UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4839
JAMES EDWARD WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-00-86-HO)
Argued: September 25, 2002
Decided: October 24, 2002
Before TRAXLER, Circuit Judge, HAMILTON,
Senior Circuit Judge, and Claude M. HILTON,
Chief United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by unpublished opinion. Chief Judge Hilton wrote the opin-
ion, in which Judge Traxler and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, L.L.P., Raleigh,
North Carolina, for Appellant. Christine Witcover Dean, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee. ON
BRIEF: John Stuart Bruce, United States Attorney, Anne M. Hayes,
2 UNITED STATES v. WILLIAMS
Assistant United States Attorney, Thomas B. Murphy, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
HILTON, Chief District Judge:
This matter comes before the Court on James Edward Williams’
appeal to his criminal convictions as an accessory after the fact for
armed bank robbery under 18 U.S.C. § 2113(d) and aiding and abet-
ting the malicious destruction of a vehicle under 18 U.S.C. § 844(i).
Williams argues that there was insufficient evidence for a jury to con-
vict him of either charge, and that the district court erred by admitting
specific evidence at trial. Finding sufficient evidence to support his
convictions and no error by the district court, we affirm.
On November 24, 1999, Teresa Nance drove Bruce Womack to a
Centura Bank in Raleigh, North Carolina for the purpose of commit-
ting an armed robbery. As part of the plan, they were followed by
Bobby Marsh and Marvin Raines in a Ford Taurus rented by Williams
in Atlanta, Georgia. Because of a knee injury, Williams remained in
Georgia throughout the period of the robbery.
The original plan called for Womack and Raines to rob the bank
while Marsh and Nance waited in the getaway cars. When Womack
entered the bank wearing a disguise, Raines decided not to follow
through with the robbery and instead drove away with Marsh.
The bank manager noticed Womack’s disguise as he approached
the bank and called 911. Womack entered the bank with a gun, held
the manager and other employees at gunpoint as he took the money,
and began to leave the bank. As he was leaving the bank, he saw a
police officer and exchanged fire with the officer as he ran to Nance’s
UNITED STATES v. WILLIAMS 3
getaway car. Womack continued shooting at the police as he and
Nance attempted to flee the scene, but after a short chase the car went
into a ditch. Womack ran from the vehicle but was quickly appre-
hended. Nance died shortly thereafter.
Marsh and Raines left the Centura Bank in the rental car just prior
to the police arriving. Marsh called Williams later and told him that
the bank robbery went bad, that Nance was dead, and that Womack
was in jail. Marsh asked Williams what he wanted Marsh to do with
the rental car. Williams told Marsh to "first get rid of the car," while
Williams reported the car as stolen. "He was like, you know what I’m
saying, blow the car up; burn it up." J.A. 154. After setting the rental
car on fire, Marsh called Williams and told him the car was destroyed.
Williams told Marsh he reported the car as stolen. The day after the
robbery, Womack called Williams from jail and told him that he
(Womack) had gotten caught, that Nance was dead, and that Marsh
and Raines left him at the bank.
At trial, Womack testified about the events preceding the charged
offenses. Womack met Williams in 1997 and testified that in 1998 the
two men successfully robbed a Pizza Hut in North Carolina using a
gun. Womack and Williams later moved to Atlanta, Georgia and
became roommates. After becoming roommates, Womack testified
that the two men returned to Raleigh, North Carolina numerous times
in cars rented by Williams to commit armed robberies. Womack esti-
mated that the two men had engaged in between eight and twelve
armed robberies. Womack further stated that the two never committed
a robbery without using a gun.
During one of their trips to Raleigh, Womack testified that he and
Williams "started looking for bigger things to rob and that’s when the
banks came in." J.A. 85. Womack and Williams discussed the possi-
bility of robbing numerous banks, including the Centura Bank. The
men talked about having a second getaway car, and discussed using
a rental car; they planned to blow up the rental car so it could not be
traced back to the men. A few weeks before the robbery, Williams,
Womack and Marsh drove around a few banks together. Since Wil-
liams was unable to travel to Raleigh, Womack testified that he
planned to return to Atlanta after the robberies to "pay whatever
4 UNITED STATES v. WILLIAMS
needed to be paid as far as me and [Williams] was concerned." J.A.
84.
Williams was charged and convicted by a jury as an accessory after
the fact to armed bank robbery (Count Three) under 18 U.S.C. §§ 3
and 2 and of aiding and abetting the malicious destruction of a vehicle
used in interstate commerce (Count Four) under 18 U.S.C. §§ 844(i)
and (2). Williams was sentenced to a 150-month term of imprison-
ment on Count Three and 210-month term of imprisonment on Count
Four, to be served concurrently. The district court also ordered three
years’ supervised release and restitution in the amount of $13,114.30.
Williams filed timely notice of appeal, raising three issues: (1)
whether the evidence presented at trial was sufficient to support his
convictions; (2) whether the district court abused its discretion in
admitting Rule 404(b) evidence of Williams’ past robberies; and (3)
whether the district court committed plain error in admitting into evi-
dence an audio tape and photographs of Williams.
ANALYSIS
I. The evidence presented was sufficient to support Williams’
convictions.
In reviewing a sufficiency of the evidence claim, this court decides
whether any rational fact finder, viewing the evidence in the light
most favorable to the government, could have found each element of
the charged offense beyond a reasonable doubt. See Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979); United States v. Brothers Const. Co.
of Ohio, 219 F.3d 300, 312 (4th Cir.), cert. denied, 531 U.S. 1037
(2000). "[A]ppellate reversal on grounds of insufficient evidence
. . . will be confined to cases where the prosecution’s failure is clear."
Burks v. United States, 437 U.S. 1, 17 (1978). Because ample evi-
dence was presented at trial to support his convictions, Williams’ con-
victions of armed robbery as an accessory after the fact and aiding
and abetting the malicious destruction of a vehicle are affirmed.
Williams was charged as an accessory after the fact to armed bank
robbery under 18 U.S.C. §§ 2113(a) and (d), which provide:
UNITED STATES v. WILLIAMS 5
Whoever, by force and violence, or by intimidation, takes,
. . . from the person or presence of another . . . money
. . . belonging to, or in the . . . possession of, any bank
. . . shall be . . . imprisoned . . . .
18 U.S.C. § 2113(a).
Whoever, in committing . . . any offense defined in subsec-
tion[] (a) . . . assaults any person . . . by the use of a danger-
ous weapon . . . shall be . . . imprisoned . . . .
18 U.S.C. § 2113(d). Williams was also convicted for aiding and
abetting malicious destruction under 18 U.S.C. §§ 844(i) on two sepa-
rate grounds. The statute provides:
Whoever maliciously damages or destroys, or attempts to
damage or destroy, by means of fire . . . any . . . vehicle
. . . used in interstate . . . commerce or in any activity affect-
ing interstate . . . commerce shall be imprisoned . . . .
18 U.S.C. § 844(i).
Williams first argues that the evidence was insufficient to establish
that he was an accessory after the fact to armed bank robbery because
the evidence proved neither that he knew the bank robbery had been
completed nor that he knew the robbers had been armed. To support
a conviction for being an accessory after the fact, the government
must prove that: (1) an offense was committed against the United
States; (2) Williams had knowledge of that offense; and (3) Williams
provided relief, comfort, or assistance to prevent the apprehension,
trial, or punishment of the offender. See generally United States v.
Neal, 36 F.3d 1190, 1211 (1st Cir. 1994), cert. denied, 519 U.S. 1012
(1996).
Ample evidence establishes that Williams knew the bank robbery
had been committed. Williams discussed plans to commit a bank rob-
bery with Womack using two getaway cars, including a rental car,
and blowing up the rental car if things went badly. With this detailed
knowledge, once the bank was robbed in Raleigh, Marsh called Wil-
6 UNITED STATES v. WILLIAMS
liams and told him about it. When Marsh asked Williams what to do
with the rental car, Williams instructed Marsh to get rid of it. By
directing Marsh to destroy the car, Williams was clearly aware that
a bank robbery had been committed.
Moreover, sufficient evidence was presented at trial to establish
that Williams had knowledge a gun had been used. Womack testified
that he and Williams committed between eight and twelve bank rob-
beries with a gun before the Centura Bank robbery. Womack also tes-
tified that the two never did a robbery without using a gun. Because
of his previous experience in committing armed robberies with
Womack, his participation in planning discussions concerning a
future bank robbery, and the telephone call he received after the bank
robbery, Williams had ample knowledge that the bank had been
robbed and that the robbers had been armed.
Williams next argues that the evidence was insufficient to establish
his conviction for malicious burning because evidence supporting his
conviction was incredible as a matter of law, it did not establish he
acted maliciously, and there was insufficient proof of an interstate
nexus. Each of these arguments is without merit.
Williams first challenges the testimony of Womack and Marsh
concerning the telephone calls to him after the bank robbery, stating
that the evidence was incredible as a matter of law because the calls
were not reflected in Williams’ telephone records. Testimony is
incredible as a matter of law, and thus cannot form the basis for a
conviction, only when it is "so unbelievable on its face that it defies
physical laws." United States v. Lindell, 881 F.2d 1313, 1322 (5th Cir.
1989), cert. denied, 493 U.S. 1087 and 496 U.S. 926 (1990). How-
ever, there was no testimony that anyone actually spoke to Williams
at that particular number, nor testimony concerning the physical loca-
tion of that number. Moreover, the phone record does indicate that
certain unidentified calls were placed to Williams at approximately
the same times Marsh testified to calling him. As such, the evidence
of these phone calls was not incredible as a matter of law.
The government also provided sufficient evidence to establish that
Williams acted with malice. At trial, Marsh testified that Williams
instructed him to destroy the rental car and reported the car as stolen.
UNITED STATES v. WILLIAMS 7
The government must prove that "the defendant acted intentionally or
with willful disregard of the likelihood that damage or injury would
result" in order to prove he acted maliciously under 18 U.S.C.
§ 844(i). United States v. Gullett, 75 F.3d 941, 948 (4th Cir.), cert.
denied, 519 U.S. 847 (1996). Williams’ statements to Marsh to get rid
of the car and to blow it up or burn it up proves malice.
Finally, Williams argues that the government failed to prove an
interstate commerce nexus. However, the government met this burden
when it presented testimony that a green Ford Taurus rented in Wil-
liams’ name in Atlanta, Georgia, was used in the robbery of the Cen-
tura Bank in Raleigh, North Carolina. Williams challenges the use of
testimony by the co-defendants that the Taurus was a rental car under
Federal Rule of Evidence 1002 because the evidence was offered to
prove the contents of the rental agreement. This argument fails, how-
ever, since the testimony about the rental contract was merely intro-
duced to establish the status of the car as a rental car.
II. The district court did not abuse its discretion in admitting
evidence pursuant to Federal Rule of Evidence 404(b).
Williams challenges the admission of testimony concerning his
involvement with Womack in armed robberies that preceded the
charged offenses, complaining that he did not get proper notice, the
evidence proved only Williams’ propensity to commit crimes, the
prejudicial effect of the evidence was substantially outweighed by its
probative value, and the prejudicial effect of the evidence was com-
pounded when the district court judge made an improper comment
from the bench.
Federal Rule of Evidence 404(b) reads, in relevant part, as follows:
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 mis-
take or accident . . . .
8 UNITED STATES v. WILLIAMS
The combined test for admissibility under Federal Rules of Evi-
dence 403 and 404(b) requires that (1) the evidence is relevant to
some issue other than character; (2) the evidence is necessary to prove
an essential claim or element of the offense; (3) the evidence must be
reliable; and (4) the probative value of the evidence must not be sub-
stantially outweighed by confusion or unfair prejudice. United States
v. Queen, 132 F.3d 991, 997 (4th Cir. 1997), cert. denied, 523 U.S.
1101 (1998). The district court has broad discretion in determining
whether to admit evidence pursuant to Rule 404(b), and abuse of such
discretion will not be found unless its exercise was arbitrary or irratio-
nal. United States v. Van Metre, 150 F.3d 339, 349 (4th Cir. 1998).
Williams first argues that the notice given by the government con-
cerning the anticipated 404(b) evidence was insufficient because it
did not disclose any of the detailed testimony the government planned
to introduce. The language of Rule 404(b) mandates notice by the
government, upon request by the defendant, "of the general nature of
any such evidence it intends to introduce at trial." The government
here disclosed that "[t]he general nature of such evidence is the defen-
dant’s knowing and willing participation in other acts of violence,
including armed robberies committed by the defendant in the time
period preceding the commission of the instant offense." J.A. 14-15.
This evidence was sufficient to put Williams on notice that the prior
armed robberies he committed with Womack might be used during
his trial.
Williams next claims that Womack’s testimony that he and Wil-
liams previously committed eight to twelve robberies, that all the rob-
beries involved guns, and that Williams had rented cars in Atlanta for
their use in the robberies committed in Raleigh, was improper propen-
sity evidence under Rule 404(b). Here, the evidence of prior armed
robberies was probative to both intent and knowledge. Because the
government was required to prove Williams knew the bank robbery
was committed and that a gun would be used, and he intended to
assist the offenders, introduction of Womack’s testimony was proper.
See generally Sparks v. Gilley Trucking Co., Inc., 992 F.2d 50, 52
(4th Cir. 1993) (stating that when intent to a crime is at issue, this
court regularly permits admission of prior acts to prove that element).
Williams further contends that Womack’s testimony should have
been excluded because it was unduly prejudicial, confusing, and time
UNITED STATES v. WILLIAMS 9
consuming as prohibited by Rule 403. However, exclusion of relevant
evidence under Rule 403 is done sparingly as an "extraordinary rem-
edy." United States v. Adkins, 196 F.3d 1112, 1117 (10th Cir. 1999),
cert. denied, 529 U.S. 1030 (2000) (citation omitted). Admission of
Williams’ prior armed robberies was not unduly prejudicial. Because
the trial court did not act arbitrarily or irrationally in admitting this
evidence, its decision will not be disturbed. United States v. Masters,
622 F.2d 83, 88 (4th Cir. 1980).
Finally, Williams argues that a single comment by the district court
judge during testimony by a co-defendant compounded the undue
prejudice caused by admission of the Rule 404(b) evidence. During
the testimony of co-defendant Raines, Raines told the jury that
Womack had introduced him to Williams in a sports bar. Raines and
Williams were exchanging small talk about both of them being in
prison in the past, and Raines stated he was "not going to mess with
nobody that ain’t been to the penitentiary or nothing like that." J.A.
217. Upon defense counsel objection, the trial court overruled,
observing "It’s their culture." Id.
Comments from the bench are examined to determine whether they
are so prejudicial as to deny a party a fair trial. United States v. God-
win, 272 F.3d 659, 673 (4th Cir. 2001); United States v. Gastiaburo,
16 F.3d 582, 589-90 (4th Cir.), cert. denied, 513 U.S. 829 (1994).
Williams contends that by making this comment, the court branded
him a professional robber to the jury. However, this ambiguous state-
ment, even read in a light most favorable to Williams, does not rise
to the level of judicial interference so egregious as to deny Williams
an opportunity for a fair and impartial trial. In short, this comment,
to which Williams did not object, was not prejudicial under the plain
error standard. United States v. Castner, 50 F.3d 1267, 1272 (4th Cir.
1995).
III. The district court did not commit plain error in admitting an
audio tape initialed by co-defendants or in admitting
photographs of the individuals involved in the charged offenses.
Williams finally argues that his convictions should be reversed
because the court admitted a tape recording that had been initialed by
Williams’ co-defendants, as well as an exhibit displaying photographs
10 UNITED STATES v. WILLIAMS
of Williams and the other persons involved in the charged offense.
The challenged evidence was admitted without objection and is there-
fore reviewed for plain error. United States v. Olano, 507 U.S. 725,
732-33 (1993).
Williams contends that he is entitled to relief, because an audio
cassette tape of the 911 call reporting the rented vehicle as stolen that
was admitted into evidence bore the handwritten initials of his four
co-defendants. He claims that the initials constituted hearsay and that
the initials of a non-testifying co-defendant Mitchell violated his con-
stitutional rights. See Fed. R. Evid. 801. The initials placed on the
tape were not offered into evidence for truth, but rather were used at
trial to establish that the witnesses recognized the government’s
exhibit. Moreover, even if the initials could give rise to the inference
that the persons identified by the initials recognized Williams’ voice,
the evidence was cumulative to the testimony of three separate co-
defendants. Thus, the presence of the initials cannot be deemed preju-
dicial.
Williams also challenges the admission of an exhibit containing
photographs of the persons involved in the charged offenses, charac-
terizing them as mug shots. Mug shots used for comparative purposes
are generally indicative of past criminal conduct and are not admissi-
ble since they may create an inference of such conduct in the minds
of the jurors. United States v. Hines, 955 F.2d 1449, 1455 (11th Cir.
1992). However, these photographs were offered to identify the par-
ticipants and which crimes they committed. Furthermore, the pictures
used did not have the characteristics usually associated with mug
shots; Williams was in plain clothes in his picture. There were no ref-
erences to prison or dates of incarceration. See United States v. John-
son, 495 F.2d 378, 383-84 (4th Cir.), cert. denied, 419 U.S. 860
(1974) (permitting mug shots over defense objections). The pictures
lacked the indicia of criminal activity and were properly admitted.
AFFIRMED