United States v. Ledbetter

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4605

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DENNIS EARL LEDBETTER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cr-00482-LO-1)

Submitted: May 21, 2010 Decided: June 7, 2010

Before SHEDD and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael S. Arif, MARTIN, ARIF & GREEN, PLC, Springfield,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Benjamin L. Hatch, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

A federal grand jury indicted Dennis Earl Ledbetter,

charging him with conspiracy to commit armed robbery, in

violation of 18 U.S.C. § 371 (Count 1); armed bank robbery, in

violation of 18 U.S.C. §§ 2113(a) and (d) and (2) (Count 2); and

use of a firearm during a crime of violence, in violation of 18

U.S.C. §§ 2 and 924(c)(1)(A) (Count 3). Ledbetter pleaded

guilty to Count 2 and was convicted, after a bench trial, of

Counts 1 and 3. On appeal, Ledbetter contests the sufficiency

of the evidence supporting the convictions on Counts 1 and 3

and, for the following reasons, we affirm.

I.

On the morning of October 23, 2008, at approximately

10 a.m., a short, somewhat heavyset black male, later identified

as John Wayne Morton, entered the Commerce Bank in Dumfries,

Virginia, wearing sunglasses and a ski mask. The man brandished

a firearm, ordered all of the patrons on the ground, and

commanded the tellers to empty their tills. At least one teller

handed Morton money that included a dye pack. Morton also took

a black shaving kit that a customer had left on the counter,

which contained roughly $1100 in cash, mostly small

denominations. In total, Morton took about $8500 from the bank.

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 A second black male, later identified as Ledbetter,

wore a mask over his face and stood by the door, holding it open

for their escape. One of the tellers made eye contact with

Ledbetter during the robbery, and the teller testified that

Ledbetter was looking into the bank. Ledbetter also drove the

getaway car, a Lincoln Town Car belonging to Morton’s mother,

from the bank. While in the car, one of the dye packs exploded,

burning Morton’s leg.

About thirty minutes prior to the robbery, an employee

with a self-storage facility located on the street behind the

bank saw a dark-colored Lincoln Town Car or Cadillac parked on a

small incline on the street. After the car sat for fifteen

minutes, the employee became concerned, and approached the

vehicle, where he saw two men: a heavy-set black male in the

front seat and another person in the back seat, who appeared to

be putting something over his face and then taking it off. The

employee watched the car move down the hill and park near his

own vehicle; he returned to the self-storage facility to assist

a customer and, by the time he returned, the car was gone.

Later that day, around 3 p.m., Ledbetter entered the

Rent-A-Center in Landover, Maryland, near his home, to pay an

overdue account. According to the clerk, Ledbetter, who worked

at an International House of Pancakes (IHOP) restaurant, was

wearing his uniform. The clerk requested three weeks of

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payments, but Ledbetter informed her that he was low on money;

they eventually agreed to a two-week payment of $99.48.

Ledbetter paid the amount in mostly tattered five and ten dollar

bills, although the clerk saw Ledbetter holding a one-and-a-half

inch roll of money.

One week later, on October 31, 2008, agents with the

Federal Bureau of Investigation (FBI) arrested Morton, who lived

in Prince George’s County, Maryland, for the crime. Several

days later, Ledbetter, Morton’s cousin, turned himself into

authorities for his participation in the robbery.

Based upon these events, a federal grand jury indicted

Ledbetter on December 4, 2008, charging him with conspiracy to

commit armed robbery, in violation of 18 U.S.C. § 371 (Count 1);

armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d)

and (2) (Count 2); and use of a firearm during a crime of

violence, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A) (Count

3). On January 23, 2009, Ledbetter pleaded guilty to Count 2,

armed bank robbery. As part of the guilty plea, Ledbetter

agreed to a statement of facts that provided that “[b]efore

entering the bank, John Wayne Morton put on a mask and Dennis

Earl Ledbetter tied a shirt around his face to disguise his

identity.” The statement of facts also provided that Morton

brandished a firearm during the robbery, that Ledbetter stood by

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the front door to act as a lookout, and that Ledbetter drove the

getaway car, Morton’s mother’s vehicle.

On February 10, 2009, Ledbetter, who had waived a

jury, was tried by the district court on Counts 1 and 3. Both

Morton and Ledbetter testified extensively at the trial,

although their accounts differed dramatically as to the planning

of the crime, the ownership of the gun used in the crime, and

the aftermath of the robbery. Specifically, Morton, testifying

for the Government, stated that Ledbetter supplied the gun for

the robbery and chose the bank. 1 According to Morton, Ledbetter

forced Morton to commit the robbery, drove the getaway car, and

burned the stained clothing and money behind Morton’s apartment

in Suitland, Maryland. Morton also testified that after the

robbery Ledbetter took $500 in cash when he left for work and

that Ledbetter returned one week later and advised Morton’s

mother to remove the license plates from her car.

In contrast, Ledbetter testified that he did not

supply the gun for the robbery, did not know that Morton was

going to use a gun, did not see Morton brandishing the gun

during the robbery, and did not want Morton to rob the bank.

1
In support of the claim that Ledbetter chose which bank to
rob, Morton noted that Ledbetter had previously lived in
northern Virginia, while Morton had never lived outside of
Prince George’s County, Maryland, and was unfamiliar with the
northern Virginia area.

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Ledbetter conceded that he pulled his shirt over his face and

assisted Morton by holding the door and driving the getaway car.

Ledbetter testified that he made the decision to help Morton

just prior to the robbery. Ledbetter also testified that he did

not receive any money from the robbery and that when they

returned to Morton’s apartment he left to report for work at

IHOP.

Ledbetter testified that when he returned to Morton’s

apartment one week after the robbery, he advised Morton’s mother

to take off her car’s tags and then removed them while she

watched. Ledbetter also admitted that, during his pretrial

incarceration, he told his grandmother what he termed the

“original truth,” that he knew Morton was going to use a gun in

the robbery and that it made him nervous.

The district court found Ledbetter guilty on both

counts. The district court first announced that it did not

“credit Mr. Morton’s testimony that he was threatened by

[Ledbetter] or that this was purely [Ledbetter’s] idea and that

he went kicking and screaming into his participation.” Instead,

the district court found “the evidence makes clear . . . that

this was a bank robbery committed by two cousins who have known

each other for 25 years who together planned and executed this

robbery in a conspiracy.” The district court first found

Ledbetter guilty under the principles announced in Pinkerton v.

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United States, 328 U.S. 640, 646-47 (1946), because Morton

brandished a gun in furtherance of their conspiracy to rob the

bank. In the alternative, the district court found that

Ledbetter knew that Morton had a gun and was going to use it

during the robbery. The district court noted that the bank

surveillance video showed Ledbetter looking into the bank during

most of the robbery and that Morton consistently displayed the

gun during the robbery.

The district court also found that portions of

Ledbetter’s testimony were “undermined by several

inconsistencies.” These inconsistencies included the testimony

of Aaron Hammond, the self-storage facility employee, that he

saw Ledbetter pulling a shirt over his face trying out disguises

thirty minutes before the robbery — testimony that suggested to

the district court “a plan, a calm and calculating participation

. . . long before you’ve admitting knowing that there was going

to be a bank robbery.” Moreover, the district court found

Ledbetter’s testimony that he did not know the area inconsistent

with his ability to drive “without error” back onto the

interstate after the robbery. In addition, the district court

found incredible Ledbetter’s testimony that he did not see the

bank proceeds in Morton’s hands as he exited the bank. The

district court stated that the surveillance video clearly showed

the money “literally taking up his entire midsection” while

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Ledbetter “[was] looking at him and making sure that he gets out

of that door.”

Furthermore, the district court found that Ledbetter’s

testimony that he did not take any of the robbery proceeds was

undermined by his presence at the Rent-A-Center with small

denominations of money and an additional stack of bills.

Likewise, the district court noted Ledbetter’s conduct in

telling Morton’s mother to remove her license plates was

“consistent with somebody who is a knowing participa[nt] in the

conspiracy to rob the bank.” Finally, the district court noted

Ledbetter’s criminal history included the possession of firearms

and that “the version of events as you laid out in your

discussion with your grandmother is a significant admission that

in fact you knew that the gun was going to be used in the bank

robbery.”

The district court ultimately sentenced Ledbetter to

108 months’ imprisonment, consisting of 24 months’ imprisonment

for Counts 1 and 2, and 84 months for Count 3, to run

consecutively to Counts 1 and 2. Ledbetter filed a timely

notice of appeal.

II.

On appeal, Ledbetter contests the sufficiency of the

evidence supporting his convictions on Count 1 and 3. “In

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assessing the sufficiency of the evidence presented in a bench

trial, we must uphold a guilty verdict if, taking the view most

favorable to the Government, there is substantial evidence to

support the verdict.” Elliott v. United States, 332 F.3d 753,

760-61 (4th Cir. 2003). “[S]ubstantial evidence” is “evidence

that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc). We “consider[s] circumstantial as

well as direct evidence, and allow[s] the government the benefit

of all reasonable inferences from the facts proven to those

sought to be established,” United States v. Tresvant, 677 F.2d

1018, 1021 (4th Cir. 1982), and we assume that the fact finder

resolved all contradictions in the testimony in favor of the

Government. United States v. Brooks, 524 F.3d 549, 563 (4th

Cir.), cert. denied, 129 S. Ct. 519 (2008). We “can reverse a

conviction on insufficiency grounds only when the prosecution's

failure is clear.” United States v. Moye, 454 F.3d 390, 394

(4th Cir. 2006) (en banc) (internal quotation marks and citation

omitted).

Ledbetter first contests his conviction on Count 1,

which charged Ledbetter with violating 18 U.S.C. § 371. That

statute makes it a criminal offense if “two or more persons

conspire . . . to commit any offense against the United States,

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. . . and one or more such persons do any act to effect the

object of the conspiracy.” Id. We have reviewed the evidence

in this case and conclude that the Government produced

sufficient evidence from which a reasonable fact finder could

conclude that Ledbetter conspired to rob the Commerce Bank with

Morton. In addition to Morton’s testimony regarding Ledbetter’s

role in planning the robbery, the Government produced

circumstantial evidence supporting the verdict. 2 For instance,

Hammond testified that he saw a man, Ledbetter, attempting to

put something on over his face while sitting in a car behind the

bank. This testimony corroborated Morton’s testimony that he

and Ledbetter parked behind the bank for a period of time and

that Ledbetter tried on different disguises in the back seat.

Likewise, the fact that Ledbetter drove the getaway

car and was able to drive directly to the interstate despite the

presence of multiple turns supported Morton’s testimony that it

was Ledbetter who chose the bank to rob, having previously lived

in northern Virginia. In addition, Ledbetter’s presence at the

Rent-A-Center with small denomination bills and an additional

stack of cash as well as his comments to Morton’s mother

2
The district court found incredible Morton’s testimony
that Ledbetter forced him to rob the bank. Contrary to
Ledbetter's assertions, however, the district court did not
discredit Morton’s testimony that the idea and planning for the
bank robbery originated with Ledbetter.

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regarding the car’s license plate were, as the district court

found, “completely consistent with somebody who is a knowing

participa[nt] in and taken part of the proceeds of the bank

[robbery].”

Ledbetter also challenges the sufficiency of the

evidence supporting his conviction on Count 3, which charged him

with violating 18 U.S.C. § 2 and § 924(c)(1)(A). Section

924(c)(1)(A) creates a graduated penalty scheme for any person

who “during and in relation to any crime of violence” “uses or

carries a firearm, or who, in furtherance of any such crime,

possesses a firearm.” Id. Ledbetter was charged with a

violation of subsection (ii), which sets forth a mandatory

minimum of seven years imprisonment if the firearm was

“brandished.” 18 U.S.C. § 924(c)(1)(A)(iii).

Ledbetter contends that there is insufficient evidence

to convict him of the § 924(c) violation on the basis of

Pinkerton liability. See Pinkerton v. United States, 328 U.S.

640, 646-47 (1946) (holding fellow conspirators liable for

substantive offenses committed by a co-conspirator in

furtherance of the conspiracy). “A defendant may be convicted

of a § 924(c) charge on the basis of a coconspirator's use of a

gun if the use was in furtherance of the conspiracy and was

reasonably foreseeable to the defendant.” United States v.

Wilson, 135 F.3d 291, 305 (4th Cir. 1998). See also United

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States v. Cummings, 937 F.2d 941, 944 (4th Cir. 1991) (applying

Pinkerton doctrine that “conspirators liable for all reasonably

foreseeable acts of their co-conspirators done in furtherance of

the conspiracy” to 924(c) convictions). 3

We have reviewed the evidence in this case and

conclude that the Government produced sufficient evidence to

sustain the conviction. Ledbetter overlooks the fact that the

district court did not discredit Morton’s testimony that

Ledbetter, not Morton, brought the gun. Indeed, the district

court plainly stated that it did not credit Ledbetter’s

testimony regarding the presence of the gun, in large part

because Ledbetter told his grandmother that he knew Morton had a

gun. Also, the district court found, both from testimony and

the surveillance videos, that Ledbetter was not testifying

truthfully when he said that he did not see Morton using the gun

3
Ledbetter argues that Pinkerton liability for 18 U.S.C.
§ 924(c) offenses requires the Government to prove to a
“practical certainty” that Ledbetter knew Morton would have a
firearm. Ledbetter culls this language from United States v.
Spinney, 65 F.3d 231, 239 (1st Cir. 1995), which required the
Government to meet that burden of proof in aider and abettor
liability under § 924(c). In contrast, every circuit, including
this court, has applied the familiar Pinkerton liability
standard to § 924(c) conspiracy charges. See, e.g., United
States v. Shea, 150 F.3d 44, 50-51 (1st Cir. 1998); United
States v. Wilson, 135 F.3d 291, 305 (4th Cir. 1998); United
States v. Washington, 106 F.3d 983, 1011 (D.C. Cir. 1997);
United States v. Masotto, 73 F.3d 1233, 1240 (2d Cir. 1996);
United States v. Myers, 102 F.3d 227, 237 (6th Cir. 1996);
United States v. Wacker, 72 F.3d 1453, 1464 (10th Cir. 1995).

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during the robbery. See United States v. Johnson, 444 F.3d

1026, 1029-30 (9th Cir. 2006) (denying motion for acquittal of

§ 924(c) charge for getaway driver who never entered bank during

robbery because he was present at planning meetings and evidence

was presented that the two robbers were wielding firearms in an

obvious fashion during the entrance and exit from the bank).

Ledbetter also overlooks that, prior to trial on

Counts 1 and 3, he pleaded guilty to armed bank robbery. Armed

bank robbery requires the Government to establish that the

defendant, in committing bank robbery, “assaults any person, or

puts in jeopardy the life of any person by the use of a

dangerous weapon or device.” 18 U.S.C. § 2113(d). It is thus

somewhat incongruous for Ledbetter to plead guilty to a crime

with the element of “use of a dangerous weapon” but then argue

that he did not know Morton would have a gun. See, e.g., United

States v. Burton, 126 F.3d 666, 679 (5th Cir. 1997) (affirming

sentence enhancement because it was reasonable foreseeable that

bank robbery would use a firearm given the “nature of the

offense”); United States v. Allen, 425 F.3d 1231, 1234 (9th Cir.

2005) (affirming § 924(c) conviction under Pinkerton where

defendant was present at a “morning of” meeting where guns were

present and their use was discussed; had a longstanding

friendship with a co-conspirator who had participated in

previous armed bank robberies; and, finding that “it [wa]s

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reasonable to infer from the nature of the plan - the overtaking

of a bank by force and intimidation - that guns would be

used.”).

III.

For the foregoing reasons, we affirm the district

court’s judgment. Ledbetter’s motion to substitute counsel is

denied. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

AFFIRMED

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