UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4728
JAMES COURY HOLMES,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4738
MARCUS MANDEL ELLIS,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-00-107)
Argued: November 2, 2001
Decided: March 21, 2002
Before WIDENER, WILKINS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Richard Dwight Biggs, LAW OFFICE OF MARCIA G.
SHEIN, P.C., Decatur, Georgia, for Appellant Holmes; David Garri-
2 UNITED STATES v. HOLMES
son Hill, HILL & HILL, L.L.C., Greenville, South Carolina, for
Appellant Ellis. E. Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee. ON BRIEF: Marcia G.
Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C., Decatur, Geor-
gia, for Appellant Holmes. Scott N. Schools, United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellants James C. Holmes and Marcus M. Ellis were convicted
by a jury of four counts of armed bank robbery, see 18 U.S.C.A.
§ 2113(a), (d) (West 2000), and four counts of using and carrying a
firearm in relation to a crime of violence, see 18 U.S.C.A.
§ 924(c)(1)(A) (West 2000). Holmes and Ellis received prison sen-
tences of 1,057 months and 1,135 months, respectively. They chal-
lenge their convictions on multiple grounds.
I.
Holmes and Ellis contend that the evidence was insufficient to sus-
tain the jury’s verdict. In assessing the sufficiency of the evidence of
a criminal conviction on direct review, we must sustain the jury’s ver-
dict "if there is substantial evidence, taking the view most favorable
to the Government, to support it." Glasser v. United States, 315 U.S.
60, 80 (1942). Substantial evidence means "evidence that a reasonable
finder of fact could accept as adequate and sufficient to support a con-
clusion of a defendant’s guilt beyond a reasonable doubt." United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
With regard to the bank robbery charges, the government was
required to prove that the defendants took money or property from a
UNITED STATES v. HOLMES 3
bank "by force and violence, or by intimidation," 18 U.S.C.A.
§ 2113(a), and that in doing so they used a dangerous weapon to "as-
sault[ ] any person" or "put[ ] in jeopardy the life of any person." 18
U.S.C.A. § 2113(d). On the firearms charges, the government was
required to prove beyond a reasonable doubt that the defendants used
or carried a firearm during and in relation to the bank robberies. See
18 U.S.C.A. § 924(c)(1). We conclude that the evidence was clearly
sufficient to sustain the jury’s guilty verdict on each count of the
indictment.
A.
The government presented overwhelming evidence showing that,
between May 1998 and December 1999, two men committed armed
robbery of four banks located in Greenville, South Carolina, using the
same modus operandi each time. In each instance, two men entered
the target bank carrying dark, assault-type rifles and wearing ski
masks, gloves and layers of clothing such as sweatshirts, which gave
a bulky appearance. During each robbery, one of the two robbers
stood guard at the door and maintained control over customers and
bank employees who were forced to lie down. The other robber went
to the counter, ordered bank employees to open drawers or vaults and
collected the money. Employees of a branch of American Federal
Bank, which was hit twice during the string of robberies, testified that
the robberies occurred "in the exact same manner by the exact same
dress with a difference of a sweat shirt color," that the robbers
"sounded exactly the same," J.A. 243, and that the weapon one of the
robbers carried looked the same in both cases. In all four cases, the
robbers fled the scene in a vehicle that had been stolen from an apart-
ment complex in the Greenville area. Each of these four robberies
occurred on a Friday, and Holmes’s employment records established
that he was absent from work on each of these days. Ellis’s work
records showed he was absent from work on the day of the last rob-
bery in December 1999; there were no work records for Ellis covering
the time period during which the other three banks were robbed.
The physical stature and race of the two bank robbers in each of
the four robberies, as captured on video tape or as described by eye-
witnesses to each robbery, matched that of Holmes and Ellis. Expert
testimony established, through photogrammetric analysis of the sur-
4 UNITED STATES v. HOLMES
veillance videotape from all four robberies, that the robber who col-
lected the money was between 5′10-1/2″ and 5′10-3/4″tall, while the
robber in the lobby was slightly shorter, standing between 5′9-1/2″
and 5′10″ tall. Holmes measures 5′10-1/4″ tall and Ellis is slightly
shorter at 5′9-3/8″ tall. Eyewitness testimony also placed the robbers
within a few inches of Holmes’s and Ellis’s actual height, and was
remarkably consistent on this point.
A search of Holmes’s residence turned up, in addition to specific
evidence of the individual robberies that is summarized below, evi-
dence of his involvement in the robbery spree. Officers recovered
numerous articles of clothing, including sweat pants and shirts, that
were stained with red dye. The stains were tested and found to be con-
sistent with the red dye used in bank dye packs. The search also pro-
duced a large number of ski masks, as well as a bent screwdriver.
Each of the stolen cars was found missing the ignition switch; one of
the owners testified that as a result, she was forced to use a screw-
driver to start her car. A search of Holmes’s car revealed two assault-
style rifles similar to the ones carried during the bank robberies, as
described by eyewitnesses and as revealed by videotape.
B.
Additionally, there was substantial evidence directly linking
Holmes, Ellis, or both defendants, to each of the four robberies. Cou-
pled with the evidence described above, which links Holmes to the
modus operandi employed during each robbery, and Ellis’s confes-
sion, the evidence of guilt was overwhelming.
The first armed robbery occurred on May 1998 at a branch office
of Carolina First Bank, and was committed by two men in the manner
described previously. Eyewitness testimony about the race and physi-
cal stature of the robbers matched testimony about the other three rob-
beries. The branch manager testified that one of the guns carried
during the robbery "had wood grain," J.A. 502, as did one of the
assault weapons recovered from Holmes’s car. Shortly before the Car-
olina First robbery, a white Ford Mustang was stolen from an apart-
ment complex in the general area of the bank. A witness outside of
the bank saw two individuals arrive at the bank in a small white car
and go inside. Both were wearing ski masks and carrying rifles. Bank
UNITED STATES v. HOLMES 5
employees testified that $8,749 in cash and dye packs were placed
into a bag carried by the robbers. Bank employees saw the robbers
flee the scene in a white Mustang, and still other witnesses saw two
men in a white Mustang retrieve a bag of money that had been
dropped on a street near the bank. After the robbers retrieved the bag,
witnesses recovered dye-stained currency that had fallen out of the
bag. The white Mustang was found by the police the next day; the
ignition switch had been removed so that the car could be started only
with a screwdriver. Ellis’s fingerprint was lifted from the license plate
of the Mustang, and Holmes was absent from work on the day of this
robbery.
The next robbery occurred on February 5, 1999, at a branch of
American Federal Bank. Again, two individuals of Holmes’s and
Ellis’s approximate stature robbed the bank using the same method
employed in the May 1998 robbery. Both were armed with large rifles
and were wearing ski masks and several layers of clothing. The rob-
bers escaped with approximately $100,000 in a stolen white Mustang
convertible, which was found immediately after the robbery. Officers
also found numerous articles of clothing, including ski masks and
sweatshirts, strewn along the road leading up to where the car had
been abandoned. Finally, Anthony Blassingame testified that he
pleaded guilty to aiding and abetting Holmes and Ellis in the commis-
sion of armed bank robbery of the American Federal Bank on Friday,
February 5, 1999. Blassingame told the jury that on the day of the
bank robbery, he received a page from Holmes and Ellis, picked them
up and drove them from Greenville to Atlanta. Holmes was absent
from work on this day as well.
The third Greenville area bank — Branch Banking & Trust Com-
pany ("BB&T") — was robbed in November 1999 by two individuals
using the same modus operandi, wearing the same disguises, carrying
semiautomatic rifles, and fitting the same general physical character-
istics as Holmes and Ellis. The robbers stole approximately $50,000,
and fled in a Ford Thunderbird that had been stolen not long before
the robbery. The car was later found, with the ignition switch missing.
A search of Holmes’s residence revealed various items stolen from
BB&T in the November 1999 robbery, including various coins and
silver certificates. BB&T money straps bearing the date of this rob-
6 UNITED STATES v. HOLMES
bery were discovered in Holmes’s coat pocket. Holmes was again
absent from work on this day.
Finally, in December 1999, an armed robbery similar to the first
three occurred at the same American Federal branch that had been
robbed in February 1999. Dye packs and bait bills were put into the
robbers’ bag along with cash. The two robbers fled with approxi-
mately $87,000 in cash. American Federal employees who were pres-
ent during both robberies testified that they "had been robbed in the
exact same manner by the exact same dress with a difference of a
sweat shirt color here and there in February, and they sounded exactly
the same. He said the same words over again." J.A. 243. An employee
also testified that the rifles carried by the robbers were similar to
those carried during the February 1999 robbery of American Federal.
Witnesses outside of the bank saw two individuals wearing hooded
sweatshirts fleeing the bank in a dark Thunderbird. Another witness
near the bank observed two African-American males driving a black
Thunderbird with red smoke coming from inside of the car. The wit-
ness was able to observe that the red smoke was coming from a bag
held by one of the occupants. The robbers soon abandoned the car and
fled on foot.
By this time, Holmes was a suspect in the robberies. Officers set
up surveillance at Holmes’s residence immediately after the Decem-
ber American Federal robbery was reported. Less than an hour after
the robbery, officers saw Holmes carry a black bag into his residence.
After Holmes drove away, officers stopped him and searched his car.
A search of the trunk turned up two loaded semi-automatic assault
rifles similar to those used in each of the robberies, and a bag contain-
ing loaded magazines for the assault rifles. Wallets containing
Holmes’s and Ellis’s identification were found in the console of the
vehicle. Finally, Ellis’s fingerprint was lifted from the door of
Holmes’s car.
Officers then searched Holmes’s residence and found a black tote
bag stained with red dye. The tote bag contained approximately
$87,000 in currency, including bait bills taken in the December Amer-
ican Federal robbery. A bent screwdriver was discovered, as were
dye-stained articles of clothing, including sweat shirts, pants and 10
or more ski masks. Once again, Holmes was absent from work this
UNITED STATES v. HOLMES 7
day. Work records for Ellis showed that he was absent from work as
well.
The Government offered expert testimony, based on a photogram-
metric study of the videotapes, that one of two assault rifles recovered
from a vehicle that Holmes was driving, a K-5 MAK-90, shared the
same class characteristics as a weapon used by the robbers in at least
three of the robberies. The other weapon recovered, a Bushmaster
Bullpup, shared the same class characteristics as a weapon used in at
least one of the robberies.
Finally, the Government introduced Ellis’s confession to the rob-
beries through two witnesses. Agent John Spees testified that Ellis
admitted that he was "responsible for" the December 1999 robbery.
J.A. 184. However, Ellis would not admit to the other three robberies
and he refused to identify specifically who his accomplice was in the
December 1999 robbery. Ellis told Agent Spees that the dye pack
exploded in the getaway car and that he and the other individual
switched to Holmes’s car, which Ellis had borrowed the previous eve-
ning. Ellis told Agent Spees that he dropped off the other person and
then called Holmes. The Government also presented the testimony of
Ronell McMillan, Ellis’s fellow inmate after Ellis was arrested for the
robberies. Ellis told McMillan that he had robbed three to five banks
via a method similar to that used in the four Greenville bank rob-
beries. Ellis told McMillan that he had the same "partner" for each
armed robbery.
C.
Viewed in a light most favorable to the government, the evidence
is overwhelming from which a jury could have concluded beyond a
reasonable doubt that Holmes and Ellis were the culprits behind all
four bank robberies. With respect to Holmes, there is either direct evi-
dence or strong circumstantial evidence of his involvement in each of
the robberies. We conclude that there was sufficient evidence to sup-
port the jury’s guilty verdict on each count as to Holmes. With respect
to Ellis, the evidence of his guilt on each count is substantial, in addi-
tion to the fact that Ellis confessed to authorities his participation in
the last robbery and admitted to inmate McMillan that he had com-
mitted a string of similar bank robberies. Thus, we likewise conclude
8 UNITED STATES v. HOLMES
that there was sufficient evidence to support the jury’s guilty verdict
on each count as to Ellis.
II.
Holmes challenges the admission of the testimony of Ronell
McMillan, Ellis’s cellmate. Holmes failed to object to this evidence
at trial. Accordingly, our review is for plain error. See United States
v. Olano, 507 U.S. 725, 731-32 (1993).
First, Holmes argues that the district judge violated Bruton v.
United States, 391 U.S. 123 (1968), by permitting McMillan’s testi-
mony. McMillan testified that while he was in detention with Ellis,
Ellis admitted being involved in a string of bank robberies, indicated
that he had "a partner in the bank robberies," and said that the "partner
was the same for all of the robberies." J.A. 594.
Bruton teaches us that the Sixth Amendment prohibits the use, at
a joint trial, of an out-of-court confession by a nontestifying defen-
dant against his or her codefendant if the confession directly incrimi-
nates the codefendant as well. See Bruton, 391 U.S. at 126. But, "[a]
Bruton problem exists only to the extent that the co defendant’s state-
ment in question, on its face, implicates the defendant." United States
v. Locklear, 24 F.3d 641, 646 (4th Cir. 1994) (emphasis added). As
long as the nontestifying defendant’s statement does not on its face
inculpate the codefendant, it is admissible — even it if it becomes
incriminating when linked with other evidence. See Richardson v.
Marsh, 481 U.S. 200, 208-09 (1987).
Holmes argues McMillan’s testimony that Ellis confessed to hav-
ing a "partner" directly implicated him because there were only two
defendants on trial and the jury had already learned that incriminating
evidence had been discovered at Holmes’s house. Thus, according to
Holmes, the admission of Ellis’s jailhouse confession violated the
principles set forth in the Bruton line of decisions.
We disagree. Ellis’s statement to McMillan was not facially
incriminating. As Holmes’s argument acknowledges, McMillan’s tes-
timony must be linked to other evidence in order to incriminate
UNITED STATES v. HOLMES 9
Holmes. The term "partner" is a neutral reference that, within the con-
text of Ellis’s confession to his cellmate, did not directly implicate
Holmes. See United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir.
1999) (holding that there was no Sixth Amendment violation when
the court admitted a codefendant’s confession that stated "another
person" was involved in the crime). Accordingly, we conclude that
McMillan’s testimony did not violate Holmes’s Sixth Amendment
rights under Bruton, and the district court did not commit plain error
by allowing the testimony.
Second, Holmes challenges McMillan’s testimony on the grounds
that it was inadmissible hearsay and should not have come into evi-
dence against him. We reject this argument as well. Ellis’s statement
to McMillan qualifies as a statement against interest under Federal
Rule of Evidence 804(b)(3). See United States v. Hamilton, 19 F.3d
350, 357 (7th Cir. 1994) (holding that nontestifying codefendant’s
statement to cellmate that he and the defendant robbed a bank fell
within Rule 804(b)(3)). Accordingly, the district court did not commit
a plain error by allowing this testimony.
Furthermore, even if the district court committed a plain error by
allowing McMillan to testify, Holmes has not carried his burden of
demonstrating that the error "affect[ed] [his] substantial rights."
Olano, 507 U.S. at 732 (internal quotation marks omitted). Holmes
contends that McMillan’s testimony was prejudicial because there
was no direct evidence that Holmes was ever in any of the banks and
that Ellis’s purported statement was the only evidence putting Holmes
inside the banks.
This plainly is not so. Essentially the same evidence came in
through Agent Spees with respect to the December 1999 robbery of
American Federal. First, Agent Spees testified that Ellis told him that
there was "another person" involved in the December 1999 robbery
but would not reveal the identity. Holmes does not challenge the
admission of this statement. Second, the evidence discovered in
Holmes’s residence and car, as well as Blassingame’s testimony, pro-
vides overwhelming evidence of Holmes’s involvement in the other
robberies and his connection with Ellis.
Finally, even if McMillan’s testimony could be said to affect
Holmes’s substantial rights, we would decline to notice the error in
10 UNITED STATES v. HOLMES
light of this overwhelming evidence. See United States v. Bowens,
224 F.3d 302, 315 (4th Cir. 2000) (declining to notice a plain error
where the evidence of guilt is overwhelming), cert. denied, 532 U.S.
944 (2001).
III.
Holmes and Ellis contend that the government’s closing statement
was filled with improper argument. The primary complaint is that the
United States Attorney, throughout his closing argument, indirectly
commented on the decision of each defendant not to testify. One
example cited by the defendants is the prosecutor’s comment about
Holmes’s absence from work during each of the four robberies and
Ellis’s absence during the last robbery: "Now, there may be a reason-
able explanation for them being absent from work. They may have
been sick. They may have been at a funeral. But that’s one more cir-
cumstance that begs for explanation." J.A. 736. The prosecutor used
the phrase "maybe there’s a reasonable explanation" in commenting
on the evidence several times during his closing, e.g., "maybe there’s
a reasonable explanation [for all of the ski masks discovered in
Holmes’s house]. Maybe he’s having a Halloween party in the middle
of December." J.A. 739.
The defendants did not object to these comments at trial. Accord-
ingly, our review is only for plain error. See Olano, 507 U.S. at 732.
To determine whether the prosecution has, through an indirect
remark, improperly commented on a defendant’s failure to testify, we
must determine whether "the language used [was] manifestly intended
to be, or was . . . of such character that the jury would naturally and
necessarily take it to be a comment on the failure of the accused to
testify[.]" See, e.g., United States v. Francis, 82 F.3d 77, 78 (4th Cir.
1996) (internal quotation marks omitted). These comments, viewed
within the context of the government’s entire closing argument, were
not a comment on the failure of the defendants to testify. In response
to defense counsel’s opening statement that most of the evidence
would be circumstantial, the prosecutor was merely highlighting the
fact that each individual piece of circumstantial evidence had only
one reasonable explanation when viewed in light of all of the evi-
dence linking the string of bank robberies to the defendants. Remark-
ing on the failure of the defense, as opposed to the defendant, to
UNITED STATES v. HOLMES 11
counter or explain the evidence is not impermissible comment on the
defendant’s failure to testify. See United States v. Knowles, 66 F.3d
1146, 1162-63 (11th Cir. 1995) (finding no error in the prosecutor’s
rhetorical question to the jury "Did you ever hear an explanation for
that?"). We find that the prosecutor’s comments in this case are
directed at the failure of the defense to offer an explanation rather
than the defendants’ failure to take the witness stand and testify.
Moreover, to the extent the prosecutor’s comments had the effect of
drawing attention to the defendants’ failure to testify, we find that the
comments did not prejudice Holmes’s or Ellis’s substantial rights so
as to amount to plain error, nor do we perceive any other improprie-
ties in the government’s closing that would amount to plain error.
IV.
Holmes and Ellis raise three additional arguments. First, the defen-
dants argue that the district court erred when it permitted the govern-
ment to present expert testimony, based on the videotapes from the
banks’ security cameras, that the semiautomatic assault rifles discov-
ered in Holmes’s car were of the same class and kind as those used
in the robberies. The defendants contend that this testimony was nei-
ther reliable nor helpful to the trier of fact. See United States v. Bar-
nette, 211 F.3d 803, 815 (4th Cir. 2000). We fail to discern any
reversible error by the district court in this regard. However, even if
the district court erroneously permitted this testimony, the error was
harmless. See Fed. R. Crim. P. 52(a). In considering whether a non-
constitutional error is harmless, the question is whether the appellate
court can determine "with fair assurance, after pondering all that hap-
pened without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error." Kotteakos v.
United States, 328 U.S. 750, 765 (1946); see United States v. Ince, 21
F.3d 576, 583 (4th Cir. 1994). There was overwhelming testimony
from eyewitnesses to each of the robberies describing rifles similar to
at least one of the rifles found in the trunk of Holmes’s car, and there
was surveillance videotape showing that the robbers carried weapons
with them. Given the impressive amount of evidence that Holmes and
Ellis committed these robberies and that they were carrying rifles
when they did it, the admission of the photogrammetric analysis of
the weapons was harmless error, if it was error at all.
12 UNITED STATES v. HOLMES
Second, the defendants contend that the district court improperly
permitted the jury to use a magnifying glass during its deliberations.
Although a jury is not permitted to conduct experiments to obtain
information or develop facts not in evidence, "the mere making of a
more critical examination of an exhibit than was made during the trial
is not objectionable" and "the use of a magnifying glass not intro-
duced in evidence . . . is not reversible error where such action
involves merely a more critical examination of an exhibit." United
States v. Beach, 296 F.2d 153, 158-59 (4th Cir. 1961) (internal quota-
tion marks omitted). The defendants have failed to explain how the
jurors could have developed, through the use of a magnifying glass,
new evidence outside of that introduced at trial. This claim is merit-
less and we reject it.
Finally, Holmes contends that he received ineffective assistance of
counsel in violation of the Sixth Amendment, see Strickland v. Wash-
ington, 466 U.S. 668 (1984), because his trial counsel failed to ade-
quately investigate potential alibi witnesses and failed to object to
McMillan’s testimony or the government’s closing argument. Holmes
also believes that counsel should have moved for a severance from
Ellis. An ineffective assistance of counsel claim is not cognizable on
direct appeal and should be raised in a motion under 28 U.S.C.A.
§ 2255 "unless it conclusively appears from the record that defense
counsel did not provide effective representation." United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (internal quotation
marks omitted). We have reviewed the record and find that it does not
conclusively demonstrate, if it all, that counsel for Holmes was defi-
cient in his performance.
V.
For the foregoing reasons, we affirm the defendants’ convictions.
AFFIRMED