                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4545


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JERRY BARNES,

                Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cr-00158-F-3)


Argued:   January 24, 2012                    Decided:   May 11, 2012


Before TRAXLER, Chief Judge, FLOYD, Circuit Judge, and J.
Michelle CHILDS, United States District Judge for the District
of South Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED:   Mary   Jude  Darrow,  Raleigh,  North   Carolina,  for
Appellant.    Felice McConnell Corpening, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.       ON
BRIEF: John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            In   May   2009,   Appellant   Jerry    Barnes      and    five    co-

defendants were indicted in connection with the December 12,

2008, armed robbery of a BB&T Bank branch in Elm City, North

Carolina.     The charges against Barnes included (1) conspiracy to

commit armed bank robbery, see 18 U.S.C. § 371; (2) aiding and

abetting armed bank robbery with forced accompaniment, see 18

U.S.C. § 2113(a),(d), (e); 18 U.S.C. § 2; and (3) aiding and

abetting the use of a firearm during and in relation to a crime

of violence, see 18 U.S.C § 924(c)(1)(A)(ii); 18 U.S.C. § 2.

Barnes was convicted on all three counts following a jury trial.

He raises numerous issues on appeal.        We affirm.



                                     I.

            Trial   testimony     established     that   in    December     2008,

Brian Lucas, Anthony Atkinson, Marcus Wiley and Appellant Barnes

began making plans to rob the BB&T on Main Street in Elm City.

Their   discussions    included    where   they    could      park    before   the

robbery and where they would go after committing the robbery.

Barnes testified and denied participating in the planning, but

Wiley testified that Barnes took part in the planning.                     Barnes

admitted, however, that on the night before the robbery, this

same group of people gathered at the home of George Thomas,

where   Barnes   was   residing.      According     to   Wiley,      the   topics

                                      2
discussed      that    evening     included       where        to    park    during      the

robbery, the need for a get-away driver, and what role Barnes,

an amputee, would play in the robbery.                        The group decided that

Barnes would park his truck in front of the drug store located

across the street from the BB&T in order to block the window and

distract any potential witnesses who were inside the drug store.

During the discussions, Barnes presented a map, sketched on the

back    of   an    insurance     receipt,       showing        the    bank’s       immediate

vicinity, the location of the drug store, and the spot where

Barnes was supposed to park his truck in relation to the bank

and the drug store.

             On    December    12,    2008,      the    morning       of    the    robbery,

Barnes drove Wiley, Atkinson, and Lucas to the Bank to scout the

general area for law enforcement personnel.                         After observing the

area,    the      group    spotted    Matthew          Farr     at    the    Short       Stop

convenience store and recruited him to serve as one of the get-

away drivers.         Barnes then drove Wiley, Atkinson, and Lucas back

to Thomas’s house to meet Vernon Atkinson (“BJ”), whom Barnes

had also recruited as a get-away driver.

             BJ    then    drove     Wiley,      Atkinson,          and    Lucas    to   the

vicinity of the bank and dropped them off, while Barnes drove

his Chevrolet Suburban separately and parked it in front of the

drug store across the street from the bank.                         The location of the

Suburban       prevented    anyone     in       the     drug     store      from     seeing

                                            3
customers entering or exiting the bank.                 Barnes went inside the

drug store for about 15-20 minutes, drawing attention to himself

by asking the pharmacist about possible medications for “phantom

pain” in his missing limb.            J.A. 307.        After Barnes spoke with

the pharmacist, he went to the front of the store and ordered

two milkshakes and then bought some jewelry.                      Barnes left the

drug store and was pulling away in his truck just as Wiley,

Lucas,    and   Atkinson    were      entering    the    bank      wearing     masks.

During    the    robbery,    Barnes’         co-defendants        threatened     bank

employees and Atkinson brandished a hand gun.                       They fled the

bank with over $20,000.00.

              BJ drove them from the bank to a location where Farr

was waiting in a second get-away car.                  Farr then drove Wiley,

Lucas,   and    Atkinson    to   an   area    called    “Sleepy     Hollow”     where

Barnes was supposed to meet them.                Lucas called Barnes to see

where    he   was,   but   Barnes     told    Lucas    that   a    lot   of    police

officers had responded to the robbery and that they should “stay

put.”

              In the meantime, Barnes had driven from the drug store

to meet his cousin Rodney for their regularly scheduled Friday

trip to a flea market.           When Rodney got into Barnes’ Suburban,

Barnes was on his cell phone telling someone “to stay put.”

J.A. 317.       Barnes then told Rodney that he had been speaking

with Lucas and that Lucas and some others had just robbed a

                                         4
bank.     Barnes then picked up BJ, who had never previously gone

to the flea market with Barnes and Rodney.

            On the way to the flea market, Barnes encountered a

road block that had been set up because of the bank robbery.

Officers asked Barnes for proof of insurance and Barnes produced

the insurance receipt with the diagram that was drawn while the

robbery was being planned.              Officers noticed a “crudely drawn

map” on the back of the insurance receipt and were suspicious

about whether the map might be connected with the robbery.                        At

the request of the officers, Barnes agreed to let the police

keep the insurance receipt.              Barnes was then allowed to pass

through the road block.            After staying a short period at the

flea    market,     Barnes   and    BJ    took    Rodney     home,    then     drove

separately     to    retrieve      Barnes’   co-conspirators         from     Sleepy

Hollow.      Atkinson rode with Barnes while Lucas, Wiley and BJ

rode together.

            Investigators       later    took    the   map    to    the    bank   and

determined that although the map did not match the interior lay-

out of the bank, it appeared to reflect the exterior vicinity of

the bank.     Additional investigation quickly led to the arrests

of Atkinsons, Wiley, Lucas, Farr, and Barnes.

            The jury found Barnes guilty on all three charges.                    At

sentencing,    the    district      court    concluded       that    the    evidence

supported an enhancement for Barnes as a leader, supervisor, or

                                         5
manager   over    the   other     co-defendants.           The    court     ultimately

sentenced Barnes to a 60-month term on Count One (conspiracy to

commit bank robbery); a concurrent 135-month term on Count Two

(aiding     and      abetting      armed        bank      robbery     with      forced

accompaniment); and a consecutive 84-month term on Count Three

(aiding and abetting the using and carrying of a firearm during

and in relation to a crime of violence), for a total sentence of

219 months.



                                       II.

            Barnes      first     contends        that     the      district    court

erroneously      excluded      extrinsic       evidence    of     prior     statements

Wiley    made    that   were    inconsistent       with     his     trial    testimony

implicating Barnes in the robbery.

            In a videotaped post-arrest interview, Wiley confessed

to his own involvement in the conspiracy but did not mention

Barnes as one of his co-conspirators.                     During the interview,

Wiley also signed a statement that did not implicate Barnes in

the robbery.       Also, at Barnes’ request, Wiley signed a letter

Barnes had prepared indicating that Barnes had no role in the

crime.    And, finally, Wiley prepared another statement himself

indicating that Barnes was not involved in the robbery.

            At    trial,    however,   Wiley       implicated        Barnes    in   the

planning and execution of the robbery.                   During his testimony on

                                           6
direct examination, Wiley admitted that when he was interviewed

by the police after the robbery, he “lied” and did not tell them

about Barnes because “his role was so small and he just helped

plan     and    cause     a     distraction.”         J.A.     157-58.             Likewise,

throughout      cross-examination        Wiley       admitted       that      he    did   not

mention Barnes in his initial statements to the police, and that

in   subsequent       written    statements      he    specifically           denied      that

Barnes was involved.

               The district court refused to admit Wiley’s videotaped

interview and his written statements as inconsistent statements

under Federal Rule of Evidence 613(b).                       We review a district

court’s decision to admit or exclude evidence for an abuse of

discretion.       See United States v. Lighty, 616 F.3d 321, 351 (4th

Cir.   2010).         Rule    613(b)   permits       the     admission        of    a   prior

statement       for   impeachment      purposes,        so     long      as    the      prior

statement       is     inconsistent,       the        witness       is     afforded        an

opportunity      to   explain     or   deny    the     prior    statement,          and   the

opposing party is permitted to interrogate the witness about

such a statement.             See Fed. R. Evid. 613(b); see also United

States v. Young, 248 F.3d 260, 267 (4th Cir. 2001).                           Even if the

requirements of Rule 613(b) are otherwise satisfied, a court is

not obligated to admit the extrinsic evidence if, under Rule

403, its “‘probative value is substantially outweighed by the

danger    of     unfair       prejudice,      confusion        of    the      issues,      or

                                           7
misleading the jury, or by considerations of undue delay, waste

of    time,   or     needless   presentation        of    cumulative           evidence.’”

Young, 248 F.3d at 268 (quoting Fed. R. Evid. 403).

              The district court addressed this issue at a number of

points throughout the trial, suggesting at times that Wiley’s

prior statements were not inconsistent with his trial testimony

as required by Rule 613(b), and at others that the probative

value    of    the     evidence     was     outweighed        by    the        unnecessary

introduction of cumulative evidence under Rule 403.                            We need not

delve too deeply into the court’s reasoning, however, because

any error by the court would have been harmless in any event.

“Evidentiary rulings are subject to harmless error review,” and

we    will    find    an    error   harmless      if     we   can       “say    with    fair

assurance, after pondering all that happened without stripping

the erroneous action from the whole, that the judgment was not

substantially swayed by the error.”                    United States v. Johnson,

617   F.3d    286,    292    (4th   Cir.    2010)      (internal        quotation      marks

omitted).

              During cross-examination, defense counsel forced Wiley

to    admit   numerous      times   to     the   jury    that      he    was    telling    a

different story at trial than he had told police, orally and in

writing, soon after the robbery.                 Defense counsel asked Wiley at

least 15 questions requiring Wiley to admit that he had either

not mentioned Barnes as one of the co-conspirators in the bank

                                            8
robbery       or     specifically         denied      that    Barnes       was     involved.

Moreover,          counsel        effectively       pointed     out       through     cross-

examination that Wiley never went to the police to correct his

prior statements that he was contending at trial were false.                              It

is clear that Barnes was able to accomplish his purposes of

undercutting            Wiley’s     credibility       even    without      the     extrinsic

evidence.          See Young, 248 F.3d at 269 (holding that district

court’s       failure       to    admit   audiotape      of     a   prior    inconsistent

statement         was     harmless     when    the    witness       admitted     on   cross-

examination          that        the   prior        statement       was    inconsistent).

Accordingly, we conclude that any error was harmless as we can

“say       with    fair    assurance,      after      pondering      all    that    happened

without stripping the erroneous action from the whole, that the

judgment was not substantially swayed by the error.”                                Johnson,

617 F.3d at 292. *




       *
       We also conclude Barnes’ related argument that Matthew
Farr, one of the get-away drivers, made a prior inconsistent
statement is without merit.     Farr, who was not at the group
meeting where the robbery was planned, told police when asked
what role Barnes played that Barnes “didn’t really do nothing.”
J.A. 239. It is unclear to us whether this statement—which Farr
admitted making—is even inconsistent with Farr’s trial testimony
that Barnes was in the car at the Short Stop when Lucas asked
Farr to help them on a job. But, even if the exclusion of this
extrinsic evidence was an error, it was clearly a harmless one.



                                                9
                                                III.

            Next,        Barnes           challenges          the        district    court’s

imposition of a four-level organizer enhancement under U.S.S.G.

§ 3B1.1(a).       To qualify for a four-level increase under U.S.S.G.

§ 3B1.1(a), a defendant must have been “an organizer or leader

of a criminal activity that involved five or more participants

or was otherwise extensive.”                    U.S.S.G. § 3B1.1(a).            Application

Note 4 states several relevant factors, including the “nature of

[the     defendant’s]        participation             in     the    commission      of   the

offense,” the “degree of participation in planning or organizing

the     offense,”      and     “the       nature       and     scope      of   the   illegal

activity.”       U.S.S.G.      §    3B1.1,       cmt.       n.4.     A    district   court’s

factual finding that a defendant was an organizer or leader in

an offense is reviewed for clear error.                             See United States v.

Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).

            There is sufficient evidence in the record at trial

and sentencing to show that the district court did not commit

clear    error    in   finding           that    Barnes      was    an    organizer.      The

evidence showed that the primary meeting where the robbery was

planned    was    held    at       the    residence         where    Barnes    was   living.

Barnes participated in this planning meeting and drew for the

group the map of the bank and its surrounding vicinity, which

was later recovered from Barnes’ Suburban by police officers.

Barnes gathered the other participants in his vehicle on the

                                                 10
morning of the robbery and drove them near the bank to scout the

area for law enforcement and traffic conditions.                   Barnes drove

the group to the Short Stop gas station where they recruited

Farr as a get-away driver.           And, in fact, Barnes had previously

recruited B.J. Atkinson to drive his car during and after the

robbery.    Moreover, there was evidence that Barnes obtained the

handgun that Atkinson used during the robbery.

            Barnes   argues     that    none     of    the     participants    had

decision-making authority and that they shared equally in the

planning process.     Barnes is simply disputing the conclusion the

court drew from the facts.             Although the court could possibly

have concluded otherwise, it was not clear error to conclude

that Barnes was an organizer.



                                       IV.

            Next, Barnes objects to the district court’s refusal

to allow defense counsel to question Wiley concerning his mental

health.     We review a district court’s determination as to the

scope of cross-examination for abuse of discretion.                     See United

States v. Scheetz, 293 F.3d 175, 184 (4th Cir. 2002).                       During

cross-examination,     the    district       court    barred    defense    counsel

from asking Wiley about purported statements he made to nurses

while in jail that he had seen hallucinations of dead people.

Barnes    contends   that    these   statements,       which    Wiley    allegedly

                                        11
made   within        a        year   of   trial,       were     relevant      to    Wiley’s

credibility.

          Mental defect can be a proper basis by which to attack

a witness’s credibility if the alleged mental defect was “at a

time probatively related to the time period about which he was

attempting      to       testify,”        and    it        “go[es]    to    the    witness’

qualification to testify and ability to recall,” and does “not

introduce into the case a collateral issue which would confuse

the jury.”      United States v. Lopez, 611 F.2d 44, 46 (4th Cir.

1979) (internal quotation marks omitted); see United States v.

Jimenez, 256 F.3d 330, 343 (5th Cir. 2001).

          Barnes does not suggest that Wiley was experiencing

hallucinations           at    the   time   of       the    robbery    or   in     the   days

immediately preceding the robbery indicating Wiley was unable to

perceive or recall the details of the robbery or its planning.

Likewise, there is no evidence suggesting Wiley was experiencing

hallucinations at the time of trial or that they affected his

ability to recall and testify accurately at trial.                           By contrast,

the district court allowed cross-examination of Wiley regarding

his substantial drug use within a day or two of the robbery,

including his use of marijuana, cigarettes soaked in embalming

fluid and Ecstasy.

          We conclude the evidence did not reflect that Wiley’s

hallucinations occurred “at a time probatively related to the

                                                12
time period about which he was attempting to testify,” Lopez,

611 F.2d at 46 (internal quotation marks omitted), and thus the

district court did not abuse its discretion in excluding this

evidence.



                                        V.

            Next, Barnes challenges the district court’s refusal

to issue an “Eyewitness Identification” instruction.                   We review

the district court’s refusal to give a defendant’s requested

jury instruction for abuse of discretion.                 See United States v.

Moye, 454 F.3d 390, 397–98 (4th Cir. 2006) (en banc).                        “[W]e

accord the District Court much discretion and will not reverse

provided that the instructions, taken as a whole, adequately

state the controlling law.”             United States v. Hassouneh, 199

F.3d 175, 181 (4th Cir. 2000).

            Barnes’ proposed identification charge explained that

the   value    of      identification         testimony     “depends    on     the

opportunity the witness had to observe the person initially and

later to make a reliable identification,” and that “[a] reliable

identification would not be one unfairly suggested by events

that have occurred since the time of the initial observation.”

Barnes’     asserted     basis   for         an   eyewitness    identification

instruction    was     the   conflict    between     Farr’s    testimony     that

Barnes was with Atkinson, Wiley and Lucas at the Short Stop

                                        13
convenience store when the group asked Farr to help with the

robbery, and Barnes’ testimony that he was never at the Short

Stop on the day of the robbery.

           We conclude that the court’s refusal to issue this

charge        was      well         within         the         court’s         discretion.

Misidentification was not an issue at trial.                             Farr testified

that he had known Barnes for “a couple” of years before the

robbery and that he was only 15 feet away from Barnes’ Suburban

during the conversation at the Short Stop that morning.                                 More

importantly,        Farr’s    testimony      was    corroborated         by    Wiley,    who

testified that he and Barnes were in the vehicle with Atkinson

and Lucas when they saw Farr at the Short Stop and stopped to

speak with him.            Accordingly, we reject this argument as well.

See United States v. Jackson, 347 F.3d 598, 607 (6th Cir. 2003)

(“Identification instructions are within the discretion of the

trial court; they need only be given if there is a danger of

misidentification due to a lack of corroborating evidence.”);

United States v. McNeal, 865 F.2d 1167, 1171-72 (10th Cir. 1989)

(no   error     in    refusing       cautionary          eyewitness         identification

instruction     where       government's      evidence         did    not    depend   on   a

single   eyewitness         whose   testimony       was    not       corroborated);      cf.

United   States       v.    Revels,    575     F.2d      74,    76    (4th     Cir.   1978)

(refusing to give special identification instruction not plain

error “where other independent evidence . . . is presented to

                                             14
the trier of fact which is corroborative of the guilt of the

accused”).



                                           VI.

             Finally,       Barnes       argues        he        should      be     resentenced

because U.S.S.G. § 4A1.1(e) was amended shortly after he was

sentenced.        The district court used the 2009 version of the

Sentencing    Guidelines,         which    was     in        effect       when      Barnes     was

sentenced    on     May   12,    2010.      Under       that        version,        §    4A1.1(e)

required     the     sentencing         court     to        add    two       points      to    the

defendant’s        criminal      history        calculation             if    the       defendant

committed his offense less than two years after release from

imprisonment.         Effective         November        1,        2010,      the     Sentencing

Commission eliminated this “recency” provision.                                   See U.S.S.G.

App. C, amend. 742 (2010).

            Barnes        was    not    given     any        “recency”            points      under

U.S.S.G. § 4A1.1(e).            Rather, the district court imposed a two-

level enhancement under U.S.S.G. §4A1.1(d), which applies when

“the defendant committed the instant offense while under any

criminal      justice          sentence,        including           probation,             parole,

supervised     release,         imprisonment,           work        release,        or      escape

status.”     U.S.S.G. § 4A1.1(d).           Subsection (e) was not the basis

for   any    of     Barnes’      criminal        history          points,         and    so    the

amendment,    which       is    not    retroactive          in    the     first     place,     see

                                           15
U.S.S.G.    §   1B1.10(c)   (2010),     provides   no   aid   to    Barnes

whatsoever.



                                 VII.

            Accordingly, we hereby affirm Barnes’ convictions and

sentence.



                                                                   AFFIRMED




                                  16
