United States v. Bevley

                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT

                         _________________

                            No. 97-31107

                         (Summary Calendar)
                          _________________


          UNITED STATES OF AMERICA,


                               Plaintiff - Appellee,

          versus


          KENNETH BEVLEY, also known as Butterfly,


                               Defendant - Appellant.



          Appeal from the United States District Court
              for the Eastern District of Louisiana
                         (97-CR-46-ALL-T)


                          August 17, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Kenneth Bevley was convicted of conspiracy, bank robbery, and
using and carrying a firearm during the commission of a bank

robbery as charged in a five-count superseding indictment.   Prior

to trial, Bevley unsuccessfully moved to suppress the evidence

seized at his residence, 2511 Freret Street.    Bevley argues that



     *
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
the district court’s decision on the motion to suppress constitutes

reversible error.

     In reviewing a district court’s denial of a defendant’s motion

to suppress evidence obtained pursuant to a warrant, we determine

whether to apply the good-faith exception to the exclusionary rule

then, if necessary, determine if probable cause existed to support

the warrant.   See United States v. Pena-Rodriguez, 110 F.3d 1120,

1129 (5th Cir.), cert. denied, 118 S. Ct. 72 (1997); United States

v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992).

     An affidavit supporting the warrant must contain facts which

establish a nexus between the place to be searched and the evidence

sought.   See United States v. Broussard, 80 F.3d 1025, 1034 (5th

Cir.), cert. denied, 117 S. Ct. 264 (1996).          This affidavit

contained specific facts showing that armed robberies had been

committed using the ski masks, yellow raincoats, car keys, and

weapons listed in the warrant request; that a stolen vehicle used

in one of the robberies was turned over to Bevley in front of his

residence at 2511 Freret Street on the morning of the robbery in

which the stolen vehicle was used; that a photograph taken from a

bank security camera showed Bevley in a yellow raincoat and that

two of the car thieves identified Bevley from that photograph as

the person who had received the stolen car used in the robbery; and

that Bevley’s place of residence was verified by both the police

department computer and one of the car thieves who had identified

Bevley.   The affidavit was not so devoid of facts as to render a

police officer’s reliance on the warrant to be unreasonable.    The


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district court did not err in denying the motion to suppress.

     Bevley also asserts that the government failed to prove that

he committed bank robbery because the subject of count two of the

indictment,   Credit   Union   Service   Center    (“CUSC”),   was   not   a

federally insured credit union.     “[B]ank assets belong to the bank

and prosecution may be under Section 2113 even though such assets

actually are in the possession of a bank employee or agent.”

United States v. Van, 814 F.2d 1004, 1006-08 (5th Cir. 1987); see

also United States v. Miller, No. 97-3165, 1998 WL 171836 (10th

Cir. Apr. 13, 1998) (affirming bank robbery conviction under § 2113

for the robbery of a CUSC in Topeka, Kansas), petition for cert.

filed (U.S. June 12, 1998) (No. 97-9496).         Because the CUSC had no

deposits of its own, the stolen money was the property of the

federally insured member credit unions.

     AFFIRMED.




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