United States of America v. James Larry McNeal

Defendants James Larry McNeal and Alphonso Stoddard were

convicted by a jury and sentenced in the Eastern District of

Virginia for conspiracy, armed bank robberies, and brandishing

firearms during crimes of violence. On appeal, McNeal and

Stoddard jointly challenge the sufficiency of the evidence

supporting their convictions on the brandishing offenses.

Separately, McNeal pursues three other contentions, challenging

the adequacy of proof with respect to his conspiracy conviction,

the denial of his motions to suppress, and certain evidentiary

rulings. Finally, in supplemental submissions, McNeal and

Stoddard contend that the federal offense of armed bank robbery

is not a “crime of violence” in the context of the brandishing

offenses. As explained below, we reject the various contentions

of error and affirm.

I.

On February 27, 2014, the federal grand jury in Alexandria,

Virginia, returned a seven-count indictment against McNeal,

Stoddard, and a third man, James Link. Count One charged

conspiracy under 18 U.S.C. § 371, alleging that the defendants

had conspired “to commit an offense against the United States,

namely armed robbery of a bank, in violation of [18 U.S.C.

4

§ 2113(a) and (d)].” See J.A. 50.1 Counts Two, Four, and Six

charged the defendants with substantive armed bank robbery

offenses, in contravention of § 2113(a) and (d). Counts Three,

Five, and Seven charged them with brandishing firearms during

crimes of violence — the armed bank robberies charged in Counts

Two, Four, and Six — in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii). Counts Two and Three arose from the October

30, 2013 robbery of a Bank of Georgetown branch in Vienna,

Virginia (the “Bank of Georgetown robbery”). Counts Four and

Five arose from the November 25, 2013 robbery of a Wells Fargo

branch on North Glebe Road in Arlington, Virginia (the “Glebe

Road robbery”). Finally, Counts Six and Seven arose from a

robbery of a Wells Fargo branch on South George Mason Drive in

Arlington on New Year’s Eve in 2013 (the “New Year’s Eve

robbery”).2

1 Citations herein to “J.A. __” refer to the contents of the

Joint Appendix filed by the parties in this appeal.

2 Prior to trial, Link entered into a plea agreement with

the government, pursuant to which he pleaded guilty to Counts

Five and Seven in exchange for his cooperation against McNeal

and Stoddard. Link thereafter refused, however, to testify

against his coconspirators. The trial court found Link in

breach of the plea agreement and sentenced him to thirty-five

years in prison. Link appealed the judgment, and we affirmed.

See United States v. Link, 606 F. App’x 80 (4th Cir. 2015).

5

A.

On December 30, 2013 — the day before the New Year’s Eve

robbery — FBI agents applied in the District of Maryland for a

warrant authorizing them to install a tracking device on a 2004

Ford Taurus (the “tracking warrant”). The supporting affidavit

recounted the details of four recent bank robberies in the

Washington, D.C. area — the Bank of Georgetown and Glebe Road

robberies, plus the October 29, 2013 attempted robbery of a

Wells Fargo branch in Rockville, Maryland (the “Rockville

robbery attempt”), and the December 10, 2013 robbery of a TD

Bank in Washington.

The tracking warrant affidavit also related that a

confidential informant contacted the authorities on December 12,

2013. The informant advised that an individual in a

surveillance photo from one of the robberies resembled McNeal.

The informant added that he had overheard McNeal and two other

men discuss their involvement in bank robberies, describing how

they cased banks (i.e., scouted them out) before robbing them.

The affidavit advised that all three men had been convicted of

bank robbery offenses that were similar to those then under

investigation. The informant identified the getaway car the

trio had used in the robberies as a beige 2004 Ford Taurus,

bearing Maryland handicap license plate 20881HV. The Taurus,

6

agents learned, was registered to McNeal’s mother at a

residential address in Hyattsville, Maryland.

According to the affidavit, McNeal drove the Taurus from

the Hyattsville residence to Arlington on December 27, 2013,

picking up two other men en route. In Arlington, FBI agents

watched as the car parked in view of a Bank of America branch at

the intersection of Columbia Pike and South Glebe Road, where it

remained for a short time. The Taurus then drove within view of

the Wells Fargo branch on South George Mason Drive, parked

nearby for about ten minutes, and left.

At about 4:00 p.m. on December 30, 2013, a federal

magistrate judge in Greenbelt, Maryland, issued the tracking

warrant. Pursuant thereto, the FBI agents installed a GPS

tracking device on the Taurus that evening.

The very next day, McNeal, now under close surveillance by

the FBI and local authorities, drove the Taurus to Arlington

with Stoddard and Link to commit the New Year’s Eve robbery.

FBI agents and Arlington police officers watched that afternoon

as Stoddard and Link exited the Wells Fargo branch on South

George Mason Drive, carrying a black trash bag overflowing with

stolen money. Immediately after the thieves entered the Taurus,

agents blocked their getaway and arrested all three suspects.

The arresting agents then seized a loaded Glock handgun from

Link and the trash bag full of cash from the vehicle.

7

Later that afternoon — after McNeal, Stoddard, and Link had

committed the New Year’s Eve robbery — FBI agents sought a

warrant to search McNeal’s residence in Hyattsville for, inter

alia, evidence of the bank robberies (the “search warrant”).

The supporting affidavit echoed the facts underlying the

tracking warrant application, but also described the New Year’s

Eve robbery and the arrests of the three suspects earlier that

day. At 3:45 p.m., the magistrate judge in Greenbelt issued the

search warrant for McNeal’s residence. During their search of

the residence that evening, FBI agents discovered a locked box

under a bed in the only bedroom that contained men’s clothing

and toiletries. After prying the box open, the agents seized a

silver revolver and $300 in cash.

Prior to trial, McNeal sought to suppress the evidence

seized by the FBI in executing the two warrants. On April 2,

2014, McNeal moved to suppress the silver revolver seized from

his residence, contending that the FBI agents had exceeded the

scope of the search warrant by opening the locked box.

Thereafter, on May 8, 2014, McNeal filed a motion to suppress

all evidence seized from his residence, and on May 28, 2014, he

moved to suppress “the tracking warrant and all evidence that

flowed therefrom,” see J.A. 148. In support of those motions,

McNeal maintained that the search warrant and the tracking

8

warrant were not supported by probable cause. On June 6, 2014,

the district court denied the suppression motions.

B.

1.

The evidence at trial established that, on October 29,

2013, Link and Stoddard engaged in the Rockville robbery

attempt.3 Upon entering the Wells Fargo branch, Link brandished

a handgun and yelled for everyone to get on the floor, while

Stoddard vaulted the teller counter. Link also barked

instructions at Stoddard during the course of the robbery

attempt. At one point, Link fired his handgun into the ceiling.

Shortly thereafter, the two men fled the bank empty handed.

Undeterred, Link and Stoddard committed the Bank of

Georgetown robbery the very next day. A teller explained how

Stoddard covered his face with a ski mask, while Link wore a

hoodie and wielded a silver revolver. Stoddard jumped over the

counter, a black plastic bag in hand, and demanded that the

teller give him money. When the teller opened the cash drawer,

Stoddard started grabbing the cash and stuffing it in the trash

3 In light of the jury’s guilty verdicts, we recite the

facts underlying these prosecutions in the light most favorable

to the government. See United States v. Perry, 757 F.3d 166,

175 (4th Cir. 2014). Prosecutors presented evidence from

seventeen witnesses during the three-day trial. McNeal and

Stoddard did not testify or call witnesses.

9

bag. Link, meanwhile, shouted instructions at Stoddard. In the

end, the robbers fled with approximately $3500 in cash.

Link and Stoddard struck again on November 25, 2013, this

time committing the Glebe Road robbery. Link again stood just

inside the entrance, displayed a black handgun, and shouted at

employees and customers to get on the floor. Meanwhile,

Stoddard jumped the counter and ransacked the cash drawers.

After a minute or so, Link started yelling at Stoddard, “Come

on, Joe. Come on, Joe. We got to go.” See J.A. 504. When an

elderly woman walked into the bank, Link grabbed her and threw

her to the floor. Approximately two minutes after entering,

Link and Stoddard left with about $19,000 in cash.

2.

In late December 2013, FBI agents and local police

investigating the Rockville robbery attempt and the Bank of

Georgetown and Glebe Road robberies conducted surveillance of

the defendants. On December 27, agents watched as McNeal

departed his Hyattsville residence in the Taurus. At about 1:57

p.m., the agents observed McNeal, Stoddard, and a third

individual in the Taurus, which was parked facing the Bank of

America branch at Columbia Pike and South Glebe Road in

Arlington. For about four minutes, the Taurus sat in the

parking space, and no one entered or exited. McNeal then drove

the Taurus to South George Mason Drive in Arlington and parked

10

about 150 to 200 meters from the Wells Fargo branch. The Taurus

remained there for about seven minutes, again with no one

entering or exiting.

Four days later, on December 31, 2013, McNeal drove from

his Hyattsville residence to a strip mall on Columbia Pike in

Arlington and picked up Link and Stoddard along the way. After

a brief stop at a McDonald’s, the Taurus left the mall at about

12:35 p.m. For more than a half hour, the Taurus meandered

around Arlington, stopping intermittently. Shortly after 1:00

p.m., the vehicle parked on South 8th Street, just east of South

George Mason Drive — and directly in front of a vehicle occupied

by an Arlington County police officer. The officer watched Link

and Stoddard exit the Taurus and walk toward the Wells Fargo

branch they had cased a few days earlier. As they approached

the bank, Link and Stoddard donned the hoods of their coats, and

one of them pulled up a handkerchief or scarf to cover his face.

Meanwhile, McNeal maneuvered the Taurus to a parking space on

the northbound side of South George Mason Drive, about a block

and a half from the Wells Fargo branch.

Link and Stoddard then entered the Wells Fargo branch,

where Link drew a Glock handgun and told everyone to get on the

floor. In response, a customer fled out the front door and ran

away, stumbling over a fence. Inside the bank, Stoddard vaulted

the counter, opened a cash drawer, and ordered a teller to open

11

another. The teller complied, and Stoddard helped himself to

the money inside the drawers. Link soon grew impatient and

urged Stoddard to hurry up, shouting, “Come on Joe,” and, “We

got to go.” See J.A. 623.

After a couple of minutes, Link and Stoddard left the Wells

Fargo branch and returned to the Taurus, walking briskly at

first and then jogging as they got closer. Stoddard carried the

black trash bag filled with nearly $48,000 in cash. Just as

McNeal pulled out of the parking space, an FBI SWAT team truck

blocked their escape, striking the side of the Taurus and

pinning it against the curb. Link, McNeal, and Stoddard were

then arrested without resistance.

At the arrest scene, the FBI agents seized the loaded

semiautomatic Glock handgun, which was tucked into Link’s

waistband. From the Taurus, the agents recovered the black

trash bag containing the money stolen during the New Year’s Eve

robbery. The firearm was introduced at trial, where two FBI

agents — one a certified firearms instructor — identified it.

The prosecutors also introduced Stoddard’s own statements

about his criminal activity. First, during an interview with

FBI agents, Stoddard admitted that he was a professional bank

robber and that he had participated in the Rockville robbery

12

attempt and the Glebe Road robbery.4 Second, an inmate housed

with Stoddard in an Alexandria jail testified that Stoddard had

asserted, among other things, that he “robbed banks” and that

McNeal was one of his “partners.” See J.A. 758.

Finally, the prosecutors introduced the silver revolver and

cash seized from McNeal’s Hyattsville residence. McNeal

objected on the ground that the prosecutors had not linked him

to the residence, and thus any evidence seized therefrom was

irrelevant. The trial court, however, overruled McNeal’s

objection. After the prosecutors proffered evidence — outside

the presence of the jury — that McNeal had confirmed his

residence in response to routine booking questions, McNeal

stipulated that he lived at the Hyattsville residence.

C.

The jury found Stoddard guilty on all seven counts. It

found McNeal guilty on three charges — the conspiracy offense in

Count One and the two offenses in Counts Six and Seven arising

from the New Year’s Eve robbery.5

4 Stoddard’s post-arrest statement to the FBI regarding his

participation in the earlier bank robberies was admitted against

him only, and not against McNeal.

5 The jury hung and a mistrial was declared as to McNeal on

Counts Two through Five. At the conclusion of McNeal’s

sentencing hearing in November 2014, the district court

dismissed those charges against him.

13

McNeal and Stoddard thereafter filed motions for judgments

of acquittal. McNeal contended, inter alia, that the government

had failed to prove that he knew the purpose and goal of the

conspiracy was to commit armed bank robbery, a crime under 18

U.S.C. § 2113(d), as opposed to bank robbery, a lesser-included

offense under § 2113(a). The district court denied the

acquittal motions, ruling that “a rational trier of fact could

find that the conspiracy was to commit armed bank robbery.” See

J.A. 1046.

On November 7, 2014, the district court sentenced Stoddard

to life in prison and McNeal to 184 months. McNeal and Stoddard

have timely appealed, and we possess jurisdiction pursuant to 28

U.S.C. § 1291.

II.

We review de novo a district court’s determinations of

questions of law. See United States v. Beyle, 782 F.3d 159, 166

(4th Cir. 2015). We review evidentiary rulings made by a trial

court for abuse of discretion. See United States v. Vogt, 910

F.2d 1184, 1192 (4th Cir. 1990).

An issue pursued on appeal but not preserved in the lower

court is reviewed for plain error only. See United States v.

Olano, 507 U.S. 725, 732 (1993). To satisfy that standard, a

defendant must show “(1) that an error was made; (2) that the

14

error was plain; and (3) that the error affected his substantial

rights.” United States v. Carthorne, 726 F.3d 503, 510 (4th

Cir. 2013). Even if those three prongs are satisfied, we will

correct a plain error only when necessary to prevent “a

miscarriage of justice” or to ensure “the fairness, integrity or

public reputation of judicial proceedings.” United States v.

Whitfield, 695 F.3d 288, 303 (4th Cir. 2012).

III.

McNeal and Stoddard’s opening brief on appeal presents four

assignments of error. First, the pair challenges the

sufficiency of the evidence on the brandishing offenses, arguing

that the government failed to prove that the handguns used in

the robberies were functional. Second, McNeal contends that the

evidence was insufficient to support his conviction for

conspiracy to commit armed bank robbery. In his third

assignment of error, McNeal maintains that the trial court erred

in denying his suppression motions. Finally, McNeal challenges

the court’s evidentiary rulings admitting the silver revolver

and the cash seized from his Hyattsville residence. We address

those contentions in turn.

A.

McNeal and Stoddard challenge the sufficiency of the

evidence supporting the brandishing offenses in Counts Three

15

(Stoddard), Five (Stoddard), and Seven (both McNeal and

Stoddard). They contend that the prosecution failed to prove

that the handguns brandished in the three robberies underlying

those offenses were in fact firearms under federal law. We will

disturb a guilty verdict only if the record fails to contain

“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. Young, 609

F.3d 348, 355 (4th Cir. 2010). In conducting such an analysis,

we view “the evidence and the reasonable inferences to be drawn

therefrom in the light most favorable to the Government.”

United States v. Perry, 757 F.3d 166, 175 (4th Cir. 2014).

Pursuant to § 924(c)(1)(A)(ii) of Title 18, an accused who,

in the course of committing a crime of violence, “uses or

carries a firearm” is subject to an additional prison sentence

“of not less than 7 years,” if the firearm was “brandished”

during and in relation to the crime. The term “firearm” is

defined in § 921(a)(3) as “any weapon . . . which will or is

designed to or may readily be converted to expel a projectile by

the action of an explosive.” Invoking that definition, McNeal

and Stoddard contend that the prosecution failed to present

expert testimony that the firearms brandished during the three

bank robberies charged in the indictment were capable of

expelling a projectile. Such expert testimony is not necessary

16

to prove a § 924(c) offense, however, at least absent some

indication that the firearm was a fake. See United States v.

Jones, 907 F.2d 456, 460 (4th Cir. 1990). As we explained in

Jones, the lay testimony of eyewitnesses that “a gun was used in

the robbery” is a sufficient basis for the jury to find that a

“firearm” was used in a bank robbery offense. Id.

In this trial, several eyewitnesses testified concerning

the bank robberies in Counts Two, Four, and Six and confirmed

that, in each bank, one of the robbers had displayed a handgun.

Accordingly, McNeal and Stoddard’s first contention provides no

basis for overturning their convictions on the brandishing

offenses.

B.

McNeal separately contends that the evidence was

insufficient to convict him of conspiracy to commit armed bank

robbery, in violation of 18 U.S.C. § 371. Section 371 provides,

in relevant part, that if “two or more persons conspire . . . to

commit any offense against the United States . . . , and one or

more of such persons do any act to effect the object of the

conspiracy, each shall be” punished by up to five years in

prison. To prove a § 371 conspiracy, the government must show

“an agreement to commit an offense, willing participation by the

defendant, and an overt act in furtherance of the conspiracy.”

United States v. Tucker, 376 F.3d 236, 238 (4th Cir. 2004). The

17

prosecutors must also show that the accused possessed “at least

the degree of criminal intent necessary for the substantive

offense itself.” Ingram v. United States, 360 U.S. 672, 678

(1959).

McNeal maintains that, in order to prove the conspiracy

alleged in Count One, the government had to show that he

understood, at some point during the conspiracy, that Stoddard

and Link intended to use a weapon to rob a bank. He further

contends that the government failed to make any such showing at

trial. The government responds that the trial evidence amply

supported the jury’s conclusion that McNeal knew he was entering

into a conspiracy to commit armed bank robbery. In the

alternative, the government maintains that we could “impose a

conviction on the lesser-included charge of conspiracy to commit

unarmed bank robbery.” See Br. of Appellee 30.

We reject McNeal’s contention of error because the evidence

of McNeal’s knowledge that a firearm would be used in the

robberies was more than sufficient to support the guilty verdict

on the conspiracy offense. On December 27, 2013, the FBI

observed McNeal, Stoddard, and Link casing banks in Arlington,

including the Wells Fargo branch on South George Mason Drive.

On New Year’s Eve, for about half an hour before they robbed

that bank, McNeal, Stoddard, and Link drove in the vicinity of

the very banks they had cased four days earlier. The jury was

18

entitled to find that the defendants were then putting the

finishing touches on their plan to rob the Wells Fargo branch —

a crime McNeal and his cronies had travelled to Virginia to

commit. McNeal’s active involvement in planning and carrying

out the New Year’s Eve robbery, in which a firearm was actually

used, strongly supports the jury’s finding that he knew a

handgun would be used in the robbery. See United States v.

Johnson, 444 F.3d 1026, 1029-30 (9th Cir. 2006).

The fact that McNeal knew a firearm would be used in the

New Year’s Eve robbery is also supported by other evidence. For

example, Stoddard represented to his fellow jail inmate that

McNeal was his partner in robbing banks.6 Stoddard had also

participated in the Rockville robbery attempt, the Glebe Road

robbery, and the Bank of Georgetown robbery, each of which

involved the use of a handgun. The jury was thus entitled to

find that McNeal conspired with Stoddard and Link to commit the

New Year’s Eve robbery and that McNeal fully understood that a

6 McNeal objected to the jail inmate’s testimony that

Stoddard said that he and McNeal robbed banks together, arguing

that such testimony was inadmissible hearsay. The trial court

overruled the objection, and McNeal does not challenge that

ruling on appeal.

19

firearm would be used in the robbery. Accordingly, we reject

McNeal’s challenge to his conspiracy conviction on Count One.7

C.

McNeal next contends that the district court erroneously

denied his motions to suppress the evidence seized pursuant to

the tracking warrant and the search warrant. McNeal’s

contention has two subparts: first, that the tracking warrant

affidavit failed to sufficiently link him to the Taurus; and

second, that the search warrant affidavit did not sufficiently

connect him to the Hyattsville residence.

In making a probable cause assessment, a magistrate judge

must “make a practical, common-sense decision whether, given all

the circumstances set forth in the affidavit before him . . . ,

there is a fair probability that contraband or evidence of a

crime will be found.” See Illinois v. Gates, 462 U.S. 213, 238

(1983). As a reviewing court, we are obliged to “accord great

deference to the magistrate’s assessment of the facts presented

to him.” United States v. Blackwood, 913 F.2d 139, 142 (4th

Cir. 1990) (internal quotation marks omitted). Our inquiry is

7 Even if the government had failed to prove that McNeal

knew he was entering into a conspiracy to commit armed bank

robbery, we would yet affirm the Count One judgment against him.

McNeal indisputably entered into a conspiracy to commit bank

robbery. And, for purposes of punishment, there is no

difference between a § 371 conspiracy to commit bank robbery and

a § 371 conspiracy to commit armed bank robbery.

20

thus limited to whether there was a substantial basis for

determining the existence of probable cause. See United States

v. Montieth, 662 F.3d 660, 664 (4th Cir. 2011).

We must reject McNeal’s contentions on the suppression

issues. As the tracking warrant affidavit shows, the Taurus was

registered to McNeal’s mother, and McNeal had used it to case

target banks in Arlington. Furthermore, an informant advised

the FBI that McNeal had used the Taurus to rob banks. That

information was corroborated by the FBI’s surveillance of McNeal

and the informant’s knowledge of the amount of money stolen in

the robberies. See United States v. Miller, 925 F.2d 695, 699

(4th Cir. 1991) (explaining that informant’s tip corroborated by

investigator’s observations establishes probable cause). Thus,

there was ample cause to believe that McNeal was using the

Taurus to plan and commit bank robberies.

The search warrant affidavit connected McNeal to the

Hyattsville residence and demonstrated probable cause to believe

that evidence of the bank robberies would be located there. As

the affidavit explained, McNeal was observed leaving the

Hyattsville residence just before casing target banks on

December 27, 2013. Likewise, FBI agents had seen McNeal leaving

the Hyattsville residence four days later, immediately before he

participated in the New Year’s Eve robbery. And, of course, the

Taurus was registered to McNeal’s mother at that residence.

21

McNeal argues that the FBI agents should have done more to

corroborate the facts in the affidavits. The Fourth Amendment,

however, does not require investigators to exhaust every

potential avenue of investigation before seeking and obtaining a

warrant. See McKinney v. Richland Cty. Sheriff’s Dep’t, 431

F.3d 415, 418-19 (4th Cir. 2005) (explaining that an officer’s

failure to “conduct a more thorough investigation before seeking

[an] arrest warrant does not negate” probable cause). Simply

put, each warrant was supported by probable cause, and the

district court properly denied McNeal’s motions to suppress.

D.

Finally, McNeal challenges the trial court’s ruling that

the prosecution was entitled to introduce the silver revolver

and the cash seized from his Hyattsville residence. McNeal

maintains that the government failed to provide an adequate

foundation for the admission of either the revolver or the cash,

in that neither was sufficiently linked to him. McNeal,

however, stipulated that the Hyattsville residence was his, and

the FBI agents found and seized the silver revolver and the cash

from the only bedroom containing male clothing and toiletries.

Accordingly, the trial court did not abuse its discretion in

admitting the evidence seized from McNeal’s Hyattsville

residence.

22

IV.

By way of supplemental submissions, McNeal and Stoddard

argue that their convictions under 18 U.S.C. § 924(c) for

brandishing a firearm during a crime of violence should be set

aside because 18 U.S.C. § 2113(d) armed bank robbery is not a

“crime of violence” as defined in § 924(c)(3). Whether an

offense constitutes such a crime of violence is a question of

law that we review de novo. See United States v. Adkins, 937

F.2d 947, 950 n.2 (4th Cir. 1991). Because the defendants

failed to preserve in the trial court their contention that

armed bank robbery is not a crime of violence, we may vacate the

brandishing convictions only if McNeal and Stoddard satisfy

plain error review. See United States v. Olano, 507 U.S. 725,

732 (1993).

A.

Under 18 U.S.C. § 924(c)(1)(A), a defendant who “uses or

carries” a firearm “during and in relation to any crime of

violence” faces a five-year mandatory minimum sentence, to run

consecutively to any sentence for the underlying offense. See

United States v. Johnson, 32 F.3d 82, 85 (4th Cir. 1994). If,

during the commission of the crime of violence, “the firearm is

brandished,” the mandatory minimum sentence increases to seven

years. See § 924(c)(1)(A)(ii). As defined in § 924(c)(3), the

phrase “crime of violence” means a felony offense that either:

23

“(A) has as an element the use, attempted use, or threatened use

of physical force against the person or property of another, or

(B) . . . by its nature, involves a substantial risk that

physical force against the person or property of another may be

used in the course of committing the offense.” We have referred

to subparagraph (A) of § 924(c)(3) as the “force clause” and to

subparagraph (B) as the “residual clause.” See, e.g., United

States v. Fuertes, 805 F.3d 485, 498 (4th Cir. 2015). In

determining whether an offense is a crime of violence under

either clause, we utilize the categorical approach, which

focuses solely on the elements of the offense, rather than on

the facts of the case. See id.

McNeal and Stoddard contend that their convictions on

Counts Three, Five, and Seven for brandishing a firearm during a

crime of violence must be vacated. They maintain, inter alia,

that armed bank robbery under § 2113(d) is not a crime of

violence within the meaning of the § 924(c)(3) force clause

because it does not have as an element the use, attempted use,

or threatened use of physical force. The government counters

that bank robbery in violation of § 2113(a), a lesser-included

offense of § 2113(d) armed bank robbery, satisfies the force

clause of § 924(c)(3) because it includes the element that

property must be taken “by force and violence, or by

24

intimidation.” As further explained below, we agree with the

government.8

1.

The crimes of violence underlying McNeal’s and Stoddard’s

brandishing convictions were the armed bank robberies charged in

Counts Two, Four, and Six of the indictment. Armed bank robbery

under § 2113(d) has four elements: (1) the defendant took, or

attempted to take, money belonging to, or in the custody, care,

or possession of, a bank, credit union, or saving and loan

association; (2) the money was taken “by force and violence, or

by intimidation”; (3) the deposits of the institution were

federally insured; and (4) in committing or attempting to commit

the offense, the defendant assaulted any person, or put in

jeopardy the life of any person, by the use of a dangerous

weapon or device. See United States v. Davis, 437 F.3d 989, 993

(10th Cir. 2006). The first three elements of armed bank

8 McNeal and Stoddard also contend in their supplemental

submissions that, in light of the Supreme Court’s decision last

year in Johnson v. United States — in which the Court

invalidated as unconstitutionally vague the residual clause in

the Armed Career Criminal Act, see 135 S. Ct. 2551, 2557 (2015)

— § 924(c)(3)’s similar residual clause is also

unconstitutionally vague. Because § 2113(a) bank robbery

satisfies the § 924(c)(3) force clause, we do not consider

whether Johnson renders the § 924(c)(3) residual clause

unconstitutionally vague. See Fuertes, 805 F.3d at 499 n.5

(invoking principle of constitutional avoidance articulated in

Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346–48

(1936) (Brandeis, J., concurring)).

25

robbery are drawn from § 2113(a) and define the lesser-included

offense of bank robbery. The fourth element is drawn from

§ 2113(d). We focus on the second element: that the money was

taken from the bank “by force and violence, or by intimidation.”

See § 2113(a).

In assessing whether bank robbery qualifies as a crime of

violence under the § 924(c)(3) force clause, we do not write on

a blank slate. Twenty-five years ago in Adkins, our esteemed

former colleague Judge Hall explained that “armed bank robbery

is unquestionably a crime of violence, because it ‘has as an

element the use, attempted use, or threatened use of physical

force against the person or property of another.’” See 937 F.2d

at 950 n.2 (quoting 18 U.S.C. § 924(c)(3)(A)). We also ruled

decades ago that a § 2113(a) bank robbery is a crime of violence

under the force clause of Guidelines section 4B1.2, which is

nearly identical to the § 924(c)(3) force clause. See United

States v. Davis, 915 F.2d 132, 133 (4th Cir. 1990); accord

Johnson v. United States, 779 F.3d 125, 128-29 (2d Cir. 2015);

United States v. Wright, 957 F.2d 520, 521 (8th Cir. 1992);

United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991);

26

United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990);

United States v. Maddalena, 893 F.2d 815, 819 (6th Cir. 1989).9

Our sister circuits have uniformly ruled that other federal

crimes involving takings “by force and violence, or by

intimidation,” have as an element the use, attempted use, or

threatened use of physical force. Earlier this year, for

example, the Eighth Circuit concluded that robbery in the

special maritime and territorial jurisdiction of the United

States under 18 U.S.C. § 2111 satisfied the similarly worded

force clause in the Armed Career Criminal Act (“ACCA”), because

it required a taking “by force and violence, or by

intimidation.” See United States v. Boman, 810 F.3d 534, 542-43

(8th Cir. 2016). The Second and Eleventh Circuits reached the

same conclusion with respect to the carjacking statute, 18

U.S.C. § 2119. See United States v. Moore, 43 F.3d 568, 572-73

(11th Cir. 1994); United States v. Mohammed, 27 F.3d 815, 819

(2d Cir. 1994).

The logic of those decisions is straightforward. A taking

“by force and violence” entails the use of physical force.

9 The term “crime of violence,” and its cousin, the term

“violent felony,” are defined in various statutory provisions,

including § 924(c), and in the Sentencing Guidelines, including

section 4B1.2. In light of the striking similarities among

those definitions, the court decisions interpreting one such

definition are persuasive as to the meaning of the others. See

United States v. Williams, 67 F.3d 527, 528 (4th Cir. 1995).

27

Likewise, a taking “by intimidation” involves the threat to use

such force. See, e.g., Jones, 932 F.2d at 625 (“Intimidation

means the threat of force.”); Selfa, 918 F.2d at 751 (explaining

that the intimidation element of § 2113(a) meets “the

[Guidelines] section 4B1.2(1) requirement of a ‘threatened use

of physical force’”). As the Seventh Circuit explained in its

Jones decision, “[t]here is no ‘space’ between ‘bank robbery’

and ‘crime of violence’” because “violence in the broad sense

that includes a merely threatened use of force is an element of

every bank robbery.” See 932 F.2d at 625.

In United States v. Presley, in 1995, we recognized the

equivalence between “intimidation” and the “threatened use of

physical force,” holding that a Virginia robbery offense

satisfied the ACCA force clause. See 52 F.3d 64, 69 (4th Cir.

1995). As we explained, Virginia had defined robbery as “the

taking, with intent to steal, of the personal property of

another, from his person or in his presence, against his will,

by violence or intimidation.” Id. Reasoning that “[v]iolence

is the use of force,” and “[i]ntimidation is the threat of the

use of force,” we concluded that “robbery in Virginia has as an

element the use or threatened use of force.” Id. Of course,

our Presley decision addressed a state crime, rather than a

federal offense, and a State is entitled to define its crimes as

it sees fit. In this case, however, McNeal and Stoddard have

28

presented no sound basis for concluding that the “intimidation”

element of Virginia robbery is any narrower or broader than the

“intimidation” element of federal bank robbery.

Put succinctly, the reasoning of Jones, Selfa, and Presley

is persuasive. Bank robbery under § 2113(a), “by force and

violence,” requires the use of physical force. Bank robbery

under § 2113(a), “by intimidation,” requires the threatened use

of physical force. Either of those alternatives includes an

element that is “the use, attempted use, or threatened use of

physical force,” and thus bank robbery under § 2113(a)

constitutes a crime of violence under the force clause of

§ 924(c)(3).

2.

McNeal and Stoddard contend that recent decisions of the

Supreme Court and this Court have changed the legal landscape

and compel us to conclude that § 2113(a) bank robbery is not a

crime of violence within the meaning of § 924(c)(3). In

particular, they rely on the Supreme Court’s 2010 decision in

Johnson v. United States, 559 U.S. 133 (2010), the Court’s 2004

decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), and our 2012

decision in United States v. Torres-Miguel, 701 F.3d 165 (4th

Cir. 2012).

29

a.

In Johnson, the Supreme Court ruled that a Florida simple

battery was not a crime of violence under the ACCA force clause.

See 559 U.S. at 136-37. The Florida statute provided that a

person could be convicted of battery upon proof that he actually

and intentionally touched another person against the victim’s

will. The government argued, and the lower courts agreed, that

any unwanted intentional touching qualified as “physical force”

under the ACCA force clause. Id. at 137. The Supreme Court

rejected that reading, however, ruling instead that “physical

force,” as used in the ACCA force clause, “means violent force —

that is, force capable of causing physical pain or injury to

another person.” Id. at 140.

McNeal and Stoddard assert, without further explanation,

that Johnson rendered unpersuasive the earlier authorities

concluding that § 2113(a) bank robbery is a crime of violence.

Johnson, however, is entirely consistent with those authorities.

Bank robbery under § 2113(a) requires either “force and

violence” or “intimidation.” A combination of force and

violence qualifies as violent force, and the defendants do not

argue to the contrary. Meanwhile, the term “intimidation” in

§ 2113(a) simply means “the threat of the use of force.” See

Presley, 52 F.3d at 69. As the Seventh Circuit explained in

United States v. Smith, “intimidation . . . must constitute a

30

threat,” and the defendant’s “conduct will be deemed to be a

threat if it was calculated to create the impression that any

resistance by the teller would be met with physical force.” See

131 F.3d 685, 688 (7th Cir. 1997). Moreover, to qualify as

intimidation, the degree of “force” threatened must be violent

force — that is, force capable of causing physical pain or

injury. See United States v. Wagstaff, 865 F.2d 626, 627 (4th

Cir. 1989) (emphasizing that intimidation occurs “when an

ordinary person in the teller’s position reasonably could infer

a threat of bodily harm from the defendant’s acts”).

b.

Although Johnson addressed the definition of “physical

force” under the ACCA force clause, the Supreme Court’s Leocal

decision, six years earlier, explained what it means to “use”

physical force. In Leocal, the Court ruled that a Florida

offense of driving under the influence and causing serious

injury was not a crime of violence under the force clause of 18

U.S.C. § 16. See 543 U.S. at 9-10. The Court explained that

the “key phrase in § 16(a) — ‘the use . . . of physical force

against the person or property of another’ — most naturally

suggests a higher degree of intent than negligent or merely

accidental conduct.” Id. at 9 (alteration in original).

Because the Florida Supreme Court had interpreted the DUI

statute as lacking a mens rea requirement, the DUI offense could

31

not qualify as a crime of violence under the force clause. Id.

at 7-8, 10. Although Leocal reserved the question of whether a

reckless application of force could qualify as a “use” of force,

we answered that question two years later by ruling that

recklessness was not enough. See Garcia v. Gonzalez, 455 F.3d

465, 468-69 (4th Cir. 2006).

McNeal and Stoddard insist that bank robbery by

“intimidation” is not a crime of violence under the force clause

of § 924(c)(3) because, in their view, bank robbery can be

committed by recklessly engaging in intimidation. To support

that interpretation, they point to our 1996 decision in United

States v. Woodrup, 86 F.3d 359 (4th Cir. 1996). Woodrup was

convicted of § 2113(a) bank robbery on evidence that he “entered

the bank, looked directly at [a] teller . . . , walked very

quickly across the lobby to the teller position, reached across

the counter ‘as if . . . trying to grab’ the teller, and vaulted

over the counter headfirst, causing her to back away,

screaming.” Id. at 363 (second alteration in original).

Woodrup was unarmed, did not use a note, and did not make an

oral demand for money. After he was arrested, Woodrup told an

FBI agent that he was “glad that the teller didn’t have a heart

attack and die.” Id. at 364.

On appeal, Woodrup challenged his conviction on the

ground that the prosecution had not proven that he intended to

32

intimidate the teller. See Woodrup, 86 F.3d at 363. We

declined to read an intent requirement into § 2113(a), observing

that “nothing in the statute even remotely suggests that the

defendant must have intended to intimidate.” Id. at 364.

Instead, we explained that “the intimidation element of

§ 2113(a) is satisfied if an ordinary person in the teller’s

position reasonably could infer a threat of bodily harm from the

defendant’s acts, whether or not the defendant actually intended

the intimidation.” Id. (internal quotation marks omitted).

McNeal and Stoddard urge that our Woodrup decision — in

particular, its rejection of an “intent” requirement and

reference to the “reasonable teller” — means that bank robbery

can be committed by recklessly engaging in intimidation. A fair

reading of Woodrup does not compel that interpretation. First,

Woodrup presented the issue of whether bank robbery by

intimidation requires a specific intent to intimidate. Plainly,

Woodrup knew his conduct was intimidating, in light of his

admission to the FBI after his arrest that he was glad that the

teller did not suffer a heart attack. Thus, we had no occasion

to consider whether bank robbery requires general intent (i.e.,

knowledge) with respect to intimidation. And, second, Woodrup’s

definition of intimidation by reference to a reasonable person

says nothing about whether the defendant must know that his

conduct fits that definition.

33

In 2000, however, the Supreme Court ruled in United States

v. Carter that bank robbery under § 2113(a) requires “proof of

general intent — that is, that the defendant possessed knowledge

with respect to the actus reus of the crime (here, the taking of

property of another by force and violence or intimidation).”

See 530 U.S. 255, 268 (2000). Put differently, the prosecution

must show that the defendant knew “the facts that ma[de] his

conduct fit the definition of the offense.” See United States

v. Elonis, 135 S. Ct. 2001, 2009 (2015). Thus, to secure a

conviction of bank robbery “by intimidation,” the government

must prove not only that the accused knowingly took property,

but also that he knew that his actions were objectively

intimidating. Bank robbery under § 2113(a) therefore satisfies

the criterion we articulated in Garcia in 2006 that, to qualify

as a crime of violence, an offense must require either specific

intent or knowledge with respect to the use, threatened use, or

attempted use of physical force.

c.

In our Torres-Miguel decision in 2012, we further examined

what it means for a crime to have as an element the “use” of

physical force. We concluded that a California statute, which

prohibited willfully threatening to commit a crime that would

result in death or great bodily injury, failed to qualify as a

crime of violence under Guidelines section 2L1.2. See Torres34

Miguel, 701 F.3d at 166. Our ruling rested on the distinction

between using physical force and causing bodily injury. We

reasoned that “a crime may result in death or serious injury

without involving use of physical force.” Id. at 168. Invoking

an example offered by the Fifth Circuit in addressing the same

question, we observed that threatening to poison someone could

contravene § 422(a) without involving the use or threatened use

of force. Id. at 168-69.10

Relying on the distinction we drew in Torres-Miguel between

using physical force and causing bodily injury, McNeal and

Stoddard contend that “intimidation,” as we defined it in

Woodrup — words or conduct from which “an ordinary person . . .

reasonably could infer a threat of bodily harm,” see 86 F.3d at

363 — is not the same as a threat to use physical force. McNeal

and Stoddard suggest that a person can commit bank robbery by

means other than the use or threatened use of violent physical

10 The government suggests that the Supreme Court’s 2014

decision in United States v. Castleman, 134 S. Ct. 1405 (2014),

has abrogated the distinction that we recognized in Torres-

Miguel between the use of force and the causation of injury.

That strikes us as a dubious proposition. Writing for the

Castleman majority, Justice Sotomayor expressly reserved the

question of whether causation of bodily injury “necessarily

entails violent force.” See 134 S. Ct. at 1413; see also id. at

1414 (emphasizing that Court was not deciding question of

whether or not causation of bodily injury “necessitate[s]

violent force, under Johnson’s definition of that phrase”).

35

force, such as “by threatening to poison or expose the teller to

a hazardous gas.” See Supp. Reply Br. of Appellants 9.

We decline to read Woodrup as conclusively interpreting

“intimidation” to encompass threats to cause bodily injury other

than by violent physical force. Plainly, the threat that the

teller reasonably perceived from Woodrup’s actions was a threat

of bodily harm caused by violent physical force — not by

something like poisoning. See Torres-Miguel, 701 F.3d at 168-

69. The distinction we drew in Torres-Miguel between using

force and causing injury was thus irrelevant to our decision in

Woodrup.

Furthermore, the Woodrup panel had no reason to dwell on

whether to define “intimidation” in terms of fear of injury or

in terms of a threatened use of force. That distinction is

irrelevant in the vast majority of bank robbery cases, as it

will be the rare bank robber who commits that offense with

poison. Indeed, McNeal and Stoddard have not identified a

single bank robbery prosecution where the victim feared bodily

harm from something other than violent physical force. We

therefore decline to read Woodrup to mean that a bank robbery

victim is “intimidat[ed]” within the meaning of § 2113(a) when

she reasonably fears bodily harm from something other than

violent physical force. Because intimidation entails a threat

to use violent physical force, and not merely a threat to cause

36

bodily injury, Torres-Miguel does not alter our conclusion that

§ 2113(a) bank robbery is a crime of violence under the

§ 924(c)(3) force clause.

B.

In sum, we are satisfied that bank robbery under 18 U.S.C.

§ 2113(a) is a “crime of violence” within the meaning of the

force clause of 18 U.S.C. § 924(c)(3), because it “has as an

element the use, attempted use, or threatened use of physical

force” — specifically, the taking or attempted taking of

property “by force and violence, or by intimidation.” Because

bank robbery is a lesser-included offense of § 2113(d) armed

bank robbery, armed bank robbery is also a crime of violence

under the force clause. McNeal and Stoddard’s challenge to

their brandishing convictions therefore fails at the first step

of plain error review, in that the trial court did not err in

concluding that armed bank robbery qualifies as a crime of

violence.

Pursuant to the foregoing, we reject each of the

contentions of error and affirm the judgments.

AFFIRMED