United States v. Ledbetter

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4605
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS EARL LEDBETTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cr-00482-LO-1)
Submitted: May 21, 2010 Decided: June 7, 2010
Before SHEDD and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Arif, MARTIN, ARIF & GREEN, PLC, Springfield,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Benjamin L. Hatch, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury indicted Dennis Earl Ledbetter,
charging him with conspiracy to commit armed robbery, in
violation of 18 U.S.C. § 371 (Count 1); armed bank robbery, in
violation of 18 U.S.C. §§ 2113(a) and (d) and (2) (Count 2); and
use of a firearm during a crime of violence, in violation of 18
U.S.C. §§ 2 and 924(c)(1)(A) (Count 3). Ledbetter pleaded
guilty to Count 2 and was convicted, after a bench trial, of
Counts 1 and 3. On appeal, Ledbetter contests the sufficiency
of the evidence supporting the convictions on Counts 1 and 3
and, for the following reasons, we affirm.
I.
On the morning of October 23, 2008, at approximately
10 a.m., a short, somewhat heavyset black male, later identified
as John Wayne Morton, entered the Commerce Bank in Dumfries,
Virginia, wearing sunglasses and a ski mask. The man brandished
a firearm, ordered all of the patrons on the ground, and
commanded the tellers to empty their tills. At least one teller
handed Morton money that included a dye pack. Morton also took
a black shaving kit that a customer had left on the counter,
which contained roughly $1100 in cash, mostly small
denominations. In total, Morton took about $8500 from the bank.
2
A second black male, later identified as Ledbetter,
wore a mask over his face and stood by the door, holding it open
for their escape. One of the tellers made eye contact with
Ledbetter during the robbery, and the teller testified that
Ledbetter was looking into the bank. Ledbetter also drove the
getaway car, a Lincoln Town Car belonging to Morton’s mother,
from the bank. While in the car, one of the dye packs exploded,
burning Morton’s leg.
About thirty minutes prior to the robbery, an employee
with a self-storage facility located on the street behind the
bank saw a dark-colored Lincoln Town Car or Cadillac parked on a
small incline on the street. After the car sat for fifteen
minutes, the employee became concerned, and approached the
vehicle, where he saw two men: a heavy-set black male in the
front seat and another person in the back seat, who appeared to
be putting something over his face and then taking it off. The
employee watched the car move down the hill and park near his
own vehicle; he returned to the self-storage facility to assist
a customer and, by the time he returned, the car was gone.
Later that day, around 3 p.m., Ledbetter entered the
Rent-A-Center in Landover, Maryland, near his home, to pay an
overdue account. According to the clerk, Ledbetter, who worked
at an International House of Pancakes (IHOP) restaurant, was
wearing his uniform. The clerk requested three weeks of
3
payments, but Ledbetter informed her that he was low on money;
they eventually agreed to a two-week payment of $99.48.
Ledbetter paid the amount in mostly tattered five and ten dollar
bills, although the clerk saw Ledbetter holding a one-and-a-half
inch roll of money.
One week later, on October 31, 2008, agents with the
Federal Bureau of Investigation (FBI) arrested Morton, who lived
in Prince George’s County, Maryland, for the crime. Several
days later, Ledbetter, Morton’s cousin, turned himself into
authorities for his participation in the robbery.
Based upon these events, a federal grand jury indicted
Ledbetter on December 4, 2008, charging him with conspiracy to
commit armed robbery, in violation of 18 U.S.C. § 371 (Count 1);
armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d)
and (2) (Count 2); and use of a firearm during a crime of
violence, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A) (Count
3). On January 23, 2009, Ledbetter pleaded guilty to Count 2,
armed bank robbery. As part of the guilty plea, Ledbetter
agreed to a statement of facts that provided that “[b]efore
entering the bank, John Wayne Morton put on a mask and Dennis
Earl Ledbetter tied a shirt around his face to disguise his
identity.” The statement of facts also provided that Morton
brandished a firearm during the robbery, that Ledbetter stood by
4
the front door to act as a lookout, and that Ledbetter drove the
getaway car, Morton’s mother’s vehicle.
On February 10, 2009, Ledbetter, who had waived a
jury, was tried by the district court on Counts 1 and 3. Both
Morton and Ledbetter testified extensively at the trial,
although their accounts differed dramatically as to the planning
of the crime, the ownership of the gun used in the crime, and
the aftermath of the robbery. Specifically, Morton, testifying
for the Government, stated that Ledbetter supplied the gun for
the robbery and chose the bank. 1 According to Morton, Ledbetter
forced Morton to commit the robbery, drove the getaway car, and
burned the stained clothing and money behind Morton’s apartment
in Suitland, Maryland. Morton also testified that after the
robbery Ledbetter took $500 in cash when he left for work and
that Ledbetter returned one week later and advised Morton’s
mother to remove the license plates from her car.
In contrast, Ledbetter testified that he did not
supply the gun for the robbery, did not know that Morton was
going to use a gun, did not see Morton brandishing the gun
during the robbery, and did not want Morton to rob the bank.
1
In support of the claim that Ledbetter chose which bank to
rob, Morton noted that Ledbetter had previously lived in
northern Virginia, while Morton had never lived outside of
Prince George’s County, Maryland, and was unfamiliar with the
northern Virginia area.
5
Ledbetter conceded that he pulled his shirt over his face and
assisted Morton by holding the door and driving the getaway car.
Ledbetter testified that he made the decision to help Morton
just prior to the robbery. Ledbetter also testified that he did
not receive any money from the robbery and that when they
returned to Morton’s apartment he left to report for work at
IHOP.
Ledbetter testified that when he returned to Morton’s
apartment one week after the robbery, he advised Morton’s mother
to take off her car’s tags and then removed them while she
watched. Ledbetter also admitted that, during his pretrial
incarceration, he told his grandmother what he termed the
“original truth,” that he knew Morton was going to use a gun in
the robbery and that it made him nervous.
The district court found Ledbetter guilty on both
counts. The district court first announced that it did not
“credit Mr. Morton’s testimony that he was threatened by
[Ledbetter] or that this was purely [Ledbetter’s] idea and that
he went kicking and screaming into his participation.” Instead,
the district court found “the evidence makes clear . . . that
this was a bank robbery committed by two cousins who have known
each other for 25 years who together planned and executed this
robbery in a conspiracy.” The district court first found
Ledbetter guilty under the principles announced in Pinkerton v.
6
United States, 328 U.S. 640, 646-47 (1946), because Morton
brandished a gun in furtherance of their conspiracy to rob the
bank. In the alternative, the district court found that
Ledbetter knew that Morton had a gun and was going to use it
during the robbery. The district court noted that the bank
surveillance video showed Ledbetter looking into the bank during
most of the robbery and that Morton consistently displayed the
gun during the robbery.
The district court also found that portions of
Ledbetter’s testimony were “undermined by several
inconsistencies.” These inconsistencies included the testimony
of Aaron Hammond, the self-storage facility employee, that he
saw Ledbetter pulling a shirt over his face trying out disguises
thirty minutes before the robbery — testimony that suggested to
the district court “a plan, a calm and calculating participation
. . . long before you’ve admitting knowing that there was going
to be a bank robbery.” Moreover, the district court found
Ledbetter’s testimony that he did not know the area inconsistent
with his ability to drive “without error” back onto the
interstate after the robbery. In addition, the district court
found incredible Ledbetter’s testimony that he did not see the
bank proceeds in Morton’s hands as he exited the bank. The
district court stated that the surveillance video clearly showed
the money “literally taking up his entire midsection” while
7
Ledbetter “[was] looking at him and making sure that he gets out
of that door.”
Furthermore, the district court found that Ledbetter’s
testimony that he did not take any of the robbery proceeds was
undermined by his presence at the Rent-A-Center with small
denominations of money and an additional stack of bills.
Likewise, the district court noted Ledbetter’s conduct in
telling Morton’s mother to remove her license plates was
“consistent with somebody who is a knowing participa[nt] in the
conspiracy to rob the bank.” Finally, the district court noted
Ledbetter’s criminal history included the possession of firearms
and that “the version of events as you laid out in your
discussion with your grandmother is a significant admission that
in fact you knew that the gun was going to be used in the bank
robbery.”
The district court ultimately sentenced Ledbetter to
108 months’ imprisonment, consisting of 24 months’ imprisonment
for Counts 1 and 2, and 84 months for Count 3, to run
consecutively to Counts 1 and 2. Ledbetter filed a timely
notice of appeal.
II.
On appeal, Ledbetter contests the sufficiency of the
evidence supporting his convictions on Count 1 and 3. “In
8
assessing the sufficiency of the evidence presented in a bench
trial, we must uphold a guilty verdict if, taking the view most
favorable to the Government, there is substantial evidence to
support the verdict.” Elliott v. United States, 332 F.3d 753,
760-61 (4th Cir. 2003). “[S]ubstantial 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.” United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc). We “consider[s] circumstantial as
well as direct evidence, and allow[s] 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), and we assume that the fact finder
resolved all contradictions in the testimony in favor of the
Government. United States v. Brooks, 524 F.3d 549, 563 (4th
Cir.), cert. denied, 129 S. Ct. 519 (2008). We “can reverse a
conviction on insufficiency grounds only when the prosecution's
failure is clear.” United States v. Moye, 454 F.3d 390, 394
(4th Cir. 2006) (en banc) (internal quotation marks and citation
omitted).
Ledbetter first contests his conviction on Count 1,
which charged Ledbetter with violating 18 U.S.C. § 371. That
statute makes it a criminal offense if “two or more persons
conspire . . . to commit any offense against the United States,
9
. . . and one or more such persons do any act to effect the
object of the conspiracy.” Id. We have reviewed the evidence
in this case and conclude that the Government produced
sufficient evidence from which a reasonable fact finder could
conclude that Ledbetter conspired to rob the Commerce Bank with
Morton. In addition to Morton’s testimony regarding Ledbetter’s
role in planning the robbery, the Government produced
circumstantial evidence supporting the verdict. 2 For instance,
Hammond testified that he saw a man, Ledbetter, attempting to
put something on over his face while sitting in a car behind the
bank. This testimony corroborated Morton’s testimony that he
and Ledbetter parked behind the bank for a period of time and
that Ledbetter tried on different disguises in the back seat.
Likewise, the fact that Ledbetter drove the getaway
car and was able to drive directly to the interstate despite the
presence of multiple turns supported Morton’s testimony that it
was Ledbetter who chose the bank to rob, having previously lived
in northern Virginia. In addition, Ledbetter’s presence at the
Rent-A-Center with small denomination bills and an additional
stack of cash as well as his comments to Morton’s mother
2
The district court found incredible Morton’s testimony
that Ledbetter forced him to rob the bank. Contrary to
Ledbetter's assertions, however, the district court did not
discredit Morton’s testimony that the idea and planning for the
bank robbery originated with Ledbetter.
10
regarding the car’s license plate were, as the district court
found, “completely consistent with somebody who is a knowing
participa[nt] in and taken part of the proceeds of the bank
[robbery].”
Ledbetter also challenges the sufficiency of the
evidence supporting his conviction on Count 3, which charged him
with violating 18 U.S.C. § 2 and § 924(c)(1)(A). Section
924(c)(1)(A) creates a graduated penalty scheme for any person
who “during and in relation to any crime of violence” “uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm.” Id. Ledbetter was charged with a
violation of subsection (ii), which sets forth a mandatory
minimum of seven years imprisonment if the firearm was
“brandished.” 18 U.S.C. § 924(c)(1)(A)(iii).
Ledbetter contends that there is insufficient evidence
to convict him of the § 924(c) violation on the basis of
Pinkerton liability. See Pinkerton v. United States, 328 U.S.
640, 646-47 (1946) (holding fellow conspirators liable for
substantive offenses committed by a co-conspirator in
furtherance of the conspiracy). “A defendant may be convicted
of a § 924(c) charge on the basis of a coconspirator's use of a
gun if the use was in furtherance of the conspiracy and was
reasonably foreseeable to the defendant.” United States v.
Wilson, 135 F.3d 291, 305 (4th Cir. 1998). See also United
11
States v. Cummings, 937 F.2d 941, 944 (4th Cir. 1991) (applying
Pinkerton doctrine that “conspirators liable for all reasonably
foreseeable acts of their co-conspirators done in furtherance of
the conspiracy” to 924(c) convictions). 3
We have reviewed the evidence in this case and
conclude that the Government produced sufficient evidence to
sustain the conviction. Ledbetter overlooks the fact that the
district court did not discredit Morton’s testimony that
Ledbetter, not Morton, brought the gun. Indeed, the district
court plainly stated that it did not credit Ledbetter’s
testimony regarding the presence of the gun, in large part
because Ledbetter told his grandmother that he knew Morton had a
gun. Also, the district court found, both from testimony and
the surveillance videos, that Ledbetter was not testifying
truthfully when he said that he did not see Morton using the gun
3
Ledbetter argues that Pinkerton liability for 18 U.S.C.
§ 924(c) offenses requires the Government to prove to a
“practical certainty” that Ledbetter knew Morton would have a
firearm. Ledbetter culls this language from United States v.
Spinney, 65 F.3d 231, 239 (1st Cir. 1995), which required the
Government to meet that burden of proof in aider and abettor
liability under § 924(c). In contrast, every circuit, including
this court, has applied the familiar Pinkerton liability
standard to § 924(c) conspiracy charges. See, e.g., United
States v. Shea, 150 F.3d 44, 50-51 (1st Cir. 1998); United
States v. Wilson, 135 F.3d 291, 305 (4th Cir. 1998); United
States v. Washington, 106 F.3d 983, 1011 (D.C. Cir. 1997);
United States v. Masotto, 73 F.3d 1233, 1240 (2d Cir. 1996);
United States v. Myers, 102 F.3d 227, 237 (6th Cir. 1996);
United States v. Wacker, 72 F.3d 1453, 1464 (10th Cir. 1995).
12
during the robbery. See United States v. Johnson, 444 F.3d
1026, 1029-30 (9th Cir. 2006) (denying motion for acquittal of
§ 924(c) charge for getaway driver who never entered bank during
robbery because he was present at planning meetings and evidence
was presented that the two robbers were wielding firearms in an
obvious fashion during the entrance and exit from the bank).
Ledbetter also overlooks that, prior to trial on
Counts 1 and 3, he pleaded guilty to armed bank robbery. Armed
bank robbery requires the Government to establish that the
defendant, in committing bank robbery, “assaults any person, or
puts in jeopardy the life of any person by the use of a
dangerous weapon or device.” 18 U.S.C. § 2113(d). It is thus
somewhat incongruous for Ledbetter to plead guilty to a crime
with the element of “use of a dangerous weapon” but then argue
that he did not know Morton would have a gun. See, e.g., United
States v. Burton, 126 F.3d 666, 679 (5th Cir. 1997) (affirming
sentence enhancement because it was reasonable foreseeable that
bank robbery would use a firearm given the “nature of the
offense”); United States v. Allen, 425 F.3d 1231, 1234 (9th Cir.
2005) (affirming § 924(c) conviction under Pinkerton where
defendant was present at a “morning of” meeting where guns were
present and their use was discussed; had a longstanding
friendship with a co-conspirator who had participated in
previous armed bank robberies; and, finding that “it [wa]s
13
reasonable to infer from the nature of the plan - the overtaking
of a bank by force and intimidation - that guns would be
used.”).
III.
For the foregoing reasons, we affirm the district
court’s judgment. Ledbetter’s motion to substitute counsel is
denied. 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
14