place, see
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U.S.S.G. § 1B1.10(c) (2010), provides no aid to Barnes
whatsoever.
VII.
Accordingly, we hereby affirm Barnes’ convictions and
sentence.
AFFIRMED
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