UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5110
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OLIVER JAMES ZIMMERMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-05-19)
Submitted: May 31, 2006 Decided: June 16, 2006
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin D. Porter, MORROW ALEXANDER & PORTER, PLLC, Winston-Salem,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Douglas Cannon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Oliver James Zimmerman appeals his conviction for
brandishing a firearm during and in relation to a bank robbery. On
appeal, he argues that the evidence was insufficient to support
the jury’s verdict because there was no evidence that he knew that
Luther Ware--with whom he agreed to rob the bank--actually had a
gun. We affirm.
At Zimmerman’s trial, Zimmerman, the bank manager, two
tellers, and two customers who were present at the time of the
robbery, testified. The government presented evidence that
Zimmerman and Ware entered the bank. Zimmerman went directly to
the teller line, vaulted over the counter, and directed the teller
to assist him by opening the money drawers.
The second man, Luther Ware, wore a mask and brandished
a firearm. He directed the bank branch manager, the two customers
and the other teller to lie on the floor in the lobby area of the
bank. The bank manager testified that he heard Ware threaten the
people to be still or he would “blow their brains out.” Zimmerman
immediately responded, “No, no, no. We’re not going to hurt
anybody.” Kathy Mitchell, a bank customer, also testified that she
heard the threat and heard Zimmerman respond, “No, there won’t be
a shooting.”
Gail Libbey, the second teller, testified that Ware
threatened to “blow their heads off.” She did not hear Zimmerman
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say anything in response. Tonya Mills, the other customer, also
did not hear Zimmerman say anything after Ware threatened to shoot
the occupants of the bank.
Danielle Emmons, the teller who was behind the counter
when the robbery started, testified that she heard Ware’s threat to
“Be quiet or I’ll blow your heads off.” She testified that, upon
hearing this, she realized the seriousness of the situation, and
she started shaking. Zimmerman told her to “stay calm, nothing was
going to happen, no one was going to get hurt.”
Zimmerman testified that he and Ware did not plan the
robbery and did not discuss what they would do once they entered
the bank. He testified that he did not know that Ware had a gun
and did not see the gun while they were in the bank. When asked
what prompted him to say that no one was going to get hurt,
Zimmerman stated that he noticed Emmons’ hands shaking and made the
statement to calm her and reassure her.
We find that, viewing the evidence in the light most
favorable to the government, there was sufficient evidence for a
jury to conclude that Zimmerman had actual knowledge that a gun
would be used. See United States v. Spinney, 65 F.3d 231, 237 (1st
Cir. 1995). Therefore, we conclude that the evidence was
sufficient to support the jury’s verdict. See Glasser v. United
States, 315 U.S. 60, 80 (1942); United States v. Wills, 346 F.3d
476, 495 (4th Cir. 2003), cert. denied, 542 U.S. 939 (2004).
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Accordingly, we affirm Zimmerman’s conviction for brandishing a
firearm during and in relation to a bank robbery. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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