ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No. xxxxxxxxxx

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxxxxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

BRIEF OF DEFENDANT-APPELLANT

xxxxxxxxxxxxxxxx

_________________________________________________________________

A.J. KRAMER

Federal Public Defender

SANDRA G. ROLAND

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No.xxxxxxxxxxxx

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Rule 11(a)(1) of the General Rules of this Court, Defendant-Appellant, Bernard xxxx, hereby states as follows:

A. Parties and Amici:

The parties to this appeal are Defendant-Appellant, xxxxxxxxxxxxxxi, and Plaintiff-Appellee, The United States of America. There are no intervenors or amici.

B. Rulings Under Review:

This is an appeal by Mr. xxxx of the rulings by the district court, the Honorable Thomas Penfield Jackson, denying Mr. xxxx's motion to sever offenses (A. at 24-28) and denying his motions for judgment of acquittal on the charges of aggravated bank robbery (A. at 31-39).

C. Related Cases:

There are no related cases and this case has not previously been before this Court.

TABLE OF CONTENTS

TABLE OF AUTHORITIES v

STATUTES AND RULES 1

JURISDICTION 1

ISSUES PRESENTED 1

STATEMENT OF THE CASE 2

A. Proceedings Below 2

B. Statement Of Facts 3

i. Introduction 3

ii. The Evidence Of The November 22, 1991 Robbery Of Citizens Bank Of Washington 7

iii. The Evidence Of The December 9, 1991 Robbery Of Citizens Bank of Washington 7

iv. The Evidence Of The December 16, 1991 Robbery Of Citizens Bank of Washington 8

v. The Evidence Of The December 24, 1991 Robbery Of Citizens Bank of Washington 10

vi. The Evidence Of The December 24, 1991 Robbery Of Palmer National Bank 11

vii. The Evidence Of The December 27, 1991 Robbery Of Meritor Savings Bank 12

viii The Evidence Of The December 30, 1991 Robbery Of Adams National Bank 13

ix. The Evidence Of The January 6, 1992 Robbery Of Adams National Bank 14

x. The Evidence Of The January 9, 1992 Robbery Of Perpetual Savings Bank 14

xi. The Motions For Judgment Of Acquittal And The Defense Case 15

xii. The District Court's Instruction To The Jury On The Offense Of Aggravated Bank Robbery 17

SUMMARY OF ARGUMENT 18

ARGUMENT

I. THE DISTRICT COURT ERRONEOUSLY INSTRUCTED THE JURY THAT PROOF OF AGGRAVATED BANK ROBBERY REQUIRED NO MORE THAN A VICTIM'S REASONABLE BELIEF THAT HE OR SHE WAS IN DANGER OF HAVING A WEAPON USED AGAINST

HIM OR HER 20

A. Standard Of Review 20

B. The District Court's Instruction To The Jury Explaining Aggravated Bank Robbery Under 18

U.S.C. § 2113(d) Was Erroneous 20

II. THE DISTRICT COURT ERRONEOUSLY DENIED MR. xxxx'S MOTIONS FOR JUDGMENT OF ACQUITTAL ON THE CHARGES OF AGGRAVATED BANK ROBBERY WHERE NO WEAPON WAS DISPLAYED, BRANDISHED, OR OBSERVED BY ANY WITNESS AND WHERE THE ONLY EVIDENCE OF BANK ROBBERY "BY THE USE OF A DANGEROUS WEAPON OR DEVICE" WAS THE ROBBER'S OWN CLAIM THAT HE HAD A GUN AND HIS

GESTURES 24

A. Standard Of Review 24

B. There Was Insufficient Evidence That The Bank Robber Used A Dangerous Weapon Or A Dangerous Device 25

C. The Majority Panel's Decision In United

States v. David Ray Was Wrongly Decided 31

III. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT DENIED MR. xxxx'S MOTION TO SEVER OFFENSES UNDER RULE 14 OF THE FEDERAL RULES OF CRIMINAL

PROCEDURE 36

A. Standard Of Review 36

B. Joinder Of The Nine Robberies For Trial Was Prejudicial Because Evidence Of Each Of The Nine Robbery Offenses Was Not Cross-Admissible And Because Evidence Of The

Offenses Was Not Kept Separate And Distinct 37

i. Introduction 37

ii. Evidence Of The Nine Robberies Was Not

Cross-Admissible 39

iii. Evidence Of The Nine Robberies Was Not

Simple and Distinct 42

CONCLUSION 45

CERTIFICATE OF LENGTH 46

CERTIFICATE OF SERVICE 46

TABLE OF AUTHORITIES

CASES

Cage v. Louisiana, 498 U.S. 39 (1990) 20

*Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964) passim

Dunaway v. United States, 205 F.2d 23 (D.C. Cir. 1953) 42

Jackson v. Virginia, 443 U.S. 307 (1979) 24

McLaughlin v. United States, 476 U.S. 16 (1986)

24, 26, 31, 32, 33

Simpson v. United States, 436 U.S. 6 (1978) 21

United States v. Benson, 918 F.2d 1 (1st Cir. 1990) 24, 28, 32

United States v. Brown, 16 F.3d 423 (D.C. Cir. 1994) 36

United States v. Burkley, 591 F.2d 903 (D.C. Cir. 1978),

cert. denied, 440 U.S. 966 (1979) 42

United States v. Cannon, 903 F.2d 849 (1st Cir.),

cert. denied, 498 U.S. 1014 (1990) 26

*United States v. Cobb, 558 F.2d 486 (8th Cir. 1977) 30

United States v. DeAngelo, 13 F.3rd 1228 (8th Cir. 1994) 26

United States v. Epps, 438 F.2d 1192 (4th Cir. 1971) 20

United States v. Edelin, 996 F.2d 1238 (D.C. Cir. 1993),

cert. denied, 114 S.Ct. 895 (1994) 20

United States v. Garrett, 3 F.3rd 390 (11th Cir. 1993),

cert. denied, 114 S.Ct. 1100 (1994) 26

United States v. Jacquillon, 469 F.2d 380 (5th Cir. 1972),

cert. denied, 410 U.S. 938 (1973) 26

United States v. Lane, 474 U.S. 438 (1986) 38

United States v. Long, 905 F.2d 1572 (D.C. Cir.),

cert. denied, 498 U.S. 948 (1990) 30

United States v. Manner, 887 F.2d 317 (D.C. Cir. 1989),

cert. denied, 493 U.S. 1062 (1990) 37

* Cases chiefly relied upon are marked with an asterisk

United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir.),

cert. denied, 489 U.S. 1099 (1989) 26

United States v. Medved, 905 F.2d 935 (6th Cir. 1990),

cert. denied, 498 U.S. 1101 (1991) 26

*United States v. Nicely, 922 F.2d 850 (D.C. Cir. 1991) 41

*United States v. Perry, 991 F.2d 304 (6th Cir. 1993)

24, 27, 32, 35

United States v. Powell, 929 F.2d 724 (D.C. Cir. 1991) 25

United States v. David Ray, No. 92-3261

(D.C. Cir. April 22, 1994) passim

United States v. Teffera, 985 F.2d 1082 (D.C. Cir. 1993) 24

*United States v. Wardy, 777 F.2d 101 (2nd Cir. 1985)

cert. denied, 475 U.S. 1053 (1986) 28, 33

United States v. York, 830 F.2d 885 (8th Cir. 1987),

cert. denied, 484 U.S. 1074 (1988) 26

STATUTES

18 U.S.C. 924(c) 35

18 U.S.C. § 2113(a) passim

18 U.S.C. § 2113(d) passim

22 D.C. Code § 3204(b) 2, 3

RULES

Federal Rules of Criminal Procedure, Rule 14 36, 38, 41

Federal Rules of Evidence, Rule 404(b) passim

Federal Rules of Evidence, Rule 403 37

OTHER AUTHORITIES

Brief for United States, McLaughlin v. United States,

476 U.S. 16 (1986) (No. 85-5189) 23, 27

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No. xxxxxxxxxx

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxxxxx xxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

BRIEF OF DEFENDANT-APPELLANT

xxxxxxxxxxxx xxxx

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and D.C. Circuit Rule 11(a)(3), the pertinent statutes are set forth in the Addendum to this brief.

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. § 3231. A timely notice of appeal having been filed within the ten-day period of Rule 4(b), Federal Rules of Appellate Procedure, this Court has jurisdiction under 28 U.S.C. § 1291.

ISSUES PRESENTED

I. Whether the district court's instruction to the jury that it could convict appellant of aggravated bank robbery if "any person in the bank at the time was menaced or threatened with the weapon to the extent that he or she reasonably believed that it might be immediately used against him or her" was erroneous.

II. Whether, in the absence of any evidence of actual possession a gun, a bank robber's gestures and claim to possess a gun is sufficient to sustain a conviction for bank robbery "by the use of a dangerous weapon or device" under the aggravated bank robbery statute, 18 U.S.C. 2113(d).

III. Whether the district court abused its discretion by denying Mr. xxxx's motion to sever offenses where evidence of the nine bank robberies was not cross-admissible and where the evidence of each of the robberies was not simple and distinct.

STATEMENT OF THE CASE

A. Proceedings Below

On April 2, 1992, the grand jury returned an eighteen-count indictment charging Mr. xxxx with nine counts of aggravated bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2113(d), and nine counts of possession of a firearm during a bank robbery in violation of 22 D.C. Code § 3204(b).

Mr. xxxx moved for severance of the offenses (11/23 at 68-71). The district court denied the motion (11/23 at 72). A trial before a jury commenced on November 25, 1992, before the Honorable Thomas Penfield Jackson.

At the close of the government's case Mr. xxxx moved for judgment of acquittal on the aggravated bank robbery offenses under 18 U.S.C. § 2113(d) (12/2 at 128-129; 12/3 at 7-8). The district court granted Mr. xxxx's motion for judgment of acquittal on the charge under Section 2113(d) concerning the December 30, 1991 robbery of Adams National Bank, and denied the motion with respect to the other charges. The district court also dismissed the nine counts charging a violation of 22 D.C. Code § 3204(b).

The jury returned a verdict of not guilty on the count charging the December 24, 1991, aggravated bank robbery of the Citizens Bank, but convicted Mr. xxxx of simple bank robbery. The jury returned verdicts of guilty on all other charges. Thus, Mr. xxxx was convicted of seven counts of aggravated bank robbery pursuant to 18 U.S.C. §§ 2113(a) and (d) and two counts of simple bank robbery pursuant to 18 U.S.C. § 2113(a). On April 7, 1993, Mr. xxxx was sentenced to 262 months imprisonment on seven counts of aggravated bank robbery and 240 months imprisonment on two counts of simple bank robbery, to be served concurrently. Mr. xxxx filed a timely notice of appeal.

B. Statement Of Facts

i. Introduction

Mr. xxxx was accused of committing nine aggravated bank robberies. Specifically, he was accused of robbing the Citizens Bank on four separate occasions (on November 22, 1991 the bank was robbed of $3,020; on December 9, 1991 the bank was robbed of $1,560; on December 16, 1991 the bank was robbed of $3,928; and on December 24, 1991 the bank was robbed of an unspecified amount of money), of robbing the Palmer National Bank of $710 on December 24, 1991, of robbing the Meritor Savings Bank of $1,020 on December 27, 1991, of twice robbing the Adams National Bank (on December 30, 1991 the bank was robbed of $1,410 and on January 6, 1992 the bank was robbed of $1,200), and of robbing the Perpetual Savings Bank of $3,150 on January 9, 1992 (11/25 at 36-37, 41-44). ⁽¹⁾

Mr. xxxx was arrested and charged with the robberies after a teller at the Perpetual Savings Bank observed the robber get into a car bearing a license plate assigned to Mr. xxxx (11/25 at 48). After his arrest a green jacket (Exhibit 19), sunglasses (Exhibit 16), two hats (Exhibits 17-A and 17-B) and two pieces of note paper (Exhibit 18) were seized from Mr. xxxx's car (11/25 at 61). In addition, three hats (Exhibits 21-A, 21-B, 21-C) and a pair of tennis shoes were seized from Mr. xxxx's house (Exhibit 22) (11/25 at 64; 11/30 at 39). ⁽²⁾

The evidence identifying Mr. xxxx as the perpetrator of each of the offenses was varied and inconsistent. ⁽³⁾ For example, of the sixteen eyewitnesses presented by the government, three witnesses failed to identify Mr. xxxx in a line-up as the robber, one witness identified Mr. xxxx only after initially identifying another member of the line-up, three witnesses failed to identify anyone in the line-up, one witness positively identified Mr. xxxx from photograph of the line-up, and five witnesses positively identified Mr. xxxx at line-up (11/30 at 91; 12/1 at 18, 29-30, 109, 116, 129, 144-145; 12/2 at 46, 107, 117). Ten of the sixteen witnesses made in-court identifications of Mr. xxxx (11/30 at 57-58, 84; 12/1 at 19-20, 56, 99, 109, 129, 144-145; 12/2 at 47, 121).

Each of the witnesses described the clothing worn by the robber: the robber's coat was described by three witnesses as blue (11/30 at 54, 56, 60, 143; 12/1 at 27), by eight witnesses as green (11/30 at 73; 12/1 at 10-11, 16, 36, 47, 51, 72, 128), and by one witness as bright turquoise (12/2 at 39). It was variously described as lightweight and as bulky (12/2 at 106, 116). One witness believed that the coat seized from Mr. xxxx's car was not the coat worn by the robber, three believed that it was the coat worn by the robber, and three believed that it was the same color as the coat worn by the robber (11/30 at 77-78; 12/1 at 11-12, 37, 72, 144; 12/2 at 39-40).

The witnesses descriptions of the hat worn by the robber varied from "bib" cap, to Redskin's baseball cap, to black skull cap, to black-and-beige or black-and-grey knitted ski cap, to blue knitted hat without a tassel, to blue knitted hat with a tassel, to red-and-green Christmas hat (11/30 at 52, 60-61, 74; 12/1 at 16-17, 29-30, 48, 60, 71; 12/2 at 83)

The witnesses agreed that the robber wore sunglasses, but were evenly divided (five to five) over whether the sunglasses seized from Mr. xxxx's car were the sunglasses worn by the robber (11/30 at 77-78; 12/1 at 21, 27, 37, 48, 72, 92, 123, 144; 12/2 at 39-40).

The robber's height ranged from five feet nine inches to six feet four inches (12/1 at 27, 43 58-59; 12/2 at 53, 57, 108). One witness described the robber as having a mustache, three described him as clean shaven, and one described him as having a rough beard (11/30 at 79-80; 12/1 at 21, 27, 43; 12/2 at 108)

The government introduced fingerprint evidence linking Mr. xxxx to one of the robberies, but the fingerprints recovered from four of the robberies did not match Mr. xxxx's fingerprints. Joseph Brown, an FBI agent, testified that the fingerprints on the notes used in four of the robberies did not match Mr. xxxx's fingerprints (the December 24th robbery of Citizens Bank, the December 24th robbery of Palmer National Bank, the December 30th and January 6th robberies of Adams National Bank, and the January 9th robbery of Perpetual Savings Bank) (11/25 at 105-106). A fingerprint lifted from the demand note used in the November 22nd robbery of the Citizens Bank matched Mr. xxxx's fingerprint (11/25 at 96, 99).

After his arrest, Mr. xxxx at first denied any involvement in the robberies, telling the officers that if he had not been at work on the relevant dates then he would have been sick and at home (11/25 at 49, 53). With regard to December 24, 1991, Mr. xxxx told the officers that he left work early to shop with his sister (11/25 at 53). Mr. xxxx later told an FBI agent that he had committed six of the nine robberies, and said that if the perpetrator had used a note demanding large bills and had said that he had a pistol, that he was probably the perpetrator (11/25 at 54-55). Mr. xxxx was shown a surveillance photograph of the robbery at Adams National Bank and wrote on the back of the photograph, "I was involved" (11/30 at 37; Government's Exhibit 13).

ii. The Evidence Of The November 22, 1991 Robbery Of Citizens Bank of Washington.

Only the victim teller, Virginia Hawkins, testified about the robbery. The robber slid a piece of paper through the slot at Ms. Hawkins' teller window that read, "I have a pistol," and asked for hundreds, fifties and tens (Exhibit 27). The robber said that he was not joking and told Ms. Hawkins to "hurry up" (11/30 at 50). While Ms. Hawkins put the money out of the teller window, the robber "kept tugging at the bottom of his jacket" but Ms. Hawkins "didn't really see whether or not there was anything there" (11/30 at 51). Ms. Hawkins described and interpreted the robber's conduct with respect to his coat: "[H]e lifted it up sort of to enforce his statement that I should hurry . . . ." Id. Ms. Hawkins did not see a weapon (11/30 at 62). ⁽⁴⁾

iii. The Evidence Of The December 9, 1991 Robbery Of Citizens Bank of Washington.

On December 9, 1991, the man who had robbed Virginia Hawkins on November 22nd returned to the Citizens Bank of Washington. Ms. Hawkins and another bank employee, John Lumidao, testified about the robbery.

The robber again put a note through Ms. Hawkins' teller window (11/30 at 53-54). Ms. Hawkins did not read the note and inadvertently gave the note back to the robber (11/30 at 55). Again, the robber told her that he was not joking and to hurry up. Id. Mr. Lumiado heard the robber say to Ms. Hawkins that he wanted large denominations, fifties and hundreds (12/1 at 26).

Ms. Hawkins testified that "this time he was a little more forceful than before with the hurry-up stuff and the lifting of his jacket to see the weapon that he might have there" (11/30 at 54). When the man lifted his jacket, Ms. Hawkins saw "something brown" and thought "evidently this person has a weapon," although she did not see a weapon or anything that she believed to be a weapon (11/30 at 55-56, 60). ⁽⁵⁾

iv. The Evidence Of The December 16, 1991 Robbery Of Citizens Bank of Washington.

Four bank employees -- Carrie Alston, the victim teller, and Gracia Wiley, Olivia Austria, and Joan Grant -- testified about the robbery. The robber pushed a note under the window which read, "I have a pistol. Give me all your hundreds and fifties and twenty bills." (11/30 at 75; 12/1 at 8, 35; Exhibit 29). While the teller gave bundles of money to the robber, the robber fumbled with his left hand under his coat and said four times, "hurry up" (11/30 at 75, 84). ⁽⁶⁾ Ms. Alston believed that the robber fumbled under his coat "like he was going to pull a gun or something" and interpreted his gestures as an attempt to try to hold the gun under his coat (11/30 at 83; 12/1 at 11). Ms. Grant testified that the robber was "reaching under the window and grabbing and pushing down like this in his pants or in his coat" (12/1 at 47). However, none of the four witnesses saw a gun or anything resembling a gun (11/30 at 96-97; 12/1 at 11, 22, 38). ⁽⁷⁾

v. The Evidence Of The December 24, 1991 Robbery Of Citizens Bank of Washington.

Olivia Austria, a teller who had witnessed the December 16, 1991 robbery of the Citizens Bank of Washington, was herself robbed on December 24, 1991. Ms. Austria and another bank employee, Joan Grant, testified about the robbery.

The robber slid a note through Ms. Austria's window which read, "Give me the money. Hurry up. And I have a pistol." (12/1 at 13; Exhibit 32). The robber said, "Give me the money. Hurry up. I have a pistol" (12/1 at 14). Ms. Austria saw the robber put his arm over his waistband, a gesture which she interpreted as "trying to pull his pistol." Id. Ms. Grant testified that the robber used one hand to push the note through the teller window and had one hand in his jacket (12/1 at 54). Neither woman saw a gun or anything resembling a gun (12/1 at 14, 22, 63). ⁽⁸⁾

vi. The Evidence Of The December 24, 1991 Robbery Of Palmer National Bank.

Four bank employees testified about the robbery -- the victim teller, Karen Stone, the security guard, Norm Analechi, and Dexter Midgette and Estala Barnet. A man approached Ms. Stone's teller window, dropped a note on her counter, then reached over the counter and grabbed money from her work space (12/1 at 67, 104). The robber then grabbed money out of Ms. Stone's hand. The robber said that he wanted the money and that he had a gun (12/1 at 68, 87-88, 105). The note read, "Give all fifty and hundred bills now" (12/1 at 69; Exhibit 37). None of the three witnesses saw a weapon (12/1 at 76, 94).

Mr. Midgette testified that the robber put his hand in his pocket and retrieved a paper bag (12/1 at 104-105). Mr. Midgette was no longer afraid once he realized the robber had a paper bag rather than a gun (12/1 at 105). Analechi testified that the robber had his right hand in his pocket during part of the robbery (12/1 at 87, 96-97). ⁽⁹⁾

vii. The Evidence Of The December 27, 1991 Robbery Of Meritor Savings Bank.

The victim teller, Loretta Caldwell, and another bank employee, Lajuan Morant, testified about the robbery. Ms. Caldwell and Ms. Morant noticed a man in the customer line who was letting other customers be served ahead of him (12/1 at 123, 138). He then approached Ms. Caldwell's window and passed her a note which read, "Give me all your hundreds, fifties and twenties. I have a pistol." (12/1 at 123). After Ms. Caldwell gave the man some bundles of money, he banged his hands on the counter and said, "Give it all. Give it all." (12/1 at 124). He put his hands in his pants and put one hand around something in his waistband that looked silver (12/1 at 124, 133). Ms. Caldwell could not identify the silver object as a handle or trigger of a gun (12/1 at 133). The robber did not bring the object out of his waistband. Ms. Caldwell gave him more money (12/1 at 124). ⁽¹⁰⁾

viii The Evidence Of The December 30, 1991 Robbery Of Adams National Bank.

The victim teller, Greg Miranda, and another bank employee, Ronita Holmes-Williams, testified about the robbery. A man approached Mr. Miranda's teller window and handed Mr. Miranda a note that stated, "Give me your large bills. All your large bills (12/2 at 80). The robber's hand was in his pants or his jacket pocket, "sticking out and pointing" at Mr. Miranda. Id. Mr. Miranda testified that the robber did not say anything threatening (12/2 at 89). Neither Mr. Miranda nor Ms. Holmes-Williams saw a weapon or anything resembling a weapon (12/2 at 58, 89). ⁽¹¹⁾

ix. The Evidence Of The January 6, 1992 Robbery Of Adams National Bank.

Greg Miranda was again robbed on January 6, 1992. Mr. Miranda and Ms. Holmes-Williams testified about the robbery.

The robber passed Mr. Miranda a note telling Mr. Miranda to give him fifties and hundreds (12/2 at 84). The robber pointed at the note with his left hand, while keeping his right hand in his pocket. The robber said he would "blow" Mr. Miranda's "head off" (12/2 at 86).

Neither Mr. Miranda nor Ms. Holmes-Williams saw a weapon or anything resembling a weapon (12/2 at 54, 89). ⁽¹²⁾

x. The Evidence Of The January 9, 1992 Robbery Of Perpetual Savings Bank.

The victim teller, Norma Lee Holt and another bank employee, Christina Reilly, testified about the robbery. A man approached Ms. Holt's teller window and gave her a note which read, "Give me all your hundreds and fifty bills now. I have a pistol" (12/2 at 103). After Ms. Holt gave the man some money he indicated that he wanted more money, either by gesturing or by saying the word, "more" (12/2 at 102). Ms. Holt did not remember if the robber did anything with his hands (12/2 at 103). Ms. Holt did not see a weapon or anything resembling a weapon (12/2 at 108).

Ms. Reilly watched the man leave the bank and get into a car. She wrote down the license plate number (12/2 at 113). ⁽¹³⁾

xi. The Motion For Judgment Of Acquittal And The Defense Case.

The defense moved for judgment of acquittal on each of the charges of aggravated bank robbery under 18 U.S.C. § 2113(d) arguing that the robber's claims that he was armed, alone, were insufficient as to each of the offenses to prove the use of a weapon and insufficient to prove that lives were placed in jeopardy (12/3 at 6-10). Although the district court had earlier observed that "[t]here is nothing that even remotely can be construed as being evidence of the presence of a firearm, operable or not" (12/2 at 134), it ultimately ruled that the robber's oral or written claim that he was armed with a weapon was sufficient to survive a motion for judgment of acquittal for aggravated bank robbery under 18 U.S.C. § 2113(d):

There is evidence [of aggravated bank robbery] from the notes. There is evidence from oral assertions made contemporaneously to the teller who was being robbed. "I have a pistol. Hurry Up."

(12/3 at 7). However, because the robber did not claim, either in writing or orally, to possession a gun in the December 30, 1991 robbery of the Adams National Bank, the district court granted the motion for judgment of acquittal on aggravated bank robbery on that count (count 13 of the indictment) (12/3 at 13-14).

Mr. xxxx presented a defense of alibi for the January 9th robbery of Perpetual Savings Bank which occurred at approximately 12:20 p.m. Co-workers of Mr. xxxx's, Aubrey Dockery-Bey and Darnell Latney, testified that on January 9, 1992, they ate lunch with Mr. xxxx either from 11:30 to 12:30 p.m. or from 12:00 to 1:00 p.m. (12/3 at 39, 52-53). Neither Mr. Dockery-Bey nor Mr. Latney ever saw Mr. xxxx in possession of large amounts of cash, and often would loan Mr. xxxx small amounts of money for gas or pocket change (12/3 at 38, 54). Mr. Dockery-Bey was impeached with his 1975 conviction for second degree murder (12/3 at 41). The government introduced Mr. xxxx's employee time sheet which indicated that he worked in the morning and then took leave without pay from work on the afternoon of January 9, 1992 (12/3 at 47, 59; Government's Exhibit 26-D).

In addition, Mr. xxxx presented evidence that another person, Rodney Campbell, was a suspect in the first five robberies. Detective Shinton of the Metropolitan Police Department investigated the robberies of the Citizens National Bank and of the Palmer National Bank (12/3 at 22). Detective Shinton testified that following the December 24, 1991 robbery of Palmer National Bank, a report was prepared based on the interviews with the witnesses to the robbery (12/3 at 26). The report stated that,

[t]he Robbery Branch has developed a suspect, Rodney Campbell. Mr. Campbell was charged in connection with a bank robbery, but at this time has been released on bond. A lineup is scheduled and these complainants and witnesses should be encouraged to attend.

(Id.; Defense Exhibit 10). Rodney Campbell was a suspect in the five robberies occurring between November 22, 1991 and December 24, 1991 (12/3 at 28). Shinton testified that the police department eventually concluded that Rodney Campbell was not responsible for the robberies because Mr. Campbell's method was to brandish a weapon and then demand money rather than to use a written note and merely claim to have a weapon, and because the witnesses to the robberies failed to identify Rodney Campbell from a photo spread (12/3 at 29-30, 32).

xii. The District Court's Instruction To The Jury On The Offense Of Aggravated Bank Robbery.

In its instructions to the jury the district court explained aggravated bank robbery consistently with its view that words alone were enough to support a finding that the robber used a dangerous weapon or device ("There is evidence [of aggravated bank robbery] from the notes. There is evidence from oral assertions made contemporaneously to the teller who was being robbed. "I have a pistol. Hurry Up."). The district court instructed the jury that it could convict appellant of aggravated bank robbery if it found that any person in the bank at the time of the robbery reasonably believed that the robber might use a gun against him or her:

The essential elements of the offense of bank robbery while armed, each of which the government must prove beyond a reasonable doubt, are:

That the defendant took or attempted to take money from another person;

That at the time the money belonged to or was in the possession or custody of a bank;

That the defendant took or attempted to take the money by force and violence, or by intimidation;

And that the defendant assaulted any person, or put the life of any person in jeopardy by the use of a dangerous weapon, that is, a firearm, which committing the crime of bank robbery.

It is not necessary that the weapon have actually been used against any person, or that any person was killed or injured.

It is sufficient if any person in the bank at the time was menaced or threatened with the weapon to the extent that he or she reasonably believed that it might be immediately used against him or her.

(12/4 at 69) (emphasis added).

SUMMARY OF ARGUMENT

The district court erroneously instructed the jury that proof of aggravated bank robbery required no more than evidence that a person in the bank at the time of the robbery reasonably believed that the robber might use a weapon against him or her. Under 18 U.S.C. § 2113(d) aggravated bank robbery requires proof that the robber actually possessed a dangerous weapon or device.

The district court erroneously ruled that the robber's own claim that he had a weapon, in the absence of any display of a gun, was sufficient to sustain convictions for aggravated bank robbery "by the use of a dangerous weapon or device" under 18 U.S.C. § 2113(d). Because none of the witnesses to the nine robberies observed a dangerous instrumentality, or any instrumentality reasonably resembling a dangerous weapon, the district court should have granted Mr. xxxx's motions for judgment of acquittal on the aggravated bank robbery charges and allowed the jury to consider only the lesser offenses of simple bank robbery under 18 U.S.C. § 2113(a).

The district court abused its discretion by denying Mr. xxxx's motion to sever offenses. Because evidence of the nine bank robberies would not have been cross-admissible under Federal Rule of Evidence 404(b), joinder of the offenses for trial was prejudicial because of the possibility that the jury used evidence of one or more of the crimes to infer a criminal disposition from which to find his guilt of the other crime or crimes. Moreover, the government's failure to keep the evidence on each charged offense separate and distinct created the danger that the jury considered evidence of one or more robberies as propensity evidence of other charged robberies.

ARGUMENT

I. THE DISTRICT COURT ERRONEOUSLY INSTRUCTED THE JURY THAT PROOF OF AGGRAVATED BANK ROBBERY REQUIRED NO MORE THAN A VICTIM'S REASONABLE BELIEF THAT HE OR SHE WAS IN DANGER OF HAVING A WEAPON USED AGAINST HIM OR HER.

A. Standard Of Review

This Court reviews the district court's instructions to the jury de novo. United States v. Edelin, 996 F.2d 1238 (D.C. Cir. 1993), cert. denied, 114 S.Ct. 895 (1994); Cage v. Louisiana, 498 U.S. 39 (1990).

B. The District Court's Instruction To The Jury Explaining Aggravated Bank Robbery Under 18 U.S.C. § 2113(d) Was Erroneous.

The district court's instruction to the jury explaining that aggravated bank robbery was proved if any person in the bank during the robbery had a reasonable belief that a weapon might be used against him or her was erroneous. The federal bank robbery statute is found at 18 U.S.C. § 2113. Section 2113(a) proscribes bank robbery "by force and violence, or by intimidation," and authorizes imprisonment of violators for up to 20 years, while Section 2113(d) provides that anyone who, while robbing a bank "assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device" may be imprisoned for up to 25 years. ⁽¹⁴⁾ Thus, Section 2113(d) requires proof that the robber actually possessed a weapon and proof that the robbery was perpetrated "by the use of a dangerous weapon or device." A witness's beliefs are not relevant to those elements. United States v. David Ray, No. 92-3261 (D.C. Cir. April 22, 1994). This Court's recent decision in Ray requires the reversal of Mr. xxxx's convictions on the charge of aggravated bank robbery under 18 U.S.C. § 2113(d).

The facts of Ray are virtually indistinguishable from the facts of this case. In Ray, the defendant robbed two banks, both times instructing the tellers to give him money or he would "blow [her] head off." Id. at 2. The witnesses did not see a weapon or the outline of a weapon, but the defendant moved his hand in and out of his pocket. Id. No weapon was recovered after the defendant's arrest and the driver of the get-away car testified for the government that he had not seen the defendant with a gun. Id. The district court instructed the jury:

the government must prove that the defendant during the commission of the bank robbery committed acts or said words that would have caused an ordinary person reasonably to expect to die or face serious injury by the defendant's use of a dangerous weapon or device.

Id. at 3. A panel of this court held that the district court's instruction was erroneous because it

authorized the jury to convict on the aggravated bank robbery charges regardless whether Ray had a weapon hidden in his pocket. Everything turned on what a reasonable person would perceive from Ray's threats and actions. Nothing depended on whether Ray actually had a weapon or other object, whether he displayed any object, or whether he could have carried out his threats.

Id.

In the instant case, the robber made statements, orally and in notes, asserting that he had a pistol and pulled at the bottom of his coat or put his hand in his coat pocket. None of the witnesses saw a gun or the outline of a gun. The district court's instruction allowed the jury to convict on aggravated bank robbery charges regardless of whether the robber actually possessed a dangerous weapon or device by explaining to the jury:

[I]t is sufficient if any person in the bank at the time was menaced or threatened with the weapon to the extent that he or she reasonably believed that it might be immediately used against him or her.

(12/4 at 69).

The district court's instruction to the jury in this case created the same problem that existed in Ray. In both cases the jury instruction allowed the jury to convict even if it concluded that the defendant had not possessed a weapon so long as the jury thought that it was reasonable for a person in the bank during the robbery to have believed that the robber possessed a weapon. Here, the jury was authorized to convict Mr. xxxx if it found that a witness reasonably feared the possibility that the robber would use a gun or, as the district court put it, if a witness "reasonably believed that it might be used against him or her."

By authorizing the jury to convict Mr. xxxx based on a witness's fear that the robber might possess and use a gun, the instruction eliminated the distinction between simple bank robbery and aggravated bank robbery. A bank robbery under Section 2113(a) is that which is committed "by force and violence, or by intimidation." Aggravated bank robbery under Section 2113(d) is committed by assaulting or putting in jeopardy the life of any person "by the use of a dangerous weapon or device" under Section 2113(d). As the Solicitor General has observed, "[r]obbers frequently pass notes to tellers demanding money and suggesting that they are armed, although they may be unarmed. In such cases, Section 2113(a) clearly applies and Section 2113(d) does not." Brief for the United States at 18, McLaughlin v. United States, 476 U.S. 16 (1986) (No. 85-5189), quoted in United States v. Ray, slip op. at 5. In the cases described by the Solicitor General, the tellers and witnesses no doubt reasonably would have believed that the robber did, in fact, possess the gun that he claimed to possess. If a defendant may be convicted based on that reasonable fear, however, the distinction between Section 2113(a) and Section 2113(d) is nullified. As a panel of this Court explained in Ray, the issue for the jury's determination is

not what a reasonable person would perceive from what the defendant did in the bank. It is whether the evidence, including not only what occurred in the bank but also all other evidence bearing on the matter, is sufficient to show that the defendant had a firearm.

Id. at 15-16 n.15. ⁽¹⁵⁾ Because the district court's instruction permitted the jury to convict Mr. xxxx of Section 2113(d) offenses based solely on the witnesses' belief that the robber might have had a weapon, the convictions must be reversed and the case remanded for a new trial.

II. THE DISTRICT COURT ERRONEOUSLY DENIED MR. xxxx'S MOTIONS FOR JUDGMENT OF ACQUITTAL ON THE CHARGES OF AGGRAVATED BANK ROBBERY WHERE NO WEAPON WAS DISPLAYED, BRANDISHED, OR OBSERVED BY ANY WITNESS AND WHERE THE ONLY EVIDENCE OF BANK ROBBERY "BY THE USE OF A DANGEROUS WEAPON OR DEVICE" WAS THE ROBBER'S OWN CLAIM THAT HE HAD A GUN AND HIS GESTURES.

A. Standard Of Review

The Court reviews the record to determine whether, viewing the evidence in the light most favorable to the government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Teffera, 985 F.2d 1082, 1085 (D.C. Cir. 1993), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Court must reverse the challenged convictions if "a reasonable mind could not conclude beyond a reasonable doubt that [the defendant] was guilty." United States v. Powell, 929 F.2d 724, 725 (D.C. Cir. 1991).

B. There Was Insufficient Evidence That The Bank Robber Used A Dangerous Weapon Or A Dangerous Device.

Mere gestures and claims by a bank robber that he is in possession of a gun are insufficient to establish a bank robbery "by the use of a dangerous weapon or device." 18 U.S.C. § 2113(d). Because none of the sixteen witnesses to the bank robberies observed a dangerous weapon or device, or even an object reasonably resembling a dangerous weapon or device, the district court should have granted Mr. xxxx's motion for judgment of acquittal on all of the counts charging aggravated bank robbery under Section 2113(d). ⁽¹⁶⁾

An essential element of the aggravated bank robbery statute is robbery "by the use of a dangerous weapon or device." ⁽¹⁷⁾ The types of instrumentalities that can be a dangerous weapon or a dangerous device have been broadly interpreted. For example, an inoperable gun can be a dangerous weapon, United States v. York, 830 F.2d 885 (8th Cir. 1987), cert. denied, 484 U.S. 1074 (1988), as can be an unloaded gun. McLaughlin v. United States, 476 U.S. 16 (1986) (an unloaded gun is a "dangerous weapon" within the meaning of the federal bank robbery statute). Even a toy gun can be a dangerous weapon. United States v. DeAngelo, 13 F.3d 1228 (8th Cir. 1994) (a toy gun can be a dangerous weapon for purposes of 18 U.S.C. § 2113(d)); United States v. Garrett, 3 F.3d 390 (11th Cir. 1993) (same), cert. denied, 114 S.Ct. 1100 (1994); United States v. Cannon, 903 F.2d 849 (1st Cir.) (same), cert. denied, 498 U.S. 1014 (1990); United States v. Medved, 905 F.2d 935 (6th Cir. 1990) (same), cert. denied, 498 U.S. 1101 (1991); United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir.) (same), cert. denied, 489 U.S. 1099 (1989).

Threatening words and gestures, however, while sufficient to establish simple bank robbery for purposes of Section 2113(a) -- a taking "by force and violence, or by intimidation" -- are insufficient to establish aggravated bank robbery "by the use of a dangerous weapon or device." See, e.g., United States v. Jacquillon, 469 F.2d 380, 384 (5th Cir. 1972) (evidence established bank robbery by intimidation where robber produced note stating, "I have a gun. Give me all big bills or I will shoot you."), cert. denied, 410 U.S. 938 (1973); United States v. Epps, 438 F.2d 1192, 1193 (4th Cir. 1971) (evidence established bank robbery by intimidation where robber produced note stating, "Put all your money in this bag and nobody will get hurt."). The plain language of 18 U.S.C. § 2113(d) requires more than intimidating words or conduct; it requires the actual possession and the display of a dangerous instrumentality. The Solicitor General and the First, Second and Sixth Circuits have taken the position that a mere assertion by a bank robber that he or she is armed is not, without more, the "use" of a dangerous weapon.

In the view of the Solicitor General,

[r]obbers frequently pass notes to tellers demanding money and suggesting that they are armed, although they may be unarmed. In such cases, Section 2113(a) applies although Section 2113(d) may not.

Even in the case of a robber who is in fact armed, there are situations where Section 2113(a) applies although Section 2113(d) may not. For example, if a robber approaches a teller and demands money, without displaying a weapon, it appears that the robber would not be subject to punishment under Section 2113(d) even if in fact the robber has a concealed weapon. The reason for that, in the language of the statute, is that the robber has not "used" the weapon to "assault" anyone, as Section 2113(d) requires. By keeping his weapon concealed, the robber has not created the sort of charged atmosphere likely to provoke violence described by the Fourth Circuit in [United States v.] Bennett[, 675 F.2d 596 (4th Cir.), cert. denied, 456 U.S. 1001 (1982)]. A robber who might have a gun in his pocket may inspire some apprehension, but certainly not to the same degree as a robber who has a gun in his hand, especially one who is pointing it at someone.

Brief for United States at 18-20, McLaughlin v. United States, 476 U.S. 16 (1991) (No. 85-5189).

The Sixth Circuit, in United States v. Perry, 991 F.2d 304 (6th Cir. 1993), addressed the question of when an instrumentality has been "used" under Section 2113(d). During the bank robbery in that case, the defendant opened his jacket and put his hand in the jacket as though he were going to retrieve a gun. Id. He did not, however, retrieve a gun, and the victim teller did not see anything resembling a gun. The defendant later admitted to a third party that he had carried a wooden gun during the bank robbery and had intended to display the wooden gun, but was unable to do so because the gun had gotten stuck in his pants when he tried to display it. Id. The wooden gun was recovered and was introduced at trial. The court held that the wooden gun had not been "used" to assault or place in jeopardy the life of any person. Id. at 308-309. The court explained that under the statute,

use plainly connotes something more than "possession." Congress could have provided for enhanced statutory penalties whenever a gun was "possessed." Congress did not. Congress could have provided for enhanced statutory penalties whenever the perpetrator of a § 2113(a) or (b) offense caused his victim to fear that the victim's life might be endangered because of a dangerous weapon. Congress did not. Neither the plain language of the statute nor case law construing this statute supports an extension of "use of a dangerous weapon" to include the concealed possession of a nongenuine gun.

Id. at 309 (footnotes omitted). See also, United States v. Benson, 918 F.2d 1, 4 n.7 (1st Cir. 1990) ("subsection 2113(d) would not apply where there was no more than a threat to use violence and no dangerous weapon was used"); United States v. Wardy, 777 F.2d 101, 105 (2d Cir. 1985) ("if the police apprehended a bank robber during the course of a robbery and subsequently discovered that he carried a gun concealed in his belt or in a shoulder holster, a conviction under Section 2113(d) would probably be unwarranted."), cert. denied, 475 U.S. 1053 (1986).

In four of the seven robberies for which Mr. xxxx was convicted of a violation of Section 2113(d), there was no evidence (other than the robber's own claims) ⁽¹⁸⁾ that any instrumentality, dangerous or otherwise, was used or even was possessed by the robber. The witnesses to those robberies did not observe the robber display any instrumentality at all. Thus, the evidence is clearly insufficient to sustain those convictions and they must, therefore, be vacated.

In the other two robberies, witnesses saw "something brown" and "something that looked like it was silver," respectively, in the area of the robber's waistband (11/30 at 55; 12/1 at 124). However, the witness who observed "something brown" was unable to describe the object any further and testified that she did not see a weapon or any object that she believed to be a weapon (11/30 at 60). Similarly, the witness who observed the robber put his hand around "something that looked like it was silver" that was in his waistband did not see anything that she could identify as a part of a gun (12/1 at 124, 133).

The testimony in both of these instances also is insufficient to sustain a conviction under Section 2113(d). Without more, "something brown" and "something that looked like it was silver" are both insufficient to infer that a dangerous weapon or device was used during the robbery. In United States v. Cobb, 558 F.2d 486 (8th Cir. 1977), the Eighth Circuit addressed the sufficiency of similar evidence. There, the victim teller testified that the bank robber held an object that was wrapped in a newspaper, from which she could see "two dark holes that appeared to be hollow protruding from the newspaper held by the robber." Id. at 488. The teller believed the object to be a sawed-off shotgun, although she could not see any part of the wrapped object except the holes. Id. The court held that the testimony regarding the "holes" within the wrapped newspaper was insufficient to establish that a gun was used in the robbery, but was sufficient to prove bank robbery by intimidation under Section 2113(a). Id. at 489.

Likewise, under these circumstances, the testimony of two tellers who might have apprehended the presence of a weapon, but who each saw nothing more than the color of an object, is insufficient, without more, to sustain a conviction for bank robbery "by the use of a dangerous weapon or device." "A jury is entitled to draw a vast range of reasonable inferences from evidence, but may not base a verdict on mere speculation." United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir.), cert. denied, 498 U.S. 948 (1990). Mr. xxxx's two convictions based upon testimony concerning a brown object and a silver object, respectively, about which the jurors knew no more than the color of an unidentified object, must necessarily be based on mere speculation. Therefore, these convictions, as well as the five convictions for which there was no independent evidence of the use of a dangerous instrumentality, must be vacated.

C. The Majority Panel's Decision In United States v. David Ray Was Wrongly Decided

The decision by the panel majority in United States v. David Ray, No. 92-3261 (D.C. Cir. April 22, 1994), stands alone in holding that a bank robber "uses" a dangerous weapon when he claims to have a dangerous weapon even where no weapon is displayed, brandished, or observed by the witnesses. The panel's interpretation of 18 U.S.C. 2113(d) is inconsistent with the plain language of the statute and conflicts with the statutory interpretation applied by the Supreme Court in McLaughlin v. United States, 476 U.S. 16 (1986), by other courts of appeals and by the Solicitor General, destroys the distinction between Section 2113(a) and Section 2113(d), and is logically fallacious. The Supreme Court in McLaughlin v. United States, 476 U.S. 16, 17-18 (1986), held that an unloaded gun displayed during a bank robbery is a "dangerous weapon" that puts in jeopardy the lives of those in the bank at the time of the robbery. The Court reasoned that the enhanced penalties of Section 2113(d) apply because "the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue." (emphasis added) (footnote omitted). The panel in Ray has taken the unprecedented step of holding that the mere threat of a concealed gun, even without the "display" contemplated by the Supreme Court in McLaughlin, also should subject the robber to the enhanced penalties of Section 2113(d). The panel majority reasoned that when a bank robber claims to have a weapon he has "verbally brandishe[d]" a dangerous weapon. Ray, slip op. at 15. According to the panel's reasoning, the statutory elements of Section 2113(d) are satisfied because actual possession of a dangerous weapon is proved by the "verbal[] brandish[ing]" and, likewise, the "use" of a dangerous weapon is proved by the "verbal[] brandishing." Id.

As appellant illustrated supra at 26-28, the plain language of the aggravated bank robbery statute requires more than intimidating words or gestures; it requires the actual possession and the display of a dangerous weapon or device. In the words of the dissent in Ray, "a Section 2113(d) conviction cannot be sustained merely on the basis of words and gestures but requires exhibition of some physical object which could reasonably be believed to be a dangerous device." Id. at 2-3 (Will, J., dissenting) (footnote omitted). Judge Will's interpretation of the statutory requirements, rejected by the panel majority, is consistent with that of the other courts of appeals. See supra at 27-28, citing United States v. Perry, 991 F.2d 304 (6th Cir. 1993); United States v. Benson, 918 F.2d 1, 4 (1st Cir. 1990); United States v. Wardy, 777 F.2d 101, 105 (2d Cir. 1985), cert. denied, 475 U.S. 1053 (1986).

Because the Ray panel concludes that a robber who claims to have a gun heightens the prospect of violence to the same degree as a robber who actually brandishes a gun, it finds that the enhanced penalty of Section 2113(d) should apply equally to the robber who merely claims to be armed. Ray, slip op. at 15. The panel then supports its policy statement by holding that a robber who claims to be armed has "used" a gun because he has, "in effect, "verbally brandishe[d]" a gun. Id. However, neither Congress nor the Supreme Court has equated "verbally brandish[ing]" a gun with the actual "display of a gun." McLaughlin v. United States, 476 U.S. at 17-18 (emphasis added).

The robber's words and gestures, according to the panel majority, also are sufficient to prove that the robber actually possessed a weapon. See Ray, slip op. at 13 ("As to the evidence, there was proof that Ray possessed a firearm each time he robbed the bank. The most telling item consisted of Ray's threat to blow the teller's head off"). It is a novel approach to the beyond-a-reasonable-doubt standard to permit a conviction of actual possession based merely on words and gestures where no weapon was actually recovered and where no weapon was observed during the crime. In the words of the dissenting author:

I do not see how a jury can determine, beyond a reasonable doubt, absent any evidence other than statements and gestures, that 'he in fact had an actual firearm and used it by threatening others with it.' This approves precisely the kind of speculating which jurors should not do and courts should not permit much less encourage them to do. Yet, since jurors are not omniscient or endowed with divine knowledge, that is exactly what the majority would authorize them to do.

Id. at 6 (Will, J., dissenting). And, as the panel majority points out, a review of reported prosecutions involving Section 2113(d) reveals that in each of the cases there was direct evidence that the robber actually possessed an ostensibly dangerous weapon since a weapon was actually displayed during the robbery. Id. at 9 n.7.

Even if there is uncertainty about what is required to prove actual possession in the context of Section 2113(d), the rule of lenity requires ambiguity to be resolved in favor of the defendant. In Part I of the Ray opinion the majority panel held that "it is at best highly debatable that a dangerous 'device' under § 2113(d) may consist merely of a robber's words and gestures," and applied the rule of lenity. Id. at 12. It is just as debatable that proof of actual possession of a weapon may consist merely of a robber's words and gestures. As the panel majority held in Part I, if the language of the statute is ambiguous, "[a]ny lingering doubts about the meaning of § 2113(d) are laid to rest by the rule of lenity." Id. at 11.

Moreover, the panel's decision "permits blurring if not erasing the clear line between § 2113(a) and § 2113(d) drawn by the Solicitor General and all the cases . . . ." Id. at 3 (Will, J., dissenting). The federal bank robbery statute distinguishes between robberies by the use of intimidation or force and violence (Section 2113(a)) and robberies by the use of a dangerous weapon or device (Section 2113(d)). While bank robbers frequently intimidate tellers by suggesting that they are armed, Congress has chosen to penalize such intimidation under Section 2113(a). As the dissent points out, "from the perspective of the teller, words and gestures may be as forceful or intimidating as a gun. Section 2113(a) clearly covers both." Id. at 6 (Will, J., dissenting). Under the panel's decision in Ray, contrary to the clear intent of Congress in enacting a separate provision, Section 2113(d) now also covers both.

Finally, the panel in Ray reached its conclusion by using the robber's threatening claim that he had gun a to prove both that he actually possessed a gun and that he "used" it. Most respectfully, the Court's analysis is logically fallacious. Ray holds that words and gestures alone are not enough to sustain a conviction under Section 2113(d), but where a bank robber 1) is in actual possession of a dangerous weapon, and 2) refers to it by words and gestures, the robber has "used" a dangerous weapon under that section. Id. at 15. Thus stated, the two components of "use" (threatening words and gestures and actual possession) are logically independent. ⁽¹⁹⁾ Having established two independent elements -- actual possession and threatening words and gestures -- the panel then created a logical fallacy by treating the actual possession element as implicitly proved by the threat. The panel held that Mr. Ray's threat to "blow the teller's head off" proved that he actually possessed a weapon, and his actual possession, combined with that same threat, constituted "use." Id. at 13. Thus, the entire equation reduces to the proposition that a bank robber violates Section 2113(d) if he uses words and gestures to imply that he is armed, a proposition that even the panel majority admits is untenable.

III. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT DENIED MR. xxxx'S MOTION TO SEVER OFFENSES UNDER RULE 14 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE.

A. Standard Of Review

This court reviews the district court's denial of appellant's motion to sever offenses under Rule 14 of the Federal Rules of Criminal Procedure for abuse of discretion. United States v. Brown, 16 F.3d 423 (1994).

B. Joinder Of The Nine Robberies For Trial Was Prejudicial Because Evidence Of Each Of The Nine Robbery Offenses Was Not Cross-Admissible And Because Evidence Of The Offenses Was Not Kept Separate And Distinct.

i. Introduction

Generally, the prosecution may not introduce at the trial of a defendant on one charge evidence that the defendant has on another occasion committed some other crime. Under Federal Rule of Evidence 404(b), ⁽²⁰⁾ evidence of such other crimes is not admissible to prove criminal disposition but may be admitted if it is relevant to a material issue other than character, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. United States v. Manner, 887 F.2d 317, 321 (D.C. Cir. 1989), cert. denied, 493 U.S. 1062 (1990). Even when admissible, however, evidence of other crimes must be excluded if the danger of criminal propensity prejudice substantially outweighs the probative value of the evidence. Federal Rule of Evidence 403. ⁽²¹⁾ These established evidentiary rules rest upon the legitimate concerns that the jury may convict an accused not because he is guilty of the crime charged but because of his prior or subsequent misdeeds or will infer that because the accused committed other crimes, he probably committed the crime charged.

A severance of offenses should be granted under Rule 14 of the Federal Rules of Criminal Procedure ⁽²²⁾ where evidence of other crimes would not be admissible in a separate trial and where, even if such other crimes evidence were admissible, the evidence of each offense would not be simple and distinct in a joint trial. Drew v. United States, 331 F.2d 85, 90-91 (D.C. Cir. 1964). In this regard, if the evidence of the joined offenses would be admissible in a separate trial under one of the Rule 404(b) exceptions, the accused suffers no prejudice from a joint trial of offenses. United States v. Lane, 474 U.S. 438, 450 (1986). Moreover, even where the evidence on separate counts is not cross-admissible, if the offenses charged are sufficiently distinct in nature and the prosecution presents its evidence on each offense in a manner that is not confusing and permits the jury to treat the evidence relevant to each charge separately and distinctly, a severance is not required. Drew v. United States, 331 F.2d at 91-92. Applying these principles to the offenses charged and the evidence admitted in the instant case, it is clear that because prejudice resulted from the jury's hearing evidence of other crimes that would not have been admissible in a separate trial and was not simple and distinct, the trial court should have ordered a severance of offenses.

ii. Evidence Of The Robberies Was Not Cross-Admissible.

This Court, in Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964), outlined four ways in which a defendant might be prejudiced by joinder:

1) he may become embarrassed or confounded in presenting separate defenses; 2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; . . . 3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. . . . [and 4)] [a] less tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one.

Id. at 88. On the facts presented by Drew, this Court concluded that the joinder of the offenses prejudiced the defendant in two respects: first, he was prejudiced by the possibility that the jury used the evidence of one crime to convict of the other based on a perceived propensity, and second, he was prejudiced by the possibility that the jury cumulated the evidence to find guilt on both charges.

The facts of this case parallel those in Drew, where this Court found that the evidence of the robbery and attempted robbery charges would not have been admissible in a trial of the other. In Drew, a High's grocery stores was robbed by a person described as black, male, and wearing sunglasses. Two and one-half weeks later, a person described as black, male, wearing sunglasses, a coat and a cap attempted to rob a different High's store. Both clerk victims identified Mr. Drew as the robber. Id. at 92. The government argued that each of the two crimes would have been admissible at a trial of the other under the identity exception to the rule against admission of other crimes evidence. However, because a threat of violence was used in the robbery but not in the attempted robbery the similarities in the manner in which the two offenses were committed were not sufficient to permit admission of one crime at the trial of another under the identity exception. Id.

Similarly, here evidence of each of the nine robberies would not each have been admissible at a trial of the others because the descriptions of the robber were not sufficiently similar to warrant admission under the identity exception, or any other exception, to Rule 404(b). For example, the perpetrator of the December 9th and December 16th robberies was six feet tall, whereas the perpetrator of the December 22nd, December 24th (of Citizens Bank of Washington) and December 30th robberies was 6'2", the perpetrator of the January 6th robbery was 6'4" and the perpetrator of the January 9th robbery was 5'9". The perpetrator of the December 9th robbery sported a mustache and the perpetrator of the January 9th robbery sported a "rough beard," yet the perpetrator of the other robberies was clean shaven. The perpetrator of the December 9th robbery wore a blue coat, the perpetrator of the December 24th robbery (of Palmer National Bank) wore a blue or a green coat, the perpetrator of the December 30th and January 6th robberies wore a turquoise coat, and the perpetrator of the December 16th, December 22nd, and December 24th (of Citizens Bank of Washington) wore a green coat. Finally, while seven eyewitnesses who viewed the line-up identified Mr. xxxx as the robber of their respective banks, six witnesses did not identify Mr. xxxx as the robber.

As these examples illustrate, the descriptions of the perpetrator(s) of the nine robbers were not sufficiently similar to justify cross-admissibility of evidence of each of the offenses at a trial of another. See Drew, supra; United States v. Nicely, 922 F.2d 850, 856-58 (D.C. Cir. 1991) (convictions reversed for failure to sever under Rule 14 where evidence relating to two separate charged conspiracies -- one to defraud the government and the other to launder money -- was not cross-admissible under Rule 404(b)). Thus, Mr. xxxx was prejudiced by the possibility that the jury used the evidence of one or more of the robberies to convict an any single robbery based on perceived criminal propensity or cumulated the evidence of the nine robberies to find guilt on all of the robberies.

The joinder of the offenses was especially dangerous here because the possibility of criminal propensity prejudice is greatest when unrelated offenses are joined because they are similar. United States v. Burkley, 591 F.2d 903, 921 n.37 (D.C. Cir. 1978), cert. denied, 440 U.S. 966 (1979). In the instant case, not only were the charged offenses similar, they were exactly the same -- nine bank robberies. Thus, Mr. xxxx was prejudiced because his alleged commission of any of the nine robberies would be highly inflammatory in the minds of jurors simultaneously considering his guilt of the other robberies. There is a very real danger that the jury may have treated this "assumed criminal disposition" of Mr. xxxx as evidence that he committed each of the nine robberies. United States v. Burkley, 591 F.2d at 919.

iii. Evidence Of The Nine Robberies Was Not Simple And Distinct.

Even if evidence of any single robbery would have been admissible at the trial of another robbery for a legitimate purpose, Mr. xxxx was prejudiced by the prosecutor's failure to keep its evidence and argument about the nine robberies simple and distinct. Drew, 331 F.2d at 91-92. There is a very real danger that the jury in the instant case could not have kept the evidence relating to the joined offenses separate in their deliberations.

First, the jury could have considered evidence of one or more robbery as corroborative of another. Cf. Dunaway v. United States, 205 F.2d 23, 26-27 (D.C. Cir. 1953) (reversal not required where evidence is separable and distinct with respect to each offense and offenses are of such nature that likelihood of jury have considered evidence of one as corroborative of the other is insubstantial).

Second, the presentation of the government's case did not keep simple and distinct the evidence of each of the nine robberies charged. The jury heard first about the November 22nd, December 9th, December 16th, and December 24th robberies in order, then again heard about the December 9th robbery, then December 16th, then December 24th, then again heard about December 16th, then December 24th again. While the confusing manner in which the separate cases were presented was in part due to the fact that some of the government's witnesses were witnesses to more than one robbery, the potential for prejudice to Mr. xxxx remains the same and the "lack of improper motivation does not lessen the[] impact on the jury." Drew, 331 F.2d at 94.

Finally, in his opening statement and his closing argument, the prosecutor lumped the offenses together rather than attempt to keep them separate and distinct as this Court instructed thirty years ago: "[i]f separate crimes are to be tried together . . . both court and counsel must recognize that they are assuming a difficult task the performance of which calls for a vigilant precision in speech and action far beyond that required in the ordinary trial." Id.

In his opening statement the prosecutor told the jury that

. . . about this time last year, Mr. Bernard xxxx was working two jobs. He wore a uniform, and he had a routine for each of those jobs.His legitimate job was working for the National Institute of Health taking care of their laboratory animals. His other job was robbing banks.

(11/25 at 14). The prosecutor expanded on that theme by telling the jury that Mr. xxxx had a uniform for his "legitimate job" and a uniform for his job "robbing banks" (11/25 at 14-15). In his summation to the jury the prosecutor returned to the theme by arguing that Mr. xxxx's "modus operandi" was to wear a "uniform" to rob banks: "[y]ou have heard about the m.o. that Mr. xxxx used to commit these bank robberies. You have heard about the uniform that he wore. The hats and the sunglasses that he used to disguise his identity makes sense for a bank robbery" (12/4 at 5-6). In his rebuttal closing argument the prosecutor told the jury that there was no question about the reliability of the identification of Mr. xxxx as the perpetrator of the nine robberies because the witnesses to the nine separate robberies were "different people at different times in different places, all pointing the finger in the same direction" (12/4 at 53).

Because the confusing presentation of the government's case and the prosecutor's opening statement and summation prevented the jury from keeping the evidence relating to the joined counts simple and distinct, Mr. xxxx was prejudiced by the joinder. See Drew, 331 F.2d at 93-94 (conviction reversed for prejudicial joinder where witnesses' responses indicated confusion as to which crimes counsel was referring to and where prosecutor's summation unnaturally lumped the crimes together in his discussion of the evidence).

CONCLUSION

For the reasons stated above the conviction should be reversed and a new trial should be ordered. Should the court affirm the district court's denial of Mr. xxxx's motion to sever offenses, the court should vacate the judgment of conviction under 18 U.S.C. § 2113(d) and remand for resentencing under 18 U.S.C. § 2113(a).

Respectfully submitted,

A. J. Kramer

Federal Public Defender

_________________________________

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W.,

Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing brief for appellant, Bernard xxxx, does not exceed the number of words permitted by Rule 28(d) of the General Rules of this Court.

_________________________________

Sandra G. Roland

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, Room 4229, 555 Fourth Street, N.W., Washington, D.C. 20001, this 6th day of June, 1994.

____________________________________

Sandra G. Roland

1. "11/23" refers to the transcript of the motions hearings held on November 23, 1992.

"11/24" refers to the transcript of the motions hearings held on November 24, 1992.

"11/25" refers to the transcript of the trial proceedings held on November 25, 1992.

"11/30" refers to the transcript of the trial proceedings held on November 30, 1992.

"12/1" refers to the transcript of the trial proceedings held on December 1, 1992.

"12/2" refers to the transcript of the trial proceedings held on December 2, 1992.

"12/3" refers to the transcript of the trial proceedings held on December 3, 1992.

"12/4" refers to the transcript of the trial proceedings held on December 4, 1992.

"4/7" refers to the transcript of the sentencing hearing held on April 7, 1993.

2. The government's exhibits are referred to in this brief simply as "Exhibit".

3. The specific identification testimony is included below in the discussions of each of the robberies.

4. Ms. Hawkins was only able to describe the robber's bib cap and nothing more (11/30 at 52, 60-61).

5. Ms. Hawkins recognized the robber as the same man who had robbed her on November 22, 1991, but again was unable to describe any of the robber's features and recalled only that he wore a blue jacket with an elastic bottom (11/30 at 54, 56, 60). Ms. Hawkins made an in-court identification of Mr. xxxx despite her testimony that she did not think she could recognize the robber (11/30 at 57-58).

Mr. Lumiado was unable to make an identification of the robber at a line-up in which Mr. xxxx stood, but provided a description of the robber and his clothing: six feet tall, mustache, wearing a dark blue waist length coat, dark sunglasses and a Redskins' baseball-type cap (12/1 at 27, 29-30). He identified the sunglasses seized from Mr. xxxx's car as "similar" to those which the robber wore (Exhibit 16; 12/1 at 27).

6. Each of the three witnesses heard somewhat different words from the robber.

Ms. Alston testified that the robber said, "Hurry up. Hurry up. Hurry up. Hurry up." (11/30 at 75, 84)

Ms. Austria testified that the robber "said that he has a pistol" (12/1 at 11).

Ms. Wiley testified that the robber said, "Give me all your money. Hurry up. Hurry up." (12/1 at 35).

Ms. Grant testified that the robber said, "Give it to me. All of it. Give it to me now." (12/1 at 45).

7. All four witnesses described the man as wearing a green jacket, a hat and sunglasses (11/30 at 73; 12/1 at 10-11, 36, 47). The descriptions of the hat ranged from a black skull cap to a black-and-beige or black-and-grey knitted ski cap, with the witnesses identifying two different hats that were seized from Mr. xxxx's car and house (11/30 at 73, 12/1 at 48; Exhibits 21-A and 17-B). With the exception of Ms. Grant, none of the witnesses were able to identify the sunglasses seized from Mr. xxxx's car as the sunglasses worn by the robber (11/30 at 77-78; 12/1 at 37, 48; Exhibit 16). Ms. Austria and Ms. Wiley identified the coat seized from Mr. xxxx's car as the coat worn by the robber, and Ms. Alston and Ms. Grant testified that the seized coat was the same color as the coat worn by the robber (11/30 at 77-78; 12/1 at 11-12, 37, 48; Exhibit 19).

The only descriptive information that Ms. Alston was able to give of the robber's features was that he was clean-shaven and dark complexioned (11/30 at 79-80). Ms. Wiley described the robber as six feet tall, slim, very dark complexioned and clean-shaven (12/1 at 43).

Ms. Alston attended a lineup at which she was unable to make a positive identification; referring to Mr. xxxx, she said that "looks like him, but he didn't have a mustache that day and he is not tall enough. I don't think that's him" (11/30 at 91, 95). She made an in-court identification of Mr. xxxx as the robber but qualified it by saying "I couldn't tell definitely" (11/30 at 84).

8. Ms. Austria and Ms. Grant both recognized the robber as the same person who had robbed the bank on December 16, 1991 (12/1 at 13, 50-51). The robber wore a green jacket, khaki pants, sunglasses, and a knitted ski hat (12/1 at 14, 16-17, 51). The hat was variously described as blue and as a green-and-red Christmas hat. The ski hat seized from Mr. xxxx's car was not the hat worn by the robber (12/1 at 14, 17, 21, 51, 60; Exhibit 17-B) and the sunglasses seized from Mr. xxxx's car were not the sunglasses worn by the robber (12/1 at 21). Ms. Grant described the robber as 6'2" tall, dark complexioned, clean-shaven with a thin nose (12/1 at 58-59).

Ms. Austria attended a lineup at which she initially identified someone other than Mr. xxxx, but then identified Mr. xxxx as the perpetrator (12/1 at 18). By the time of trial she was "one-hundred percent" sure of her identification of Mr. xxxx. Id. Both Ms. Austria and Ms. Grant made in-court identifications of Mr. xxxx (12/1 at 19-20, 56).

9. Karen Stone described the robber as dark complexioned, clean shaven, and 6'2" tall (12/1 at 72-73). He wore a winter skull cap, a light or dark green coat, jeans, and round sunglasses (12/1 at 71-72, 91-92). Ms. Stone and Mr. Analechi disagreed about whether the sunglasses seized from Mr. xxxx's car were the sunglasses worn by the robber (12/1 at 72, 92; Exhibit 16). The coat seized from Mr. xxxx's car was not the coat worn by the robber. Id.

Mr. Midgette identified Mr. xxxx at a lineup and testified during trial that Mr. xxxx looked like the robber (12/1 at 109). Ms. Barnet attended a lineup at which she said, "I don't remember, I am not sure," then said that Mr. xxxx looked "familiar" and finally concluded, "I am not sure" (12/1 at 116). Mr. Analechi made an in-court identification of Mr. xxxx (12/1 at 99).

10. Loretta Caldwell and Lajuan Morant both described the robber as looking like he had tar on his face, because he was "real, real dark." (12/1 at 128, 143). They disagreed about whether the robber's coat was green or blue, but agreed that he wore dark sunglasses and a hat (12/1 at 128-129, 143). Ms. Morant described the coat worn by the robber as a royal blue "Members Only" coat, but then identified the green coat seized from Mr. xxxx's car as the coat worn by the robber (12/1 at 143-144, 146). Ms. Caldwell could not say that the sunglasses seized from Mr. xxxx's car were the same as the sunglasses worn by the robber, but Ms. Morant believed that they were the same (12/1 at 129, 144).

Ms. Caldwell identified Mr. xxxx at a lineup and made an in-court identification (12/1 at 129). Ms. Morant identified Mr. xxxx from a photograph of the lineup and made an in-court identification of Mr. xxxx (12/1 at 144-145).

11. Mr. Miranda testified that the blue knit hat with a pom-pom that was seized from Mr. xxxx's house looked like the hat worn by the robber (12/2 at 83). Mr. Miranda identified at the lineup someone other than Mr. xxxx (12/2 at 96).

Ms. Holmes-Williams testified that the robber was 6'2" tall, dark complexioned (12/2 at 53). She described the robber's clothing as a bright turquoise colored jacket, a dark hat and sunglasses (12/2 at 39). She testified that the coat seized from Mr. xxxx's car was the same color as the coat worn by the robber, that the sunglasses seized from his car looked like the sunglasses worn by the robber, and that the hat seized from Mr. xxxx's house looked like the hat worn by the robber (12/2 at 39-40; Exhibits 19, 16 and 21-B). Ms. Holmes-Williams attended a lineup at which she identified Mr. xxxx (12/2 at 46). When asked whether she saw the robber in the courtroom, she testified that Mr. xxxx looked like the robber (12/2 at 47).

12. Mr. Miranda and Ms. Holmes-Williams recognized the robber as the same man who robbed the bank on December 30, 1991 (12/2 at 41, 84). Ms. Holmes-Williams described the robber as 6'4" tall (12/2 at 57). She testified that he wore the same coat and sunglasses that he had worn on December 30, 1991, but wore a different hat (12/2 at 44-45).

13. Ms. Holt described the robber as 5'9" to 6 feet tall, medium build, with a rough beard (12/2 at 108). Ms. Holt and Ms. Reilly disagreed about whether the robber wore a lightweight jacket or a heavy jacket, but agreed that he wore a hat and sunglasses (12/2 at 106, 116, 120). Ms. Holt further described the robber as wearing dark sweat pants, tennis shoes, and white athletic socks (12/2 at 106). Ms. Holt could not identified the sunglasses or the tennis shoes seized from Mr. xxxx's car and house as those worn by the robber (12/2 at 106; Exhibits 16 and 22).

Ms. Holt and Ms. Reilly attended a lineup at which they identified Mr. xxxx (12/2 at 107, 117). Ms. Reilly made an in-court identification of Mr. xxxx (12/2 at 121).

14. 18 U.S.C. § 2113(a) provides, in pertinent part,Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another . . . any property or money or anything of value belonging to, or in the care, custody, control, management, or possession of, any bank . . . . [s]hall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

18 U.S.C. § 2113(d) provides that,Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.

The phrase "by the use of a dangerous weapon or device" contained in § 2113(d) modifies both the "assault" provision and the "puts in jeopardy" provision of that subsection. Simpson v. United States, 435 U.S. 6 (1978).

15. This Court's conclusion in Ray echoes the position of the Solicitor General and decisions of other courts of appeals. See e.g., Brief for the United States, McLaughlin v. United States, 476 U.S. 16 (1986) (No. 85-5189); United States v. Perry, 991 F.2d 304 (6th Cir. 1993) (Section 2113(d) does not provide for enhanced penalties where the robbery caused the victim to fear that his or her life might be endangered); United States v. Benson, 918 F.2d 1, 4 n.7 (1st Cir. 1990) ("subsection 2113(d) would not apply where there was no more than a threat to use violence and no dangerous weapon was used").

16. Appellant acknowledges that a panel of this Court rejected essentially the same argument in United States v. David Ray, No. 92-3261 (D.C. Cir. April 22, 1994). Appellant respectfully suggests that Ray is wrongly decided to the extent that it holds that where a bank robber does not display or brandish a weapon and the witnesses do not observe a weapon or the outline of a weapon, a robber's claim to be armed and his gestures are sufficient to prove that the robber actually possessed a weapon and "used" the weapon and, thereby sufficient to sustain a conviction for aggravated bank robbery. Recognizing that a panel of this Court cannot overrule the decision of another panel, Mr. xxxx has filed contemporaneously with this brief a suggestion for initial hearing en banc on this issue. The Ray decision is discussed more fully in Argument Point II, Section C at 31-36, infra.

17. Here, the indictment specifically charged that Mr. xxxx "did assault and put in jeopardy the life of another person by the use of a dangerous weapon and device, that is a firearm." (A. at 1-8) (emphasis added).

18. Mr. xxxx was convicted on seven counts of aggravated bank robbery. In five of those charged bank robberies the robber claimed to have a weapon. In the December 24, 1991 robbery of the Palmer National Bank, however, the robber made no claim to be armed but merely passed the teller a note stating, "Give all fifty and hundred bills now." (12/1 at 67-69, 76, 87-88, 94, 104-105). Clearly, the evidence of aggravated bank robbery is insufficient on this charge.

19. As the Ray court admits, a bank robber who made threatening references to a weapon but who did not actually possess a weapon would not have violated Section 2113(d). Id. at 15, n.15 (a bank robber who threatened to shoot the teller but who was "only bluffing" since he did not actually possess a weapon has not violated Section 2113(d)). Likewise, a bank robber who actually possessed a dangerous weapon during a robbery but made no reference to it also would not have violated Section 2113(d). See United States v. Perry, 991 F.2d 304 (6th Cir. 1993) ("Neither the plain language of the statute nor case law construing this statute supports an extension of 'use of a dangerous weapon' to include the concealed possession of a nongenuine gun); Cf. United States v. Bruce, 939 F.2d 1053, 1054 (D.C. Cir. 1991) (for purposes of 18 U.S.C. § 924(c) mere possession of a gun at the time of the crime is not enough to establish use).

20. Rule 404(b) of the Federal Rules of Evidence provides, in pertinent part:Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .

21. Rule 403 of the Federal Rules of Evidence provides:Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

22. Rule 14 provides, in pertinent part, [i]f it appears that a defendant or the government is prejudiced by a joinder of offenses . . . in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts . . . or provide whatever other relief justice requires.