                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                                                                              JUN 18 1997
                                       PUBLISH

                     UNITED STATES COURT OF APPEALS                       PATRICK FISHER
                                                                                  Clerk
                                  TENTH CIRCUIT




 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.
                                                            No. 96-6042
                                                            No. 96-6043
 ERIC DEVON GREEN,
                                                            No. 96-6046
 VINCENT BERRY,
 WILLIAM LEROY HARDING,

       Defendants-Appellants.




           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF OKLAHOMA
                        (D.C. No. CR-95-099-L)



Susan L. Foreman, Assistant Federal Public Defender (Michael G. Katz, Federal Public
Defender, with her on the briefs), Denver, Colorado, appearing for appellants Green and
Berry.

William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
appearing for appellant Harding.

Ted A. Richardson, Assistant United States Attorney, (Patrick M. Ryan, United States
Attorney, with him on the brief) Oklahoma City, Oklahoma, appearing for appellee.
Before PORFILIO, Circuit Judge, HENRY, Circuit Judge, and MCWILLIAMS, Senior
Circuit Judge.


McWILLIAMS, Senior Circuit Judge.



       By superseding indictment, Eric Devon Green, Vincent Berry and William Leroy

Harding were jointly charged in the United States District Court for the Western District

of Oklahoma with various criminal acts arising out of two robberies, and one attempted

robbery, of three federally insured banks in or around Oklahoma City, Oklahoma. In a

joint trial, all three were convicted on all counts wherein they were charged, and all were

sentenced to imprisonment. Green (No. 96-6042) and Berry (No. 96-6043) have appealed

their respective convictions and sentences. Their separate appeals were companioned for

purposes of briefing and oral argument. Harding (No. 96-6046) also appealed his

conviction and sentence and his counsel has filed a separate brief.    All three appeals

were set for oral argument before this panel of the court, and counsel for Green and Berry

argued their appeals. Thereafter counsel for Harding argued his appeal. The panel has

now determined that these three appeals should be consolidated for disposition in one

opinion since they are interrelated and there is, understandably, considerable duplication

in the respective briefs of the appellants.




                                              -2-
       In Count 1 of the superseding indictment, Green, Berry and Harding were charged

with conspiring from December 23, 1994, to June 5, 1995, to rob various federally

insured banks in Oklahoma in violation of 18 U.S.C. §§ 2113(a) and (d), and 18 U.S.C. §

371.

       In Count 2, Green and Berry, but not Harding, were charged with robbery by force,

violence and intimidation on December 23, 1994, of the Local Federal Bank in Oklahoma

City, Oklahoma, a federally insured bank, in violation of 18 U.S.C. § 2113(a).

In that same count, they were also charged with putting in jeopardy the life of Allison

Ammer by the use of a firearm, in violation of 18 U.S.C. § 2113(d), in committing the

aforesaid robbery.

       In Count 3, Green and Berry, but not Harding, were charged with robbery by force,

violence and intimidation on February 17, 1995, of the Bank of Oklahoma located in

Midwest City, Oklahoma, a federally insured bank, in violation of 18 U.S.C. § 2113(a).

In that same count, they were also charged with putting in jeopardy the lives of Paula

Enix and Julie Cooper by the use of a firearm, in violation of 18 U.S.C. § 2113(d), in

committing the aforesaid robbery.

       In Count 4, all three defendants were charged with an attempt to enter and rob

Bank IV of Guthrie, Oklahoma, a federally insured bank, on June 5, 1995, in violation of

18 U.S.C. § 2113(a), each of the three defendants then having an intent to commit bank

robbery, by force, violence and intimidation.


                                           -3-
       In Count 5, Green was charged with knowingly carrying a firearm, a .380 caliber

Pietro Beretta pistol, on June 5, 1995, during and in relation to a crime of violence,

namely, attempted robbery of a federally insured bank, in violation of 18 U.S.C. §

924(c)(1).

       In Count 6, Green was charged with possessing a firearm, a .380 caliber Pietro

Beretta pistol, on June 5, 1995, after having been convicted of a felony, in violation of 18

U.S.C. § 922(g)(1).

       In Count 7, Berry was charged with carrying a firearm on June 5, 1995, during and

in relation to a crime of violence, namely, attempted robbery of a federally insured bank,

in violation of 18 U.S.C. § 924(c)(1).

       In Count 8, Harding was charged with carrying a firearm, a .38 caliber Smith and

Wesson revolver, on June 5, 1995, during and in relation to a crime of violence, namely,

attempted robbery of a federally insured bank, in violation of 18 U.S.C

§ 924(c)(1).

       In Count 9, Harding was charged with carrying a firearm on June 5, 1995, after

having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).

       As indicated, Green, Berry and Harding were jointly tried, and a jury found all

three guilty of the respective charges against them. Specifically, Green was found guilty

on Counts 1, 2, 3, 4, 5 and 6. Berry was found guilty on Counts 1, 2, 3, 4 and 7. Harding




                                            -4-
was found guilty on Counts 1, 4, 8 and 9.1 Some background is necessary to an

understanding of the issues raised on appeal by the three defendants.

       The government’s evidence showed that four men on December 23, 1994, robbed

at gun point the Local Federal Bank in Oklahoma City, Oklahoma. The four were dressed

in black from head to foot, including “black gloves, black sweats, [and] ski masks [that]

were black.” One robber vaulted over the counter and demanded money. Witnesses

testified that the four were black. The robbers’ statements and demands were loud and

laced with obscenities and vulgar terms. A security guard for Burns International

Security Service was overpowered by the robbers who stole his .38 caliber Smith and

Wesson pistol. The robbery lasted “no more than three minutes” and approximately

$9,900 was taken by the robbers who then effected a successful escape.

       The government’s evidence also showed that on February 17, 1995, a branch of the

Bank of Oklahoma in Midwest City, Oklahoma, was robbed at gunpoint by four men

dressed in dark sweatsuit-type clothing wearing ski masks and gloves. The robbers used



       1
        Green was sentenced to imprisonment for 60 months on Count 1; 168 months on
Counts 2, 3 and 4; 60 months on Count 5; and 120 months on Count 6, with the sentences
imposed on Counts 1, 2, 3, 4 and 6 to be served concurrently and the term imposed on
Count 5 to be served consecutively to the others. Berry was sentenced to imprisonment
for 60 months on Count 1; 132 months on Counts 2, 3 and 4; and 60 months on Count 7,
with the sentences on Counts 1, 2, 3 and 4 to run concurrently and the sentence on Count
7 to be served consecutively to the others. Harding was sentenced to imprisonment for 39
months on Count 1; 39 months on Count 4; 60 months on Count 8; and 39 months on
Count 9, with the sentences on Counts 1, 4 and 9 to be served concurrently and the
sentence on Count 8 to be served consecutively to the others.

                                           -5-
demeaning and vulgar language to the bank employees and absconded with approximately

$21,421.

       One Raphael Avila was driving in the vicinity of the Bank of Oklahoma at the time

of the robbery. At that place and time, a van pulled out in front of the car Avila was

driving, causing him to slam on his brakes. Avila then began to follow the van. As Avila

was catching up with the van, the driver of the van slammed on his brakes and the

occupants of the van jumped from the van and fled on foot. One of them, before

disappearing, fired several shots at Avila, his car being hit twice. The van was abandoned

on the street. Inside it, police found a white pillowcase containing approximately $5,110.

In the vicinity of the van, the police recovered three expended cartridge casings and a

spent bullet. The casings were stamped “NNY 88" and were of a size associated with a

.380 automatic pistol cartridge.

       Through various tips, the FBI targeted Green and Berry, and agents began to

surveil the two. On Friday, June 2, 1995, agents followed Green, Berry, and an

unidentified woman, who drove in a white Oldsmobile Cutlass from Oklahoma City to

Bank IV in Guthrie, Oklahoma. At the bank, the woman went into the bank and cashed a

$10.00 bill. The woman, Adrienne Colbert, testified for the government at trial. She

stated that, when she returned to the car from Bank IV, she was specifically asked by

Green and Berry whether there was a security guard on duty inside the bank. After




                                            -6-
leaving the bank, the agents followed Ms. Colbert and Green and Berry back to

Oklahoma City.

       On Monday, June 5, 1995, the agents observed Green and Berry, both Afro-

Americans, in a white Oldsmobile Cutlass drive to 121 Northwest 24th Street in

Oklahoma City, where they picked up a third man, also an Afro-American who was later

identified as William Harding. The three stopped for gas and then went to “Mother & the

Boys Restaurant,” a restaurant operated by Green and Berry’s mother, Green and Berry

being step-brothers. The three stayed at the restaurant for about five minutes and

emerged therefrom carrying a tablecloth, which appeared to contain some items. All

three then got into the car and drove to Guthrie, Oklahoma, followed by FBI agents.

       An employee of Bank IV testified that she saw a white car in front of the bank and

that the driver drove by two or three times. An agent, who was at the scene, was able to

see the driver’s head swivel as if looking at the bank. However, the driver of the vehicle

did not stop and proceeded to return to Oklahoma City.

       The FBI stopped the defendants’ white Oldsmobile Cutlass on an off-ramp of

Interstate 44 in Oklahoma City a short time later. A loaded .38 caliber Smith & Wesson

revolver was removed from Harding’s waistband. An agent, who searched the Cutlass,

found and seized ski masks, gloves, sweat suits and a firearm from under the front

passenger’s seat. Also, a firearm was taken from Berry. In all, three sets of “double”

clothing were taken from the defendants’ persons, or from the vehicle in which they were


                                           -7-
driving. A Pietro-Beretta pistol recovered from the defendants’ Cutlass, was, according

to a government technician, the firearm from which the bullets aimed at Avila’s vehicle

were fired. The pistol taken from Harding was, according to other government witnesses,

the firearm which was taken from the security guard during the robbery on December 23,

1994, of the Local Federal Bank in Oklahoma City.

       The defendants were all interviewed by FBI agents, with Green and Berry

declining to say anything. According to Agents Hunt and Tsiumis, Harding stated that he

was approached on June 2, 1995 about doing a “job” in Guthrie for $3,000. Agent

Tsuimis testified that Harding told him he received a telephone call on June 5, 1995 at

about 8:30 a.m. and was picked up about 15 minutes later. After buying gas, Harding

stated that he and the others drove to “Mother & the Boys’ Restaurant,” where he was

given a firearm and a mask. According to Harding, they then drove to Bank IV in Guthrie,

but when “something just looked wrong,” they decided to leave Guthrie and were

returning to Oklahoma City when arrested.

       The government also established that all banks involved were federally insured.

Also, Berry and Harding stipulated that each had suffered a felony conviction prior to

their arrest on June 5, 1995.

       After the government rested its case, the defendants called two witnesses: Jody

Cooper, who could not recall ever telling the FBI agent that one of the robbers in the

February 17, 1995, robbery of the Bank of Oklahoma was white; and Wanda Thomas,


                                            -8-
who testified that she was with Green from 9:15 a.m. until 6:00 p.m. on December 23,

1994. Neither Green, Berry nor Harding testified. Harding did proffer the testimony of a

psychiatrist, who, he said, was prepared to testify about Harding’s diminished mental

capacity, which proffer was denied by the district court.

                                   GREEN and BERRY

       The primary ground for reversal urged by both Green and Berry is that the district

court erred in admitting Harding’s post-arrest statements to FBI agents, which statements,

according to counsel, necessarily implicated Green and Berry not only in the attempted

robbery of Bank IV on June 5, 1995, but also implicated them in the robbery of the Local

Federal Bank on December 23, 1994, when the security guard’s pistol was forcibly taken

from him. In so doing, according to counsel, the district court violated Green and Berry’s

Sixth Amendment confrontational rights. See Bruton v. United States, 391 U.S. 123

(1968). As above indicated, neither Green nor Berry made any post-arrest statements to

FBI agents, but, as indicated, Harding did make post-arrest statements to Agents Hunt and

Tsiumis.2


       2
        Prior to trial, Green and Berry filed a motion in limine asking the district court to
prohibit the government from introducing in its case-in-chief any post-arrest statement by
Harding, which, in any way, implicated Green or Berry. At the hearing on that motion,
the government stated that Harding had given no written statement to the FBI, only a
verbal statement. After hearing counsel, the district court stated that it would reserve
ruling on that matter and would consider it again when the FBI agents would be testifying
concerning post-arrest statements made by Harding to the FBI. During trial, outside the
presence of the jury, the government made a proffer to introduce a “redacted” version of
Harding’s post-arrest statements, which would include, inter alia, a statement by Harding

                                            -9-
       Agent Tsiumis, on direct examination, was asked one question concerning post-

arrest statements made by Harding, which question, and Harding’s answer thereto, were

as follows:

              Q. The final item I’d like to ask you about is in reference to
              an interview in your presence with the defendant, Mr.
              Harding, and I’m going to direct your attention to June 5th,
              and sometime in the morning hours between 10:00 and 11:00,
              and I have one question, which is this: What, if anything, did
              the defendant, Lee Harding, say about Mother and the Boys’
              Restaurant?

              A. He told me we could find more evidence located in the
              back room of the restaurant.

              Q. And did you pass that information on to Special Agent
              Hunt?

              A. Yes, I did.

       On cross-examination by Harding’s counsel, Agent Tsiumis testified that Harding

also told him that he received a telephone call on June 5, 1995, from “someone” who told

him that he would be picked up about 8:30 a.m. that morning and that he was picked up

by “someone” at about 8:45 a.m. Counsel for Green and Berry waived cross-examination

of Agent Tsiumis.

       At trial, as concerns post-arrest statements made by Harding, Agent Hunt testified

that Harding, after having been verbally advised of his rights, but refusing to sign a




that he was “provided the gun and mask on June 5, 1995, for the robbery.” Counsel’s
objection to that proffer was overruled.

                                            - 10 -
consent statement, made certain statements to him.3 In this connection, the following

colloquy occurred between government counsel and Agent Hunt:

              Q. (BY MR. RICHARDSON) My first question is this,
              Agent Hunt: What, if anything, did the defendant, Harding,
              tell you about the events of June 5th, 1995, in Guthrie?

              A. He indicated that on June the 2nd he had been approached and
              asked to go do a job in Guthrie. His share of the job would be
              $3,000.

              Q. And that was his words, “a job”?

              A. Yes.

              Q. What, if anything, did he tell you about the gun, the mask,
              and the gloves?

              A. He indicated those were given to him.

              Q. And when?

              A. On the morning of June the 5th.

              Q. And finally, what, if anything, did the defendant, Harding,
              say as to why he left Guthrie that morning?

              A. He indicated that something just looked wrong around the
              bank, and they decided to leave--he decided to leave.

       Counsel for Green and Berry had limited cross-examination of Agent Hunt, as did

counsel for Harding. On re-direct examination, government counsel, inter alia, touched



       Prior to Agent Hunt’s testimony, the district court instructed the jury that
       3

statements made by Harding to Agents Hunt and Tsiumis should only be considered as
evidence “as it relates to the defendant, Mr. Harding, and not in any manner relating to
any other defendant in this case.”

                                           - 11 -
briefly on post-arrest statements made by Harding. In this connection, that colloquy was

as follows:

              Q. And then my final question is in reference to Mr. Harding
              and the questions that were asked by his attorney in reference
              to the gun, the mask, and the gloves that you’ve testified he
              got on June 5th. My question is simply this: Did he say where
              he got the gun, the gloves and the mask?

              A. The guns and the mask were given to him at the Mother
              and the Boys’ Restaurant.

       As indicated, counsel’s primary argument in this court is that the Sixth

Amendment confrontational rights of Green and Berry were violated by the testimony of

Agents Hunt and Tsiumis concerning post-arrest statements made to them by Harding,

which, according to counsel, tended to involve Green and Berry not only in the attempted

robbery of Bank IV in Guthrie, Oklahoma, on June 5, l995, but also involved them in the

robbery of the Local Federal Bank in Oklahoma City on December 23, 1994. As the

foregoing excerpts of the testimony of Agents Hunt and Tsiumis concerning the verbal

post-arrest statements of Harding demonstrate, neither the name of Green nor Berry was

mentioned by either agent. Such redaction is not enough, says counsel, who asserts that

“the statement [of Harding] had identifiable indirect references which inevitably lead the

jury to the defendants [Green and Berry].” According to counsel, “facial neutrality” is

insufficient, and counsel asks this court to adopt the “contextual approach” which

requires a court to look beyond the statement itself and determine if the statement made



                                           - 12 -
by a non-testifying co-defendant, when “linked” with other evidence tends to incriminate

the other defendants.

       Prior to Bruton, supra, a post-arrest statement made by one defendant was

admissible in evidence in a joint trial, even though such statement incriminated a co-

defendant by name, so long as the jury was instructed that the statement, though

constituting evidence against the declarant, was not to be considered as constituting any

evidence against the co-defendant. Delli Paoli v. United States, 352 U.S. 232 (1957).

Bruton changed that. In Bruton, the Supreme Court held that a defendant is deprived of

the confrontation clause of the Sixth Amendment if a jury, despite instructions to the

contrary, considers the extra-judicial statements of a non-testifying co-defendant which

incriminates the complaining defendant.

       In Richardson v. Marsh, 481 U.S. 200 (1987), the Supreme Court held that the

confrontation clause of the Sixth Amendment was not violated by the admission of a non-

testifying co-defendant’s confession, assuming a limiting instruction, when “the

confession is redacted to eliminate not only the defendant’s name, but any reference to his

or her existence.” Id. at 211. In so doing, the Supreme Court reversed the Sixth Circuit

which had adopted “the ‘evidentiary linkage’ or ‘contextual implication’ approach to

Bruton questions . . . .” Marsh v. Richardson, 781 F.2d 1201 (6th Cir. 1986), rev’d,

Richardson v. Marsh, 481 U.S. 200 (1987).




                                           - 13 -
       In United States v. Chatman, 994 F.2d 1510, 1513 (10th Cir. 1993), cert. denied,

510 U.S. 883 (1993) (citing Richardson, 481 U.S. at 211), we held that the denial by the

district court of a motion to sever a defendant from the trial of his co-defendant whose

post-arrest statements had incriminated him did not violate the confrontation clause where

the statement had been redacted so as to eliminate the complaining defendant’s name and

the jury was given a limiting instruction. In so doing, we went on to reject the

defendant’s further contention that, even though his name had been redacted, he was still

“linked” to his co-defendant’s confession “by other evidence admitted at trial” and in

connection therewith went on to say that “[t]his inferential incrimination argument is

unavailing. . . .” Chatman, 994 F.2d at 1513. See also United States v. Markopoulos, 848

F.2d 1036, 1039 (10th Cir. 1988), where we spoke as follows:

              Since the statements at issue in this case were also only
              inferentially incriminating, we believe they satisfy the
              requirements set forth in Richardson and were properly
              admitted.

       In United States v. Williams, 936 F.2d 698 (2d Cir. 1991), Williams claimed that

his confrontation rights were violated when testimony by an FBI agent concerning a

confession made by his co-defendant was admitted at their joint trial. The confession of

his co-defendant had been redacted and references to Williams were replaced by words

such as “another guy.” However, Williams’ own confession, which was also before the

jury, interlocked with that of his co-defendant in such detail that the jury could easily



                                            - 14 -
have concluded that Williams was the other “guy.” In holding that Williams’

confrontation rights were not violated, the Second Circuit spoke as follows:

              [1] Since Richardson, we have on several occasions admitted
              redacted confessions in which names of codefendants were
              replaced by neutral pronouns and “where the statement
              standing alone does not otherwise connect co-defendants to
              the crimes.” These decisions have uniformly held that the
              appropriate analysis to be used when applying the Bruton rule
              requires that we view the redacted confession in isolation
              from the other evidence introduced at trial. If the confession,
              when so viewed, does not incriminate the defendant, then it
              may be admitted with a proper limiting instruction even
              though other evidence in the case indicates that the neutral
              pronoun is in fact a reference to the defendant. This analysis
              is adopted directly from Richardson itself, and the principal
              extension of Richardson by our decisions is that they allow
              redacted confessions to refer to accomplices with neutral
              pronouns.” (Citations omitted.)

Id. at 700.

       Counsel for Green and Berry argues that it was error to admit Harding’s post-arrest

statement, even though redacted so as to not include any mention of either Green or Berry

by name. In thus arguing, counsel asserts that Harding’s post-arrest statement should not

be viewed “in isolation.” According to counsel, the statement, when viewed in context

with other evidence, linked Green and Berry not only to participation in the attempted

robbery of Bank IV in Guthrie on June 5, 1995, but also linked Green and Berry to the

robbery of the Local Federal Bank in Oklahoma City on December 23, 1994, since the

firearm found on Harding on June 5, 1995, was the firearm taken from the security guard



                                           - 15 -
in the Local Federal Bank robbery on December 23, 1994.4 We do not agree with this

argument. The district court did not err in admitting this testimony of Agents Hunt and

Tsiumis. We believe our disposition of this particular matter does not violate Bruton, and

is consistent with the rationale of Richardson, Chatman, Markopoulos and Williams.

       In Count 5, Green was charged with knowingly carrying a firearm on June 5, 1995,

during and in relation to a crime of violence, namely, attempted robbery of a federally

insured bank. In Count 7, Berry was also charged with carrying a firearm on June 5,

1995, during and in relation to a crime of violence, namely, attempted robbery of a

federally insured bank.5 Both of these counts were related to the so-called attempted

robbery on June 5, 1995, of Bank IV in Guthrie. As above indicated, Green, Berry and

Harding were charged in Count 4 with an attempt to enter and rob on June 5, 1995, Bank

IV of Guthrie, Oklahoma, a federally insured bank, each of the three defendants then and




       Harding was not charged with the robbery of Local Federal Bank on December
       4

23, 1994.
       5
         18 U.S.C. § 924(c)(1) provides as follows:
   (c)(1) Whoever, during and in relation to any crime of violence or drug trafficking
crime (including a crime of violence or drug trafficking crime which provides for an
enhanced punishment if committed by the use of a deadly or dangerous weapon or device)
for which he may be prosecuted in a court of the United States, uses or carries a firearm,
shall, in addition to the punishment provided for such crime of violence or drug
trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a
short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, to
imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or
is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years.

                                           - 16 -
there having an intent to commit bank robbery by force, violence and intimidation. There

was no mention in Count 4 of the use of any firearm.

       In line with 18 U.S.C. § 924(c)(3), the district court instructed the jury as follows:

                                   INSTRUCTION NO. 28

                           18 U.S.C. § 924(c)(1) --DEFINITIONS

                      The term “crime of violence” means an offense that is a
              felony and has as one of its essential elements the use, attempted
              use, or threatened use of physical force against the person or
              property of another, or an offense that by its very nature
              involved a substantial risk that such physical force may be used
              in committing the offense. You are instructed that the offense
              alleged in Count Four of the indictment, attempted bank
              robbery, is a crime of violence.
                      The phrase “uses or carries a firearm” means having a
              firearm available to assist or aid in the commission of the crime
              alleged in Count Four of the indictment.
                      “During and in relation to” a crime of violence means
              that the firearm had some relation to or some connection to the
              underlying crime. (Emphasis added.)

       On appeal, Green and Berry, as well as Harding, all argue that the district court erred

in giving the aforementioned instruction and, here, all focus on the underlined portion of the

instruction. They argue that the district court erred in instructing the jury that the offense

charged in Count 4 is a “crime of violence” as that term is used in 18 U.S.C. § 924(c)(1).

Counsel for Green and Berry concedes that, although trial counsel did object to the aforesaid

instruction, the basis for the objection in the trial court is not the basis urged on appeal. In

such circumstances, counsel for Green and Berry concludes that she must show “plain error.”

For reasons set forth, supra, we do not find plain error.

                                             - 17 -
       We note, parenthetically, that trial counsel for Harding did object to the underlined

portions of the aforesaid instruction on the ground that “I don’t believe that it would be

appropriate to instruct them, as a matter of law, that Count 2 [sic . . . it was later corrected

to read Count 4] is a crime of violence.” In this court the basic position of Green and Berry,

as well as Harding, is that the district court erred in instructing the jury that as a matter of law

the “offense alleged in count four. . . is a crime of violence.” We disagree. Count 4 alleged,

inter alia, that all three defendants attempted to enter and rob Bank IV “by force, violence

and by intimidation.” Such is sufficient to support an instruction that the offense alleged in

Count 4 is a crime of violence to bring it within 18 U.S.C. § 924(c)(3). The jury, under the

circumstances, should not be allowed to speculate on whether Count 4 charges a crime of

violence. It does.

       Green and Berry also argue that the evidence is legally insufficient to support their

conviction on Count 4 which charged them with an attempt to enter and rob Bank IV on June

5, 1995.6 Their argument is that “casing” Bank IV on June 2, 1995, and going to Bank IV




       6
        Count 4 reads as follows:
  That on or about June 5, 1995, at Guthrie, Oklahoma, in the Western District of
Oklahoma, WILLIAM LEROY HARDING, ERIC DEVON GREEN, and VINCENT
BERRY, the defendants herein, did with intent to commit bank robbery by force, violence
and by intimidation, attempt to enter and rob Bank IV, Broad and Cleveland Street,
Guthrie, Oklahoma, the deposits of which were then insured by the Federal Deposit
Insurance Corporation,
  All in violation of Title 18, United States Code, Sections 2113(a).

                                               - 18 -
on June 5, 1995, with firearms and masks were only “mere preparation” and did not

constitute a “substantial step” towards the commission of a robbery of Bank IV.

       In our view, United States v. Prichard, 781 F.2d 179 (10th Cir. 1986), is a complete

answer to this argument, and counsel’s efforts to distinguish Prichard are unavailing. In

Prichard, we held that “reconnoitering of the object of a crime and the collecting of the

instruments to be used in that crime, together, can constitute a substantial step.” Id. at 181.

Here, Green and Berry did “reconnoiter” the object of the crime and did collect “instruments”

to be used in the crime. The fact that when they arrived at Bank IV on June 5, 1995, things

didn’t look right and they decided not to enter the bank does not mean that they were not

guilty of an “attempt to enter and rob.”

       Green and Berry next argue that their convictions on Counts 5 and 7 must be reversed

because “there was insufficient evidence of an underlying crime of violence.” We have

already held that Count 4 charged a crime of violence, and in our view the evidence is

sufficient to support the jury’s determination that they were, in fact, guilty of the crime

charged.

                                           HARDING

       Harding’s initial argument in this court is that the district court erred in denying his

pre-trial motion to suppress the use at trial of the firearms and clothing taken from the

Oldsmobile Cutlass when it was stopped by the FBI agents on June 5, 1995. The basis for

the motion was counsel’s belief that the arrest of Harding, as well as Green and Berry, was


                                            - 19 -
unlawful since it was not based on probable cause. A hearing was held on this motion and

the district court denied the motion, holding that the FBI agents at the time of the arrest had

probable cause to believe that the three had conspired to rob Bank IV in Guthrie. We agree.

The facts of the present case are strikingly similar to the facts in United States v. Williams,

10 F.3d 1070 (4th Cir. 1993), cert. denied 513 U.S. 926 (1994), where the Fourth Circuit

found probable cause to make a warrantless arrest.

       Prior to trial, Harding asked that his trial be severed from that of Green and Berry.

The basis for the motion was that Green and Berry were charged in two counts of the nine-

count indictment with robberies wherein Harding was not named as a defendant. After

hearing, the motion was denied. We find no abuse of discretion. Defendants jointly charged

are not entitled to separate trials as a matter of right. Bailey v. United States, 410 F.2d 1209,

1213 (10th Cir.), cert. denied 396 U.S. 933 (1969). The fact that Harding was not a

defendant in every court of the nine-count indictment did not mandate that his trial be

separate from the others. Id. Green and Berry were not themselves named in every count

of the indictment. The general rule is that persons who are indicted together should be tried

together. United States v. Edwards, 69 F.3d 419, 434 (10th Cir. 1995), cert. denied, 116

S.Ct. 2497 (1996). See also United States v. Youngpeter, 986 F.2d 349 (10th Cir. 1993).

And the fact remains that all three were arrested together on June 5, 1995, when returning

from Bank IV.




                                             - 20 -
       In jury selection, the government used one of its peremptory challenges on an Afro-

American. Counsel asked the government to state its reasons for the challenge. The

government stated that the reason for the challenge was that the prospective juror on voir dire

had stated that he had two sons who had been “in trouble with the law,” one of whom had

been convicted of armed robbery. The challenge was upheld by the district court as, under

the circumstances, being “racially neutral.” We find no error. This case is distinguishable

from Batson v. Kentucky, 476 U.S. 79 (1986). The juror was not challenged because he was

Afro-American, but because of his answers on voir dire concerning his sons’ brushes with

the law. See also United States v. Sneed, 34 F.3d 1570, 1578-80 (10th Cir. 1994).

       For reasons set forth above, we reject Harding’s suggestion that the evidence is

insufficient to sustain his conviction for conspiracy, attempted robbery, and carrying a

firearm during and in connection with a crime of violence. Nor are we impressed with

counsel’s suggestion that the district court erred in not instructing the jury on multiple

conspiracies.

       Other matters raised on appeal by the defendants are deemed to be without merit.

       Judgments affirmed.




                                            - 21 -
